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Tamijuddi Sheikh, Vs. Kumar Satya Shanker Ghosal and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in32Ind.Cas.101
AppellantTamijuddi Sheikh, ;abdul Karim and ors., ;ainuddi and ors. and ;nawab Ali Bepari and ors.
RespondentKumar Satya Shanker Ghosal and ors.
Excerpt:
civil procedure code (act v of 1908), order xlvii, rule 2 - 'judge who passed the decree', meaning of--review--jurisdiction. - .....be made to a judge who had only signed the decree, there would be no necessity to substitute the word 'judge' for the word 'court.' any successor of the judge who delivered judgment could deal with such an application for review as well as one who had signed the decree. the act of his signing the decree is simply an accident due to his having happened to be appointed during the interval between the delivery of judgment and the preparation of the decree. it seems clear, therefore, that the word 'judge' has been deliberately used in place of the word 'court' in order to retain the provision of the former code that applications of this kind must be made to the judge who delivered judgment.4. we, therefore, hold that the learned special judge was wrong in holding that he was the judge who.....
Judgment:

1. In these four appeals the question we have to decide is whether an application under Order XLVII, Rule 2, for a review of a decree upon some ground other than the discovery of new and important matter or evidence, or the existence of a clerical or arithmetical mistake, can be made to a Judge who signed the decree but did not write or deliver the judgment in accordance with which the decree was drawn up. In other words, the point for determination is the meaning of the expression the Judge who passed the decree' in that rule. In our opinion these words undoubtedly mean the Judge who has decided a case, and not the Judge who has merely signed a decree after satisfying himself that it has been drawn up in accordance with the judgment delivered by his predecessor.

2. It has been contended by the learned Counsel who appears on behalf of the respondents that the decree is non-existent until it is signed and that, therefore, the Judge who signed the decree must be held to have passed it. But once the decree is signed, it takes effect from the date of the judgment. The Judge who delivers the judgment expresses what the decree is and is responsible for its substance, while the signing Judge is responsible only for its verbal accuracy. There is no straining of language in saying that the former passed the decree which subsequently came into operation with retrospective effect on the performance of an official act by the latter. The word 'pass' has many meanings, but when used as a part of a legal expression it signifies 'utter or pronounce judicially, e.g., pass sentence' [see the Oxford Dictionary, paragraph 52 (b), under this word].

3. The view we take is supported by a comparison of the former and the present Code of Civil Procedure. In Section 624 of the Code of 1882, it was provided that no application for a review of judgment on, what may be called for the sake of brevity, special grounds should be made to any Judge other than the Judge who delivered it. A careful comparison of Sections 623 and 624 of that Code with the corresponding Rules 1 and 2 of Order XLVII and Section 114 of the Code of 1908 now in force shows that though there has been an alteration of the language, there has been no change of the law. Section 623 of the former Code and Section 114 and Order XLVII, Rule 1, of the present Code pro vide generally that an application for review may be made to the Court which passed the decree. Rule 2 of Order XLVII, however, requires that an application for review on special grounds must be made to the Judge who passed the decree. If such an application could be made to a Judge who had only signed the decree, there would be no necessity to substitute the word 'Judge' for the word 'Court.' Any successor of the Judge who delivered judgment could deal with such an application for review as well as one who had signed the decree. The act of his signing the decree is simply an accident due to his having happened to be appointed during the interval between the delivery of judgment and the preparation of the decree. It seems clear, therefore, that the word 'judge' has been deliberately used in place of the word 'Court' in order to retain the provision of the former Code that applications of this kind must be made to the Judge who delivered judgment.

4. We, therefore, hold that the learned Special Judge was wrong in holding that he was the Judge who passed the decrees of which he granted a review. As he acted without jurisdiction the fact that his predecessor had previously granted a review, which was set aside by the High Court on the ground that the order was passed without notice to the other side, cannot give validity to his order.

5. We accordingly decree these appeals and set aside the order of the Special Judge granting review of the four appellate decrees in respect of which these appeals have been preferred. The appellants (?) will pay the respondents' costs in this Court. We assess Pleader's fees at two gold mohurs for the four appeals.


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