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Sudhansu Bhusan Pandey Vs. Majho Bibi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1937Cal732
AppellantSudhansu Bhusan Pandey
RespondentMajho Bibi
Cases ReferredJnanada Sundari Shah v. Madhab Chandra Mala
Excerpt:
- .....to defend the order of the learned district judge. that order cannot in fact be supported. the learned judge applied a test which has no manner of application in deciding a question of limitation. the facts on which he held that the appeal in the court below was out of time may be indicated by reference to the relevant dates. the judgment of the trial court was passed on 30th april 1935, but the decree was not signed till 15th june 1935, that is till about two months and a half later. on the 13th july following, that is within less than 30 days from the date the decree was signed, the appellant applied for certified copies of the judgment and the decree. the requisite court-fee stamps etc., were notified on the 15th july, and were supplied that very day. the copies were ready for.....
Judgment:

Biswas, J.

1. This is an appeal against an order of the District Judge of Murshidabad by which he rejected a memorandum of appeal filed in his Court on the ground that it was out of time. At the hearing of the appeal before me, Dr. Radha Benode Pal for the respondent took a preliminary point in bar which apparently sprung a surprise upon the learned advocate for the appellant, Mr. Urukramdas Chakravorty. Mr. Chakravorty was not quite sure at first as to the line of answer he should adopt, but his argument assumed a more definite shape after the midday recess. Dr. Pal's contention was that the order of the learned District Judge was not a decree, nor was it an appellate order under the Code of Civil Procedure, hence there was no appeal, and the only remedy of the appellant, if any, was by way of revision under Section 115 of the Code. In support of his argument, he relied on the ease in Jnanada Sundari Shah v. Madhab Chandra Mala : AIR1932Cal482 .

2. In answer, Mr. Chakravorty put forward three grounds on which he said the order should be treated as a decree. In the first place it was urged that the effect of the order was the same as if it had been dismissed after hearing, at any rate after hearing under Order 41, Rule 11, if not after final hearing. Secondly, it was contended that the order in so far as it dismissed the appeal amounted to an affirmance of the decision of the trial Court, and in that sense was an adjudication of the rights of the parties within the definition of a 'decree' under Section 2(2) of the Code. In the third place, it was argued that the words 'rejection of a plaint', which a decree is deemed to include under Section 2(2), are wide enough to include the rejection of a memorandum of appeal by virtue of the provisions of Section 107 read with Order 7, Rule 11. In case it was held that the order was not a decree, Mr. Chakravorty urged that the order was passed without jurisdiction and thus amenable to interference under Section 115 and he invited the Court to treat the memorandum of appeal as an application in revision.

3. On the merits, Mr. Gopendra Nath Das, who appeared for Dr. Pal at a later stage of the argument, did not make a serious attempt to defend the order of the learned District Judge. That order cannot in fact be supported. The learned Judge applied a test which has no manner of application in deciding a question of limitation. The facts on which he held that the appeal in the Court below was out of time may be indicated by reference to the relevant dates. The judgment of the trial Court was passed on 30th April 1935, but the decree was not signed till 15th June 1935, that is till about two months and a half later. On the 13th July following, that is within less than 30 days from the date the decree was signed, the appellant applied for certified copies of the judgment and the decree. The requisite court-fee stamps etc., were notified on the 15th July, and were supplied that very day. The copies were ready for delivery on the 18th July, and the appeal was filed with these copies on the 20th. The office noted that the memorandum of appeal was time-barred, and on that the learned Judge made the following endorsement on the 22nd July:

Nothing will persuade me that the appeal is not time barred when no attempt was made to take a copy of the judgment until 2 months after it was signed. It makes no odds that the decree was passed late.

4. He then heard the learned advocate of the appellant on the 26th July, and reaffirmed his orders. It is against both the orders of the 22nd and 26th July that the present appeal is directed. There can be no question that if limitation is computed from the date on which the decree was signed, the appeal in the Court below was within time. But, as the order shows, the learned Judge was apparently very much upset because the appellant had not applied for a certified copy of the judgment within 30 days from when it was available, which, as stated, was long before the decree was signed. The period of limitation applicable is that prescribed by Article 152, Limitation Act, and is 30 days from the date of the decree. Section 12(2) of the Act, however, entitles the appellant to exclude the day on which the judgment was pronounced and the time 'requisite' for obtaining a copy of the decree, and Sub-section (3) also provides for exclusion of the time requisite for obtaining a copy of the judgment. It is not necessary to discuss whether the reason for allowing exclusion of the time for procuring these copies is that these documents are required to be annexed to the memorandum of appeal under Order 41, Rule 1, or under the practice of the Courts, though under Section 96, Civil P.C., the appeal is an appeal from a decree and not from a judgment. That this is not so was in fact authoritatively laid down by the Judicial Committee in Jijlbhoy N. Surty v. T.S. Chettyar Firm AIR 1928 P C 103. Nor is it necessary to dispute the proposition also laid down in that case that the word 'requisite' is a strong word, and may be regarded as meaning something more than 'required', and that it means 'properly required', so that it throws upon the pleader or counsel for the appellant the necessity of showing that no part of the delay beyond the prescribed period is due to his default. What the appellant did in the present case was to reckon limitation in accordance with what has been the uniform practice of the Courts ever since a Full Bench of this Court pronounced its decision in Bani Madhab Mitter v. Matungini Dassi (1886) 13 Cal 104(F B). The authority of this case remains wholly unshaken by the decision of the Judicial Committee in the above case, or in the earlier case in Framatha Nath Roy v. William Arthur Lee AIR 1922 P C 352. It is only common sense to hold that until a decree comes into existence-and it does not until it is signed-no copy can possibly be granted, and it is difficult to see how in such circumstances there can be any 'default' on the part of the appellant if he does not apply for copy of a document before it comes into existence.

5. There is a difference between the practice of the Original Side of the High Court and that of Courts in the mofussil in this respect, which must not be lost sight of in interpreting decisions like that in Bechi v. Ashan Ullah Khan (1890) 12 All 461 as to the meaning of the word 'requisite' in Section 12, Lim. Act; in the Original Side, steps have to be taken by the parties to have the order or decree drawn up, so the question of promptitude on the part of the appellant in taking such steps becomes material; but in the mofussil, the signing of the decree is not dependent at all upon any action of the parties; it is a duty which is made obligatory on the Court under the provisions of Order 20, Rule 7, Civil P.C. It seems to me therefore that the fact that the decree was not signed should be a simple and sufficing ground for excluding the time between the date of delivery of judgment and the date of signing of the decree, in addition to the period actually taken in obtaining the copy, in so far as an appeal in a mofussil Court is concerned. It is true that under Order 20, Rule 7, the decree shall bear date the day on which the judgment was pronounced, but the same rule distinctly contemplates the decree being signed on a different date. I am not unmindful that a Full Bench of the Allahabad High Court has taken a different view from the Full Bench of this Court: Bechi v. Ashan Ullah Khan (1890) 12 All 461, and a Division Bench of this Court has also refused to extend the rule laid down by the Full Bench to applications for leave to appeal to His Majesty in Council: Harish Chandra Tewary v. Chandpur Co., Ltd. (1912) 39 Cal 766 But in matters of procedure, I think, the consistent practice of the Courts ought not to be departed from, for the practice of the Court is the law of the Court. See the famous dictum of Coke, C.J. in John Burrowes v. High Commission Court (1701) 3 Bulst 48 at p. 53: 'cursus curia est lex curia.'

6. The learned Judge here was therefore not at all justified in disregarding the uniform practice of the Courts and acting on his own notions as to what the appellant should or should not have done. He was wholly wrong in saying 'that the appellant, if he wants the benefit of this practice, must show that he intended to appeal within 30 days'. There is and can be no question of intention here, just as there can be no question of any default. It might have been different if he was dealing with an application for extension of time under Section 5, Lim. Act. The appellant here claimed the deduction of a certain period as of right under Section 12, and questions of intention or of diligence were wholly irrelevant. If as a matter of law a litigant is entitled to wait till the decree is actually signed, he will be so entitled even though up to the moment he applied for a copy he had not the remotest intention of preferring an appeal.

7. On the merits, therefore, I have no hesitation in coming to the conclusion that the order of the learned District Judge was wholly wrong and must be set aside. The question is whether I can deal with the matter in this appeal, or the appeal is incompetent. It is never the line of prudence to attempt to decide a point of law, however strong the temptation may be, if it is not necessary to do so. I must be content to reserve for another occasion the decision of the question, interesting as it is, whether or not an order like the one passed by the learned District Judge in this case is a decree. Tentatively I might perhaps indicate my view that such an order would be a decree, if it could be said that a similar order passed upon a hearing under Order 41, Rule 11 was a decree. As at present advised, I am unable to see how the fact that such an order, instead of being passed (as it may be lawfully, passed) under Order 41, Rule 11 after the appeal has been admitted and registered under Order 41, Rule 9, is passed at an earlier stage (assuming that under the Code it cannot be lawfully passed) before the appeal has been admitted and registered can make any difference as to the character of the order. If in one case the order could be regarded as an adjudication of the rights of the parties, so as to come within the definition of a decree, I do not see why the order could not be equally regarded as a decree in the other case. It is the nature of the order and not the stage at which it is passed that must determine its character as a decree within the meaning of Section 2, Civil P.C. As I have said, however, I must forbear to pursue the matter further.

8. I am of opinion that even if no appeal lies, this is clearly a case where the memorandum of appeal should be treated as an application in revision. To my mind, there could not be a clearer case for interference under Section 115. The moment it is said, as was said by Mr. Gopendra Nath Das, that the learned Judge could not make such an order at the stage he made it, it is conceded that he assumed a jurisdiction he did not possess. On the other hand, if it is maintained that such an order could be properly made at this stage, it cannot be reasonably argued that the Legislature intended to attribute finality to it, even though it purported to dispose of the appeal effectively. It will be seen that the Code of Civil Procedure does not in terms entitle an Appellate Court to reject a memorandum of appeal before registering it on the ground that it is out of time. Order 41, Rule 3 specifies the grounds on which a memorandum of appeal may be rejected and it is significant that these do not include a ground corresponding to Clause (d) of Order 7, Rule 11 on which a plaint may be rejected. It is not necessary to consider the effect of Section 107 of the Code. It may be, as Suhrawardy, J. held in Jnanada Sundari Shah v. Madhab Chandra Mala : AIR1932Cal482 , that in view of the provisions of Section 107(2) an Appellate Court is invested with all the powers of an Original Court and has accordingly the same powers as are conferred upon an Original Court under Order 7, Rule 11. Even so, for the reasons I have already explained, I must hold that this Court has ample jurisdiction to deal with the case under Section 115.

9. The result is that this appeal is allowed, the order of the District Judge is set aside, and the District Judge is directed to admit and register the appeal, if it was otherwise in order, and deal with it in accordance with law. The respondents have asked for their costs in this appeal on the ground that the appellant misconceived the form of his remedy. This cannot, however, make any difference to the respondents. I accordingly direct that the appellant will get his costs, but the costs will be assessed on the basis of a revision case. I assess the hearing fee at one gold mohur.


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