M.C. Ghose, J.
1. In this case the learned Subordinate Judge wrote and sigued the judgment at home as he was ill and did not attend Court. He delivered it to his Bench Clerk for communication to the parties. It is urged in appeal that this was not a judgment according to law. The learned advocate for the appellant quotes Order 20, Br. 1, 2 and 3, Civil P. C, which run as follows:
The Court, after the case has been heard, shall pronounce judgment in open Court either at once or on some future day, of which due notice shall be given to the parties or their pleaders.Rule 2:
A Judge may pronounce a judgment written but not pronounced by his predecessor.Rule 3;The judgment shall be dated and signed by the Judge in open Court at the time of pronouncing it and, when once signed, shall not afterwards be altered or added to, save as provided by Section 152 or on review.
The learned pleader for the respondent urges that the case comes under Section 99 which provides that:
no decree shall be reversed or substantially 'varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceeding in the suit, not affecting the merits of the ease or the jurisdiction of the Court.
2. The learned advocate also quotes the case of Fort Gloster Jute Manufacturing Co. v. Chandra Kumar Das [l919] 46 Cal. 978. It is to be noted that in that case the judgment was written by the outgoing Subordinate Judge and made over to his successor , who duly pronounced it in open Court. The only mistake in that case was that the outgoing Subordinate Judge signed the judgment prior to delivering it to his successor. In the present case the facts are quite different. No competent officer pronounced the judgment in open Court, Upon a perusal of the judgment of the learned Subordinate Judge it appears that probably on account of illness he did not or could not apply his judicial mind properly to the merits of the case. In the circumstances I am of opinion that Section 99 does not apply to the facts of this case.
3. The judgment of the learned Subordinate Judge is set aside and the appeal is remanded to the first appellate ' Court for fresh hearing. Costs to abide the final result.
4. I agree with my learned brother that the case should be sent back to the lower appellate Court for re-hearing and for arriving at a fresh decision. It appears from the orders recorded in the order-sheet of the Court of appeal below, that the judgment against which the present appeal to this Court is directed, was written and signed by the Subordinate Judge at home, and delivered to the Bench Clerk, and communicated to the pleaders of the parties on 8th January 1929; and that the decree was thereafter signed and sealed, on 16th January 1929.
5. Although any failure to comply with the provisions of Order 20, Rules 1, 2 and 3, Civil P. C, relating to the writing, signing and 'delivery of judgments by the lower Courts, should be strongly disapproved by this Court, the position, could not possibly be lost sight of, that the infringement of the procedure prescribed by the Code in this behalf constitutes an irregularity. It affords' no ground for reversal of the, decree based on the judgment in regard to which there has been any such irregularity, except on proof either that the jurisdiction of the Court or the merits of the case have been affected thereby: see Fort Gloster Jute Manufacturing Co. v. Chandra Kumar Das [l919] 46 Cal. 978. In the present case, the merits of the case have not in any way bean affected by reason of the irregularity in the delivery of the judgment. It appears to me, however, that in the judgment of the lower appellate Court there is no reference to the material points arising for consideration in the case, and the judgment, as it stands, proceeds on an entire misapprehension of the trial Court's decision. It is difficult to hold that the learned Subordinate Judge had applied his mind fully to the case before him, when the judgment . was written out by him. The judgment and decree of the lower appellate Court should, for the above reasons, be set aside, and the case sent back to that Court for its being dealt with in accordance with law.