PETITIONER: JAGAT DHISH BHARGAVA Vs. RESPONDENT: JAWAHAR LAL BHARGAVA & OTHERS DATE OF JUDGMENT: 05/12/1960 BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. WANCHOO, K.N. GUPTA, K.C. DAS CITATION: 1961 AIR 832 1961 SCR (2) 918 CITATOR INFO : F 1967 SC1470 (5) RF 1972 SC 414 (32) RF 1977 SC2319 (10) D 1978 SC 537 (4) R 1983 SC 786 (9,20) RF 1992 SC 109 (6) ACT: Appeal--Decree not Prepared--Appeal filed without copy of decree--Competency of--Subsequently decree prepared and copy filed--Limitation--Code of Civil Procedure, 1908(V of 1908) 0. 41, r. 1--Indian Limitation Act, 1908 (IX of 1908) s. 12(2). HEADNOTE: The respondents filed a suit for specific performance against the appellant which was dismissed on March 12, 1954. On March 24 the respondents made an application for a certified copy of the judgment and decree. The decree was not drawn up and the respondents were supplied a certified copy of the judgment and the memo of costs. The respondents filed an appeal before the High Court without the certified copy of the decree and only with the certified copy of the judgment and the memo of costs. The appeal was admitted under 0. 41, r. 11 Code of Civil Procedure on August 30, 1954. On December 23, 1958, the appellant served a notice on the respondents that he would raise a preliminary objection at the hearing that the appeal was incompetent as a certified copy of the decree was not filed as required by 0. 41, r. 1. On December 24, 1958, the respondents moved the trial Court for drawing up of the decree, but since the record was in the High Court this could not be done. At the hearing of the appeal, the appellant raised the preliminary objection, but the High Court passed an order on December 15, 1959, allowing the respondents one month's time for getting a decree drawn up and obtaining. a copy and directed the record to be sent to the trial Court. Against this order the appellant preferred an appeal to the Supreme Court contending that the High Court was bound to dismiss the appeal as it was manifestly incompetent under 0. 41, r. 1. Subsequently, on December 23, 1959, the respondents obtained a certified copy of the decree and filed it before the High Court the same day. The appellant contended that the appeal was to be deemed to be filed on this date and was time barred. Held, that in the circumstances of this case the order passed by the High Court was right.' There was no doubt that 0. 41, r. 1 was mandatory and in the absence of or the decree the filing of the appeal was incomplete, defective and incompetent. The office of the trial Court was negligent in not drawing up a decree and the office of the High Court was also not as careful as it should have been in examining the appeal and these have contributed substantially to the unfortunate position. In such a case, the respondents deserved to be protected. Besides the, 919 question had become academic and technical in view of subse- quent events. The certified copy of the decree was filed on December 23, 1959, and even if the appeal was considered to have been filed on that date, it was within time. Under s. 12(2) of the Limitation Act the respondents could treat the time taken in the drawing up of the decree after the application for a certified copy thereof had been made as part of the time taken in obtaining the certified copy of the decree. Tarabati Koer v. Lala jagdeo Narain, (1911) 15 C.W.N. 787, Bani Madhub Mitter v. Matungini Desai, (1886) I.L.R. 13 Cal. 104 (F.B.), Gabriel Christian v.'Chandra Mohan Missir, (1936), I.L.R. 15 Pat. 284(F.B.), Jayashankar Mulshankar Mehta v. Mayabhai Lalbhai Shah, (1951) 54 B.L.R 11 (F.B.), Gokul Prasad v. Kunwar Bahadur, (1935) I.L.R. 10. Luck. 250 and Umda v. Rupchand, (1926) 98 I.C. 1057 (F.B.), referred to. Rodger v. Comptoir d'Escompte de Paris, (1871) L.R. 3 P.C. 465, relied on. JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 222 of 1960.
Appeal from the judgment and order dated December 15, 1959,
of the Punjab High Court (Circuit Bench), Delhi, in R. F.
Appeal No. 77-D of 1954.
G. S. Pathak and B. C. Misra, for the appellant.
Mukat Behari Lal Bhargava and J. P. Goyal, for respondents
Nos. 1 to 7.
1960. December 5. The Judgment of the Court was delivered
by
GAJENDRAGADKAR, J.-The short question of law( which arises
for decision in, the present appeal by special leave is
whether the appeal preferred against the appellant and
respondents 8 and 9 in the High Court of Punjab by
respondents 2 to 7 ‘was competent in law or not. This
question arises unDer somewhat unusual circumstances. It
appears that an agreement of sale of one third of the one
fourth share in the property covered by the document was
entered into between Gokal Dhish Bhargava and the appellant
Jagat Dhish Bhargava. Gokal Dhish Bhargava sued the appel-
lant and pro forms respondents 8 and 9 for specific
performance of the said agreement of sale in the Court of
the Senior Civil Judge, New Delhi (Civil Suit No. 684/128 of
1949/50). This suit was dismissed on
920
March 12, 1954. , Pending decision in the trial court Gokal
Dhish Bhargava (fled and his son Jawahar Lal Bhargava,
respondent 1 and Chunni Lal Bhargava were brought on the
record as legal representatives. After the suit was
dismissed and before the appeal in question was preferred in
the High Court Chunni Lal Bhargava died; thereupon
respondents 2 to 7, as his legal representatives, joined
respondent 1 in preferring an appeal against the said decree
in the High Court of Punjab. The memo of appeal along with
the judgment dismissing the suit and the taxed bill of costs
endorsed on the back of the last page of the judgment was
filed in the High Court on July 29, 1954. It is the
competence of this appeal that was questioned before the
High Court and is in dispute before us in the present
appeal.
The record shows that on March 24,1954, an application was
made by respondents 2 to 7 (who will be called the
respondents hereafter) for a certified copy of the judgment
and decree passed in the said suit for specific performance.
A certified copy of the judgment and the bill of costs was
supplied to them but the decree had not been drawn up and no
copy of the decree was therefore supplied to them. In the
result the appeal was filed without the certified copy of
the decree and only with the certified copy of the judgment
and the bill of costs. On August 2, 1954, the Assistant
Registrar of the High Court returned the memo of appeal
filed by the respondents to their counsel and pointed out to
him that’ since no copy of the decree had been filed the
presentation of the appeal was defective and the defect
needed to be rectified. Thereafter, on August 16, 1954, the
respondents’ counsel refiled the appeal with an endorsement
that a memo of costs alone had been prepared by the trial
court and no decree had been drawn up, and so the appeal
should be held to be properly filed. Apparently this
explanation was treated’ as satisfactory by the office of
the High Court and the appeal was registered as No. 77-D of
1954.
In due course the appeal was placed for preliminary hearing
under 0. 41, r. 11 of the Code of Civil
921
Procedure before Dulat, J. who admitted it on August 30,
1954. Notice of the appeal was accordingly served on the
appellant and the pro forma respondents. Ultimately when
the appeal became ready for hearing it was put up on the
Board of the Circuit Bench of the High Court to be heard on
December 26, 1958. Meanwhile on December 23., 1958, the
appellant served a notice on the respondents’ counsel
intimating to him that he proposed to raise a preliminary
objection against the competence of the appeal on the ground
that the decree under appeal had not been filed as required
under 0. 41, r. 1 along with the memo of appeal and the
certified copy of the judgment. Next day, that is to say on
December 24, 1958, the respondents moved the trial Court for
drawing up of the decree, but since the record had in the
meantime been sent by the trial Court to the High Court no
decree could be drawn up by the trial Court, and so the
motion became infructuous. The appeal, however, did not
reach hearing on December 26, 1958. On December 29, 1958,
the respondents moved the Court that the appeal should be
declared to be maintainable as the memo of costs which alone
had been prepared by the trial Court read along with the
concluding paragraph of the judgment may be held to satisfy
the requirements of the decree; in the alternative they
prayed that the record of the suit in the trial Court should
be sent for to enable them to get a decree prepared with a
view to file the same in the High Court along with their
appeal. Bishan Narain, J., before whom this application was
taken out for orders, directed that it may be heard by the
Bench which would hear the appeal.
Eventually the appeal came on for hearing before Falshaw and
Chopra, JJ. on De ember 8, 1959. At the said hearing the
appellant raised a preliminary objection that the appeal was
not competent having regard to the mandatory provisions of
0. 41, r. 1, and urged that the appeal should be dismissed
as incompetent. This preliminary objection was, however,
not upheld by the High Court, and it was held that “the
proper course to follow was to allow the respondents a
922
month’s time for the purpose of getting a decree drawn up in
the proper form by the lower Court and obtaining a copy
thereof “. Accordingly the record which had in the meanwhile
been received by the High Court after the appeal was
admitted under 0. 41, r. 11 was ordered to be sent back to
the lower Court without delay. It is against this order
which was passed by the High Court on December 15, 1959,
that the present appeal by special leave has been filed. On
behalf of the appellant Mr. Pathak contends that the appeal
filed before the High Court was plainly and manifestly
incompetent, and so the High Court was in error in not
dismissing it on that ground.
The position of law under 0. 41, r. 1 is absolutely clear.
Under the said rule every appeal has to be preferred in the
form of a memorandum signed by the appellant or his pleader
and presented to the Court or to such officer as it appoints
in that behalf, and has to be accompanied by a copy of the
decree appealed from, and of the judgment on which it is
founded. Rule 1 empowers the appellate Court to dispense
with the filing of the judgment but there is no jurisdiction
in the appellate Court to dispense with the filing of the
decree. Where the decree consists of different distinct and
severable directions enforceable against the same or several
defendants the Court may permit the filing of such portions
of the decree as are the subject matter of the appeal but
that is a problem with which we are not concerned in the
present case. In law the appeal is not so much against the
judgment as against the decree; that is why Article 156 of
the Limitation Act prescribes a period of 90 days for such
appeals and provides that the period commences to run from
the date of the decree under appeal. Therefore there is no
doubt that the requirements that the decree should be filed
along with the memorandum of appeal is mandatory, and in the
absence of the decree the filing of the appeal would be
incomplete, defective and incompetent.
That, however, cannot finally dispose of the point raised by
the appellant before us. In the present case the
respondents had applied for a certified copy of
923
the judgment as well as the decree in the trial Court on
March 24, 1954, and they were not given a copy of the decree
for the simple reason that no decree was drawn up; what they
were given was a copy of the judgment and taxed bill of
costs endorsed on the back of the last page of the judgment.
These documents they filed along with their memo of appeal;
but that would not affect the mandatory requirement of 0.
41, r. 1. In considering the effect of this defect in the
presentation of the appeal we must bear in mind the rules of
procedure in regard to the drawing up of the decree. The
position in that behalf is absolutely clear. Section 33 of
the Code of Civil Procedure requires that the Court, after
the case has been heard, shall pronounce judgment, and on
such judgment a decree shall follow. Order 20, r. 3
provides, inter alia, that the judgment shall be dated and
signed by the judge in the open Court at the time of
pronouncing it, and under r. 4, sub-r. (2) a judgment has to
contain a concise statement of the case, the points for
determination, the decision thereon and the reasons for such
decision. Rule 6 of the same Order prescribes the con.
tents of the decree. It provides that the decree shall
agree with the judgment and shall contain the particulars
therein specified. Under r. 7 it is provided that the
decree shall bear the date, the day on which the judgment
was pronounced, and it directs that when the judge has
satisfied himself that the decree has been drawn up in
accordance with the judgment he shall sign the decree. It
is, therefore, clear that the drawing up of the decree in
the present case was the function and the duty of the
office, and it was obligatory on the judge to examine the
decree when drawn up, and if satisfied that it has been
properly drawn up to sign it. Except in places where the
dual system prevails the litigant or his lawyer’ does not
play any material or important part in the drawing up of the
decree. In fact the process of drawing up of the’ decree is
beyond the litigant’s control. Therefore, there is no doubt
whatever that in failing to draw up a decree in the present
suit the office of the trial Court was negligent in the
discharge of its duties, and
924
the said negligence was not even noticed by the learned
trial judge himself.
Unfortunately, when the appeal was presented in the High
Court, even the office of the High Court was not as careful
in examining the appeal as it should ,,have been, and as we
have already indicated the appeal passed through the stage
of admission under 0. 41, r. 11 without the defect in the
appeal being brought to the notice of the learned judge who
admitted it. Thus it is quite clear on the record that the
respondents had applied for a certified copy of the judgment
and the decree, and when they were given only a certified
copy of the judgment and the bill of costs they filed the
same along with the memo of appeal in the bona fide belief
that the said documents would meet the requirements of 0.
41, r. 1. It is true that before the appeal came on for
actual hearing before the High Court the appellant gave
notice to the respondents about his intention to raise a
preliminary objection that the appeal had not been properly
filed; but, as we have already pointed out, the attempt made
by the respondents to move the trial Court to draw up the
decree proved infructuous and ultimately the High Court
thought that in.fairness to the respondents they ought to be
allowed time to obtain the certified copy of the decree and
file it before it; and so the High Court passed the order
under appeal. The appellant contends that this order is
manifestly erroneous in law; according to him the only order
which could and should have been passed was to dismiss the
appeal as incompetent under 0. 41, r.1.
The problem thus posed by the appellant for our decision has
now become academic because subsequent to the decision of
the High Court under appeal the respondents have in fact
obtained Po certified copy of the decree on December 23,
1959, and have filed it in the High Court on the same day.
This fact immediately raises the question as to whether the
appeal which has admittedly been completely and properly
filed on December 23, 1959, was in time or not. If it
appears that on the date when the decree was thus filed the
925
presentation of the appeal was in time then the objection
raised by the appellant against the propriety or the
correctness of the High Court’s order under appeal would be
purely technical and academic.
The answer to the question as to whether the presentation of
the appeal on December 23, 1959, is in time or not would
depend upon the construction of s. 12, sub-s. (2) of the
Limitation Act. We have already noticed that the period
prescribed for filing the present appeal is 90 days from the
date of the decree. Section 12, sub-s. (2) provides, inter
alia, that in computing the period of limitation “the time
requisite for obtaining a copy of the decree shall be
excluded”. What then is the time which can be legitimately
deemed to have been taken for obtaining the copy of the
decree in the present case? Where a decree is not drawn up
immediately or soon after a judgment is pronounced, two
types of cases may arise. A litigant feeling aggrieved by
the decision may apply for the certified copy of the
judgment and decree before the decree is drawn up, or he may
apply for the said decree after it is drawn up. In the
former case, where the litigant has done all that he could
and has made a proper application for obtaining the
necessary copies, the time requisite for obtaining the
copies must necessarily include not only the time taken for
the actual supply of the certified copy of the decree but
also for the drawing up of the decree itself. In other
words, the time taken by the office or the Court in drawing
up a decree after a litigant has applied for its certified
copy on judgment being pronounced, would be treated as a
part of the time taken for obtaining the certified copy of
the said decree. Mr. Pathak has fairly conceded that on
this point there is a consensus of judicial opinion, and in
view of the formidable and imposing array of authorities
against him he did not raise any contention about the
validity of the view take in all those cases. (Vide:
Tarabati Koer v. Lala Jagdeo Narain (1); Bani Madhub Mitter
v. Mathungini Dassi & Ors. (Full Bench) (2);Gabriel
Christian v.
(1) (1911) 15 C.W.N. 787.
(2) (1886) I.L.R. 13 Cal- 104.
926
Chandra Mohan Missir (Full Bench) (1); Jayashankar
Mulshankar Mehta v. Mayabhai Lalbhai Shah (Full Bench) (2);
Gokul Prasad v. Kunwar Bahadur & Ors.(3); and Umda v.
Rupchand & Ors. (Nagpur Full Bench) (1)).
There is, however, a sharp difference of opinion in regard
to cases where an application for a certified copy of the
decree is made after the said decree is drawn up. In
dealing with such cases Courts have differed as to what
would be the period requisite for obtaining the certified
copy of the decree. The Bombay, Calcutta and Patna High
Courts, appear to have held that the period taken in drawing
up of the decree would be part of the requisite period,
while other High Courts have taken a contrary view. It is
significant that though the High Courts have thus differed
on this point, in every case an attempt is judicially made
to do justice between the parties. With that aspect of the
problem, however, we are not concerned in the present
appeal.
The position, therefore, is that when the certified copy of
the decree was filed by the respondents in the High Court on
December 23, 1969, the whole of the period between the date
of the application for the certified copy and the date when
the decree was actually signed would have to be excluded
under s. 12, sub-s. (2). Inevitably the presentation of the
appeal on December 23, 1959 would be in time. It is true
that more than five years have thus elapsed after the
pronouncement of the judgment but for this long delay and
lapse of time the respondents are not much to blame. The
failure of the trial Court to draw up the decree as well as
the failure of the relevant department in the High Court to
examine the defect in the presentation of the appeal at the
initial stage have contributed substantially to the present
unfortunate position. In such a case there can be no doubt
that the litigant deserves to be protected against the
default committed or negligence shown by the Court or its
officers in the discharge of their duties. As observed by
Cairnes, L. C. in Rodger v. Comptoir
(1) (1936) I.L.R. 15 Pat. 284.
(2) (1951) 54 B.L.R. II.
(3) (1935) I.L.R. 10 Lucknow 250.
(4) (1926) 98 I.C. 1057.
927
d’Escompte de Paris (1) as early as 1871 “one of the first
and highest duties of all Courts is to take care that the
act of the Court does no injury to any of the suitors”; that
is why we think that in view of the subsequent event which
has happened in this case, namely, the filing of the
certified copy of the decree in the, High Court, the
question raised by the appellant has( become technical and
academic.
Faced with this position Mr. Pathak attempted to argue that
the application made by the respondents on March 24, 1954,
was not really an application for a certified copy of the
decree; he contendea that it was an application for the
certified copy of the judgment and the bill of costs. This
argument is wholly untenable. The words used in the
application clearly show that it was an application for a
certified copy of the judgment as well as the decretal
order, and as subsequent events have shown, a certified copy
of the decree was ultimately supplied to the respondents in
pursuance of this application.
Then it was argued that the respondents should have moved
the trial Court for the drawing up of a decree as soon as
they found that no decree a been drawn up. It may be
assumed that the respondents might have adopted this course;
but where the dual system does not exist it would be idle to
contend that it is a part of the duty of a litigant to
remind the Court or its office about its obligation to draw
up a decree after the judgment is pronounced in any suit.
It may be that decrees when drawn up are shown to the
lawyers of the parties; but essentially drawing up of the
decree is the function of the Court and its office, and it
would be unreasonable to penalise a party for the default of
the office by suggesting that it was necessary that the
party should have moved the Court for the drawing up of the
decree. Therefore, we are not satisfied that tie appellant
is justified in attributing to the respondents any default
for which the penalty of dismissing their appeal can be
legitimately imposed on them. The result is that the appeal
preferred by the respondents on December 23,
(1) (1871) L.R. 3 P.C. 465, 475.
928
1959, is proper and in time and it can now be dealt with in
accordance with law. It is true that in the circumstances
over which the respondents had no control the appeal in
question has already been admitted under 0. 41, r. 11, and
as a result of the decision under appeal it may not have
to go through that process again. Dulat, J. who heard the
appeal for admission was satisfied that it deserved to be
admitted and we do not think it necessary to require that
the present appeal should go through the formality of the
procedure prescribed by 0. 41, r. 11 once again. This posi-
tion is no doubt, unusual, but in the circumstances of the
case it is impossible to say that the order passed by the
High Court is not fair and just.
Let us then consider the technical point raised by the
appellant challenging the validity or the propriety of the
order under appeal. The argument is that 0. 41, r. 1 is
mandatory, and as soon as it is shown that an appeal has
been filed with a memorandum of appeal accompanied only with
a certified copy of the judgment the appeal must be
dismissed as being incompetent, the relevant provisions of
0. 41 with regard to the filing of the decree being of a
mandatory character. It would be difficult to accede to the
proposition thus advanced in a broad and general form. If
at the time when the appeal is preferred a decree has
already been drawn up by the trial Court and the appellant
has not applied for it in time it would be a clear case
where the appeal would be incompetent and a penalty of
dismissal would be justified. The position would, however,
be substantially different if at the time when the appeal is
presented before the appellate Court a decree in fact had
not been drawn up by the trial Court; in such a case if an
application has been made by the appellant for, a certified
copy of the decree, then all that can be said against the
appeal preferred by him is that the appeal is premature
since a decree has not been drawn up, and it is the decree
against which an appeal lies. In such a case, if the office
of the High Court examines the appeal carefully and
discovery the defect the appeal may be returned to the
appellant for presentation
929
with the certified copy of the decree after it is obtained.
In the case like the present, if the appeal has passed
through the stage of admission through oversight of the
office, then the only fair and rational course to adopt
would be to adjourn the hearing of the appeal with a
direction that the appellant should produce the certified
copy of the decree as soon as it is supplied to him. In
such a case it would be open to the High Court, and we
apprehend it would be its duty, to direct the subordinate
Court to draw up the decree forthwith without any delay. On
the other hand, if a decree has been drawn up and an
application for its certified copy has been made by the
appellant after the decree was drawn up, the office of the
appellate Court should return the appeal to the appellant as
defective, and when the decree is filed by him the question
of limitation may be examined on the merits. It is obvious
that the complications in the present case have arisen as a
result of two factors; the failure of the trial Court to
draw up the decree as required by the Code, and the failure
of the office in the High Court to notice the defect and to
take appropriate action at the initial stage before the
appeal was placed for admission under 0. 41, r. 11. It
would thus be clear that no hard and fast ‘rule of general
applicability can be laid down for dealing with appeals
defectively filed under 0. 41, r. 1. Appropriate orders will
have to be passed having regard to the circumstances of each
case, but the most important step to take in cases of
defective presentation of appeals is that they should be
carefully scrutinized at the initial stage soon after they
are filed and the appellant required to remedy the defects.
Therefore, in our opinion, the appellant is not justified in
challenging the propriety or the validity of the order
passed by the High Court because in the circumstances to
which we have already adverted the said order is obviously
fair and just. The High Court realised that it would be
very unfair to penalise the party for the mistake committed
by the trial Court and its own office, and so it has given
time to the respondents to
930
apply for a certified copy of the decree and then proceed
with the appeal.
In this connection our attention has been drawn to the fact
that in the Punjab High Court two conflicting and
inconsistent views appear to have been taken in its
reported decisions. Dealing with appeals filed with-out a
certified copy of the decree some decisions have dismissed
the appeals as defective, and have given effect to the
mandatory words in 0. 41, r. 1, without presumably examining
the question as to whether the failure of the trial Court to
draw up the decree would have any bearing or relevance on
the point or not. (Vide: Gela Ram v. Ganga Ram(1); Municipal
Committee, Chiniot v. Bashi Ram (2); Mubarak Ali Shah v.
Secretary of State (3); Nur Din v. Secretary of State (4)
Hakam Beg v. Rahim Shah (5); Fazal Karim v. Des Raj (6); and
Banwari Lal Varma v. Amrit Sagar Gupta (7). On the other
hand it has in some cases been held that it would be fair
and just that the hearing of the appeal should be adjourned
to enable the appellant to obtain a certified copy of the
decree and produce it before the appellate Court (Vide:
Manoharlal v. Nanak Chand (8); Mt. Jeewani v. Mt. Misri
(9); and, Sher Muhammad v. Muhammad Khan (10). It would
obviously have been better if this conflict of judicial
opinion in the reported decisions of the High Court had been
resolved by a Full Bench of the said High Court but that
does not appear to have been done so far. However, as we
have indicated, the question about the competence of the
appeal has to be judged in each case on its own facts and
appropriate orders must be passed at the initial stage soon
after the appeal is presented in the appellate Court. If
any disputed question of limitation arises it may have to go
before the Court for judicial decision.
In the result the order passed by the High Court is right.
Having regard to the fact that the decree
(1) A.I.R. (1920) 1 Lah. 223
(3) A.I.R. (1925) Lah. 438.
(5) A I.R. (1927) Lah. 912.
(7) A.I.R. (1940) East Punj. 400.
(9) A.I.R. (1919) Lah. 125.
(2) A.I.R (1922) Lah. 170.
(4) A. I.R. (1927) Lah. 49.
(6) 35 Punj. L.R. 471.
(8) A.I.R. (1919) Lah. 53.
(10) A.I.R. (1924) Lah. 352.
931
under appeal has already been filed by the respondents
before the High Court on December 23, 1959, the High Court
should now proceed to hear the appeal on the merits and deal
with it in accordance with law. In the circumstances of
this case we make no order as to costs.
Appeal dismissed.