JUDGMENT
B.L. Yadav, A.C.J.
1. Whether a decree has to be prepared by the officials of the District Judge when an appeal is dismissed as time barred is the short but significant question involved in this Second Appeal, preferred by the defendants (2nd party), at this stage, in a suit for redemption of mortgage.
2. The suit was contested by the defendant-appellants and averments made in the plaint were denied.
3. The Trial Court after considering the entire evidence on record dismissed the suit by the decree dated 31st March, 1992. Against that decree a First Appeal was preferred under Section 96 of the Code of Civil Procedure, 1908 (compendiously the ‘Code’) before the District Judge, Samastipur, by the appellants. But there was some delay in preferring the First Appeal. Consequently an application under Section 5 of the Limitation Act, 1963 for condonation of delay was filed but the same was rejected as in the opinion of the learned District Judge, no sufficient ground for condonation of delay was made out. The First Appeal was accordingly dismissed as time barred. With a view to challenge the decree of the Trial Court and also of the Appellate Court before this Court in Second Appeal, an application for copy (chirkut) of the judgment and decree was applied. The copy of the judgment was prepared but the office reported that decree was not prepared. The appellants, however, preferred a Second Appeal under Section 100 of the Code, before this Court only with the certified copy of the judgment but without copy of the decree, as no certified copy of the decree was prepared and issued by the officials of the Civil Court, Samastipur. The report of the officials on the chirkut was that is such matters decree is not prepared. The Stamp Reporter of the High Court has raised an objection that without certified copy of the decree the Second Appeal is not maintainable.
4. Learned Counsel for the appellants contended that the decree itself was not prepared by the Lower Appellate Court, even though application for obtaining the certified copy of the decree (chirkut) was filed and the decree must have been prepared by the officials of District Judge in view of Rule 113 of the Civil Court Rules (for short the ‘Rules’) as the dismissal of the appeal was not on the basis of an interlocutory order.
5. Having scrutinised the submission of the learned Counsel for the appellants, in my opinion the interpretation of Rule 113 of the Rules prepared by this Court appears imperative. It may be read along with Section 2(2) and Order XX, Rule 6 of the Code. The definition of ‘Decree’, under Section 2(2) means the formal expression of an adjudication, which so far as the Court expressing it conclusively determines the rights of the parties. The legislature in its wisdom also provided that it shall include the rejection of plaint and any question under Section 144 of the Code, but shall not include any adjudication from which an appeal lies as an appeal from an order or any order of dismissal for default. The legislature has indicated that except where there is an order from which an appeal lies as indicated under Order XLIII, Rule 1 of the Code, or an order of dismissal in default, in remaining matters the decree shall be prepared. I am reminded of an old Laltin Maxim “Verbia legis non recedendum est” which connotes from the words used by legislature there should be no departure. The definition of decree indicates that even rejection of plaint and an adjudication in restitution proceedings would be a decree. But exceptions are Order XLIII, Rule 1 orders and dismissal in default.
6. There appears no excuse why the decree was not prepared. The submission of the learned Counsel for the appellants appears to be legally founded. Ex abundanti cautela, the provisions of Rule 113 under Chapter V of the Civil Court Rules is set out:
113. Decrees or formal orders need not be drawn up in the case of–(i) Interlocutory orders made during the course of a suit or execution proceeding.
(ii) Final orders, such as, those under Order IX, Rules 9 and 13, Order XXI, Rules 2, 58, 91, 92, 99, 100, 101; Order XXIII; Rule 1; Order XLI, Rules 19, 21, 23; Order XLVII, Rule 1 and an order rejecting a plaint; provided where any such order is capable of execution or affects execution by reason of adjustment of cost to be paid, by one party to the other such costs may be shown in the order sheet with a short note showing the result of the case and the name of the party by whom such costs are to be paid as well as that of the party who is to receive the same so that the latter, is desirous of executing the order, may not be compelled to take a copy of the judgment.
7. A perusal of the aforesaid Rule would indicate that only in the case of interlocutory orders made during the course of a suit or execution proceeding or in the matter of final orders, such as, Order IX Rules 9 and 13; Order XXI; Rules 2, 58 etc; Order XXIII; Rule 1, Order XLI; Rules 19, 21. 23, Order XLVII, Rule 1, decree need not be prepared. In the remaining cases including a case where the appeal has been dismissed as time barred, decree must have been prepared. Why it was not prepared, tells a lot on the working of the Civil Courts. It was for the District Judge to look into the matter and issue necessary direction as to in which case decree will be prepared of in which case decree will not be prepared. In the instant case Rule 113 appears to be of the mandatory nature and there was no excuse for not preparing the decree in a case where appeal has been dismissed as time barred.
8. Under these circumstances, the note was put up by the official of the District Judge, Samastipur, is quite baseless and beyond the relevant provision including Rule 113 of the Civil Court Rules. It is for the District Judge to look into the matter, as to why on such a responsible post such officials are posted, who have no knowledge of the elementary rules on the subject.
9. The matter can be angulated from a different perspective. Section 33 of the Code provides that where a case has been heard, the Court shall pronounce judgment and on such judgment a decree shall follow. The provisions of Section 33 of the Code, Order XX, Rule 6, couple with definition of decree under Section 2(2) and Rule 113 of the Rules have to be read conjointly. Section 33 is couched in a language having very wide sweep. The expression “case” is of wide connotation. It includes suit and appeal both. In the instant case the learned District Judge heard the counsel for the appellant on the application under Section 5 of the Limitation Act, 1963. Once the application to condone the delay was dismissed the appeal is also dismissed as time barred. The expression The decree shall agree with the judgment employed under Order XX, Rule 6 of the Code is of very wide connotation. In Jagdish v. Jazvahar Lal their Lordships of the Apex Court ruled that drawing up of a decree is essentially the function of the Court and its office and it is not the duty of a litigant to remind the Court of it. As the First Appeal under Section 96 or Second Appeal under Section 100 of the Code is preferred against a decree, the preparation of decree is an essential duty of the office of the District Judge. Except in the matters of Orders indicated under Order XLIIL Rule 1 and dismissal of default the other matters including present one, the dismissal of appeal as time barred would be, in my opinion, included in the definition of decree as given under Section 2(2) and this is what has been clearly indicated under. Rule 113, prepared by this Court. The preparation of decree in the case of dismissal of appeal as time barred is a must.
10. The official of the District Judge was wholly unjustified in saying that no decree is prepared that order is set aside, I, accordingly direct the District Judge, Samastipur, to direct the official concerned to prepare the decree within a period of two weeks and hand over a certified copy of it to the appellants.
11. It will be open to the appellants to file an application under Section 5 of the Limitation Act, after the certified copy of the decree has been filed and in these circumstances a justice oriented reasonable view would be taken for condoning the delay as there were no laches on the part of the appellants in furnishing the certified copy of the decree in time. A certified copy of this order would be issued to the appellants within 24 hours.