DEVA HARBHAM LANDHA v. MER MALDE RAJA — 1961 DIGILAW 28 (GUJ)

P. N. BHAGWATI, J. ( 1 ) THIS matter has been placed before me under Rule 6 of Chapter V of the High Court Rules for revision of an Order passed by the learned Registrar on 27th January 1961. The petitioner filed an application for adjustment of his debts under the provisions of the Sau- rashtra Agricultural Debtors Relief Act. The trial Court decided the preliminary issue in favour of the petitioner and held that the petitioner was a debtor within the meaning of the Act. The respondent who is a creditor filed an appeal against the decision of the trial Court. The learned Assistant Judge who heard the appeal came to the conclusion that the petitioner was not a debtor within the meaning of the Act and he accordingly allowed the appeal and dismissed the application made by the petitioner for adjustment of his debts under the provisions of the Act. The petitioner thereupon filed the present Revision Application before this Court. ( 2 ) THE appeal of the respondent was decided by the learned Assistant Judge by a judgment dated 20th September 1960. The judgment contained the reasons of the learned Assistant Judge for allowing the appeal and dismissing the petitioners application for adjustment of his debts. At the foot of the judgment occurred the following Order:order Civil Regular Appeals No. 27 of 1960 and 32 of 1960 are allowed. The decision of the learned trial Judge in S. A. D. R. Application No. 61 of 1958 (original number 500 of 1957) is set aside so far as the present appellants are concerned and the above application is dismissed with costs. The respondent to pay the costs of the appeals to both the appellants and bear his own. ( 3 ) IT appears that a formal order was drawn up and signed on 21st September 1960 The petitioner applied for a certified copy of the judgment on 22 September 1960 and the same was ready for delivery on 29th September 1960. The petitioner there after filed the present Revision Application on 23rd November 1960. The certified copy of the judgment accompanied the Revision Application but a certified copy of the formal order as drawn up and signed on 21st September 1960 (hereinafter referred to by me as the formal order) was not filed along with the Revision Application. The petitioner there after filed the present Revision Application on 23rd November 1960. The certified copy of the judgment accompanied the Revision Application but a certified copy of the formal order as drawn up and signed on 21st September 1960 (hereinafter referred to by me as the formal order) was not filed along with the Revision Application. As a matter of fact the petitioner did not apply for a certified copy of the formal order until 21st December 1960. The certified copy of the formal Order was ready for delivery on 24th December 1960. Since the certified copy of the formal order was not filed along with the Revision Application nor even thereafter within the period of limitation the Revision Application was considered by the learned Registrar as time-barred. The matter was argued before the learned Registrar and the learned Registrar by an Order dated 27th January 1961 held that under Rule 15 of Chapter IV of the High Court Rules it was necessary for a valid presentation of the Revision Application that the certified copy of the formal order should be filed along with the Revision Application and that since the certified copy of the formal order was not filed within the time prescribed by law the Revision Application could not be said to have been validly filed within the period of limitation. The main ground on which the learned Registrar came to the conclusion that the certified copy of the formal order was required to be filed along with the Revision Application may be set out in his own words. ( 4 ) IN the present case the Appellate Court has drawn up a decree showing that the appeal has been dismissed and a bill of costs has been drawn up. The S. A. D. R. Act does not appear to make any provision in this behalf and therefore the provisions of the Civil Procedure Code will apply and as this is a decree in appeal or an order having the force of a decree in appeal in my opinion the Appellate Court will have to draw a decree for the purpose. Moreover the order is one dismissing the application itself and it amounts to a denial of the substantive rights claimed by the applicant viz. Moreover the order is one dismissing the application itself and it amounts to a denial of the substantive rights claimed by the applicant viz. of being a debtor under the Act and therefore the order would amount to a decree and a decree will have to be drawn up in the particular case as it is a final adjudication of the rights of the parties-no matter whether at a preliminary stage Even if an appeal us dismissed under Order 41 Rule 11 (1) Civil Procedure Code it must be taken to conclusively determine the rights of the parties with regard to the matters in controversy in the ar sal and therefore would amount to a decree. It would therefore follow that it was necessary to produce a copy or the decree which has admittedly not bean done till after the period of limitation was over ( 5 ) THE learned Registrar accordingly held that the requirements of Rule 15 of Chapter IV of the High Court Rules were not satisfied and that the Revision Application was time-barred. It is this Order of the learned Registrar which has been brought up before me in revision. ( 6 ) MR. Thakkar learned advocate on behalf of the petitioner attacked the reasoning of the learned Registrar and contended that no decree could possibly be drawn up in the present case because the application out of which the Revision Application arises was an application under the Saurashtra Agricultural Debtors Relief Act and was not a suit and that the learned Registrar was therefore wrong in proceeding on the footing that the Order of the learned Assistant Judge dismissing the application amounted to a decree and it was therefore necessary to draw up the Order and to file a certified copy of the same along with the Revision Application Mr. Thakkar argued that there was no provision in the Saurashtra Agricultural Debtors Relief Act or the Code of Civil Procedure under which an Order made either on an application of the debtor for adjustment of his debts or in an appeal from any such application was required to be drawn up and since no Order was required to be drawn up a certified copy of the judgment which also contained at the foot of it the Order made by the trial Court or the appellate Court as the case may be was equally a certified copy of the Order and the requirements of Rule 15 of Chapter IV of the High Court Rules were satisfied if such certified copy was filed along with the Revision Application. Mr. Thakkar pointed out that in the present case the certified copy of the judgment was filed along with the Revision Application and that certified copy comprised also the Order made by the learned Assistant Judge at the foot of the judgment and the position therefore was that what was filed along with the Revision Application was not only a certified copy of the judgment but also a certified copy of the Order. Mr. Thakkar argued that the requirements of Rule 15 of Chapter IV of the High Court Rules were therefore satisfied and there was accordingly no question of limitation and the learned Registrar was in error in holding the Revision Application as time-barred. ( 7 ) MR. Thakkar is right in his contention that there could be no decree in the appeal filed by the respondent against the decision of the trial Court on the preliminary issue as to whether the petitioner was a debtor within the meaning of the Saurashtra Agricultural Debtors Relief Act. Section 2 (2) of the Code of Civil Procedure defines a decree as the formal expression of an adjudication which so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. Section 2 (2) of the Code of Civil Procedure defines a decree as the formal expression of an adjudication which so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It is therefore clear that a decree can only be in A suit and an adjudication in any other proceeding would not amount to a decree unless of course it is rejection of a plaint or determination of any question under section 47 or section 144 of the Code of Civil Procedure. An Order made either on an application for adjustment of debts under the provisions of the Saurashtra Agricultural Debtors Relief Act or in an appeal in any such application cannot possibly be said to be a decree within the meaning of the Code of Civil Procedure. The Order would no doubt be the formal expression of an adjudication which so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy but it would not be in a suit and would not therefore amount to a decree. The learned Registrar was therefore wrong in treating the Order made by the learned Assistant Judge as a decree. If the Order made by the learned Assistant Judge did not amount to a decree it was not necessary to draw up the Order under the Code of Civil Procedure. It is only if the formal expression of the adjudication is a decree that it is required to be drawn up by virtue of the provisions of section 23 of the Code of Civil Procedure. There is no provision either in the Code of Civil Procedure or in the Saurashtra Agricultural Debtors Relief Act which requires that an Order made either on an application for adjustment of debts or in an appeal from any such application should be drawn up I am therefore of the opinion that the Order made by the learned Assistant Judge was not required to be drawn up before a Revision Application could be filed against the Order. The Order was contained at the foot of the judgment and a certified copy of the judgment also included a certified copy of the Order. The Order was contained at the foot of the judgment and a certified copy of the judgment also included a certified copy of the Order. If therefore the Order was not drawn up in the present case the certified copy of the judgment filed by the petitioner along with the Revision Application could be treated as the certified copy not only of the judgment but also on the Order and the petitioner could be said to have complied with the requirements of Rule 15 of Chapter IV. Rule 15 of Chapter IV requires that every application in exercise of revisional jurisdiction shall be accompanied by a certified copy of the judgment and decree or Order complained of. The petitioner must therefore satisfy the Court that the Revision Application was accompanied by a certified copy of the judgment and the Order complained of. Now if the Order had not been drawn up the petitioner would have been perfectly right in his contention that the Revision Application was accompanied by a certified copy of the judgment and the Order complained of for the certified copy which was filed along with the Revision Application can be said to be a certified copy both of the judgment and the Order. The difficulty in the way of the petitioner however arises by reason of the fact that the Order was drawn up and signed on 21st September 1960. It is no doubt true that the Order as drawn up and signed on 21st September 1960 is described as a decree but that cannot alter the real nature of the Order. As pointed out by me above the formal expression of the adjudication given by the learned Assistant Judge could not possibly be a decree and was necessarily all Order. As pointed out by me above the formal expression of the adjudication given by the learned Assistant Judge could not possibly be a decree and was necessarily all Order. It is therefore clear that howsoever it may have been described the Order as drawn up and signed on 21st September 1960 was really not a decree but was an Order If the Order was drawn up and signed on 21st September 1960 the petitioner was clearly under an obligation to file a certified copy of the formal order along with the Revision Application Once the Order was drawn up and signed the petitioner could not rely on the Order contained at the foot of the judgment and contend that the certified copy of the judgment which was filed by the petitioner along with the Revision Application included also a certified copy of the Order. It is true that the Order need not have been drawn up. There was no provision of law which required the Order to be drawn up but once the Order was drawn up and signed that contained the formal expression of the adjudication and became the sole repository of it. The petitioner was therefore required to file a certified copy of the formal Order along with the Revision Application. I am fortified in this view by a decision of a Division Bench of the Allahabad High Court in B. Surendra v. Raja Lal (A. I. R. 1933 Allahabad 762 ). In that case the only Order on the record of the proceedings contained not only the judgment i. e. the reasons for the decision but also the Order i. e the formal expression of the adjudication and no separate formal Order was drawn up and the appellant therefore filed along with the Memorandum of Appeal only a certified copy of the Order which contained the judgment as well as the formal expression of the adjudication and did not file a certified copy of the formal Order. The formal Order was thereafter drawn up and signed and a certified copy of the same was filed in Court This was however beyond the period of limitation. The question therefore arose whether the appeal could be said to have been presented in time in spite of the fact that the certified copy of the formal Order was filed after the expiry of the period of limitation. The question therefore arose whether the appeal could be said to have been presented in time in spite of the fact that the certified copy of the formal Order was filed after the expiry of the period of limitation. This question has answered in the affirmative and the learned Judges of the Allahabad High Court observed as follows:. . . . . . . ( 8 ) IN a case like this in which the only order on the record of proceedings contains not only the grounds on which the decision is based but contains also the formal expression and the decision itself it should be taken to be of a dual character being both the judgment and the order as defined in the Civil Procedure Code. The appellant having filed a copy of such an order with his memorandum of appeal should be considered to have substantially complied with R. 2 Ch. 3. . . . . . . . . . of the Rules of this Court. . . . . . . . ( 9 ) THE learned Judges however made it clear that the position would have been different if a separate formal Order had been drawn up and signed and was in existence at the date when the appeal was filed and observed:when a separate formal order has been drawn up and is in existence when the appeal was filed but the appellant omitted to obtain a copy and file it with the memorandum of appeal there is justification for holding that there was no valid presentation of the appeal. ( 10 ) IN the present case a separate formal Order was drawn up and signed on 21st September 1960 and the petitioner was therefore bound to file a certified copy of the formal Order along with the Revision Application. The petitioner admittedly did not do so and the requirements of Rule 15 of Chapter IV were therefore not fulfilled. The certified copy of the formal Order was filed by the petitioner beyond the period of limitation and the learned Registrar was therefore right in the conclusion reached by him that the Revision Application was not within time. ( 11 ) MR. The certified copy of the formal Order was filed by the petitioner beyond the period of limitation and the learned Registrar was therefore right in the conclusion reached by him that the Revision Application was not within time. ( 11 ) MR. Thakkar relied on Rule 3 of Chapter V of the High Court Rules and submitted that if the Revision Application was not complete by reason of the certified copy of the formal Order not having been filed along with it the petitioner was entitled to remove the objection by filing a certified copy of the formal Order within fourteen days from the date of service on him of the notice stating the objection and that the Revision Application was not liable to be treated as having been filed beyond the period of limitation. I cannot accept this contention of Mr. Thakkar. The contention of Mr. Thakkar overlooks the provisions of Rules 5 and 6 of Chapter V which make special provision in regard to cases where a certified copy of the decree or order against which an appeal or application is filed and which is necessary to be filed for a valid presentation of the appeal or application has not been filed within the time prescribed for such appeal or application. These Rules being special Rules must prevail over Rule 3 which is a general Rule in respect of matters with which they deal and if therefore a certified copy of the Order is not filed within the period of limitation the procedure prescribed by these Rules must be followed and not the procedure prescribed by Rule 3. Of course these Rules would apply only where a certified copy of the decree or Order is necessary to be filed for a valid presentation of the appeal or application. In the case of an appeal from a decree a certified copy of the decree is necessary to be filed along with the Memorandum of Appeal by reason of the provision contained in Order XLI Rule 1 of the Code of Civil Procedure and unless a certified copy of the decree is filed along with the Memorandum of Appeal there would be no valid presentation of the appeal. So also in the case of an appeal from an Order a certified copy of the Order is necessary to be filed along with the Memorandum of Appeal for a valid presentation of the appeal by reason of the provision contained in Order XLIII Rule 2 of the Code of Civil Procedure. There is no such provision enacted in the Code of Civil Procedure regarding a Revision Application But under Rule 15 of Chapter IV it is provided that every application in exercise of revisional jurisdiction shall be accompanied by a certified copy of the judgment and decree or order complained of and it is therefore necessary for a valid presentation of a Revision Application against an Order that a certified copy of the Order should be filed along with the Revision Application. This view receives considerable support from the provisions of Rule 17 of Chapter IV Rule 17 of Chapter IV provides that applications for the exercise of revisional jurisdiction under section 115 of the Code of Civil Procedure shall be presented within sixty days from the date of the decree or order sought to be revised but the time required for obtaining certified copies of the judgment and decree or Order sought to be revised shall be excluded when computing the period of sixty days. The time required for obtaining certified copies of the judgment and decree or order sought to be revised is specifically excluded in computing the period of limitation and that could be so only if certified copies of the judgment and decree or Order were necessary to be filed along with the Revision Application for a valid presentation of the Revision Application. If certified copies of the judgment and decree or Order could be filed subsequently even after the period of limitation had expired on objection being taken by the office under Rule 3 of Chapter V there was no point in providing that the time required for obtaining certified copies of the judgment and decree or Order sought to be revised shall be excluded in computing the period of limitation. The provision for exclusion of the time required for obtaining certified copies of the judgment and decree or Order when computing the period of limitation clearly shows that certified copies of the judgment and decree or Order must accompany the Revision Application and that the Revision Application cannot be said to be validly presented unless and until certified copies of the judgment and decree or Order are filed. I am therefore of opinion that Rules 5 and 6 of Chapter V must apply and if a certified copy of the Order is not filed within the period of limitation prescribed for the Revision Application the Revision Application would be liable to be considered beyond time and the only remedy available to the petitioner would be to make an application for excusing the delay in filing the Revision Application the petitioner would not be entitled to avail of the procedure prescribed by Rule 3 of Chapter V and it would not be open to the petitioner to claim to remove the objection by filing a certified copy of the Order within fourteen-days from the date of service of notice on him stating the objection. It must be remembered that the objection is one relating to limitation and if Rule 3 of Chapter V applies as contended by Mr. Thakkar the petitioner would be entitled to remove the objection by filing a certified copy of the Order within fourteen days from the date of service of notice stating the objection even after the expiration of the period of limitation but this would defeat the very object of providing that the Revision Application should be filed within the period of limitation accompanied by a certified copy of the Order against which the Revision Application is directed. Of course the period of limitation for a Revision Application being prescribed by the Rules. it would be open to the High Court to provide under the Rules that even if the Revision Application is filed without being accompanied by a certified copy of the Order the Revision Application shall be treated as filed within time and that the petitioner shall be entitled to remove the objection relating to the non-filing of the certified copy of the Order by filing the same within a certain time even though it may be beyondthe period of limitation. This however is not the position under the Rules. This however is not the position under the Rules. Rules 5 and 6 of Chapter V in terms prescribe that if a certified copy of the Order is not filed within the period of limitation the Revision Application would be liable to be considered beyond time and the petitioner would have to make an application for excusing the delay in filing the Revision Application. In this view of the matter it must be held that since in the present case the certified copythe Order was not filed within the period of limitation the Revision Application was rightly held by the learned Registrar to have been filed beyond the period of limitation. ( 12 ) I therefore confirm the Order made by the learned Registrar though for different reasons. Before I part with this case I must observe that the question whether the filing of a certified copy of the judgment which also included a certified copy of the Order made at the foot of the judgment was sufficient compliance with the requirements of Rule 15 of chapter IV was a question not free from difficulty and it was not unreasonable on the part of the petitioner to assume that the filing of such certified copy was sufficient compliance with the requirements of Rule 15 of ( 13 ) CHAPTER IV though that assumption was in the view I have taken wrong. Petition dismissed. .