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1996 DIGILAW 301 (KER)

Janardhanan v. Chandramathy

1996-07-22

B.N.PATNAIK, T.V.RAMAKRISHNAN

body1996
Judgment :- Ramakrishnan, J. We have heard the learned counsel for the appellants and the learned counsel who took notice on behalf of the respondents at length even at the time when the appeal came up for admission and are disposing of the appeal itself after admitting the same by this judgment. Apart from the points raised challenging the correctness of the decision on merits, a question of law of some general importance regarding the maintainability of an appeal filed against the final order passed in a final decree application for partition without producing a certified copy of the final decree has also been raised in the appeal. In fact, the main reason, which persuaded us to admit the appeal and hear it at length, was that the question of law raised deserved consideration by us. 2. The appeal which was disposed of by the learned single judge as per the impugned judgment was one filed against the final order passed in a final decree application, LA. No. 217 of 1979 in O.S. No. 177 of 1975 on the file of the Sub Court, Kozhikode. As per the impugned order, the Sub Court has passed a final decree as indicated in Paragraphs 3 to 5 (both inclusive) of the order. The court has also directed production of non judicial stamp papers of the required value fixing the date for production as 2.4.1986. The appellants along with the first defendant in the suit, who died pending appeal, preferred the appeal producing only the certified copy of the order in the I.A. Certified copy of the final decree was not produced either at the time of filing the appeal or thereafter till the appeal was 11 nally disposed of by the learned Single Judge. In the cause title itself the appellants have indicated that the appeal is being filed against the order dated 10.3.1986 in LA. No. 217 of 1979. The appeal was accepted by the registry without noting any defect and was admitted by a Division Bench of this Court on 7.8.1986 ordering notice to the respondents. At the time of admission, the Division Bench has passed an order of stay of all further proceedings also on 7.8.1986. The appeal ultimately came up for hearing in April, 1995 before the learned Single Judge. At the time of admission, the Division Bench has passed an order of stay of all further proceedings also on 7.8.1986. The appeal ultimately came up for hearing in April, 1995 before the learned Single Judge. As per the impugned judgment, the learned judge has found that the appeal filed without producing a certified copy of the final decree is incompetent and not maintainable. After entering such a finding, the learned judge proceeded to consider the merits of the case observing thus: "....But I do not want to rest my decision on this ground that I must observe that the procedure adopted by the appellants is clearly unsustainable and I refrain from making any further comment regarding this aspect". On the merits the learned judge on a consideration of the rival contentions found that the appellants have not made out a ground for interference in the appeal. Accordingly, the appeal was dismissed finding that there is no justification to interfere with the final decree now passed by the court below even on the basis that the appeal as it is filed by the appellants is maintainable. 3. Alter hearing the counsel on both sides, we agree with the findings of the learned judge that no interference is called for on the findings recorded by the learned Sub Judge on the disputed question of fact decided by him on the basis of the evidence on record. The only question, which deserves to be considered, is whether the view taken by the learned Single Judge regarding the maintainability of the appeal is proper and sustainable. 4. Learned counsel for the appellants, Mr. M.C. Sen, has contended that the final order passed in LA. No. 217 of 1979 is liable to be treated as a decree as defined in S.2(2) of the Code of Civil Procedure. Since the required stamp paper was not produced by the plaintiffs no decree was in fact drawn up and engrossed in stamp papers and as such there was no question of getting a certified copy. As the appellants were opposing the passing of a final decree on the terms and conditions indicated in the final decree they cannot be expected to produce the stamp papers which is normally the duty of the plaintiff or any other party who wants a final decree as it was passed. As the appellants were opposing the passing of a final decree on the terms and conditions indicated in the final decree they cannot be expected to produce the stamp papers which is normally the duty of the plaintiff or any other party who wants a final decree as it was passed. As such it is a case, where the appellants should have been allowed to file the appeal against the final order treating the order itself as a decree for filing the appeal or treating the case as an exceptional one, where the appellants are not in a position to get a certified copy of the decree since the same was not drawn up for no fault on their part. The learned counsel has referred to and relied upon the following decisions in support of his submission: Lilaram v. Tikamdas (AIR 1929 Sind 225); Parashuram v. Hirabai (AIR 1957 Bom 59); Mayimu Alias Bambathi Bibi v. Chens Maliyammal (1968 KLJ 103); af.l. Maniappa v. Kalyani (AIR 1971 Mysore 350); Damodaran v. Kesavankutty (1973 KLT 765); Perumal Vadayar and others v. Devi and others (1991 (1) KLJ 65); Jagat Dhish v. JawaharLal (AIR 1961 SC 832) and phoolchand v. Gopal Lai (AIR 1967 SC 1470). 5. It is clear beyond any doubt that as per the order passed by the learned Sub Judge in LA. No. 217 of 1979, the final decree application was finally disposed of passing a final decree as indicated in the order. The parties were also called upon to produce non judicial stamp papers of the required value. None of the parties has produced the required stamp papers as directed. It is also not in dispute that at the time when the appeal was preferred final decree was not formally drawn up in stamp papers since the parties have not produced the stamp papers before the Court. The appellants were not interested in producing the stamp papers as they were challenging the correctness of the findings in the order and the terms of the final decree as indicated therein. It is true that if they wanted, they could also have produced the required stamp papers and got the final decree engrossed in it and obtained a certified copy to be produced along with the memorandum of appeal. But that was not done. It is true that if they wanted, they could also have produced the required stamp papers and got the final decree engrossed in it and obtained a certified copy to be produced along with the memorandum of appeal. But that was not done. However, it cannot be disputed that there was a final determination of all the disputes between the parties as per the impugned order or judgment. As the appellants have clearly stated in the cause title that the appeal is being filed against the order in 1. A. No. 217 of 1979 it cannot be said that they have attempted to 'disguise' the appeal or 'mislead' the court. It was upto the registry to note the defects, if any, and return the memorandum as defective. However, it would appear that without noting any defect, the registry of this Court has numbered the appeal and placed the same for admission before a Division Bench and the Division Bench has admitted the appeal ordering notice to the respondents. It was only at the time when the appeal came up for final hearing after the lapse of about 9 years that the non-production of the certified copy of the final decree passed was noted. Probably because of the stay of operation of the impugned order ordered by this Court at the time of admission no further steps seems to have been taken by the Sub Court to draw up the decree formally in stamp papers or to consign the records to the record room on failure to produce the stamp papers as required by the provisions in R.238 of the Civil Rules of Practice (for short 'the rules'). Neither the plaintiffs nor any of the defendants in the suit have taken steps to produce the required non judicial stamp papers till the disposal of the appeal. It is in this background that we have to consider the propriety and sustainability of the view taken by the learned Single Judge on the question of maintainability of the appeal. 6. In Jagat Dhishv. JawaharLal (AIR 1961 SC 832) it has been categorically laid down that the provision in O.XLI R.1CPC which requires a certified copy of the decree to be produced along with the memorandum of appeal is mandatory and in the absence of a certified copy of the decree the filing of the appeal will be incomplete, defective and incompetent. JawaharLal (AIR 1961 SC 832) it has been categorically laid down that the provision in O.XLI R.1CPC which requires a certified copy of the decree to be produced along with the memorandum of appeal is mandatory and in the absence of a certified copy of the decree the filing of the appeal will be incomplete, defective and incompetent. It is also clear that S.33 CPC requires that the Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow: O.XX R.7 GPC provides 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 is the function and duty of the office in all cases. Further in a suit for partition, the Court is empowered to pass a preliminary decree under O.XX R.18 and a final decree based thereon. The particulars to be included in the final decree are those provided in R.235 of the Rules. R.236 provides that the Court while passing a final judgment in a partition suit should direct the parties to deposit in court the amount required for the non judicial stamp papers for engrossing the decree in proportion to the value of their shares and any party failing to deposit the same as directed within the time allowed shall be deemed to be in default and shall be liable for the costs of the adjournment. It further provides that the court may allow any party to deposit the entire amount or the share of any other party and direct the same to be realised from the party or parties liable for the same. R.237 mandates that the decree in a partition suit shall be prepared on non-judicial stamp papers of the requisite value. R.238 of the Rule is to the following effect: "238. Procedure where stamp paper is not furnished:- If the parties fail to produce the stamp papers as directed, the records of the cases shall be consigned to the record room without drawing up the final decree and to such cases the rules regarding destruction of records shall not apply". R.238 of the Rule is to the following effect: "238. Procedure where stamp paper is not furnished:- If the parties fail to produce the stamp papers as directed, the records of the cases shall be consigned to the record room without drawing up the final decree and to such cases the rules regarding destruction of records shall not apply". R.238 is clear to the effect that final decree will be drawn up only on production of the requisite stamp papers as directed by the court and if the same is not produced as directed, the Court shall consign the records of the case to the record room without drawing up the final decree to be dealt with under sub-rules. 2, 3 and 4 of that rule. In the impugned order as already pointed out there is a specific direction issued by the Court directing production of non judicial stamp papers. Neither the plaintiffs nor any of the defendants have produced the non judicial stamp papers for drawing up and engrossing the final decree on it. As such the appellants could not have got a certified copy of the decree and could not have produced the same along with the memorandum of appeal. But, for such inability parties alone can be blamed. The final decree was not drawn up solely for the reason mat none of the parties produced the required stamp papers. The only question to be considered is whether in the facts and circumstances of the case, the learned judge ought to have exempted the appellants from complying with the mandatory requirements of producing a certified copy of the final decree as provided in O. XLI R.1 CPC, treating the order itself as final decree as defined in S.2(2) of me CPC. 7. In Jagal Dhish's case (supra) the Supreme Court has made the following observations while dealing with the question whether the memorandum of appeal filed without a certified copy of the final decree is liable to be dismissed invariably in all cases: "It would he difficult to accede to the proposition thus advanced in a broad and general form. 7. In Jagal Dhish's case (supra) the Supreme Court has made the following observations while dealing with the question whether the memorandum of appeal filed without a certified copy of the final decree is liable to be dismissed invariably in all cases: "It would he 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 incomplete and a penalty of dismissal would be justified. The position would, however, be substantially different if at the time 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 discovers the defect the appeal may be returned to the appellant for presentation 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 scrutinised at the initial stage soon after they are filed and the appellant required to remedy the defects ". After making the above observations, the Supreme Court has in the facts and circumstances of that case upheld the order passed by the High Court and allowed the High Court to proceed and dispose of the appeal on merits in accordance with law. 8. In Phool chand v. Gopal Lai (AIR 1967 SC 1470) the Supreme Court had occasion to consider again a similar question regarding the maintainability of an appeal filed without a copy of the decree. That was a case where after passing preliminary decree for partition but before passing final decree two of the parties to the suit died necessitating a variation of the shares already declared as per the preliminary decree. On the motion of one of the parties, a fresh order was passed re-distributing the shares between the parties varying the number of shares allotted originally in the preliminary decree. However, no fresh preliminary decree was prepared on the basis of the fresh order. Aggrieved by the re-determination of the shares one of the parties filed an appeal to the High Court without a certified copy of the decree and wanted stay of proceedings relating to the preparation of the final decree. The maintainability of the appeal was challenged on the ground that no decree had been prepared by the trial Court and no copy of the decree was filed along with the memorandum of appeal. The maintainability of the appeal was challenged on the ground that no decree had been prepared by the trial Court and no copy of the decree was filed along with the memorandum of appeal. The High Court repelled both the contentions and held that the impugned order varying the specification of shares in the preliminary decree already passed was a decree in the facts and circumstances of the case. It was also held that as the trial court had refused to frame formal decree in accordance with the fresh order even after a request to that effect from the party, it was not possible for the appellant to file a copy thereof with the memorandum of appeal and in the circumstances the appellant cannot be denied his right to file an appeal against the said order. While upholding the findings of the High Court, the Supreme Court has referred to Jagat Dhish 's case (supra) and stated that the correct position of law on the point is as stated therein. Supreme Court has further observed thus: "That no doubt is the correct position in law; but as was pointed out in that case, there may be circumstances where an appeal may be competent even though a copy of the decree may not have been filed along with the memorandum of appeal. One such exceptional case was dealt with (1961) 2 SCR 918 : (AIR 1961 SC 832). We consider that the present case is another exceptional case where in the absence of the copy of the decree, the appeal could be maintained". 9. From the above two decisions of the Supreme Court, it is clear that as a general proposition of law it cannot be laid down that in all cases where an appeal has been filed without a certified copy of the decree, it is liable to be dismissed as incomplete and incompetent. Under exceptional circumstances, appeals can be entertained without the certified copy of the decree. Supreme Court has also indicated the manner in which the appeals filed without copies of the decree have to be dealt with by the appellate Court. Under exceptional circumstances, appeals can be entertained without the certified copy of the decree. Supreme Court has also indicated the manner in which the appeals filed without copies of the decree have to be dealt with by the appellate Court. A careful examination of the decisions of the Supreme Court and the High Courts referred to and relied upon by the learned counsel for the appellants would also indicate that it is only when decrees are not actually drawn up and parties are not to be blamed for the non-availability of the certified copy of the decree they can be absolved from their duty to produce the certified copy of the decree along with the appeal. At the same time, it is also well settled that the criterion for deciding the question whether an order is a decree or decretal order is not the actual drawing up of a decree by the Court which passes the order or its omission to do so. The principles settled by the above decisions may not be a sufficient justification for accepting the contentions of the learned counsel for the appellant in this case as valid since the court was not at all to be blamed for the default in drawing up of the decree on stamp papers. The parties alone could be blamed for that. The only question to be considered is whether the case can be considered as an exceptional case and treated as such. 10. We find that on principle, the situation available in this case is some what similar to the situation which was present in Phoolchand's case (supra) and it is also a case which in our view deserves to be treated as an exception to the general rule for reasons similar to the one indicated in that decision, in the peculiar facts and circumstances of this case. For, we find that in S.B. Lokhande v. C.S. Lokhande (AIR 1995 SC 1211) the Supreme Court has held that the two acts of drawing up the final decree and engrossing it on stamp papers together constitute a final decree, crystallising the right of the parties in terms of the preliminary decree and till then there is no executable decree as envisaged in Order XX, R.18(2) CPC attracting residuary Art.182 of the old Limitation Act. That would mean till the drawing up of the decree in stamp papers, no final decree comes into existence and the suit stands pending. In fact, it has been held so in a very early decision of the Madras High Court that "it is well settled that a final decree for partition has no existence as a decree until it is engrossed on the proper non judicial stamp papers, till that is done the suit is pending (see Satyanandam v. Paramakusam Nammayya, AIR 1938 Madras 307). The question considered in the Madras decision was whether a final decree which had not been engrossed on a non-judicial stamp paper could be executed or not. It was the view taken in the above Madras decision that has been now approved by the Supreme Court in S.B. Lokhande's case (supra) specifically referring to the said decision. If that is the true legal position, then the final order passed in the LA. calling upon the parties to produce the required stamp papers can only be treated as an order passed finally determining-the rights of the parties in a pending suit before the drawing up of the final decree which can only be done on non judicial stamp papers of the requisite value as per Rule 237 of the Rules. It is further clear from R.238 that if the parties fail to produce the requisite stamp papers, the Court is bound to consign the records of the case to the record room without drawing up the final decree treating the suit as pending for further disposal as indicated in the said rule. The direction in R.238 to consign the record to the record room till parties produce necessary stamp papers would strengthen the view that suits remains pending. 11. The direction in R.238 to consign the record to the record room till parties produce necessary stamp papers would strengthen the view that suits remains pending. 11. Two important questions immediately arise for consideration: (1) Should a party who challenges in toto the correctness of the findings recorded in the final order passed in the final decree application, produce the required stamp papers for the purpose of getting a final decree drawn upon it for producing the certified copy of the same along with the memorandum of appeal only to get it set aside in the appeal and (2) Can he not file an appeal against the order by which he is aggrieved, requesting the appellate Court to treat the order as a decree as defined in S.2(2) of the Code for the purpose of filing the appeal and produce the required stamp papers when the determination of the rights become final after the disposal of the appeal so as to avoid the hardship and loss which the parties may have to suffer if he succeeds in the appeal and the decree is set aside in appeal? If the appeal succeeds and the decree is set aside, the party will lose practically the money spent for stamp papers. Getting a decree engrossed on stamp papers at that stage will only be an empty formality for all concerned. No useful purpose will be served by insisting upon the drawing up of such a decree. It will not in any way advance the cause of justice or the interest of the parties. 12. We may in this connection note a further observation from Phoolchand's case (supra) which is as follows: ".... It would in our opinion be convenient to the court and advantageous to the parties specially in partition suits, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared ". (Emphasis supplied) It is true that the above observation was made by the Supreme Court specifically with reference to a case where an order was passed re-determining the shares already determined by the preliminary decree before passing a final decree as a result of subsequent developments. As such the observation may not strictly apply to a case where the court has passed a final order in the final decree application itself. As such the observation may not strictly apply to a case where the court has passed a final order in the final decree application itself. But we would venture to say that the observation made by the Supreme Court in the above passage can legitimately be made applicable to all orders which may amount to a decree as defined in S.2(2) of the Code passed before passing an executable decree as explained in S. B. Lokhande 's case (supra). In a case like the present one where the party in whose favour a final order has been passed fails to supply stamp papers in time and the party against whom the order is passed, wants to challenge the correctness of the findings in the final order before a final decree is actually drawn up on stamp papers, it will be unreasonable, harsh and inequitable to insist upon production of the copy of the decree and thus compel him to supply stamp papers, sometimes, of considerable amount, to draw up the final decree on it, only for the purpose of challenging it tooth and nail and getting it set aside. In such circumstances, it will only be reasonable to take note of the practical difficulties and loss likely to be caused to the parties by producing stamp papers at that time and on mat basis direct the registry to treat the order or judgment containing the terms of the decree itself as a decree as defined in S.2(2) of the Code and to treat the appeal as one filed properly and validly. We say so because the order or judgment such as the one passed in this case can be treated only as one passed determining finally the rights of the parties for the purpose of passing an executable final decree in a pending suit for partition awaiting the drawing up of an executable final decree on stamp papers and its final termination. We would also like to indicate that the appellants cannot be strictly blamed for not producing the required stamp papers as they were challenging the validity of the final order from the very beginning itself and that the party in whose favour it has been passed has failed to produce the required stamp papers in time and that has disabled them to get a certified copy of the decree. Though slender, we would like to point out the above circumstances and reasons as the legal basis for taking the above view regarding the maintainability of this appeal filed without producing a copy of the decree with a view to avoid avoidable inconveniences and unnecessary losses to the parties and to advance the interest of justice. We have not been told by any of the counsel appearing in this case that if such a view is taken, any injustice will be caused to any of the parties or mat it will violate the mandatory provisions of any other statute. In fact, as observed by the Supreme Court in Phoolchand's case (supra) it would only be convenient for the court and advantageous for the parties to allow the final order or judgment to be appealed against even before drawing up a decree on stamp papers so that it becomes final before drawing up the final decree on stamp papers. 13. If the appeal filed against the final order or judgment passed in the final decree application is found to be incompetent as has been held by the learned Single Judge, the result will be that the party aggrieved by the findings in the order or judgment may get a right to file an appeal as and when one or other of the parties produces the required stamp papers and the decree is engrossed on it. If for any reason the parties' fail to produce the required stamp, papers as directed by the Court, the court cannot dismiss the suit. It can only consign the records of the case to the record room under R.238 of the Rules to be dealt with in the manner indicated in that rule. Parties are permitted by that rule to produce the stamp papers at any time and require the court to draw up a decree and engross the decree on stamp papers so produced without any time limit. That would mean that the order or judgment will remain without any finality being attached to it till one or other of the parties takes steps to produce the required stamp papers since the same can be appealed against only after a decree is drafted on stamp papers. Till a decree is drawn up on stamp papers there may not be any bar of limitation for filing appeal operating against any of the parties also. Till a decree is drawn up on stamp papers there may not be any bar of limitation for filing appeal operating against any of the parties also. It may not be advantageous or desirable to allow such order or judgment to remain without becoming final indefinitely. 14. In the circumstances and for the reasons given above 'we would hold that an appeal filed by a party aggrieved by a final order or judgment passed in a final decree application in a suit for partition before an executable final decree is drawn up on stamp papers can be entertained without a certified copy of the decree treating the order or judgment appealed against itself as a decree as defined in S.2(2) of the Code for the purpose of filing the appeal. In the above view, which we have taken, we would hold that the appeal filed by the appellants in the peculiar circumstances of the case is competent and maintainable. The appellants cannot be said to have 'misled' the court by filing a 'disguised' appeal as observed by the learned single judge. 15. Though we have held that the first appeal filed is maintainable, no interference is called for in this appeal with the judgment of the learned single judge since the learned judge has found no merit in the other contentions raised in the appeal and we have concurred with such findings. Accordingly, the appeal is dismissed in limine.