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2004 DIGILAW 60 (AP)

Lakakula Sujatha v. Thummu Manemma

2004-01-22

T.CH.SURYA RAO

body2004
T. SURYA RAO, J. ( 1 ) THIS second appeal is directed against the order dated 6-6-2002 passed by the learned Principal District Judge, Warangal in a. S. SR. No. 4423 of 2002. ( 2 ) THE unsuccessful appellant who sought to file the appeal before the court below is the appellant herein. The facts lie in a narrow compass: ( 3 ) THE appellant filed the suit in O. S. No. 196 of 1981 for partition of the properties mentioned in the schedule annexed to the plaint against the respondents 1 and 2 herein. Eventually a preliminary decree was passed in the said suit that the plaintiff was entitled to 1/6th share. Thereupon, the appellant filed I. A. No. 127 of 1998 seeking a final decree to be passed in terms of the preliminary decree. By an order dt. 6-6-2000, the trial court directed either of the respondents 1 and 2 to pay an amount of rs. 2,99,200/- to the appellant-plaintiff in lieu of her 1/6th share, and on such payment, the properties mentioned in the schedule be given to them as a whole and that the final decree should be prepared after deposit of the non-judicial stamps by any one of the parties to the suit. Time was granted to defendants 1 and 2 in the suit to deposit the amount within one month therefrom, accompanied by a clause that the amount should carry interest @ 12% per annum till realization, in the event of default. Having been aggrieved by the said order, the appellant sought to file the appeal before the court below. ( 4 ) UPON calculating the period for the purpose of limitation, an objection was taken in the office to show as to whether the appeal was within the time or not. At the request of the counsel for the appellant, the matter had been called on Bench and was heard. ( 5 ) THE contention of the appellant before the court below was that the decree having not been prepared for want of the requisite stamps, it was not a case of any delay. According to the appellant, the impugned order was passed on 6-6-2002 (sic. ( 5 ) THE contention of the appellant before the court below was that the decree having not been prepared for want of the requisite stamps, it was not a case of any delay. According to the appellant, the impugned order was passed on 6-6-2002 (sic. 2000) and a certificate was given to the appellant on his request to the effect that the decree had not been prepared yet by 6-8-2001 and the appeal having been filed on 20-8-2001 by which time the final decree was not prepared as yet and the appeal filed was well within the time. Under the impugned order the court below rejected the appeal having been of the view that there was a delay of 41 days in filing the copy application and that the delay was not explained. ( 6 ) THE substantial question of law that falls for determination in this second appeal is as to whether the period preceding the drafting of the decree shall be reckoned or excluded for computing the period of limitation for filing the appeal, and if so when? ( 7 ) SRI Bankatlal Mandhani, learned counsel appearing for the appellant in support of his contention seeks to place reliance upon the judgment of the Calcutta high Court in Nrishingha Murari Datta v. Ajit kumar Dutta. It was hold by a Division bench of the Calcutta High Court that in a suit for partition when the court by omitting to give appropriate direction in the judgment regarding payment of stamp duty left the judgment incomplete and the difficulty in preparing the decree created thereby could be overcome only when one of the parties furnished entire stamp duty, the time taken by the court would be excluded in computing the period of limitation. ( 8 ) THE Calcutta High Court seems to have proceeded on the assumption that the decree could not be drafted when the stamp duty was not filed and the court was obliged to give necessary direction inter alia in the judgment directing the parties to file the requisite stamp duty and therefore, the difficulty that had arisen on account of such direction should have to be overcome only by excluding the time requisite for drafting the decree. ( 9 ) THE learned counsel seeks to rely upon a judgment of the Apex Court in udayan Chinubhai v. C. Bali. ( 9 ) THE learned counsel seeks to rely upon a judgment of the Apex Court in udayan Chinubhai v. C. Bali. A three Judge bench of the Apex Court was of the view that "a judgment which is unconditioned by the requirement of any action by a party, stands on a different footing and in that event the date of the judgment will necessarily be the date of the decree. The Apex Court further held thus: "when a judgment is delivered in the presence of the parties clearly announcing certain steps to be taken by the plaintiff before the decree can be prepared, the matter stands on an entirely different footing. In the present case without deposit of the deficient court fees by the plaintiff the decree could not be instantly prepared under the law. Time was given to the plaintiff for that purpose and there could be no decree in existence in law until the plaintiff supplied the court fees. Without the existence of the decree any application for a copy of the decree would be futile. Therefore, on the facts of this case, in view of the operative part of the judgment, the date of the decree was when the plaintiff furnished the court-fees as ordered" ( 10 ) ). That was a case where while decreeing the suit, the court directed the plaintiff to pay the deficit court fee. Therefore, the Apex Court was of the view that till such time the deficit court fee was paid by the plaintiff, there was no decree in the eye of law. At the end of para-35, the apex Court further held thus: "it is only when there is a legal impediment to prepare a decree on account of certain directions in the judgment or for non-compliance with such direction or for other legally permissible reasons, the party who is required to comply with such directions or provisions, cannot rely upon the time required by him under those circumstances, as running against his opponent. ( 11 ) THE legal position seems to be thus obvious that when the decree is conditional, requiring the parties thereto to comply with such direction and non-compliance thereof makes the decree non est in the eye of law and the decree comes into effect only when such a direction is complied with by the parties. ( 11 ) THE legal position seems to be thus obvious that when the decree is conditional, requiring the parties thereto to comply with such direction and non-compliance thereof makes the decree non est in the eye of law and the decree comes into effect only when such a direction is complied with by the parties. Taking shelter under the above dictum of the Apex court, it is now sought to be contended by the learned counsel for the appellant that inasmuch as in the final decree petition, the Court directed any one of the parties thereto to file the requisite stamp duty for the purpose of engrossing the final decree, there was no decree in the eye of law, since either the plaintiffs or the defendants 1 and 2 have not complied with that direction. All this argument is not germane for consideration in view of the amended provisions of the Code of Civil procedure under Act 104 of 1976. Under this act, Rule 6-A of Order 20 has been incorporated newly into the Civil Procedure code (for short the Code ). ( 12 ) RULE 6-A of Order-20 of the Code reads as under: 6-A: Last paragraph of judgment to indicate in precise terms the relief granted (1) The last paragraph of the judgment shall state in precise terms the relief, which has been granted by such judgment. ( 12 ) RULE 6-A of Order-20 of the Code reads as under: 6-A: Last paragraph of judgment to indicate in precise terms the relief granted (1) The last paragraph of the judgment shall state in precise terms the relief, which has been granted by such judgment. (2) Every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible and, in any case, within fifteen days from the date on which the judgment is pronounced; but where the decree is not drawn up within the time aforesaid, the court shall if requested so to do by a party desirous of appealing against the decree, certify that the decree has not been drawn up and indicate in the certificate the reasons for the delay, and thereupon (a) an appeal may be preferred against the decree without filing a copy of the decree and in such a case the last paragraph of the judgment shall, for the purposes of Rule 1 of order XLI, be treated as the decree; and (b) so long as the decree is not drawn, up the last paragraph of the judgment shall be deemed to be the decree for the purpose of execution and the party interested shall be entitled to apply for a copy of that paragraph, only without being required to apply for a copy of the whole of the judgment; but as soon as a decree is drawn up, the last paragraph of the judgment shall cease to have the effect of a decree for the purpose of execution or for any other purpose; provided that, where an application is made for obtaining a copy of only the last paragraph of the judgment, such copy shall indicate the name and address of all the parties to the suit. ( 13 ) A perusal of the said provision shows that the court should draw the decree upon pronouncement of the judgment as expeditiously as possible and in any case within fifteen days from the date on which the judgment is pronounced. ( 13 ) A perusal of the said provision shows that the court should draw the decree upon pronouncement of the judgment as expeditiously as possible and in any case within fifteen days from the date on which the judgment is pronounced. In the event, the decree is not drawn as aforesaid within time, it is open to the parties to request the court to grant the requisite certificate to the effect that the decree has not been drawn and it becomes obligatory for the court to grant such certificate mentioning inter alia the reasons for not drawing up the decree within the time requisite. Upon granting such a certificate, it is open to the parties to file appeal against the decree without filing the copy of the judgment (sic. decree) and in such cases, the last paragraph of the judgment shall be treated as a decree for the purpose of Rule 1 of Order 41 of the Code, which mandates that the appeal shall be filed against the decree. The provision further shows that if the application is filed for obtaining a copy of only the last paragraph of the judgment, such copy shall indicate the name and addresses of the parties to the suit. It is therefore, clear that when the decree has not been drawn up by the court for any reason, the party who is desirous of filing the appeal can request the court to grant the necessary certificate to the effect that the decree has not been drawn up and after having obtained the certified copy of the judgment, the operative portion of which shall be treated as decree for all practical purposes and can file the appeal even in the absence of the decree. Therefore, even if the decree has not been drafted for want of requisite stamp duty, that will not preclude the party from filing the appeal against the final decree, if he feels aggrieved by it and if he is desirous of filing the appeal immediately. True if the final decree is not drawn up and engrossed on proper stamp papers, there can be no executable decree. But, there lies every distinction between a decree, which is non-est and a decree, which is not executable. In the former case, there is no decree in the eye of law and in the latter case, the decree though in existence cannot be executed. But, there lies every distinction between a decree, which is non-est and a decree, which is not executable. In the former case, there is no decree in the eye of law and in the latter case, the decree though in existence cannot be executed. This provision had not been there on the Statute book, when the judgments referred to above by the learned counsel for the appellant, came to be rendered. In view of the change in the law, those judgments have no application. ( 14 ) THE legal position now seems to be clear that whenever there is a delay on the part of the Court in drafting the decree, the party is not precluded from filing the appeal, in the event of any urgency to file the appeal and in such case the party can request the court to grant a certificate to the effect that the decree has not been prepared and enclosing that certificate, he can file the appeal without annexing the certified copy of the decree to the Memorandum of appeal. Thus the new provision in Rule 6-A of order 20 of the Code, enables a party to file the appeal without annexing the certified coy of the decree along with the Memorandum of appeal. But he shall file the certified copy of the judgment, the operative portion of which shall for all practical purposes be deemed to be a decree. ( 15 ) HERE in the instant case, the final decree petition was allowed on 6-6-2000. In view of the provisions of Section 12 of the limitation Act, that date shall have to be excluded from reckoning for computing the period of limitation. Unfortunately, in this case, while the first copy application was pending with the court, the appellant filed another copy application on 17-7-2000 upon which the certified copy of the judgment was prepared on 29-7-2000. However, in the meanwhile, the appellant applied to the court to grant a requisite certificate as envisaged under Rule 6-A of Order 20 of the Code and the Court granted the requisite certificate on 6-8-2001 certifying that the decree had not yet been prepared. That gives him the right to file the appeal without enclosing the certified copy of the decree with the memorandum of appeal. That gives him the right to file the appeal without enclosing the certified copy of the decree with the memorandum of appeal. As can be seen from Section 12 of the Limitation Act and the explanation appended thereto, that will not absolve the party from filing the requisite copy application within time and the party cannot be permitted to take advantage of the same from filing the copy application at his own leisure point of time. ( 16 ) NOW the ticklish question that crops for consideration in this case having regard to the peculiar facts is that the first copy application was filed on 6-6-2000 and while that application was pending, second copy application was filed on 17-7-2000. The certified copy of the order passed in i. A. No. 127 of 1998 shows that it was granted pursuant to the second copy application filed by the appellant on 17-7-2000. Although the party is entitled to file the appeal after having obtained the requisite certificate, in which event the time occupied till then should be excluded, that will not give the necessary right to the appellant to exclude the time in between the date of order and the date of the copy application filed. Either in the case where the certified copy of the order and decretal order have been obtained or in the case where the appeal can be filed dispensing with the decree by appending necessary certificate obtained from the court for not drafting the decree, the period requisite shall have to be reckoned only in accordance with Section 12 of the Limitation act. The provision clearly ordains that the day on which the judgment or order is pronounced, that day shall have to be excluded and further the time requisite for obtaining the certified copy of the order or the decree as the case may be shall have to be excluded for computing the period of limitation. For that purpose, the copy application shall invariably have to be filed not later than the next date of passing the order or the judgment as the case may be, inasmuch as the time begins to run since then, and continues to run. If there is any delay, that delay will not enure to the benefit of the party and the party has to pay for his own laches. If there is any delay, that delay will not enure to the benefit of the party and the party has to pay for his own laches. Here in this case the first copy application was filed on 6-6-2000 on the very date on which the order was pronounced, but the copy was not granted to him and that copy application seems to have been returned to him on 16-1 -2001. The certified copy of the order, which is now annexed to the Memorandum of appeal has been granted pursuant to the second copy application filed by him on 17-7-2000. Therefore, from 6-6-2000 to 16-7-2000, the period shall have to be reckoned in accordance with the provisions of Section 12 of the Limitation Act. That means by excluding the date on which the Judgment is pronounced and by excluding the time requisite for obtaining the copy, provided the copy application is filed within time. In that view of the matter, from 7-6-2000 to 16-7-2000, the period in between cannot be excluded as requested by the appellant in this case, because of the fact that there had been no copy application filed by him for obtaining the necessary certified copy of the order. The contention of the appellant that the second copy application dt. 17-7-2000 shall be treated as continuation to the first copy application which has been filed within time, merits no consideration, for the simple reason that there is no provision under which that copy application can be treated as continuation to the other copy application as rightly contended by the learned senior counsel appearing for the respondents. ( 17 ) IT may be reiterated here that the provisions of Rule 6-A of Order-20 of the code, can be invoked only when there is a copy application filed well within the time in accordance with the provisions of Section 12 of the Limitation Act. It is no doubt true that the appellant is entitled to file the appeal on 7-8-2001, because of the fact that the requisite certificate as enjoined in Rule 6-A of Order-20 of the Code was granted to him on 6-8-2001 excluding that date. It is no doubt true that the appellant is entitled to file the appeal on 7-8-2001, because of the fact that the requisite certificate as enjoined in Rule 6-A of Order-20 of the Code was granted to him on 6-8-2001 excluding that date. But by which time, he must obtain the order and if for any reason, the certified copy of the order has not been granted, he is entitled to get that period excluded till such time the certified copy of the order is made ready. But in the instant case, the certified copy of the order was granted even earlier to the requisite certificate granted by the court at his request mentioning inter alia that the decree in this case had not been prepared as yet. Having obtained the certified copy of the order, the appellant is no more entitled to file the appeal beyond the period of 7-8-2001. However, in this case, the appeal was filed on 20-8-2001 by which date, already 14 days have been elapsed in between. As discussed hereinabove, from 7-6-2000 to 17-7-2000, there was a clear delay of 41 days in filing the copy application. Therefore, here is a case where the appeal has been filed after 55 days. When the period is reckoned in accordance with the provisions of Section 12 of the limitation Act r/w. Order 20, Rule 6-A of the cpc, by the date, the Memorandum of appeal has come to be filed, it is clearly beyond the period of limitation as prescribed under Article 116 of the Limitation act. In that view of the matter, there is nothing to interfere with the order now being impugned. ( 18 ) SINCE it is an appeal sought to be filed, even if there is delay, the parties can show sufficient cause before the court for condoning the delay. Unfortunately in this case, no such application has been filed by the appellants seeking condonation of delay. Therefore, there had been no occasion for the first appellate cou. t to consider as to whether there had been a sufficient cause to condone the delay or not. Unfortunately in this case, no such application has been filed by the appellants seeking condonation of delay. Therefore, there had been no occasion for the first appellate cou. t to consider as to whether there had been a sufficient cause to condone the delay or not. Perhaps on account of the firm conviction on the part of the learned counsel for the appellant that there had been no delay in filing the appeal, inasmuch as the decree had not been drafted, no requisite application seeking condonation of delay had been filed, nor a request orally was made for condonation of delay. To render substantial justice to the parties, I am of the considered view that an opportunity shall be given to the parties to file necessary application seeking condonation of delay and an opportunity shall be given to the respondents to put-forth their case and after hearing the parties, the court shall decide as to whether there is sufficient cause to condone the delay or not. In that view of the matter, the matter shall have to be remitted to the court below for the limited purpose of allowing the parties to put- forth their case on the point of sufficient cause or otherwise for condonation of delay of 55 days in filing the appeal. ( 19 ) THE appeal is allowed accordingly, and the matter is remitted to the court below, so as to enable the appellant to file an application seeking condonation of delay, and to decide the same on merits after affording an opportunity to both the parties to lead evidence or address arguments. Under the circumstances, there shall be no order as to costs.