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Gauhati High Court · body

2010 DIGILAW 311 (GAU)

Commissioner-Cum-Secretary v. Shaman Enterprise

2010-05-04

BIPLAB KUMAR SHARMA, C.R.SARMA

body2010
JUDGMENT B.K. Sharma, J. 1. Heard Mr. P.K. Tiwari, learned Counsel appearing for the Appellants/Defendants as well as Mr. B. Dutta, learned Counsel representing the Respondent/Plaintiff. 2. Although Mr. Tiwari, learned Counsel for the Appellants by his letter dated 08.04.10 addressed to the Deputy Registrar of this Court has expressed certain reservations in arguing the case on behalf of the Appellants, but he submits that he is ready to argue the case on admission hearing and that the future course of action in the matter so far as his engagement by the Appellants is concerned, will be decided later on. 3. In view of the above submissions, we have heard the learned Counsel for the parties on admission hearing. Mr. Tiwari, learned Counsel for the Appellants submits that in tarns of the earlier orders passed by this Court and to be precise the order dated 23.03.10, the Appellants have filed the certified copy of the decree today pertaining to the impugned judgment. He submits that even without the decree the appeal can be admitted. According to him, having regard to the facts and circumstances involved in the case, it is a fit case for admitting the appeal. 4. Mr. B. Dutta, learned Counsel for the Respondent/Plaintiff on the other hand submits that although the appeal was filed within 87th day of obtaining the certified copy of the judgment, but the appeal having not accompanied with the decree and the decree having been filed only today after expiry of the period of limitation, the appeal cannot be admitted without first condoning the delay for which there is no prayer on behalf of the Appellants. 5. To buttress the aforesaid argument, Mr. Dutta, learned Counsel for the Respondent/Plaintiff has placed reliance on the decision of the Apex Court reported in (2009) 5 SCC 162 : Nawab Shaqafath Ali Khan and Ors. v. Nawab Imdad Jah Bahadur and Ors. Since he has placed reliance on paragraph- 36 of the judgment, same is quoted below: 36. The findings rendered in the order dated 21.07.1999 did not amount to a decree. The suit was not finally disposed of thereby. No appeal lay against a mere finding. An appeal would be maintainable only when a decree is passed. The matter might have been otherwise if a decree was to be recorded formally pursuant to the decision so rendered. The findings rendered in the order dated 21.07.1999 did not amount to a decree. The suit was not finally disposed of thereby. No appeal lay against a mere finding. An appeal would be maintainable only when a decree is passed. The matter might have been otherwise if a decree was to be recorded formally pursuant to the decision so rendered. It was not considered to be even an order passed in terms of Order 14, Rule 2 of the Code of Civil Procedure. Once the civil revision applications were held to be not maintainable ordinarily the High Court should not have entered into the merits of the matter. 6. In addition to the above, Mr. Dutta, learned Counsel for the Respondent/Plaintiff has also submitted that as per the requirement of Order 41, Rule 1, the appeal must be accompanied by the certified copy of the decree and judgment, but in the instant case the appeal having been filed without the certified copy of the decree and the filing of the certified copy of the decree after expiry of the period of limitation cannot save the appeal from being bared by limitation. 7. Countering the above argument, Mr. Tiwari, learned Counsel for the Appellants has made a distinction between pre-amended provision of Order 41, Rule 1 and the amended provision (2002) of the same. He submits that as per the amendment made to Order 41, Rule 1, it is not necessary to enclose the certified copy of the decree alongwith the appeal and that the certified copy of the judgment serves the purpose. He submits that since the preparation of the decree is a ministerial work and the judgment contains the reasons thereof, it is sufficient to file the appeal with the certified copy of the judgment He has also referred to Order 20, Rule 6(A)(2) of the Code of Civil Procedure so as to contend that the appeal may be preferred against the decree without filling the same. 8. We have considered the rival submissions made by the learned Counsel for the parties. 9. 8. We have considered the rival submissions made by the learned Counsel for the parties. 9. The judgment in Nawab Shaqafath Ali Khan (supra) is not at all applicable as the above quoted para 36 of the judgment itself indicates that the suit was not finally disposed of Order 41, Rule 1provides for form of appeal and as to what to accompany memorandum, provides that every appeal shall 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 this behalf The memorandum shall be accompanied by a copy of the 'judgment'. The expression 'judgment' has been incorporated by an amendment effective from 01.07.2002. It will be appropriate at this stage to refer to the pre-amended provision. Under Order 41, Rule 1 which is quoted below: Form of appeal. What to accompany memorandum- (1) Every appeal shall be preferred in the from of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded. (emphasis added) 10. From the above, what is seen is that by the amendment the expression "memorandum shall be accompanied by the copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded" has been substituted by 2002 Amendment by the expression "memorandum shall be accompanied by a copy of the judgment". Thus, in the amendment there is no mention of the copy of the decree. The only mention is of the copy of the judgment. 11. Although Mr. Dutta, learned Counsel for the Respondent/Plaintiff submits that irrespective of the fact that by the amendment the expression "copy of the decree" has been omitted and it is substituted by the expression "copy of the judgment", as per the requirement of law, it is incumbent on the part of the Appellants to file the certified copy of the decree alongwith the appeal. In this connection he has also referred to Section 116 of the Limitation Act, 1963 which provides that an appeal should be preferred within 90 days from the date of the decree or order. 12. In this connection he has also referred to Section 116 of the Limitation Act, 1963 which provides that an appeal should be preferred within 90 days from the date of the decree or order. 12. We are unable to accept the aforesaid submission of Mr. Dutta, learned Counsel for the Respondent/Plaintiff for the simple reason that by Amendment of 2002 in the Code of Civil Procedure, the Legislature have intentionally omitted the expression "copy of the decree" and the same has been substituted by the expression "copy of the judgment". Had it been the intention of the Legislature that while preferring the appeal same must be accompanied with the certified copy of the decree, there would not have any occasion for them to omit the expression "copy of the decree" as it existed prior to the amendment of 2002. Section 116 of the Limitation Act, 1963 will have to be understood in the context of the provision as contained in the Order 41, Rule 1 prior to the amendment of 2002. 13. Order 20, Rule 6 also makes the petition clear. For a ready reference, same is quoted below: 6A. Preparation of decree - (1) 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. (2) An appeal may be preferred against the decree without filing a copy of the decree and in such a case the copy made available to the party by the Court shall for the purposes of Rule 1 of Order XLI be treated as the decree. But as soon as the decree is drawn, the judgment shall cease to have the effect of a decree for the purposes of execution or for any other purposes. 14. It is in this context, Mr. Tiwari, learned Counsel for the Appellants has submitted that since drawing of a decree pursuant to a judgment is a ministerial work, its preparation creates some amount of uncertainty and even it is the experience that the decree is shown drawn on a back date. Be that as it may, since even before the amendment of 2002 the provision as contained in the Order 20, Rule 6A made the position clear, we are of the considered opinion that the objection raised by Mr. Be that as it may, since even before the amendment of 2002 the provision as contained in the Order 20, Rule 6A made the position clear, we are of the considered opinion that the objection raised by Mr. Dutta, learned Counsel for the Respondent/Plaintiff that the appeal is barred by limitation, is not sustainable in law. 15. For all the aforesaid reasons, we are not inclined to accept the plea of Mr. Dutta that the appeal should be treated as bared by limitation in view of the fact that the certified copy of the decree has been filed at a later point of time. The Certified copy of the judgment having been filed alongwith the appeal well within the period of limitation, we are of the considered opinion that the appeal is well within the time. 16. The appeal is admitted. Records be called for. 17. Mr. Dutta, learned Counsel, accepts notice on behalf of the Respondent/Plaintiff. 18. Since the parties have entered appearance, an endeavour shall be made to dispose of the appeal as expeditiously as possible for which the parties may make mention after one month. Appeal disposed of.