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2014 DIGILAW 903 (KER)

Reetha v. Paul

2014-11-11

V.CHITAMBARESH

body2014
Judgment : 1. Conflicting administrative directions issued by this Court as to the necessity for producing a copy of the decree along with the Memorandum of Appeal have placed the litigants and their counsel in a quandary. The difficulty is encountered very often and hence I heard Mr. K.A. Salil Narayanan, Advocate on behalf of the appellant and Mr. G. Unnikrishnan, Advocate as Amicus Curiae. 2. This is an application to condone the delay of 705 days in re-presenting the Regular Second Appeal after curing the defects which included the failure to produce the copy of the decree along with the memorandum. The Registry of this Court has taken a stand that the Regular Second Appeal cannot be numbered unless the memorandum is accompanied by the original and appellate decree. The Court Fee Examiners and Section Officers have been cautioned that only the court can dispense with the production of the decree for a Regular Second Appeal to be numbered. The time consumed for obtaining the decree of the trial court in the instant case has resulted in the delay in re-presenting the Regular Second Appeal of which condonation is sought. 3. An appeal would lie under Section 96 of the Code of Civil Procedure, 1908 (the 'CPC' for short) only from the original decree and not from a judgment as is evident by the scheme of the statutory provisions. Section 96 of the CPC is as follows:- 96. Appeal from original decree.- (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force; an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. (2) An appeal may lie from an original decree passed ex parte. (3) No appeal shall lie from a decree passed by the Court with the consent of parties. (4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject matter of the original suit does not exceed ten thousand rupees. " The Supreme Court has reiterated this principle in Banarasi Vs. Ram Phal [ (2003) 9 SCC 606 ] as follows: "No appeal lies against a mere finding. " The Supreme Court has reiterated this principle in Banarasi Vs. Ram Phal [ (2003) 9 SCC 606 ] as follows: "No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 CPC provide for an appeal against decree and not against judgment." 4. The decree shall agree with the judgment and it shall contain inter alia the particulars of the claim and shall specify clearly the relief granted or other determination of the suit under Order XX Rule 6 of the CPC. The Code of Civil Procedure (Amendment) Act, 1999 (Act No. 46 of 1999) has brought in provisions regarding the preparation of the decree as well as the availability of the copies of the judgments. Rules 6A and 6B of Order XX of the CPC are as follows:- "6A. Preparation of decree.- (1) Every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible andin 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 purpose. 6B. Copies of judgments when to be made available.-Where the judgment is pronounced-copies of the judgment shall be made available to the parties immediately after the pronouncement of the judgment for preferring an appeal on payment of such charges as may be specified in the rule made by the High Court. " Thus every endeavour should be made to ensure that the decree is drawn up as expeditiously as possible and within an outer time limit of fifteen days from the date on which the judgment is pronounced. An appeal can be preferred without filing a copy of the decree and the judgment shall cease to have the effect of a decree for the purpose as soon as the decree is drawn by the respective court. 5. Order XLI Rule 1 of the CPC as it stood before amendment is as follows:- "1. An appeal can be preferred without filing a copy of the decree and the judgment shall cease to have the effect of a decree for the purpose as soon as the decree is drawn by the respective court. 5. Order XLI Rule 1 of the CPC as it stood before amendment is as follows:- "1. (1) Form of appeal.- what to accompany memorandum.-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 decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded." Order XLI Rule 1 of the CPC after amendment by the Code of Civil Procedure (Amendment) Act, 1999 (Act 46 of 1999) has obviated the necessity of the memorandum of appeal to be accompanied by a copy of the decree. The amended provision reads as follows:- "1. Form of appeal.- What to accompany memorandum.-(1) 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. Provided that where two or more suits have been tried together and a common judgment has been delivered therefore and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the Appellate Court may dispense with the filing of more than one copy of the judgment." The amendment to Order XLI Rule 1 of the CPC by Act 46 of 1999 was conscious to be in tune with Order XX Rule 6 A(2) of the CPC and hence the memorandum of appeal need be accompanied by a copy of the judgment only. The rules contained in Order XLI shall apply to appeals in this Court with the modifications contained in Order XLI -A and shall apply so far as may be to appeals from appellate decrees under Order XLII Rule 1 of the CPC. The rules contained in Order XLI shall apply to appeals in this Court with the modifications contained in Order XLI -A and shall apply so far as may be to appeals from appellate decrees under Order XLII Rule 1 of the CPC. The impact of the amendment to Order XLI Rule 1 of the CPC by Act 46 of 1999 has not been considered in the following decisions even though other statutory provisions are dealt with: (i) Salem Advocate Bar Association, T.N. Vs. Union of India [ (2003) 1 SCC 49 ]. (ii) Salem Advocate Bar Association, T.N. Vs. Union of India [ (2005) 6 SCC 344 ]. 6. Certain amount of trust should be reposed on the counsel as regards the valuation shown in the memorandum of appeal and the Registry can verify this in case of doubt with the copy of the plaint available with him. Atleast the copy of the decree of the trial court can be produced along with the memorandum of second appeal even if the decree of the appellate court has not been drawn up. The decree of the appellate court has necessarily to be produced later since the judgment will cease to have the effect of a decree as soon as the decree is drawn up under Order XX Rule 6A(2) of the CPC. After all any one of the respondents is free to bring to the notice of the court about the defect in valuation or the non-joinder of necessary parties after he enters appearance in the Regular First Appeal or Regular Second Appeal. Similar is the case when the dispute centres around the item, extent or survey number of the plaint schedule property about which the respondent can very well alert the court. There is also no fetter for this Court to frame rules regulating the procedure under Section 122 of the CPC specifying the time limit within which the decree shall be produced. The decree need be produced by the appellant only if the appeal is not dismissed under Order XLI Rule 11 of the CPC or as time barred or for any other reason. Under no circumstances shall a Regular First Appeal or Regular Second Appeal be refused to be numbered for the reason that the memorandum is not accompanied by a copy of the impugned decree. 7. Under no circumstances shall a Regular First Appeal or Regular Second Appeal be refused to be numbered for the reason that the memorandum is not accompanied by a copy of the impugned decree. 7. The appellant has now cured the defect noted by the Registry by producing the copy of the original decree and the appellate decree and the delay in re-presenting the Regular Second Appeal is condoned. The Amicus Curiae who rendered valuable assistance to this Court about the amplitude of the amendments brought to the CPC on this particular issue deserves a rich encomium. The Civil Miscellaneous Application is allowed. The Registry is directed to number the Regular Second Appeal and post the same for admission as per roster.