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2015 DIGILAW 474 (ORI)

Prabhakar Panigrahy v. Subash Chandra Panigrahy

2015-08-13

D.DASH

body2015
JUDGMENT 1.This appeal has been filed challenging the judgment and decree passed by the learned 2nd Addl. District Judge, Berhampur in RFA No.40 of 2014 confirming the order of final decree dated 23.06.2014 passed by the learned Civil Judge (Sr, Divn.), Berhampur in C.S. No.58 of 2009. The appellant being the defendant no.1 in C.S. No.58 of 2009 had challenged the final decree passed in the said suit by carrying the above appeal which has come to be heard and disposed of by the learned 2nd Addl. District Judge, Berhampur. The appeal having been dismissed and final decree passed by the trial Court having been confirmed, now in the appeal before this Court, the said final decree in C.S. No.58 of 2000 is further challenged. 2.For the sake of convenience, in order to bring in clarify and avoid confusion, the parties hereinafter have been referred to as they have been arrayed in the Court below. 3.The respondent nos. 1 to 6 as the plaintiffs filed C.S. No.58/2009 in the Court of Civil Judge (Sr Divn), Berhampur against defendant no.1 and two others. In the said suit, the defendant no.1 alone contested and finally after hearing, the suit for partition of the property described in the schedule of the plaint was preliminary decreed. Prayer for making the preliminary decree being made, Civil Court Commissioner was deputed to make the division in accordance with preliminary decree. Report having been submitted, the defendant no.1 filed the objection. However, by order dated 5.12.2003, said objection was overruled and the report of the Commissioner was accepted. Therefore date was fixed for furnishing the non-judicial stamp papers which is obviously for engrossment of the final decree upon the same. On 23.6.2014, formal order for drawal of the final decree was made quoting the preliminary decree and the part of the report of the Survey Knowing Commissioner. On that occasion there has been no adjudication in respect of anything concerning the subject matter or touching the rights and liability of the parties in any manner and that order dated 23.6.2014 was challenged in appeal. On that occasion there has been no adjudication in respect of anything concerning the subject matter or touching the rights and liability of the parties in any manner and that order dated 23.6.2014 was challenged in appeal. 4.Learned counsel for the appellant submits that in the present case, the Survey Knowing Commissioner having no competence or expertise to make valuation of the property when has done so and has accordingly prepared the report, the Courts below having not given due attention on that score of valuation and without considering for a moment as to if said valuation if proper or not ought not to have acted upon it by passing the final decree on the basis of said report and making it a part of the final decree and that report on that account ought to have been rejected and follow up action afresh ought to have been taken up. Learned counsel for respondents appearing at this stage submits that the appeal is not maintainable since the appellant had himself sought for time to make payment. 5.On going through the certified copies of the order sheet placed before this Court in course of hearing of the appeal in the matter of submission, I am of the considered view that the appeal i.e.RFA No.40 of 2014 which has been heard and disposed of by the learned 2nd Addl. District Judge, Berhampur was not maintainable and thus incompetent in the eye of law as the appellant had no right of appeal against that order dated 23.06.2014. The appellate Court could not have dealt with it and decided in exercise of the jurisdiction under Section 96 of the Code of Civil Procedure in examining the property of the order of the trial Court in the matter of acceptance of the report of the Survey Knowing Commissioner or otherwise. This has been completely lost sight of by the lower appellate Court and so also it was not so raised by the respondents. However, this being an important and pure question of law, it is imperative to be delved into as any decision on merit in this appeal may again be having a stamp of gross illegality and also without jurisdiction. However, this being an important and pure question of law, it is imperative to be delved into as any decision on merit in this appeal may again be having a stamp of gross illegality and also without jurisdiction. The present appellant if so aggrieved by the order dated 5.12.2013 by which the report of the Commissioner was accepted having not challenged it by carrying an appeal in exercise of his right of appeal, within the prescribed period of limitation, no appeal could have been preferred against the order dated 23.6.2014 which is just consequential giving no right of appeal against it. The following discussions and reasons are provided for the above view. 6.For better appreciation, the order of the trial Court needs reproduction:- “05.12.2013.xxxxxxxx Xxxxxxxxxxxx While going through the preliminary decree and the report submitted by the Commissioner this Court finds that the Commissioner report is in accordance with the preliminary decree. There is no discrepancy in the Commissioner report while comparing with the preliminary decree. So it is found that the allotment has been done by the Commissioner as per his report in confirmation with the preliminary decree. Hence the objection of the defendant nol.1 bears no merit and report is accepted. Call on 26.12.2013 for depositing non-judicial stamp.” The later order is as under :- “23.06.2014.xxxxxxxx Xxxxxxxxxxxxxx ORDER. The suit is finally decreed. The partition of the decreetal suit property as shown in the report and sketch map prepared by the Civil Court Commissioner is hereby allotted in the respective share of the parties. Plaintiff no.1, plaintiff no.4 and plaintiff no.3 are entitled to get Rs. 8,000/- (Eight thousand), Rs.98,000/- (Rupees ninety eight thousand) respectively. Plaintiff no.2 and defendant no.1 are liable to deposit of Rs.2,22,000/- (Rupees two lacs twenty two thousands) Rs.22,000/- (Rupees twenty two thousands) respectively before the Couirt within one month hence. For its distribution among plaintiffs no;.1, 4 and 3. Parties shall bear their respective cost. The report allotment sheet and the sketch map prepared by the Civil Court Commissioner shall form part of the decree. Office to draw decree.” 7.The first order of acceptance of the Civil Court Commissioner’s report as passed on 5.12.2013 is not conditional. For its distribution among plaintiffs no;.1, 4 and 3. Parties shall bear their respective cost. The report allotment sheet and the sketch map prepared by the Civil Court Commissioner shall form part of the decree. Office to draw decree.” 7.The first order of acceptance of the Civil Court Commissioner’s report as passed on 5.12.2013 is not conditional. In the later order, what has been stated as regards the payments by the parties is just the reproduction in brief as regards the payment between the parties inter se as stated in the report of the Civil Court Commissioner which had already been accepted by the earlier order. There the report of the Commissioner had been accepted in toto. It may be stated here that the trial Court was not required to pass this order on 23.06.2014 after its order dtd. 5.12.2013 and in that order before directing the parties to furnish stamp paper, it ought to have passed the order to the effect of passing of final decree with the report etc. of the Commissioner forming part of it and for its engrossment on the stamp paper on being supplied by the parties for its being duly sealed and signed. The trial Court thus appears to have committed these procedural mistakes without being alive to the legal procedures and further having gone to deliver it as judgment on contest. 8.The decree is defined in Section 2 (2) of the Code of Civil Procedure Under the explanation, it is explained that a decree is preliminary decree when further proceeding is taken before the suit can be completely disposed of and it is final when such adjudication completely disposes of the suit. The settled position thus is that a preliminary decree is one which declares the rights and liabilities of the parties leaving the actual result to be worked out in further proceedings when as a result of further inquiries conducted pursuant to the preliminary decree, the rights of the parties are fully determined and a decree is passed in accordance with such determination which is final. Both the decrees are in the same suit. Both the decrees are in the same suit. Final decree may be said to have attained its finality in two ways: (i) when the time for appeal has expired without any appeal being filed against the preliminary decree or the matter has been decided by the highest Court, (ii) When, as regards the Court passing the decree, the same stands completely disposed of. Section 96 of the Code provides that save as otherwise expressly provided in the body of the 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 authorized to hear appeals from the decision of such Court. So, an appeal certainly lies against the final decree subject to the restriction contained in Section 97 of the Code that where any party aggrieved by a preliminary decree does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. 9.At this stage, let us also have a look at the provision of Order 20 Rule 6-A of the Code as inserted in the Code by the Amendment Act of 1976 which is as under: “6-A: Last paragraph of judgment to indicate in precise terms and reliefs 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 purpose 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 ceased 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.” Thus, Rule 6-A enjoins as it was then:- “that the last paragraph of the judgment shall state in precise terms the relief which has been granted by such judgment. It has fixed the outer time limit of 15 days from the date of the pronouncement of the judgment within which the decree must be drawn up. It has fixed the outer time limit of 15 days from the date of the pronouncement of the judgment within which the decree must be drawn up. In the event of the decree not so drawn up, clause (a) of sub-rule (2) of Rule 6A enables a party to make an appeal under Rule 1 of Order XLI C.P.C. without filing a copy of the decree appealed against and for that purpose the last paragraph of the judgment shall be treated as a decree.” However, the same has been substituted by Amendment Act No.46 of 1999 in Section 28 which has come into force w.e.f. 1.7.2002 which reads as follows :- (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 purpose of execution or for any other purpose.” 10.It therefore follows that the decree becomes enforceable the moment the judgment is delivered and merely because there will be delay in drawn up of the decree, it cannot be said that the decree is not enforceable till it is prepared. Similarly, an appeal may be preferred against the decree without it being formally drawn up and without filing a copy of decree. So here the question arises as to which order is the order of passing of the final decree so that said date will be taken to be the date of passing of final decree; whether the date on which the report of the Civil Court Commissioner was accepted or the date thereafter that again formally in order of final decree is passed when as already stated that the first order was not a conditional one as regards acceptance of the Civil Court Commissioner report nor dependent upon any further inquiry whatsoever on any subject relating to the suit either directly or indirectly or even as ancillary or incidental thereto. At the cost of reputation, it may be stated that the order stating about the payment of money to be made by the parties inter se is just as was indicated in the report of the Civil Court Commissioner which had already been accepted in its entirety for all purposes .The report of the Civil Court Commissioner had been accepted in toto by order dated 5.12.2013 and that has been subsequently restated in the order dated 23.6.2014.So after order dtd. 05.12.2013, the parties were left with no option of questioning the legality or propriety of the report of the Commissioner on any of the aspects as indicated there and the only option was to question it by carrying it before the superior Court in a legally constituted proceeding as permissible in law within the prescribed period of limitation. 11.Now, Article 116 of the Limitation Act is required to be gone through and that says that the time for filing appeal under the Code of Civil Procedure to any Court other than High Court from a decree or order is thirty days and the time begins to run from the date of decree. It is the settled position of law that the date of decree is the date of judgment, though in fact decree may have been signed on a different date. The date of decree is the date on which the judgment is pronounced and not the date when the decree is signed. 12.The position of law has by now been well settled in case of Dr. Charanji Lal (D) by L.Rs. vs. Hari Das (D) by L.Rs: AIR 2005 SC 2564 referring to the earlier decisions in case of West Bengal Essential Commodities Supply Corporation vs. Swedesh Agro Farming and Storage Pvt. Ltd. and another: AIR 1999 SC 3421 . Balwant Lokhane (dead) by LRs. Vs. Chandrakant Shankar Lokhande. AIR 1995 SC 1211 and Hameed Joharan vs. Abdul Salam: AIR 2001 SC 3404 that engrossment of the final decree on stamp paper in a suit for partition would relate back to the date of the decree. Balwant Lokhane (dead) by LRs. Vs. Chandrakant Shankar Lokhande. AIR 1995 SC 1211 and Hameed Joharan vs. Abdul Salam: AIR 2001 SC 3404 that engrossment of the final decree on stamp paper in a suit for partition would relate back to the date of the decree. The enforceability of the decree does never get suspended for such non-engrossment of the final decree on the stamp paper and the time period for filing the appeal would run from the date when the final decree is passed and not from the date when it is engrossed on the stamp paper being supplied by any of the parties. In view of that the party not filing the appeal against the order of passing of final decree within the period prescribed in Article 116 of the Limitation Act cannot do so afterwards after expiry of period of limitation by computing the time period from the date of engrossment of the final decree on the stamp paper and get the benefit of exclusion of said time till engrossment of final decree on stamp paper for the purpose of filing the appeal against the final decree on the ground that since it was no so engrossed, he could not file the appeal. Even to execute the said final decree, the period of 12 years has to be computed from the date of order by which final decree is passed and not from the date of engrossment of the same on stamp paper since as provided in Article 136 of the Limitation Act, the decree becomes enforceable on the day it is passed i.e. the date of order and not on the day it is drawn and engrossed on stamp paper. The drawal and engrossment of the same on stamp paper is to make the decree executable and for fiscal purpose. The executability and enforceability altogether have different connotations. So for filing the execution of the final decree, the requirement is to file the final decree engrossed on stamp paper but to file appeal that is not the requirement and the certified copy of the order passing the final decree will suffice the purpose and if no appeal is filed within the time period from that order, the same would be final. The running of time period for appeal will not remain under suspension till its engrossment on stamp paper. The running of time period for appeal will not remain under suspension till its engrossment on stamp paper. 13.So in the present case, in my considered view, the date of passing of the final decree is 05.12.2013 when the report of the Commissioner was accepted in toto without any further condition leaving no further inquiry to be made and directing the parties to deposit of the stamp paper which is obviously for the purpose of engrossment of the final decree on the same. The subsequent order dated 23.6.2014 is just repeatation or reiteration being not the legal requirement. Thus, the order dated 5.12.2013 having not been called in question by filing an appeal within the time prescribed in Article 116 of the Limitation Act, the appeal preferred by the present appellant before the lower appellate Court against the order dated 26.3.2014 was not entertainable as by then the order dated 05.12.2013 had already attained its finality being not questioned within the period of limitation and the appellant had no right of appeal against the same. Thee was no right of appeal against the order dtd. 23.06.2014.the appeal filed under Section 96 of the Code also cannot be construed here to be an appeal against the order of final decree dtd. 05.12.2013 as by the time of filing the said appeal; the period for filing the appeal had long since expired and thus had become barred by limitation. That being so when the appeal under Section 96 of the Code was not maintainable and incompetent in the eye of law, this appeal under Section 100 of the Code challenging the judgment and decree passed in that first appeal is not legally maintainable. 14.In the result the appeal is dismissed as not maintainable and in the facts and circumstances without cost. Appeal dismissed.