Research › Search › Judgment

Orissa High Court · body

2015 DIGILAW 576 (ORI)

Girish Mahanaik v. Kartika Mahanaik

2015-10-06

D.DASH

body2015
JUDGMENT This appeal has been filed challenging the order passed by the learned District Judge, Mayurbhanj in R.F.A. No.17 of 2012 rejecting the application under Section 5 of the Limitation Act and refusing to condone the delay in filing the appeal and consequently dismissing the same. 2. The appeal has been admitted on the following substantial question of law: “Whether the learned lower appellate Court is justified in law in holding that each day of delay is required to be explained by the person who is seeking relief under Section 5 of the Limitation Act?” 3. These appellants were the defendants in Civil Suit No.267 of 2007 of the Court of the Civil Judge (Sr. Division), Baripada. The said suit had been filed by the respondent nos.1 to 5 as the plaintiffs for partition of the joint family properties. By judgment dated 14.09.2009 followed by decree dated 05.10.2009, the suit was disposed of by passing a preliminary decree. No appeal was carried by any of the parties. Thereafter, the plaintiffs filed a petition for making the preliminary decree final. In that final decree proceeding, these defendants being noticed did not raise any objection. The trial Court deputed Civil Court Commissioner to make division of the property in accordance with the preliminary decree keeping in view the directions contained therein. By order dated 19.02.2011, the said report of the Civil Court Commissioner was accepted and thereafter stamp paper being supplied, the final decree was engrossed on it and that was sealed and signed on 17.03.2011. The plaintiffs then filed a petition for execution of the said final decree which was numbered as Execution Case No.17 of 2011. These appellants being shown as the judgment debtors on 28.10.2011 entered appearance in that execution case being noticed. Thereafter, they challenged the final decree dated 17.03.2011 (as stated in the memorandum of appeal) by presenting the memorandum of appeal in the Court of the learned District Judge, Mayurbhanj on 26.03.2012. In fact, the trial Court by order dated 19.02.2011 had accepted the report of the Civil Court Commissioner and passed an order that the preliminary decree is made final with the said report and its annexure forming a part of the final decree. In fact, the trial Court by order dated 19.02.2011 had accepted the report of the Civil Court Commissioner and passed an order that the preliminary decree is made final with the said report and its annexure forming a part of the final decree. In the eye of law, the date of final decree thus is 19.02.2011 and not the date when it was engrossed on the stamp paper and sealed and signed, i.e., on 17.03.2011. So in that way, the appeal before the lower appellate Court as laid was incompetent and, in fact, was not maintainable as the said order by which the report was accepted and final decree was passed being not challenged within the period of limitation as prescribed, i.e., by 21.03.2011, the same had already attained finality. This has unfortunately been lost sight of by the lower appellate Court. The settled position of law is that once the preliminary decree is made final by acceptance of the report of the Commissioner, for the purpose of challenging the same, the period spent thereafter for the purpose of engrossment on the stamp paper does not enure to the benefit of the challengers and the legal effect of the final decree for the purpose of being challenged does not get suspended for its nonengrossment on stamp paper on account of delay in supplying the stamp papers. Even the period of limitation for the purpose of filing execution of the said final decree starts to run from that day onwards although for the final decree being executable, it is required to be engrossed on the stamp paper. So, that order dated 19.02.2011 having not been challenged by carrying the appeal within time, even upon condonation of delay as prayed for, the lower appellate Court could not have gone to set aside the final decree sealed and singed on 17.03.2011 being engrossed on stamp paper which is precisely the prayer in the memorandum of appeal filed in the lower appellate Court when also the certified copy of the order dated 19.02.2011 had not been filed along with that memorandum of appeal. Here the first order of acceptance of the Civil Court Commissioner’s report as passed on 5.12.2013 is not conditional. There the report of the Commissioner had been accepted in toto. Here the first order of acceptance of the Civil Court Commissioner’s report as passed on 5.12.2013 is not conditional. There the report of the Commissioner had been accepted in toto. Thus it appears that the lower appellate Court has proceeded with the matter without being alive to the settled position of law. 4. 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. 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. 5. 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. 5. 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 the 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 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.” 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 under:- “(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.” 6. It therefore follows that the decree becomes enforceable the moment the judgment is delivered and merely because there will be delay in drawing 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, in my considered view, the appeal filed by the appellant in the lower appellate Court was incompetent and not maintainable in the eye of law. 7. That apart even assuming for a moment that in the said appeal the order dated 19.02.2011 was called in question then also there had been delay of 400 days. It may be mentioned here that the period of delay as calculated by the lower appellate Court without crossverifying the office note is an error on its part. In that way the delay is coming to be 366 days even by allowing time spent for obtaining certified copy. It reveals from the case record that these appellants were very much contesting the suit and in that final decree proceeding notices were duly served and made sufficient but they have chosen to remain absent. In that way the delay is coming to be 366 days even by allowing time spent for obtaining certified copy. It reveals from the case record that these appellants were very much contesting the suit and in that final decree proceeding notices were duly served and made sufficient but they have chosen to remain absent. Thereafter, in the execution case they were also served with notice and having entered appearance on 28.10.2011 through their counsel had prayed for grant of time to file objection which was allowed. The ground taken for the condonation of delay in filing the appeal is that the appellants were not aware of the final decree proceeding and the same was passed without their knowledge and especially the appellant no.1 had not personally received the notice. Be that as it may, notice was personally served on both the appellants in the execution case where upon they appeared. But there remains absolutely no explanation as to what prevented them at least since 28.10.2011 till 25.03.2012. Even it is seen that they have applied for obtaining the certified coy of sealed and singed final decree only on 03.03.2012. Thus here is a case where the explanation lacks bonafides and does not have even the semblance of credibility. The utter negligence of the appellants is clearly exposed and the highly belated move in such matter when a valuable right has already accrued in favour of the respondents is not excusable in the facts and circumstances of the case. 8. It has been held in case of Maniben Devraj Shah vs. Municipal Corpn. of Brihan Mumbai; (2012) 5 SCC 157 , this Court referred to some of the judicial precedents in para 23 and 24 as under:- “23. What needs to be emphasized is that even though a liberal and justice-oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. 24. What colour the expression ‘sufficient cause’ would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. 24. What colour the expression ‘sufficient cause’ would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.” 9. In the light of the above laid down propositions, when the case in hand is examined, the explanation given by the appellants for the delay of 400 days appears to be such that its acceptance would not be a legitimate exercise of discretion in condoning the delay. The substantial question of law thus is accordingly answered which runs against the appellants. 10. Resultantly, the appeal stands dismissed and in the facts and circumstances with cost throughout. Appeal dismissed.