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2022 DIGILAW 1265 (CAL)

Atish Kumar Mukherjee v. Nitish Kumar Mukherjee

2022-09-02

I.P.MUKERJI, SUBHENDU SAMANTA

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JUDGMENT : I.P. Mukerji, J. 1. This appeal is from a judgment and decree made on 16th July, 2018 by the learned Civil Judge (Senior Division), 3rd Court at Paschim Medinipur in Title Suit No. 67 of 2013. The appeal is from a preliminary decree for partition of the suit property after declaration of shares of the parties. 2. Learned counsel for the respondents says that we have no determination over this appeal and that another bench has determination. 3. The determination of this bench is, inter alia, as follows:- “FROM 20TH JUNE, 2022 (MONDAY) - ALL MATTERS RELATED TO PONZI SCHEME; ADMISSION OF APPEALS UNDER ORDER XLI RULE 11 OF THE CODE OF CIVIL PROCEDURE 1908 INCLUDING APPLICATIONS CONNECTED THERETO (2017 ONWARDS).” 4. The determination of another division bench is, inter alia as follows:- “FROM 20TH JUNE, 2022 (MONDAY) - FIRST APPEAL AND FIRST MISCELLANEOUS APPEAL AND APPLICATIONS CONNECTED THERETO (2016 ONWARDS).” 5. Before I enter into the substance of his argument, I would like to set out Rule 17 of Chapter V relating to the general rules of procedure of the appellate side rules of our court:- “17. The officer to whom the memorandum is presented under Rule 14 of this Chapter shall endorse on every such Memorandum the date of the presentation and shall send the same to the Stamp Reporter. The officer to whom the memorandum is presented under Rule 14 of this Chapter shall endorse on every such Memorandum the date of the presentation and shall send the same to the Stamp Reporter. The Stamp Reporter, if the memorandum is not barred by limitation and is sufficiently stamped and complies with the provisions of these Rules, shall record a Report to that effect and shall, after the Officer-in-Charge of the Judicial Department has scrutinised the Memorandum and has satisfied himself that the stamps have been properly punched and defaced under the Rules and that there are no obvious defect - (a) in the case of an Appeal from an Original Decree, an Appeal under the Workmen's Compensation Act, an Appeal from an Order under Article 226 of the Constitution [an Appeal under the Indian Railways Act, 1890 (Act 4 of 1890), an Appeal under the Motor Vehicles Act, 1988], an appeal preferred under section 37(I)(b) of the Arbitration and Conciliation Act, 1996 thereby setting aside an arbitral award under section 34 of the said Act, a First appeal against a "deemed decree" provided in any statute, if the said "deemed decree" is not passed in execution proceedings, admit it and cause it to be registered and Notice to issue to the Respondent, (b) in the case of an Appeal from an Appellate Decree or an Appeal from an Order, other than an Appeal under the Workmen's Compensation Act, an appeal from an order under Article 226 of the Constitution, [an appeal under the Indian Railways Act, 1890 (Act 4 of 1890), an Appeal under the Motor Vehicles Act, 1988] and first appeal against deemed decrees passed in execution proceedings, second appeal against deemed decree, all appeals under section 39 of the Arbitration Act, 1940, all other appeals under section 37 of the Arbitration and Conciliation Act except the appeals preferred under section 37(1)(b) thereby setting aside an arbitral award under section 34 of the said Act admit it, cause it to be registered, and posted to a Bench for hearing under Order XLI, Rule 11, Civil Procedure Code, and (c) in the case of a memorandum of Objection under Order XLI, Rule 22 or 26, Civil Procedure Code, admit it and cause it to be registered.” 6. Learned counsel argues that the appeal is from an original decree. Learned counsel argues that the appeal is from an original decree. Under rule 17(a) the stamp reporter shall “admit it and cause it to be registered and notice to issue to the respondent”. Unlike the appeals in Category (b), it is not required to be sent to this bench “for hearing under Order 41 Rule 11 of the Civil Procedure Code”. 7. A confusion has been created by chapter 5 rule 17 of the appellate side rules. It has created two categories of appeals – (a) and (b). Under category (a) the appeal is received by the department “admitted by it and registered”. In the second category (b) it is admitted by the department and posted to a bench “for hearing under Order 41 Rule 11 of the Civil Procedure Code.” 8. Section 4 of the Civil Procedure Code recognizes the primacy of any special rules or procedure or local laws (e.g. the appellate side rules) unless the code is specifically or expressly contrary to it. In that case, the provisions of the code would prevail. 9. Now, it is to be seen whether these long standing rules on the appellate side are in conflict with the code or not? 10. Order 41 Rule 1 says that the memorandum of appeal shall be presented to the court or to such officer as it appoints in this behalf. 11. Rule 9 provides that the court shall entertain the memorandum of appeal and shall endorse on it the date of presentation and thereafter, register the appeal in a book of appeal. When this kind of departmental procedure is being prescribed by the code, it does not use the word ‘admit’, but says that the registry shall “entertain the memorandum of appeal.” 12. Now let us come to Rule 11. After registration of the memorandum of appeal, it is sent to the court on a day fixed for it. Under sub-rule 1, the court has the power after hearing the appellant to dismiss the appeal. In other words, without reference to the respondent, the court can dismiss the appeal, if it finds it unmeritorious. Under sub-rule 2 if the appellant does not appear, the court has the power to dismiss the appeal for default. 13. Under sub-rule 1, the court has the power after hearing the appellant to dismiss the appeal. In other words, without reference to the respondent, the court can dismiss the appeal, if it finds it unmeritorious. Under sub-rule 2 if the appellant does not appear, the court has the power to dismiss the appeal for default. 13. Under sub-rule 12 if the court does not dismiss the appeal under Rule 11, it shall fix a date for hearing of the appeal after complying with the procedure of service of notice of appeal. (Rule 14). 14. The Code of Civil Procedure does not give any power to the registry or department to admit appeals in the real sense. It only gives power to the registry to register the appeals. Thereafter, the memorandum of appeal is to be put up before the court for admission or dismissal. 15. Under chapter 5 rule 17 of the rules appeals are split into two categories. In one category (a), the department has the power of admitting the appeal, register it and issue notice to the respondent. This implies that the appeal is not only admitted but the process for hearing of the appeal by issuance of notice of appeal and thereafter preparation of paper book etc. is also set into motion. If that be the case, this part of the rule is expressly inconsistent with Order 41 rule 11 of the Civil Procedure Code which gives power only to the court to dismiss an appeal at the threshold. Hence, if an appeal under rule 17(a) is liable to be dismissed at the threshold under Order 41 Rule 11, it has to undergo the full procedure for getting an appeal ready for hearing before it can be so dismissed. Only appeals under category 2b can be dismissed under the procedure in Order 41 rule 11. 16. Moreover, the department has not been given any power by the Code of Civil Procedure to admit appeals which is the sole prerogative of the court. 17. The question of validity of the said rules was not before us. Hence, we cannot declare them to be invalid. 18. Rule 17 of Chapter V of the Appellate Side Rules appears to be incompatible with the provisions of Order 41 of the Civil Procedure Code. 19. 17. The question of validity of the said rules was not before us. Hence, we cannot declare them to be invalid. 18. Rule 17 of Chapter V of the Appellate Side Rules appears to be incompatible with the provisions of Order 41 of the Civil Procedure Code. 19. Since the rules are statutory, in our opinion, the matter needs to be referred to the Rule Committee, to consider our observations and to recommend, if it so deems fit, any amendment to the said rule. 20. As long as the said rules are not declared invalid, they are deemed to be valid. Given the existence of the above rules, the objection of learned counsel for the respondent is sustained. 21. We release the appeal and application from our list. Let the file be placed before the Stamp Reporter for taking steps in the matter. We also direct a copy of this order to be sent to the learned Registrar General to take suitable action in terms thereof. 22. Certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities. I agree. - Subhendu Samanta, J.