Allahabad High Court
Mohd. Suleman (Since Deceased) And 24 ... vs Mohd. Sayeed Alias Banney Khan (Since ... on 19 May, 2017
Author: B. Amit Sthalekar
Bench: B. Amit Sthalekar
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Court No. - 5 Case :- SECOND APPEAL No. - 543 of 2017 Appellant :- Mohd. Suleman (Since Deceased) And 24 Others Respondent :- Mohd. Sayeed Alias Banney Khan (Since Deceased) & 30 Others Counsel for Appellant :- Manish Goyal Counsel for Respondent :- Mohammad Hisham Qadeer Hon'ble B. Amit Sthalekar,J.
Heard Sri Manish Goyal, learned counsel for the appellant and Sri M.A. Qadeer, learned Senior Counsel assisted by Sri Shamim Ahmed for the respondents no. 1/1, ½, 1/3, ¼/1, ¼/2, ¼/3, and ¼/4 This is the defendant's second appeal.
The memo of appeal states that the second appeal is against the judgment and decree dated 6.4.2017 passed by the court below in civil appeal no. 2 of 1995 arising out of original suit no. 10 of 1983.
A preliminary objection has been raised by Shri M.A. Qadeer, learned senior counsel that the appeal is not maintainable as it has been preferred against the judgment and not the decree inasmuch as the date mentioned as 6.4.2017 is the date of the judgment and not the date of the decree. Shri Qadeer submits that "decree" has been defined in section 2(2) of the Code of Civil Procedure, 1908 (C.P.C.) to mean formal expression of adjudication which so far as regards the Courts expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of the plaint and determination of any question within Section 144 but shall not include any adjudication from which an appeal lies as an appeal from an order or any order of dismissal for default. He further submitted that sub section (9) of Section 2 C.P.C. defines the judgment to mean the statement given by the Judge on the grounds of a decree or order. Shri Qadeer has also referred to the provisions of Order XX Rule 6A C.P.C. - "Preparation of Decree" which provides that every endeavor 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. He also referred to sub section (2) of Section 6A of Order XX C.P.C. which provides that 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. Shri Qadeer has therefore tried to draw a distinction between the term "judgment" and "decree" and submitted that where a decree is not ready an appeal may be filed against the judgement but as soon as the decree is prepared and made available to the party, the judgement will cease to have effect and it will not be said to be an appeal against the judgment but an appeal against the decree. He also submitted that section 100 C.P.C provides for filing of a second appeal against the decree. The Section 100 C.P.C. does not mention that an appeal in the High Court shall lie against the judgment.
Learned counsel for the respondents has also referred to the provisions of Order XX Rule 7 C.P.C. which relates to the "date of decree" and lays down that the appeal shall bear the date on which the judgment was pronounced and when the Judge has satisfied himself that the decree has been drawn up in accordance with the judgment he shall sign the decree. Shri Qadeer therefore submitted that the date of the decree is relevant and not the date of the judgment and the date of the judgment cannot be said to be the date of decree.
Rule 6, 6A and 7 of Order XX C.P.C. read as under:
"6. Contents of decree.- (1) The decree shall agree with the judgment; it shall contain the number of the suit, the names and descriptions of the parties, their registered addresses, and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit.
(2) The decree shall also state the amount of costs incurred in the suit, and by whom or out of what property and in what proportions such costs are to be paid.
(3) The court may direct that the costs payable to one party by other shall be set off against any sum which it admitted or found to be due from the former to the latter.
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 purpose.
7. Date of decree.- The decree shall bear the day on which the judgment was pronounced, and, when the Judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree."
Shri Manish Goyal, learned counsel for the appellant, on the other hand, also referred to the provisions of Section 2(9) C.P.C. and submitted that the judgment sustains the grounds for the decree and submits that even where limitation is to be considered it is date of the judgement which is the relevant date from which limitation counts. The time spent in obtaining the decree may be excluded while calculating the period of limitation. He also referred to the provisions of Order XX Rule 1 C.P.C. which lays down that the court after the case has been heard shall pronounce judgment in an open court and submits that what is important is the pronunciation of the judgement. The decree is never pronounced. The Order XX Rule 1 is quoted as under:
"1.Judgment when pronounced.- (1) the Court, after the case has been heard, shall pronounce judgment in an open Court, either at once, or as soon thereafter as may be practicable and when the judgment is to be pronounced on some future day, the Court shall fix a day for that purpose, of which due notice shall be given to the parties or their pleaders:
Provided that where the judgment is not pronounced at once, every endeavour shall be made by the Court to pronounce the judgment within thirty from the date on which the hearing of the case was concluded but, where it is not practicable so to do on the ground of the exceptional and extraordinary circumstances of the case, the Court shall fix a future day for the pronouncement of the judgment, and such day shall not ordinarily be a day beyond sixty days from the date on which the hearing of the case was concluded, and due notice of the day so fixed shall be given to the parties or their pleaders.
(2) Where a written judgment is to be pronounced, it shall be sufficient if the findings of the court on each issue and the final Order passed in the case are read out and it shall not be necessary for the court to read out the whole judgment.
(3) The judgment may be pronounced by dictation in open court to a shorthand writer if the Judge is specially empowered by the High Court in his behalf:
Provided that, where the judgment is pronounced by dictation in open court, the transcript of the judgment so pronounced shall, after making such correction therein as may be necessary, be signed by the Judge, bear the date on which it was pronounced, and form a part of the record."
Reference has also been made to the provisions of Order XX Rule 6 C.P.C., quoted above. The submission of Shri Goyal is that Rule 6 Order XX C.P.C. provides that the decree shall agree with the judgment which shall contain the number of the suit and names and description of the parties and their registered address and particulars of the claim and specify clearly the relief granted or other determination of the suit. Shri Goyal also referred to Rule 7 of Order XX C.P.C., quoted above, and submitted that Rule 7 requires that the decree shall bear the date on which the judgment was pronounced and when the Judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree. His submission, therefore, is that though the Order XX of Rule 7 refers to the date of decree but the Rule itself does not state that the date of decree shall be the date on which the Judge signs the decree. On the contrary the Rule specifically implies that the decree shall bear the date on which the judgment was pronounced. His submission, therefore, is that when an appeal is drawn up it shall relate back to the date of the judgment and that is why the date of judgment is to be mentioned in the decree. Shri Goyal further submits that the appeal is always against the judgment as also laid down in sub rule (2) of Rule 6A of Order XX C.P.C. though the decree may be signed at a later date.
Reliance has also been place by the learned counsel upon the judgment of the Supreme Court in AIR 1999 SC 3421 (West Bengal Essential Commodities Supply Corporation Vs. Swadesh Agro Farming and Storage Pvt. Ltd. Paragraphs 8, 10, 11 and 20 of the said judgment read as under:
"8. From a perusal of the Article, extracted above, it is clear that for execution of any decree (other than a decree granting a mandatory injunction) or order of a civil court, a period of 12 years is prescribed; Column 3 contains two limbs indicating the time from which period of limitation begins to run, that is, the starting point of limitation; they are: (i) when the decree or order becomes enforceable and (ii) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods when default in making the payment or delivery in respect of which execution is sought, takes place. The proviso says that there shall be no period of limitation for enforcement or execution of decree granting a perpetual injunction. We are concerned here with the first of the above-mentioned starting points, namely, when the decree or an order becomes enforceable. A decree or order is said to be enforceable when it is executable. For a decree to be executable, it must be in existence. A decree would be deemed to come into existence immediately on the pronouncement of the judgment. But it is a fact of which judicial notice may be taken of that drawing up and signing of the decree takes some time after the pronouncement of the judgment; the Code of Civil Procedure itself enjoins that the decree shall be drawn up expeditiously and in any case within 15 days from the date of the judgment. If the decree were to bear the date when it is actually drawn up and signed then that date will be incompatible with the date of the judgment. This incongruity is taken care of by Order XX Rule 7 C.P.C. which, inter alia, provides that the decree shall bear the date and the day on which the judgment was pronounced.
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10. Rule 6A enjoins 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. 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 I of Order XLI C.P.C. without filing a copy of the decree appealed against and for that purpose the fast paragraph of the judgment shall be treated as a decree. For the purpose of execution also, provision is made in clause (b) of the said sub-rule which says that so long as the decree is not drawn up, the last paragraph of the judgment shall be deemed to be a decree. Clause (b) has thus enabled the party interested in executing the decree before it is drawn up to apply for a copy of the last paragraph only, without being required to apply for a copy of the whole of the judgment. It further lays down that the last paragraph of the judgment shall cease to have the effect of the decree for purposes of execution or for any other purposes when the decree has been drawn up.
11. It follows that the decree became 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. This is so because an enforceable decree in one form or the other is available to a decree holder from the date of the judgment till the expiry of the period of limitation under Article 136 of the Limitation Act.
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20. Under the scheme of the Limitation Act, execution applications, like plaints have to be presented in the Court within the time prescribed by the Limitation Act. A decree holder does not have the benefit of exclusion of the time taken for obtaining the certified copy of the decree like the appellant who prefers an appeal, much less can he claim to deduct time taken by the Court in drawing up and signing the decree. In this view of the matter, the High Courts of Patna and Calcutta in Sri Chandra Mouli Deva v. Kumar Binoya Nand Singh, AIR (1976) Patna 208 and Sunderlal & Sons v. Yagendra Nath Singh, AIR (1976) Calcutta 471 have correctly laid down the law; the opinion to the contra expressed by the High Court of Calcutta in Ram Krishna Tarafdar v. Nemai Krishna Tarafdar AIR (1974) Calcutta 173 is wrong. Section 5 of the Limitation Act has no application; Section 12(2) of the Limitation Act is also inapplicable to an execution petition. If the time is reckoned not from the date of the decree but from the date when it is prepared, it would amount to doing violence to the provisions of the Limitation Act as well as of Order XX and Order XXI Rule 11 C.P.C. which is clearly impermissible."
Reference has also been made to the Full Bench judgment of the Gauhati High Court reported in AIR 2002 Gauhati 60 (Full Bench) Pradip Kumar Kalita Vs. Smt. Hiran Prova Kalita. Paragraphs 8, 9, 11 and 12 of the said judgment read as under:
"8. After hearing the learned counsel for the parties, we are of the view that there is no substance in the arguments of the learned counsel for the appellant. On the other hand, we find force in the submissions made by the learned counsel for the respondent. No doubt under Section 28 of the Hindu Marriage Act the appeal is against the decree under sub-section (4) of Section 28. The provisions of Section 12(2) of the Limitation Act clearly indicate that the limitation for filing appeal is to be reckoned from the date of the judgment, which date shall be excluded while computing the period of limitation and also the time spent for obtaining copy of the decree appealed against. Under Article 116 of the Limitation Act which provides for limitation for filing appeal to the High Court, it mentions, that the time for limitation starts running from the date of decree. However, as per the provisions of Order XX, Rule 7, CPC (supra), the date of the decree is to be same as date of judgment. As par provision of Section 12(2) of the Limitation Act read with explanation thereto, the limitation is to start running from the date of judgment, but the period spent in obtaining certified copy of the judgment and decree is to be excluded subject to the condition that application for obtaining certified copy of the judgment and decree is filed within the period of limitation, irrespective of the fact whether decree has been drawn or not. If the copy of the decree is applied for after the period of limitation is over, then the period required for obtaining copy of the decree or the time taken by the Court to prepare the decree would not be excluded (Ref. Explanation to Section 12).
9. As per provision of Section 33 of the Code of Civil Procedure it has been provided that the Court, after the case has been heard, shall pronounce the judgment, and on such judgment a decree shall follow. Order XX, Rule 7, CPC (supra) provides that the decree shall bear the date or the day on which the judgment is pronounced. No doubt, as per the definition of the decree under Section 2(2), CPC the same contains the expression of an adjudication by the Court conclusively determining the rights of the parties with regard to the matters in controversy. The ''decree' as per the provision of Order XX, Rule 6, CPC is to contain the number of the suit, description of the parties, their registered addresses and specify clearly the relief granted. However, that does not mean the period of limitation would start running from the date of the decree as has been canvassed by the learned counsel for the appellant. If an application for obtaining a certified copy of the judgment and decree is made within limitation, the appellant can wait for the decree as drawn and certified copy thereof made available before filing the appeal. The period between date the application for certified copy of the decree and the date same is ready for delivery would be excluded under Section 12(2) of the Limitation Act.
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11. It will be seen from Order XX, Rule 6A(1) that the last paragraph of the judgment shall state in precise terms the relief which has been granted by such judgment. Sub-rule (2) of Rule 6A of Order XX further provides that an endeavour is to be made by the Court 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. The Court under sub-rule (2) can be requested that the decree has not been drawn up under Order XX, Rule 6A(2)(a) and the appeal may be preferred against the decree without filing a copy of the decree and in such case the last paragraph of the judgment shall, for the purpose of Rule 1, Order XLI would be treated as decree and till the decree is not drawn last paragraph of the judgment would be treated as decree. From this it is also indicative that the starting point for computing limitation for filing an appeal is the date of the judgment and not the date of decree.
12. In view of our aforesaid discussion, our answer to the question posed in the opening paragraph of this judgment is that the limitation for filing an appeal would start running from the date of the judgment and not the date of the decree. The date of the decree would be deemed to be the date of the judgment. However, if an application is made for obtaining certified copy of the judgment and decree within the period of limitation, the period spent in drawing up the decree as well as the time spent in obtaining a copy of the decree would be excluded."
The next case relied upon by Shri Goyal is [1881] I.L.R. 7 Cal. 547 (The owner of the ship "Brenhilda" Vs. The British India Steam Navigation Company). In that judgment the provisions of Code of Civil Procedure Act VIII of 1859 was under consideration. Relevant extract at page 551 of the said judgement reads as under:-
"[551]...............The words " after the date of the decree," according to their Lordships' view of the rule, do not mean after the date when the decree is drawn up in writing, but after the date on which the decree or sentence is pronounced by the Vice-Admiralty or Admiralty Court, as the case may be............................Their Lordships, therefore, think that the date of the decree did not mean the date on which the decree was reduced to writing and signed by the Court, but the date on which the High Court delivered their judgment and expressed what the decree was.........."
Reference was also made to [1886] 13 Cal. 104 Full Bench (Bani Madhub Mitter Vs. Matungini Dassi and others). In the said case the provisions of C.P.C. 1882 was under consideration. Relevant extract at page 106 and 107 of the said judgement reads as under:
"[106]...............The first question is, what is the date of the decree, and for the purpose of ascertaining that, it is necessary to look at s. 205 of Code of Civil Procedure. By that section it is provided that a "decree shall bear a date the day on the judgment was pronounced, and when the judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree," so that whatever may be the day on which the actual signature is made, the date of the decree, for all purposes, is to be the date on which the judgment was pronounced.
...........The facts are (taking Special Appeal No. 2065 first) that the judgment was pronounced on the 17th July 1883, and [107] consequently that is to be taken as the date of the decree........."
Shri Goyal has further referred to [1890] I.L.R. 12 All. 461 (Bechi Vs. Ahsan-ullah Khan and others). Relevant extract at page 469 and 470 of the said judgement reads as under:
"[469].............. Now, in the first place I entertain no that it is necessary and indispensable for a litigant who intends to appeal from a decree which is the result of a judgment against him, and which decree must, under the law, bear date the day on which the judgment was pronounced, to apply for a copy of the decree and, if necessary, of the judgment also, before the lapse of the period of limitation for the appeal which he intends to file, whatever that period may be........[470].......................By art. 151 of this schedule to the Limitation Act the 20 days are to be reckoned from the date of the decree ; and by s. 205 of the Civil Procedure Code, the decree is to bear the date the day on which the judgment is pronounced. So that the appeal must clearly be filed within 20 days from the day on which the judgment is pronounced..........."
Having considered the submissions of the learned counsel for the parties, in my opinion, the position in law which emerges is that date of the decree will always relate back to the date of the judgment. The reason also being that the time for computation of limitation for filing an appeal commences to run from the date of the judgement and not from the date of decree. The only concession is that the time spent in obtaining the decree will count while computing the period of limitation.
In the memo of appeal it is clearly stated that this appeal is being preferred against the judgment and decree dated 6.4.2013. It is not that no challenge has been given to the decree or that the decree has not been filed with the memo of appeal. The appeal has also been filed with the memo of appeal alongwith the judgment and therefore the preliminary objection of the learned counsel for the respondents that since the appellant has not challenged the decree or mentioned the date of the decree and therefore the appeal is not maintainable is absolutely contrary to the record and opposed to the principles of law laid down by the various courts as well as the statutory position emerging from the interpretation of the relevant provisions of the Civil Procedure Code in that regard.
I, therefore, hold that the present second appeal is maintainable.
The plaintiffs filed Suit no. 10 of 1983 against the defendants (appellants herein) for possession of the suit property as delineated in the map appended to the plaint. The case of the plaintiffs was that the suit property was purchased by Mohd. Salim Khan S/o Mohd. Mukeem Khan from the erstwhile owner one Akbar Shah through a registered sale deed dated 29.11.1910. Mohd. Salim Khan died and was succeeded by his three sons, namely, Ahmad Sayeed Khan @ Pyare Miyan, Nemat Sayeed Khan @ Naushe Khan and Mohd. Shaheed Khan @ Banne Khan and two daughters, Smt. Haseena Bano Begum and Hashmi Begum. It was stated that sometime in 1932, there was a family partition between the heirs of Mohd. Salim Khan. Nemat Sayeed Khan @ Naushe Khan migrated to Pakistan during partition and therefore, in his share and the share of Hashmi Begum, Nemat Khan acquired 2/3 part as Evacuee Property. Part of this property was purchased by Mohd. Shaheed Khan @ Banne Khan in 1965 and 1/3 share of Hashmi Begum was purchased by Ahmad Sayeed Khan @ Pyare Miyan on 15.6.1959 from their share and therefore, the share of Nemat Sayeed Khan and Hashmi Begum stood extinguished in the suit property.
The claim of the defendant on the other hand was that this property was takiya and kabristan over which they were in possession for the last 70 years and that the property had never been auctioned by the Custodian of Evacuee Property. The trial court decreed the suit.
Aggrieved the defendant filed appeal. The appellate court has also dismissed the appeal. The appellate court has recorded a finding that the original sale deed allegedly dated 29.11.1910 was never produced before the trial court but it was produced in the appellate proceedings. The alleged partition deed was also never produced in original in the court below. When did Nemat Khan and Hashmi Begum migrate to Pakistan, no date has been given in the plaint. The cut off date declaring the property to be Evacuee Property under the Administration of Evacuee Property Act, 1950, under Section 7(A) is 7.5.1954 which means that no property after 7.5.1954 could be declared Evacuee Property.
The matter requires consideration.
The appeal is admitted on the following substantial questions of law:-
(1) Whether in the absence of original sale deed dated 29.11.1910 the suit would be barred by Order 7 Rule 14(1) C.P.C. when such sale deed forms the basis of the title of the plaintiff respondent?
(2) Whether the lower appellate court could have read the original of the sale deed dated 29.11.1910 which was brought before it for the first time through application under Order 41 Rule 27 C.P.C. and such consideration by the lower appellate court will be hit by Order 7 Rule 14 (3) C.P.C.?
(3) Whether in the absence of any pleading or proof with respect to the ingredients of Order 7 Rule 14(2) C.P.C. the suit filed by the plaintiff can be considered to be maintainable?
(4) Whether in the absence of finding with respect to the date of coming in possession of the defendant appellant, the claim of the defendant being in possession for the last 70 years will be deemed to be admitted and as such the suit for possession will be barred by limitation?
(5) Whether in the absence of any pleading or proof with respect to the title of Akbar Shah decided against him in Original Suit No. 334 of 1901, the courts below committed error of law in holding the property involved therein as distinct from the subject matter of the instant suit?
(6) Whether the property in question alleged to be an evacuee property as per the claim of the plaintiff the suit on the regular side would be barred by the provisions of the administration of Evacuee Property Act, 1956?
(7) Whether the judgement rendered by the civil courts in Original Suit No. 334 of 1901, Suit No. 17 of 1915 and Suit No. 36 of 1918 are relevant judgments within the meaning of Section 40, 42 and 44 of the Indian Evidence Act, 1872?
(8) Whether in view of the claim set up by the appellant to the effect that land in question is Kabristan, the same has become Waqf by user and as such U.P. Sunni Central Waqf Board was necessary party in the absence of which no decree for possession and injunction could be granted?
Issue notice to the respondents no.2 and 4 to 9 returnable at an early date.
The appellants shall take steps for service upon the respondents within one week.
Let the record of the lower court be summoned within six weeks.
List thereafter.
Till the next date of listing, the parties shall maintain status quo in respect of the property in question.
Dated: 19th May, 2017 o.k./kirti