Patna High Court
Rajeshwar Rai And Ors. vs Shankar Rai And Ors. on 1 February, 1962
Equivalent citations: AIR1962PAT398, AIR 1962 PATNA 398
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT N.L. Untwalia, J.
1. In this miscellaneous second appeal a question of law falls to be decided which, in my opinion, has been directly decided by a Bench of this Court in Jagdeo v. Basudeo Narain Singh, 1953 BLJR 17 : (AIR 1954 Pat 92). But, since some points of distinction were endeavoured to be made out by the learned advocate for the appellants, as also a vehement argument was advanced in order to persuade me to doubt the correctness of that authority and to refer this case to a larger Bench for its re-consideration, I think it is necessary for me to state a few facts and to give some reasons of mine too in support of the decision of the question of law involved in this appeal.
2. Respondents 1 and 2 filed a title suit against the appellants and respondents 3 and 4, for declaration of title and recovery of possession in respect of the suit land. The suit was dismissed by the trial court. The plaintiff-respondents filed First Appeal No. 354 of 1953 in this Court. It was heard by a learned Single Judge and was allowed on the 15th May, 1959. The plaintiff's suit was decreed. Shortly after the judgment was pronounced but before a formal decree was prepared, as required by Section 33, Code of Civil Procedure (hereinafter referred to as the Code), Execution Case No. 12 of 1959 was filed in the court below for execution of the decree, which was passed or was to be formally drawn up in First Appeal No. 354 of 1953. The execution case was filed on the 1st July, 1959. Order No. 2, dated 3-7-59 reads thus :
"Seen office report. The execution petition, is in order and within time. D. Hr. to take step for issue of notice Under Order 21, Rule 22 C P. C. by 10-7-59. He is further directed to file c. c. of decree of the Hon'ble High Court, Patna".
Two directions were given by the above order, in compliance with the direction to file the certified copy of the decree of this court, it appears that the decree-holders filed the certified copy of the judgment on 1-7-59 and did not file the certified copy of the decree as the decree had not been formally drawn up and prepared till then. They, however, did not comply with the direction of the execution court to take steps for issue of notice under Order 21, Rule 22 of the Code. Order No. 3, dated 10-7-59 reads thus :
"D. Hr. files c. c. of judgment. D. Hr must comply with the above order by 22-7-59 when put up for further orders".
The next order shows that the decree-holder filed processes etc. along with form of notice under Order 21, Rule 22 of the Code, and notices were issued and are said to have been served on the judgment-debtors. Order No. 5, dated 22-7-59 shows that the decree-holders, due to certain reasons, prayed to the execution court to expunge the name of respondent No. 4, namely, the State of Bihar, from the category of judgment-debtors and proceed with the execution case as against the other judgment-debtors. On 23-7-59 the decree-holders proved service of notice and filed affidavits etc. and. prayed for issue of delivery of possession. The prayer was allowed, the writ of delivery of possession was issued and shortly thereafter delivery of possession was effected on the suit land on the 8th August, 1959, the appellants filed an objection under Sections 47 and 151 of the Code challenging the execution proceeding as fraudulent and taken out after suppressing notices and other processes. The only ground of attack on the maintainability of the case, however, seems to be that the executing court could not execute the decree, that is to say, the judgment only, unless and until a formal decree was prepared in accordance with/the provisions of Section 33 and Order 20, Rule 6 of the Code. This technical point was pressed by the appellants in the courts below, but it was overruled. Hence this miscellaneous second appeal by them.
In view of a recent Full Bench decision of this Court in Baijnath prasad v. Ramphal Sahni, 1962 B. L. J. R. 110 : (AIR 1962 Pat 72) in the first instance, it appeared to me of some importance as to whether the point raised, after the delivery of possession, was available to the appellants if really the execution notices had been served upon them and they had failed to raise the point at the proper time before the order dated the 23rd July, 1959, came to be passed, I, however, do not pursue this point any further as the two courts of fact have not gone into the question and have not recorded their finding in this regard. For the purposes of the decision of this appeal, therefore, I shall assume that the notices were not served upon the appellants and the point which they had raised after the delivery of possession in regard to the maintainability of the execution case is not barred by the principle of constructive res judicata, i. e., it is open to them to raise this point as they had raised in their application dated the 8th August, 1959. In that view of the matter, I now propose to discuss and decide the only point which has been raised before me in support of the argument that the execution case is not maintainable.
3. In Section 2 of the Code it is provided: "In this Act, unless there is anything repugnant in the subject or context.
* * * * * (2) 'decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy to the suit and may be either preliminary or final ...."
* * * * * ''(9) 'Judgment' means the statement given by the Judge of the grounds of a decree or order''.
Section 33 of the Code provides :
"The Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow".
Order 20, Rule 1 of the code reads thus :
"The Court, after the case has been heard, shall pronounce judgment in open Court either at once or as soon thereafter as may be practicable, on some future day, 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'".
Sub-rule (1) of Rule 6 of Order 20 reads as follows :
"The decree shall agree with the judgment; it shall contain the number of the suit, the names and descriptions of the parties, and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit".
Rule 7 of the above order reads thus :
''The decree shall bear date 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".
Reading all the provisions together, I am of the opinion that the "decree'' as defined in Sub-section (2) of Section 3 comes into existence as soon as the judgment is pronounced. It does not necessarily mean the formal decree which is prepared in accordance with Section 33 and Order 20, Rule 6 of the Code and that is the reason that by a legal fiction it has been provided in Rule 7 of Order 20 that the date which is to be mentioned in the formal decree which is to be prepared, will be the date of the judgment. If I may now refer to the definition of the word "Decree-Holder'' in Sub-section (3) of Section 2, which reads--"decree-holder means any person in whose favour a decree has been passed or an order capable of execution has been made", the point will be further clear that the decree-holder means a person in whose favour a decree has been passed, as defined in Sub-section (2) of Section 2, as soon as the judgment has been pronounced, and not necessarily a person in whose favour a decree has been formally prepared, as required by Section 33 on the basis of the judgment pronounced. If this distinction is clearly borne in mind. It would be apparent that, although an appeal cannot be filed until the formal decree has been drawn up and prepared, an execution case can be filed for the execution of the decree which has really come into existence by the pronouncement of the judgment, but it is to be formally drawn up and written subsequently. The reason of this distinction is not because of any distinction between the word "decree" as used in Sections 38 and 96 of the Code, but it is because of the fact that while under Order 41, Rule 1 every appeal has to be preferred in the form of a memorandum, accompanied by a copy of the decree appealed from, under Order 21, Rule 10 it is not imperative that every execution petition must be accompanied by a copy of the decree sought to be executed. In both the cases, either in the case of an appeal or in the case of an execution, the appeal or the execution is against or of the decree which has come into existence on the pronouncement of the judgment. But, as I have said above, in an appeal the filing of a copy of the decree is essential and imperative, and, therefore, no appeal can be filed unless it is accompanied by a formal and written decree which is prepared under Section 33, but an execution can be filed even though the formal and written decree has not been prepared. Both for the filing of the appeal and the execution, the starting point of limitation is the date of the decree, i. e., the date of the judgment. While the time taken in obtaining the copy of the decree for the purpose of the appeal is excluded under Section 12 of the Limitation Act, no such exclusion of time is made for the filing of the execution. I am, therefore, of the view that execution filed in the instant case was legal and valid and it cannot be held to be not maintainable simply because it was filed prior to the preparation of the formal decree following the judgment pronounced in the first appeal on the 15th May, 1959.
4. For the reasons given above as also for the reasons given in the decision of the Bench of this Court, referred to above, if I may say so with respect, I do not feel persuaded to doubt the correctness of the Bench decision; rather I am in respectful agreement with it. No other decision of any court taking a contrary view was cited before me.
5. I shall now briefly deal with the points of distinction which were sought to be made out. The first point of distinction, which Mr. Kanhaiyajee pointed out was that in the case of Jagdeo Sao, 1953 BLJR 17 : (AIR 1954 Pat 92) the execution was levied on the 28th November, 1951, but the judgment of the trial court decreeing the suit, was pronounced on the 27th November, 1951, which judgment was affirmed in appeal by the appellate court, whereas in the instant case the suit was dismissed by the trial court but it was decreed by this Court in appeal, 1 confess, I could not appreciate this point of distinction at all. The question in that case was as to whether immediately after the pronouncement of the judgment execution could be levied before the preparation of the formal decree. The answer was in the affirmative. Similarly, in this case the question that arises is whether the execution could be levied after the pronouncement of the judgment and before the preparation of the formal decree. The answer cannot be different only because in Jagdeo Sao's case 1953 BLJR 17 : (AIR 1954 Pat 92) the suit was decreed by the trial court and in this case it was dismissed by the first court.
6. The other point of distinction sought to be made out is that in Jagdeo Sao's case, 1953 BLJR 17 : (AIR 1954 Pat 92) the execution court did not require the decree-holders to file a copy of the decree in accordance with Sub-rule 3 of Rule 11 of Order 21 of the Code, while in this case the execution court did require the decree-holders to file a copy of the decree by its order dated the 3rd July, 1959. That being so, learned counsel submitted that the execution could not proceed without the compliance of the said order.
In my Opinion, this is really not a point of distinction which could be urged as such for taking a different view on the question of law, but it is really a distinct point altogether. And the simple answer is, as I have shown by quoting the two orders in the earlier part of my judgment, that the decree-holders complied with the direction of the court to file the certified copy of the judgment. The court thereafter did not insist and ask them to file a certified copy of the decree as required by Order 21, Rule 11, Sub-rule 3. That is to say, the execution court dispensed with the filing of the certified copy of the decree on the decree-holders' filing the certified copy of the judgment of this Court. In my opinion, therefore, the point of distinction, which in my view is a distinct\point altogether, has also got no substance.
7. In the result the appeal fails and is dismissed with costs payable by the appellants to plaintiff-respondents 1 and 2.