Patna High Court
Brahmdeo Prasad vs Baldeo Prasad And Ors. on 11 September, 1998
Equivalent citations: 1999(1)BLJR289
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
JUDGMENT M.Y. Eqbal, J.
1. This Civil Revision application is directed against the order dated 25.4.1998 passed by the Munsif, Hilsa (Nalanda) in Title Suit No. 30 of 1994 by which the Court below decided the question of limitation as a preliminary issue and dismissed the suit as barred by limitation.
2. At the very outset preliminary objection has been taken by the counsel for the opposite party about the maintainability of this revision application. According to the learned Counsel, the impugned order by which the suit had been dismissed is a decree which is appellable and, therefore, this revision petition is not maintainable. In view of the objection with regard to the maintainability of the revision petition, I have called upon the learned Counsel for the parties to advance their arguments on this question.
3. Mr. Mahesh Prasad. No. III, learned Counsel appearing for the petitioner submitted that the order under revision is not a decree inasmuch as it does not decide the rights of the parties and, therefore, the order is revisable. Learned Counsel for the petitioner put heavy reliance on a decision of a Division Bench of this Court in the case of Rameshwar Thakur and Ors. v. Neeraj Kumar Thakur and Ors. 1996 (1) All PLR 80. On the other hand, Mr. Rajendra Prasad, Senior Counsel appearing for the opposite party submitted that the Court below framed issues including the issue of limitation and fixed the suit for deciding the said issue as a preliminary issue. The Court below thereafter heard both the parties and after considering the entire facts of the case and the evidence on record came to the conclusion that the suit was not filed within the statutory period and is barred by imitation. The suit was accordingly, dismissed and a decree was drawn up. According to the learned Counsel, to only remedy available to the petitioner is to file an appeal as the order is not revisable. In this connection learned Counsel relied upon the decision of this Court in the case of Ram Barai Bhagat and Ors v. Munni Lal Singh and Ors. 1983 BBCJ 657, and the case of Smt. Basanti Devi and ors. v. Sri Santosh Kumar Verma 1998 BBCJ 273.
4. Before appreciating the rival contentions made by the learned Counsel for the parties, it would be relevant to take notice of the relevant facts of the case.
5. The petitioner instituted Title Suit No. 30 of 1994 before the Munsif, Hilsa (Nalanda) claiming relief for declaration that the registered deed of gift dated 16.5.91 executed by Smt. Mano Devi in favour of defendant Baldeo Prasad is forged, fabricated, void and inoperative. Pursuant to the summons issued by the Court below defendant appeared in the suit and filed his written statement denying and disputing all the averments made in the plaint. The defendant filed a separate petition stating therein that the aforesaid suit is not maintainable due to bar of limitation as the plaintiff had knowledge of the deed of gift and the suit was filed much after expiry of three years from the date of knowledge of the transaction. The defendant, therefore, prayed that the question of limitation may be decided as a preliminary issue. The learned Court below accordingly proceeded to decide the issue of limitation as a preliminary issue and after considering the entire facts and the evidence on record came to the conclusion that the suit was filed much after expiry of three years, and, therefore, it was barred by limitation; consequently, the suit was dismissed.
6. The only question, therefore, falls for consideration is whether the order impugned is revisable or appealable will lie against that order.
7. At this stage before analyzing the impugned order, it would be worth to look into the meaning of term 'Decree' as defined in Section 2(2) of the Code of Civil Procedure which reads as under:
"Decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines 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 a plaint and the determination of any question within Section 144, but shall not include:
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order dismissal for default.
From bare perusal of the aforesaid definition it is manifest that an order or formal expression of a Court which decides or adjudicates the rights of the parties in respect of all or any of the matter in issue is a decree. In other words, essential elements of a decree are that there must be formal expression of adjudication, such adjudication must be made in a suit and it must determine conclusively the rights of the parties with regard to all or any of the matter in controversy in the suit.
8. In the instant case, the Court below proceeded to decide the question of limitation as a preliminary issue and came to a finding that the deed of gift under challenge was executed on 16.5.1991 and the plaintiff came to know abut the deed of gift on 18.5.1991. Since the suit was not filed within three years from the date of knowledge of the gift, it becomes barred of limitation. The suit was accordingly dismissed. The finding of the Court below with regard to commencement of the period of limitation for the purpose of calculating the period may be wrong but it has come to the conclusion that the plaintiff has been debarred under the law from challenging the deed of gift by filing a suit. Such adjudication, in my opinion, conclusively determines the rights of the plaintiff and it will amount to a decree. In the case of Ram Barai Bhagat v. Munni Lal Singh (supra), this Court has considered a similar question. In that, case the plaintiff filed a suit bearing Title Suit No. 245 of 1972 for declaration of title in some lands and for temporary injunction. During the pendency of the suit, another Title suit No. 91 of 1973 was filed in the Court of Subordinate Judge with regard to the same subject matter and on the same cause of action. Title suit No. 245 of 1972 filed in the Court of the Munsif was allowed to be withdrawn on a prayer made by the plaintiff. In the subsequent suit being Title Suit No. 91 of 1993, the defendant raised preliminary point that it was a subsequent suit with respect to the same subject matter as the Court had not permitted the plaintiffs to file another suit after giving permissions to withdraw Title Suit No. 245 of 1972. The learned Addl. Subordinate Judge by his order held that the subsequent suit was not maintainable. The question then arose whether that order is appellable or revisable. In that case it was held that a decision holding that the suit is not maintainable conclusively determines the rights of the parties in the suit. Such an adjudication on preliminary point raised by the defendant in the suit result in the dismissal of the suit on that point alone. It thus amounts to a formal expression conclusively determines the rights of the parties. In the case of Smt. Basanti Devi and Ors. (supra), a Bench of this Court was considering a similar question as to whether an order, passed by the Subordinate Judge dismissing the suit holding that the suit was not maintainable as it is barred by the provisions of Section 4 of the Benami Transaction (Prohibition) Act, 1988 is a decree. The facts of that case was that the plaintiff filed a Title (partition) suit in the Court of Subordinate Judge, Patna for a decree of partition. The case of the plaintiff was that the suit properties had been acquired by the husband of the plaintiff No. 1 and father of plaintiff Nos. 2 to 5 in the name of the wife of his elder, brother. The defendant, in their written statement, took the plea that the suit was not maintainable as the claim is barred under the provisions of the aforesaid Act of 1988. The defendant also made a prayer for hearing on the maintainability of the suit as a preliminary issue. The learned trial Court heard the parties on the preliminary issue and by order dismissed the suit as being barred by Section 4 of the said Act of 1988. The question arose whether such order is a decree and is appellable or revisable order. It was held that such an order is decree within the meaning of Section 2(2) of the Code of Civil Procedure and only appeal is maintainable.
9. The decision of the Division Bench of this Court in the case of Rameshwar Thakur (supra), upon which the learned Counsel appearing for the petitioner put heavy reliance does not in any way supports the case of the petitioner. In that case the question referred to the Division Bench was for a decision on the question as to whether an order dismissing the appeal on account of limitation as being time barred and not on merit is appellable. Their Lordships of the Division Bench after considering series of decisions on the point held that an order dismissing appeal as barred by limitation having been filed after expiry of limitation does not adjudicate rights of the parties on merit and, therefore, the order is revisable. The ratio decided by the Division Bench will not apply in suits which is barred under the provisions of any law. It was held in that case that rejection of memorandum of appeal in limine will not amount to a decree as there was no determination of the rights of the parties by the trial Court. The Division Bench, in fact, was considering the order of dismissal of appeal under Order XLI of the Code of Civil Procedure.
10. In the instant case, as noticed above, the Court below proceeded under the provisions of Order XIV, Rule 2 of the C.P.C. It is not a case where the Court below by the impugned order refused to decide any issue as a preliminary issue or the Court below allowed the prayer of a party to decide any issue as a preliminary issue. It is a case where the Court below, in fact, decided one issue as a preliminary issue and by conclusive expression held that in the facts of the case, the suit is barred by limitation. Such order, in my opinion, is a decree within the meaning of Section 2(2) of the Code of Civil Procedure. Hence this revision application is not maintainable which is accordingly dismissed.
11. Before parting with this Order, I must observe that I have not gone into the merit of the case of the petitioner that, in fact, the suit was within time. In the event the petitioner prefers an appeal against the impugned order, the appellate Court shall decide the appeal on its own merit without being prejudiced by any expression or observation made in this order.