Andhra HC (Pre-Telangana)
Charminar Co-Operative Urban Bank Ltd. ... vs State Bank Of Hyderabad And Anr. on 16 May, 2007
Equivalent citations: AIR2007AP339, 2007(5)ALD128, 2007(4)ALT337, AIR 2007 ANDHRA PRADESH 339, 2008 (1) AJHAR (NOC) 102 (AP), 2008 AIHC NOC 1, (2007) 5 ANDHLD 128, (2007) 4 ANDH LT 337, 2008 (1) AJHAR (NOC) 102 (A. P.) = AIR 2007 ANDHRA PRADESH 339, 2008 (1) AKAR (NOC) 29 (A.P.) 2008 AIHC (NOC) 1 (A. P.) = AIR 2007 ANDHRA PRADESH 339, 2008 AIHC (NOC) 1 (A. P.) = AIR 2007 ANDHRA PRADESH 339
Author: K.C. Bhanu
Bench: K.C. Bhanu
ORDER P.S. Narayana, J.
1. Heard Sri P.S. Rajasekhar, learned Counsel representing Sri Abhinand Kumar Shavali, learned Counsel appearing for the appellant.
2. The Charminar Co-operative Urban bank Limited, Hyderabad, represented by its chief Recovery Officer-petitioner-appellant, (sic) the present application to dispense with the filing of the certified copy of the judgment and decree including typed copy of the decree vendered by the I Additional Chief Judge, City Civil Court, Secunderabad in of 2002, dated 10-11-2003, and pass such other suitable orders.
3. This application is filed under Section 151 of the Code of Civil Procedure (hereinafter in short referred to as the 'Code' for the purpose of convenience). In paragraph Nos. 3 to 13 of the affidavit filed in support of the application, several reasons had been narrated and ultimately a request was made to dispense with the filing of the certified copy of the judgment and decree including the typed copy of the decree rendered by the I Additional Chief Judge, City Civil Court, Secunderabad in O.S. No. 11 of 2002, dated 10-11 -2003, referred to supra.
4. Yet another application No. 350 of 2007 in C.C.C.A. was filed under Section 5 of the Limitation Act, 1963 praying for condonation of delay of 1189 days in filing the appeal as against the decree and judgment in O.S. No. 11 of 2002.
5. Learned Counsel representing the appellant had explained the facts and circumstances in detail and would submit that in the light of the reasons which had been furnished in detail in the affidavit filed in support of the application this is a fit matter where discretion to be exercised by exercising inherent powers by ordering the dispense with as prayed for.
6. On a careful perusal of the reasons which had been explained, this Court is of the considered opinion that in the light of the facts and circumstances the relief prayed for cannot be granted.
7. Order XX Rule 1 of the Code dealing with judgment when pronounced, reads as hereunder:
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 days 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.
8. Order XX Rule 6-A of the Code deals with preparation of decree and the provision reads as hereunder:
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.
9. Order XX Rule 6-B of the Code dealing with copies of judgments when to be made available reads as hereunder:
Copies of judgments when to be made available:- Where the judgment is pronounced, copies of the judgment shall be made available to the parties immediately after the pronouncement of the judgment for preferring an appeal on payment of such charges as may be specified in the rule made by the High Court.
10. The other provision which may be relevant in this context is Order XLI Rule 1 of the Code and the said provision reads as hereunder:
Every appeal shall be, preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the [judgment];
11. It is pertinent to note that at present in Order XLI Rule 1 of the Code, the word 'judgment' had been substituted for the words 'decree appealed from'. It may be relevant to have a glance at the proviso to Order XLI Rule 1 of the Code which specifies:
Provided that where two or more suits have been tried together and a common judgment has been delivered therefor and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the Appellate Court may dispense with the filing of more than one copy of the judgment.
It is needless to say that the present matter does not fall within the ambit of the said proviso even.
12. This application, however, was moved under Section 151 of the Code and the said provision reads as hereunder:
Saving of inherent powers of Court:
Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
13. It is true that normally in practice the Courts would be liberal in dealing with dispense with applications. However, liberality cannot be stretched too far. It is needless to say that dispense with applications also can be permitted only where the Law permits the same or at least in the interest of justice, provided there is urgency involved in the matter. Otherwise, discretion cannot be exercised in ordering such applications for dispensing with certified copies of the judgments and decrees.
14. It is needless to say that the inherent powers can be exercised only for obtaining substantial justice. The Court has to keep in view not only the interest of the applicant but also the interest of the other party who will be affected by the order. It is also needless to say that normally when the specific provisions of the Code govern the field, inherent powers not to be resorted to. The distinction between the appeal and memorandum of appeal was pointed out by the Apex Court in Lakshmiratan Engineering Works Ltd. v. Assistant Commissioner (Judicial) I, Sales Tax, Kanpur and Anr. at paragraph No. 10 which reads as hereunder:
In our opinion these cases have taken a correct view of the word 'entertain' which according to dictionary also means 'admit to consideration'. It would therefore appear that the direction to the court in the proviso to Section 9 is that the court shall not proceed to admit to consideration an appeal which is not accompanied by satisfactory proof of the payment of the admitted tax. This will be when the case is taken up by the court for the first time. In the decision on which the Assistant Commissioner relied, the learned Chief Justice (Desai, C.J.) holds that the words "accompanied by " showed that something tangible had to accompany the memorandum of appeal. If the memorandum of appeal had to be accompanied by satisfactory proof, it had to be in the shape of something tangible, because no intangible thing can accompany a document like the memorandum of appeal. In our opinion, making 'an appeal' the equivalent of the memorandum of appeal is not sound. Even under Order 41 of the Code of Civil Procedure, the expressions "appeal" and "memorandum of appeal" are used to denote two distinct things. In Wharton's Law Lexicon, the word "appeal" is defined as the judicial examination of the decision by a higher Court of the decision of an inferior court. The appeal is the judicial examination; the memorandum of appeal contains the grounds on which the judicial examination is invited. For purposes of limitation and for purposes of the rules of the Court it is required that a written memorandum of appeal shall be filed. When the proviso speaks of the entertainment of the appeal, it means that the appeal such as was filed will not be admitted to consideration unless there is satisfactory proof available of the making of the deposit of admitted tax.
15. In A.S.M.P. No. 1021 of 2007 in A.S. (SR) No. 6787 of 2007 in Pratap Karan and Ors. v. Government of Andhra Pradesh, rep., by its Principal Secretary, Revenue Department, Secretariat, Hyderabad and Ors., dated 9-5-2007, the Division Bench of this Court to which one of us was a party (PSN, J) observed in paragraph Nos. 7 & 8 as follows:
7. It is pertinent to note that Order 20 Rule 6-A of the Code had been introduced by Amending Act with a view to ensure that the delay in preparation of the decree may not hamper the filing of an appeal. It is needless to say that though Sub-rule (1) of Order 20 Rule 6-A of the Code specifies that 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, there may be cases where there may be urgency, that is the reason why Sub-rule (2) of Order 20 Rule 6-A of the Code specifies 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 of the Code be treated as the decree, and further specifies that 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.
8. On a careful reading of the language of Order XLI Rule 1; along with Section 96 of the Code; and also Sub-rule (2) of Order 20 Rule 6-A of the Code, the Court is empowered to order dispensing with the filing of the decree copy while presenting an appeal. Moreover it is an enabling provision and it is within the discretion of the Court either to dispense with the filing of the decree copy or to direct the party to present the appeal along with the decree copy depending upon the facts and circumstances of a given case.
16. It is no doubt true that the said decision was rendered by this Court when an application under Order XX Rule 6-A of the Code has been moved. It is also needless to say that the present application is moved under Section 151 of the Code. On a careful reading of Order XX Rule 1; Order XX Rule 6-A; Order XX Rule 6-B, and Order XLI Rule 1 of the Code, this Court is of the considered opinion that in the light of the reasons which had been explained the dispensing with cannot be ordered. The words "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" and the words "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" in Sub-rule (2) of Order XX Rule 6-A of the Code would assume some importance. The language employed even in Order XLI Rule 1 of the Code also may be relevant in this context.
17. In Jagat Dhish Bhargava v. Jawahar Lal Bhargava and Ors. the Apex Court at paragraph Nos. 5 and 14 observed as hereunder:
5. The position of law under Order 41, Rule 1, is absolutely clear. Under the said rule every appeal has to be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in that behalf, and has to be accompanied by a copy of the decree appealed from, and of the judgment on which it is founded. Rule 1 empowers the appellate Court to dispense with the filing of the judgment but there is no jurisdiction in the appellate Court to dispense with the filing of the decree. Where the decree consists of different distinct and severable directions enforceable against the same or several defendants the Court may permit the filing of such portions of the decree as are the subject-matter of the appeal but that is a problem with which we are not concerned in the present case. In law the appeal is not so much against the judgment as against the decree that is why Article 156 of the Limitation Act prescribes a period of 90 days for such appeals and provides that the period commences to run from the date of the decree under appeal. Therefore there is no doubt that the requirement that the decree should be filed along with the memorandum of appeal is mandatory, and in the absence of the decree the filing of the appeal would be incomplete, defective and incompetent.
14. Let us then consider the technical point raised by the appellant challenging the validity or the propriety of the order under appeal. The argument is that Order 41, Rule 1, is mandatory, and as soon as it is shown that an appeal has been filed with a memorandum of appeal accompanied only with a certified copy of the judgment the appeal must be dismissed as being incompetent, the relevant provisions of O. 41 with regard to the filing of the decree being of a mandatory character. It would be difficult to acceded to the proposition thus advanced in a broad and general form. If at the time when the appeal is preferred a decree has already been drawn up by the trial Court and the appellant has not applied for it in time it would be a clear case where the appeal would be incompetent and a penalty of dismissal would be justified. The position would, however, be substantially different if at the time when the appeal is presented before the appellate Court a decree in fact had not been drawn up by the trial Court; in such a case if an application has been made by the appellant for a certified copy of the decree, then all that can be said against the appeal preferred by him is that the appeal is premature since a decree has not been drawn up, and it is the decree against which an appeal lies. In such a case, if the office of the High Court examines the appeal carefully and discovers the defect the appeal may be returned to the appellant for presentation with the certified copy of the decree after it is obtained. In the case like the present, if the appeal has passed through the stage of admission through oversight of the office, then the only fair and rational course to adopt would be to adjourn the hearing of the appeal with a direction that the appellant should produce the certified copy of the decree as soon as it is supplied to him. In such a case it would be open to the High Court, and we apprehend it would be its duty, to direct the subordinate Court to draw up the decree forthwith without any delay. On the other hand, if a decree has been drawn up and an application for its certified copy has been made by the appellant after the decree was drawn up, the office of the appellate Court should return the appeal to the appellant as defective, and when the decree is filed by him the question of limitation may be examined on the merits. It is obvious that the complications in the present case have arisen as a result of two factors; the failure of the trial Court to draw up the decree as required by the Code, and the failure of the office in the High Court to notice the defect and to take appropriate action at the initial stage before the appeal was placed for admission under Order 41, Rule 11. It would thus be clear that no hard ad fast rule of general applicability can be laid down for dealing with appeals defectively filed under Order 41, Rule 1. Appropriate orders will have to be passed having regard to the circumstances of each case, but the most important step to take in cases of defective presentation of appeals is that they should be carefully scrutinised at the initial stage soon after they are filed and the appellant required to remedy the defects. Therefore, in our opinion, the appellant is not justified in challenging the propriety or the validity of the order passed by the High Court because in the circumstances to which we have already adverted the said order is obviously fair and just. The High Court realised that it would be very unfair to penalise the party for the mistake committed by the trial Court and its own office, and so it has given time to the respondents to apply for a certified copy of the decree and then proceed with the appeal.
18. In Naraindas and Ors. v. Daya Narain AIR 1975 Delhi 9 the learned judge of Delhi High Court in paragraph No. 8 held as hereunder:
With regard to the second contention, I find that no orders had been obtained from the Tribunal on the application for exemption from filing a certified copy of the order of the Court below. At all events, the appellants prayed that exemption may be granted at that stage in order to know the facts of the case and grant stay of the proceedings before the Additional Controller. It had been asserted that the certified copy had been applied for but was not till then available. The prayer in the application was that the exemption from filing the certified copy be granted pending receipt of the certified copy which would be filed as and when received. Assuming the case of the appellants to be the highest, the Tribunal in admitting the appeal could not be presumed to be granting the prayer and the relief which had not been asked for in the application for exemption. Most certainly the Tribunal was not granting exemption from filing the certified copy at any time. It only agreed to consider and grant the application for the opposite party pending filing of the certified copy. Surely the Tribunal was not granting exemption to the party from the bar of limitation and the filing of the certified copy within period of limitation. Obviously it still remained the duty of the party to file a certified copy of the order within the prescribed period of limitation and there is nothing in the order of the Court to grant this privilege to the party not to file the certified copy at all or to exceed the bar of limitation. In Joti Pershadv. Gajendra Sharma, 1968 Delhi LT 125, I.D. Dua, C.J. (as he then was) observed that unless and until the prayer to exempt the filing of the certified copy . is granted, the party cannot claim any relief against the rigour of the law of limitation and it was the duty of the counsel to secure an order for exemption at the time of preliminary hearing. In the facts and circumstances of the case, the learned Chief Justice, however, felt inclined to condone the delay in filing the certified copies beyond time. It is a normal rule of construction of the orders of the Court that a relief which is expressly not granted would ordinarily be deemed to have been refused. Even if it be assumed that a relief could be granted by necessary implication, the relief granted cannot be presumed to rise higher than the prayer made for it. Under the law, the appeal- would be incompetent unless and until it is accompanied by a certified copy of the order appealed from. In some urgent cases when the party is likely to suffer any serious injury by delaying the filing of the appeal and wants to obtain some interim relief, the appellate Court shows indulgence on entertaining the appeal and granting interim relief on perusing the plain copy of the impugned order pending the receipt and filing of the certified copy. This, however, does not make the appeal competent unless and until the certified copy has been filed or the Court expressly grants exemption from its being filed altogether and unless and until such an order is obtained, the party is not relieved from the duty of complying with the requirements of law and filing the certified copy of the impugned order within the prescribed period of limitation.
19. Filing of the certified copy of the decree was held to be mandatory by a catena of decisions. No doubt Order XX Rule 6-A of the Code had been introduced. The object of introducing the provision also may have to be kept in mind. The dispensing with of the judgment and the power of the High Court had been dealt with in elaboration by the Full Bench of the Madras High Court in State of Madras represented by Special Tahsildar, Regional Engineering College Scheme, Tiruchirapalli v. Muthurethinam and Ors. .
20. In Ramachandrarao and Ors. v. Mayaram AIR 1928 Nagpur 131, it was held that in Order XLI Rule 1 of the Code it is not left to the litigant's choice to file or not to file a copy of judgment, but it is for the Judge alone who can dispense with it. It is true that the learned Judge of the Madras High Court in L. Varadarajan and Ors. v. Thomas and Ors. , observed that in a proper case the Court can give time for production of copy of decree and powers under Sections 148 and 151 of the Code also could be invoked and if a copy of decree is produced within the time granted, the appeal must be deemed as presented properly.
21. Here is a case where the appeal is presented with an application for condonation of delay, that too, an inordinate delay of 1189 days. In the light of the different provisions of the Code already specified supra this Court is of the considered opinion that this is not a fit case where the dispense with as prayed for can be ordered, especially in the light of the language employed in Order XX Rule 1; Order XX Rule 6-A; Order XX Rule 6-B, and Order XLI Rule 1 of the Code. Hence, viewed from any angle this Court is satisfied that the dispense with application cannot be ordered. It is needless to say that the appellant/ petitioner is at liberty to present the appeal in a proper form along with the certified copy of the judgment and decree if the counsel for the appellant is so advised.
22. With the above liberty the dispense with application is hereby dismissed.