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Judgment
G.B. Singh, J.—This is a revision against the judgment dated 4-3-1989 of Civil Judge, Unnao decreeing the suit under Order 12, Rule 6, Code of Civil Procedure.
The Central Bank of India opposite party filed a suit for recovery of a sum of Rs. 33009777.25 paise on the allegation that the Plaintiff carries on banking business and: one of its Branches is at Moti Nagar, Unnao. M/s. Sterling Hides and Skin Industries Private Ltd. Defendant No. 1 is a Company incorporated under the Companies Act carrying on business of purchase, sale, processing, finishing, tanning etc. of all kinds of hides and skins of all types of animals, leather and leather goods etc. The Defendant No. 9 is its Managing Director and the Defendants Nos. 10 and 11 are its Directors. The Defendants Nos. 2 to 8 are ancillary units of the parent Company Defendant No. 1. The Defendant No 12 is Managing Director of some of the ancillary units. Defendants Nos. 9 to 12 stood as guarantors for the repayment of the dues of the Plaintiff on Defendant No I. In the year 1978 the parent Company Defendant No. 1 approached the Plaintiff for the grant of working capital in the shape of cash credit for carrying on business of leather and leather goods. The Plaintiff thereupon sanctioned a cash credit (open loan) limit of Rupees ten lacs. In this connection the Defendant No. 1 and its Directors executed on 2-1-1979 promissory note, agreement of hypothecation against the goods and some letters. Defendants Nos. 9 to 12 executed letters of guarantee guaranteeing the repayment of the said Cash Credit facility. On 16-2-1979 the Defendant No. 1 through its Director executed demand promissory note and other documents for further Cash Credit of Rupees Ten Lacs. Thereafter the Defendant No. 1 approached the Plaintiff for grant of further facility as well as enhancement of existing Cash Credit facilities and the Plaintiff granted the same On 16-10-1979 the Plaintiff Bank sanctioned packing credit limit Rupees Twenty Lacs, export bills limit Rupees Fifteen Lacs, Endorsed demand bills limit of Rupees Three Lacs, Cash Credit (Pledge) limit Rupees Five Lacs, Cash Credit (Hypothecation) limit Rupees Five Lacs. On 24 9-1982 and 16-4-1983 Defendant No. 1 and its Director further executed D.P. Note and other documents for credit facilities of Rupees Thirty Lacs and Rupees Forty Five Lacs respectively. In the month of November 1984 the Plaintiff Bank sanctioned Cash Credit open hypothecation limit of Rupees 40 Lacs and the Defendant No. 1 executed demand promissory note and some other documents. Similarly, on 30-3-1987 when outstanding in Cash Credit account of the Defendant No 1 rose to Rs. 92,22,163.75 paise the Defendant No. 1 executed some other documents. Apart from this some other transactions also took place A sum of Rs. 1,55,60, 436.75 paise became outstanding debit balance in the Cash Credit account No. 1 of the Defendant No 1 ; Rs. 12,12 381.80 paise became outstanding debit balance in the Cash Credit account No 2 of Defendant No. I ; Rs. 1,21,79,879.70 paise became outstanding debit balance for packing credit account of the Defendant No. I and a sum of Rs. 4057079.00 paise became outstanding debit balance in respect of performance guarantee Thus, the total sum of Rs. 33009777 25 paise became due to the Plaintiff. Notice was served upon the Defendants but the said amount has not been paid The Plaintiff, therefore, claimed recovery of the said amount with pendentelite and future interest.
The suit was contested by the Defendants. They filed written statement and admitted the execution of the aforesaid documents and guarantees. The correctness of the accounts of the Plaintiff was also not challenged The Defendants, however, pleaded that the suit was liable to be stayed u/s 10, CPC because they have already filed suit for recovery of certain sura by way of compensation in the Bombay High Court for breach of the contract committed by the Plaintiff Bank. It was also pleaded in the written statement that the contract became void as Bank Company did not perform some conditions which were part of the contract and prevented the Defendants from performing their contract executed in favour of the Iranian Government.
Before framing issues an application was moved on behalf of the Plaintiff under Order 12, Rule 6 Code of Civil Procedure, for pronouncing the judgment and decree in favouof the Plaintiff on the basis of the admissions of the Plaintiff''s claim made by the Defendants in their written statement. It was also mentioned in that application that the claim of the Petitioner has been admitted by Atiq Ahmad Defendant No. 11 In the counter affidavit filed on behalf of Defendants against Plaintiff''s application under Order 38, Rule 5- read with Order 39, Rules 1 and 2 and Order 40, Rule 1 and Section 151, Code of Civil Procedure. On the basis of this application arguments were heard and learned Civil Judge decided the suit on the basis of the admissions under Order 12. Rule 6, Code of Civil Procedure. Feeling dissatisfied with it the present revision has been filed by the Defendants.
Learned Counsel for the Plaintiff opposite party raised preliminary objection against the maintainability of the revision He argued that under Order 12, Rule 6, CPC when the judgment is pronounced on the basis of admissions, decree follows and no revision lies against the said judgment and decree. Learned Counsel for the Defendants revisionists, on the other hand, argued that Order 12, Rule 6, CPC contemplates two stages. One of them is when the court decides to proceed under Order 12, Rule 6, CPC to deliver judgment on admissions and the other is when the judgment is actually delivered. He further argued that the revision can be when the court decides to proceed under Order 12, Rule 6, Code of Civil Procedure. After having carefully considered the arguments advanced, I am of the opinion that the contention of the learned Counsel for the Plaintiff opposite party must prevail.
Order 12, Rule 6, CPC reads as follows:
Judgment on admissions:--(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under Sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.
The words ''at any stage'' used in the aforesaid Rule point out that the Plaintiff can move for judgment upon admission in the defence at any stage in the suit. The court can, therefore, proceed under this Rule at any stage of the suit and it was not necessary for it to frame any issue first and then to proceed under this Rule. The rule indicates that the admissions should be of fact and they should be either in the pleadings or otherwise. Thus, the learned Civil Judge could take into account the admissions made in the written statement as well as in the counter affidavit pointed out by the Plaintiff in his application under Order 12, Rule 6, Code of Civil Procedure. A perusal of the aforesaid Rule 6 shows that it does not contemplate any interlocutory order before passing the judgment on admission. It has been observed in Gorivelli Appanna Vs. Gorivelli Setthamma, that Order 12, Rule 6, CPC does not contemplate the passing of interim orders but empowers the court to pass judgment and decree in respect of admitted claim pending disposal of adjudication of the disputed claims in a suit In view of this the contention of the learned Counsel for revisionists that the Civil Judge should have first passed an interim order that he was proceeding under Order 12, Rule 6, CPC does not appear correct If such an order is not contemplated by Order 12, Rule 6, CPC it cannot be presumed that such an order had been passed by implication and as such the revision can be filed.
Since the judgment under Order 12. Rule 6, CPC is followed by a decree and the decree bears the date on which the judgment is pronounced, the judgment under Order 12, Rule 6, CPC amounts to decree. Sub-section (1) of Section 115, CPC clearly provides that revision can be entertained in a case decided by any court subordinate to the High Court in which no appeal lies. Sub-section (2) of this section further lays down that High Court shall not, under this section, vary or reverse any decree or order against which appeal lies either to the High Court or to any court subordinate thereto It has not been disputed before me that a decree passed under Order 12, Rule 6, CPC is appealable. In view of this no revision lies, the present revision does not, therefore, appear to be maintainable.
It was also argued by the learned Counsel for the revisionist that when the Defendant filed revision the decree had not followed the judgment and as such the revision can be entertained. This argument also cannot be accepted.
The words ''decree'' and ''judgment'' have been defined under Sections 2(2) and 2(9) of the Code of Civil Procedure. They read as follows:
(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 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 of dismissal for default.
"(9) "judgment" means the statement given by the Judge of the grounds of a decree or order.
Section 33, CPC deals with judgment and decree. It is also reproduced below for the sake of convenience:
Judgment and decree:--The court, after the case has been heard, shall pronounce judgment and on such judgment a decree shall follow.
Apart from this, Order 20, CPC also deals with judgment and decree. Its Rule 7 provides that the decree shall bear the 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. Sub-rule (2) of Order 12, Rule 6, CPC is also to the effect that whenever judgment is pronounced under Sub-Rule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced. If the aforesaid provisions are read together it becomes clear that when judgment is pronounced a decree must follow. Judgment is nothing but a statement given by the Judge of the grounds of the decree. Thus, the judgment is part and parcel of the decree and the decree comes into existence as soon as the judgment is pronounced. The drawing up of formal decree and its signing and sealing are simple formalities as the date of decree relates back to the day on which the judgment is pronounced.
It has been held in Harish Kumar Bapalal Vs. Chhanalal Ranchhodlal and Others, that a decree of a Court becomes effective from the moment the judgment in the matter is pronounced by the Court. The decree as drawn up by the Court is a formal expression of the decision of the Court. It has been further held in this case that the proceedings in the suit are at an end when the judgment is pronounced and signing of the decree which is a purely consequential function, cannot be said to be further proceeding in the suit. In view of all this it cannot be accepted that by pronouncing judgment under Order 12, Rule 6, CPC no decree has come in existence on the date of pronouncement of the judgment and, thus, no appeal would lie. In my opinion after pronouncement of the judgment under Order 12, Rule 6, CPC in fact decree had come in existence and, thus the only remedy of the revisionist was by way of appeal. The revision is, therefore, not maintainable in view of the clear provision of Section 115, Code of Civil Procedure.
It was next argued by the learned Counsel for the revisionist that in case it is held that the revision is not maintainable the revision should be treated as a petition under Article 227 of the Constitution of India. Learned Counsel for the opposite party, on the other hand, argued that the revision cannot be treated as or converted into a petition under Article 227 of the Constitution as both the proceedings are entirely different. In support of their contentions parties counsel cited some cases. In my opinion this argument of the learned Counsel for the revisionist also cannot be allowed to prevail.
Article 227 of the Constitution of India, confers power of superintendence over all Courts by the High Court. This power of superintendence conferred by Article 227 of the Constitution of India is not confined to an administrative superintendence but includes power of judicial review also. This power confers a duty on the High Court to keep the inferior Courts and Tribunals within the bounds of their authorities and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice or where grave injustice would be done unless the High Court interferes. It is also well settled that the power under Article 227 of the Constitution is exercised by the High Court in its discretion and cannot be claimed as of right by any party. It is, therefore, to be seen if the revision u/s 115, CPC can be converted into or treated as a petition under Article 227 of the Constitution and if so should an interference be made with the judgment as contended by the learned Counsel for the revisionist.
In Vishesh Kumar v. Shanti Prasad 1980 AWC 263 following observations have been made:
It has been urged by the Appellant in Vishesh Kumar v. Shanti Prasad (Civil Appeal No. 2844 of 1979) that in case this Court is of the opinion that a revision petition u/s 115, Code of Civil Procedure, is not maintainable, the case should be remitted to the High Court for consideration as a petition under Article 227 of the Constitution. We arc unable to accept that prayer. A revision petition u/s 115 is a separate and distinct proceeding from a petition under Article 227 of the Constitution, and one cannot be identified with the order.
In M/s. Ram Mohan Lal Brij Bhushan Lal v. Union of India 1980 AWC 422 permission to convert revision into a writ petition under Article 227 Constitution of India was made. Relying upon Vishesh Kumar v. Shanti Prasad 1980 AWC 263 (supra), it was observed that revision could not be converted into a writ petition under Article 227. It was further held in this case as under:
Further, a revision is filed in the form of a memorandum captaining the grounds only. A petition under Article 226 or 227 of the Constitution is in the form of petition wherein all the facts and the grounds etc. have to be mentioned. It is hence not practicable to convert the revision into a writ petition or a petition under Article 227 of the Constitution.
In Aundal Ammal Vs. Sadasivan Pillai, the following observations appear material:
It was urged that in case we are of the opinion that a revision u/s 115 of the CPC does not lie, the case should be remitted to the High Court for consideration as a petition under Article 227 of the Constitution. We are unable to accede. A petition under Article 227 of the Constitution is different from revision u/s 115 of the Code of Civil Procedure. The two procedures are not interchangeable though there are some common features.
From the observations made in the aforesaid cases it can be held that a revision u/s 115 CPC cannot be converted into or treated as a petition under Article 227 of the Constitution.
The cases referred to by the learned Counsel for the revisionist are:
(1) Jodhey and Others Vs. State, ; (2) State of Uttar Pradesh Vs. Abdul Aziz and Others, ; (3) Abdul Aziz and Another Vs. A. Raj Chhabra, and (4) Trimbak Gangadhar Telang and Another Vs. Ramchandra Ganesh Bhide and Others, .
Tn these cases the observations are to the effect, that under Article 227 of the Constitution there is power of judicial revision in the High Court and it is akin to power conferred u/s 115, CPC and it can be exercised in appropriate cases. This stage coins when a revision u/s 115, CPC can be converted or treated as a petition under Article 227 of the Constitution of India. Since it has been clearly observed in the above cited cases i.e. Vishesh Kumar v. Shanti Prasad 1980 AWC 263 , Aundal Ammal Vs. Sadasivan Pillai, and Ram Mohan Lal Brij Bhushan Lal v. Union of India 1980 AWC 422 that a revision u/s 115, CPC cannot be converted into a petition under Article 227 of the Constitution of India, these cases are of little help to the learned Counsel for the revisionists. His argument that interference should be made by treating the revision u/s 115, CPC into a petition under Article 227 of the Constitution of India cannot, therefore, be accepted.
It may also be mentioned that when an alternate remedy by way of appeal is available and the points raised can be properly thrashed out and decided in it, the extraordinary jurisdiction under Article 227 of the Constitution cannot be invoked. This view gets support from Miss Maneck Gustedji Burjarji Vs. Sarafazali Nawabali Mirza, .
Learned Counsel for the parties advanced arguments on the merits of the case also. In this connection reference was made to certain parts of the plaint and written statement and the affidavit dated 20-5-1988 by Shri A.K. Bajpai filed on behalf of Plaintiff Bank and the copy of the counter-affidavit dated 20-7-1988 by Shri Atiq Ahmad filed on behalf of the Defendants. They prima facie support the contention of the learned Counsel for the Plaintiff opposite party that learned Civil Judge could proceed under Order 12. Rule 6 Code of Civil Procedure. However, no final opinion is expressed on this point as the right of appeal to the Defendants is still open and any expression of opinion in the case may cause prejudice to them. The revision does not appear maintainable. For this reason also it is not necessary to record any finding on the aforesaid point.
The revision being not maintainable is, therefore, dismissed. Costs on parties.