AI Structured Summary
Not yet generated for this judgment
Judgment
Jaswant Singh, J.
(1) This reference to the Full Bench made by the Hon'ble Chief Justice raises an interesting point of law and arises in the following circumstances.
(2) A separate judgment in each one of the three above noted cases of which Bhat J was seized was pronounced by him in exercise of original civil
jurisdiction of this court towards the fag end of his tenure of office. While the judgments in the first two cases were announced by him on February
25th, 1972, the judgment in the third case was announced by him on February 16th, 1972, Before the decrees in the said cases could, however,
be prepared and signed by him, he retired on attaining age of superannuation on February 29th, 1972. On April 29th, J972 the Deputy Registrar
of the main wing of the court at Jammu, put up a note before the Hon'ble Chief Justice bringing to his Lordships notice the difficulty that had arisen
in regard to the signing of the decrees on the basis of the aforesaid judgment due to the inapplicability of Order 20 Rule 8 of the Code of Civil
Procedure (hereinafter referred to as ""the Code"") as a result of the provisions contained in Order 49 Rule 3 (5) of the Code and seeking his
Lordships direction for resolving the difficulty. The Hon'ble Chief Justice, thereupon, ordered notice to issue to the learned counsel for the parties
and heard them at length. In view of the conflict of authorities one set holding that a decree being a matter of moment has to be signed by the very
judge of the High Court who pronounces the judgment and if that be not possible, the matter should be reheard and the other set holding that
preparation of a decree is merely an administrative act and if the judge passing the judgment ceases to hold office, the decree may be signed by
another judge his lordship directed that the matter be Lald before a Full Bench of this court for an authoritative pronouncement. This is how the
matter is before us.
(3) M/s D. D. Thakur and S. P. Gupta appearing on behalf of the persons in whose favour the aforesaid judgments were passed by Bhat J have
contended before us that decree takes its birth with the passing of the judgment, that the preparation of a decree is merely an administrative act, the
exclusion from applicability of Order 20 Rule 8 of the Code to proceedings coming up on the original side of the High Court by virtue of Order 49
Rule 3(5) cf the Code is intended to give a free hand to the court to make its own Rules in regard to the signing of a decree prepared on the basis
of the judgment delivered by a Judge of the court who on account of some reason or the other demits his office and that a decree prepared by the
office in conformity with the Judgment delivered by an exjudge can be signed by the Chief Justice or any other Judge to whom the matter may be
assigned by him.
(4) M/s Amar Chand and Anil Dev Singh have, on the other hand, contended that there is a marked distinction between a judgment and a decree,
that the signing of a decree is not a mere formality, that exclusion from applicability of Order 20 Rule 8 to the High Court in exercise of its original
civil jurisdiction by virtue of Order 49 Rule 3(5) of the Code is not without significance and that if a judge of the High Court demits office before
the preparation of a decree, it cannot be signed by another judge of the court and the matter has to be reheard.
(5) For a proper appreciation of the point involved in this reference, it is necessity to refer to a few provisions of the Code.
Section 2(2) defines ""decree"" as :
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 a plaint and determination of any question within section 47 or section 44 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. Explanation. A decree is preliminary when further proceedings have to be taken before the suit can be
completely disposed of. It is final when such adjudication completely disposes of the suit.
(6) It may be partly preliminary and partly final.
Section 2(3) defines ""decree holder"" as ;
Any person in whose favour a decree has been passed or any order capable of execution has been made.
Section 2(9) defines ""judgment"" as ;
The statement given by the judge of the grounds of a decree or order.5'
(7) Section 33 provides that the court shall after the case has been heard pronounce judgment and on such judgment a decree shall follow. Sec96
provides that except as otherwise provided in the Code or by any other law for the time being in force, an appeal shall lie from every decree
passed by the court exercising original jurisdiction to the court authorised to hear an appeal on the decision of such court. Order 20 Rule 6
provides that a decree shall be in conformity with the judgment, Rule 7 of the order lays down that a decree shall bear the date on which the
judgment was pronounced and that when the Judge has satisfied himself that the decree has been drawn up in accordance with the Judgment, he
shall sign the same. Rule 8 of the Order which prescribes the procedure where a Judge vacates his office before signing the decree says that where
a judge has vacated the office after pronouncement but without signing the decree, a decree drawn up in accordance with such judgment, may be
signed by his successor or if the court has ceased to exist by the Judge of any court to which the court was subordinate. Order 41 Rule 1 in
substance ordains that every memo of appeal shall be accompanied by a copy of the decree appealed from and the judgment on which it is found.
Order 49 Rule 3 omits from applicability certain rules of the first schedule of the code to the matters coming up before the High Court in exercise
of its ordinary original civil jurisdiction. Among ethers, Rules, 1 to 8 of Order 20 are also excluded from applicability to such like matters.
(8) Now there can be no room for controversy in view of Sections 2 and 96 and Order 41 Rule of the Code as also of the decisions of the
Supreme Court in Jagat Dhish Bhargave versus Jawahar Lal Bhargave and others AIR 1961 SC 832 and in Shakuntala Devi Jain Versus Kuntal
Kumari and others, AIR 1969 Supreme Court, 575, that ''judgment' and ""decree1' are two distinct things and that a decree has to be drawn up
separately in conformity with the judgment on which it is founded*
(9) But the essential point for determination in this reference is not whether the decree has to be so drawn up but whether it can be signed by a
Judge of the High Court other than the one who pronounced the judgments in exercise of original civil jurisdiction, but is rendered incapable of
signing the same because of his having demitted the office. According to section 33 of the Code which is mandatory in character and which applies
as much to civil proceedings coming up before the High Court on its original side as to the original proceedings coming up before the Subordinate
courts a decree has to follow the judgment. According by decree is a necessary concomitant of the judgment and it comes into existence
automatically as soon as the judgment is pronounced. To put it a little differently a decree is passed simultaneously with the passing of the judgment
and is not deferred though the preparation of the decree by the office may take some time.
(10) I am fortified in this view by the decisions in Rajeshwar Rai and others versus Shanker Rai and others, AIR 1962 Patna 398 Harish Kumar
Bapalal Versus Chhanalal Ranchhodlal and others, AIR 1966 Gujrat, 281 and Bai Vasanti wd/o Patel Ishwarlal, Chimanlal Ver?us Suryapradad
Ishvarlal, Patel, AIR 1969, Gujrat, 152. In the first of these cases Untwalia J. observed
Reading Sections 2(2), 2(9), 33 and 0. 20 Rr. 1, 6 and 7 together it must be held that the ""decree""' as defined in Section 2(2) 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. The definition of the word ""decree holder*' in Section 2 0) makes it further clear that the decree holder means a person in
whose favour a decree has been passed 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 Apparently although an appeal cannot be filed until the formal decree has been drawn up and
prepared an 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. Hence an execution filed shortly after the judgment was pronounced but before the formal decree was prepared as
required by S. 33 and O 20 R. 6 is legal and valid.
(11) In the second case Divan J said :
''It is necessary to bear in mind that a decree of a court becomes effective from the moment that the judgment in the matter is pronounced by the
Court concerned and that is the date which the decree must bear. The decree as drawn up by the court is a formal expression of the decision of
the court and it must bear the date on which the judgment is pronounced though when the Judge signs the decree after satisfying himself that the
decree is in accordance with the judgment of the court some time between the date when the judgment was pronounced and the date when the
Judge signs the decree. The proceedings in the suit are at an end when the judgment and decree are pronounced and signing of the decree, which
is a purely consequential administrative function, cannot be said to be a further proceeding in the suit.
(12) In the third cae Shah J observed :
''It should be noted that what is postponed is not the ""passing"" of the decree, but the ""drawing up"" of the decree. As I stated above, the passing of
the decree and the drawing up of the decree are two separate and independent acts. The passing of the decree is earlier in time and follows as a
matter of course as soon an a judgment is pronounced. It is by the force of the statute itself, namely, the provisions of Section 33 of the Code that
a decree comes into existence immediately when a judgment is pronounced.
(13) A perusal of the judgment in the instance case shows that the learned judge finally and conclusively determined and adjudicated upon the
rights and liabilities of the parties in these cases and in two of them namely Smt. Veera Devi versus The State of Jammu and Kashmir ad others and
M/s Mohinder Singh and Co. versus The Executive Engineer, Jammu Central Construction Division C, P. W. D. he expressly stated that he was
passing decrees for the particular amounts mentioned there in. The phraseology employed by the learned Judge in the operative portion of the third
judgment also is susceptible of no other interpretation than this that he was passing a decree for the amounts stated therein. That apart, it has also
to be borne in mind that a decree is generally prepared by the office and if it takes time in preparing and putting it up for being signed before the
Judge who pronounced the judgment and meanwhile the judge retires or some other unfortunate event supervenes a litigant cannot be made to
suffer on that account.
On the other hand, it is well settled that a litigant deserves to be protected against the default committed or negligence shown by the court or its
officers in the discharge of their duties. Reference in this connection may usefully be made to the decisions in Jagat Dhish Bhargava Versus Jawahar
Lal Bhargava and others, AIR 1961 Supreme Court 832 (Supra) where Gajendragadkar J (as his lordship then was) quoted with approval the
following observations made by Carrns, L, C. in Rodger V. Comptoir 'd' Escompte deparis, (1871) 3 PC 465 at p. 475 as early as 1871.
One of the first and highest duties of all courts is to take care that the act of the court does no injury to any of the suitor.''
(14) I am further of the view that the inapplicability of the provisions contained in Rules 1 to 8 of Order 20 of the Code to the High Court in
exercise of its original civil jurisdiction was not intended, as rightly pointed out by the learned counsel for the decree holders, to put any fetter on
the power of a judge of the High Court to sign a decree passed by another Judge of the court who ceases to be a Judge but was intended to
enable the court to evolve its own procedure regarding the signing of the decrees and other matters alluded in Rules 1 to 7 Order 20 of the Code.
Further though the provisions contained in Rule 1 to 8 of Order 20 of the Code do not in terms apply to the High Court in exercise of its original
civil jurisdiction the principles urder lying the provisions are undoubtedly applicable to such proceedings. To hold otherwise would give rise to lots
of difficulties and render ineffective innumerable Judgments rendered by serval judges of the High Courts in the country who retire every year. This
would far from advancing the interests of Justice retard the same a result which could not at have been intended by the Legislature and which
according to the well established cannons of construction of statutes is to be avoided.
(15) For the foregoing reasons, I am of the view that if a Judge of the High Court after pronouncing Judgment in exercise of his original civil
jurisdiction but before singing the decree prepared in conformity therewith vacates his office a decree can be singed by the Chief Justice or by any
other Judge of the court to whom the matter may be assigned by him.