Lachminarayan Tekriwala and Others vs Jogesh Chandra Lahare and Another

Wort, J.—This is an appeal from a decision of the learned District Judge of the Santal Parganas, remanding a case to the Court of the Subordinate Judge as the Subordinate Judge had disposed of a mortgage suit on a preliminary point. The appellant before us was the purchaser of the equity of redemption of the property mortgaged and was for that reason made a party to the mortgage action. The appellant seems to have been the defendant who bore the burden of the defence in the trial Court and two substantial questions were raised by him.

It was contended in the first place that the transaction was a fictitious one intended to defeat creditors and secondly that the mortgage-deed was unenforceable as it had not been attested in accordance with law. The trial Court determined the latter of the two questions in favour of the defendant and accordingly dismissed the suit. The matter then came on appeal to the District Judge and the District Judge reversed the finding of the Subordinate Judge on the question of attestation, and accordingly remanded the action, as I have already stated, to the Subordinate Judge for the determination of the other issues in the case.

It was faintly argued by Mr. Sushil Madhav Mullick, who appears for the appellant, that the question of fact whether the document was properly attested or not was open to this Court; but that argument cannot possibly be supported. The determination of that question by the District Judge was the determination by the last Court of fact; and although the matter before us is whether the remand order was erroneous or not, no question of fact which was to be determined by the District Judge in his appellate jurisdiction can possibly be open to this Court. Speaking for myself I cannot imagine such a case, but it may well be that if there were any questions of fact strictly within the ambit of the remand order as this Court is the first Court of appeal as regards that order, it might be said that that question of fact, if strictly coming within the ambit of the remand order, might be open for determination by this Court. But I purposely do not come to any decision on that matter. I am however clearly of the opinion that the question of fact urged by Mr. Mullick is not open to this Court for determination. That would dispose of the appeal had it not been for another question which has been argued by Mr. Mullick on behalf of the appellant.

It is contended that the appeal to the District Judge was barred by limitation as not having been presented within the prescribed time. It is quite clear that by Section 3, Lim. Act, whether the point was taken or not the Court of the District Judge should have dismissed the application for leave to appeal if he found that it was out of time. Exactly what happened in the Court below as regards this matter is not clear, but there is an affidavit before us the facts in which have not been denied, that when the appeal came on for hearing before the District Judge the question of limitation was argued.

It is a matter of surprise, therefore, to find no reference in the judgment of the District Judge on this point. That fact becomes relevant for reasons which I shall in a moment state. So far as the question of limitation was concerned, it is argued by Mr. Sen on behalf of the respondents that his appeal was within time. The actual facts which do not appear to be in dispute are these. The judgment of the Subordinate Judge was pronounced on 10th October 1931. On the 29th of the same month the plaintiff applied for a copy of the judgment and decree, and the order made on that application was this:

No decree was drawn in view of Rule 11 at p. 27, High Court Rules, and there is no direction of the Court to draw the decree. The record is sent herewith.

Under the Circular Rules and Orders referred to, Rule 11, Chap. 5 provides as follows:

In suits for money including suits upon mortgage, etc., no decrees need be drawn up if neither party has to recover anything unless the Judge otherwise directs.

That was the rule referred to in the order which I have just read. Nothing was done by the respondent plaintiff until 5th January 1932. He then filed a petition stating the effect of the former order and stating particularly that as the case was dismissed and no costs were ordered no decree need be drawn up unless the Court otherwise directs. Then he referred to the Circular Rules and Orders which I have mentioned. Then he alleged in his petition that as he intends to prefer an appeal a decree is required:

It is therefore prayed that your honour may be graciously pleased to direct the office to draw up the decree in the above case.

It is quite clear on the face of it therefore that he was out of time in applying for the direction of the Court to prepare a decree if the Circular Rule to which I have referred is taken into consideration. At this stage reference is made by the appellant to the case of Pramatha Nath Roy v. Lee AIR 1922 PC 352. In that case there was involved a similar rule on the Original Side of the Calcutta High Court. Lord Buckmaster delivering the opinion of the Judicial Committee of the Privy Council made this statement of fact:

After the order had been made on 26th July no steps were immediately taken by the plaintiff to have the order drawn up, but after the lapse of four days it was competent to the defendant to apply for that purpose. The four days elapsed and nothing was done. On 6th August, application was made by the plaintiff to have the order drawn up, and on the next day the draft of the order was sent to the appellant. The appellant delayed however in returning it till the 16th and ultimately on 28th August it was signed and on 3rd September it was filed by the plaintiff.

The Judicial Committee had to construe Section 12, Sub-clause (2), Limitation Act, and in the course of the judgment said that the Judges in the High Court had so construed the section to which I have referred as to take into consideration the conduct of the appellant. Their Lordships approved of this view of the High Court and Lord Buckmaster expressed his view in these words:

In their Lordships'' opinion no period can be regarded as requisite under the Act, which need not have elapsed if the appellant had taken reasonable and proper steps to obtain a copy of the decree or order. In the present case he took none, and the periods between 30th July and 6th August, and again between 7th August and 16th August, which were within the appellant''s control are sufficiently great to prevent the appellant saying that the time that did elapse must have elapsed even if he had acted with reasonable promptitude.

Now, it is quite clear from the facts of this case to which I have referred that the period between 30th October 1931, and the date upon which a copy of the judgment was given to the plaintiff, and 5th January 1932 when he petitioned the Court to order the preparation of the, decree was a period, to use the words of Lord Buckmaster, within the control of the plaintiff, and therefore cannot be deducted for the purpose of determining the question of limitation. It was faintly argued that the period up to 14th November 1931, which was the end of the Civil Court holiday should be deducted.

There is no substance in this argument, but assuming that there were it still leaves the plaintiff in the position in which he would find himself, but for that deduction, that is to say the period from 14th November 1931 to 5th January 1932, was sufficient to bar his appeal. The respondent meets this point by making two contentions, first that his application presented on 29th October 1931 was an application contemplated by E. 11, Chap. 5 of the High Court Rules, and the second is that; the Rule to which I have referred was ultra vires.

As regards the first point, it is quite obvious that the application of October 1931 was of an entirely different character from the application of 5th January 1932; it is an ordinary application which is made in cases for a copy of a judgment and decree. He was then informed that no decree could be prepared. He then made a specific application in January 1932, as I have said referring to Rule 11, Chap. 5. By no stretch of the imagination can it be said that either there was any confusion in the mind of the plaintiff or that the application of October 1931 was an application contemplated by Rule 11, Chap. 5.

I say there was no confusion in the mind of the plaintiff because it was faintly suggested in the course of the argument that he misunderstood the position and that he was led to misunderstand the position by a note which appears to have been added to the order of the 29th October to this effect: "Decree sheet not yet drawn up." The confusion lay in the fact that the plaintiff supposed that the decree was in the course of preparation. That that confusion did not exist in the mind of the plaintiff is clear from the subsequent petition he filed in which he referred to the body of the order of 29th October 1931, which made no reference to the note which I have just read and in the most specific terms he set out the effect of Rule 11, Chap. 5 of the General Rules and Circular Orders.

The first point it seems to me, if it came to be determined by this Court, would have to fail. The next question is whether Rule 11, Chap. 5 is ultra vires. All I need say in regard to the matter is that if in fact Rule 11, Chap. 5 is ultra vires, it is a matter of great surprise to me that the same contention was not made and dealt with in the case of Pramatha Nath Roy v. Lee AIR 1922 PC 352, to which I have already made reference. That case dealt with Rule 27, Chap. 16 of the Rules and Orders of the Calcutta High Court on the Original Side and was not dissimilar in its effect from the rule of this Court being Rule 11, Chap. 5.

It is said that this rule is ultra vires by reason of Section 33, Civil P.C., and that Section 33 applies to all High Courts on the Original Side or on the Appellate Side and provides as follows:

The Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow.

To repeat myself I say that it is a matter of surprise that if there was any substance in this argument the same argument would have been put forward before the Judicial Committee of the Privy Council in Pramatha Nath Boy v. Lee AIR 1922 PC 352. If Rule 11, Chap. 5 is contrary to Section 33, Civil P.C., then equally Rule 27, Chap. 16 of the Rules on the Original Side of the Calcutta High Court is ultra vires.

But on a proper construction of Section 33 of the Code, it seems to me that the argument put forward is quite unsupportable. Section 33 merely states that the decree shall follow the judgment; it in no way precludes the Court from following the practice of preparing a decree when an application is made, and in my judgment it doss not preclude the High Court from making a rule that where a decree is unnecessary no decree should be prepared. That seems to me to be the effect of Rule 11, Chap. 5 of the Rules of this Court. That would in my judgment, dispose of the matter. But it is contended that had this point been taken an application would have been made u/s 5, Limitation Act. It seems to me that it is quite clear from the record of the case that no such application was made and it would be difficult to extract from the facts which appear to be admitted before this Court that there was any valid reason why time should be extended u/s 5, Limitation Act. But as the question of limitation may depend upon facts which are not before this Court and as the appellant has sworn an affidavit to the effect that the point was argued, but not dealt with by the lower appellate Court, it seems to me to be a matter for determination by that Court.

In those circumstances the case will be remanded to the District Judge for the purpose of determining the question of limitation. The costs of this appeal will abide the result of the hearing in the Court below.

Varma, J.

I agree.