M/S Pepsi Foods Limited Vs. Collector of
Central Excise, Chandigarh  INSC 257 (5 December 1960)
GUPTA, K.C. DAS
CITATION: 1961 AIR 832 1961 SCR (2) 918
CITATOR INFO :
F 1967 SC1470 (5) RF 1972 SC 414 (32) RF 1977
SC2319 (10) D 1978 SC 537 (4) R 1983 SC 786 (9,20) RF 1992 SC 109 (6)
Appeal--Decree not Prepared--Appeal filed
without copy of decree--Competency of--Subsequently decree prepared and copy
filed--Limitation--Code of Civil Procedure, 1908(V of 1908) 0. 41, r. 1--Indian
Limitation Act, 1908 (IX of 1908) s. 12(2).
The respondents filed a suit for specific
performance against the appellant which was dismissed on March 12, 1954.
On March 24 the respondents made an
application for a certified copy of the judgment and decree. The decree was not
drawn up and the respondents were supplied a certified copy of the judgment and
the memo of costs. The respondents filed an appeal before the High Court
without the certified copy of the decree and only with the certified copy of
the judgment and the memo of costs. The appeal was admitted under 0. 41, r. 11
Code of Civil Procedure on August 30, 1954. On December 23, 1958, the appellant served a notice on the respondents that he would raise a preliminary
objection at the hearing that the appeal was incompetent as a certified copy of
the decree was not filed as required by
0. 41, r. 1. On December 24, 1958, the respondents moved the trial Court for drawing up of the decree, but since the record
was in the High Court this could not be done. At the hearing of the appeal, the
appellant raised the preliminary objection, but the High Court passed an order
on December 15, 1959, allowing the respondents one month's time for getting a
decree drawn up and obtaining. a copy and directed the record to be sent to the
trial Court. Against this order the appellant preferred an appeal to the
Supreme Court contending that the High Court was bound to dismiss the appeal as
it was manifestly incompetent under 0. 41, r. 1.
Subsequently, on December 23, 1959, the respondents obtained a certified copy of the decree and filed it before the High Court
the same day. The appellant contended that the appeal was to be deemed to be
filed on this date and was time barred.
Held, that in the circumstances of this case
the order passed by the High Court was right.' There was no doubt that
0. 41, r. 1 was mandatory and in the absence
of or the decree the filing of the appeal was incomplete, defective and incompetent.
The office of the trial Court was negligent in not drawing up a decree and the
office of the High Court was also not as careful as it should have been in
examining the appeal and these have contributed substantially to the
unfortunate position. In such a case, the respondents deserved to be protected.
Besides the, 919 question had become academic and technical in view of subsequent
events. The certified copy of the decree was filed on December 23, 1959, and even if the appeal was considered to have been filed on that date, it was
within time. Under s.
12(2) of the Limitation Act the respondents
could treat the time taken in the drawing up of the decree after the
application for a certified copy thereof had been made as part of the time
taken in obtaining the certified copy of the decree.
Tarabati Koer v. Lala jagdeo Narain, (1911)
15 C.W.N. 787, Bani Madhub Mitter v. Matungini Desai, (1886) I.L.R. 13 Cal.
104 (F.B.), Gabriel Christian v.'Chandra
Mohan Missir, (1936), I.L.R. 15 Pat. 284(F.B.), Jayashankar Mulshankar Mehta v.
Mayabhai Lalbhai Shah, (1951) 54 B.L.R 11 (F.B.), Gokul Prasad v. Kunwar
Bahadur, (1935) I.L.R. 10. Luck. 250 and Umda v. Rupchand, (1926) 98 I.C. 1057
(F.B.), referred to. Rodger v. Comptoir d'Escompte de Paris, (1871) L.R. 3 P.C.
465, relied on.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 222 of 1960.
Appeal from the judgment and order dated December 15, 1959, of the Punjab High Court (Circuit Bench), Delhi, in R. F. Appeal No.
77-D of 1954.
G. S. Pathak and B. C. Misra, for the
Mukat Behari Lal Bhargava and J. P. Goyal,
for respondents Nos. 1 to 7.
1960. December 5. The Judgment of the Court
was delivered by GAJENDRAGADKAR, J.-The short question of law( which arises for
decision in, the present appeal by special leave is whether the appeal
preferred against the appellant and respondents 8 and 9 in the High Court of
Punjab by respondents 2 to 7 'was competent in law or not. This question arises
unDer somewhat unusual circumstances. It appears that an agreement of sale of
one third of the one fourth share in the property covered by the document was
entered into between Gokal Dhish Bhargava and the appellant Jagat Dhish
Bhargava. Gokal Dhish Bhargava sued the appellant and pro forms respondents 8
and 9 for specific performance of the said agreement of sale in the Court of
the Senior Civil Judge, New Delhi (Civil Suit No. 684/128 of 1949/50). This
suit was dismissed on 920 March 12, 1954. , Pending decision in the trial court
Gokal Dhish Bhargava (fled and his son Jawahar Lal Bhargava, respondent 1 and
Chunni Lal Bhargava were brought on the record as legal representatives. After
the suit was dismissed and before the appeal in question was preferred in the
High Court Chunni Lal Bhargava died; thereupon respondents 2 to 7, as his legal
representatives, joined respondent 1 in preferring an appeal against the said
decree in the High Court of Punjab. The memo of appeal along with the judgment
dismissing the suit and the taxed bill of costs endorsed on the back of the
last page of the judgment was filed in the High Court on July 29, 1954. It is
the competence of this appeal that was questioned before the High Court and is
in dispute before us in the present appeal.
The record shows that on March 24,1954, an
application was made by respondents 2 to 7 (who will be called the respondents
hereafter) for a certified copy of the judgment and decree passed in the said
suit for specific performance.
A certified copy of the judgment and the bill
of costs was supplied to them but the decree had not been drawn up and no copy
of the decree was therefore supplied to them. In the result the appeal was
filed without the certified copy of the decree and only with the certified copy
of the judgment and the bill of costs. On August 2, 1954, the Assistant
Registrar of the High Court returned the memo of appeal filed by the
respondents to their counsel and pointed out to him that' since no copy of the
decree had been filed the presentation of the appeal was defective and the
defect needed to be rectified. Thereafter, on August 16, 1954, the respondents'
counsel refiled the appeal with an endorsement that a memo of costs alone had
been prepared by the trial court and no decree had been drawn up, and so the
appeal should be held to be properly filed. Apparently this explanation was
treated' as satisfactory by the office of the High Court and the appeal was
registered as No. 77-D of 1954.
In due course the appeal was placed for
preliminary hearing under 0. 41, r. 11 of the Code of Civil 921 Procedure
before Dulat, J. who admitted it on August 30, 1954. Notice of the appeal was
accordingly served on the appellant and the pro forma respondents. Ultimately
when the appeal became ready for hearing it was put up on the Board of the
Circuit Bench of the High Court to be heard on December 26, 1958. Meanwhile on
December 23., 1958, the appellant served a notice on the respondents' counsel
intimating to him that he proposed to raise a preliminary objection against the
competence of the appeal on the ground that the decree under appeal had not
been filed as required under 0. 41, r. 1 along with the memo of appeal and the
certified copy of the judgment. Next day, that is to say on December 24, 1958,
the respondents moved the trial Court for drawing up of the decree, but since
the record had in the meantime been sent by the trial Court to the High Court
no decree could be drawn up by the trial Court, and so the motion became
infructuous. The appeal, however, did not reach hearing on December 26, 1958. On
December 29, 1958, the respondents moved the Court that the appeal should be
declared to be maintainable as the memo of costs which alone had been prepared
by the trial Court read along with the concluding paragraph of the judgment may
be held to satisfy the requirements of the decree; in the alternative they
prayed that the record of the suit in the trial Court should be sent for to
enable them to get a decree prepared with a view to file the same in the High
Court along with their appeal. Bishan Narain, J., before whom this application
was taken out for orders, directed that it may be heard by the Bench which
would hear the appeal.
Eventually the appeal came on for hearing
before Falshaw and Chopra, JJ. on De ember 8, 1959. At the said hearing the
appellant raised a preliminary objection that the appeal was not competent
having regard to the mandatory provisions of
0. 41, r. 1, and urged that the appeal should
be dismissed as incompetent. This preliminary objection was, however, not
upheld by the High Court, and it was held that "the proper course to
follow was to allow the respondents a 922 month's time for the purpose of
getting a decree drawn up in the proper form by the lower Court and obtaining a
copy thereof ". Accordingly the record which had in the meanwhile been
received by the High Court after the appeal was admitted under 0. 41, r. 11 was
ordered to be sent back to the lower Court without delay. It is against this
order which was passed by the High Court on December 15, 1959, that the present
appeal by special leave has been filed. On behalf of the appellant Mr. Pathak
contends that the appeal filed before the High Court was plainly and manifestly
incompetent, and so the High Court was in error in not dismissing it on that
The position of law under 0. 41, r. 1 is
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 requirements 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
That, however, cannot finally dispose of the
point raised by the appellant before us. In the present case the respondents
had applied for a certified copy of 923 the judgment as well as the decree in
the trial Court on March 24, 1954, and they were not given a copy of the decree
for the simple reason that no decree was drawn up; what they were given was a
copy of the judgment and taxed bill of costs endorsed on the back of the last
page of the judgment.
These documents they filed along with their
memo of appeal;
but that would not affect the mandatory
requirement of 0. 41, r. 1. In considering the effect of this defect in the
presentation of the appeal we must bear in mind the rules of procedure in
regard to the drawing up of the decree. The position in that behalf is
absolutely clear. Section 33 of the Code of Civil Procedure requires that the
Court, after the case has been heard, shall pronounce judgment, and on such
judgment a decree shall follow. Order 20, r. 3 provides, inter alia, that the
judgment shall be dated and signed by the judge in the open Court at the time
of pronouncing it, and under r. 4, sub-r. (2) a judgment has to contain a
concise statement of the case, the points for determination, the decision
thereon and the reasons for such decision. Rule 6 of the same Order prescribes
tents of the decree. It provides that the
decree shall agree with the judgment and shall contain the particulars therein
specified. Under r. 7 it is provided that the decree shall bear the date, the
day on which the judgment was pronounced, and it directs that when the judge
has satisfied himself that the decree has been drawn up in accordance with the
judgment he shall sign the decree. It is, therefore, clear that the drawing up
of the decree in the present case was the function and the duty of the office,
and it was obligatory on the judge to examine the decree when drawn up, and if
satisfied that it has been properly drawn up to sign it. Except in places where
the dual system prevails the litigant or his lawyer' does not play any material
or important part in the drawing up of the decree. In fact the process of
drawing up of the' decree is beyond the litigant's control. Therefore, there is
no doubt whatever that in failing to draw up a decree in the present suit the
office of the trial Court was negligent in the discharge of its duties, and 924
the said negligence was not even noticed by the learned trial judge himself.
Unfortunately, when the appeal was presented
in the High Court, even the office of the High Court was not as careful in
examining the appeal as it should ,,have been, and as we have already indicated
the appeal passed through the stage of admission under 0. 41, r. 11 without the
defect in the appeal being brought to the notice of the learned judge who
admitted it. Thus it is quite clear on the record that the respondents had
applied for a certified copy of the judgment and the decree, and when they were
given only a certified copy of the judgment and the bill of costs they filed
the same along with the memo of appeal in the bona fide belief that the said
documents would meet the requirements of 0.
41, r. 1. It is true that before the appeal
came on for actual hearing before the High Court the appellant gave notice to
the respondents about his intention to raise a preliminary objection that the
appeal had not been properly filed; but, as we have already pointed out, the
attempt made by the respondents to move the trial Court to draw up the decree proved
infructuous and ultimately the High Court thought that in. Fairness to the
respondents they ought to be allowed time to obtain the certified copy of the
decree and file it before it; and so the High Court passed the order under
appeal. The appellant contends that this order is manifestly erroneous in law;
according to him the only order which could and should have been passed was to
dismiss the appeal as incompetent under 0. 41, r.1.
The problem thus posed by the appellant for
our decision has now become academic because subsequent to the decision of the
High Court under appeal the respondents have in fact obtained Po certified copy
of the decree on December 23, 1959, and have filed it in the High Court on the
This fact immediately raises the question as
to whether the appeal which has admittedly been completely and properly filed
on December 23, 1959, was in time or not. If it appears that on the date when
the decree was thus filed the 925 presentation of the appeal was in time then
the objection raised by the appellant against the propriety or the correctness
of the High Court's order under appeal would be purely technical and academic.
The answer to the question as to whether the
presentation of the appeal on December 23, 1959, is in time or not would depend
upon the construction of s. 12, sub-s. (2) of the Limitation Act. We have
already noticed that the period prescribed for filing the present appeal is 90
days from the date of the decree. Section 12, sub-s. (2) provides, inter alia,
that in computing the period of limitation "the time requisite for
obtaining a copy of the decree shall be excluded". What then is the time
which can be legitimately deemed to have been taken for obtaining the copy of
the decree in the present case? Where a decree is not drawn up immediately or
soon after a judgment is pronounced, two types of cases may arise. A litigant
feeling aggrieved by the decision may apply for the certified copy of the
judgment and decree before the decree is drawn up, or he may apply for the said
decree after it is drawn up. In the former case, where the litigant has done
all that he could and has made a proper application for obtaining the necessary
copies, the time requisite for obtaining the copies must necessarily include
not only the time taken for the actual supply of the certified copy of the
decree but also for the drawing up of the decree itself. In other words, the
time taken by the office or the Court in drawing up a decree after a litigant
has applied for its certified copy on judgment being pronounced, would be
treated as a part of the time taken for obtaining the certified copy of the
said decree. Mr. Pathak has fairly conceded that on this point there is a
consensus of judicial opinion, and in view of the formidable and imposing array
of authorities against him he did not raise any contention about the validity
of the view take in all those cases. (Vide: Tarabati Koer v. Lala Jagdeo Narain
(1); Bani Madhub Mitter v. Mathungini Dassi & Ors. (Full Bench) (2);Gabriel
Christian v. (1) (1911) 15 C.W.N. 787.
(2) (1886) I.L.R. 13 Cal104.
926 Chandra Mohan Missir (Full Bench) (1);
Jayashankar Mulshankar Mehta v. Mayabhai Lalbhai Shah (Full Bench) (2);
Gokul Prasad v. Kunwar Bahadur & Ors.(3);
and Umda v. Rupchand & Ors. (Nagpur Full Bench) (1)).
There is, however, a sharp difference of
opinion in regard to cases where an application for a certified copy of the
decree is made after the said decree is drawn up. In dealing with such cases
Courts have differed as to what would be the period requisite for obtaining the
certified copy of the decree. The Bombay, Calcutta and Patna High Courts,
appear to have held that the period taken in drawing up of the decree would be
part of the requisite period, while other High Courts have taken a contrary
view. It is significant that though the High Courts have thus differed on this
point, in every case an attempt is judicially made to do justice between the
parties. With that aspect of the problem, however, we are not concerned in the
The position, therefore, is that when the
certified copy of the decree was filed by the respondents in the High Court on
December 23, 1969, the whole of the period between the date of the application
for the certified copy and the date when the decree was actually signed would
have to be excluded under s. 12, sub-s. (2). Inevitably the presentation of the
appeal on December 23, 1959 would be in time. It is true that more than five
years have thus elapsed after the pronouncement of the judgment but for this
long delay and lapse of time the respondents are not much to blame. The failure
of the trial Court to draw up the decree as well as the failure of the relevant
department in the High Court to examine the defect in the presentation of the
appeal at the initial stage have contributed substantially to the present
unfortunate position. In such a case there can be no doubt that the litigant
deserves to be protected against the default committed or negligence shown by
the Court or its officers in the discharge of their duties. As observed by
Cairnes, L. C. in Rodger v. Comptoir (1) (1936) I.L.R. 15 Pat. 284.
(2) (1951) 54 B.L.R. II.
(3) (1935) I.L.R. 10 Lucknow 250.
(4) (1926) 98 I.C. 1057.
927 d' Escompte de Paris (1) 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 suitors"; that is why we
think that in view of the subsequent event which has happened in this case,
namely, the filing of the certified copy of the decree in the, High Court, the
question raised by the appellant has( become technical and academic.
Faced with this position Mr. Pathak attempted
to argue that the application made by the respondents on March 24, 1954, was
not really an application for a certified copy of the decree; he contendea that
it was an application for the certified copy of the judgment and the bill of
costs. This argument is wholly untenable. The words used in the application
clearly show that it was an application for a certified copy of the judgment as
well as the decretal order, and as subsequent events have shown, a certified
copy of the decree was ultimately supplied to the respondents in pursuance of
Then it was argued that the respondents
should have moved the trial Court for the drawing up of a decree as soon as
they found that no decree a been drawn up. It may be assumed that the
respondents might have adopted this course;
but where the dual system does not exist it
would be idle to contend that it is a part of the duty of a litigant to remind
the Court or its office about its obligation to draw up a decree after the
judgment is pronounced in any suit.
It may be that decrees when drawn up are
shown to the lawyers of the parties; but essentially drawing up of the decree
is the function of the Court and its office, and it would be unreasonable to
penalise a party for the default of the office by suggesting that it was
necessary that the party should have moved the Court for the drawing up of the
decree. Therefore, we are not satisfied that tie appellant is justified in
attributing to the respondents any default for which the penalty of dismissing
their appeal can be legitimately imposed on them. The result is that the appeal
preferred by the respondents on December 23, (1) (1871) L.R. 3 P.C. 465, 475.
928 1959, is proper and in time and it can
now be dealt with in accordance with law. It is true that in the circumstances
over which the respondents had no control the appeal in question has already
been admitted under 0. 41, r. 11, and as a result of the decision under appeal
it may not have to go through that process again. Dulat, J. who heard the
appeal for admission was satisfied that it deserved to be admitted and we do
not think it necessary to require that the present appeal should go through the
formality of the procedure prescribed by 0. 41, r. 11 once again. This position
is no doubt, unusual, but in the circumstances of the case it is impossible to
say that the order passed by the High Court is not fair and just.
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 0. 41, r. 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
0. 41 with regard to the filing of the decree
being of a mandatory character. It would be difficult to accede 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 discovery the defect the appeal may be returned to the appellant
for presentation 929 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 0. 41, r. 11. It would thus be
clear that no hard and fast 'rule of general applicability can be laid down for
dealing with appeals defectively filed under 0. 41, r. 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 scrutinized 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 930 apply for a certified copy of the decree and then proceed with the
In this connection our attention has been
drawn to the fact that in the Punjab High Court two conflicting and inconsistent
views appear to have been taken in its reported decisions. Dealing with appeals
filed with-out a certified copy of the decree some decisions have dismissed the
appeals as defective, and have given effect to the mandatory words in 0. 41, r.
1, without presumably examining the question as to whether the failure of the
trial Court to draw up the decree would have any bearing or relevance on the
point or not. (Vide: Gela Ram v. Ganga Ram(1); Municipal Committee, Chiniot v.
Bashi Ram (2); Mubarak Ali Shah v.
Secretary of State (3); Nur Din v. Secretary
of State (4) Hakam Beg v. Rahim Shah (5); Fazal Karim v. Des Raj (6); and
Banwari Lal Varma v. Amrit Sagar Gupta (7). On the other hand it has in some
cases been held that it would be fair and just that the hearing of the appeal
should be adjourned to enable the appellant to obtain a certified copy of the
decree and produce it before the appellate Court (Vide:
Manoharlal v. Nanak Chand (8); Mt. Jeewani v.
Mt. Misri (9); and, Sher Muhammad v. Muhammad Khan (10). It would obviously
have been better if this conflict of judicial opinion in the reported decisions
of the High Court had been resolved by a Full Bench of the said High Court but
that does not appear to have been done so far. However, as we have indicated,
the question about the competence of the appeal has to be judged in each case
on its own facts and appropriate orders must be passed at the initial stage
soon after the appeal is presented in the appellate Court. If any disputed
question of limitation arises it may have to go before the Court for judicial
In the result the order passed by the High
Court is right.
Having regard to the fact that the decree (1)
A.I.R. (1920) 1 Lah. 223 (3) A.I.R. (1925) Lah. 438.
(5) A I.R. (1927) Lah. 912.
(7) A.I.R. (1940) East Punj. 400.
(9) A.I.R. (1919) Lah. 125.
(2) A.I.R (1922) Lah. 170.
(4) A. I.R. (1927) Lah. 49.
(6) 35 Punj. L.R. 471.
(8) A.I.R. (1919) Lah. 53.
(10) A.I.R. (1924) Lah. 352.
931 under appeal has already been filed by
the respondents before the High Court on December 23, 1959, the High Court should now proceed to hear the appeal on the merits and deal with it in
accordance with law. In the circumstances of this case we make no order as to