The adjudication of a Civil Court ends either in form of:
(i) Decree; or
(ii) Order.
Q.
"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.
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. It may be partly preliminary and partly final.1
A "decree" denotes final adjudication between the parties and against which an appeal lies, but only when a suit is completely disposed of, thereby a final decree would come into being; Bikoba Deora Gaikward v. Hirabai Marutirao Ghoragare, MANU/SC/2540/2008 : (2008) 8 SCC 198.
Thus, 'decree' means a general or formal expression of an adjudication 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:
(a) preliminary; or
(b) final.
________________
1. Section 2(2) of the Code of Civil Procedure, 1908.
The order rejecting application for condonation of delay is not a decree. Consequently, dismissal of appeal as time-barred is also not a decree, State of Rajasthan v. Rajpal Singh Chauhan, MANU/RH/0446/2011 : AIR 2011 Raj 101.
Q.
From a bare reading of the above definition and particular case laws it is evident that a 'decree' must have the following elements; Paramjeet Singh Patheja v. ICDS Ltd., (2006) 11 SCALE 459: MANU/SC/4798/2006 : AIR 2007 SC 168: 2006 (4) Arb LR 202 (SC): 2007 (4) Bom CR 447: (2006) 6 Comp LJ 425 (SC): 2006 (5) CTC 357: JT 2006 (10) SC 41:
(i) the adjudication must be given in a suit.
(ii) the suit must start with a plaint and culminate in a decree.
(iii) such adjudication must be formal and final and must be given by a civil or revenue court.
Adjudication means "a judicial determination of a matter in controversy". Thus a decision on a matter of an administrative nature or an order dismissing a suit for default of the appearance of parties or dismissing an appeal for want of prosecution cannot be termed as a decree inasmuch as it does not deal with the matter in dispute. Further, such judicial determination must be by a court.
In the definition, some orders which otherwise do not constitute decree are also included and certain orders which constitute decree have been excluded from it. There must be a formal expression of adjudication. All requirement of forms must be complied with. The decree follows judgment and must be drawn up separately. Thus, if a decree is not formally drawn up in terms of the judgment, no appeal lies from the judgment. Thus, a misdescription of a decision as an order which amounts to a decree, does not make it less than decree.
In order that a decision of a court should become a decree, there must be an adjudication in a suit and such adjudication must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit and such determination must be of a conclusive nature. If those parameters are to be applied then rejection of application for condonation of delay will not amount to a decree; Ratan Singh v. Vijaya Singh, AIR 2001 SC 279.
'Suit' ordinarily means "a civil proceeding instituted by presentation of a plaint." Thus, every suit is commenced by a plaint; Jagdishwar Sahai v. Surjan Singh Pal, MANU/UP/0145/1977 : AIR 1977 All 554, and when there is no civil suit there is no decree; Minakshi v. Subranranaya, 14 IA 160. However, under certain enactments specific provisions have been made to treat application as suit, e.g., it was held in Mst. Bhonri v. Suwalal, MANU/RH/0036/1956 : AIR 1956 Raj 119 that decision in an application for probate cannot be held to be a decree by virtue of section 295 of the Indian Succession Act, 1925, which enacts that an application for probate has to be regarded, where contested, as a regular suit, as it is only an adjudication given in a suit, commencing with the presentation of a plaint that is a decree under section 2(2) of the Code of Civil Procedure, 1908. A contrary view has been taken by the Allahabad High Court in E. Moah Stephens v. H.G. Orme, 35 All 448.
The determination of a question under section 47 of the Code of Civil Procedure, 1908 was expressly included in the definition of a decree, although such determination was not made in a suit and sometimes not drawn up in the form of a decree; Shakuntala Devi Jain v. Kuntal Kumari, MANU/SC/0335/1968 : AIR 1969 SC 575: (1969) 1 SCR 1006.
(iii)
The word "rights" means substantive rights of the parties and not merely procedural rights. Thus, 'rights of parties' inter se relating to status, limitation, jurisdiction, frame of suit, accounts, etc. The rights in matter of procedure are not included in it. Thus, an order for dismissal of a suit for default of appearance or an order for dismissing application for execution for non-prosecution or an order refusing leave to sue "in forma pauperis", are not decrees as they do not determine the rights of parties.
Mst. Chauli v. Mst. Meghoo, MANU/UP/0069/1944 : AIR 1945 All 268 most exaggeratedly explained the essential elements of a "decree" as follows:
(i) there must be an adjudication.
(ii) the adjudication must have been given in a suit.
(iii) it must have determined the rights of the parties with regard to all or any of the matters in controversy in suit.
(iv) such determination must be a conclusive determination.
(v) there must be a formal expression of the adjudication.
The definition of decree must be taken along with the provisions of the Code regarding the stage at which a decree may be prepared, and it is not every finding that will amount to a decree even though it may conclusively determine the rights of the parties with regard to some of the matters in controversy in the suit.
The term "parties" means parties to the suit, i.e., the plaintiff and defendant. Thus, an order on an application by a third party, who is stranger to a suit, is not a decree.
The expression "matter in controversy" refers to the subject-matter of the suit with reference to which relief is sought. It should not be understood that the 'matter in controversy' solely relates to the merits of the suit. It would also cover questions relating to the character and status of a party suing, to the jurisdiction of the Court, to the maintainability of the suit and to the preliminary matters which necessitate an adjudication before a suit is enquired into. Interlocutory orders on matters of procedure which do not decide the substantive rights of the parties are not decrees. Similarly, the proceedings preliminary to the institution of a suit will not be included in the definition.
Therefore, any adjudication which conclusively determines the rights of the parties with regard to any of the matters in controversy in the suit, is a decree within the meaning of section 2(2) of the Civil Procedure Code and an appeal lies against it under section 96 of the Civil Procedure Code.
The expression "matters in controversy" includes matters which though they are common ground must have been actually decided if any question had arisen and which are the foundation of the whole determination. Ummed Mal v. Kundanmal, MANU/RH/0045/1981 : AIR 1981 Raj 202.
(iv)
The conclusive determination, in order to amount to a decree must be on matters in controversy in the suit. The determination must be final and conclusive as regards to the court which passes it. Thus, an interlocutory order which does not decide the rights of the parties finally is not a decree. 'Decree' should suggest in essence and substance, a decision which is final and conclusive not that the question sought to be adjudicated is left open. The order cannot be held to be an adjudication which conclusively determines the rights of the parties with regard to any of the matters in controversy in the suit; Goppupeddi Reddi v. Gopu T. Reddy, AIR 1991 AP 362.
(v)
For determining the question as to whether an order passed by a Court is a decree or not, it must satisfy the following tests:
(a) there must be an adjudication.
(b) such adjudication must have been given in a suit.
(c) it must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit.
(d) such determination must be of a conclusive nature.
(e) there must be a formal expression of such adjudication. S. Satnam Singh v. Surender Kaur, MANU/SC/8431/2008 : AIR 2009 SC 1089.
(A) Decisions which are 'decrees':
(i) Orders of abetment of suit.
(ii) Dismissal of appeal as time-barred.
(iii) Rejection of plaint for non-payment of court-fee.
(iv) Order holding appeal non-maintainable.
(v) Dismissal of suit/appeal for want of evidence/proof.
(vi) Adjudication under sections 9-11 and 13 of the Hindu Marriage Act, 1955; Bai Umiyahen v. Ambalal Laxmidas, MANU/GJ/0043/1966 : AIR 1966 Guj 139: (1965) GLR 714; Gurbachan Kaur v. Swaran Singh, MANU/UP/0062/1978 : AIR 1978 All 255.
(B) Decisions which are not 'decrees':
(i) Dismissal of appeal for default.
(ii) Appointment of Commissioner to take account.
(iii) Order of remand.
(iv) Order of granting interim relief under section 24 of the Hindu Marriage Act, 1955; Man Singh v. Siva Prabakumari, MANU/MH/0292/1959 : AIR 1960 Bom 315.
(v) Order admitting second appeal is not a decree. S.B. Minerals v. M/s. MSPL Ltd., MANU/SC/1945/2009 : AIR 2010 SC 1137.
(vi) Order rejecting an application for leave to sue in forma pauperis for no suit has till than been filed; Narasingha Das v. Ratiram Gupta, AIR 1965 Hyd 41.
(vii) Orders passed in proceedings under section 25 of the Guardians and Wards Act, 1890; Mst. Kiran Devi v. Abdul Wahid, AIR 1996 All 105.
In Sardar Pritam Singh v. Addl. District Judge, Mathura, 1995 All CJ 971 it was held that,
"A decree is said to be nullity if it passed by a court having no inherent jurisdiction. Merely because a court erroneously passed a decree or there is an error while passing the decree, the decree cannot be called a nullity. The decree to be called a nullity is to be understood in the sense that it is ultra vires the powers of the court passing the decree and not merely voidable decree."
According to the definition provided under section 2(2) of the Civil Procedure Code, 1908, a 'decree' may be either "preliminary' or 'final' or 'partly preliminary' or 'partly final', it shall be deemed to include:
(i) the rejection of a plaint; and
(ii) the determination of any question within section 144.
However, it shall not include:
(i) any adjudication from which an appeal lies as an appeal from an order; or
(ii) any order for dismissal for default.
Q.
|
Decree |
|
|
(A) Preliminary Decree |
(B) Final Decree |
An adjudication that finally decides the right of parties but does not completely dispose of the suit is a preliminary decree; Venkata Reddy v. Pethi Reddy, AIR 1963 SC 993. So, in preliminary decree, certain rights are conclusively determined and unless the preliminary decree is challenged in appeal, the rights so determined become final and conclusive and cannot be questioned in the final decree; Parvathamma v. A. Muniyappa, MANU/KA/0062/1997 : AIR 1997 Kant 370: 1997 (4) Kant LJ 95. Suit for possession and mesne profits, suits for pre-emption, suit for dissolution of partnership between principal and agent, for foreclosure of mortgage, etc., are examples where courts can pass preliminary decree. There has been complicating opinion as to whether there can be more than one preliminary decree in a same suit. However, as regard to partition suits, the Supreme Court in Phoolchand v. Gopal Lal, MANU/SC/0284/1967 : AIR 1967 SC 1470: (1967) 3 SCR 153 concluded that there is nothing in the civil code which prohibits passing of more than one preliminary decree, if circumstances justify the same and it may be necessary to do so, but what we are saying must be confined to partition suits. The question whether a decision amounts to preliminary decree or not is of great significance in view of provisions of section 97 of the Civil Procedure Code, 1908:
"Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree."
The object of section 97 is to prevent preliminary questions being raised in the form of appeal after a case has been decided on merits. Since the passing of a preliminary decree is only a stage prior to passing of a final decree, if an appeal preferred against a preliminary decree succeeds, the final decree automatically falls to the grounds for there is no preliminary decree in support of it.
(2)
A decree may be said to be final in three ways:
(i) when no appeal is filed within the prescribed period; or
(ii) the matter has been decided by the decree of the highest court; and
(iii) when the decree, so far as regards the Court passing it, completely disposes of the suit.
Q.
The final decree merely carries into fulfilment of the preliminary decree; S. Balwant Lokhande v. Chandrakant Shankar Lokhande, MANU/SC/0243/1995 : (1995) 3 SCC 413: AIR 1995 SC 1211: JT 1995 (3) SC 186: (1992) II LLJ 18 (SC): (1995) 2 SCALE 318: (1995) 2 SCR 776: 1992 (1) SLJ 7 (SC): 1995 (1) UJ 707 (SC). Where an appeal against a preliminary decree is not filed the rights determined therein become final and conclusive and the same cannot be questioned in the final decree; Parvathamma v. A. Muniyappa, MANU/KA/0062/1997 : AIR 1997 Kant 370: 1997 (4) Kant LJ 95.
A final decree is one which completely disposes of a suit and finally settles all questions in controversy between parties and nothing remains to be decided thereafter. While the preliminary decree ascertains what is to be done, the final decree states the results achieved by means of the preliminary decree. The preliminary decree is not dependant on the final one, but the latter is really dependent and subordinate to the former, which is the not extinguished by the passing of the final decree. Thus, in a partition suit, the preliminary decree declares the rights of the parties and the final decree divides the properties specifically by metes and bounds in terms of rights so declared, thereby completely disposing of the suit. All executable decree is thus secured to the parties. The function of the final decree is merely to restate and apply with precision what the preliminary decree has ordered.
Ordinarily, there will be only one final decree in a suit. However, where two or more causes-of-action are joined to, there can be more than one final decree.
In Renu Devi v. Mahendra Singh, MANU/SC/0112/2003 : (2003) 10 SCC 200: AIR 2003 SC 1608: 2003 (51) BLJR 699: 2003 (2) JCR 195 (SC): JT 2003 (5) SC 164: (2003) 2 SCALE 22: (2003) 1 SCR 820 the Supreme Court made out the distinction between 'Preliminary' and 'Final' decree in the following manner:
"A preliminary decree is one which declares the rights and liabilities of the parties leaving the actual result to be worked out in further proceedings. Then, as a result of the further inquiries conducted pursuant to the preliminary decree, the rights of the parties are finally determined and a decree is passed in accordance with such determination, which is, the final decree.
The distinction between preliminary and final decree is this: a preliminary decree merely declares the rights and shares of the parties and leaves room for some further inquiry to be held and conducted pursuant to the directions made in the preliminary decree which inquiry having been conducted and the rights of the parties finally determined a decree is incorporating such determination needs to be drawn up which is the final decree."
In Rachakonda V. Rao v. R. Satya Bai, MANU/SC/0702/2003 : AIR 2003 SC 3322: 2003 (6) ALD 110 (SC): 96 (2003) CLT 749 (SC): JT 2004 (6) SC 83: (2003) 7 SCALE 430: (2003) 7 SCC 452, it was observed by the Apex Court that, the explanation to section 2(2) of the Civil Procedure Code, 1908 makes it clear that 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. A decree may be partly preliminary and partly final.
(3)
Q.
A decree inheriting characteristics of partly preliminary and partly final is passed in suits as for possession of land and mesne profits, the court orders possession of the land in suit in favour of the plaintiff, and directs enquiry regarding the profits. The first portion of the decree is final as it directs the delivery of possession to the plaintiff, while the second portion is preliminary in as much as it directs an enquiry as to mesne profits. Where in a suit for possession as well as mesne profits a single decree is made, it is partly preliminary and partly final.1
The definition of 'decree' as provided under section 2(2) of the Civil Procedure Code, 1908 specifically provides that rejection of a plaint shall be deemed to be a 'decree'. Such adjudication is, therefore, appealable as a
____________
1. MANU/WB/0255/1929 : AIR 1929 Cal 383.
decree; Puranmasi Yadav v. Narbadeshwar Tripathi, MANU/UP/0175/1998 : AIR 1998 All 260:1998 (2) AWC 831. However, an order returning a plaint or memorandum of appeal to be presented to proper court is not a decree. The reason being that such orders do not negate any right of plaintiff or appellant and is not a decision on the rights of parties.
The term 'decree' expressly excludes an adjudication from which an appeal lies as an appeal from an order. Thus, an order returning the plaint to be presented to the proper court or an order rejecting an application for an order to be set aside ex parte decree, etc., are appealable orders and not decrees.
An appeal shall lie from the following orders:
An Order--
(i) suppressing an arbitration.
(ii) on an award stated in the form of a special case.
(iii) modifying or correcting an award.
(iv) filing or refusing to file an arbitration agreement.
(v) staying or refusing to stay legal proceedings where there is an arbitration agreement.
(vi) setting aside or refusing to set aside an award. Shah Babulal Khimji v. Jayaben D. Kania, MANU/SC/0036/1981 : AIR 1981 SC 1786.
A dismissal of suit for non-prosecution or for non-appearance of plaintiff is not a decree; Firdous Omer v. Bankim Chandra Daw, MANU/SC/3384/2006 : AIR 2006 SC 2759: 2007 (1) AWC 36 (SC): 2006 (4) JCR 84 (SC): JT 2006 (12) SC 545: (2006) 4 MLJ 1714 (SC): RLW 2007 (1) SC 191: (2006) 7 SCALE 439: MANU/SC/3384/2006 : (2006) 6 SCC 569, this is because definition of 'decree' does not include any order of 'dismissal for default' viz. for want of prosecution of suit or appeal, default for non-prosecution, etc.
Decree-holder.--
According to section 2(3) of the Civil Procedure Code, 1908:
'Decree-holder' means any person in whose favour a decree has been passed or an order capable of execution has been made;
The expression 'decree-holder' is not confined only to the plaintiff. It means that one in whose favour a decree has passed. Even, a person who is not a party to the suit but in whose favour an order capable of execution is passed is a 'decree-holder'. However, the word 'decree-holder' does not include an attaching creditor.
As long as a person whose name is inscribed on a decree is to be found as the person in whose favour the decree is passed, such person must be deemed to be a decree-holder. The name of decree-holder in certain cases may or may not appear as the plaintiff. Dhani Ram Gupta v. Lala Sri Ram, MANU/SC/0407/1979 : AIR 1980 SC 157.
According to section 2(9) of the Civil Procedure Code, 1908,
'Judgment' means the statement, given by the Judge on the grounds of a decree or order.
'Judgment' provides the reasons (or grounds) for the passing of the decree/order. Every judgment other than that of a Court of Small Causes, shall essentially contain:
(i) a concise statement of the case;
(ii) the point for determination;
(iii) the decision thereon;
(iv) the reason for such decision.
A doubtful expression occurring in a judgment, apparently by mistake or inadvertence, ought to be read by assuming that the court had intended to say only that which is correct according to the settled position of law, and the apparent error should be ignored, far from making any capital out of it, giving way to the correct expression which ought to be implied or necessarily read in the context, also having regard to what has been said a little before and a little after. No judge would consciously author a judgment which is self-inconsistent or incorporates passages repugnant to each other. State of West Bengal v. Kesoram Industries Ltd., AIR 2005 SC 1646.
For the Court of Small Causes, a judgment may contain points (ii) and (iii) mentioned hereinabove. Otherwise, a judgment must contain the grounds of the decision; Vidyacharan v. Khubachand Baghel, MANU/SC/0120/1963 : AIR 1964 SC 1099: (1964) 6 SCR 129.
Q.
Sketchy orders which are not self-contained and cannot be appreciated by an appellate or revisional courts without examining all records and if unsatisfactory cannot be said to be judgment in proper sense.
In State of West Bengal v. Kesoram Industries Ltd., AIR 2005 SC 1646: (2004) 187 CTR (SC) 219: (2004) 266 ITR 721 (SC): JT 2004 (1) SC 375: (2004) 1 SCALE 425: (2004) 10 SCC 201 it was held by Lahoti, J. that:
"A doubtful expression occurring in a judgment, apparently by mistake or inadvertence, ought to be read by assuming that the Court had intended to say only that which is correct according to the settled position of law, and the apparent error should be ignored, for making any capital out of it, giving way to the correct expression which ought to be implied or necessarily read in the context, also having regard to what has been said a little before and a little after. No learned Judge would consciously author a judgment which is self-inconsistent or incorporates passages repugnant to each other."
In Balraj Taneja v. Sunil Madan, MANU/SC/0551/1999 : AIR 1999 SC 3381: JT 1996 (6) SC 473: (1993) 5 SCALE 400: MANU/SC/0551/1999 : (1999) 8 SCC 396: (1999) Supp 2 SCR 258 the Supreme Court observed that, a Judge cannot merely say "suit decreed" or "suit dismissed". The whole process of reasoning has to be set out for deciding the case one way or the other. The judgment must be intelligible and must show that the Judge has applied his mind.
Judgments of courts are not construed as statutes since judges interpret words of statutes; Aswani Kumar Singh v. U.P. Public Service Commission, MANU/SC/0461/2003 : AIR 2003 SC 2661.
In Lakshmi Ram Bhuyan v. Hari Prasad Bhuyan, MANU/SC/1018/2002 : (2003) 1 SCC 197: AIR 2003 SC 351: 2003 (1) AWC 348 (SC): (2003) 2 Cal LT 34 (SC): JT 2002 (9) SC 542, it was observed by the Supreme Court that,
"Certain provisions of the Code of Civil Procedure, 1908 may be noticed. Order VII, rule 1 of the Code of Civil Procedure, 1908 requires the plaintiff to give sufficient particulars of the relief, which the plaintiff claims. Order XX requires a judgment to contain all the issues and findings or decision thereon with the reasons therefore. The judgment has to state the relief allowed to a party. The preparation of decree follows the judgment. The decree shall agree with the judgment. The decree shall contain, inter alia, particulars of the claim and shall specify clearly the relief granted or other determination of the suit. The decree shall also state the amount of costs incurred in the suit and by whom or out of what property and in what proportions such costs are to be paid. Rules 9 to 19 of Order XX are illustrative of contents of decrees in certain specified categories of suits. The very obligation cast by the Code that the decree shall agree with the judgment spells out an obligation on the part of the author of the judgment to clearly indicate the relief or reliefs to which a party, in his opinion, has been found entitled to enable decree being framed in such a manner that it agrees with the judgment and specifies clearly the relief granted or other determination of the suit. The operative part of the judgment should be so clear and precise that in the event of an objection being laid, it should not be difficult to find out by a bare reading of the judgment and decree whether the latter agrees with the former and is in conformity therewith. A self-contained decree drawn up in conformity with the judgment would exclude objections and complexities arising at the stage of execution.
The obligation is cast not only on the Trial Court but also on the Appellate Court. In the event of the suit having been decreed by the trial court if the Appellate Court interferes with the judgment of the Trial Court, the judgment of the Appellate Court should precisely and specifically set out the reliefs granted and the modifications, if any, made in the original decree explicitly and with particularity and precisely. Order XLI, rule 31 of the Code of Civil Procedure, 1908 casts an obligation on the author of the appellate judgment to state the points for determination, the decision thereon, the reasons for the decision and when the decree appealed from is reversed or varied, the relief to which the appellant is entitled. If the suit was dismissed by the trial court and in appeal the decree of dismissal is reversed, the operative part of the judgment should be so precise and clear as it would have been if the suit was decreed by the trial court to enable a self-contained decree being drawn up in conformity therewith. The plaintiff, being dominus litus, enjoys a free hand in couching the relief clause in the manner he pleases and cases are not wanting where the plaintiff makes full use of the liberty given to him. It is for the Court, decreeing the suit, to examine the reliefs and then construct the operative part of the judgment in such manner as to bring the reliefs granted in conformity with the findings arrived at on different issues and also the admitted facts. The Trial Court merely observing in the operative part of the judgment that the suit is decreed or an Appellate Court disposing of an appeal against dismissal of suit observing the appeal is allowed and then staying short at that, without specifying the reliefs to which the successful party has been found entitled tantamounts to a failure on the part of the author of judgment to discharge obligations cast on the Judge by the provisions of Code of Civil Procedure.
Where the reliefs prayed for in the plaint shows that the reliefs are not very happily worded. There are some reliefs which may not be necessary or may be uncalled for though prayed. The reliefs may have been considered capable of being recast or redefined so as to be precise and specific. May be that the Court was inclined to grant some other relief so as to effectually adjudicate upon the controversy and bring it to an end. Nothing is spelled out from the appellate judgment. The Trial Court, on whom the obligation was cast by second appellate judgment to draw up a decree, was also, as its order shows, not very clear in its mind and thought it safe to proceed on an assumption that all the reliefs sought for in the plaint were allowed to the plaintiffs. The Judge allowing the second appeal, should clearly and precisely state the extent and manner of reliefs to which the plaintiffs were found to be entitled in his view of the findings arrived at during the course of the appellate judgment. The parties, the draftsman of decree and the executing court cannot be left guessing what was transpiring in the mind of the Judge decreeing the suit or allowing the appeal without further placing on record the reliefs to which the plaintiffs are held entitled in the opinion of the Judge.
Section 152 enables the court to vary its judgment so as to give effect to its meaning and intention. Power of the court to amend its orders so as to carry out the intention and express the meaning of the Court at the time when the order was made was upheld by Bowen, L.J. in re: Swire; Mellor v. Swire, (1885) 30 Ch D 239, subject to the only limitation that the amendment can be made without injustice or on terms which preclude injustice. Lindley, L.J. observed that if the order of the Court, though drawn up, did not express the order as intended to be made then "there is no such magic in passing and entering an order as to deprive the Court of jurisdiction to make its own records true, and if an order as passed and entered does not express the real order of the Court, it would, as it appears to me, be shocking to say that the party aggrieved cannot come here to have the record set right, but must go to House of Lords by way of appeal."
Q.
Generally speaking, words "Judgment" and "Decree" though looks similar but both stand on different footings. "Judgment" means the statement given by a Judge on the grounds of a 'decree' or 'order'. Therefore, the legislature has avoided the use of words 'formal expression' in the definition of "judgment". However, this expression has been used in case of "Decree" and "Order".1 It is not necessary that in a decree, there should be a statement of reasons given by a Judge, though, it is necessary in a judgment. The "decree" is the formal expression of conclusions arrived at in the judgment. The last paras of the judgment normally state precisely, the relief granted to the parties. Thus, a judgment contemplates a stage prior to the passing of a decree or an order, and, after the pronouncement of judgment, a decree shall follow.
Q.
According to section 2(10) of the Code of Civil Procedure, 1908.
"Judgment-debtor" means any person against' whom a decree has been passed or an order capable of execution has been made."
The judgment-debtor is a person against whom a court has made a monetary award. If the court pronounces a judgment involving money-damages, the losing party must satisfy the amount of the award, and such award is termed as "judgment debt". Such award gives the winner of the suit or judgment, or award, the right to recover the debt in the way of extra-ordinary means and the court helps the judgment-creditor to do so or proceed against it because the judgment-creditor gains the rights and protection. The court can order the judgment-debtor to appear for an oral hearing to assess his assets. If it is determined or assessed that the judgment-debtor has sufficient assets to satisfy the debt the court can order the debtor to surrender his property to it. This process is known as "attachment of property" or a part of judgment-debtor's salary by the a process called "garnishment".
However, expression "Judgment-debtor' does not include:
(i) legal-representative of a decreased judgment-debtor; Ramji Das v. S. Mohammad Laiq, MANU/UP/0215/1953 : AIR 1953 All 461.
(ii) surety of a judgment debtor; Vijay Raj v. Lal Chand, (1966) ILR Raj 194.
According to section 2(6) of the Code of Civil Procedure, 1908:
"Foreign Judgment means the judgment of a foreign court."
It is clear from the definition of the words "Foreign Judgment" that it creates a new right in favour of the creditor and a new obligation imposed by the foreign court on the debtor. In Satya v. Teja Singh, MANU/SC/0212/1974 : AIR 1975 SC 105: 1975 Cr LJ 52: (1975) 1 SCC 120: (1975) 2 SCR 197 it was held by the Supreme Court that,
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1. See section 2(14) of the Code of Civil Procedure, 1908.
"A judgment of foreign court is enforced on the principle that court of competent jurisdiction has adjudicated upon a claim, a legal obligation arises to satisfy that claim. The rules of Private International Law of each state in the very nature of things differ, but by the comity of nations certain rules are recognized as common to civilized jurisdictions. Such a recognition is accorded not as an act of courtesy but on considerations of justice, equity and good conscience."
Non-conclusiveness of foreign judgment/objection to a foreign judgment [Section 13].
A Foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except:
(a) where it has not been pronounced by a court of competent jurisdiction;
(b) where it has been given on the merits of the case;
(c) where it appears on the face of proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in case in which such law is applicable;
(d) where it has been obtained by fraud;
(e) where the proceedings in which the judgment was obtained are opposed to natural justice; and
(f) where it sustains a claim founded on a breach of any law in force in India.
Under section 13 of the Code of Civil Procedure, 1908, a foreign judgment is conclusive and will operates as res judicata between the parties in six cases [clauses (a) to (f)].
It is a cardinal and most fundamental principle of law that the judgment or order passed by the Court which has no jurisdiction is null and void. Thus, judgment pronounced must be competent Foreign Court both by the law of the state which has constituted it and in an international sense and it must have directly adjudicated upon the "matter" which is pleaded as "res judicata"; Vishwanathan v. Abdul Wazid, AIR 1963 SC 21.
Thus, if A sues B in a foreign court, and if the suit is dismissed, the decision will operate as a bar to a fresh suit by A in India on the same cause-of-action. On the other hand if a decree is passed in favour of A by a foreign court against B and he sues 6 on the judgment in India, B will be precluded from putting in issue, the same matters that were directly and substantially in issue in the suit and adjudicated upon by the foreign court.
In an action in personam in respect of any cause-of-action, the Court of a foreign country is a court of competent jurisdiction where the defendant is personally within the jurisdiction or submits to the jurisdiction or though outside the jurisdiction may be reached by an order of the Court. In an action in personam the court has jurisdiction to make an order for delivery of movables where the parties submit to jurisdiction. However, the Court has no jurisdiction to pass a decree in respect of an immovable property situated in a foreign state. A decree passed by a court in Ceylon against a native of state in a suit on a contract who was not residing in Ceylon is a nullity; and cannot be enforced by an Indian Court; Sheikh Atham v. Davud, 1909 Mad 469.
In Bharat Nidhi Ltd. v. Megh Raj Mahajan, 3 (1967) DLT 140: AIR 1964 Del 22 Bharati Nidhi Ltd. (Plaintiff-appellant) filed a suit against Megh Raj Mahajan (defendant-respondent) on 24th August, 1949 to recover (Dues) on 20th December, 1949, the senior subordinate judge, Sialkot, decreed the suit. The suit for recovery of (Dues) was filed on 12th June, 1954, on the basis of judgment of senior subordinate judge Sialkot. The decree of Sialkot Court observed "a summons was duly served upon Megh Raj Mahajan, notwithstanding which he has not appeared to defend the suit". From this finding the appellants advocate wants this court to reduce that the defendant was physically present in Pakistan when he was served the notice when the initial suit was filed in Sialkot Court.
For the Bharat Nidhi Ltd. to succeed in suit the judgment and decree passed by Sialkot court (foreign court) must not be nullity, i.e., Sialkot Court must be a competent court. In the present suit, para 4 of the plaint as ordinarily filed there was no allegation about the domicile, nationality or residence of the defendant. Whereas in his written statement Meghraj Mahajan (defendant) denies that the amount, if any, to the plaintiff was payable at Sialkot or any place in Pakistan on 24th August, 1949 when the defendant had since long before (from September 1947) ceased to be reside or carry on business in Sialkot and had actually migrated to India and had become an Indian national. The defendant appearing his own witness stated--"prior to partition I was residing in Sialkot. I migrated to India in beginning of the month of September 1947 due to civil disturbances thereafter 1 was settled in India, "I got myself registered as displaced person in India" ....I have never been to Pakistan or Sialkot thereafter."
The evidence (registration as displaced person) by Megh Raj Mahajan (defendant) was sufficient to admit the fact that he shifted from Sialkot in September 1947 to the territories comprised in India (after 15th August, 1947), became a permanent domicile and resident thereof with no intention of going back to Pakistan, and never went to Pakistan after September, 1947.
It was held, both on the date of institution of suit i.e. (24th August, 1949) and the date of judgment (20th December, 1949) the defendant was domicile and resident of India. The defendant not having submitted to the jurisdiction of Sialkot Court in a personal action against him, a decree pronounced in absentee would be absolute nullity not enforceable.
In Raj Rajendra Sardar Maloji Marsingh Rao Shitole v. Shankar Saran, MANU/SC/0013/1962 : AIR 1962 SC 1737: (1963) 2 SCR 577, the Supreme Court observed that,
"It may be noted that the crucial date to determine whether the judgment is of a foreign court or not is the date of Judgment and not the date when it is sought to be enforced or executed. Thus a judgment of a court which was a foreign court at the time of its pronouncement would not cease to be a foreign court by reason of the fact that subsequently the foreign territory has become part of Union of India. On the other hand, an order which was good and competent when it was made and passed by a tribunal which was domestic at the date of its making and which could at the date have been enforced by an Indian court, does not lose its efficacy by reason of the partition".
In order to be conclusive the foreign judgment must be on the merits, i.e., the judge applies his mind to detect the truth or falsity of the plaintiffs case and decides the case one way or the other. Thus, when the suit is dismissed for the default of appearance of the plaintiff or for the non-production of document by the plaintiff even before the written statement filed by the defendant, or where the decree was passed in consequence of default of defendant in furnishing security, or after refusing leave to defend, such judgments are not on merits. A judgment of a foreign court on compromise is a judgment on merits and must be held to be conclusive; Satyanarain v. Balchand, ILR (1954) 4 Raj 905.
A judgment based upon an incorrect view of international law or refusal to recognize the law of India where such law is applicable is not conclusive. But the mistake must be apparent on the face of the proceedings. Thus, where a suit is instituted in U.K. on the basis of a contract made in India, the English court erroneously applied the English law, the judgment of the court is covered by this clause in as much as it is a general principle of Private International Law that the rights and liabilities of the parties to a contract are governed by the place where the contract is made (Lex Loci contracts); Gurdayal Singh v. Rajah of Faridkot, (1895) 22 Cal 222.
Q.
All judgments whether pronounced by domestic or foreign courts are void if obtained by fraud, for fraud vitiates the most solemn proceeding of the court of justice; Mahboob Saheb v. Syed Ismail, MANU/SC/0698/1995 : AIR 1995 SC 1205: JT 1995 (3) SC 168: 1996 (6) Kant LJ 194: (1995) 2 SCALE 395: MANU/SC/0698/1995 : (1995) 3 SCC 693. Though it is not permissible to show that the court was "mistaken", it might be shown that it was "misled". There is an essential distinction between mistake and trickery. A "mistake of law" in a foreign judgment is no ground for vacating it, but it can be set aside if the court was imposed upon or tricked into giving the judgment.
In the leading case of Satya v. Teja Singh, MANU/SC/0212/1974 : AIR 1975 SC 105: 1975 Cr LJ 52: (1975) 1 SCC 120: (1975) 2 SCR 197, a husband obtained a decree of divorce against his wife from an American court averring that he was domiciled in America observing that the husband was not a bona fide resident or domicile of America, and he had played a fraud on a foreign court falsely representing to it incorrect jurisdictional fact, the Supreme Court held that the decree was without jurisdiction and nullity.
Again, in Y. Narasimha Rao v. Venkata Lakshmi, MANU/SC/0603/1991 : (1991) 3 SCC 451:1991 (2) Crimes 855 (SC): II (1991) DMC 366 SC: JT 1991 (1) SC 33: (1991) 2 SCR
821, A (husband) obtained a decree of divorce against 6 (wife) again from an American Court on the ground that he was resident of America. Then he remarried C. 6 filed a criminal complaint against A and C for bigamy. A and C filed an application for discharge. Dismissing the application, the Supreme Court held that the decree of dissolution of marriage was without jurisdiction in as much as neither the marriage was solemnised nor the parties last resided together in America. Therefore, it was unenforceable in India.
In S.P. Chengalvaraya Naidu v. Jagannath, MANU/SC/0192/1994 : AIR 1994 SC 853: II (1993) BC 546 (SC): 1994 (1) BLJR 216: JT 1993 (6) SC 331: 1994 (I) OLR (SC) 201: (1995) 109 PLR 293: (1993) 4 SCALE 277: MANU/SC/0192/1994 : (1994) 1 SCC 1: (1993) Supp 3 SCR 422: 1994 (1) UJ 1 (SC), the Supreme Court stated. "It is settled proposition of law that a judgment or a decree obtained by playing fraud on the court is a nullity and nonest in the eyes of the law. Such a judgment/decree by the first court or by the highest Court, has to be treated as nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings".
In Sankaran Govindan v. Lakshmi Bharathi, MANU/SC/0406/1974 : AIR 1974 SC 1764: (1975) 3 SCC 351: (1975) 1 SCR 57, Hon'ble Supreme Court observed that, the Court rendering the judgement must comply with the minimum requirement of natural justice--it must be composed of impartial persons, act fairly, without bias, and in good faith; it must give reasonable notice to the parties to the dispute and afford each party an adequate opportunity of presenting his case. A judgment which is the result of liaise or want of impartiality on the part of a judge will be regarded as a nullity and the trial "coram non judice."
The expression "natural justice" in section 13(d) relates to the irregularities in procedure rather than to the 'merits' of the case.
Q.
Where the foreign judgment is founded on a breach of any law in force in India, it would not be enforced in India. Every case which comes before an Indian court must be decided in accordance with Indian law. It is implicit that the foreign law must not offend our public policy. Thus, a foreign judgment on a claim which is barred under the law of limitation in India is not conclusive. Similarly, a decree for divorce passed by foreign court cannot be confirmed by an Indian court if under the Indian law the marriage is indissoluble; Y. Narasimha Rao v. Venkata Lakshmi, MANU/SC/0603/1991 : (1991) 3 SCC 451: 1991 (2) Crimes 855 (SC): II (1991) DMC 366 SC: JT 1991 (1) SC 33: (1991) 2 SCR 821.
Section 14 of the Code of Civil Procedure, 1908 declares that,
"The Court shall presume, upon the production of any document purporting to be a certified copy of a foreign judgment, that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction."
A foreign judgment which is conclusive as per section 13 of the Code of Civil Procedure, 1908 can be enforced in India on the basis of following ways:
(i) By instituting a suit on such foreign judgment, however, such suit must be filed within 3 years from the date of foreign judgment.
(ii) By instituting execution proceedings in specific cases mentioned in sections 44 and 44A of the Code of Civil Procedure, 1908.
The decree can be executed under section 44A of the Code of Civil Procedure, 1908 only, if all the conditions of section 13(a) to (f) are satisfied.
A "foreign judgment" to be a valid cause of action for a suit upon it in India, must be final and conclusive "in the court in which it is passed." In order to establish that a final and conclusive judgment has been pronounced, it must be shown that, in the court in which it was pronounced, it conclusively, finally and forever established the existence of the right of which it sought to be made conclusive evidence in India so as to make it res judicata between the parries.
Q.
According to section 2(14) of the Code of Civil Procedure, 1908, 'Order' means the formal expression of any decision of a Civil Court which is not a 'Decree'. Thus as per the definition provided under the Code, the adjudication of a court which is not a 'decree' is an 'order'. An 'order' of a court, as a general rule, is founded on objective considerations and as such the judicial order must contain a discussion of the questions at issue and the reason which prevailed with the court which led to passing of the order.
The word "order" as defined in the Code is analogous to a decree and does not imply that what is popularly understood, namely "the view expressed by a judge on the merits of the case before him and his decision thereof".
An "order" only gives expression to what is in the judge's mind already as a decision. The formal expression is necessary both as a matter of record and as a matter of a communication.
Q.
(i) Order rejecting a plaint;
(ii) Order in contempt proceeding;
(iii) Order of dismissal of suit on account of non-payment of court-fees;
(iv) Order for discharge of defendant for want of cause-of-action;
(v) Order rejecting prayer for final decree for foreclosure;
(vi) Order for abetment of a suit;
(vii) Order dismissing cross-objection, etc.
(i) Order of remand under section 151 of the Code of Civil Procedure, 1908;
(ii) Order for amendment;
(iii) Order rejecting an application to sue in forma pauperis for no suit till then had been filed;
(iv) Order under the Indian Trust Act, dismissing an application for removal of trustee;
(v) Order of an Appellate Court returning a memorandum of appeal be presented to the Supreme Court;
(vi) Order appointing a commission to take accounts;
(vii) Dismissal of non-compliance with an order of court;
(viii) An interlocutory order in execution deciding a point of law arising incidentally, etc.
Q.
As we discussed earlier, an adjudication of a court of law may be either:
(i) decree; or
(ii) order.
But cannot be both. However, one can witness few common elements in both the above terms, viz.:
(i) both relate to matter in controversy;
(ii) both are decisions given by the court of law;
(iii) both are adjudication of a court of law; and
(iv) both are 'formal expressions' of a decision.
Q.
Besides the similarities between these two terms, there are fundamental distinction between 'order' and 'decree' which are given below in a tabular form:
|
Points of distinction |
Decree |
Order |
|
1. Origin |
A decree can only be passed in a suit which is commenced by presentation of a plaint. |
An order originates from a suit by presentation of a plaint or from proceeding commenced by a petition or an application. |
|
2. Determination of rights of parties |
A decree conclusively determines the rights and legal obligations of the parties. |
An order may or may not finally determine such rights or legal obligations of the parties. |
|
3. Kinds |
A decree may be preliminary or final or partly preliminary or partly final. |
Order cannot be preliminary or final. |
|
4. Appeal |
Every decree is appealable unless otherwise expressly provided. |
Every order is not appealable, and only orders enumerated under section 104 of the Code of Civil Procedure, 1908 and Order XLIII, rule 1 of the Code of Civil Procedure, 1908 are appealable. |
|
5. Second appeal |
A second appeal lies in before the High Court in case some substantial questions of taw involved in the decree passed in first appeal. Thus, there may be two appeals in case of decree. |
This is not possible in case of 'order'. |
|
6. Court |
In every suit, there can be only one decree except in few exceptional cases where preliminary and final decrees are passed. |
In a suit or proceeding, a number of orders may be passed. |
The expression 'legal representative' has been defined under section 2(11) the Code of Civil Procedure, 1908 which provides that:
"Legal representative means a person who in law represents the estate of decreased person, and includes any person who intermeddles with the estate of the decreased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued."
It is clear from the provisions under section 2(ii) that the definition of word "legal representative" is wide and inclusive one and conceives of two distinct categories. Firstly, the heirs or persons, who in law represent the estate of deceased person. However at par with them and in a class by itself is any person who intermediates with the estate of the deceased. Such a person is equally a legal representative. The phrase intermeddler with the estate has come to be a term of art and has been construed as one of the widest amplitude.
This apart, even the dictionary meaning of the word is one of the considerable width. The legal guardian of a minor in possession of his property, who is himself is a party to the suit along with the said minor, would on the later's death becomes his representative as an intermeddler with the estate of minor.
This term denotes classes of persons on whom the status of representative is fastened by reason of death of a person whose estate they are held to represent; Bisheswar Dayal v. Bajarang Bahadur Singh, AIR 1929 Oudh 353.
In Kalu Ram v. Charan Singh, MANU/RH/0004/1994 : AIR 1994 Raj 31 the Rajasthan High Court held that, the decision as to who is the legal representative for the proceedings is necessarily limited for the purpose of carrying on the proceedings and cannot have the effect of conferring of any right of heirship to the estate of the deceased. It is true that all legal heirs are ordinarily also legal representatives but the converse is not true. All legal representatives are not necessarily legal heirs at will.
It is not necessary that the legal representative should be in possession of any property of the deceased. All that is necessary is that he should be a person on whom the estate would devolve. The reviving members of a Hindu Joint Family are not legal representatives, but they are to be impleaded as such in cases where the doctrine of survivorship does not apply.
The estate does not mean the whole of the estate. The intermeddlers represent the estate even though they are in possession of parcels of the estate of the deceased and such a 'person who in law represents the estate of a deceased person' must include different legatees under the will; Andhra Bank Ltd. v. Srinivasan, MANU/SC/0022/1961 : AIR 1962 SC 232: (1962) 3 SCR 391.
Q.
The definition includes an intermeddler. He is not a trespasser, but assumes representatives capacity in relation to the estate and not in assertion of known as an executor de son tort and a person would not be an intermeddler unless he has intention to represent the estate; Ramprasad v. Jamnaprasad, AIR 1962 MB 143. He is recognised as legal representative only to award relief against the estate in his hands. A person who purchased property under a collusive transaction during the life-time of the deceased would not be an intermeddler and cannot be added as legal representative.
The persons or class of persons indicated by the expression "legal representative" would depend on the context. Subject to that qualification it includes properly appointed executors and administrators, heirs-at-law taking by succession or survivorship, reversioners where the action has been brought by or against the widow representing her husband's estate, a universal legatee and in some cases persons in de facto possession of the entire estate of the deceased; but it does not include trespassers, creditors, who have received payment of the debts due from the estate of the deceased, persons dealing in the ordinary course of business with goods of the deceased received from another, persons who intervene merely for the purposes of preserving the goods of the deceased or providing for his funeral or for immediate necessities of his family, legatees of a part of the estate and those taking possession of the property of the deceased from the legatees of a part of the estate.1
A true legal representative will be bound by a decree passed against the wrong legal representative if the following conditions are fulfilled:
(i) the plaintiff decree-holder has acted bona fide;
(ii) the decree obtained is free from fraud and collusion;
____________
1. 1950 MWN 311.
(iii) the person wrongly impleaded was impleaded in a representative capacity;
(iv) the decree or order was passed against him as representing the estate of deceased;
(v) the plaintiff was ignorant of the facts which operates to displace the title of the supposed legal representative; and
(vi) the person having the title did not intervene during the pendency of the suit.
Universal legatee under a will executed by the deceased is his legal representative; Lingareddi Sreenivasulu Reddi v. D. Muniratnam Reddi, MANU/AP/0104/1978 : AIR 1978 AP 173. A mere trespasser, however, cannot be said to be the legal representative of the decreased as he holds adversely to him and does not intermiddle with the intention of representing the estate; Nagendranath v. Hyat, MANU/WB/0143/1933 : AIR 1933 Cal 865. A person against whom the estate of the deceased devolves would be his legal representative, even if he is not in actual possession of the estate; Javarimal v. Mangilal, 1961 Raj LW 132.
Q.
In Custodian of Branches of Banco National v. Nalini Naique, MANU/SC/0149/1989 : AIR 1989 SC 1589:1989 Supp (2) SCC 275: (1989) 2 SCR 810:1989 (2) UJ 171 (SC) the fact of the case was, the Appellant Bank instituted a suit to recover Rs. 63,315 from V. Naique advanced as loan. Repeated adjournment to another date, the case was taken for hearing on 4th November, 1970, but on that date the defendant's pleader informed the court of defendant's death at Margaon. The appellant bank subsequently obtained death certificate from Civil Registration Office stating V. Naique as the legal representative of deceased original defendant. Another application for condonation of delay supported by affidavit was made for setting aside abatement of suit. Nalini Naique defendant's widow, contested the application on the ground that news of V. Naique was made public in the local newspaper and the suit had abated on the expiry of 30/60 days of the death of original defendant as no application for abatement has been filed in time. Appellant Bank also added the names of four sons, and minor daughters of deceased. On the ground that appellant had no knowledge about the sons and daughters of the deceased. Nalini Naique vehemently asserted that application of substitution was not maintainable as it was filed beyond time and she was not the legal heir of the declared and other legal heirs were not brought on record within time and hence application was to be rejected.
Decision.--
The Trial Court came to conclusion that the appellant bank came to know about V. Naique's death on 14th November, 1970 from his pleader in the Court and within 4 days thereof application was made under Order XXII, rule 4 which was not barred by time (including substitution was within time).
In revision application by Nalini Naique the judicial commissioner declared the suit to have abated. Hence the appellant bank has preferred appeal after obtaining special leave.
The Supreme Court dealing with appeal observed:
"Legal representative" as defined in Code of Civil Procedure means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of deceased and where the party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. The definition is inclusive in character and its scope is wide, it is not confined to legal heirs only instead it stipulates a person who may or may not be heir; competent to inherit the property of the deceased but should represent the estate of deceased person. It includes heirs as well as person who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by expression "legal representative". If there are many heirs, those in possession bona fide, without there being any fraud or collusion, are also entitled to represent the estate of the deceased."
In the present case, Nalini Naique represented half share in the estate left by V. Naique and remaining half was shared by his sons and daughters, who were subsequently brought on record. Once the name of Nalini Bai is brought on record within time and the application for setting aside abatement was allowed by trial court, the suit could proceed on merits and subsequent bringing of legal representative could not render the suit defective.
In the result, the appeal is allowed and the order of judicial commissioner is set aside. Trial court is directed to decide the suit expeditiously.
In Mithailal Daesanagar Singh v. A. Devram Kini, (2003) 10 SCC 699 the facts of the case was, Bharat Singh Mithailal and Nirmala (plaintiffs) filed a suit for specific performance of agreement to sell against defendants. Plaintiff prayed for interim injunction which was granted by single Judge of the High Court who was trying the suit. On 5th April, 1997, Bharat Singh, one of plaintiff expired. The defendants filed appeal before Division Bench against single Judge order. On 17th June, 2000, the date of hearing, the counsel of plaintiff-respondent wrote a letter to two surviving plaintiffs informing about the death of third plaintiff and need for bringing the legal representatives of the deceased on record. The legal representative of deceased took out chamber summons for being brought on record in the suit.
The defendant objected to prayer for unpleadment as it was barred by time and that suit had abated. Since the cause of action arising to three plaintiffs was only one, the death of one plaintiff had resulted in the suit having abated in its entirety and, therefore, the prayer of legal representative was not maintainable. The Division Bench set aside the order of the learned single judge holding that suit stands dismissed as having abated.
The aggrieved plaintiffs have filed appeal by special leave to Supreme Court. The Supreme Court allowed the appeal and set aside the judgment of Division Bench. Restoring the order (i.e., 23rd March, 2001) of learned single Judge, Supreme Court made following observations;
"The abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed strictly, on the other hand, the prayer for setting aside abatement and the dismissal consequent upon abatement, have to be considered liberally. A simple prayer for bringing the legal representative on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside abatement. So also prayer by one of the plaintiffs can be construed as prayer for setting aside the abatement of suit in its entirety. Once the suit has abated as a matter of law, yet legal representative proposing to be brought on record or any other applicant proposing to bring the legal representatives of deceased party on record would seek the setting aside of an abatement. A prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied. The courts have to adopt a justice oriented approach that ordinarily a litigant ought not be denied an opportunity of having his suit determined on merits unless he has, by gross negligence, deliberate in action disentitled himself from seeking the indulgence of the court".
In the present case the trial Judge found sufficient cause for condonation of delay in moving application and such finding having been reasonably arrived and based on material evidence, was not open to interference by the Division Bench.
In Shahzadabi v. Halimbai (since dead) by her LRs., (2004) 6 SCALE 373: MANU/SC/0569/2004 : AIR 2004 SC 3942: 2004 (6) ALT 43 (SC): 2004 (3) AWC 2598: 99 (2005) CLT 10 (SC): 2005 (3) JCR 233 (SC): JT 2004 (6) SC 172: 2005 (1) Kant LJ 298: RLW 2004 (3) SC 459: MANU/SC/0569/2004 : (2004) 7 SCC 354 the facts of the case was, the suit was constituted for recovery of possession of seven rooms. The rooms were in possession of different defendants. The defendants alleged that they were in possession of seven rooms with consent of Ehsan Ullah. In the suit, the defendant further consented that they had perfected their title in respect of each of seven rooms by adverse title. The most clinching was that defendant 4 died during pendency of the suit. Taking into account above circumstance, the trial court held that suit against defendant 4 alone stood dismissed as abated. The trial court decreed the suit of plaintiff against defendants 1 to 3.
In an appeal by defendants, the Karnataka High Court restored the judgment and decree of Trial Court decreeing the original suit filed by the plaintiffs for declaration of title to property (seven rooms).
Issue:--The present appeal to Supreme Court made by defendants arises to settle--whether the suit for possession filed by respondent-plaintiffs stood abated in entirety as held by trial court?
Decision:--The Supreme Court holding the trial court right, explained the law as below:
Order XXII, rule 4 lays down that within the time limited by law, no application is made to implead of legal representatives of a deceased defendant the suit shall abate as against a deceased defendant. This rule does not provide that by the omission to implead the legal representative of a defendant, the suit will abate as a whole. What was the interest of deceased defendant in the case, whether he represented the entire interest or only a specific part is a fact that would depend on the circumstances of each case. If the interests of the co-defendants are separate, as in case of co-owners, the suit will abate only as regards the particular interest of the deceased party. Order XXII, rule 4(3) read with Order XXII, rule 11 of the Code of Civil Procedure, 1908, where no application is made to implead the legal representative of the deceased respondent, the appeal shall abate as against the deceased respondent. That, so far as the statute is concerned, the appeal abates only qua the deceased respondent, but the question whether the partial abatement leads to an abatement of the appeal in entirety depends upon general principles. If the case is of such a nature that absence of the legal representative of deceased respondent prevents the Court from hearing the appeal as against the other respondents, then the appeal abates in toto. Otherwise, the abatement takes place only in the respect of the interest of the respondent who has died. The court cannot be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees, the court has no alternative but to dismiss the appeal as a whole. A distinction must be made between the cases in which there is specification of shares or interests, and those in which there is no specification of interests. That in cases, where there is specification of share or interest, the appeal cannot abate as whole. In such cases appeal abates only in respect of the interest of the deceased and not the whole.
The expression "Mesne Profits" has been defined under section 2(12) of the Code of Civil Procedure, 1908 as under:
"Mesne profits" of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received there from, together with interest on such profits but shall not include profits due to improvements made by the person in wrongful possession.
Therefore, mesne profits are those profits to which a person is entitled but from which he has been kept out by the defendant. Mesne profits can be claimed only regarding immovable property and not in regard to such property which cannot be deemed to be immovable property. Mesne profits of property also include those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits.
However, it was held in Shambhu Dayal Khetan v. Motilal Murarka, MANU/BH/0026/1980 : AIR 1980 Pat 106 that the possession of a co-sharer can never be wrongful within the meaning of section 2(12) as he has a right and interest in every inch of the undivided property. Therefore, one co-sharer cannot claim mesne profits against the other, on the ground that the latter was in wrongful possession.
The main object is to compensate the person entitled to be in possession of the property. A person who is entitled to actual possession can claim "Mesne profits". The very foundation for the cause-of-action for 'Mesne profits" is wrongful possession of the defendant. Thus, for example, the possession of a mortgagor after the date of a foreclosure decree against him is a wrongful possession.
The measure of 'mesne profits' is not what the plaintiff has lost. The measure would be what the defendant has gained by the wrongful possession, or what he might reasonably have gained by such possession. Thus, if the person charged has left the land to another, the rent which he has actually received would be liable unless it is proved that a higher rent could have been obtained with due diligence. The principles which would guide the Court in determining whether mesne profits be allowed or not, are as follows:--
(i) wrongful possession should not make profit by his possession;
(ii) restoration of status before dispossession of the rightful owner; and
(iii) use to which the rightful owner would have put the land if he was himself in possession.
Thus, where the tenant fails to deliver the possession of the premises to the landlord on the expiry of his lease, his liability is that of a trespasser and if the property is not controlled by the Rent Act, the landlord is entitled to mesne profits.
In Nandita Bose v. Ratan Lal, MANU/SC/0558/1987 : AIR 1987 SC 1947: (1987) 1 Cal LT 67 (SO: JT 1987 (3) SC 217: (1987) 2 SCALE 215: MANU/SC/0558/1987 : (1987) 3 SCC 705: (1987) 3 SCR 792: 1987 (2) UJ 483 (SC), it was held that--
"The claim for Mesne profits damages is neither palpably absurd not imaginary. It needs judicial consideration. The acceptance of the view put forward by the respondent (tenant) may lead to encouraging a tenant who has forfeited his right to tenancy to carry on a directory litigation without compensating the land lady (landlord) suitably for loss suffered by him on account of the unreasonable deprivation of the possession of his premises for a long period until he is able to get possession of the premises through the court."
In Lucy Kochuvareed v. P. Mariappa, AIR 1979 SC 1214: (1979) 3 SCC 150: (1979) 3 SCR 587, it was observed by the Supreme Court that, mesne profit is in the nature of damages, no invariable rule governing their award and assessment in every case, can be laid down and "the court may mould it according to the justice of the case". Even so, one broad basic principle governing the liability for mesne profits is discernible from section 2(12) of the Code of Civil Procedure, 1908 which defines 'mesne profits' to mean "those profits which the person in wrongful possession of property actually received or might with ordinance diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession". From a plain reading of this definition, it is clear that wrongful possession of the defendant is the very essence of a claim for mesne profits and the very foundation of the defendant's liability to pay mesne profits goes with actual possession of the land. That is to say, generally, the person in wrongful possession and enjoyment of the immoveable property is liable for mesne profits. But, where the plaintiff's dispossession, or, his being kept or concerted act of several persons, each of them who participates in the commission of that act would be liable for mesne profits even though he was not in actual possession and the profits were received not by him but by some of his confederates.
In such a case where the claim for mesne profits is against several trespassers who combined to keep the plaintiff out of possession, it is open to the court to adopt either of the two courses: It may by its decree hold all such trespassers jointly and severally liable for mesne profits, leaving them to have their respective rights adjusted in a separate suit for contribution; or, it may, if there is proper material before it, ascertain and apportion the liability of each of them on a proper application made by the defendant during the same proceedings.
In Amina Beevi v. Thachi, MANU/SC/0908/2010 : AIR 2011 SC 244 it was held that in any suit regarding rights of a tenant, the rights of tenant including a question whether a person is a tenant will have to be referred by civil court to the Land Tribunal and after the Land Tribunal decides the question, the civil court will decide the suit in accordance with the decision of the Land Tribunal. Thus the suit of the plaintiffs-respondents for declaration that they were tenants in respect of the suit property and for recovery of possession of the suit property from the defendants and for mesne profit was not barred either expressly or impliedly.
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