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Case Number

Appeal from Original Order no. 106 of 1948

Advocates

Dr. Qazi Nazrul Hassan, for the appellants.
L.K Jha and M. Rahman, for the respondent.

Judges

Ramaswami
Narayan, JJ.

Acts

section 205 of the Civil Procedure Code of 1882 and Order XX, rule 7, of the present Code.
sub-rule (2) of rule 12 of Order 20 of the Code of Civil Procedure.
provision of Order 20, rule 12(2) of the Code of Civil Procedure,
section 149 of the Code of Civil Procedure
section 2(2) of the Code of Civil Procedure
SECTION 2 CIVIL PROCEDURE CODE
Order XX, rule 7, of the Code of Civil
Article 182 of the Limitation Act,
SECTION 11 COURT FEES ACT
provisions of Order 20, rule 12(2).
COURT FEES ACT
Order XX, rule 7, Code of Civil

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Smart Summary

Judgment Summary — Ramaswami, J. (with Narayan, J. concurring)

Factual and Procedural Background

The appellant sued for declaration of title, possession and mesne profits in respect of a 1/9th share of certain villages that had belonged to her parents, Fazl Imam and Bibi Zohra. The respondent (the appellant's eldest brother) admitted her claim; the remaining defendants compromised with the appellant and that compromise was recorded. On 9 February 1926 the appellant obtained a decree for possession and for mesne profits.

On 28 March 1934 the appellant filed an application for ascertainment of mesne profits under the preliminary decree. Subordinate Judge Bagchi recorded evidence and on 8 March 1939 adjudicated the quantum of mesne profits, allowing Rs. 652 per year, interest at 6% from the end of each year, pleader's fee at 5% and directing the office to calculate the court-fee; the order expressly stated that no decree would be prepared until the court-fee was paid.

The appellant was notified on 21 April 1939 that Rs. 292-8-0 had to be paid as court-fee. She did not pay at that time; after about six years she paid the fee on 13 March 1945 and asked that a final decree for mesne profits be prepared. The respondent objected that execution of the (earlier) decree was time-barred and that payment of the court-fee after more than three years could not revive the right to execute a decree. The Subordinate Judge (S.K. Prasad) sustained the respondent's objection, holding that the final adjudication on 8 March 1939 constituted the date of the decree and that the court-fee issue was only a matter of calculation; he refused to prepare a fresh final decree.

Legal Issues Presented

Whether the order of 8 March 1939 — which finally determined the quantum of mesne profits but deferred the formal drawing of the decree until the deficit court-fee was paid — constituted a final decree for the purposes of execution and limitation.
Whether limitation for execution (under Article 182 of the Limitation Act as applied) runs from the date of such an adjudication (the date the court ascertained the mesne profits) or from the later date on which the court-fee was paid and the formal decree drew its formal date.
Whether the Subordinate Judge was obliged to draw a fresh final decree on the date the appellant paid the requisite court-fee, so as to start limitation from that later date.

Arguments of the Parties

Appellant's Arguments

Counsel for the appellant (Dr. Qazi Nazrul Hassan) argued that the 8 March 1939 order was conditional upon deposit of the necessary court-fee and that the decree was therefore incomplete until the court-fee was paid; limitation should run from the date when the proper decree was drawn after payment.
The appellant contended that the Subordinate Judge should have drawn a fresh decree on the date the requisite court-fee was paid (13 March 1945), thereby making the decree capable of execution with limitation running from that later date.

Respondent's Arguments

The respondent contended that the final adjudication on the amount of mesne profits occurred on 8 March 1939 and that that date must be taken to be the date of the decree; the direction about court-fee was a matter of office routine and mere calculation, not a further adjudication.
Accordingly, the respondent argued that execution was time-barred under the Limitation Act and that payment of court-fee after more than three years could not revive a barred right to execution.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Raja Bhup Indar Bahadur Singh v. Bijai Bahadur Singh	That an order determining mesne profits was, by plain meaning of s.2 (definition of "decree"), a decree appealable under the Code (i.e., an order which finally determines rights is a decree).	Used to support the proposition that an order which finally determines rights (here the quantum of mesne profits) is a final decree notwithstanding formal drawing-up; supports taking the date of adjudication as the date of decree.
Khub Lal Singh v. Raghubans Narayan Singh	Followed the Judicial Committee's view that an order determining the period for which compensation is payable is a decree and appealable.	Relied on as authority that decisions which finally determine rights constitute decrees.
Khatemannessa Bibi v. Upendra Chandra Mandal	Calcutta High Court decision to similar effect (orders determining rights are decrees).	Cited as further support for treating adjudicatory orders as final decrees.
Adinarayana Chetti v. Narsimha Chetti	An order following a commissioner's report, directing payment of a court-fee before possession/order could be executed, was held in substance to be a "decree" under s.2 and appealable.	Used to show that where rights are finally determined by the court the formality of payment of fees does not convert the adjudication into a non-decree.
Surajdeo Narain Singh v. Mashahru Raut	Where judgment fixed the method for ascertaining sums and later signing was ministerial/office routine, the date of judgment is the date of the decree for limitation purposes.	Applied to support the view that calculation/drawing up of decree is office routine and limitation runs from date of adjudication (judgment/date of order), not from later ministerial acts.
Hira Lal Sahu v. Jamuna Prasad Singh	Held an application for execution barred by limitation because the date of decree is the date of the judgment as reflected in Order XX, rule 7.	Relied on to support the conclusion that the date of adjudication is the date of the decree for limitation purposes.
Bhajan Behary Shaha v. Girish Chandra Shaha	Confirmed Article 182 Limitation: period for execution is three years from date of decree; the decree bears the date the judgment was pronounced (section 205 and Order XX, rule 7).	Used to reinforce that limitation runs from the date of the judgment/adjudication, not from later administrative acts such as signing.
Kishori Mohan Pal v. Provash Chander Mandals	Even where drawing-up of decree was delayed by stamp duty, Calcutta High Court held the date of the decree was the date the judgment was pronounced.	Supported the conclusion that delay in drawing up or formalities do not alter the date from which limitation runs.
Babu Ram (Decree-Holder) v. Gopal Sahai (Judgment-Debtor)	Held (in that case) that a decree conditional on payment of court-fee was incomplete until fee was paid and limitation would run only when decree became capable of execution.	Cited by appellant but treated by the Court as a weaker authority in light of the stronger and consistent line of authorities to the contrary.
Mohammad Sadiq Mian v. Mahabir Sao	Where a commissioner's report fixed the amount and the court ordered that the final decree be prepared but deferred drawing up until deficit court-fees were paid, the court held the date of final adjudication was the date the amount was fixed and limitation ran from that date.	Relied on heavily as binding and supportive: it holds that final adjudication date is the date to be taken as the date of the decree for limitation purposes even if formal drawing up occurred later.
Subhaga Singh v. Shiba Nath Singh	Expresses the view that when no time is fixed for payment of additional court-fees, execution may remain in abeyance and payment later can render the decree capable of execution.	Cited by Narayan, J. as representing an alternative view in the authorities; distinguished because facts here showed final adjudication on 8 March 1939 and no subsequent adjudication was required.
Collector of Etawah v. Brindaban (A.I.R. 1938 All. 539)	Holds (as interpreted by Narayan, J.) that until the court-fee is paid there is no decree capable of execution; the case examined section 149 CPC and section 11 Court-Fees Act.	Referred to by Narayan, J. to underline the complexity of the problem and to note that some authorities take the opposite position; ultimately used to explain why some judicial decisions differ, but did not change the majority conclusion in this case.
I.L.R. 21 Patna 366	Held that limitation runs from the date on which the court ascertained the mesne profits.	Described by Narayan, J. as binding on the Court; used to support the conclusion that limitation runs from the date of ascertainment/adjudication of mesne profits (8 March 1939 in this case).

Court's Reasoning and Analysis

Ramaswami, J. begins by identifying the narrow question for decision: whether the order of 8 March 1939, which finally fixed the quantum of mesne profits but directed that no decree be prepared until the deficit court-fee was paid, should be treated as a final decree for the purposes of execution and limitation.

The Court focused on the definition of "decree" in section 2(2) of the Code of Civil Procedure: a decree is the formal expression of an adjudication which, as regards the court expressing it, conclusively determines the rights of the parties with regard to the matters in controversy, and may be preliminary or final. The explanation makes clear that a decree is final when the adjudication completely disposes of the suit (or part thereof).

Applying that definition to the facts, the Court noted that the sole matter in controversy for the present proceeding was the quantum of mesne profits and that that quantum was finally determined by the 8 March 1939 order. Once the amount was fixed, the computation of the court-fee was described as a matter of mere calculation with reference to the Court-fees Act; no further adjudication by the court was necessary to determine the court-fee. The direction that "no decree will be prepared till the same is paid" was interpreted as a postponement of the formal drawing-up (an administrative step), not as leaving any substantive question undecided.

Consequently, the Court concluded that the order of 8 March 1939 constituted a "final decree" in substance — even if not formally embodied in the form of a decree — because it finally determined the parties' rights as to mesne profits. The Court rejected the appellant's submission that the tribunal was required to draw a fresh final decree on the date the court-fee was later paid.

To support that legal conclusion, the Court reviewed a line of authorities which consistently treated adjudicatory orders that finally determine rights as decrees for the purposes of appeal and limitation (examples include Raja Bhup Indar Bahadur Singh, Surajdeo Narain Singh, Mohammad Sadiq Mian, Bhajan Behary Shaha and others). The Court considered the authority that seemed to favour the appellant (Babu Ram v. Gopal Sahai) to be weak in comparison with the cited series of decisions to the contrary.

Narayan, J., concurring, acknowledged the conceptual difficulties created by the interaction between the Court-Fees Act (section 11) and the Code of Civil Procedure (notably Order 20, rule 12(2) and Order XX, rule 7). He observed that some authorities (including Collector of Etawah v. Brindaban and the Allahabad decision cited) have held that until the court-fee is paid there is no decree capable of execution. He also noted that, in the present case, no time had been fixed by the court for payment and the court failed to pursue realization until the appellant herself filed the stamp in 1945. Despite these observations, Narayan, J. concluded that the binding Patna decision (I.L.R. 21 Patna 366) and the other authorities require treating the date of ascertainment of mesne profits as the date from which limitation runs.

Holding and Implications

Holding: The Court dismissed the appeal. The core ruling is that the order of 8 March 1939, which finally adjudicated the quantum of mesne profits, constitutes a final decree for all practical and legal purposes (including limitation), notwithstanding the direction postponing formal drawing-up until the deficit court-fee was paid. The Subordinate Judge was therefore correct in refusing to prepare a fresh final decree dated from the later payment of court-fee.

Implications:

The direct effect is that the date of final adjudication (8 March 1939) is to be treated as the date of the decree for the purposes of computing limitation; payment of the court-fee years later did not restart or revive the period for execution in this case.
The appellant's request that a fresh final decree be drawn dated from the 1945 payment of court-fee was refused; the appeal is dismissed with costs.
The Court based its decision on existing authorities and statutory definitions; it did not purport to create a new legal principle beyond applying the established approach that an adjudicatory order which finally determines rights is, in substance, a decree. The Court noted conflicting authorities on the effect of unpaid court-fees but preferred the line of decisions treating the adjudication date as the date of the decree.

Outcome: Appeal dismissed (costs awarded to respondent).

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Idris v. Kabir

Ramaswami, J.:— This case has a long and complicated history; but the question posed for decision in this appeal lies within a short compass. The appellant brought the suit for a declaration of title, for possession and mesne profits with respect to 1/9th share of certain villages which belonged to her parents Fazl Imam and Bibi Zohra. The respondent who was her eldest brother admitted her claim. The other defendants effected a compromise with the appellant which was recorded by the court. On 9th February, 1926, the appellant obtained a decree for possession of her share and for mesne profits. It is not necessary to trace in detail the further stages of the litigation. On 28th March, 1934 the plaintiff, filed an application for ascertainment of mesne, profits from the respondent, with respect to her share, according to the preliminary decree. Mr. Bagchi who was the Subordinate Judge at the time issued notice to the parties, recorded evidence of witnesses and on 8th March, 1939 adjudicated the quantum of mesne profits. The last paragraph of his order states:

“I would therefore allow mesne profits for the period of claim at Rs. 652 per year according to the previous finding (vide Ex. 1). Interest will be allowed at 6 per cent, per annum from the end of each year of claim, up to date. The office will calculate the amount of court-fee payable by the plaintiff and no decree will be prepared till the same is paid. Pleader's fee at 5 per cent, is allowed on the amount of mesne profits decreed. The plaintiff will also get the costs of this application proportionate to her success”.

On 21st April 1939 the appellant was informed that she ought to pay Rs. 292-8-0 being ascertained amount of court-fee. The appellant apparently took no action but on 13th March, 1945 after a lapse of about six years the appellant paid the requisite amount of court-fee and asked that a final decree for mesne profits should be prepared. The respondent objected that the execution of the decree was time barred, and that the decree cannot be revived by payment of court-fee after a lapse of more than three years, Mr. S.K Prasad, Subordinate Judge upheld the objection of the respondent holding that the final adjudication between the parties regarding the amount of mesne profits was given on 8th March, 1939, which date must therefore be taken to be the date of the decree; and the question of court-fee payable was a mere matter of calculation and the court had nothing further to adjudicate in order to determine the amount of court-fee. The Subordinate Judge therefore refused to prepare another final decree.

In support of this appeal Dr. Qazi Nazrul Hassan addressed the argument that on 8th March, 1939 the decree was passed on condition that the necessary court-fee was deposited, that limitation would run from the date when proper decree was drawn after the amount of court fee was paid. Learned Counsel submitted that the Subordinate Judge ought to have drawn a fresh decree on the date the necessary court-fee was paid.

In my opinion this argument is untenable. In this case there can be no doubt that final adjudication between the parties regarding the amount of mesne profits was given on 8th March, 1939. That date must therefore be taken to be the date of the final decree. Learned Counsel for the appellant laid stress on the last portion of the order of 8th March, 1939, that is,

“The office will calculate the amount of court-fee payable by the plaintiff and no decree will be prepared till the same is paid”.

It was argued that something more was necessary to be done by the court in order to pass the final decree. But it is not possible to accent this argument. “Decree” as defined in section 2(2) of the Code of Civil Procedure 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”

The explanation states:

“A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such an adjudication completely disposes of the suit. It may be partly preliminary and partly final”.

The matter in controversy between the parties was the amount of mesne profits. That was finally determined by the order, dated the 8th March 1939. The amount being determined the question of court-fee was a matter of mere calculation with reference to the provisions of the Court-fees Act. No further adjudication by the court was necessary in order to determine the amount of the court-fee. It is true that the Subordinate Judge directed that

“no decree shall be prepared unless deficit court-fee were paid”.

But the Subordinate Judge only meant that the formal drawing uo of the decree should be postponed until the court fee was paid. Nothing more remained to be decided by the court. The moment the plaintiff paid the deficit court-fee in accordance with this order the decree would have been automaticaly drawn no. The order of the Subordinate Judge, dated the 8th March 1939 constitutes, in my opinion, the “final decree”; and the appellant is not warranted in asking the Subordinate Judge to prepare a fresh final decree on the date he paid the amount of court-fee.

It was objected for the appellant that the Sub-ordinate Judge did not formally embody his order of 8th March 1939 in the form of a decree. But the objection is of no avail for on principle it is clear that if a decision really determines the rights of the parties fully and finally it is in the eve of law a decree even though the court giving the decision has not formally embodied its result in the form of a decree.

This opinion is supported by a catena of authorities.

In Raja Bhup Indar Bahadur Singh v. Bijai Bahadur Singh a decree in ejectment, dated November 12, 187, declared the plaintiff entitled to future mesne profits, and was eventually affirmed by the Queen in Council on May 11, 1895. The plaintiff obtained possession on November 30, 1895. On March 16, 1896, he petitioned the District Judge alleging that mesne profits were due from the date of the suit till recovery of possession. The defendant objected that he was not entitled to any further mesne profits under this decree. After hearing the parties the District Judge ordered that the plaintiff was entitled only to mesne profits for three years from November 12, 1887. The Judicial Committee held that the order of the District Judge was in the nature of a final decree as defined in section 2 of the Civil Procedure Code and was appealable. At page 214 Lord Hobhouse states: “It appears to their Lordships that the plain meaning of section 2 is to make this order a decree appealable under section 540. Mr. Ross has not shown any reason why the words of the Code should not be construed in their plain and obvious sense. On the contrary, the obvious sense is that which best accords with ordinary convenience and ordinary rules of practice”.

In Khub Lal Singh v. Raghubans Narayan Singh* a Bench of this Court following the decision of the Judicial Committee held that an order determining the period within which compensation shall be payable was a decree and an appeal lies therefrom.

In Khatemannessa Bibi v. Upendra Chandra Mandal(2) there is a decision of the Calcutta, High Court to a similar effect.

In Adinarayana Chetti v. Narsimha Chetti(3) there was a preliminary decree which embodied a scheme by which trustees were appointed for the management of a temple. In the same decree there was a direction that either the plaintiffs or the first defendant should apply for the appointment of a commissioner to go into the accounts as between the defendants and the temple, and that the newly elected trustees were to take possession of the temple and its properties only on payment to the first defendant of whatever sum that might be found due by the commissioner. In pursuance of the decree a commissioner was appointed who submitted a report upon which the Subordinate Judge gave decision that the trustees were to execute a decree for the amount found due against first and third defendants on their paying a sum of Rs. 217-7-0 as court fee. The learned Judges field that the order of the Subordinate Judge was in substance a “decree” as defined by section 2 of the Civil Procedure Code and therefore appealable.

In Surajdeo Narain Singh v. Mashahru Raut the decree under execution was a redemption decree. The judgment was pronounced on the 27th July 1909, but the decree was not actually signed until the 23rd February 1910 because in the meantime a commissioner had been appointed to ascertain the exact amount due under the decree. The application for execution was filed on the 29th January 1913, that is to say, within three years of the date of the signing of the decree but beyond three years from the date of the judgment. It was contended, that limitation should run from the date on which the decree was actually signed, but this contention was negatived. The High Court held that the judgment of the District Judge, dated the 27th July 1909 sets forth the exact method, of ascertaining the sum to be paid in redemption, that the calculation of the sum and preparation of decree was a matter purely of office routine, that the date of the decree must be the date of the judgment as provided in the Code of Civil Procedure.

In Hira Lal Sahu v. Jamuna Prasad Singh the judgment was dated the 1st May 1915, but the decree was not signed until the 15th May 1915. The application for execution was filed on the 13th May 1918. It was held that the application was barred by limitation because the date of the decree was the date of the in dement under Order XX, rule 7, of the Code of Civil Procedure.

In Bhajan Behary Shaha v. Girish Chandra Shaha the decree under execution was a decree passed in a suit for accounts. Under that decree the deficit court fee was required to be paid. The application for execution was filed within three years from the date of payment of the court-fee but beyond three year from the date of the decree. Sir Lawrence Jenkins, C.J stated: “Article 182 of the Limitation Act, by which limitation in this case is governed, provides that the period for the execution of the decree is three years from the date of the decree. The date of the decree is that which is indicated in section 205 of the Civil Procedure Code of 1882 and Order XX, rule 7, of the present Code. It is provided by the rule that the decree shall bear date the day on which the judgment was pronounced”. Accordingly the application was held to be time-barred.

In Kishori Mohan Pal v. Provash Chander Mandals the decree under execution was a partition decree. It was passed on the 25th March 1914, but as the plaintiff delayed in filing the stamp duty the decree was not actually drawn up until the 2nd January 1920. The application for execution was filed on the 21st July 1920. It was contended on behalf of the decree-holder that as the decree could not be drawn up until the necessary stamp duty was paid, limitation should run from the date of the signing of the decree, but Calcutta High Court held that the date of the decree was the 25th March 1914, on which the judgment was pronounced and, therefore, limitation should run from that date.

On behalf of the appellant reliance was placed on Babu Ram…(Decree-Holder); v. Gopal Sahai…(Judgment-Debtor).* in which a decree was passed on the condition that necessary court-fee was deposited. The decree-holder deposited the court fee only after three years of the decree. This was accepted by the court and then the decree-holder sought to execute the decree. It was objected that the decree was barred but the High Court negatived the argument holding that the decree was incomplete until the payment of the court-fee and until there was a decree capable for execution it could not be said that limitation has begun to run under Article 182 of the Limitation Act. But the authority of this case is weak in view of the decisions I have already examined and Mohammad Sadiq Mian v. Mahabir Sao which is the decision of a Bench of this Court. In this case a preliminary decree had been passed and a commissioner had been appointed by the court to ascertain mesne profits. The commissioner submitted his report which was accepted by court on January 6, 1936, and the court passed the following order on that date: “Let final decree be prepared in terms of the Commissioner's report……….No decree shall be prepared unless deficit court-fees are paid”. On September 10, 1938, the plaintiff applied for assessment of deficit court-fee and for preparation of the final decree and on October 26 the Court ordered the plaintiff to pay the deficit court-fee. On December 3 the Court ordered “Deficit court-fee stamp filed. Let final decree be drawn up now”. On January 30, 1939 the decree was actually drawn up and on January 17, 1940, an application for execution was filed. Upon these facts Rowland and Chatterji, JJ. held that the amount of mesne profits having been finally adjudicated by the court by its order, dated the 6th January 1938 the date of final adjudication must be taken to be the date of the final decree and therefore the execution was barred by limitation under Article 182. The learned Judges added that for the purposes of computing limitation under Article 182 the date of the judgment should be taken to be the date of the decree as provided by Order XX, rule 7, Code of Civil Procedure.

From this review of the authorities it is manifest that in the present case the order of Mr. N. Bagchi, dated 8th March 1939 was the final decree since it was the final adjudication between the parties as regards the quantum of mesne profits. In my opinion the learned Subordinate Judge rightly rejected the prayer of the appellant to prepare afresh a final decree on the date he paid the amount of the requisite court-fee.

Upon these grounds I hold that this appeal fails and should be dismissed with costs.

Narayan, J.:— Though according to the Civil Procedure Code of 1908 an application for the ascertainment of mesne profits is no more a proceeding in execution, but a continuation of the suit itself, the second paragraph of section 11 of the Court-Fees Act is in terms which indicate that the ascertainment of mesne profits has still to be made in execution of the decree. The question of Court-fee therefore raises some difficult points when a final decree in respect of mesne profits is passed in accordance with sub-rule (2) of rule 12 of Order 20 of the Code of Civil Procedure. And, in fact, in Subhaga Singh v. Shiba Nath Singh the view was taken that when no time is fixed by a Court within which additional Court-fees have to be paid, the execution of the decree merely remains in abeyance and that when the fees are paid in, execution can be taken out for the mesne profits. Unfortunately, in this case, the Court after making an order on 21st April 1939 that the Court-fee of Rs. 292-8-0 should be paid by the plaintiff forgot completely that Court-fee had to be realised from the plaintiff, and the plaintiff himself filed the Court-fee stamp in March 1945. The proceeding was never closed by the Court and after 21st April 1939 no time was fixed for the payment of the additional fee required. And in a case like this it has sometimes been held that because of the provision of Order 20, rule 12(2) of the Code of Civil Procedure, a regular final decree for mesne profits does not come into existence until the Court-fee required is paid [See Collector of Etawah v. Brindaban] In A.I.R 1938 Allahabad 539 which my learned brother regards as a weak authority reference was also made to section 149 of the Code of Civil Procedure and their Lordships definitely held after considering section 11 of the Court Fees Act that until the Court-fee is paid there is no decree capable of execution. I would therefore suggest that section 11, of the Court Fees Act should be so amended that it may be in absolute conformity with the provisions of Order 20, rule 12(2). For the present, the decision in I.L.R 21 Patna 366 is binding on us, and according to this decision limitation would run from the date on which the Court ascertained the mesne profits.

I, therefore agree, to the order proposed by my learned brother.

K.D

Appeal dismissed.

Idris v. Kabir

Judgment Summary — Ramaswami, J. (with Narayan, J. concurring)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Idris v. Kabir

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