ABDUL KARIM Vs. RECEIVER T M MUHAMMAD SHAFFEE

JUDGEMENT

(1.) Counsel prays for time for producing a certified copy of the order appealed against. S.2 (14) of the Civil Procedure Code defines 'order' as the formal expression of any decision of a civil court which is not a decree. The reasoning in support of such an order (sometimes loosely described as decretal order) is a 'judgment' which S.2 (9) defines to mean "the statement given by the Judge of the grounds of a decree or order." Thus, there is a judgment and a decree when a suit is disposed of and there is a judgment and an order when any decision is rendered by a civil court except when finally determining the rights of parties in a suit. O.41 R.1, Civil P. C., requires the production of the judgment and the decree along with the memorandum of appeal, but while a copy of the decree is mandatory, a copy of the judgment may be dispensed with in the discretion of the court. In short, the court has no power to exempt the production of a copy of the decree. The relative provision when an appeal is filed under S.104 is contained in O.43 R.2 which reads:

(2.) The petitioner's advocate, a senior member of the bar, states that in the Travancore area with which he is thoroughly familiar, no order as defined in S.2 (14) is at all prepared. All that is done is to add a memorandum of costs at the foot of the judgment. This I conceive to be violative of the implied obligation of a Court (vide S.33 and 36) to prepare a decree or order when a decision in the shape of a judgment is pronounced. When courts decline to prepare orders, parties are unable to avail themselves of their right of appeal and sometimes of their right to execute the order. In such extraordinary situations where there is failure on the part of the tribunal to do that without which the right of a party would be imperilled, the appellate court is justified in invoking its inherent power under S.151 to prevent the injury to a party on account of the default of the court. In exercise of this power and in the circumstances set out above, I grant two weeks time for production of the order, expressing the expectation that the Trial Court will not rest content with pronouncing a judgment but will follow it up with preparing an order. I may also state that while a decree or order is very helpful in precisely stating the ultimate determination of the rights of parties by the court and facilitates execution, it is a matter for consideration by the legislature as to whether the present Travancore practice of merely adding a memorandum of costs with a further direction that a judgment will wind up with a succinct statement of the final determination by the court will not suffice. I am inclined to think that there is much to be said in favour of the 'illegal' practice prevalent in the Travancore area, but the solution is to legalise it by legislation and not to permit its continuance putting the parties to considerable trouble when the appellate court insists upon the legal pound of flesh.