JOSEPH JOHN Vs. VARKEY THOMAS

JUDGEMENT

(1.) THE order of reference is self-explanatory. It reads as follows: "on 13. 8. 1120 the District Court of Kottayam passed an order by which the debt due under the decree in O. S. No. 43 of 1108 was fixed at Indian Rs. 5820 as on 31. 1. 1116 and the amount which the debtor had to deposit per instalment at Indian Rs. 349, 5 chs. 11 cash. THE debtor was also given three months' time to make up the deficit in the instalments already paid. Both parties filed appeals from the said order to the High Court of travancore and the appeals were dismissed on 20. 10. 1121. (ii) THE only question that arises for decision in this case is whether the three months' time granted by the District Court should be calculated from 13. 8. 1120 or from 20. 10. 1121. It is agreed that if the latter is the material date, the appeal has to be allowed and that if it is the former, the appeal has to be dismissed. (iii) THE date from which the period allowed should be calculated has been a subject of controversy among the various High Courts in India. THE position is summed up as follows in Chitaley and Rao's Code of Civil Procedure (Fifth Edition, Volume, I, page 1379):-'suppose a decree of the primary court which fixes a date for the performance of an act directed thereby is appealed against, and the appeal is dismissed. Is the period originally fixed, in such a case to be calculated from the first Court's decree or from the appellate decree? On this point there is a conflict of decisions. It has been held by the High Court of Bombay and the Chief Court of the Punjab that the period should be calculated from the date of the appellate decree, the reason given being that the lower court's decree is merged in that of the appellate court and though the latter decree may not expressly enlarge the period originally fixed, it should be deemed to do so'impliedly'. On the other hand, it has been held by the Madras, Allahabad and Nagpur High Courts and the Judicial Commissioner's court of Upper Burma that though the lower court's decree is merged in the appellate decree, in the absence of express provision extending the time the appellate decree should be taken as confirming the lower court's decree as it stands and cannot be held to extend by implication the period fixed thereby. Opinion in the Calcutta and Patna High Courts is divided some cases taking the Bombay view and some the Madras view". In Mulla's Code of Civil Procedure (12th Edition, page 160) after referring to AIR 1921 Calcutta 699 wherein Mukerji, J. , said that: "the balance of judicial opinion, as the later authorities stand, is in favour of the view that when time is fixed by the lower court for payment of money and the decree of the lower court is confirmed on appeal, the time for payment runs from the date of the decree of the Appellate Court, though the latter decree does not expressly provide that the time for payment should be calculated from the date of the appellate devree. " the Commentary goes on to say: 'it is submitted that the correct view is that the appellate decree not being complete in itself, must be construed with reference to the decree of the lower court and that time is not extended'. (iv) In view of the conflict of opinion and the importance of the question we refer the appeal to the decision of a Full Bench of this Court".

(2.) LEARNED Counsel for the appellant has taken us through the various decisions bearing on the subject but we are unable to agree that there is any valid reason to depart from the statement in Mulla's Commentary to the effect that "the correct view is that the appellate decree, not being complete in itself, must be construed with reference to the decree of the lower court and that time is not extended".

(3.) THE appeal fails and is hereby dismissed; but in the circumstances of the case there will be no order as to costs.