VISHNU KIRPALANI Vs. VISHNU HIRACHAND KIRPALANI

JUDGEMENT

(1.) A very interesting point has been argued before us as to the date which this decree which we have passed in appeal shall bear. Both the Advocate General and Mr. Laud request us to ante-date the decree and to direct that this decree shall bear the same date as the decree passed by the trial Court. What is urged is that under O. 41, R. 33, of the Code, the powers of the appellate Court are very wide and the appellate Court has the power to pass any decree and make any order which ought to have been passed or made, and It is pointed out that what we are doing by this appeal is to decide for judicial separation in favour of the wife. If that is our view, there is no reason why we should not date the decree as the decree originally passed by the City Civil Court.

(2.) First turning to the question of the power of the High Court to ante-date the decree, the first provision which might be looked at is O. 20, R. 7. That rule deals with judgment in the trial Court and the provision is that the decree shall bear the date the day on which the judgment was pronounced, and when the Judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree. Now, this rule does not apply to High Courts in the exercise of their ordinary or extra-ordinary civil jurisdiction, and as a matter of fact we on the Original Side have framed a rule, rule 287, which provides that by special leave of the Judge a decree may be ante-dated or post-dated. Therefore, the Judges on the Original Side undoubtedly possess the power and the jurisdiction to ante-date or post-date a decree. Turning to the provision of decrees is appeal, the relevant provision in the Code is O. 41. R. 35. Sub-rule (1) of that rule provides: "The decree of the Appellate Court shall bear date the day on which the judgment was pronounced." This rule does not apply to the High Court on its appellate jurisdiction. That is clear from the provisions of O. 49, R. 3, which exempts this rule from application to the High Court in the exercise of its appellate jurisdiction. Therefore, as the Code stands, it seems to be clear that the High Court exercising its appellate jurisdiction is not bound by the mandatory provision of O. 41, R. 35. Although the High Court has framed a rule on the Original Side to which refernce has just been made there is no such rule framed on the Appellate side. But in the absence of any such rule, it seems that the power of the High Court in its appellate jurisdiction is not fettered by the mandatory provisions of O. 41, R 35. The Advocate General drew our attention to a rule which we have framed on the Appellate Side which has some bearing on the question, and that is rule 161 and that rule provides that the decree shall bear the date on which the judgment of the High Court was pronounced. This rule is in a Chapter which bears the heading "Rules for the guidance of the Registrar's office", and it seems that inasmuch as these are not rules framed by the High Court under any of the provisions of the Civil Procedure Code, it would be open to the Judges sitting on the Appellate Side to direct in a particular case that the direction given to the Registrar under rule 161 should not be carried out. In other words, the Appellate Side Judges here could direct the Registrar to draw up the decree and either antedate it or post-date it.

(3.) In this connection, it will be perhaps interesting and also instructive to look at what the position in England is O. 41, R. 3 deals with entry of judgment and that rule provides: