MUNIYA BAI Vs. STATE

JUDGEMENT

(1.) For last three years, this appeal unfortunately has been awaiting a short order. Even at this stage, I might mention that between 20-7-1982 and 11-7-1986, nothing happened and the time was totally and uselessly wasted. Only on 28-7-1986 when it came up before me, the appeal was admitted for hearing and on that date itself. I took the view that this matter has to be disposed of expeditiously and fixed hearing of the appeal on merit which had to take place on 8-12-186. Because one of the respondents, indeed an instrumentality of the first respondent, State of Madhya Pradesh was not served on that date, 1 ordered that Government Advocate, Gwalior be noticed through S.P.C. that this appeal shall be heard and finally disposed of on 12th January, 1987. Accordingly, I have heard counsel today on both sides and disposed of this matter finally by the short order as follows.

(2.) When the appeal was admitted, one of the substantial questions of law framed at that time was whether the impugned judgement was not violative of sub-rule (4) of R.11, O.41. C.P.C. The question has to be answered today in appellant's favour for reasons to follow and I quote the relevant provision : "Where an Appellate Court, not being the High Court, dismisses an appeal under sub-rule (1), it shall deliver a judgement, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgement."

(3.) It may be mentioned that in 1977, the aforequoted provision was brought on the Statute Book by C.P.C. (Amendment) Act, 1976 with a singular and salutary object. The Legislature considered it necessary to expressly circumscribe the power of the appellate Court, other than a High Court, to dismiss summarily an appeal by requiring such a Court, when doing so, to render a reasoned judgement and also to draw up a decree in accordance with the judgement. In the instant case, the question to be considered is whether the two-fold violation of the provision has rendered void the impugned judgement. It is not disputed that no decree has been drawn up in this case while it has to be considered still whether the "ground" which is given in the judgement for dismissal of the appeal was sufficient compliance of the requirement of the provision. In so far as the question as to whether non-drawal of a decree has vitiated the judgement is concerned, the decision in Jagat Dhish, AIR 1961 SC 832 (though rendered prior to the amendment) is still relevant, according to me. It was held in that case that when decree was not drawn up in any case, it will be the duty of the High Court to direct the Court below to draw up the decree because their Lordships took the view that the requirement of R.1 of O.41, C.P.C. was mandatory and had to be fulfilled. A certified copy of the decree has to accompany a memorandum of appeal according to R.1 and as such, the appeal would not be in form and competent without there being before the Court certified copy of the decree appealed from when the appeal is heard. Thus, non-drawal of a decree in the instant case by the Court below would not vitiate the judgement, but it is not necessary in this case to make any direction to the Court below for doing so for the simple reason that the judgement itself is not in accordance with the requirement of sub-rule (4) itself. and has to be set aside.