PRATAP KISHORE MOHANTY Vs. GYANENDRANATH MOHANTY

JUDGEMENT

(1.) THIS is an application for leave to appeal to the supreme Court against the judgments dated 26 -1 -51 in Second Appeal No. 208 of 1947 confirming the decision of Sri C. C. Coari, District Judge of Cuttack, dated 10 -3 -47 in Sub -Judge Appeal No. 196 of 1940.

(2.) THE facts are fully and elaborately stated in the judgments of the Second AppeaJ, which has been reported in - - 'Pratap Kishore v. Gyanendra -nath', A. I. Rule 1951 Orissa 313 (A). The facts, necessary to appreciate the points, raised in this petition for leave, are, in short, as follows : The Original Suit was tried by Sri G. C. De, Addl. Subordinate Judge of Cuttack; after the arguments, were closed, Sri De fell ill and took leave preparatory to retirement, and, therefore, could not write out the judgment; thereafter the records were sent back to Sri De for writing out the judgment, and, in fact, he wrote out and signed the judgment at a time when he had already retired; the ordering portion of the judgment is :

(3.) INDEED , the provisions of Sub -section (2) are mandatory, but the language is clear to indicate that the presiding officer, 'who had passed a decree or order', shall not try the appeal. It is manifestly clear that mere signing of the decree does not amount, in law, to passing the decree. The Judge, who is responsible for the judgment, is alone res -ponsible for the passing of the decree inasmuch as the judgment is the statement of the reasons of the decree. Mere, signing of the decree is not a judicial act but is merely on administrative act, and the Judge, who merely signs the decree, is simply to see if the decree is in accordance with the judgment or not, but he is in no sense responsible for the judgment or the statement of the reasons of the decree. This position, that the Judge who is responsible for the Judgment is really the Judge who passes the decree, is made clear by reference to Order 20, Rule 7, which provides as follows :