VEERA DEVI Vs. STATE OF J&K

JUDGEMENT

(1.) THIS reference to the Full Bench made by the Honble Chief Justice raises an interesting point of law and arises in the following cir ­cumstances: - A separate judgment in each one of the three above noted cases of which Bhat J was seized was pronounced by him in exercise of original civil jurisdiction of this court towards the fag end of his tenure of office. While the judgments in the first two cases were announced by him on February 25,1972, the judgment in the third case was announced by him on February 16, 1972. Before the decrees in the said cases could, however, be prepared and signed by him, he retired on attaining the age of superan ­nuation on February 29, 1972. On April, 29, 1972 the Deputy Registrar of the main wing of the court at Jammu, put up a note before the Honble Chief Justice bringing to his Lordships notice the difficulty that had arisen in regard to the signing of the decrees on the basis of the aforesaid judgments due to the inapplicability of Order 20 Rule 8 of the Code of Civil Procedure (hereinafter referred to as "the Code") as a result of the provisions contained in Order 49 Rule 3(5) of the Code and seeking his Lordships direction for resolving the difficulty. The Honble Chief Justice, thereupon ordered notice to issue to the learned counsel for the parties. and heard them at length. In view of the conflict of authorities one set holding that a decree being a matter of moment has to be signed by the very judge of the High Court who pronounce the judgment and if that be not possible, the matter should be re -heard and the other set holding that preparation of a decree is merely an administrative act and if the judge passing the judgment ceases to hold office, the decree may be signed by another judge -his lordship directed that the matter be laid before a Full Bench of this court for an authoritative pronouncement. This is how the matter is before us.

(2.) M /s D. D. Thakur and S. P. Gupta appearing on behalf of the persons in whose favour the aforesaid judgments were passed by Bhat J have contended before us that decree takes its birth with the passing of the judgment, that the preparation of a decree is merely an administ ­rative act, that exclusion from applicability of Order 20 Rule 8 of the Code to proceedings coming up on the original side of the High Court by virtue of Order 49 Rule 3(5) of the Code is intended to give a free hand to the court to make its own Rules in regard to the signing of a decree prepared on the basis of the judgment delivered by a Judge of the court who on account of some reason or the other demits his office & that a decree pre ­pared by the office in conformity with the Judgment delivered by an ex -judge can be signed by the Chief Justice or any other Judge to whom the matter may be assigned by him.

(3.) M /s Amar Chand and Anil Dev Singh have, on the other hand, contended that there is a marked distinction between a judgment and a decree, that the signing of a decree is not a mere formality, that exclusion from applicability of Order 20 Rule 8 to the High Court in exercise of its original civil jurisdiction by virtue of order 49 Rule 3(5) of the Code is not without significance and that if a judge of the High Court demits office before the preparation of a decree, it cannot be signed by another judge of the court and the matter has to be reheard.