RAMCHANDRA Vs. SETH THAKURDAS

JUDGEMENT

(1.) GRILLE and Niyogi, A.J.Cs. 1. This appeal arises out of a suit for a declaration that the judgment and decree in Civil Suit No. 2 of 1927 on the file of the District Judge, Khandwa, became a nullity on account of the non-observance of the provisions laid down in Order 20, Rule 1, Civil P. C. What, happened in that case was that on 27th July 1928 the District Judge heard arguments in the case and judgment was reserved without a date being fixed. Two months later on 29th September he recorded the following order: None present. Judgment delivered. Inform the parties or their counsel. Where counsel are not available to sign order sheet inform the parties by notices.

(2.) THIS judgment resulted in the passing of a preliminary decree and when that decree was made final about a year later an objection was taken to it for the first time, and on the decree being made final the matter came up to this Court in revision on the same point that is now taken, namely, that the preliminary decree was a nullity. This Court held in revision that it was not so and the plaintiff then brought a suit for a declaration, out of which this appeal arises, that the judgment was a nullity. One of the issues in the trial was whether the suit was barred by the decision in the previous suit and the learned Additional District Judge held that the suit was barred in view of the fact that the decree became final in that the plaintiff bad failed to appeal against it and had thus waived his objection to any irregularity in the preliminary decree and that consequently the present suit was barred by the principle of res judicata. An objection to this finding is set down in the memorandum of appeal but no argument has been addressed to us on the point and the learned Counsel has confined himself to the question of Order 20, Rule 1. As we have been shown no reason against the correctness of the Additional District Judge's decision on the point of res judicata, this appeal should be dismissed incontinently but in view of the fact that we consider it necessary to correct the impression that an omission to pronounce a judgment in open Court is of such a nature as to render the judgment a nullity. We proceed to pass an order on the appeal on the arguments advanced by the learned Counsel for the appellant.

(3.) NUMEROUS cases have 'been cited by the learned Counsel for the appellant but none of them shows any deviation from this principle. The decision in Mahomed Akil v. Asadunnissa Bibee (1868) 9 WR 1 appears to us hardly in point; neither does Sher Khan v. Bahadur Shah (1904)91 P R 1904 in which case a Judge on his predecessor's record delivered judgment without hearing any arguments at all, and the judgment was set aside. In Bai Dahi v. Hargovandas (1906) 30 Bom 455 the practice in mofussil Courts of delivering judgment otherwise than in open Court on due notice being given was the subject of strong disapproval by the High Court, a disapproval in which we heartily and respectfully concur, but there is nothing in the report to show that the judgment so delivered was treated as a nullity. Neither was this the case in Sagarmal Marwari v. Lachmisaran Misir AIR 1923 Pat 129, where disapproval of that practice was equally expressed, but the question before the Court was not whether the judgment was or was not a nullity and it was tacitly assumed that it was not a nullity, but that the period of limitation should run from the date on which the judgment was actually delivered in open Court and not that on which it was written and signed. To the same effect is the decision in Kharak Singh v. Laccham Singh where the question was the determination of the terminus a quo from which the period within which pre-emption money was to be paid began. In Nagiah v. Seshamma AIR 1921 Mad 690 it was held that where an appellate judgment was written and signed but was not delivered in accordance with the terms of Order 20, Rule 1, the appeal to which the judgment related was still pending and the Judge had jurisdiction to receive a petition of compromise and pass necessary orders thereon; that is, the judgment does not become a judgment until properly delivered, but the fact that it purported to be delivered on a certain date and was not delivered until a later date does not make a judgment a nullity. The learned Counsel has been unable to show us any case where such judgment has been treated as a nullity owing to lack of jurisdiction and we must hold that this is not a case where the infringement of a mandatory provision of law nullifies the entire proceedings.