HANMANT RUKHMAJI Vs. ANNAJI HANMANT

JUDGEMENT

(1.) The question which has been referred to us is whether the judgment of the first appellate Court is a judgment in accordance with law. The reference is made on the ground that the decision in Tanaji Dagde v. Shankar Sakharam (1911) I.L.R. 36 Bom. 116 : 13 Bom. I.L.R. 1003 seems to conflict with the previous practice of the Court, sappearing from Puttapa v. Yellappa (1903) 5 Bom. L.R. 233; Thakor Takhatsangji Ramsangji v. Dai Sicndarbai (1891) P.J. 58; Khushal Chintaman v. Supdu Tapiram (1891) P.J. 239; and Narayan Lakshmandas v. Lala valad Sandu Patil (1894) P.J. 113. There is much to be said for the reasoning in Tanaji Dagde v. Shankar Sakharam (1911) I.L.R. 36 Bom. 116 : 13 Bom. L.R. 1003 upon the materials which were then before the Court. But the Court does not appear to have had in mind the existence of Civil Circular 51, which was published in 1890 under the provisions of the High Courts Act. That Circular provides that " when an appellate Court dismisses an appeal under Section 551 of the Code of Civil Procedure, a judgment should be written and a formal decree drawn up." There is nothing in the new Code of Civil Procedure which introduces any change in the law, except in so far as the rules commencing with rule 9 of Order XLI are headed " Procedure on admission of appeal." That change is not sufficient to abrogate the rule published under the High Courts Act, which is quite consistent with the provisions of the Code. That rule in the Civil Circulars is the basis of all the Bombay judgments above referred to, except that reported in 36 from., p. 116. We are, therefore, of opinion that the practice laid down in that Circular must still be observed by the Courts of this Presidency subject to the superintendence of the High Court. Beaman, J.

(2.) Had we nothing more to do here than give a true construction of Order XLI, then notwithstanding the conflicting decisions which have been cited to us, I should certainly have adhered to the view expressed by my brother Hayward, in which I concurred, in Tanaji Dagde v. Shankar Sakharam (1911) I.L.R. 36 Bom. 116 : 13 Bom. I.L.R. 1003. I think too that what that case authorized is desirable and right to be done as tending to relieve a hard-worked moffusil judiciary from a heavy burden of clerical work, which must, in many cases at least, be practically superfluous. But in view of the Circular order, which has been mentioned, I feel that so long as that Circular order stands, and has the force of law, I ought to concur, and therefore I do concur in the judgment, which has just been pronounced by my Lord the Chief Justice. Shah, J.

(3.) I concur in the judgment delivered by my Lord the Chief justice.