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Petitioner: WASI MIAH VS Respondent: FAZU MEAH
P L D 1963 Dacca 992
P L D 1963 Dacca 992
Before Siddiky, J
WASI MIAH‑---Appellant
versus
FAZU MEAH AND OTHERS-----‑Respondents
Second Appeals Nos. 46 and 47 of 1959, decided on 30th March 1962.
Civil Procedure Code (V of 1908), Ss. 100, 33 and O. XLVII, r. 1 and O. XLI, r. 1‑‑Filing of second appeal pending application for review before first appellate Court‑‑Lower appellate Court accepting review petition any partially modifying its judgment Second Appeal liable to be dismissed unless new decree drawn up by lower appellate Court after modification of its previous judgment is appended with memorandum o1 Second appeal‑Duty of Court to draw up near decree after it modifies its judgment by allowing review petition.
M. H. Khondkar for Siddique Ahmad Chowdhury for Appellant.
A. S. M. Mofakher for Respondents.
JUDGMENT
These two appeals by Defendant No. 1 are against a decision of the Subordinate Judge, Chittagong, confirming the judgment and decree passed by the trial Court in Title Suits Nos. 86 and 89 of 1954. The two suits were tried analogously and were disposed of by one single judgment. But decrees were drawn up separately in each of the two suits.
2. The plaintiffs‑respondents filed the suits for declaration of their title and recovery of possession.
3. The suit lands appertained to Etmam Manu Hossain which originally belonged to three brothers Hyder Ali, Yusuf Ali and Asgor Ali and others. Defendant No. 1 appellant before rue was a kot‑mortgagee in respect of the Schedule I property in Title Suit No. 86 of 1954.
4. The trial Court decreed the suits of the plaintiffs. On appeal by Defendant No. 1 the learned Court of appeal below affirmed the said judgment and decrees of the learned trial Court. Being aggrieved by the said decision of the Court of appeal below Defendant No. 1 has preferred the present two appeals to this Court.
5. At the present moment I shall be dealing with Appeal No. 46 of 1959 in this judgment for reasons which will be apparent from the passages to follow.
6. At the outset Mr. Mofakher, the learned Advocate for the respondents raised a preliminary objection to the maintainability of Appeal No. 46 of 1959. Mr. Mofakher's objection is that Defendant No. 1 being dissatisfied with the judgment and decrees passed by the learned Subordinate Judge on appeal, affirming the judgment and decrees of the learned trial Court, filed an application for review before the learned lower appellate Court and the said review application having been allowed, the judgment and decree dated 21‑3‑58, appealed against, in the present instance, have become non‑existent and as such the present appeal is not at all maintainable. He further added that Defendant No. 1 appellant has not appealed against the judgment and decree passed after the review application was allowed modifying the original judgment.
7. The application for review was filed on 21‑5‑58 and the same was allowed on 7‑3‑59. By the judgment pronounced on the said review application on 7‑3‑59 the learned Subordinate Judge modified his judgment dated 21‑3‑58 in the following terms:
"The plaintiff's title to the Schedule I land is hereby declared and they do get back possession of the same subject to the kot‑mortgage. The remaining portion of the judgment is left unaltered. I make no order for costs. Let the judgment passed in appeal be modified accordingly."
8. The present second appeal was filed in this Court on 30‑7‑58 and the same was admitted under rule 11 of Order XLI of the Code of Civil Procedure on 16‑4‑59.
9. I think there is substance in this contention of Mr. Mofakher that the Second Appeal No. 46 of 1959 arising out of judgment and decree passed by the Court of appeal below on 21‑3‑58 is not maintainable because the review application filed by the defendant‑appellant was allowed and the judgment dated 21‑3‑58 was modified to the extent that the plaintiff's suit was decreed in respect of his title but subject to the kot‑mortgage of Defendant No. 1 with regard to the Schedule I properties. It is no doubt true that when a review application is allowed, not to correct clerical errors apparent on the face of the record, but to modify the judgment materially, the judgment passed upon the review application is a completely new one and decree made there under is a new decree and supersedes the original judgment and decree. Therefore, an appeal preferred against the judgment and decree which stands superseded by the subsequent judgment and decree passed upon the review application becomes incompetent. This view gains support from a decision of the Allahabad High Court in the case of Kanhaiya Lal and others v. Baldeo Prasad (I L R 28 All. 240) wherein it was held by Stanley, C. J. and Burkitt, J. " . . . . . . the order passed on review amounted to a new decree, superseding, as we have said, the old decree. Under these circumstances the decree against which the present appeal has been preferred does not exist, and the appeal cannot be heard." Reliance was placed on the decision referred to above in the case of Gour Krishna Sarkar and another v. Nilmadhab Saha and others (36 C L J 484) decided by a Division Bench of the Calcutta High Court which was presided over by Sir Asutosh Mookerjee, J. The learned Judges of the Calcutta High Court discussed the point elaborately and took note of almost all the cases on the point and held:
"The principle recognised in these cases justifies the view adopted by Sir John Stanley, C. J. in Kanhaiya Lal v. Baldeo Prasad that when an application for review has been granted, the original decree ceases to exist, with the consequence that an appeal preferred against that decree can no longer be prosecuted. This view is identical with that adopted by Sir John Edge, C. J. in Kuar Sen v. Gangaram 1890 All. W N 144 and was subsequently approved in Brijbasi Lal v. Salig Ram 1912 I L R 34 All. 282 and Chenna v. Peddaobi 1908‑9 I L R 32 Mad. 416.
There is also a decision of the Single Judge of the Madras High Court in the case of (Packirl) Muhammad Bowther v. Swaminatha Mudaliar (A I R 1936 Mad. 464). The view expressed in the decisions above referred to was approved and followed in two later decisions of the Calcutta High Court in the cases of Aditya Kumar Bhattacharjee v. Abinash Chandra Mukhopadhya and others (34 C W N 1002) and Sm. Soudamini Das v. Nabalak Mia Bhuij a and others (35 C W N 251).
10. In the present case although the learned Subordinate Judge allowed the review application yet he did not alter his entire judgment dated 21‑3‑58. He modified his earlier judgment partially. The modification in the present case is only to the extent that the plaintiff's title to the suit land is declared subject to the pot‑mortgage of the defendant appellant. It will be further seen in the present case that the learned Subordinate Judge did not direct amendment of the decree although there is a specific direction in his order that the judgment dated 21‑3‑58 should be amended according to the judgment dated 7‑3‑59. No decree, in fact, has been drawn up on the judgment dated 7‑3‑59.
11. It, therefore, seems to me that it is not a case where by the review judgment the entire judgment dated 21‑3‑58 has been superseded or completely nagatived. Rather it is a case where all the findings of the learned Subordinate Judge arrived at in his judgment dated 21‑3‑53 has been kept in tact except that the same is modified to the extent of the right of Defendant No. 1 as pot‑mortgage. Possibly this is why the learned Sub ordinate Judge did not direct a new decree to be drawn up on his judgment dated 7‑3‑59. But this is not the correct view in law. When the learned Subordinate Judge had allowed the review application and modified his earlier judgment, he should have drawn up a decree, if I may say so, a modified decree in terms of his judgments dated 21‑3‑58 and 7‑3‑59. Such an action is possible and can be contemplated, and I think, my this view finds support from a decision of a Division Bench of the Calcutta High Court in the case of Aditya Kumar Bhattacharjee v. Abinosh Chandra Mukhopadhya and others already referred to above.
12. Mr. Khondkar, the 1Larned Advocate for the appellant in his usual fairness has conceded that the position in law with regard to his appeal as indicated above is correct and the appeal has become incompetent though according to him not in its entirety. He submits that if even decree is drawn up now or if it would have been drawn up after the passing of the judgment dated 7‑3‑59 modifying the earlier decree dated 21‑3‑58, he would have had to appeal against the earlier judgment and decree as he does not accept the decision of the learned Sub ordinate Judge on the points decided in the earlier judgment and the decree drawn upon the said judgment. He has, there fore, submitted that in the peculiar circumstances of this case should instead of dismissing the appeal, keep the same pending and direct the learned Subordinate Judge to draw up a modified decree in terms of his judgment dated 7‑3‑59, as it is the duty of the Court under section 33 of the Code of Civil Procedure to draw up a decree after final adjudication of the rights of the parties in a suit, and permit his client to annex certified copies of judgment pronounced after review on 7‑3‑59 and the decree to be drawn up on the same with the judgment and decrees dated 21‑3‑58 already filed with the memorandum in this appeal (S. A. 46 of 1959) Mr. Khondkar has pointed out and rightly, that there will be (sic) question of limitation in the present case, if the present appeal is dismissed on this preliminary ground and he is forced to file a fresh appeal against the decree flowing from the judgment dated 7‑3‑59 which has not yet been drawn up.
13. I think this contention of Mr. Khondkar is not without substance. He has in support of this contention relied on a decision of the Calcutta High Court in the case of Sm. Soudamini Das v. Nabalak Mia Bhuiya and others. In that case along with the memorandum of appeal the amended decree drawn up after the application for review was allowed was not filed and hence on an objection being taken that the appeal was incom petent as it was not against the amended decree drawn up on the judgment passed in the review application, the Calcutta High Court held that time could be extended in favour of the appellant to put in the amended decree as in that case both the decrees, that is, the one before the review application was allowed and the other that was drawn up after the review application was allowed, were necessary, for the purpose of the hearing of the appeal. This case though not exactly on the point, yet it gives sufficient indication as to what the High Court may do in circumstances like this. Mr. Khondkar also relied on the case of Manohar Lal v. Nanak Chand (52 I C 469). The learned Judges in that case held as follows :‑
"A preliminary objection has been raised by the res pondent that no appeal lies merely against the judgment and that Order XLI, rule 1, requiring the memorandum of appeal to be accompanied by a copy of the decree has not been complied with. Further, counsel for the respondent argues that even if a decree should have been drawn up, it was the duty of the appellant to move the Court for this purpose. Against this, counsel for the appellant argues that, under section 33 of the Civil Procedure Code, it is imperative that a decree shall follow the judgment and that it is the duty of the Court to comply with the provisions of the law. We agree that a decree should have followed the judgment and that it was the duty of the Court to have had it drawn up and we do not think that such an omission or neglect of its duties can deprive the appellant of his right of appeal. We, therefore, overrule this objection and allow the appellant to apply to the lower Court within one month for the drawing up of a formal decree, to be attached to the memorandum of appeal as soon as it is obtained."
14. In the view that I take of this case and upon consideration of the peculiar facts and circumstances obtaining therein, I think it will be a just and proper order, if I do not dismiss the appeal and direct the Court of appeal below to A draw up a decree in terms of his judgment dated 7‑3‑59 and allow the appellant to append the same along with a certified copy of the judgment dated 7‑3‑59 to the memorandum on appeal already filed with permission to add grounds as may be' necessary in view of the amended decree.
15. Mr. Mofakher at the end also submitted that this will be the best course in the facts and circumstances of the case. He is right in so submitting, as Appeal No. 47 of 1959 arising out of the same judgment and between the same parties which was posted for hearing analogously with Appeal No. 46 of 1959 is not in any way affected by his preliminary objection and has to be decided on merits.
16. I accordingly direct the learned Subordinate Judge to draw up an amended decree within ten days of the receipt of the records from this Court, which should be sent down immediately. The appellant is permitted to file a certified copy of the said amended decree and judgment-dated 7‑3‑59 in the present appeal within three weeks from the date of the receipt of the certified copy.
17. Since Mr. Mofakher has consented to the order that I have made I do not award any costs to the respondents for the present hearing.
The appeals shall go out of the daily list for the present and shall reappear within seven days of filing of the certified copies of the amended decree by the appellant.
S. B./K. B. A.
Order accordingly.