s.c.n.

SUPREMI~ COUR1; REI>ORTS

THE STATE OF UTTAR PRADESH

C. TOBIT AND OTHERS

(S. R. DAs C. J., VENKATARAMA AIYAR, A." K. SARKAR and

VIVIAN BOSE JJ.)

Criminal Procedure-Petition of appeal-If must be accompanied b11 certified copy of jtligment or order appealed against-Code of Criminal Procedure (Act V of 1898), s. 419.

The word 'Copy' occurring in s. 419 of the Code of Criminal Procedure means a certified copy and a petition of appeal filed under that section must, therefore, be accompanied by a certified. copy of the judgment or order appealed against.

Ram Lal v. Ghanasharn Das, A.I.R. (1923) Lah. 150, referred to.

Firm Chota Lal-Amba Parshad v. Firm Basdeo Mal-Hira Lal, A.I.R. (1926) Lah. 404, distinguished.

Consequently, where a State Government filed an appeal against an order of acquittal under s. 417 of the Code of Criminal Procedure with a plain copy of the judgment appealed against and put in a certified copy of it after the period of limitation prescribed for the appeal had expired and the High Court dismissed the appeal as time-barred, that order 'was correct and must be affirmed.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 128 of 1955.

Appeal from the judgment and order dated February 8. 1955, of the Allahabad High Court in Government Appeal No. 165 of 1954, arising out of the judgment and order dated July 24, 1953, of the Court of the Civil and Sessions Judge at Gorakhpur in Sessions Trial No. 5 of 1953.

G. C. Mathur and C. P. Lal, for the appellant.

. S. N. Andley, for the respondents.

1958. February 14. The following Judgment of the Court was delivered by

DAS C. J.-The respondents before us were put up for trial for offences under ss. 147, 302, 325 and 326, Indian Penal Co4e read with s. 149 of the same Code. On July 24, 195J: the temporary Civil Sessions Judge, Gorakhpur, acqmtted them. The State of Uttar Pradesh apparently felt L/S4SCI-6(a)

Fel, ruary H.

DctsC. J,

19ii8

f'lie Slate of Uttar Pmrlrli

C. Tobit a.nd Otlirr1

Dad C. J.

1276 SUi'HElllE COUHT Rl~POHTS [1968]

aggrieved by this acquittal and intended to appeal to the High Court under s. 417 of the Code of Criminal Procedure.

Under art. 157 of the Indian Limitation Act an appeal under the Code of Criminal Procedure from an order of acquittal is required to be filed within six months from the date of the order appealed from. The period of limitation for appealing from the order of acquittal passed by the Sessions Judge on July 24. 1953. therefore. expired on January 24, 1954. That day being a Sunday the Deputy Government Advocate on January 25. 1954. field a petition of appeal on behalf of that State. A plain copy of the judgment sought lo be appealed from was filed with that petition. The High Court office im mediately made a note that the copy of the judgment filed along with the petition of appeal did not appear to be a certified copy.

After the judicial records of the case had been received by the High Court, an application for a certified copy of the judgment of the trial court was made on behalf of the State on February 12, 1954.

The certified copy was received by the Deputy Government Advocate on February 23, 1954 and he presented it before the High Court on February 25. 1954. when Harish Chandra J. made an order that the certified copy be accepted and that three days' further time be granted to the appellant for making an application under s. 5 of tlie Indian Limitation Act for condoning the delay in the tiling of the certified copy. Accordingly an application for the condonation of delay was made by the appdhint on the same day and that application was directed to b~

laid before a Division Bench for necessary orders.

The application came up for hearing before a Division Beiv; h consisting of M. C. Desai and N. U. Beg JJ. At the hearing of that application learned counsel appearing for the appellant urged that as there was, in the circumstances of this case, sufficient cause for not filing the certified copy along with the petition of appeal the delay should be condoned and that. in any event. the filing of the plain copy of the judgment of the trial court along with the petition of appeal constituted a sufficient compliance with the requirements of

S.C.R.

SUPREME COURT llEPOR'J'S 1277

s. 419 of the Code of Criminal Procedure. By their judgment 1968 delivered on December 7. J 954, both lhe learned Judges took Tlie Rl,, te of the view that no case had been made out for extending the CJttar PrllllMto period of limitation under s. 5 of the Indian Limitation Act c. Tobit ::.ui Olkt:• and dismissed the application an. d nothing further need be c J

DQI •• said on that point. The learned judges, however, differed on the question as to whether the filing of a plain copy of the judgment appealed from was a sufficient compliance with the law. M. C. Desai J. holding that it was and N. U. Beg J. taking the contrary view.

The two Judges having differed they directed the case to be laid before the Chief Justice for obtaining a third Judge's. opinion on that question. Raghu bar Dayal J. to whom the matter was referred, by his judgment dated January 31, 1955, expressed the opinion that the word "copy" in s. 419 meant a certified copy, and directed bis opinion to be laid before the Division Bench. In view of the opinion of tlie third Judge, .the Division Bench held that the memorandum of appeal had not been accompanied by "a copy" within the meaning of s. 419 and that on February 25, 1954, when a certified copy came to be filed the period of limitation for appealing against the order of acquittal passed on July 24, 1953, had already expired and that as the application for extension of the period of limitation had been dismissed the appeal was time barred and they accordingly dismissed the appeal. The learned Judges, however, by the same order gave the appella.nt a certificate that the case was a fit one for appeal to this Court. Hence thi~ appeal.

Section 419 of the Code of Criminal Procedure, under which the appeal was filed, provides as follows:_:_

"419. Every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader, and every such petition shall (unless the Court to which it is presented otherwise directs) be accompained by a copy of the judgment or order appe1:1led against, and, in cases tried by a jury. a copy of the heads of the charge recorded under 11ection 367."

The Stale of Vttar Pradesh

C. Tobit and Ot/1ers

Da~ C. J.

The sole question raised in this appeal is whether this section requires a petition of appeal to be accompanied by a certified copy of the judgment or order appealed from. It will be noticed that the section requires "a copy" of the judgment to be filed along with the petition of appeal. There can be no doubt that the ordinary dictionary meaning of the word "copy" is a reproduction or transcription of an original writing. As the section does not, in terms, require a certified copy, it is urged on behalf of the appellant that the word "copy" with reference to a document has only one ordinary meaning, namely: a transcript or reproduction of the original document and that there bi:ing nothing uncertain or ambiguous about the word "copy", no question of construction or interpretation of the section can at all arise. It is contended that it is the duty of the court to apply its aforesaid: ordinary and grammatical meaning to the word "copy" appearing in s. 419 and that it should be held that the filing of a plain copy of the judgment along with the petition of appeal was a sufficient compliance with the requirements of that section. The matter, however, does not appear to us to be quite so simple. A "copy" may be a plain copy, i.e., an unofficial copy, or a cerlified copy, i.e., an official copy. If a certified copy of the judgment is annexed to the petition of appeal nobody can say that the requirements of s. 419 have not been complied with, for a certified copy is none the less a "copy". That being the position a question of construction does arise as to whether the word "copy" used in s. 419 refers to a plain copy or tQ a certified copy or covers both varieties of copy. It is well settled that "the words of a statute, when there is doubt about their meaning, are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the Legislature Jias in view.

Their meaning i~ found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attainfd." (Maxweli's Interpretation of S!<!tutes, 10th Edition, page 52).

In order, therefore, to come to a decision as to the true meaning of a word used in a Statute one has to enquire as to the subject-matter of the enactment and the object which the Legislature had in view.

This leads us to a consideration of some of the relevant sections of the Code of Criminal Procedure and other enactments having a material bearing on the question before us.

Section 366 of the Code of Criminal Procedure, which is in Chapter XXVI headed "Of the Judgment", requires that the judgment in every trial in any criminal court of oria\inal jurisdiction shall be pronounced in open court and in the language of the court. Section 367 requires every such judgment to be written by the presiding officer (or from his dictation) in the language of the court or in English. containing the point or points for determination, the decision _ thereon and the reasons for the decision. The judgment has to be dated and signed by the presiding officer in open court.

Except as otherwise provided by law, s. 369 forbids the court, after it has signed its judgment, from altering or reviewing the same except to correct mere clerical errors.

After the judgment is pronounced and signed it has, under s. 372, to be filed with the record of proceedings and becomes a part of the record and remains in the custody of the officer who is in charge of the records. Under s. 371, when an accused is sentenced to death and an appeal lies from such judgment as of right, the court is to inform him 0£ the period within which he may, if he so wishes, prefer his appeal and when he is sentenced to imprisonment a copy of the findings and sentence must as soon as may be after the delivery of the judgment be given to him free of cost without any application.

This, however, is without prejudice to his right to obtain free of cost on an application made by him, a "copy" of the judgment or order and in trials by jury a "copy" of the heads of charge to the jury. The copy that is supplied to the accused under sub-s. (4) of s. 371 is not a full copy of the entire judgment, but the copies supplied to him under sub-ss. (I) and

Tlie State of Uttar Pradesh

O. T-Obil onul Other8

DaaO. J,

The State of Uttar Pradesh

C. Tobit and Others

Das C. J,

SCPREME COURT REPORTS [1958)

(2) of s. 371 on application made by him are full copies of the judgment or the heads of the charge to the jury as the case may be.

The copy of the findings and the sentence which is supplied to the accused under sub-s. (4) without his asking for the same is presumably to enable him to decide for himself whether he would appeal against his conviction and the sentence. The copies, whicli are supplied to the accused under sub-ss. (I) and (2) on his application for such copies, are obviously full copies of the entire judgment or the heads of charges as the case may be and are intended to enable him to prepare his grounds of appeal should he decide to prefer one and to file the same along with his petition of appeal as required by s. 419 of the Code of Criminal Procedure. There are no provisions corresponding to s. 371 for giving any copy of the judgment to the State for the public prosecutor representing the State in case of an acquittal. If, therefore, the State desires to file an appeal against acquittal under s. 417 of the Code of Criminal Procedure the State will have to procure a copy of the judgment or the heads of charge in order to enable it to file the same along with .its petition of appeal and thereby to comply with the requirements of s. 419.

According to s. 74 of the Indian Evidence Act a judgment, being the Act or record of the act of a judicial officer, would be included in the category of public documents. Under s. 548 of the Code of Criminal Procedure if a person affected by a judgment desires to have a copy of the judge's charge to the jury or of any order or deposition or other part of the record he has the right, on applying for such copy, to be furnished therewith. A person desirous of such a copy has to apply for it to the public officer having the custody of it and, undr s. 76 of the Indian Evidence Act, such public officer is bound to give that person, on demand, a copy of it on payment of the legal fees thereof together with a certificate written at the foot of such copy that it is a true copy of such document, that is to say, to supply to the

1pplicant what is known as a certified copy. Therefore, whether it is the accused person who applies for a copy under s.

371. sub-ss. (I) and (2) or it is the State which applies for a copy, the copy supplied by the public officer must be a certified copy. Then when s. 419 requires that a copy of the judgment or of the heads of charge be filed along with the petition of appeal, it is not unreasonable to hold that it is the certified copy so obtained that must be filed.

Under arts. 154, 155 and 157 of the Indian Limitation Act the petition of appeal has to be filed within the time . specified in those articles. Obviously it may take a little . time to apply for and procure a certified copy. In order that the full period of limitation be available to the intending appellant s. 12 of the Limitation Act permits the deduction of the time requisite for obtaining the copy of the judgment or the heads of charge in ascertaining whether the appeal is filed within .time.

A certified copy of the judgment will on the face of it show when the copy was applied for, when it was ready for delivery and when it was actually delivered and the court may at a glance ascertain what time was requisite for obtaining the copy so as to deduct the same from the computation of the period of limitation.

Taking all relevant facts into consideration, namely, that a "copy" of the judgment has to be filed along with the petition of appeal, that the copies of the judgment which the accused gets free of cost under s. 371 (l) and (2) read with S. 76 of the Indian Evidence Act and which the State can obtain on an application made by it under s. 76 of the last mentioned Act can only be certified copies, that the tim.e requisite for obtaining such copies is to be e:itcluded from the computation of the period of limitation all quite clearly indicate that the copy to be filed with the petition of appeal must be a certified copy.

Section 419 requires a copy of the judgment or order appealed against to be filed not without some purpose. That purpose becomes clear when we pass on to s. 421 of the Code of Criminal Procedure. That section enjoins the court, on receiving the petition of appeal and copy of the judgment or order appealed from under s. 419. to peruse the same and

'!'At Stau of Ullar Prllduh

"' o. 'l'obil •nd Otl!eta

DuO.J,

The Slate of Uttar Pradesh

C. Tobit and Othrs

Das C. J.

SUPREME COURT REPOHTS [1958]

after perusing the same to do one of the two things, namely, if it finds that there is no sufficient ground for interfering. to dismiss the appeal summarily or when the court does not dismiss the appeal summarily, then under s. 422 to cause notice to be given to the appellant or his pleader and to such officer as the Provincial Government may appoint in this behalf, of the time and place at which such appeal will be heard and furnish such officer with a copy of the grounds of appeal and in a case of appeal under s. 417. as in the present case, to cause a like notice to be given to the accused.

The act of summarily rejecting the appeal or admitting it and issuing notice is necessarily a judicial act and obviously it must be founded on proper materials.

The authenticity or correctness of the copy of a judgment is also essential in order to enable the appellate court to make interlocutory orders which may have serious consequences.

In the case of an appeal by the accused he may ask for the stay of the execution of the order, e.g., of the realisation of the fine or he may move the court for bail.

Likewise in the case of an appeal by the State, the State may ask for the accused to be apprehended and brought before the court under warrant of arrest. Orders made on these applications are all judicial acts nd accordingly it is essential that the appellate court in order to take these judicial decisions have proper materials before it.

Therefore. it is of the utmost importance that the copy to be filed with the petition of appeal is a full and correct copy of the judgment or order appealed against.

Under s. 76 of the Indian Evidence Act the public officer who is to supply a copy is required to append a certificate in writing at the foot of such copy that it is a true copy and then to put the date and to subscribe the same with his name and official title. Therefore, the production of a certified copy ipso facto and without anything more will show ex facie that it is a correct copy on which the appellate court may safely act. The fact that the appellate court is by law enjoined to peruse the copy of the judgment and take judicial decision on it indicates that it must have before it a correct copy of the judgment and this

further indicates that the copy required to be filed with the petition of appeal under s. 419 should be a certified copy which will ipso facto assure the appellate court of its correct-

19/18

The State of Uttar Pradesh

v. ness.

0. Tobit and Othera It is said that the appellate court may not summarily reject or admit the appeal or make an interlocutory order until the record is produced or until a certified copy of the judgment or order is presented before it. There is no doubt that the court can under s. 421 of the Code of Criminal Procedure call for the record of the case, . but the court is not bound to do so. The calling for the records in every case or

keeping the proceedings in abeyance until a .certified copy is presented before the court is bound to involve delay and there is no apparent reason why there should be any delay in disposing of criminal matters involving the personal liberty of the convicted accused. All this inconvenience may easily be obviated if s. 419 be read and understood to require a certified copy to be filed along with the petition of appeal.

Learned counsel for the appellant urges that in case of urgency the court need not wait until the record or the certified copy is received, but may call upon the appellant to adduce evidence to prove the correctness of the judgment in order to induce the court to act upon it and take a judicial decision thereon.

In the first place there is no such procedure envisaged in the Code of Criminal Procedure. In the next place adoption of such a procedure may cause much delay and in the third place no question ordinarily arises under s. 419 of proving the correctness of the judgment under appeal in the way in which a document is to be proved in order to tender it in evidence in the case.

But assuming that the correctness of the judgment under appeal is to be established then as soon as the appellant is out to "prove" by oral evidence of witnesses the contents of the original judgment so as to establish the correctness of the plain copy filed along with his petition of appeal the question wiil immediately arise whether such evidence is admissible under the Jaw. As already stated s. 367 of the Code of Criminal Proce-

Das O. J.

1'he S,...of Uttar Pro.duh

U. Tobit and Other8

Dtu C. J.

dure requires the judgment to be reduced to writing. Section 91 of the Indian Evidence Act provides, inter alia, that in all cases in which any matter is requited by law to be reduced to the form of a document-and a judgment is so required'- no evidence shall be given for the proof of the terms of such matter except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the earlier provisions of that Act.

In the absence of the production of the original judgment if a witness is put into a witness box and is asked to say whether the copy produced befure the appellatl: court is a correct copy of the origi• nal judgment filed of record• in the trial court he will necessarily have to say that he read the original judgment and from his memory he can say that the copy correctly reproduces the text of the original judgment. This means that he will give secondary evidence as to the contents of the original judgment which under the law is required to be reduced to the form of a document.

A further question will, therefore, arise if such evidence, which at best is secondary evidence, is admissible under the Indian Evidence Act.

As already stated the judgment, which under s. 367 of the Code of Criminal Procedure has 10 be in writing and under s. 372 has to be filed with the record of the proceedings, becomes, under s. 74 of the Indian Evidence Act, a public document. As the original judgment is a public document within the meaning of s. 74, only a certified copy of such document and no other kind of secondary evidence is admissible under s. 65.

This circumstance also indicates that the word "copy" in s. 419 means, in the context, a certified copy and so it was held in Ral Lal v. Ghanasham Das('). The decision in Firm Clthota

Lal~Amba Parshad v. Firm Basdeo Mal-Hira Lal('), proceeded on its peculiar facts, namely, that no certified copy could be obtained as the original judgment could not be traced in the record and the decision can be supported on the ground that the court had, in the circumstances, dispensed with the production of a certified copy.

(') A.I.R. (1923) Lah. 150, ( ') A.I.R. (1926) Lah. 404.

Learned counsel for the appellant next urges that the 1958 fact that the appellate court to which the petition of appeal The State of is presented is given power to dispense with the filing of a Uttar Pradesh copy of the judgment appealed against indicates that the o. Tobit V,:nd Other.

Legislature did not consider the filing of the copy to be essen- Das O. J. tial and that if the filing of the copy is not essential and copy can be wholly dispensed with, a plain copy should be sufficient for the purpose of s. 419.

This bower of dispensation had to be given to the court for very good reasons. In certain cases an order staying the operation of the order sought to be appealed from may be immediately necessary and the matter may be so urgent that it cannot brook the delay which will inevitably occur if a certified copy of the judgment or order has to be obtained. In some cases it may be that a certified copy of the same judgment is already before the same court in an analogous or connected appeal and the filing of another certified copy of that very judgment may be an unnecessary formality.

The circumstance that the court may, in urgent cases, dispense with the filing of a copy does not imply that in a case where the court does not think fit to do so it should be content with a plain copy of the document which ex facie contains no guarantee as to its correctness.

Reference has been made to a number of sections of the Code of Criminal Procedure where the word "copy" has been used and to ss. 425, 428, 442 and 511 which, it is said, talk about certified copy and on this circumstance is founded the argument that where the Legislature insists on the production of a certified copy it says so expressly and that as the word "copy" used in s. 419 is not qualified by the word "certified" the inference is irresistible that the filing of a plain copy was intended to be sufficient for the purpose of that section. Turning to the four last mentioned sections, it will be noticed that the first three sections 425, 428 and 442 do not really refer to any certified copy of any document at all.

Section 425 requires that whenever a case is decided on appeal by the High Court under Chapter XXXI it shall certify

The State of Uttar PrackaA

G. Tobit ancl 011•"'

Da• G. J.

SUPHEME COURT REPOHTS [1958]

its judgment or order to the court by which the finding, sentence or order appealed against was recorded or passed. It really means that the High Court is to formally communicate its decision on the appeal to the court against whose decision the appeal , had been taken.

Likewise s. 428 requires the court taking additional evidence to certify such evidence to the appellate court. Spction 442 requires the High Court to certify its decision on revision to the court by which the finding, sentence or order revised was recorded or passed.

Lastly s. 511 lays down the mode of proof of a previous conviction or acquittal, namely, by the production of an extract certified under the hand of the officer having the custody of the records of the court to be a copy of the sentence or order.

Therefore, the four sections relied on do not in reality refer to certified copy of a judgment or order supplied to a party on his application for such copy and consequently no argument such as has been sought to be raised is maintainable.

The question whether a copy in a particular section means a plain copy or a certified copy must depend on the subject or context in which the word "copy" is used in such section.

In many sections relied on, the "copy" is intended to serve only as a notice to the person concerned or the public and is not intended to be acted upon by a court for the purpose of making a judicial order thereon. We think that U. N.

Beg J. rightly pointed out that the object and purpose of such sections are distinguishable from those of s. 419 where the copy is intended to be acted upon by the appellate court for the purpose of founding its judicial decision on it. We do not consider it. desirable on the present occasion to express any opinion as to whether any those sections relied on requires a plain copy or a certified copy. It will suffice for us to hold that so far as s. 419 is concerned, having regard to the context and the purpose of that section, the copy to be filed along with the petition of appeal must be a certified copy.

We have also been referred to several sections of the Code of Civil Procedure where tha word "copy" is used. We do

S.C.R

SUPREME COUHT REPORTS 1287

not consider it right to enter upon a discussion as to the true interpretation of the word "copy" occurring in any of those sections for we think that each section in each Act must, for its true meaning and effect, depend on its own language, context and setting.

In the result, for reasons stated above, we agree that the order passed by the Allahabad High Court on February 8, 1955 was correct and this appeal should be dismissed.

Appeal dismissed.

SM. SAILA BALA DASSI v.

SM. NIRMALA SUNDARI DASSI. AND ANOTHER

(S. R. DAS c. J., VENKATARAMA AIYAR, A. K. SARKAR and VIVIAN BosE JJ.)

Civil Procedure-Addition of party-Transfer pendente lite-Appeal filed by ttansferor-Ri:ght of transferee to continue appeal-Code of Civil Procedure (Act 5 of 1908); s. 146, 0. 22, r. 10 .

. The second respondent sold the properties to the appellant in 1952 and the deed of sale recited that t.he properties were sold free of all enct.Jmbrances.

The first (respondent who had obtained a mortgage decree in respect of the properties in 1935 did not take any steps to have the decree drawn up as required under the Original Side Rules of the Calcutta High Court until 1954, when she commenced proceedings for sale of. the mortgaged properties. The second respondent raised the objection that the execution of the decree was barred by limita- . tion but that was. overruled by a single Judge· of the High Court and an appeal against that order was preferred by the second respondent. Apprehending that the second respondent might enter into a collusive arrangement with the first respondent with a view to defeat her rights, the appellant made an application in the High Court under 0. 22, r. 10, of the. Code of Civil Procedure praying that she might be substituted in the place of the second respondent, or in the alternative, be brought on record as additional appellant. The High Court having dismissed the application, the appellant. brought the present appeal: ·

Held, that the application could not be sustained under 0. 22, r. 10, of the Code of Civil Procedure because (1) assuming

The State of Uttar Pradesh

v. a. Tobit and Olh.ers

Daso. J.

February U.

THE STATE OF UTTAR PRADESH

C. TOBIT AND OTHERS

S. R. DAs

A." K. SARKAR

VIVIAN BOSE JJ.

Code of Criminal Procedure

s. 419

s. 419

Code of Criminal Procedure

s. 417

Code of Criminal Procedure

Allahabad High Court

G. C. Mathur

C. P. Lal

S. N. Andley

DAS

ss. 147, 302, 325 and 326

s. 149

State of Uttar Pradesh

s. 417

Code of Criminal Procedure

art. 157

Limitation Act

Code of Criminal Procedure

July 24. 1953

January 24, 1954

January 25. 1954

February 12, 1954

February 23, 1954

February 25. 1954

Harish Chandra

s. 5

Indian Limitation Act

M. C. Desai

N. U. Beg

S 1277

s. 419

Code of Criminal Procedure

December 7. J 954

s. 5

Limitation Act

Raghu bar Dayal

January 31, 1955

s. 419

s. 419

February 25, 1954

July 24, 1953

Section 419

Code of Criminal Procedure

Stale of Vttar Pradesh

C. Tobit

s. 419

s. 419

s. 419

Maxweli

Code of Criminal Procedure

Section 366

Code of Criminal Procedure

Section 367

s. 369

s. 372

s. 371

s. 371

State of Uttar Pradesh

s. 371

s. 419

Code of Criminal Procedure

s. 371

s. 417

Code of Criminal Procedure

s. 419

s. 74

Indian Evidence Act

s. 548

Code of Criminal Procedure

s. 76

Indian Evidence Act

s.

371

s. 419

arts. 154, 155 and 157

Limitation Act

s. 12

Limitation Act

s. 371

S. 76

Indian Evidence Act

s. 76

Section 419

s. 421

Code of Criminal Procedure

s. 419

Das

s. 422

s. 417

s. 76

Indian Evidence Act

s. 419

State of Uttar Pradesh

Tobit

s. 421

Code of Criminal Procedure

s. 419

Code of Criminal Procedure

s. 419

s. 367

U. Tobit

Section 91

Indian Evidence Act

Indian Evidence Act

s. 367

Code of Criminal Procedure

s. 372

s. 74

Indian Evidence Act

s. 74

s. 65

s. 419

s. 419

Code of Criminal Procedure

ss. 425, 428, 442 and 511

s. 419

sections 425, 428 and 442

Section 425

State of Uttar PrackaA

G. Tobit

s. 428

s. 511

U. N.

s. 419

s. 419

the Code of Civil Procedure

February 8, 1955

S. R. DAS

A. K. SARKAR

VIVIAN BosE

Code of Civil Procedure

s. 146, 0

Calcutta High Court

Code of Civil Procedure

the Code of Civil Procedure


S.C.R

SUPREME COUHT REPORTS 1287

not consider it right to enter upon a discussion as to the true interpretation of the word "copy" occurring in any of those sections for we think that each section in each Act must, for its true meaning and effect, depend on its own language, context and setting.

In the result, for reasons stated above, we agree that the order passed by the Allahabad High Court on February 8, 1955 was correct and this appeal should be dismissed.

Appeal dismissed.

SM. SAILA BALA DASSI v.

SM. NIRMALA SUNDARI DASSI. AND ANOTHER

(S. R. DAS c. J., VENKATARAMA AIYAR, A. K. SARKAR and VIVIAN BosE JJ.)

Civil Procedure-Addition of party-Transfer pendente lite-Appeal filed by ttansferor-Ri:ght of transferee to continue appeal-Code of Civil Procedure (Act 5 of 1908); s. 146, 0. 22, r. 10 .

. The second respondent sold the properties to the appellant in 1952 and the deed of sale recited that t.he properties were sold free of all enct.Jmbrances.

The first (respondent who had obtained a mortgage decree in respect of the properties in 1935 did not take any steps to have the decree drawn up as required under the Original Side Rules of the Calcutta High Court until 1954, when she commenced proceedings for sale of. the mortgaged properties. The second respondent raised the objection that the execution of the decree was barred by limita- . tion but that was. overruled by a single Judge· of the High Court and an appeal against that order was preferred by the second respondent. Apprehending that the second respondent might enter into a collusive arrangement with the first respondent with a view to defeat her rights, the appellant made an application in the High Court under 0. 22, r. 10, of the. Code of Civil Procedure praying that she might be substituted in the place of the second respondent, or in the alternative, be brought on record as additional appellant. The High Court having dismissed the application, the appellant. brought the present appeal: ·

Held, that the application could not be sustained under 0. 22, r. 10, of the Code of Civil Procedure because (1) assuming

The State of Uttar Pradesh

v. a. Tobit and Olh.ers

Daso. J.

February U.

S aila Bala Da$$i

N irmala Sundari

Daasi

r •nlcataratna

Aiyar J.

1288 SUPRI<; l\ill COURT HEPORTS [1958]

that the suit was considered as having l:een pending until the decree was dran up in 1954 no application was made to the Court where the suit was pending as provided in 0. 22, r. 10, and

(ii) the application made to the appellate Court was also not within 0. 22, r. 10, as the transfer in question was made prior to the filing of the appeal and not during its pendency.

The application, however. falls within s. 146 of the Code of Civil Procedure and the appellant is entitled to be brought on record since an appeal is a proceeding within the meaning of that section and the right to file an appeal carries \Vith it the right to continue an appeal which had been filed by the person under whom the appellant claims.

JugaU<ishore Saraf v. Raw Cotton Ltd., (1955] 1 S.C.R. 1369, Sitharamaswami v. Lakshmi Narasimha, (1918) l.L.R. 41 Mad. 510 and Muthia Chettiar v. Govinddoss Krishnadoss, (1921) l.L.R. 44 Mad. 919, relied on.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 350 of 1957.

Appeal by special leave from the judgment and order dated August 6, I 956, of the Calcutta High Court on a notice of motion in Appeal No. 152 of 1955.

N. C. Chatterjee and P. K. Mukherjee. for the appellant.

B. Sen and P. K. Ghosh (for P. K. Bose), for respondent No. J.

1958.

February 14.

The Judgment of the Court was delivered by

VENKATARAMA AIYAR J.-This is an appeal against an order of the High Court of Calcutta dated August 6, 1956, rejecting the application of the appellant to be brought on record as appellant in appeal No. 152 of 1955 pending be fore it.

The second respondent. Sudhir Kumar Mitter, was the owner of two houses, No. 86 / l, Cornwallis Street and No.

7-C, Kirti Mitter Lane, Calcutta. On May 19, 1934, he exe cuted.a Mortgage for Rs. 3,000 over the said houses in favour of the first respondent, Sm. Nirmala Sundari Dassi. She instituted Suit No. 158 of 1935 on this mortgage, and obtained a preliminary decree on March 8, 1935. The matter then came before the 'Registrar for taking of accounts, and by his report dated July 23, 1935 he found that a sum of

Rs. 3,914-6-6 was due to her, and on that, a final decree was passed on April 20, 1936. Under r. 27 of ch. 16 of the Original Side Rules of the Calcutta High Court, a person in whose favour a decree is passed has to apply for drawing up of the decree . within four days from the date thereof. The rule then provides that "if such application for drawing up a decree or order is not made within the time aforesaid, the decree or order shall not be drawn up except under order of Court or a Judge to be obtained, unless otherwise ordered, by a petition ex parte". The importance of this provision is that until a decree is drawn up as mentioned therein, no certified copy thereof would be issued to the party and without such a certified copy, no execution proceedings could be taken.

The first respondent who had acted with such alacrity and speed in pqtting her mortage in suit and obtaining a decre. took no steps whatsoever to have the decree drawn up. for nearly 18 years. On May 12, 1952, the second respondent sold both the houses to the appellant herein for a sum of Rs. 60,000 which was, it is stated, utilised largely for discharging prior mortgages on which decrees had been obtained and execution proceedings taken. The deed of sale recites that the properties were sold free of all encumbrances. The first respondent who had so far taken no steps to have the decree drawn up now bestirred herself, anci' on February 17, 1954 obtained an ex parte order under r. 27 aforesaid, granting her leave to draw up and complete the decree. That having been done pursuant to the order, she filed on April 29, 1954 the final decree, and commenced proceedings for sale of the mortgaged properties.

Cqming to know of this, the second respondent appeared before the Registrar, and raised the objection that the execution of tf1e decree was barred by limitation. The Registrar felt some doubt in the matter, and made a special report under ch. 26, r .. 50 seeking the opinion o~ the Court on the

quti9n of limitation, and the first respondent wu directed to take out a notice of motion for directions.. The matter then came before P. B. Mukharji 1. and after hearing

L/S4SCI-7

1953•

Saila Bala Daaai

Nirmala Bundari

DtJBs' v enkatarama

AiyarJ.

Saila Bula l>aaai

Nirmala Sundari

Dassi

V eW:atarama

Aiyar J.

1290 SUPREME COUR'l' REPORTS [1958]

counsel for both the respondents, he held that the execution of the decree was not barred. Vide judgment reported in Nirmala Sundari v. Sudhir Kumar('). Against this judgment, the second respondent preferred Appeal No. 152 of 1955, and that is still pending.

We now come to the application, out of which the present appeal arises.

On July 25, 1956 the appellant applied to be brought on record as appellant in Appeal No. 152 of 1955. The allegations in support of the petition were that she had purchased the properties from the second respondent on May 12, 1952 free of all encumbrances, that the execution proceedings started by the first respondent were not maintainable as the decree had become time-barred, that the second respondent, Sudhir Kumar Mitter, had been conducting proceedings in opposition to the execution sale only at her instance and for her benefit, that he had filed Appeal No. 152 of 1955 aJso on her behalf, that latterly he had entered into a collusive arrangement with the first respondent with a view to defeat her rights, and that therefore it was necessary that she should be allowed to come on record as appellant so that she might protect her interests. The prayer in the petition was that she be substituted in the place of the second respondent or in the alternative, be brought on record as additional appellant.

The application was strenuously opposed by both the

respondents~ They stated that they had entered into an arrangement settling the amount due to the first respondent at Rs. 17,670, that that settlement was fair and bona fide and binding on the appellant, and that further her application was not maintainable. This application was heard by Chakra varti C. J. and Lahiri J. and by their order dated August 6, 1956, they dismissed it. The appellant then applied under Art. 133 for leave to appeal to this Court, and in rejecting that application, the learned Chief Justice observed that the original application was pressed only under 0. 22, r. 10 of the Civil Procedure Code and it was dismissed, as it was conceded that the applicant, not being a person who had

(') A.I.R. 1955 Cal. 484.

obtained a transfer pending appeal, was not entitled to apply 1968 on the terms of that rule, that the prayer in the alternative Saila &;;;; Daari that the applicant might be brought on record without being . . v. . substituted under 0. 22, r. 10 which merited favourable N•~::;, n11a,. consideration had not been mentioned at the previous hear- Venkatarama ing, and that no certificate could be granted under Art. 133 .A.iyar J. with a view to that point being raised in appeal, as the order sought to be appealed against was not a final order. The appellant thereafter obtained special leave to appeal under Art. 136 of the Constitution, and that is how the appeal comes before us.

It is contended on behalf of the appellant that her application is maintainable under 0. 22, r. 10 of the Civil Procedure Code, because Suit No. 158 of 1935 must be considered to have been pending until the decree therein was drawn up which was in 1954, and the transfer in her favour had been made prior thereto on May 12, 1952. The decision in. Lakshan Ohunder Dey v. Sm. Nikunjamani Dassi(') is relied on, in support of this position. But it is contended for the first respondent that even if Suit No. 158 of 1935 is considered as pending when the transfer in favour of the appellant was made, that would not affect the result as no application had been made by her to be brought on record in the original court during the pendency of the suit. Nor could the application made to the appellate Court be sustained under 0. 22, r. 10, as the transfer in favour of the appellant was made prior to the filing of that appeal and not during its pendency.

This contention appears to be well-founded; but that, however, does not conclude the matter. In our opinion, the application filed by the appellant falls within s. 146 of the Civil Procedure Code, and she is entitled to be brought on record under that section. Section 146 provides that save as otherwise provided by the Code, any proceeding which can be taken by a person may also be taken by any person claiming under him. It has been held in Sitharamaswami v. Lakshmi Narasimlza(') that an appeal is a proceeding for the purpose

(1) (1923) 27 C.W.N. 755. (") (1918} I.L.R. 41 Mad. 510.

L/S4SCI-7(a}

Saila Bala Dassi

v. ,;._Vitt1v.tla Sundttri.

]Jassi r enl:atarama

Aiyar J,

SUPREJ'IIE COURT REPORTS [1958

of this section, and that further the expression "claiming under" is wide enough to include cases of devolution and assignment mentioned in 0. 22, r. IO.

This decision was quoted with approval by this Court in Juga/, kishore Saraf v.

Raw Cotton Co., Ltd.('), wherein it was held that a transferee of a debt on which a suit was pending was entitled to execute the decree which was subsequently passed therein, under s. 146 of the Civil Procedure Code as a person claiming under the decree-holder, even though an application for execution by him would not lie under 0. 21, r. 16, and it was further observed that the words "save as otherwise provided" only barred proceedings, which would be obnoxious to some provision of the Code. It would follow from the above authorities that whoever is entitled to be but has not been brought on record under 0. 22, r. 10 in a pending suit or proceeding would be entitled to prefer an appeal against the decree or order passed therein if his assignor could have filed such an appeal, there being no prohibition against it in the Code, and that accordingly the appellant as an assignee of the second respondent of the mortgaged properties would have been entitled to prefer an appeal against the judgment of P. B.

Mukharji J.

It is next contended that s. 146 authorises only the initiation of any proceeding, and that though it would have been competent to the appellant to have preferred an appeal against the judgment of P. B. Mukharji J. she not having done so was not entitled to be brought on record as an appellant to continue the appeal preferred by the second respondent. We are not disposed to construe s: 146 narrowly in the manner contended for by counsel for tlie first respondent.

That section was introduced 'tot the first time in the Civil Procedure Code, 1908 with the object of facilitating the exercise of rights by persons .in w)lom they come to be vested by devolution or assignment, and being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense. It has been held by a Full Bench of the Madras High Court in Muthiah Chettiar v. Govinddoss Krishnadoss(') that the assignee of a

(') [1955) 1 $.C.R, 1369. (') (1921) I.L.R. 44 Mad. 919.

part of a decree is entitled to continue an execution applica tion filed by the transferor-decree-holder. Vide also Moidin Kutty v. Doraiswamy('). The right to file an appeal must therefore be• held to carry . with it the right to conti, nue an appeal which had been filed by the person under wh(j)m the applicant claims, and the petition of the appellant to be brought on record as an appellant in Appeal No. 152 of 1955 must be held to be maintainable under s. 146.

It remains to consider whether, on the merits, there should be an order in favour of the appellant. Of that, we have no doubt whatsoever. The proceedings in which she seeks to intervene , arise in execution of a mortgage decree.

She has purchased the properties comprised in the, decree for Rs. 60,000 under a covenant that they are free from encumbrances. And after her purchase, the first respondent has started proceedings for sale of the properties, nearly 18 years after the decree had been passed.

The appellant maintatns that the execution proceedings are barred by limitation, and desires to be heard on that question. It is true that P. B.

Mukharji J. has rejected this contention, but a reading of his judgment shows-and that is what he himself observes-,.that there are substantial questions of law calling for decision.

Even apart from the plea of limitation, there is aiso a question as to the amount payable in discharge and satisfaction of the decree obtained by the first respondent in Suit No. 158 of 1935. Both the respondents claim that they have settled it at Rs. 17,670, But it is stated for the appellant that under the decree which is . sought to be executed the amount recoverable for principal and interest will .not exceed Rs, 6,000.

In the affidavit of Sanjit Kumar Ghose dated December 20,

1956, fih:d on behalf of. the. first respondent, particufars 'are given as to how the sum of Rs. 17,670 was madeup. It wilt be seen therefrom that a sum of Rs. 7,200 is claimed for interest up to March 8, 1956, calculating it not at the rate provided in the final decree but at the contract rate. Then a sum of Rs. 5,000 is included as for costs incurred by the

(') IL, R 1952 Mac;!. 622.

Saila Bala Da.'8i

N irmala S1tndari

Da&"i

T' enlcatarama

Aiyar J.

8m7a Bala l!aa8i'

v, NirmaTa Sundari

Daasi

Venkatarama

.Aiyar J.

mortgagee in suits other than Suit No. 158 of 1935 and in proceedings connected therewith.

The appellant contends that the properties in her hands could, under no circumstances, be made liable for this amount. A sum of Rs. 1,750 is agreed to be paid for costs in the sale reference, in the proceedings before P. B. Mukbarji J. and in Appeal No. 152 of 1955.

Asks the appellant, where is the sttlement in this, and how can it bind me? It is obvious that there are several substantial questions arising for determination in which the appellant as purchaser of the properties is vitally interested, and indeed is the only person interested. As a purchaser pendente lite, she will be bound by the proceedings taken by the first respondent in execution of her decree, and justice requires that she should be given an opportunity to protect her rights.

We accordingly set aside the order of the Court below dated August 6, 1956 and direct that the appellant be brought on record as additional appellant in Appeal No. 152 of 1955.

As Sudhir Kumar Mitter, the appellant now on record, bas dropped. the fight with the first respondent, we conceive that no embarrassment will result in there being on record two appellants with conflicting interest. But, in any event, the Court can, if necessary, take action suo motu either under 0. 1, r. JO or in its inherent jurisdiction and transpose Sudhir Kumar Mitter as second respondent in the appeal, as was done in In re Mathews. Oates v. Mooney('), and Vanjiappa Goundan v. Annamalai Chettiar('). As for costs, the Appellant should, in terms of the order of this Court granting her leave to appeal, pay the contesting respondent her costs in this appeal. The costs of and incidental to the application in Appeal No. 152 of 1955 in the High Court will abide the result of that appeal.

Appeal allowed.

(') (1905) 2 Ch. 460.

(') (1939) 2 M.L.J. 551.

Allahabad High Court

February 8, 1955

SM. SAILA BALA DASSI

SM. NIRMALA SUNDARI DASSI. AND ANOTHER

S. R. DAS

A. K. SARKAR

VIVIAN BosE JJ.

Code of Civil Procedure

s. 146, 0

Calcutta High Court

Code of Civil Procedure

the Code of Civil Procedure

State of Uttar Pradesh

Aiyar

s. 146

the Code of Civil Procedure

(1955] 1 S.C.R. 1369

N. C. Chatterjee

P. K. Mukherjee

B. Sen

P. K. Ghosh

P. K. Bose

Sudhir Kumar Mitter

Nirmala Sundari Dassi

March 8, 1935

July 23, 1935

April 20, 1936

May 12, 1952

February 17, 1954

April 29, 1954

P. B. Mukharji

Saila Bala Daaai

enkatarama

Saila Bula

Nirmala Sundari

Chakra varti

Lahiri

August 6, 1956

Art. 133

Art. 133

.A.iyar

Art. 136

s. 146

Section 146

Saila Bala Dassi

s. 146

P. B.

Mukharji

s. 146

Civil Procedure Code, 1908

Madras High Court

s. 146

Sanjit Kumar Ghose

December 20,

1956

Saila Bala

P. B. Mukbarji

Sudhir Kumar Mitter

Sudhir Kumar Mitter