Legal Provisions of Section 33 of Code of Civil Procedure 1908, (C.P.C.), India – Judgment and Decree

The Court, after the case has been heard, shall pronounce judgment in open court, either at once, or as soon thereafter as may be practicable, and when the judgment is to be pronounced on some future day, the court shall fix a day for that purpose, of which due notice shall be given to the parties or their pleaders :

Provided that where the judgment is not pronounced at once, every endeavour shall be made by the Court to pronounce the judgment within thirty days from the date on which the hearing of the case was concluded but, where it is not practicable so to do on the ground of the exceptional and extraordinary circumstances of the case, the Court shall fix a future day for the pronouncement of the judgment, and such day shall not ordinarily be a day beyond sixty days from the date on which the hearing of the case was concluded, and due notice of the day so fixed shall be given to the parties or their pleaders.] (Order XX Rule 1).

The provisos added to Rule 1 state that where the judgment is not pronounced at once, every endeavour shall be made by the court to pronounce the judgment within fifteen days from the date or. which the hearing of the case was concluded, but where it is not practicable so to do, the court shall fix a future day for the pronouncement of the judgment, and such day shall not ordinarily be a day beyond thirty days from the date on which the hearing of the case was concluded and due notice of the day so fixed shall be given to the parties or their pleaders.

Further, where a judgment is not pronounced within thirty days from the date on which the hearing of the case was concluded, the court shall record the reasons for such delay and shall fix a future day on which the judgment will be pronounced and due notice of the day so fixed shall be given to the parties or their pleaders.

In order to avoid inordinate delay in delivery of judgments after the conclusion of the hearing of cases a time-limit for the same has been fixed, and if the judgment is not delivered even within 30 days, the court shall be required to record the reasons for such delay and shall fix a future date for the pronouncement of the judgment after notice to the parties or their pleaders.

Pronouncement of Judgment—result or operative portion:

It is not necessary that the court should read out the whole judgment, but may only pronounce the result of the case or read the operative portion of the judgment, but a copy of the whole judgment shall be made available for the perusal of the parties or the pleaders immediately after the judgment is pronounced. [Order XX, Rule 1(2)]. The judge is not expected to write his judgment before the finishing of the entire evidence and hearing the arguments of the counsel and if he does so, he commits a gross irregularity in the trial of the case.

The judgment may be pronounced by dictation in open court to a shorthand writer if the judge is specially empowered by the High Court in this behalf, provided that where the judgment is pronounced by dictation in open court, the transcript of the judgment so pronounced shall, after making such correction therein as may be necessary, be signed by the judge, bear the date on which it was pronounced, and form a part of the record. [Order XX, Rule 1(3)].

A Judge shall pronounce a judgment written but not pronounced by his predecessor. (Order XX, Rule 2).

Contents of judgment:

Judgments of courts other than a court of small causes shall contain: (a) a concise statement of the case; (b) the points for determination; (c) the decision thereon; and (d) the reasons for such decision. Judgements of a court of small causes need not contain more than (b) and (c), i.e., the points for determination and the decision. (Order XX, Rule 4).

Ex parte Judgment—All contents of Judgment:

Even an ex parte judgment should satisfy the description of ‘judgment’ as laid down in Order XX, Rule 4(2), C.P.C. which visualise that the judgment of a court other than the court of small causes “shall contain a concise statement of the case, points for determination, decision and the reasons for such decision.

A ‘judgment’ for its sustenance must contain not only findings on the points, but must also contain what evidence consists of, and how does it prove the plaintiff’s case. A judgment unsupported by reasons is no judgment in the eye of law.

It is well settled that reasons are the links between the material on record and the conclusion arrived at by the Court. Mere fact that the defendant absented himself on the date of hearing and the suit proceeded ex parte, did not by itself entitle the plaintiff to get a decree in his favour.

The court was under an obligation to apply its mind to whatever ex parte evidence or affidavit filed under Order XIX of the Code is on the record of the case, and application of mind must be writ large on the face of the record.

This is possible only if the court directs itself to whatever material is on record of the case analyses the same and then comes to any conclusion on the basis of evidentiary value of the ex parte evidence or affidavit brought on record by the plaintiff.

It may also be observed that the written statement already filed in the case could not be deemed to have been wiped off the record merely because the defendant did not appear on the date of issues and the suit was ordered to proceed ex parte.

In suits in which issues have been framed, the court shall state its finding or decision, with the reasons there for, upon each separate issue, unless the finding upon anyone or more of the issues is sufficient for the decision of the suit. (Order XX, Rule 5).

It is not sufficient for the trial court merely to state in its judgment that on a careful consideration of the evidence it has come to this or that conclusion. The material evidence on a particular issue for and against the parties to the suit must be set out in the judgment and reasons stated for its acceptance or rejection.

Order XX, Rule 4, requires a court not only to state the points for determination and the decision thereon but also to give reasons for such a decision. In the case of the findings of fact arrived at by a court of first appeal this is all the more necessary because those findings are binding on the court of second appeal and it is necessary that, if such matter comes before a court of second appeal, the court shall be able to judge whether the first appellate court has applied its mind to consideration of the evidence or not.

Brief and vague Judgment—Invalid:

Where the judgment is extremely brief and unintelligible it is invalid. Where the Judge has applied his mind to the points for determination and recorded his decision it is sufficient. But where the judge does refer to the evidence and the judgment indicated that he failed to consider material portion of the evidence the judgment can be assailed.

Where the judgment of the trial judge in a small cause suit only contains a bald statement about the operative order, such a decision is clearly not in accordance with law and cannot be sustained.

It is true that while deciding a suit as Judge, Small Causes, the trial judge is not required to write out an elaborate judgment, yet it is essential in law for him to mention in the judgment the necessary facts relating to the controversy, the points for determination arising therein and his decision thereon. Rule 4 of Order XX, C.P.C. specifically provides that the judgment of a court of small causes must contain the points for determination and the decision thereon. The judgment in the instant case contains a bald statement about the operative order. Such a decision is clearly not in accordance with law.

Judgements of a court of small causes need contain only the points for determination and the decision thereon. But where they are lacking the judgment is liable to be set aside. A judgment which is not intelligible and jumbles up all the points together and contains a statement that all issues are found in plaintiff’s favour does not meet even the requirement of the rule governing judgments of a court of small causes.

On a question of fact in a small cause court suit the judge need not give his reasons. He need set out only the points for decision and the decision thereon in seriatim. But on a question of law he must set out so much of his reasons as will show the road by which he arrived at the decision.

Where the judgment in a small cause courts suit is not supported by the evidence as recorded and the evidence has not be- n recorded in such a way as to enable the High Court to form any opinion as to the respective cases of the parties before the court, and on what material circumstances the court has relied upon in support of the judgment, the judgment is liable to be set aside in revision.

Constitution of India, Art. 226—Practice & Procedure:

When entire appeal disposed of on delivery of judgment, there exists no scope and reopening the issue on the basis of liberty.

Court to inform parties as to where an appeal lies in cases where parties are not represented by pleaders:

Except where both the parties are represented by pleaders, the court shall, when it pronounces its judgment in a case subject to appeal, inform the parties present in court as to the court to which an appeal lies and the period of limitation for the filing of such appeal and place on record the information so given to the parties (Order 20, Rule 5-A). In order to ensure that there is no dispute as to the nature of the information given by the Court, the judge is required to place on record the precise nature of information given by the Court to the parties.

Last paragraph of judgment to indicate in precise terms the relief granted:

The last paragraph of the judgment shall state in precise terms the relief which has been granted by such judgment. Every endeavour shall be made to ensure that the decree is drawn up expeditiously as possible, and, in any case, within fifteen days from the date on which the judgment is pronounced; but where the decree is not drawn up within the time aforesaid, the court shall, if requested so to do by a party desirous of appealing against the decree, certify that the decree has not been drawn up and indicate in the certificate reasons for the delay, and thereupon

(a) an appeal may be preferred against the decree without filing a copy of the decree and in such a case the last paragraph of the judgment shall, for the purposes of Rule 1 of Order XLI be treated as the decree, and

(b) so long as the decree is not drawn up, the last paragraph of the judgment shall be deemed to be the decree for the purpose of execution and the party interested shall be entitled to apply for a copy of that paragraph only without being required to apply for a copy of the whole judgment; but as soon as a decree is drawn up the last paragraph of the judgment shall cease to have the effect of a decree for the purpose of execution or for any other purpose: provided that where an application is made for obtaining a copy of only the last paragraph of the judgment, such copy shall indicate the name and address of all the parties to the suit (Order XX, Rule 6-A).

Copy of typewritten judgments when to be made available:

Where the judgment is type-written, copies of the type-written judgment shall, where it is practicable so to do, be made available to the parties immediately after the pronouncement of the judgment on payment by the party applying for such copy of such charges as may be specified in the rules made by the High Court. (Order XX, Rule 6-B).

Alteration of judgment:

The judgment shall be dated and signed by the Judge in open court at the time of pronouncing it, and, when once signed, shall not afterwards be altered or added save in cases of (l)(a) clerical or arithmetical mistake; or (b) errors arising from any accidental slip or omission (section 152); or (2) on review (section 114).

Except within the well-known limit where a court can exercise its inherent jurisdiction, there is no inherent jurisdiction in the court to rehear a case and alter or add to a judgment which has been duly pronounced and deliberately signed and sealed in accordance with law even with the consent of the parties.

It follows that it is not competent to a judge who has once pronounced and signed the judgment to recall and alter that judgment at the request of either party. No such practice in derogation of law can grow up or be recognised.

Judgment dictated in open court but not signed—can be changed for adequate reasons sparingly:

Decree must be drawn up in the manner and its contents must be in accordance with the judgment.

In a civil case a judgment delivered in open court and dictated to a shorthand writer before the transcript of the same is signed by the Judge or Judges concerned does not amount to a final disposal of the case. Where the stage of dating and signing the judgment is not reached, the jurisdiction of the court to reconsider and to rehear the case continues.

The Supreme Court has held that though no Court has undoubted power to alter or modify a judgment delivered but not signed, such power should be exercised judicially, sparingly and for adequate reasons.

Decree:

Contents of Decree:

(1) The decree shall agree with the judgment, it shall contain the number of the suit, the [names and descriptions of the parties, their registered addresses,] and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit.

(2) The decree shall also state the amount of costs incurred in the suit, and by whom or out of what property and in what proportions such costs are to be paid.

(3) The Court may direct that the costs payable to one party by the other shall be set off against any sum which is admitted or found to be due from the former to the latter. (Order XX, Rule 6)

Preparation of decree:

(1) Every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible and, in any case, within fifteen days from the date on which the judgment is pronounced.

(2) An appeal may be preferred against the decree without filing a copy of the decree and in such a case the copy made available to the party by the Court shall for the purposes of Rule 1 of Order XLI be treated as the decree. But as soon as the decree is drawn, the judgment shall cease to have the effect of a decree for the purposes of execution or for any other purpose. (Order XX, Rule 6-A).

Copies of judgments when to be made available:

Where the judgment is pronounced, copies of the judgment shall be made available to the parties immediately after the pronouncement of the judgment for preferring an appeal on payment of such charges as may be specified in the rule made by the High Court.] (Order XX, Rule 6-B).

Date of decree:

The decree shall bear date the day on which the judgment was pronounced, and, when the Judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree. (Order XX, Rule 7).

Additional contents of decree in particular cases:

1. In a suit relating to recovery of immovable property the decree shall also contain a description of such property sufficient to identify the same specifying the boundaries or number in the settlement record. (Order XX, Rule 9).

2. A decree for delivery of movable property shall also state the amount of money to be paid as an alternative if delivery cannot be had. (Order XX, Rule 10).

3. In a decree for payment of money, the court may for sufficient reason incorporate in the decree, after hearing such of the parties who had appeared personally or by pleader at the last hearing, before judgment, an order that payment of the amount decreed shall be postponed or shall be made by instalments, with or without interest. [Order XX, Rule 11(1)].

But after the passing of a decree for the payment of money the court can subsequently order the postponement of the decretal amount or payment by instalments only on the application of the judgment-debtor, which must be made within six months from the date of the decree, and with the consent of the decree-holder. [Order XX, Rule 11(2)].

Each of the sub-rules (1) and (2) of Order XX, Rule 11, C.P.C. empowers the court to postpone payment of the decretal amount or to make it payable by instalments and provide for award of interest from the date of decree or order.

There is, therefore, no scope or need to resort to section 34 in such cases, so far as the award of interest is concerned and the limitation as to rate of interest specified in section 34 cannot be invoked where the court is acting under Order XX, Rule 11, (1) or (2).

Where in a suit for money decree ordered in favour of the plaintiff after considering the cross claim by defendant, the High Court cannot pass such an order which would amount to double deduction in favour of plaintiff.

General Power to grant interest [S. 34]:

Section 34 is a general provision dealing with the question of interest in a decree for the payment of money. Where therefore the court passes a decree without anything more, the rate at which the court can award interest on the principal sum from the date of the decree to the date of payment cannot exceed six per cent per annum.

But where the court makes a decree and postpones payment of the decretal amount or makes it payable in instalments in exercise of its powers under Order XX, Rule 11, the provision made in Order XX, Rule 11 would govern the question of interest and not the provision under section 34.

The instalment decree provided that on the judgment-debtor defaulting in payment of three instalments the decree shall be executed to recover the entire balance decree amount. Instalments were regularly paid till April, 1972.

Under Article 136, Limitation Act, 1963, the decree-holder could execute the decree within 12 years from the date it becomes enforceable and since the default committed in 1972 rendered it enforceable the execution petition filed in 1978 was not barred by limitation.

The defendant contended that a default was committed in 1970, that execution ought to have been levied within 3 years of the default under Article 137 and that therefore the decree had become barred by limitation and unexecutable. It was held that the default of the year 1970 did not render the decree enforceable since it was not a default of three instalments in terms of the decree.

Execution of decree for possession and mesne profits:

Where there was interim order of stay of execution of decree for possession. Liability to pay mesne profits at agreed rate continued even during period of stay of execution of decree relating to possession. Other party had accepted amount of mesne profit at that rate before possession was handed over to him. Held that further order for payment for mesne profits at enhanced rate than one granted under decree could not be passed.

4. (a) A decree in a pre-emption suit, where the purchase money has not been paid into court, shall specify a date on or before which the purchase money shall be paid and direct that on payment into court of such purchase money with costs the defendant shall deliver possession of the property to the plaintiff; but that if the payment is not made the suit shall be dismissed with costs.

(b) Where the court has adjudicated upon rival claims to pre-emption the decree shall direct: (i) if the claims are equal in degree, that the claim of each pre-emptor shall take effect in respect of a proportionate share of the property; and (ii) if the claims decreed are different in degree, the claim of the inferior pre-emptor shall not take effect until the superior pre-emptor has failed to pay. [Order XX, Rule 14].

Appeal against decree in suit for partition and separate possession:

Where the Trial Court had traced facts of case without missing even the minute point. It had also taken into consideration the report of Commissioner. Allocation of properties had been done proportionate to shares of parties. There was no patent error of law or perversity in approach to the allocation of shares. As such, decretal order passed by Trial Court on final decree petition, called for no interference.

Suit for partition—binding from the date of preliminary decree:

Where decree was passed and property was partitioned by metes and bounds. Held, that for all purposes said decree could be said to be final decree though not engrossed on requisite stamp papers. But as one of the parties had sought for final decree, it was subsequently drawn engrossed on stamp paper. Supreme Court observed that it was nothing but validation of preliminary decree.

Suit for partition of joint family property:

Plea taken by defendant that there was earlier family settlement was not supported by evidence. Partnership deeds which were entered into between different members of family in different combinations will be no proof of separation.

The family which carries number of business can carry them under different names and styles by constituting different companies or partnership. Held, that as finding of fact recorded by High Court that there was no family settlement before suit for partition was filed, was based on evidence and cogent reasons, hence there could be no interference by Supreme Court.

5. In a decree where the defendant has been allowed a set off or counter-claim against the claim of the plaintiff, it shall state what amount is due to the plaintiff, and what amount is due to the defendant. [Order XX, Rule 19].

Preliminary decree for possession and mesne profits:

In a suit for the recovery of possession of immovable property and for rent or mesne profits the court may pass a preliminary decree : (a) for the possession of the property prior to the institution of the suit or directing an inquiry as to such rent; (b) for the rents which have accrued on the property during” the period prior to the institution of the suit or directing an inquiry as to such rent; (ba) for the mesne profits or directing an inquiry as to such mesne profits; (c) directing an inquiry as to rent or mesne profits from the institution of the suit until (i) the delivery of possession to the decree-holder, (ii) the relinquishment of possession by the judgment-debtor, or (iii) the expiration of three years from the date of the decree, whichever event first occurs. [Order XX, Rule 12(1)].

Final Decree:

Where an inquiry is directed under clause (b) or clause (c) above, a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry. [Order XX, Rule 12(2)].

Decree for specific performance of contract:

Where a decree for the specific performance of a contract for the sale or lease of immovable property orders that the purchase money or other sum be paid by the purchaser or lessee, it shall specify the period within which the payment shall be made. (Order XX, Rule 12-A).

Normally there is no doubt that a successful plaintiff would be entitled to mesne profits for 3 years and not more. But where the court is dealing with a claim made by the plaintiff on behalf of the trust and the decision in their favour has rendered it necessary to adjust equities between the trust and the respective alienees, alienations in whose favour have been set aside as invalid, the court has jurisdiction to award mesne profits for more than 3 years by way of an equitable adjustment.

Administration suit:

In a suit for an account of any property and for its due administration under the decree of the court, the court shall, before passing the final decree, pass a preliminary decree ordering such accounts and inquiries to be taken and made.

If the property of a deceased person which is being administered by the court proves insufficient for the payment in full of his debts and liabilities, the same rule shall be observed as may be in force with respect to the estate of insolvent persons; and all persons entitled to be paid out of such property may come in under the preliminary decree (Order XX, Rule 13).

Where the admission is made in a suit for declaration and rendition of accounts, is sufficient evidence against him though not conclusive, trial court can decree suit on that basis.

Dissolution of partnership:

In a suit for dissolution of a partnership, or the taking of partnership accounts, the court, before passing a final decree, may pass a preliminary decree declaring the proportionate shares of the parties, fixing the day on which the partnership shall stand dissolved and directing accounts to be taken and other acts to be done. (Order XX, Rule 15).

Accounts between principal and agent:

In a decree passed in a suit for the partition of property or separate possession of a share therein, if the estate is assessed to the payment of revenue to the Government, the decree shall declare the rights of several parties interested in the property, but shall direct the partition or separation to be made by the Collector.

But if it be any other immovable property or movable property and the partition or separation cannot conveniently be made without further inquiry, the court may pass a preliminary decree declaring the rights of the several parties interested in the property and giving further necessary direction. (Order XX, Rule 18).

Constitutive elements of final decree:

In partition suit mere giving of direction to supply stamped paper for passing final decree does not amount to a passing final decree. Until the final decree determining the rights of parties by metes and bounds is drawn up and engrossed on stamped paper(s) supplied by the parties, there is no executable decree.

After final decree is passed and a direction is issued to pay stamped papers for engrossing final decree thereon and the same is duly engrossed on stamped papers, it becomes executable or becomes an instrument duly stamped.

Thus, condition precedent is to drawn up a final decree and then to engross it on stamped papers of required value. These two acts together constitute final decree, crystallising the rights of the parties in terms of preliminary decree. Contrary views of the High Courts are not good law.

A division Bench of Andhra Pradesh High Court in Smt. Kotipalli Mahalakshmamma v. K. Ganeswara Rao, correctly decided the question of law which held that the limitation begins to run only after a final decree is engrossed on stamped papers.

The third party cannot challenge the partition of composite joint family ‘property amongst members which had not been questioned for a long time. The plaintiffs were paying rent to the defendants and recognising them owners of property and they were estopped from denying the title of the defendants.

In a suit for partition and possession of joint family property, the two brothers have equal share. The suit property was already mortgaged. Partition would be subject to redemption of it. The brother who would fail to pay debt would not be entitled to his share.

No interference in appeal is possible against the directions of preparation of final decree of partition when these allowed to become final and three years thereafter objections were filed for the first time by the appellants against the preparation of final decree of partition.

Order of modification of shares of parties in a partition suit was held to be not proper as it was based on a will which it was not in issue and no finding as to its correctness and validity were recorded.

The decree passed by the lower appellate court in a suit for partition merely said that “the suit is decreed with costs for partition of half share of the plaintiff from the disputed property”. It was held by the High Court at Allahabad that the decree did not follow the requirements of Order XX, Rule 18.

Even if it was treated, in substance, to be a preliminary decree in a suit for partition declaring the plaintiff’s share to be 1/2 in the property in suit, the decree failed to give the required directions for the partition of the property and the manner or preparation of the final decree.

Further, having passed a preliminary decree for partition, the lower appellate court could not have issued “a mandatory injunction for the disputed wall”, which was said to have been raised by the defendants without the plaintiff’s consent.

Assuming that the injunction issued meant a decree for demolition of the constructions, the settled practice in such matters is to allot the construction made by a party on joint property against the wish of the other party, in the former’s share, if it could be done conveniently or without any insurmountable difficulty.

Interest on decree for payment of money:

While decreeing a suit if the decree be for payment of money. The Court would adjudge the principal sum on the date of the suit. The Court may also be called upon to adjudge interest due and payable by the defendant to the plaintiff for the pre-suit period which interest would, on the findings arrived at and noted by the Supreme Court herein above, obviously be other than such interest as has already stood capitalised and having shed its character as interest, has acquired the colour of the principal and having stood amalgamated in the principal sum would be adjudged so.

The principal sum adjudged would be the sum actually loaned plus the amount of interest on periodical rests which according to the contract between the parties or the established banking practice has stood capitalised. Interest pendente lite and future interest (i.e., interest post-decree not exceeding 6 per cent per annum) shall be awarded on such principal sum, i.e., the principal sum adjudged on the date of the suit.

It is well settled that the use of the word ‘may’ in Section 34 confers a discretion on the Court to award or not to award interest or to award interest at such rate as it deems fit. Such interest, so far as future interest is concerned may commence from the ‘date of the decree and may be made to stop running either with payment or with such earlier date as the Court thinks fit. Shortly hereinafter we propose to give an indication of the circumstances in which the Court may decline award of interest or may award interest at a rate lesser than the permissible rate.