CHAPTER XVII. अनेनविधिनाराजामिथोबिवदतान्नृणाम् साक्षिप्रत्ययसिद्धानिकार्यं णि समतान्नये ॥. JUDGMENTS, this chapter tells us, are to be written in the language of the Court, or in English, or in the Judge's mother-tongue, pronounced in open Court on a day of which notice has been given, and only to be translated when any of the parties may require it. They are to be dated and signed when pronounced, and are unalterable except in the case of verbal errors or immaterial accidental defects. Each judgment is to contain a concise statement of the case, the issues, decisions upon each of them, and the reason for such decision. If the finding on any number less than all the issues be sufficient for the determination of the case, decisions on such issues alone will be sufficient. Small Cause Courts need not record more than the points for determination, and the decision upon them. The decree must agree with the judgment, and contain the number of the suit, names, &c., of the parties, and a clear description of the relief granted. It will also give the costs, and by whom they are to be paid. After notice given, a Court is permitted to alter a decree so as to bring it into conformity with the judgment, or to amend clerical or arithmetical errors. Immoveable property must be identified by boundaries and numbers whenever possible; an alternative in money specified for moveable property not delivered. Payment of interest and by instalments is left to the discretion of the Court. No decrees are in future to be altered at the request of parties save in the matter of granting instalments. In suits for land, mesne profits with interest may be decreed: such profits may be determined prior to decree, or reserved for subsequent inquiry. In administration suits, accounts, inquiries and adjustments of liabilities can be made on the same principle as those of insolvent persons. In suits for pre-emption, a date is to be fixed for payment of the purchase money; in suits for dissolution of partnership the day on which the partnership shall stand dissolved may be determined prior to passing the decree. Decrees for set-off are specially provided for (sec. 216). Certified copies of all decrees will be given to parties applying for them, but at their own cost. If, after all the witnesses have been examined and the parties or their pleaders have been heard, the Judge be not prepared to give judgment at once, the witnesses should not be detained; but the Judge may postpone the delivery of judgment until a future day, of which due notice should be given. The whole of the judgment should be delivered viva voce in open Court. It will be the duty of the Judge to see that the decree is drawn up in every case within a reasonable time after the judgment is delivered. The Judge shall make a memorandum on the decree of the date on which it is actually signed by him, and on the certified copies of the date on which they were furnished. U. C. O. C. H. C. 45. For circular orders of the several Courts on judgments and decrees see this head in the Appendix. (a) For recognized agents in the Panjab and Central Provinces, see n. (s,) p. 36 and preface to Chap. VII. In the latter Provinces the question arose whether such agents must file a written power of attorney when they conduct or file a suit. The answer given was iu the affirmative (C. O I. 179) when they represent themselves as appearing for a friend or relation; but when they are the known agents of trading firms, carrying on all business in the name of the firm, or holding general powers of attorney for carrying on the business of an absent principal, the Court should record that it has satisfied itself that the recognized agent is actually the known agent, or that it has inspected the general power of attorney, and is satis fied that it is still in force. (b) In a suit for possession of land, the Judge, after hearing the evidence and perusing exhibits, &c., intimated that he would examine the plan, and satisfy himself as to the boundaries. He did so: the defendant attended, but plaintiff was *S. 220. +See p. 121. *See, n b. p. 21. §See. App: "Interest." Contents of decree. M. 206. (189) The decree must agree with the judgment: it shall contain the number of the suit, the names and descriptions of the parties, and particulars of the claim, as stated in the register, and shall specify clearly the relief granted or other determination of the suit. (d) The decree shall also state the amount of* costs incurred in the suit, and by what parties and in what proportions such costs are to be paid. Power to amend decree, If the decree is found to be at variance with the judgment, or if any clerical or arithmetical error be found in the decree, the Court shall, of its own motion or on that of any of the parties, amend the decree so as to bring it into conformity with the judgment or to correct such error: provided that reasonable notice have been given to the parties or their pleaders of the proposed amendment.t(e) 207 (190). When Decree for recovery of por tion of immoveable property. the subject-matter of the suit ist immoveable property, and such property is identified by boundaries or numbers in a record of settlement or survey, if the decree be for the recovery of a portion only of such property, it shall specify the boundaries or number of such portion. M. 208. (191) When the suit is forț moveable property, if the decree be for the delivery of Decree for delivery of such property, it shall also state the amount of money to be paid moveable property. as an alternative if delivery cannot be had. In suits for money decree may order certain interest to be paid on principal sum adjudged. M. 209. (193) When the suit is for a sum of money due to the plaintiff, the Court may, in the decree, order§ interest(f) at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, any addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate as the Court deems reasonable on the aggregate sum so adjudged, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit. M. 210, (194) In all decrees for the payment of money the Court may, for any sufficient Payment by instalments. reason, order that the amount shall be paid by instalments, with or without interest.† (9) And after the passing of any such decree the Court may, on the application of the judgmentdebtor, and with the consent of the decree-holder, order that the amount When Court may order payment by instalments. absent, and the Judge afterwards gave judgment out of Court. This was held not to constitute error, and was no ground for appeal. Sri Nilmoni Singh v. Bhobany Charan Pande, Marsh 327; Krishna Reddi, &c. v. Srinidasa, Reddi, M. H. O. R. V. 174. Neither this section nor any of the following, up to sec. 296 inclusive, apply to the High Court. A Court will not be deterred from making a decree by the difficulties to be expected in carrying it out. M. R. A. C., I. 415, Purappanvana Lingam Chetti v. Nallasivan Chetti; nor should it give a plaintiff more than he claims, Ghyrullah Mundul v. Kishorinath Kundu, S. W. R.,V.; Act X. R. 60; Madhava Naikan v. Naikan, M. R., II. 394. To secure a decree for sale of property hypothecated, unless the amount with interest be paid within a period named by the Court, creditor must prove (1) an actual pledge, (2) that the land was part of the debtor's estate at the time of the pledge. Chitte Gondon ▾ Saudaram Pillai, M, R., II. 52. A plaintiff whose legal right has been infringed is at least entitled to a decree without damages or costs. Calliappa Kundan v. Vyapuri Condon, M. R., II. 442. If the decree be to put plaintiff in possession, leave cannot be reserved to defendant to remove buildings unless they were erected by defen. dant in good faith. Ramdhani Bhattacharji v. Ishani Debi, S. W. R., II. 123 Where a Court decreed for plaintiff on finding a defendant's plea invalid, although such plea was never questioned by plaintiff, instead of on grounds brought by plaintiff and issues raised on them, the decree was held erroneous. Palanequadi Condon v. M. C. M. R, II. 441. The practice of announcing decision and indefinitely postponing writing of judgment and decree strongly condemned. (C. P. I. 199. Cal. U. C. O. 62, N.-W. P., C. O., I. 59). The law only requires a decision to be delivered, not to be written in open Court; a judicial officer is at full liberty to write it at home: he is only prohibited from giving it out till he has written it. (•) Where judgment does not contain these particulars, the appellate Court will remand the case that the error may be rectified. Should the Judge who tried the case be absent,his successor should inform the appellate Court, as the successor has no jurisdiction. Manik Sett v. Khettar Mohan Gosaini, In. Jur. N. 8., I. 101. It should be intelligible, not only to the superior appellate Conrt, but also to the parties. (Panj. C. O. VI. 1870). Whenever the judgment is not written in the vernacular in use in the district, a translation is to be made and filed with the record, (Cen. Prov. I. 500). (d) To ensure greater accuracy, the N.-W P. High Court direct (C. O. 10 of 1876) as follows: (a) The Munsarim shall prepare minutes of the substance of decrees, and show the same to the pleaders, who should attach their signatures thereto in attestation of their approval thereof, (b) If the pleaders take objection to the terms of the minutes, the matter shall be forthwith referred for the orders of the Court. (c) The particulars having been settled without, or after reference to the Court, the minutes shall be made over to the decree-writer, whose duty it will be to prepare the decrees in accordance therewith. (d) The Munsarim will then examine the decrees, and having satisfied himself that they are in all respects in accordance with the minutes, shall submit them for the signature of the Judge. (e) The minutes, as well as the decrees, will be filed with the records. 3. The presiding Judges in the several Courts are reminded that, inasmuch as the appointment of their ministerial officers rests with them, they will be severally * S. 254. †See p. 123. *See p. 125. § See n. (b & c) p. 21, decreed be paid by instalments on such terms as to the payment of interest, the attachment of the property of the defendant, or the taking of security from him or otherwise as it thinks fit. Save as provided in this section and section 206, no decree shall be altered at the request of parties.† (h) In suits for land, Court may decree payment of mesne profits with inter est, 211. (196.) When the suit is for land or other property yielding rent or other profit, the Court may provide in the decree for the payment of rent or mesne profits in respect of such property from the institution of the suit until the delivery of possession to the party in whose favour the decree is made, or until the expiration of three years from the date of the decree (which ever event first occurs), with interest thereupon at such rate as the Court thinks fit.t(). Explanation-Mesne profits' of property mean those profits which the person in wrongful possession of such property actually received, or might with ordinary diligence have received, therefrom. Court may determine amount of mesne profits prior to passing decree, or may reserve inquiry. 212. (197) When the suit is for§ immoveable property and for mesne profits which have accrued on the property during a period prior to the institution of the suit, and the amount of such profit is disputed, the Court may either determine the amount by the decree itself, or may pass a decree for the property, and direct an inquiry into the amount of mesne profits, and dispose of the same on further orders. Administration suit. 213. When the suit is for an account of any property and for its due administration under the decree of the Court, the Court, before making the decree, shall order such accounts and inquiries to be taken and made, and give such other directions as it thinks fit. In the administration by the Court of the property of any person who dies after this Code comes into force, if such property proves to be insufficient for the payment in full of his debts and liabilities, the same rules shall be observed as to the respective rights of secured and unsecured creditors and as to debts and liabilities proveable, and as to the valuation of annuities and future and contingent liabilities respectively, as may be in force for the time being with respect to the estates of persons adjudged insolvent; and all persons who in any such case would be entitled to be paid out of such property may come in under the decree held answerable for the efficiency of such officers as are attached to their Courts. tion of the Court to grant. Mirza Mehdee Beg v. Zellal Thakoor, ib. 530. The instructions (C. O. p. 55) given by the Madras Court for the preparation of decrees are as follows: Special forms for decrees will be found in Sched. IV. In the Cen. Prov. (C. O., I. 381) the decree is to be prepared in the language in which the judgment is written, and that portion of the decree in which the relief is granted or other determination of the suit specified, with the orders regarding costs and interest, be written by the officer who passes the judgment, a translation being filed when the language in which the judgment Every decree should be drawn up within is written is different from that in ordinary use in the Court. Orders directing criminal proceedings should never be entered in a decree. N.-W. P. C. O., I. 225. In suits for contribution, or where plaintiffs with separate interests sue for and obtain damages, the decree should specify clearly the particular sums to be paid by the defendants, or the particular share of damages pay able to each plaintiff. Bama Telavar v. Pelani, M. H. C., III. 187. Tirlokinath Jha v. Har Datt Khurhuri, S. W. R., IX. 299 et passim, S. W. R., III. 170, VII. 194. (e) A decree of a District Court, confirmed in special appeal by the High Court, cannot be altered by any subordinate Court. Bhanushankar Gopalram v. Raghunathram Mangalram, Bom. H. C. R., II. 101. A copy of the judgment with the schedule of costs appended, does not constitute a proper decree. Parmesree Datt Jha, v. Joynath Thakoor, S. W. R., XV. 326. Where a decree was in general terms, viz." that the appeal be decreed with costs," though the judgment indicated a different intention, it ought not to have been used to obtain execution for the whole of the claim, but restricted to that which it was the manifest inten Although the Courts are bound to take into consideration all the rights of the parties to the suit, whether legal or equitable, and by their decree to give effect to those rights as far as possible, the Courts should confine themselves to granting such relief as is prayed in the plaint. (M. H. C. I. Rep. 471), five days from the date of pronouncing judgment, and the fair copy and transla tion of the judgment required for record in Court should also be completed within the same time. (6th September 1860). If decrees are left unsigned by a Judge who has died or quitted the station after pronouncing judgment in open Court and preparing written judgments, they may be signed by his successor. (5th October 1835). A decree may be drawn up in pursuance of a razinama entered into by the parties and filed with the record, even after the lapse of five years from the date of the razinama being filed. (ib. VII. 103). The decree should be explicit and not call for reference to any other documents. It is not sufficient to decree for plaintiff in accordance with the prayer of the plaint. (4th November 1869). A creditor suing under a contract of hypothecation must prove that there was an actual pledge, and that the land was part of the debtor's estate at the time of pledge. The decree will then be for sale of the property hypothecated unless the debtor pay the amount due, with interest, within a period to be named by the Court. (ib. II. 51.) [See also ib. III. 247.] (f) Very important Rulings and Circulars on the question of interest will be found under the head "Interest" in the Appendix. (g) If a defendant shows bona fides by offering to pay anything like a fair proportion of his debt, the Court should grant him a reasonable time within which to residue. Subatullah Thompson, Hyde, I, 98. Where the omission to order payment by instalments was acciden pay Sircar the V. |