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HIGH COURT OF ORISSA
Jagannadhadas And Panigrahi, JJ.
PRATAP KISHORE - Appellant
Versus
GYANENDRANATH - Respondent
Second Appeal 208 Of 1947
Decided On : FEBRUARY 26, 1951
Whether the presiding officer of an appellate civil Ct. under this Act shall not try an appeal against the decree or order passed by himself in another capacity. Whether the judgment and the decree are simultaneous. Whether the phrase "the judge who passed the decree" in Schedule 8, Sub-section (2), should be construed as applicable only to the Judge who prepares the judgment and in the normal course pronounce it and thereby passes decree and not to the judge who merely pronounces the judgment under the provisions of Order 20, Rule 2, without having himself prepared it.
Fact of the Case:
The first point which appeared to me at one time attractively subtle raises the question of the jurisdiction of Mr. Coari to hear the appeal after its remand by the H. C. The H. C. held that the learned Dist. J. if the was unable to make up his mind as to which set of witnesses should be preferred against the other set, ought to have affirmed the decision of the Addl. Subordinate Judge. The learned dist. Judge also did not go into the question of the joint status of the family and disposed of the appeal purely on the question of adoption. Nor was the point raised in second appeal before the H. C. The H. C, however, allowed the second appeal set aside the judgment of the learned Dist. J. , and remanded the appeal to his Ct. for a re hearing.
Finding of the Court:
The judgment of the trial Ct. in this case was prepared by the then Addl. subordinate Judge Sri Gopal chandra De, but was actually pronounced by the principal subordinate Judge Sri cc. Coari on 9-8-40. The appeal against that judgment lay to the Dist. Ct. . and by the time it came up for hearing, on remand by the H. C. the same Sri Coari was the Dist. J. He heard the appeal, without any objection, and disposed of the same by his judgment dated 10-8 47. The present second appeal is against that judgment. The point raised is that Sri Coari was incompetent to hear the appeal and that his judgment is a nullity, by virtue of Schedule 8, Bengal, Agra and Assam civil Courts Act of 1887 which is in the following terms: "the presiding officer of an appellate Civil Ct. under this Act shall not try an appeal against the decree or order passed by himself in another capacity."
Issues: Whether Mr. Coari had jurisdiction to hear the appeal after its remand by the H. C. Whether the judgment and the decree are simultaneous. Whether the phrase "the judge who passed the decree" in Schedule 8, Sub-section (2), should be construed as applicable only to the Judge who prepares the judgment and in the normal course pronounce it and thereby passes decree and not to the judge who merely pronounces the judgment under the provisions of Order 20, Rule 2, without having himself prepared it.
Ratio Decidendi: The phrase "the judge who passed the decree" in Schedule 8 (a), Civil Courts Act, should, therefore, I think be construed as applicable only to the Judge who prepares the judgment and in the normal course pronounce it and thereby passes decree and not to the judge who merely pronounces the judgment under the provisions of Order 20, Rule 2, without haying himself prepared it.
Final Decision: The second appeal must be dismissed with costs.
PANIGRAHI, J.
( 1 ) THIS is a pltf. 's second appeal against the judgment of Sri C. C. Coari, Dist. J. Cuttack, affirming the judgment of Sri G. C. De, Addl. Subordinate Judge, cuttack, in O. S. No. 25 of 1938,
( 2 ) PLTF. 1 is the son of one Bhagat Charan Mohanty who was impleaded as deft, a in the suit but was transposed as pltf. 2 on 9-6-40 when the trial was opened. The first pltf. who was a minor-raised the suit through his next friend, suriyamoni Dei, said to be his father's sister, for a declaration that deft. 1 gyanendranath Mohanty, is not the adopted son of Nrusingbo Charan Mahanty, the deceased uncle of pltf 2 of pltf. 2. He alleged that Nrusingho Oharan mohanty had married Pramila Sundari the sister of Gyanendraca h in 1921; that on account of this relationship pltf. S was looking upon Babu Lakshmimdhar mohanty, the natural father of deft. 1 as 'murabi' and that Lakshtnidhar Babu had a commanding influence over pltf. a. It was further alleged that pltf. 2, Bhagati chacan, was subject to a sort of sentimental weakness and weakness of mind in the presence of deft. 1's sister the widow of Nrusirgho Charan. It is said that taking advantage of his dominating position, Lakahmidhar Babu induced pltf. 2 to execute certain documents;, purporting to admit the adoption of deft. 1 by nru. singho, that there had, in fact, been no such adoption, and that consequently those documents were. void. The pltf. accordingly claimed a declaration that the alleged adoption of deft. 1 by Nrusinghon Charan is not true. The case of deft. 1, on the other hand, is that there had, in fact, been a regular adoption by nrusingho Charan on IS 7-1934, followed by the due observance of all the necessary rites and ceremonies, in the presence in the presence of pltf. 2 at the house of Babu Lakshmidhar Mohanty and that he (deft. 1) performed the funeral and Sradh ceremonies of Nru. singho Charan, that the documents speaking to the adoption having taken place were genuine and narrated what actually took place and were not brought,, about, as alleged by the pltf. , at the instance of his natural father due to his dominating position. Pltf. 2, Bhagat Oharan Mohanty, filed a lengthy statement denying the adoption and alleged that in a weak moment he agreed to set apart some property in the name of deft. 1 gyanendranath so that his sister, the widow of Nrusingho, may live. in comfort with hen brother.
( 3 ) THE main issue on which the decision of the suit rested was issue 7: "is deft, the duly adopted eon of the late Nrusingho Charan Mohanty?" Another issue of no less importance but which appears to have been raised only incidentally, was issue 6: "were the pltfs. , members of a joint Mitakshara family with the daft, or with the late Nrueingho Charan?"
( 4 ) THE case was tried by Mr. Gopal Chandra De, Addl. , Subordinate Judge, guttaek, who held that the adoption of deft, l by Nmsingho Oharan had been duly proved and directed the dismissal of the pltfs suit. On the issue regarding the jointness or separateness of the family his finding was that there was no separation between Nrubingho Charan and Bhagat Oharan and that they were in joint possession of the entire family properties.
( 5 ) ON appeal by the pl'fs. the Dist. J. , Mr. Maher, held that the evidence on the question of adoption was evenly balanced, so much so that "a feather on either scale would tip the balance. " As the burden of proof rested on the party alleging the adoption, the learned Dist. J. held that the party on whom this burden rested must be held to have failed to discharge it. He accordingly allowed the appeal and set aside the finding of the Addl. Subordinate Judge.
( 6 ) AGAINST this decision of the Dist J. there was a second appeal by deft, l to the h. C. The H. C. held that the learned Dist. J. if the was unable to make up his mind as to which set of witnesses should be preferred against the other set, ought to have affirmed the decision of the Addl. Subordinate Judge. The learn
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