EMALISHAMY v. EGO APPU.
G., Galle 6,222.
Petition of appeal—Appealable time—Date of judgment—Subsequent entry of
decree—Civil Procedure Code, ss. 5,188, 754—Leave to appeal.
The period of ten days fixed by section 754 of the Civil ProcedureCode for appealing runs from the date of the judgment pronounced bythe Court.
The petition of appeal must be presented to the Court of the firstinstance within that period. The entering up of the decree is aministerial act of the Court, and under section 188 the decree, althoughentered at a later date than the date on which the judgment has beenpronounced, must bear the 'same date as the judgment and be inconformity with the judgment.
In the event of there being great delay in preparing and signing thedecree, whereby the appellant was prevented from filing his petitionwithin the time fixed by section 754, the Supreme Court can always giveleave to appeal notwithstanding lapse of time.
HIS was an application to the Supreme Court made .by thefirst and second defendants for a direction to the District
Judge of Galle to accept the petition of appeal tendered by themon the 6th day of June, 1902, or, in the alternative, for leave toappeal, notwithstanding lapse of time, against the judgmentpronounced on 22nd JMay, 1902. The application was consideredon 18th May, 1903, by a vFull Bench consisting of Lavard, C.J.,Middleton, J., and Grenier, A.J.
Jayawardene appeared for the appli6ants. The appealabletime should be calculated from thp day on which the drecee was
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entered, and not from the day on which the "judgment was 1903.pronounced. For certain purposes the decree must bear the May JS andsame date as the judgment, but the decree may be entered on a —different date.
Cur. adv. vult.
1st June, 1903. Middleton, J.—
This was an application by the defendants that this Courtwould direct the District Judge to accept the petition of appealpresented by them and forward the same to the Supreme Court, or,in the alternative, that the defendants be allowed to appeal not-withstanding lapse of time.
The judgment in the action was pronounced on the 22nd- May,
1902, and on the 26th May the first defendant went to the DistrictCourt to file an appeal, but found that the decree was not yetentered.
On the 6th June he tendered his petition of appeal, calculatinghis limit of ten days, under section 750 of the Civil ProcedureCode, from 26th May, and for him it was contended by counselthat he was in time within the meaning of .the words of thatsection.
The words of the section are “ within a period of ten days
from the date when the decree or order appealed against waspronounced.”
Under section 188 the decree, although entered at a later dalethan the judgment has been pronounced, must bear the same dateas the judgment and should be in conformity with the judgment,and it is against the formal decree that an appeal is in practicedirected, as the decree contains the operative effect of the judg-ment.
Taking into consideration the meaning of the word “ decreeas it is used in section 188, it is clear to me that the word “ decreein the fourth line of the 2nd paragraph of section 754 has beentransposed by the Legislature for the word “ judgment,” inas-much as a “ decree ” in its technical sense, under section 188, isnot pronounced but entered^ being in effect the formal expositionof the Court’s judgment.
I think, therefore, that the defendant could not be deemed to bewithin time in presenting an appeal on the 6th Jyne on the '*basisthat a decree which was entered on the 26th May, upon a judg-ment pronounced on the 22nd May, was in,effect a decree pro-nounced on the 26th May.*
In dismissing the defendant’s application we relegate him tohis alternative remedy.
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1903. Layakd, C.J.—
May 18 and
June l. The .question- to be decided here is whether the period of ten daysfixed by section 754 of the Civil Procedure Code is to run fromthe date the judgment and decree bear; or from the date on whichit is alleged the decree was drawn up and entered.
It is pointed out by applicant’s counsel that “ judgment ” and“ decree ” are separately defined in section 5 of that Code, and it isalso stated by him that this Court has held that until a decree isentered no apepal will lie against a final judgment of the lowerCourt.
It is true that “ judgment ” and “ decree ” have separate meaningsassigned to them by section 5 of the Code; the Legislature has,however, in assigning those meanings, been careful to say thatthose meanings are to apply merely when there is nothing. in the context repugnant thereto.
It appears to mb, therefore, that we are entitled to examine theprovisions of sections 754 carefully to see whether there is anythingin the subject or context repugnant to assigning to the word“ decree ” the meaning it would ordinarily have under section 5.In the 1st paragraph of that section the word “ decree ” has beenclearly used in its ordinary meaning and as defined by section 5,whilst in the 2nd paragraph it has been used in a different sense,for that paragraph provides for the appeal being presented withina fixed period, from the date when the decree was pronounced.The Code nowhere provides for the pronouncing of a decree,and, as a matter of practice, it is admitted that a decree isnever pronounced. What is pronounced is the judgment (seesection 188); the decree merely, according to the Code, embodiesthe- order which has been made in the judgment. It has to bearthe same date as the judgment and to specify in precise words theorder which is made by the judgment, and it has to be signed bythe Judge.
The Code never contemplated that the ' decree should be pro-nounced, neither does it make provision by which this Court couldascertain when the decree was actually signed by the Judge, forit nowhere provides for the Judge, when signing the decree, affix-ing to it the date when he attached his signature to the decree.
If *we * were (o read the section as suggested by appellant’scounsel, the period fixejl by it would never begin to run,” becausea decree, as a matter of fact, is never prone need, and no< mmusion has been madd for its being pronounced. A judg-ment, on the other hand, has by the Code to be pronouncedin >pen Court, and section 184 is careful to provide that it shallbe pronounced either ‘on the day of trial or some future day,
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of which the parties or their proctors shall have due notice, 1903.so that it may not be delivered behind the back of any one MaV 18an^
interested in the case. On the other hand, the entering up of
the decree is a ministerial act Qf the Court, and no provision Layabd, C.J.is made for giving notice to the parties interested of the drawingup and signing of the decree by the Judge.
It is no hardship to hold that the period must run from thedate of the pronouncing of the judgment, because a personwho desires to appeal can always ask the Judge to enter upthe decree promptly for the purpose of allowing him time toprepare his petition of appeal, and has always the right toapply to this Court for leave to appeal notwithstanding the lapseof time; and this Court, in the event of his establishing to itssatisfaction that there was great dilatoriness on the part of theCourt of first instance in preparing and signing the necessarydecree, by which the appellant was prevented in filing his petitionof appeal within the period fixed by section 754, can alwaysallow the appeal.
In my opinion the proper construction to be placed on section754 is that the petition of appeal must be presented to the Courtof first instance by the appellant or his proctor within the periodfixed by that section, and that the period so fixed is to beginto run from the date when the judgment was pronounced bythat Court. The appeal in this case is therefore out of .time,not having been lodged within ten days from the date whenthe judgment was pronounced by the District Judge.
I agree with my brother Middleton that the appellant’s appli-cation for a direction by this Court to the District Judge to accept .his petition of appeal must ,be dismissed, but that he may beallowed to proceed with his application for leave to appeal not-withstanding the lapse of time.
I agreewith the rest of the Courtthat the appealabletime
must date from the day the judgment is pronounced, and notfromtheday on which the decree issigned. Imay addthat
as a matter of practice the decree is seldom or never drawn upon the same day that the judgment is delivered,1 plthough it ’hasto bear the same date as the latter. The judgment indicates,whattheform and character of the decree ,willbe in, Imay
safely say, almost every case. For instance, when a judgment ispronounced in favour of’a plaintiff, the words usually employedare:“ Let judgment be entered for”plaintiff asclaimedwith
costs.” The drawing up of the .decree thereafter is, as my lord
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May IS andJune 1.
has pointed out, simply a ministerial act. The decree itself isnever pronounced, as it is signed by the Judge after the judg-ment is pronounced. The decree is sometimes, as a fact, notpresented for signature to the District Judge for several daysafter the judgment has been pronounced. I do not see anypractical difficulty in regard to a decree not being signed promptlyand on the same day the judgment is pronounced, because wheDan appead is filed the decree, if not drawn up, or unsigned atthe time, may at once be perfected and sent up to the AppealCourt.I hardly think that any appellant really desires to
ascertain what the exact terms of a' decree are before filing hispetition of appeal. The judgment will always give him thenecessary information for the purpose, and the appeal is alwaysagainst the judgment and decree.
EMALISHAMY v. EGO APPU