MOHAPATRA, J. -
(1.) THIS is an application for leave to appeal to the supreme Court against the judgments dated 26 -1 -51 in Second Appeal No. 208 of 1947 confirming the decision of Sri C. C. Coari, District Judge of Cuttack,
dated 10 -3 -47 in Sub -Judge Appeal No. 196 of 1940.
(2.) THE facts are fully and elaborately stated in the judgments of the Second AppeaJ, which has been reported in - - 'Pratap Kishore v. Gyanendra -nath', A. I. Rule 1951 Orissa 313 (A). The facts, necessary to
appreciate the points, raised in this petition for leave, are, in short, as follows :
The Original Suit was tried by Sri G. C. De, Addl. Subordinate Judge of Cuttack; after the arguments,
were closed, Sri De fell ill and took leave preparatory to retirement, and, therefore, could not write out the
judgment; thereafter the records were sent back to Sri De for writing out the judgment, and, in fact, he
wrote out and signed the judgment at a time when he had already retired; the ordering portion of the
judgment is :
'Hence it is ordered that the suit be dismissed with costs and future interest at 6 p. c. p. a.; pleader's fee 5 p. c. Sd/ - G. C. De, Addl. Subordinate Judge, 9 -8 -40,' But as Sri De had retired before 9 -8 -40, the judgment had to be pronounced by Sri c. C. Coari Subordinate Judge of Cuttack, under the provisions of Order 20, Rule 2; while delivering the judg - ment, Sri Coari made an endorsement below the ordering portion to effect : 'Delivered by me. Sd/ - C. C. Coari, Subordinate Judge, 9 -8 -40.'
The decree was eventually signed later on 22 -8 -40 by Sri Coari; it has to be mentioned here that Sri Coari
heard the Sub -judge Appeal arising out of the present suit against the aforesaid judgment dated 9 -8 -40
while he was the District Judge of Cuttack.
The contention of Mr. Mohanty, appearing -on behalf of the petitioners, is that Sri Coari had no jurisdiction to hear the appeal inasmuch as he had pronounced the judgment in the trial Court and also he
had signed the decree. Mr. Mohanty relies upon the provisions of Section 38, Sub -section (2), Bengal,
Agra and Assam Civil Courts Act, 1887 (Act 12 of 1887), which runs as follows :
'The presiding officer of an appellate Civil Court under this Act shall not try an appeal against a decree or order passed by himself in another capacity.'
Sub -section (3) runs as follows :
'When any such suit, porceeding or appeal as is referred to in Sub -section (1) or Sub -section (2) comes
before any such officer, the officer shall forthwith transmit the record of the case to the Court to which he
is immediately subordinate, with a report of the circumstances attending the reference.'
Mr. Mohanty's contention is that the provisions of Sub -section (2) are mandatory and the duties of such a
Judge are also fully prescribed in Subsection (3). He, therefore, attacks the judgment of the first appellate
Court, i. e. of Sri C. C. Coari, as being without jurisdiction and takes up a point that it is a substantial
question of law involved in the case on account of which leave ought to be granted for appeal to the
(3.) INDEED , the provisions of Sub -section (2) are mandatory, but the language is clear to indicate that the presiding officer, 'who had passed a decree or order', shall not try the appeal. It is manifestly clear that
mere signing of the decree does not amount, in law, to passing the decree. The Judge, who is responsible
for the judgment, is alone res -ponsible for the passing of the decree inasmuch as the judgment is the
statement of the reasons of the decree. Mere, signing of the decree is not a judicial act but is merely on
administrative act, and the Judge, who merely signs the decree, is simply to see if the decree is in
accordance with the judgment or not, but he is in no sense responsible for the judgment or the statement
of the reasons of the decree. This position, that the Judge who is responsible for the Judgment is really the
Judge who passes the decree, is made clear by reference to Order 20, Rule 7, which provides as follows :
'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.'
Therefore, it cannot be suggested for a moment that simply because Sri Coari had signed the decree, he
was disabled, under the aforesaid Act, to hear the appeal. On the contrary, we shall have to examine the
further position whether he was responsible for the judgment itself. Indeed, under the provisions of Order
20, Rule 2, Sri Coari had delivered the judgment which was already written out and signed by Sri De, Additional Subordinate Judge. To me, as it appears, it can never be suggested that by mere delivering the
judgment Sri Coari can be said to have adopted the Judgment of Sri De as his own. How can a Judge, who
has not taken evidence or heard arguments in an original suit, give a statement of the grounds of the
decree, that is, be responsible for the judgment in the case. To me, as it appears, under no provision of
law, the Judge, who merely pronounces the judgment under Order 20, Rule 2, written out and signed by
his predecessor -in -omce, is bound to apply his judicial mind to the facts, circumstances and position of
law arising in the case and to accept the judgment as his own before pronouncing the Judgment. More
pronouncing the judgment prepared by the predecessor -in -office is a mere mechanical act.;