JAIN, J. - (1.) THIS is an appeal against the judgment and decree of the learned District Judge, Jodhpur dated January 4, 1977, by which he dissolved the marriage of the appellant Priti Parihar with respondent Kailash Singh. It comes today for decision of a preliminary point raised on behalf of the respondent Kailash Singh that the appeal was incompetent as a copy of the decree sheet had not been filed with the appeal within the period of limitation.
(2.) THE dates which are material for consideration in this connection are as follows: - (1) THE judgment under appeal was delivered on 4-1-1977. (2) THE appellant applied for a copy of the judgment only on 5-1-1977. (3) Copy was to be given on 6-1-1977. It was ready on 7-14977. (4) It was received by the appellant on 7-1-1977. (5) THE decree was signed on 18-1-1977. (6) Appeal was filed only with a copy of the judgment but without a copy of the decree on 27-1-1977. (7) THE appeal was listed for admission in the High Court on 2-2-1977. (8) Caveat was filed on behalf of the respondent and copies were given to him on 2-2-1977. (9) THE appellant applied for a copy of the decree on 7-2-1977. On that day the objection of the caveator was also filed in the High Court. (10) THE case was again listed for admission on 8-2-1977 on which date the preliminary objection was raised that the appeal was incompetent not being accompanied by a copy of the decree. (11) THE decree was filed on 10-2-1977 without any application or affidavit for condonation of delay and without any permission for filing the same. (12) An application for condonation of delay under sec. 5 of the Limitation Act was filed on 13-4-1977 but without any affidavit. (13) Affidavit in support of the application was filed on 12-7-1977. It follows from the above chronology that the decree was filed late by 7 days out of which the time requisite for obtaining a copy, namely, 4 days shall be excluded. Thus the total delay is of 3 days. The learned counsel for the appellant made 3 submissions in this connection: - (i) The judgment dated 4-1-1977, amounted to a decree and there was no need of a separate decree sheet as it was not a decree within the meaning of clause (2) of sec. 2 of the Code of Civil Procedure. (ii) The appellant was entitled to the exclusion of time which was taken by the court from 4-1-1977 to 18-1-1977 in the preparation of the decree-sheet. (iii) The appellant was entitled to the condonation of delay under sec. 5 of the Limitation Act. In respect of the first contention Mr. Bhoot learned counsel for the appellant relies upon a decision of the Punjab High Court reported in Daljit Singh vs. Shamsher Kaur (1), Relying upon Vara Laxmi vs. Veeraddi (2), Bai Umiyabhen vs. Ambalal Laxmidas (3) and P. C. Jairath vs. Amrit Jirath (4), a Division Bench of the Punjab High Court appears to have held that a decree granted under secs. 9, 10, 11, 12, 13 and 23 of the Hindu marriage Act, 1955, (hereinafter called the Act) is not a decree as defined in sec. 2 (2) of the Code of Civil Procedure as petition under the Act is not something in the nature of a suit, nor an adjudication thereupon requires to be followed by a formal decree. The appeal against such a decree is also governed by sec. 28 of the Act, which cannot be in any manner circumscribed by O. 41, R. 1 of the CPC and in such a case no copy of the decree need accompany the memorandum of an appeal. The learned Judges of the Punjab High Court went on further to say that the legislature intended in the judgment or the statement of adjudication itself, where relief is granted, to be a decree. So no separate decree is necessary in regard to an appeal under sec. 28 of the Act. In Varalaxmi vs. Veeraddi (2), it was observed that the adjudications under sections 9, 10, 11 and 13 of the Act, cannot be treated as decrees within the meaning of sec. 2 (2) of the Civil Procedure Code. Such decrees are outside the purview of sec. 96 of the C. P. C. Appeals filed under sec. 96 alone can fall within the category of regular appeals and should be registered as such. The appeals from the above decrees can only be registered as Civil Misc. Appeals and not as First Appeals. According to Bai Umiyabhen vs. Ambalal Laxmidas (3), sec. 28 of the Act provides not only the procedure for filing the appeal and the forum in which the appeal must be filed but also the jurisdiction and area of the court in dealing with the appeal so filed. In P. C. Jairath vs. Amrit Jairath (4) it was observed that the decrees under the Act are decrees under Civil Procedure Code and are by a statutory fiction treated for the purpose of enforcement as decrees under the Code, though in fact are not such decrees. Based upon these decisions, the argument made on behalf of the appellant is that firstly, Order 41 Rule 1 which requires that the memorandum shall be accompanied by a copy of the decree appealed from does not apply to the decrees under the Act and secondly, if it does and if a copy of the judgment is filed, that is sufficient compliance with the rule.
(3.) THE learned counsel for the respondent on the other hand relies upon Kusumlata vs. Kapta Prasad (5) and contends that the proceedings under the Act are suits resulting in decrees within the meaning of sec. 2 (2) of the Civil Procedure Code THE provisions of the Civil Procedure Code regulates all proceedings under the Act subject to the special provisions thereof, THEre was nothing in section 23 of the Act which could deprive the decrees passed under the Act of the effect or of the meaning which the term 'a decree' has under sec. 2 (2) of the Civil Procedure Code. The learned counsel for the respondent then submitted that the aforesaid rulings pertain to the provisions as they stood before the Marriage Laws (Amendment) Act, 1976 (Act 68 of 76) and all controversies have been set at rest beyond all doubts by an amendment of sec. 28 by the said Act, 68 of 1977. Now, it is specifically provided that all decrees made by the Court in any proceedings under the Act shall be appealable "as decrees of the court made in the exercise of its original civil jurisdiction and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original Civil Jurisdiction. " This amendment it is urged has equated the decrees made under the Act with the decrees made in exercise of original civil jurisdiction and has further made them appealable in the same manner as other decrees are under sec. 96 of the Civil Procedure Code. I have considered. It will be noticed that sec. 28 employs more or less the same words which sec. 96 has employed, though neither sec. 96 nor sec. 28 determine the forum of such appeals. The forum of appeal is provided by sec. 20 of the Rajasthan Civil Courts Ordinance, 1950 or by a corresponding law prevalent in other areas. The distinction therefore which has been attempted to be drawn by the High Courts of Andhra Pradesh, Gujrat and Punjab appears with great respect and humility not to be well founded. Section 96 of the Civil Procedure Code and sec. 28 of Act read together make the distinction between a decree under the Act and the decree passed under the Civil Procedure Code disappear. To my mind when sec. 23 or other sections of the Act direct that the court shall decree a relief it can have no meaning other than to make it a decree for all purposes of the Code of Civil Procedure. Section 2 (2) C. P. C. defines a decree as a "formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. " Now, all decrees under the Act determine the rights of the parties in respect of all matters in controversy. To draw a distinction that a decree under section 23 or any other provisions of the Act is not a decree within the meaning of sec. 2 (2) C P. G. because the right of appeal is not under sec. 96 of the Civil Procedure Code but under sec 28 of the Act is not at all convincing. If the definition of sub-sec. (2) of sec. 2 of the C. P. C. is not to be applied to such decrees then what will one understand from the word 'decree. ' I must dispel the doubt that it is not a case of a decree called so by a legal fiction or what is popularly called a deemed decree. The statute requires that the relief is decreed or is declined to be decreed. Now all proceedings under the Act are as far as may be to be regulated by the Code of Civil Procedure, 1908, in virtue of sec. 21 of the Act or in its absence in virtue of section 141 of the C. P. C. then how can one say that appeals are not circumscribed by Order 41, R. l C. P. C. ? What I understand is that it will be applied as far as may be. The second question is whether any decree-sheet was required to be prepared and obtained or whether the judgment itself shall be considered to be a decree. When the statute uses the word 'decree', then a decree-sheet has necessarily to be drawn up beause that is the requirement of sec. 33 of the Civil Procedure Code which lays down that the court after the case has been heard, shall pronounce a judgment and on such judgment a decree shall follow. Order 20 of Civil Procedure Code makes a clear distinction between a judgment and a decree. Order 20, Rule 6 provides that the decree shall agree with the judgment and shall clearly specify the relief granted or other determination of the suit. Order 20 Rule 7 lays-down that the decree shall bear the date on which the judgment was pronounced. Order 20 Rule 20 says that certified copies of the judgment and decree shall be furnished to the parties on application to the court and at their expenses. That is why sub sec. (4.) has been inserted in sec. 23 of the Act as a special provision by Act 68 of 1976, to provide for a copy of a decree of divorce free cost to each parties. It is. therefore, clear from a perusal of the aforesaid provisions that the term decree used in Order 41, Rule 1 covers a decree under sec. 23 of the Act and a decree-sheet has to be prepared thereof as required by the different provisions of Order 20 The judgment itself cannot be deemed to be a decree tor the simple reason if nothing else that it is not a case of a deemed decree , Even in a case of a deemed decrees, it is worthwhile to notice a judgment of the Supreme Court reported in Shakuntla Devi Jain vs. Kuntal Kumari (6) with reference to sec. 47 of the Civil Procedure Code. Sec. 2 (2) thereof had provided that the decree shall be deemed to include determination of any question within sec. 47. The Supreme Court observed that in some Courts, the decision under sec. 47 is required to be formally drawn up as a decree and in that case the memorandum of appeal must be accompanied by a copy of the decree as well as the judgment. But in some other courts, no separate decree is drawn up embodying the adjudication under sec. 47. In such a case, the decision under sec. 47 is the decree and also the judgment, and the filing of a certified copy of the decision is sufficient compliance with Order 41, Rule 1, This shows that where even in a case of deemed decree, if the practice is prevalent in the Court that a decree-sheet is drawn up, then, it is mandatory that a copy of decree must be filed along with the memo of appeal within the period of limitation. ;