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Civil procedure - definitions

Supreme Court of India

Diwan Bros vs Central Bank Of India, Bombay And ... on 7 May, 1976

Firstly, that under the definition of a "decree" contained in s. 2(2) of the Code of Civil Procedure, 1908, three essential conditions are necessary:

(i) that the adjudication must be given in a suit;

(ii) that the suit must start with a plaint and culminate in a decree; and

(iii)that the adjudication must be formal and final and must be given by a civil or revenue court.

In the proceedings under the Act we have already pointed out that as the Legislature has created a special tribunal to inquire into the claims displaced debtors or creditors, the Tribunal cannot be called a Court in any sense of the term because the Legislature has made a clear distinction between a Tribunal and a Court. Secondly, as the proceedings before the Tribunal start with an application and not with a plaint the other important ingredient of a decree is wholly wanting. Thirdly, the Legislature has itself made a clear- cut distinction between a suit and a proceeding and has described the claim before the Tribunal as a proceeding rather than as a suit. In these circumstances, therefore, none of the requirements of a decree are to be found in the decision given by the Tribunal even though the Legislature may have described the decision as a decree A mere description of the decision of the Tribunal as a decree does not make it a decree within the meaning of The Court Fees Act. The term "decree" appears to have been used by the Legislature to convey a sense of finality regarding the decision of the Tribunal more particularly since the adjudication of the claim, but for the Act, would have been by a Civil Court and then it would have been a "decree".

Secondly, as pointed out, the object of the Act is to benefit displaced persons by providing them a cheap and expeditious remedy. The argument of Mr. Sanghi for the respondent., the he Legislature wanted the claimants to pay heavy court-fees if they lost before the Tribunal is totally inconsistent with the aim and object of the Act. If the displaced claimants were given the right to have their claims determined on a nominal court-fee and if only one right of appeal was provided it surpa, ses one's comprehension why the Legislature should have. intended that even if wrong orders were passed by the Tribunal, the claimants should have to pay heavy court-fees if they wanted to file an appeal to the High Court. If the intention of the Legislature was to provide a cheap and not expeditious remedy to the claimants, then the remedy would be incomplete if it was given only at the original stage and not at the appellate stage.

Having regard to these circumstances we are satisfied that the term "decree" used in Sch. II, Art. 11, is referable to a decree as defined in s. 2 (2) of the Code of Civil Procedure and as the decision of the Tribunal in the instant case does not fulfil the requirements of a "decree" as mentioned above, the said decision is not a decree within the meaning of Sch. II, Art. 11 of the Court Fees Act and, therefore, the memorandum of appeal filed by the appellants squarely falls within the ambit of Sch. II Art. 11 of the Court Fees Act and ad valorem court-fees under Sch. I Art. 1 are not leviale.

Apart from the above considerations, it is a well- settled principle interpretation of statute, hat where the Legislature uses an expression bearin a well-known legal contation it must be premised to have used the said expression in the sense in which it has been so understood. Craies on "Statute Law" observes as follows:

"There is a well-known principle of construction, that where the legislature uses in an Act a legal term which has received judicial interpretation, it must be assumed that the term is used in the sense in which it has been judicially interpreted unless a contrary intention appears."

In Barras v. Aberdeen Steam Trawling and Fishing Company Lord Buckmaster pointed out as follows:

"It has long been a well-establilshed principle to be applied in the consideration of Acts of Parliament that where a word of doubtful meaning has received a clear judicial inter pretation, the subsequent statute which incorporates the same word or the samerphrase in a similar context must be construed so that the word or phrase is interpreted according the meaning that has previously been ascribed to it."

Craies further points out that the rule as to world judicially interpreted applies also to words with well-known legal meanings, even though they have not been the subject of judicial interpretation. Thus applying these principles in the instant case it would appear that when the Court Fees Act uses the word "decree" which had a well-known legal significance or meaning, then the Legislature must be presumed to have used this term in the sense in which it has been understood, namely, as defined in the Code of Civil Procedure even if there has been no express judicial interpretation on this point.

Supreme Court of India

Venkata Reddi And Others vs Pothi Reddi on 30 November, 1962