Law Notes Dynamo: January 2021

14. Power to direct compensation for trouble in seizing.—¹*** The ²[Central Government] may direct compensation for trouble and diligence in seizing such vessel employed as aforesaid, fishing-vessel or harbour-craft, guns, furniture, tackle, ammunition and apparel, as last mentioned, to be made, out of the proceeds of such seizure to the person or persons who shall have seized the same, to such amount, in such manner and in such shares or proportions, as to the said ³[Central Government] shall seem meet.

15. [Port-clearance.] Rep. partly by the Repealing Act, 1874 (16 of 1874), s. 1 and Sch., Pt. I, and partly by the Repealing Act, 1876 (12 of 1876), s. 1 and Sch., Pt. I.

Footnotes

1. Subs. by A.O. 1950, for “Provicial”.

2. Subs. by the A. O. 1937, for “Governor of Bombay in Council”.

3. Subs., ibid., for “Governor in Council”.

Section 13. Penalty for neglect to comply with rules

13. Penalty for neglect to comply with rules.—¹*** Incase any such vessel employed as aforesaid, fishing-vessel or harbour-craft shall not be so marked or branded in all respects as hereinbefore directed, or in case the name and number of any such vessel employed as aforesaid, fishing-vessel or harbour-craft shall not be so painted, or shall not continue so painted on such vessel employed as aforesaid, fishing-vessel or harbour-craft, in all respects as herein before directed;

or in case any such vessel employed as aforesaid, fishing-vessel or harbour-craft shall not be furnished with such certificate as hereinbefore specified, or in case the owner or owners or commander of any such vessel employed as aforesaid, fishing-vessel or harbour-craft shall not produce such certificate on demand thereof as hereinbefore directed;

the owner or owners of every such vessel employed as aforesaid shall be subject to a fine of ten times the amount of the fees payable in respect of the certificate of registry of such vessel, the same being a vessel for the certificate of the registration of which any fee is payable; and the owner or owners of any such fishing-vessel or harbour-craft shall be subject to a fine of ten rupees;

Recovery of penalties—which fines may be recovered on conviction before any Magistrate ²*** having jurisdiction, ³*** by sale of such vessel, fishing-vessel or harbour-craft, her furniture, ammunition, tackle and apparel;

Penalty on repetition of default—and such fines shall be payable as often as the owner or owners or commander of any such vessel employed as aforesaid, fishing-vessel or harbour-craft shall make such default as aforesaid:

Provided every such subsequent default be made after the expiration of one month from the date of the last conviction.

Footnote:

1. Subs. by A.O. 1950, for “Provicial”.

2. The words “Justice of the Peace, or person exercising the powers of a Magistrate” rep. by Act 12 of 1876, s. 1 and the Schedule, Pt. I.

3. The words “And it is hereby enacted, that” rep. by Act 16 of 1874, s. 1 and the Schedule, Pt. I.

Section 12. Production of certificate on demand

12. Production of certificate on demand.—¹*** The owner or owners or commander of every such vessel employed as aforesaid, fishing-vessel and harbour-craft shall produce, on demand thereof by any officer of the Customs ²*** or by any officer of the ³*** Navy, the certificate so directed to be applied for and obtained, in respect of such vessel employed as aforesaid, fishing-vessel or harbour-craft, as above mentioned.

Footnote:

1. The words “And it is hereby enacted, that” rep. by Act 16 of 1874, s. 1 and the Schedule, Pt. I.

2. The words “within the said State” omitted by Act 22 of 1952, s. 6.

3. The word “Indian” rep. by Act 12 of 1876, s. 1 and the Schedule., Pt. I.

Section 11. Fees to be credited to Government

11. Fees to be credited to Government.—¹*** The person or persons so authorised to make such registry as aforesaid shall receive the fees payable for the same, and shall pay such fees to such officer as

²[the Central Government] shall appoint; the same to be carried to the credit of ³[the Central Government]:

⁴[Provided that any such fees as immediately before the commencement of ⁵[the Constitution] were, under this Act as then in force to be carried to the credit of the ⁶[⁷[State] Government] shall be paid to such officer as the ⁷[State] Government may appoint and be carried to the credit of that Government.]

Footnote:

1. The words “And it is hereby enacted, that” rep. by Act 16 of 1874, s. 1 and the Schedule, Pt. I.

2. Subs. by the A. O. 1937, for “the Governor of Bombay in Council”.

3. Subs., ibid., for “the Government of Bombay”.

4. Ins., ibid.

5. Subs. by the A. O. 1950, for “Part III of the Government of India Act, 1935”.

6. Subs. ibid., for “Local Government”.

7. Subs. by A.O. 1950, for “Provicial”.

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Further Reading

Section 10. Fees for certificates

¹[10. Fees for certificates.—The owner or owners of such vessels employed as aforesaid fishing-vessels and harbour-craft being excepted) on being registered as aforesaid, shall pay—

for each certificate of registry for a vessel not exceeding 5 tons burthen, the fee of . . .1 rupee;

for each certificate for a vessel exceeding 5 tons burthen and not exceeding 25 tons burthen, the fee of . . . . . . . . . . . . . . .5 rupees;

for each certificate for a vessel exceeding 25 tons burthen and not exceeding 100 tons burthen, the fee of. . . . . . . . . . . . . . . . . . 7 rupees;

and for each certificate for a vessel of 100 tons or greater burthen, per ton, the fee of . . 2 annas.]

Footnote: 1. Subs. by Act 22 of 1952, s. 8, for section 10.

Section 8. Sealing certificate

8. Sealing certificate.—¹*** Such certificate of registry shall be sealed with the seal of the ²[Government of India], and shall be signed by the person authorised to make such registry.

Footnotes:

1. The words “And it is hereby enacted, that” rep. by Act 16 of 1874, s. 1 and the Schedule, Pt. I.

2. Subs. by the A. O. 1950, for “East India Company”.

9. [Dates for commencement of certificate and registration.] Rep. by the Repealing Act, 1876 (12 of 1876), s. 1 and Sch., Pt. I.

Section 7. Owner to obtain certificate of registry. Replacing lost certificate

7. Owner to obtain certificate of registry. Replacing lost certificate.—¹*** The owner or owners of every such vessel employed as aforesaid, fishing-vessel and harbour-craft shall apply for and obtain a certificate of registry from the person authorised to make such registry as aforesaid, and such certificate shall be in the form specified in the Schedule appended to this Act; and in the case of any certificate being lost or destroyed, a renewed certificate may be obtained in the same manner and on payment of the fees hereinafter mentioned.

Footnote: 1. The words “And it is hereby enacted, that” rep. by Act 16 of 1874, s. 1 and the Schedule, Pt. I.

Section 6. Officers to perform duty of marking and branding

6. Officers to perform duty of marking and branding.—¹*** The duty of marking or branding and of ascertaining the burthen of such vessels employed as aforesaid, fishing-vessels and harbour-craft, at Bombay, shall be performed by the ²[Principal Officer, Mercantile Marine Department]; and at all other places ³*** the duty of marking or branding and of ascertaining the burthen of such vessels employed as aforesaid, fishing-vessels and harbour-craft shall be performed by the Collector of Sea-customs at such places respectively, or by such other persons as shall be appointed by the ⁴[Central Government] to act at such places respectively, in the execution of this Act.

Footnotes:

1. The words “And it is hereby enacted, that” rep. by Act 16 of 1874, s. 1 and the Schedule, Pt. I.

2. Subs. by A.O. 1950 (as amended by C. O. 29, dated 4-4-1951), for “Master-Attendent” (w.e.f. 26 -1-1952).

3. The words “within the State of Bombay” omitted by Act 22 of 1952, s. 7.

4. Subs. by the A. O. 1937, for “Government of Bombay”.

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Further Reading

Section 5. Owners to apply for registry

5. Owners to apply for registry.—¹*** The owner or owners of every such vessel employed as aforesaid, fishing-vessel and harbour-craft shall apply to the person authorised to make such registry in respect of the same, in order to have such registry as aforesaid made, or in order to have such registry made again as aforesaid.

Information of registry at subordinate port.—And whenever such vessel employed as aforesaid, fishing-vessel or harbour-craft is registered at a subordinate port, information thereof, and of the number there assigned to her, shall immediately be given by the registering officer to the ²[Principal Officer, Mercantile Marine Department] at Bombay.

Footnotes:

1. The words “And it is hereby enacted, that” rep. by Act 16 of 1874, s. 1 and the Schedule, Pt. I.

2. Subs. by A.O. 1950 (as amended by C. O. 29, dated 4-4-1951), for “Master-Attendent” (w.e.f. 26 -1-1952).

Monday 25 January 2021

Section 4: Registry of name, number and burthen

4. Registry of name, number and burthen.—¹*** The name and number of every such vessels employed as aforesaid, fishing-vessel and harbour-craft, and her burthen, and also the name or names of the owner or owners thereof, shall be registered in a took to be kept for that purpose by the person hereinafter directed to make such registry.

Registry by whom to be made, Fresh registration.—At Bombay such registry shall be made by the ²[Principal Officer, Mercantile Marine Department], and at other places ³*** by the Collector of Seacustoms at such places respectively, or by such other person as shall be appointed by the ⁴[Central Government] to act at such places respectively, in the execution of this Act; and whenever any change shall take place in the burthen of such vessel employed as aforesaid, fishing-vessel or harbour-craft, or in the name or names of the owner or owners thereof, such registry shall be made again:

Provided, however, that it shall not be lawful to give any name to such vessel employed as aforesaid, fishing-vessel or harbour-craft, other than that by which she was first registered.

Footnotes

1. The words “And it is hereby enacted, that” rep. by Act. 16 of 1874, s. 1 and the Schedule, Pt. I.

2. Subs. by the A. O. 1950 (as amended by C. O. 29, dated 4-4-1951), for “Master-Attendant” (w.e.f. 26-1-1950).

3. The words “within the said State” omitted by Act 22 of 1952, s. 6.

4. Subs. by the A. O. 1937, for “Government of Bombay”.

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Further Reading

Section 3: Marking or branding vessels with name of place and number

3. Marking or branding vessels with name of place and number.—¹*** Every such vessel employed as aforesaid, fishing-vessel and harbour-craft shall be marked or branded with the name of the place to which she belongs, and also with a number assigned for the same by the officer authorised to make such registry as is hereinafter mentioned.

Owner to paint name and number—and the owner or owners of such vessel employed s aforesaid, fishing-vessel and harbour-craft shall cause such name and number to be painted in black paint upon a white ground on each quarter of such vessel employed or aforesaid fishing-vessel and harbour-craft, in English figures and letters, each figure anti letter being six inches in length.

Foot note: 1. The words “And it is hereby enacted, that” rep. by Act. 16 of 1874, s. 1 and the Schedule, Pt. I.

Section 2: Rules as to coasting and other vessels belonging to any citizen of India.

2. Rules as to coasting and other vessels belonging to any citizen of India.—¹*** The following rules shall be in force with respect to vessels belonging to ²[any citizen of India] ³***, and employed on the coasts of ⁴[any State] ⁵[or part of a State] to which this Act extends] or in trading coastwise, as also with respect to fishing-vessels and harbour-craft belonging to ⁶[any such citizen].

Footnotes:

1. The words and figures “And it is hereby enacted, that from the said first day of November, 1838” rep. by Act 16 of 1874, s. 1 and the Schedule, Pt. I.

2. Subs. by the A. O. 1950, for “any of Her Majesty’s subjects”.

3. The words “residing within the State of Bombay” omitted by Act 22 of 1952, s. 5.

4. Subs. by s. 5, ibid., for “the said State”.

5. Ins., ibid.

6. Subs. by the A. O. 1950, for “any of the same Her Majesty’s subjects”.

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Further Reading

Section 1: Extent: The Coasting Vessels Act, 1838

¹[THE ²*** COASTING-VESSELS ACT, 1838]

ACT NO. 19 OF 1838

[27th August, 1838.]

³[1. Extent.—This Act extends in the first instance ⁴[to the territories which, immediately before the 1st November, 1956, were comprised in the States] of Bombay, Saurashtra and Kutch, but the Central Government may, by notification in the Official Gazette, extend it to any other State ⁵[or part of a State] which has a sea-coast.]

Foot notes:

1. Short title given by the Bombay Short Titles Act, 1921 (Born. Act 2 of 1921). This Act was declared by the Laws Local Extent Act, 1874 (15 of 1874), s. 5, to be in force in the whole of the Bombay Presidency, except the Scheduled Districts.

This Act has been repealed in so far as it applies to sea-going ships fitted with mechanical means of propulsion and to sailing vessels by the Merchant Shipping Act, 1958 (44 of 1958), s. 461 and Schedule.

The Act came into force in Pondicherry vide Reg. 7 of 1963, s. 3 and the First Schedule (w.e.f. 1-10-1963).

The Act has been extended to Goa, Daman and Diu with modifications by Reg. 12 of 1962 and the Schedule and to Laccadive, Minicoy and Amindivi Islands by Reg. 8 of 1965, s. 3 and the Schedule (w.e.f. 1-10-1968).

2. The word “Bombay” omitted by Act 22 of 1952, s. 3.

3. Ins. by s. 4, ibid. s.1 was rep. by Act 14 of 1870, s. 1 and the Schedule, Pt. II.

4. Subs. by the Adaptation of Laws (No. 2) Order, 1956, for “to the States”.

5. Ins., ibid.

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Further Reading

Saturday 16 January 2021

Deemed Decree

Deemed Decree

As such the word deemed indicate it is not in actual but by statutory fiction for the purpose of extending meaning of the word decree which it does not expressly cover. So, a deemed decree is a decree because of this statutory fiction or legal fiction.

A deemed decree is one which, though not fulfilling the essential features of a decree as required by the Code has been expressly categorised as a decree by the legislature. The rejection of a plaint and the determination of questions of facts are deemed decrees.

An adjudication which does not formally fall under the definition of decree stated under Section 2(2) of the Code of Civil Procedure but due to a legal fiction, they are deemed to be decrees are considered as deemed decrees.

As mentioned under sec-2(2) that the rejection of plaint and determination of any questions under section 144 of the code shall deemed to be a decree but shall not include:

(a) any such sentence (adjudication) from which it appears that an appeal lies as an appeal from an order, or

(b) any such order of discharge (dismissal) of default.

Rejection of plaint and determination of the issue of restitution of decree are deemed decree. Also, an adjudication under Order XXI Rule 58, Order XXI Rule 98 and Order XXI Rule 100 are also deemed decrees.

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Difference between Judgement and Decree

Section 2. Definitions.

Section 144. Application for restitution.

Reference:

1) https://blog.ipleaders.in/judgement-and-decree-under-cpc/

2) https://blog.ipleaders.in/introducing-decree/

3) https://www.icsi.edu/docs/portals/25/CPC%20Notes-Amish%20Shah.doc#:~:text=Decree%2C%20Order%20%26%20Judgement-,Decree,be%20either%20preliminary%20or%20final.

4) http://mja.gov.in/Site/Upload/GR/Title%20NO.217(As%20Per%20Workshop%20List%20title%20no217%20pdf).pdf

5) http://www.legalservicesindia.com/article/1783/Understanding-of-the-term-Decree,-Order,-Judgment-and-Mesne-Profit.html

Friday 15 January 2021

Judgment

Difference between Judgement and Decree

Bare Act:

(9) “judgment” means the statement given by the Judge of the grounds of a decree or order;

Part in red is reproduced as it is from the bare act.

Introduction:

The word ‘judgement’ is derived after combining two words namely, judge and statement. It is result or conclusion of act of judging. The Court, after the case has been heard, shall pronounce judgement. A judgement contains facts of the case, the issues involved, the evidence brought by the parties, finding on issues (based on evidence and arguments). Every judgement shall include a summary of the pleadings, issues, finding on each issue, ratio decidendi and the relief granted by the court. A judge in the judgement pronounced, always states the reasons for such a decision.

Pronouncement of judgment:

Pronouncement of a judgement means that after the hearing is completed i.e. after the Court has heard the pleadings of the parties, the judgement shall be announced by the Judges in an open Court, either at once or at some future day, after providing due notice to the parties or their learned counsels.

If a judgement is not pronounced immediately then it must be pronounced within 30 days from the date of the conclusion of hearing. However, sometimes it so happens that due to exceptional and some extraordinary reasons like a bank holiday, strike or some other situation it may be delivered within 60 days from the conclusion of the hearing. It is not mandatory for a judge to read out the whole judgement and it would be enough if only the final order is pronounced. The judge shall put the date on which the judgement was pronounced along with his signature. After the Amendment Act of 1976, the time limit was provided between the hearing of the arguments and the pronouncement of the judgement. Prior to this amendment no time limit was provided as such. Such a time limit was provided because there was indefinitely continuous imposition from all over India.

Pronouncement of judgment:

Rule 2 Order XX of Code of Civil Procedure, 1908 provides a judge with the right to pronounce the judgement which is already written but is not pronounced by his predecessor.

Copy of the judgment:

Once the judgement is pronounced the copies of that particular judgement should be immediately made available to the parties on payment of costs as specified. The costs for the copy of judgment may be specified in the rules and orders made by the High Court (H.C.). High Court can make such rules and orders as per the provisions specified in Order XX Rule 6B of the Code of Civil Procedure, 1908.

Contents of the judgement: -

According to Rule 4 Order XX of Code of Civil Procedure, 1908:

Judgements of a Court of Small Causes shall contain the points for determination and the decision thereon. While the judgments of other Courts shall contain: (a) summary of the pleadings i.e. a concise statement of the case; (b) issues i.e. the points for determination; (c) findings on each issue and the decision thereon; (d) ratio decidendi (reasons for such a decision); and (e) the remedy i.e. the relief granted.

Alteration of a judgement

Once a judgement is dated and signed by the judge it can only be altered or amended if:

The clerical errors i.e. the errors made by clerks; or
arithmetical errors i.e. errors made in numbers such as addition, subtraction, multiplication and division; or
errors due to accidental slips or omissions, i.e. errors took place when some essential element is left unnoticed etc. occur while drafting the judgment.

These errors in the judgment can be amended as per Section 152 of CPC after review of the said judgment as per Section 114 of CPC.

Further Reading:

Section 2. Definitions.

Section 33. Judgment and decree.

Section 114. Review.

Section 152. Amendment of judgments, decrees or orders.

Decree

Judgment

Order XX Rule 2: Power to pronounce judgment written by Judge’s predecessor.

Order XX Rule 4: Judgments of Small Cause Courts and Other Courts.

Order XX Rule 6B: Copies of judgments when to be made available.

Reference:

1) https://blog.ipleaders.in/judgement-and-decree-under-cpc/

Judgments of small cause Courts and other courts: O20 R4

1) https://blog.ipleaders.in/judgement-and-decree-under-cpc/

²4. Judgments of Small Cause Courts.—(1) Judgments of a court of Small Causes need not contain more than the points for determination and the decision thereon.

(2) Judgments of other Courts.—Judgments of other Courts shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.

Note: 1. The provisions of rules 1, 3, 4 and 5 are not applicable to the Chief Court of Oudh, see the Oudh Courts Act, 1925 (U. P. Act 4 of 1925), s. 16 (2).

Contents of the judgement: -

According to Rule 4 Order XX of Code of Civil Procedure, 1908:

Judgments of a Court of Small Causes shall contain the points for determination and the decision thereon. While the judgments of other Courts shall contain: (a) summary of the pleadings i.e. a concise statement of the case; (b) issues i.e. the points for determination; (c) findings on each issue and the decision thereon; (d) ratio decidendi (reasons for such a decision); and (e) the remedy i.e. the relief granted.

Further Reading:

Section 2. Definitions.

Section 33. Judgment and decree.

Judgment

Order XX Rule 2: Power to pronounce judgment written by Judge’s predecessor.

Order XX Rule 4: Judgments of Small Cause Courts and Other Courts.

Order XX Rule 6B: Copies of judgments when to be made available.

Reference:

Decree

Bare Act:

Section 2 Sub-section (2) “decree” means the 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 and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within ¹*** Section 144, but shall not include—

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation.—A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;

Note: 1***: The words and figures “section 47 or” omitted by s. 3, ibid., (w.e.f. 1-2-1977).

Part in red is reproduced as it is from the bare act.

Introduction:

The term decree can be termed as the judicial decision in a litigated cause rendered by a Court of equity. It is the determination of a cause in a Court of admiralty or Court of probate. The decree shall follow on judgment pronounced by Court after hearing the case/suit. Thus a decree is based upon judgment. Section 33 of the Code of Civil Procedure describes the term ‘Judgement and Decree’ together.

A decree always follows judgement and is based upon a judgement. It is divided into three types unlike judgement which is final in itself. A decree may be final or preliminary. It is a formal declaration or adjudication and is conclusive in nature. A decree may be delivered with an order. The decree contains the outcome of the suit and conclusively determines the rights of the parties with regard to the issues in dispute in the suit. After passing the decree, the suit stands disposed of since the rights of the parties are finally determined by the court.

For the execution of decree Order XXI of the Code lays down the provisions and procedure. A decree is appealable and even second appeal lies to High Court after the first appeal of a decree. A decree is passed only in civil suits and not in criminal matters.

According to Section 2(2) of the Code of Civil Procedure,1908 decrees are divided into three categories: a) Preliminary decree, b) final decree, c) partly preliminary and partly final decree.

The necessity of a Decree

The Code of Civil Procedure requires the passing of a decree in all the suits. A decree is based upon judgement and it also follows a judgement which is the reason why it is an indispensable and essential requisite. The decree is indispensable or an absolute requisite. It is an essential part of the ultimate outcome of the suit. An appeal can be made against a decree and not against a judgement. If the decree is absent an appeal cannot be ‘put in motion’.

Drawing up of a Decree

Rule 6A Order XX of Code of Civil Procedure,1908 states that a decree shall be drawn within 15 days of the judgement. An appeal can be favoured or preferred without filing a copy of a decree if it is not drawn within 15 days of the judgement.

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