K V DAMODARAN Vs. P K MURALEEKRISHNAN

JUDGEMENT

(1.) These appeals are filed under S.5 of the Kerala High Court Act, 1958. They seek to challenge the decisions of a learned Single Judge in A. S. Nos. 338 and 376 of 1999, both filed under S.96 of the Code of Civil Procedure. Along with these appeals, the appellants have not produced the certified copy of the decree of the learned Single Judge in the respective appeals. The Registry therefore returned the appeals as defective inter alia on the ground that the appeals have to be accompanied by the certified copies of the decrees in the first appeal disposed of by a learned Single Judge. The appeals were represented by counsel for the appellants along with petitions for time for production of the certified copies of the decrees. In those petitions, what was stated was the applications for copies made, were pending and the certified copies of the decrees have not been issued so far. Hence, in the interests of justice, it was just and necessary to grant time for production of the decrees in the first appeals. The Registry having felt a doubt about the entertainability of the appeal without production of the certified copies of the decrees in the first appeals has sent up these appeals for orders without numbering them. The question is whether in an appeal filed before this court under S.5(ii) of the Kerala High Court Act, the production of the decree is necessary and if it is necessary, in the absence of any extraordinary circumstance, the court can dispense with the production of the decree or grant time for the production of the decree.

(2.) S.5 of the High Court Act in so far as it is relevant, provides that an appeal shall lie to a Bench of two Judges from a judgment of a Single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of original jurisdiction by a subordinate court. O.42A of the Code of Civil Procedure provides that the Rules of O.41 and O.41A shall apply so far as may be, to appeals from decrees and orders of a Single Judge to a Division Bench. Thus normally, O.41 applies to such an appeal and R.1 of O.41 provides that every memorandum of appeal shall be accompanied by a copy of the decree appealed from, and unless the appellate court dispensed with it, the copy of the judgment on which the decree is founded. Thus, prima facie an appeal under S.5(ii) of the High Court Act has to comply with the requirements of O.41 R.1 of the Code of Civil Procedure. If that is the position, the memorandum of appeal has to be accompanied by a certified copy of the decree appealed from which in these cases would be the decrees in A. S. Nos. 338 and 376 of 1999 disposed of by the learned Single Judge.

(3.) What is argued on behalf of the appellants is that S.5(ii) of the High Court Act speaks of an appeal lying to a Bench of two Judges from the judgment of a Single Judge in exercise of appellate jurisdiction and therefore, what is relevant is only the production of the judgment and there is no need to produce a copy of the decree. Counsel further contended that an appeal under S.5 of High Court Act was not an appeal under the Code of Civil Procedure and consequently, compliance with O.41 R.1 of the Code of Civil Procedure cannot be insisted upon.