PERUMAL PILLAI Vs. PARAMESWARAN NAIR

JUDGEMENT

(1.) Petitioner filed the Second Appeal on October 17, 1979 without producing the judgment and decree of the Trial Court The office considered this failure a defect and so, on October 23, 1979 returned the memorandum of appeal for the defect to be cured within ten days. The petitioner did not protest and represented the memorandum with the defect cured on December 12,1980 after a delay of 1 year and 43 days and with this petition to condone the delay. The respondents to whom notice was ordered object the condonation of the delay and the petitioner has filed an affidavit in reply. Apart from seeking condonation of the delay, the petitioner contends that there was no initial defect at all, as assumed by the office and therefore no occasion to condone the delay, because the Civil Procedure Code does not require production of the judgment and decree of the Trial Court with the memorandum in a Second Appeal.

(2.) The amendment made by the High Court in 1959 to O.42 which deals with appeals from appellate decrees, provided by R.2(1) that the memorandum of appeal "shall be accompanied by a certified copy of the decree and judgment of the Appellate Court and (unless the court dispenses therewith) a certified copy of the decree and judgment of the court of first instance". On the terms of this rule the petitioner was a defaulter and his appeal defective in that he had not produced certified copy of the decree and judgment of the court of first instance. R.2 added by the new Civil Procedure Code Amendment Act. Act 104 of 1976 contains no provisions to this effect and that is the basis of the petitioner's argument that after this Amending Act, it is no longer mandatory that judgment and decree of the court of first instance should be produced with the memorandum of appeal in a Second Appeal. On this argument production of these records at least suo motu would be unnecessary and irrelevant, unless the court orders their production subject to the risk of the order being perhaps challenged as unwarranted by the Amendment Act. The latter aspect apart, I am not satisfied that the Amending Act has created a happy situation as submitted by counsel for the petitioner

(3.) S.97(1) of the Amendment Act provides: