RAM CHARAN Vs. RADHA KISHAN JI

JUDGEMENT

(1.) The Stamp Reporter's report is that the appeal was filed 47 days beyond time, that is, it was in time up to 2-7-1949. The order appealed against is dated 2-6-1949. The affidavit in support of the appln. Under Section 5, Limitation Act, discloses that the order was passed late in the evening & that the appln. for copy could not, therefore, be filed before the Ct. closed for the summer vacation. The appln. for copy was filed on 4-7-1949, the re-opening day of the Ct. & the copy of the decree was ready on 13-8 1949, & was delivered to the learned counsel for the appct. on the same day. The 14th, 15th, 16th & 17th being holidays, the appeal could not be filed before the 18th & it was filed on that date. We are, therefore, satisfied that it is a fit case where the delay should be condoned, & the appln. Under Section 5, Limitation Act, granted.

(2.) Mr. H.N. Seth, on behalf of the opposite party has, however, urged that it was not necessary to file copies of the judgment & the decree therefore, the appct. is not entitled to get the time taken in obtaining the copies of the judgment & the decree. He has reld. on the language of Order 44, Rule 1, Civil P. C., which is as follows:

(3.) Learned counsel has pointed out that the rule requires that the appln. should be accompanied by a memo. of appeal & also by copies of the judgment & the decree. Under Order 41, Rule 1 Civil P. C., every memo. of appeal must be accompanied by a copy of the decree appealed from, & unless otherwise exempted, a copy of the judgment also. Under the proviso to Order 44, Rule 1 when, such an appln. for leave is filed, & this has to be filed in person, the Ct. can after perusal of the judgment & the decree reject the appln. if it is not satisfied that the decree is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust. The appln. is to admit an appeal & unless the memo, of appeal is accompanied by a copy of the decree & judgment, there can be no appeal for the admission of which in forma pauperis, the appln. is filed under Order 44, Rule l, Civil P. C. It appears to us to be obvious that there can be no appln. filed in this Ct. for leave to appeal, unless a copy of the judgment & the decree is also filed along with the memo, of appeal.