PRABHAKAR Vs. VINAYAKRAO

JUDGEMENT

(1.) The non-applicant obtained a decree against the applicant for an amount of Rs. 1,840/- against which the applicant preferred an appeal in the Court of the District Judge, Akola, on 8-9-1980. On 10-9-1980 the Appellate Court called upon the applicant-appellant to state whether he had complied with Court. 41, R. 1 (3) of the Civil P. C. (hereinafter referred to as "the Code") by crediting decretal amount in Court. On 22-9-1980 the counsel for the applicant made an endorsement on the appeal memo to the effect that the amount ahd not been deposited. Thereafter on 24-9-1980 the Appellate Court passed the following order :

(2.) The question which arises for consideration in this revision application is whether compliance with the provisions contained in sub-r. (3) of R. 1 of O. 41 of the Code is condition precedent to filing an appeal against a decree for payment of money. Sub-rules (1) and (2) of R. 1 of O. 41 prescribe the mode of preferring an appeal. Sub-rule (3) which has been inserted by the Code of Civil Procedure (Amendment) Act 1976 is in the following terms :

(3.) If the legislative history in enacting this sub-rule is looked to, it will be clear that it was never the intention of the Legislature to make compliance with sub- rule (3) as a condition precedent for preferring an appeal against a decree for payment of money. The Code of Civil Procedure (Amendment) Bill 1976 (Bill No. XXIV of 1976) proposed insertion of the said sub-rule in the form in which it has been enacted. However, at the same time the bill also proposed to insert sub-rule (1A) in R. 3 of O. 41 to the following effect: