MUSALA ANNAJI RAO Vs. BOGGARAPU PAPAIAH SETTY

JUDGEMENT

(1.) This Letters Patent Appeal arising out of O. S. No. 93 of 1969 on the file of the Additional Subordinate Judges Court, Kurnool and directed against the order of our learned brother, Muktadar J. dismissing at S. R. stage an application for stay of execution of the decree in the suit pending an unnumbered appeal and an application for condoning the delay in the filing of the appeal, gives rise to a short but important and interesting question of law, viz.,

(2.) In order to appreciate the scope of the question, it is necessary to state briefly the material facts and circumstances that gave rise to it. The respondent herein Boggarapu Papaiah Setty instituted a suit, O. S. No. 93 of 1969 on the file of the Court of the Subordinate Judge, Kumool for recovery of a debt of Rs. 5,000.00 on the foot of a promissory note executed by the father of the appellants herein, one Eswara Rao and his brother-in-law Sajjan Kumar on 4/07/1966. The 1st defendant is the father of the defendants 2 and 3, the appellants herein and the 4th defendant is the 1st defendants brother-in-law, the joint executant. The 4th defendant was given up by the plaintiff on 1 3/03/1970 when the suit was dismissed in so far as he was concerned. The suit after trial was decreed against the defendants 1 to 3/08/1970. There appears to be some delay in the obtaining of the certified copies of the judgment and decree of the Court below by the appellants. In fact, they were delivered to them only on 30/06/1973. Thereafter, a regular appeal was filed on 3/07/1973 in the District Court, Kurnool against the judgment and decree of the trial Court along with an application to condone the delay in presenting the appeal. The memorandum of appeal was returned to the appellants on 7-12-1973 for presentation to the proper Court, as the District Court had no pecuniary jurisdiction to entertain it. Thereupon the memorandum of appeal has been fifed in this Court on 10/12/1973 along with an application C. M. P. No. 8345/73 to condone the delay of 2 years, 11 months and 8 days in presenting the appeal. The appellants have also filed another application, C. M. P. S. R. No. S0778/ 73 for stay of the execution of the decree. That application has been dismissed by our learned brother. Muktadar, J., on 18-12-1973 relying on the decision of our learned brother, A. V. Krishna Rao, J. in C. M. P. No. 5573 of 1971 etc., dated 11/07/1972 (Andh. Pra.). Hence this Letters Patent Appeal.

(3.) The sum and substance of the contentions of Mr. Chalk Sitaramayya, the learned counsel for the appellants, is that mere is an appeal within the meaning of Order 41, Rule 1 C. P. C., when a Memorandum of appeal is presented in this Court though beyond the period of limitation prescribed therefor and unnumbered on the date of the disposal of the application for stay and, therefore, the learned Judge erred in holding that Order 41 Rule 1 (S) C. P. C. bars the jurisdiction of this Court to entertain this application. This claim advanced on behalf of the appellants has been resisted by Sri N. Rama Mohan Rao, the learned counsel for the respondent herein contending inter aha that Sub-rule 3 of Rule 1, Order 41 of the Code of Civil Procedure is a special provision dealing with a case where an appeal is presented out of time and there is no appeal until the memorandum of appeal is admitted and registered. In other words, according to the counsel, there is no appeal in the eye of kw until the memorandum of appeal is admitted and registered in accordance with the provisions of Order 41 C. P. C. In support of his stand, he strongly relied upon the decisions of Venkatesam, J. and A. V. Krishan Rao J. in C. M. P. No. 4920/63 dated 25-6-1963 and C. M. P. No. 5573/71 dated 11-7-1972 respectively and the decisions of T. C. Ragha-van, J. (as he then was) in Ramayyan v. Ashta Moorthi Namboodiri, 1962 Ker LT 500.