UNION OF INDIA Vs. SOHAN LAL AND OTHERS

JUDGEMENT

(1.) THIS application under section 5 of the Limitation Act, read with section 151 of the Code of Civil Procedure arises out of the Regular Second Appeal No. 974 of 1968 brought by the Union of India against the appellate decree of the Second Additional District Judge, Karnal, dated the 18th of March 1968. The appeal was instituted on the 18th of June 1968, admittedly within the prescribed period of limitation, after allowing the period spent in obtaining certified copies of the judgment and decree appealed against. On the 13th of January 1969, when the appeal came up for hearing before me, Mr. Shambu Lal Puri, counsel for respondents other than the State of Punjab, took up the preliminary objection that the appeal was not properly presented and had to be dismissed without adjudication on merits, as the memorandum of appeal was not accompanied by a certified copy of the decree appealed against.

(2.) ON reference to the documents accompanying the memorandum of appeal, it was found that no copy, certified or uncertified, of the appellate decree accompanied the memorandum of appeal or had been furnished till the date of the hearing. Instead, what was filed with the memorandum of appeal was only a certified copy of the memorandum of costs prepared by the appellate Court. There was thus a clear breach of the mandatory provision contained in rule 1 of Order 41 of the Code of Civil Procedure, which requires that the memorandum of appeal "shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the Judgment on which it is founded." It has been held in Jagat Dhish Bhargava v. Jawahar Lal Bhargava, A.I.R 1961 S.C. 882, that Order 41 rule 1 is mandatory and, in the absence of certified copy of the decree, the filing of the appeal is incomplete, defective and incompetent.

(3.) THAT the grounds of appeal were typed out for submission in the Court and the same were put up before me for signatures on the 17th of June 1968.