MOINUDDIN Vs. AJODHYA SAHU

JUDGEMENT

(1.) This appeal was filed on 5-11-1954, within the period of limitation; the last date for filing the appeal being 24-11-1954. Several defects were pointed out by the Stamp Reporter, at the time of the presentation of the memorandum of appeal. One of such defects, pointed out, was that (the memorandum of appeal was not accompanied by a copy of the judgment appealed against, as required by Order XLI, Rule 1, Code of Civil Procedure. On 29-11-54, the Deputy Registrar of this Court granted 21 days' final time to file a copy of the judgment of the lower appellate Court, and to remove the other defects. This order not having been complied with, the matter was placed before the Bench. The Bench, on 3-1-1955, granted three weeks' peremptory time to file a copy of the lower appellate court's judgment. The copy of the judgment appealed against, however, was filed on 17-1-55, before the expiry of the peremptory time granted by the Bench. On the filing of this copy of judgment, the Stamp Reporter was asked to submit a further report. The Stamp Reporter, on 22-1-55, reported that the appeal was time barred, because the appeal was made competent, by filing copy of the judgment of the lower appellate court, on 17-1-55, taut the copy of this judgment should have been filed within the period of limitation, that is, 2441-54. This stamp report is now for consideration by this Court.

(2.) It is clear that the appeal was not validly presented on 5-11-54, as it was not accompanied by a copy of the judgment of the lower appellate court; it was'made competent oh 17-1-55, that is, after the expiry of the period of limitation. Prima facie, therefore, the appeal is barred by time.

(3.) The question has, therefore, arisen as to whether the appeal is barred by time. Mr. Awadh Kishore Prasad, appearing for the appellants, relies on Rules 6 and 7 of Chapter VII of Part II of the Patna High Court Rules, and submits that, no doubt, Rule 6 requires that a memorandum of appeal shall be accompanied By copies of the judgments of both the lower courts, but Rule 7 gives the Registrar power, when an appeal is not accompanied by the necessary copies of judgments, to allow time for production of the same. If copies are not produced within the time allowed, then alone the appeal is to be laid before the Court for orders. He, therefore, submits that he was granted time, as required by Rule 7, by the Deputy Registrar on 29/11/1954, in the first instance, and, thereafter, by the Bench on 3/1/1955, and he filed the copy of the judgment of the lower appellate court within the time given by the Bench; and, therefore, the appeal is not barred by time. The substance of his contention comes to this that Order 41, Rule 1, C. P. Code is to be read subject to Rule 7 of Chapter VII of the Patna High Court Rules and if so read an appeal although incompetent, when it was filed, because of not filing a copy of the judgment appealed against, can be made competent by filing the copy of the judgment, even after the expiry of the period of limitation, if it is filed within the time granted by the Registrar under Rule 7 of the Patna High Court Rules. I am unable to accept this interpretation of Rule 7 of the Patna High Court Rules and O. XLJ, R. 1, of the Code of Civil Procedure. I do not think that the Registrar or the Deputy Registrar can grant time beyond the period of limitation. It is only when an application under Section 5, Limitation Act. is filed that the question of condoning the delay can be considered by the Bench. The Bench even, therefore, by merely extending the time granted by the Registrar, or the Deputy Registrar, under Rule 7, beyond the period of limitation, for filing the copy of the judgment appealed against, cannot extend the period of limitation fixed by the statute. In my opinion, therefore, the time granted by the Deputy Registrar, and later by the Bench, for filing the copy of the judgment appealed against, cannot extend the period laid down in the Limitation Act. Rule 7 of the Patna High Court Rules cannot override the provisions of the Limitation Act. In the circumstances, I hold that the appeal is barred by limitation. The above view was also taken in the case of Bhudermul v. Sita Ram (Second Appeal No........ of 1938: R. No. 48 of 1939) on 11/3/1939 by the then Registrar, Mr. S. K. Das (as he then was). It is open, however, to the appellants to make an application under Section 5, Limitation Act, for condoning the delay in filing the copy of the judgment of the lower appellate court. The Stamp Report is, therefore, accepted.