RAMASHISHSAN Vs. ANIL KUMAR

JUDGEMENT

(1.) Whether a decree has to be prepared by the officials of the District Judge when an appeal is dismissed as time barred is me short but significant question involved in this Second Appeal, preferred by the defendants (2nd party), at this stage, in a suit for redemption of mortgage.

(2.) The suit was contested by the defendant-appellants and averments made in the plaint were denied.

(3.) The Trial Court after considering the entire evidence on record dismissed the suit by the decree dated 31st March, 1992. Against that decree a First Appeal was preferred under section 96 or the Code of Civil Procedure, 1908 (compendiously the 'Code') before the District Judge, Samastipur, by the appellants. But there was some delay in preferring the First Appeal. Consequently an application under Section 5 of the Limitation Act, 1963 for condonation of delay was filed but the same was rejected as in the opinion of the learned District Judge, no sufficient ground for condonation of delay was made out. The First Appeal was accordingly dismissed as time barred. With a view to challenge the decree of the Trial Court and also of the Appellate Court before this Court in Second Appeal, an application for copy (chirkut) of the judgment and decree was applied. The copy of the judgment was prepared but the office reported that decree was not prepared. The appellants, however, preferred a Second Appeal under Section 100 of the Code, before this Court only with the certified copy of the judgment but without copy of the decree, as no certified copy of the decree was prepared ana issued by the officials of the Civil Court, Samastipur. The report of the officials on the chirkut was that in such matters decree is not prepared. The Stamp Reporter of the High Court has raised an objection that without certified copy of the decree the Second Appeal is not maintainable.