SARDAR BALDEV SINGH Vs. SARDAR MOTI SINGH

JUDGEMENT

(1.) This is a review petition filed against the order dated: 23.11.1995 passed by brother V.K.Gupta J. in Civil Second Appeal No. 7/89 titled Sardar Moti Singh v. Sardar Baldev Singh and Another. The Ld. Judge had accepted the appeal by setting aside the judgment and decree dated: 29.4.1989 passed in CIA 13/88 by the Ld. District Judge Kupwara. The Ld. District Judge, Kupwara had dismissed the appeal filed before him against the judgment and decree of Sub Judge Handwara dated: 12.5.88. The Ld. District Judge, Kupwara had held that appeal was not maintainable. The dismissal of the appeal was ordered on the ground that the appeal was filed without accompanying certified copy of the decree and thus the appeal was not against the decree but against judgment. The amendment of memorandum of appeal was not also allowed. Judgment/decree dated: 23.11.1995 which is sought to be reviewed has set-aside the judgment and decree of the first appellate Court holding that appeal was filed in the 1st appellate Court on 24.6.88 and on the same day the Court had permitted the appellant to file certified copy of the decree before next date which was fixed on 2.8.88. On that date the compliance of the Court order was shown by filing the certified copy. In terms of the judgment and decree it was held that 1st appellate Court had allowed the production of the certified copy and act of the Court cannot cause prejudice to a party in the proceeding. The other ground on the basis of which judgment and decree was set-aside is that appellant on 16.11.1988 had made an application for the amendment of the memorandum of the appeal and without deciding that application the appeal was dismissed. After setting aside the judgment and decree, this Court transferred the case (1st appeal) for decision to the Court of learned Additional District Judge, Srinagar.

(2.) Through the medium of this petition the judgment and decree is sought to be reviewed on the grounds that the Ld. Judge had over looked the mandatory provisions of law contained in Order 41 Rule 1 C.P.C. The imperative requirement of law is that memorandum of appeal must be accompanied by a certified copy of the decree appealed against. The Court had no authority under law to give a direction that certified copy should be placed on record on 2.8.1988. The right of appeal does not exist in favour of a party who does not comply with mandatory requirements prescribed under 0.41 Rule 1 CPC. The mandatory requirement of law is that a certified copy of the decree which is impugned must be made a part of the memorandum of the appeal. A still born remedy cannot be allowed to be availed of by any act of the Court seeking to grant life thereto.

(3.) The respondents had not applied before the trial Court to obtain the certified copy of the decree at the time when the appeal was filed in the 1st appellate Court. The certified copy of the decree was applied and obtained after the Court had directed to place on the record the same. The direction given by the 1st appellate Court to produce certified copy of the judgment was not in accordance with the law laid down by the Apex Court in AIR 1967 SC 1470, AIR 1969 SC 575 and AIR 1961 SC 832. There was an error apparent on the face of the record because in the memo of appeal the decree was challenged and later on application was made on 16.11.1988 seeking amendment of the memo of appeal. The 1st appellate Court had dis-allowed the amendment while passing the impugned order. The order under review suffers from illegality. Direction given to the 1st appellate Court to consider that application on merits is also bad in the eye of law.