NOORA LOAN Vs. AMIR MIR & OTHERS

JUDGEMENT

(1.) This is a civil second appeal against the decree of the learned District Judge, Anantnag, dated 22-9-1970 whereby he has dismissed the appeal of the present appellant as barred by limitation.

(2.) I need not reproduce the facts or the contention of the parties because such enumeration is unnecessary for the disposal of this appeal. However it appears that a decree against the present appellant was passed by the Munsiff Anantnag on 29-3-1970 and an appeal was preferred against the decree before the District Judge Anantnag without a copy of the decree-sheet being attached with the appeal. There is a note at the foot of the memorandum of appeal that the copy of the decree-sheet had not been supplied to the appellant at the date the appeal was filed. The appeal was lodged with the District Judge on 27-4-1970. It further appears that the copy of the decree sheet was presented later, (it is not clear from the record on which date it was presented) but without any stamp being attached to it as required by Schedule 1 Article 7 of the Court Fees Act. Under that article it required a stamp of fifty paisa because the valuation of the suit was less than Rs 50/- An objection was taken on 30-7-1970 by the respondent before the appellate court that as the decree sheet was insufficiently stamped, therefore the appeal should be dismissed. The appellant put in an application on 27-8-1970 to the effect that when the appeal was presented the copy of the decree sheet had not been supplied to him by the trial court and a note of the same was made at the foot of the memorandum of appeal. Later on the clerk of the counsel of the appellant has presented the decree sheet without affixing the necessary court fee stamp on the same. In the original appeal the stamp affixed was more than required therefore under section 149 Code of Civil Procedure read with Section 28 of the Court fees Act, the deficiency may be deemed to have-been made good.

(3.) The learned Judge without passing any orders on this request of appellant, heard arguments and after writing a very lengthy judgment dismissed the appeal as time barred holding that there was want of due care and attention on the part of the appellant's counsel, the delay could not be condoned and the appellant could not be permitted to make up the deficiency by affixing Fifty Paisa stamp to the decree sheet. Against this order of the learned District Judge, the present appeal has been preferred.