P L DUA Vs. HAR DUTT SHARMA

JUDGEMENT

(1.) IN this revision petition on objection at the time of admission was raised by Mr. S. P. Gupta appearing for the respondent that the first appellate court having condoned the delay u/s 5 of the Limitation Act has held the appeal to be within time, Sec. 115 of the Civil Pre Code Could not be invoked by the petitioners and the revision was incompetent. He relied of an authority of the Supreme Court viz: Mahindra Land and Building Corporation Ltd., Vs. Bhutnath Banerjee AIR 1964 SC 1336 He also relied on sec. 115 of the Code of the Civil Procedure at amended by Coda of Civil Procedure (Amendment) Act. 1983. It is necessary to give brief facts of the case as revealed from the record.

(2.) AT the time of the filing of the appeal before the first appellate court on 1 -4 -1983, an application came to be filed by the respondent (who was appellant before the first appellate court) that production of Copy of judgment and decree -sheet be dispensed with and the appeal be entertained without it and the stay application considered. The appeal was admitted by the first appellate court and interim stay was also granted. After about more than a year i.e. on 24 -5 -1984 the respondent herein made an application before the first appellate court to the effect that the copy of the judgment and decree sheet be accepted. It was contended in the application that on the date of filing of the appeal copy of the decree -sheet could not be produced as it was not prepare on that dated However as to when the decree -sheet was prepared is not stated. The respondent appears to have applied for the copy of the decree sheet and the judgment on 14 -5 -1984 On 16 -5 -1984 the same was prepared by the Copying Branch and it was delivered to the respondent on 18.5.1984. The application was made on 24 -5 -984. Accepting the application of the respondent, the first appellate court has held that production of copies of the decree sheet and judgment after a delay of more than a year is condoned and the appeal is treated within time. In this background Mr. Gupta submits that this is a simple case of condonation of delay in filing the appeal and raises an objection noted above.

(3.) THE first appellate court has in fact held that the appeal which has been filed in violation of the mandate contained in order 41 Rule 1 of the Code of Civil Procedure is competent and by extending the period of limitation, it has assumed the jurisdiction to hear the said appeal. Had it been a simple case of condonation of delay, probably the argument of Mr. Gupta could be held good. There is something more which meets the eye. Under order 41 Rule 1 of the Code of Civil procedure an appeal is to be accompanied by a copy of the decree sheet and Judgment against which the appeal is preferred. In respect of copy of the judgment court has power to dispense with the production of the same but in respect of copy of the decree sheet no power is vested in the court to dispense with the same. Of course if the decree -sheet is not prepared by the trial court no fault can be found with the appeal because in that case the appellant cannot be held guilty of non -production of the copy of the decree -sheet. But if a decree -sheet is prepared and copy whereof is not obtained within the period of limitation and is not produced within the period of limitation, has the first appellate court power to condone the delay in producing the same which admittedly was produced on 24 -5 -1984. I am afraid I cannot agree with the contention raised by Mr. Gupta and hold the revision petition incompetent without considering the matter at length. Mr. Gupta has cited 1964 S. C. 1336 (supra) in support of his contention. Their Lordships of the Supreme Court while dealing with a matter in which abatement of a suit was sought to be set aside on the ground of late filing of an application for bringing on record the legal representatives of the deceased appellant. In that context their Lordship; had made observation that considering the delay in filing the application on consideration of facts could not be interfered with by the High Court and the appellant had proved sufficient cause for not making an application for bringing the legal representatives on record and their were grounds for setting aside the abatement Therefore, it reversed the judgment of the Calcutta High Court On principle this proposition laid down by the Supreme Court cannot be disputed but this authority hardly applies to the facts of the present case. In an earlier judgment viz Jagat Dhish Bhargava Vs. Jawahar Lal Bhargave and others, AIR 1961 SC 832, Gagendrasadkar J as his Lordship then was, has held: "The requirement that certified copy of the decree should be filed alongwith the memorandum of appeal is mandatory, and in the absence of the decree the filing of the appeal would be incomplete defective and incompetent." However, the Supreme Court held that in case decree -sheet is not prepared by the court below against which appeal is preferred when the appeal is filed in the appellate court and it is shown that application for obtaining a decree -sheet was made by the appellant before the trial court for obtaining a certified copy of the decree, all that can be said was that she filing of the appeal was premature, and the appeal should be returned to the appellant for presenting it with a copy of the decree -sheet. If by an oversight the appeal is admitted, the appellate court should make a direction that the appellant should produce a certified copy of the decree as soon as it is supplied to him and the appellate court can make a direction to the trial court to draw up the decree. The only exception to the mandate contained in Order 41 Rule 1 of the Code of Civil Procedure is that the appellant should not be held responsible for non -filing of the copy of decree -sheet and if it is the mistake of the trial court which has not drawn up the decree, the appellant cannot be punished for it. In all other cases appeal is to be held to be incompetent and defective if it is not accompanied by a copy of the decree -sheet. The appellate court has no power to dispense with the production of the decree -sheet. It may have power to dispense with the production of the copy of the judgment.