BADRI NATH Vs. HARI BHAGAT

JUDGEMENT

(1.) THIS appeal is directed against the decision dated 12 -12 -1968 of the Collector, Udhampur, dismissing the appeal filed by the appellant against the judgment and decree dated 29 -4 -1968 passed by the Assistant Collector, Udhampur, (decreeing the respondents suit in so far as it related to the ejectment of the appellant from land measuring 19 kanals and 16 marlas situate in Village Kah Jagir, Tehsil, Udhampur) inter -alia on the ground that the appellant had not filed a copy of the decree passed by the Assistant Collector along with the memorandum of appeal or at any time thereafter within the period of limitation allowed by law and no cogent reason has been made out for allowing him to file the same during the course of arguments.

(2.) MR . Suri appearing on behalf of the appellant has urged that the first appeal against the decision of the trial court was filed before the Collector on 22 -5 -1968 and right upto 20 -11 -1968 no objection was raised either by the office of the Collector or by the opposite party to the effect that the memorandum of appeal not having been accompanied by a copy of the decree the appeal was not properly presented and was incompetent. The argument of the learned counsel is that the appeal having been admitted without a copy of the decree it could not have been dismissed subsequently on the ground that the memorandum of appeal was not accompanied by the requisite copy. He has further submitted that even assuming for the sake of argument that the appeal was not properly presented the lower appellate court ought to have condoned the delay under Section 5 of the Limitation Act. He has in support of his submissions relied upon the rulings reported in AIR 1956 Assam, 120, AIR 1955 NUC 2919 AIR 1961 Punjab, 8l AIR 1968 J&K, 19, AIR 1922 Lahore, 172 and AIR 1923 Madras, 482.

(3.) MR . D. D. Thakur, appearing for the respondent has on the other hand submitted that the provisions of Order 41 rule 1 of the Code of Civil Procedure are mandatory and the memorandum of appeal must be accompanied by a copy of the decree appealed against. He has further submitted that even the appellate court has no power to dispense with a copy of the decree and since the memorandum of appeal before the lower appellate court was not accompanied by a copy of trial court decree. the appeal was incompetent. He has in this connection referred me to a decision of the Supreme Court reported in AIR 1961 SC 832. He has further urged that even assuming that section 5 of the Limitation Act applies to appeals under the Tenancy Act, no sufficient reason for condonation of delay in filing a copy of the decree has been made out in the present case.