LABHMAL Vs. LALCHAND

JUDGEMENT

(1.) THIS Is a special appeal under Section 18 (2) of the Rajasthan High Court ordinance, 1949 by leave of a Single Judge of this Court.

(2.) LABHMAL had a money decree against Lalchand, judgment-debtor for a sum of rs. 5,862/ -. By his application dated 12-7-1962 in the execution court, he prayed for the arrest and detention of the judgment-debtor in civil prison. On notice the respondent judgment-debtor opposed the application under Section 47 of the Code of Civil Procedure. After enquiry, the Civil Judge, Jodhpur ordered the judgment-debtor to be sent to civil prison for six months. In appeal against this order the learned District Judge held that in view of the proviso to Section 51 of the Code of civil Procedure, the judgment-debtor was not liable to arrest and detention in civil prison. He accordingly set aside the order of the execution court and allowed the appeal by his order dated 7th April, 1965.

(3.) THE decree-holder presented an appeal against this order on 12th July, 1965 on the last day of limitation in the High Court. The memorandum of appeal was accompanied only by a copy of the judgment. Copy of the order-sheet was not submitted. On 21-7-1965 it was pointed out by the office that the copy of the decree or the formal order against which the appeal was directed has not been submitted. The appellant then applied for a copy of the decree-sheet on 24-71965 and obtained the same from the court of District Judge, Jodhpur and submitted the same on the same day. The office then raised the objection that the appeal was barred by limitation. The appellant then made an application under section 5 of the Limitation Act and stated therein that no decree-sheet was required to be prepared under Order XX, Rule 6, Civil P. C. as the question decided was under Section 47, Civil P. C. It was also stated that no decree-sheet was prepared by the execution court and he believed that no decree-sheet was required to be prepared by the first appellate court. It was also submitted that he got the file of the appellate court inspected by his counsel on the next day and he came to know for the first time that the decree-sheet was prepared in that case. He applied for a copy and obtained the same. The learned single Judge held that a copy of the decree-sheet was required to be filed and the reasons given under section 5 of the Limitation Act were not sufficient for extending the limitation. He dismissed the appeal as time-barred. He, however granted leave to file special appeal.