PRITI PARIHAR Vs. KAILASH SINGH PARIHAR

JUDGEMENT

(1.) THIS is an appeal against the judgment and decree of the learned District Judge, Jodhpur dated January 4, 1977, by which he dissolved the marriage of the appellant Priti Parihar with respondent Kailash Singh. It comes today for decision of a preliminary point raised on behalf of the respondent Kailash Singh that the appeal was incompetent as a copy of the decree sheet had not been filed with the appeal within the period of limitation.

(2.) THE dates which are material for consideration in this connection are as follows: - (1) THE judgment under appeal was delivered on 4-1-1977. (2) THE appellant applied for a copy of the judgment only on 5-1-1977. (3) Copy was to be given on 6-1-1977. It was ready on 7-14977. (4) It was received by the appellant on 7-1-1977. (5) THE decree was signed on 18-1-1977. (6) Appeal was filed only with a copy of the judgment but without a copy of the decree on 27-1-1977. (7) THE appeal was listed for admission in the High Court on 2-2-1977. (8) Caveat was filed on behalf of the respondent and copies were given to him on 2-2-1977. (9) THE appellant applied for a copy of the decree on 7-2-1977. On that day the objection of the caveator was also filed in the High Court. (10) THE case was again listed for admission on 8-2-1977 on which date the preliminary objection was raised that the appeal was incompetent not being accompanied by a copy of the decree. (11) THE decree was filed on 10-2-1977 without any application or affidavit for condonation of delay and without any permission for filing the same. (12) An application for condonation of delay under sec. 5 of the Limitation Act was filed on 13-4-1977 but without any affidavit. (13) Affidavit in support of the application was filed on 12-7-1977.

(3.) THE learned counsel for the respondent on the other hand relies upon Kusumlata vs. Kapta Prasad (5) and contends that the proceedings under the Act are suits resulting in decrees within the meaning of sec. 2 (2) of the Civil Procedure Code THE provisions of the Civil Procedure Code regulates all proceedings under the Act subject to the special provisions thereof, THEre was nothing in section 23 of the Act which could deprive the decrees passed under the Act of the effect or of the meaning which the term 'a decree' has under sec. 2 (2) of the Civil Procedure Code.