BALUDAN Vs. RUGHNATH

JUDGEMENT

(1.) This is the plaintiffs second appeal against the decision of the learned Additional Commissioner, Jodhpur dated 11.9.58, who dismissed the appeal filed before him on the ground of limitation The facts in brief are that the appellants suit having been dismissed by the Assistant Collector on 21.3.57, an appeal was filed in the court of the Additional Commissioner on 29.4.57 without attaching a copy of the decree of the trial court. The office also reported that the appeal was filed without proper process fees. There upon the appellant made good the deficiency and the appeal was registered on 11.5.57 and the date for hearing was fixed for 25.7.57. The copy of the decree of the trial court was not filed upto 17.5.58 which was objected to by the counsel for the respondent on the ground that without it the appeal was not maintainable. On 19.5.58 the counsel for the appellant asked for time to put up an application for obtaining a copy of the decree. This was allowed and the court ordered that if the decree was not produced upto 17.6.58 necessary orders will be passed. On 6.6.58 a copy of the decree seems to have been filed before the court along with an application under sec. 5, of the Limitation Act for condonation of the intervening period. The learned lower court after hearing the arguments of the parties, came to the conclusion that the appeal was not properly presented under Order 41 Rule 1 and that there was no justification to give the appellant the benefit of sec. 5 of the Limitation Act. In result, the appeal was dismissed on the ground that the copy of the decree was filed after the expiry of the period of limitation. In appeal it has been urged before us that the appellants counsel remained under a mis -apprehension that in the present proceedings which started on a suit, a copy of the decree of the trial court was not essential and that on account of this mis -direction of this counsel the appellant failed to apply with in the prescribed period of limitation for a copy of the decree and submit the same along with the memorandum of appeal. It was pointed out that only a copy of the judgment was obtained and the same was filed within time and that, therefore, on account of this mis - understanding of the counsel the appellant need not be penalised. We are unable to accept this contention. Order 41 Rule 1 CPC lays down that it is absolutely essential that a memorandum of appeal should be accompanied by a copy of the decree appealed from. A memorandum of appeal not accompanied by such a copy is not a valid appeal and a court has no power to dispense with a copy of the decree. Where, however, a copy of the decree has not been filed the trend of decisions of the various High Courts is that the appellate court can invoke its power under sec. 5 of the Limitation Act and excuse the delay under it but in order to give jurisdiction to a court in such cases it is absolutely essential that an application for a copy of the decree must have been made before the expiry of the period of limitation and that there should be something on record to show that the appellant seeking indulgence of the court had taken steps as contemplated in law to obtain a copy of the decree from the court well in time. There is nothing in the law to support a proposition that even if an appellant did not take any step to obtain a copy of the decree within the prescribed period of limitation, he was entitled to the benefit of sec 5 of the Limitation Act. In fact, the court acting on such a proposition will be doing an act without jurisdiction. We are fortified in holding this view by relying on AIR 1955 Assam, 129 wherein it was held by P. Ram Labhiaya, J. - -"It is implicit in the expression obtaining in sec. 12(2)(of the Limitation Act) that some effort has to be made for obtaining the copy before the time requisite for obtaining it may be said to commence...... that if no application for a copy of the decree is made before the period prescribed for an appeal has run out, the appeal would be barred". Again in AIR 1957 Tripura, Page 11 as well as 1958 - -Punjab, Page 283 the same view was reaffirmed. In the present case the learned counsel for the appellants frankly conceded that he did not make any application for obtaining a copy of the decree within the prescribed period of limitation. The contention that the copy of the decree was not applied for on account of the mistake of the counsel, is also not maintainable. A mere mistake or ignorance of law by a counsel is not per se sufficient reason for asking the court to exercise its jurisdiction under sec. 5. There is nothing on record to suggest that this mistake was committed by the appellants legal adviser and that it was a bonafide one. The counsel, who had presented this appeal without a copy of the decree, was not examined by the appellant on this point. We cannot, therefore, in the circumstances agree with the learned counsel for the appellant that his client could not apply for a copy of the decree on account of a mistaken advice given by his counsel. In the circumstances, we are unable to take a different view from what the learned lower appellate court has taken in this case. Accordingly, the appeal shall stand dismissed.