C SUNDARAM AIYAR Vs. RAJA RAJESWARA MUTHURAMALINGA, SETHUPATHI AVERGHAL THROUGH HIS AUTHORISED AGENT AND DEWAN RAO SAHIB STHIRUMALAI AIYANGAR

JUDGEMENT

(1.) This is an application to vacate an exparte order excusing the delay in re-presentation and to dismiss the second appeal with Costs.

(2.) The Second Appeal in which the Rajah of Ramnad is the appellant was filed in time but without a copy of the decree appealed against. The papers were returned for representation with a copy of the decree. When the copy of the decree was filed, the appeal was 53 days out of time as the papers were returned on the 6 of December 1918 and the decree was filed on the 16 of January 1919. On the 18 of January 1919 the papers were again returned with the remark that the appeal became out of time when the copy of the decree appealed against was filed and that an affidavit explaining the cause of the delay should be filed. On the 20th January 1922 the papers were again presented with an affidavit and orders were obtained from me on the same day excusing the delay. The petitioner who was served with notice of the appeal on the 15 of April 1922 has filed this application on the 13 November 1922 for setting aside the exparte order passed.

(3.) There can be little doubt that, though the second appeal was presented in time, there was no valid presentation because the memorandum of appeal was not accompanied by a copy of the decree appealed against. Order 41. Rule 1. is imperative and states that a memorandum of appeal shall be accompanied by a copy of the decree appealed against. In Sirikantha Roy V/s. Bipra Das (1919) 27 I.C.447, it was held that it was a condition precedent to there being a valid memorandum of appeal that it should be accompanied by a copy of the decree appealed from. The same view was taken in Binapani Bibi V/s. Sashibhushan (1912) 16 C.L.J. 133; Khirodi Sundari Debt V/s. Jnanendra Nath Pal Chaudhuri (1901) 6 C.W.N. 283; and Chamela Kuar V/s. Amir Khan I.L.R. 16 All. 77. In Dand Bahadur Singh V/s. Deo Nandan Prosad (1913) 20 I.C. 513, it was held that where an exparte order is passed excusing the delay, it is open to the other party to apply to have it set aside. There can be little doubt that Courts have power to excuse the delay in the presentation of a copy of the decree appealed against and I need only refer to Binapani V/s. Sashibhusan (1912) 16 C.L.J. 133 Hem Chandra V/s. Jadab Chandra (1912)46 C.L.J.116 and Prosonno Kumari V/s. Ram Chandra (1912) 17 C.L.J 66 where it has been held that it is open to the Court to pass an order that a certified copy of a decree be received and attached to the memorandum of appeal if it is satisfied that the discretion vested in it under Section 5 of the Limitation Act should be exercised in favour of the appellant.