....3. From perusal of the copy of the order sheet it appears that on 18.03.2008 a memo of appeal was filed by the respondent which was registered as Title Appeal No.5/08. After the Court fee stamp was filed and stamp reporting was made the appeal was listed on 31.03.2008. On 31.03.2008 the appellate Court condoned the delay in filing the appeal and thereafter admitted the appeal and directing to file process fee.
4. Prima facie either the District Judge is not aware of the procedure to be followed before condonation of delay or he has no elementary knowledge of law. It is well settled that right of appeal is a creature of statute. If the appeal is not filed within time provided in law, the appeal becomes barred and a right accrued to the other party. It is therefore, mandatory for the appellate Court to issue notice and hear the other side before passing the order condoning the delay in filing the appeal. A person in whose favour right accrued must be given reasonable opportunity of hearing in the limitation matter. The impugned order, therefore, cannot be sustained in law.
In the High Court of Judicature at Madras
Delivered on : 26.10.2015
Coram:
Mr.Justice S.MANIKUMAR
and
Mr.Justice M.VENUGOPAL
A.S.SR.No.20590 of 2014
and M.P.No.1 of 2015
in A.S.SR.No.20590 of 2014
S.Venkataraman Vs. K.S.Balakrishnan (Babu)
Citation: 2016-1-LW245
The Petitioner/Defendant/Appellant has projected the present Miscellaneous Petition under Or.41 R.3A of the Civil Procedure Code , praying for passing of an order by this Court to condone the delay of 18 days in filing the Appeal in A.S.SR.No.20590 of 2014 as against the Judgment and Decree dated 26.02.2010 in O.S.No.150 of 2005 passed by the Learned Additional District Judge/Fast Track Court-III, Coimbatore.
2.The Averments in Miscellaneous Petition (Filed by the Petitioner/Defendant/Appellant):
a)The entire suit was misconceived, devoid of merits and hinged upon two documents which were forged and fabricated by the Respondents/Plaintiffs to support their case. In fact, the forgery was demonstrated before the lower Court. As a matter of fact, the trial Court was misled by the said forged documents and passed a judgment in the suit in O.S.No.150 of 2005 on 26.02.2010, citing legally untenable and unacceptable reasons. Hence, the present Appeal is filed.
b)The Petitioner/Defendant had applied for certified copies of the judgment through the Learned counsel on 03.03.2010 itself, and the same was called for on 02.06.2010 and the necessary fee was deposited on 04.06.2010 itself but the copy was made ready only on 20.11.2013 and owing to the inordinate delay, the readiness was known only later and the copy was finally delivered on 07.02.2014. Immediately, after receiving the same, the Petitioner came to Chennai, approached the Learned counsel on record and instructed them to prefer an Appeal. The Learned counsels advised the Petitioner to bring certain vital papers to prefer the Appeal, since it took several days to make search and bring the same, there had occasioned the delay.
c)The Petitioner came to know that the Respondents/Plaintiffs had filed Executive Petition to execute the Decree passed in O.S.No.150 of 2005 dated 26.02.2010. In fact, the Judgment and Decree of the trial Court in O.S.No.150 of 2005 are erroneous and based on misconceived. Under these circumstances, the delay of 18 days in preferring the instant Appeal may be condoned.
3.The Gist of counter (Filed by the Respondents/Plaintiffs):
i)The Petitioner knowingly and wantonly suppressed very many material facts. As such, the Miscellaneous Petition suffers from the principle of 'suppressio veri suggesio falsi' and on this ground alone, the petition is to be dismissed in limine. Further, the Petitioner/Appellant had filed a copy application in C.A.No.514 of 2010, in which, the judgment and original decree were received by the Copy Section of the District Court, Coimbatore on 31.05.2010 and that copy papers were called for on 02.06.2010. As a matter of fact, the Petitioner/Appellant had deposited the necessary copy papers on 04.06.2010 and further that, the copy papers were made ready on 21.06.2010. Finally, the Petitioner/Appellant received the certified copy of the judgment and decree of the main suit on 21.06.2010 itself and this fact can very well be seen from the 'A Register' maintained by the Copy Section of the District Court, Coimbatore.
ii)Moreover, the preliminary decree for Rs.80,26,830/- was passed on 26.02.2010 and the typographical error in the said decree was modified to Rs.92,64,973/-. The Respondents/Plaintiffs had received the said certified copy of the 'Judgment and Decree' in the year 2010 itself and they had received the same under Xerox Copy Application No.2191 of 2010. Also, after passing of 'Preliminary Decree', the Respondents/Plaintiffs had received the copy of 'Judgment and Decree' dated 21.06.2010 under Copy Application No.601/2010 and 625/2010 and again received the copy of the Judgment and Preliminary Decree on 19.02.2013 under copy Application No.1087 of 2010. The Respondents/Plaintiffs received the copy of 'Final Decree' on 01.08.2012 in Copy Application No.1255 of 2012 for filing the same into Registrar's office and also to file the Execution Petition. Therefore, the 'Judgment and Decree' were available in the trial Court itself from the date of its Judgment till date. Added further, they had also received the certified copies of 'Depositions', 'Fair and Final Orders' in Interlocutory Applications in the Suit under various copy applications.
iii)The Respondents/Plaintiffs filed Execution Petition in E.P.No.21 of 2012 on 03.09.2012 in which the Petitioner/Appellant/Defendant had entered appearance and filed his counter statement. Later, several petitions were filed in the above Execution Petition and that the Petitioner/Appellant had also appeared and filed his counter statement in all the aforesaid proceedings. Finally, mortgaged property was sold in the Court auction held on 02.06.2014 and subsequently, the sale was also confirmed on 05.11.2014. In fact, (the Executing Court/Learned Additional District Judge No.V, Coimbatore) called upon them to pay the Sale Certificate Charges.
iv)The Petitioner/Appellant/Defendant on receiving the Judgment and Decree dated 21.06.2010 under Copy Application No.514 of 2010, had purposely and wantonly ignored to file the 'Appeal' in time. The limitation to prefer an 'Appeal' starts from 21.06.2010. But the Petitioner/Appellant/Defendant had failed to prefer the Appeal for the past five years and remained as a silent spectator. In the meanwhile, as per the 'Final Decree', the 'Mortgaged Property' was sold out and the sale was also confirmed and if the Petitioner/Appellant/Defendant is allowed to reopen the preliminary decree, it will certainly lead to so many complications and multiplicity of proceedings besides causing much hardships and loss of money to them.
v)The Petitioner/Appellant/Defendant had failed to explain in M.P.No.1 of 2015 the reasons for the long delay in filing the Appeal in question. Also, the Petitioner/Appellant nowhere had stated in para 5 of his affidavit in M.P.No.1 of 2015 about the vital papers sought for by his Learned counsel to prefer an 'Appeal' and what was the relevancy of those vital papers. As such, it was only a general and vague statement which is not legally valid one and the same could not be treated as proper and fair explanation. In fact, the Petitioner/Appellant had not only suppressed the real fact but very cleverly stated in the petition that there is only a delay of 18 days. However, the delay is more than five years and not property accounted for. As such, the same was not explained in an acceptable manner as required by Law.
The Contentions of the Petitioner/Appellant:
4.The Learned Senior counsel for the Petitioner/Appellant/Defendant submits that Or.41 R.1 of the Civil Procedure Code speaks of Form of Appeal-What to accompany memorandum and the same runs as follows:1)Every Appeal shall be preferred in the form of a memorandum signed by the Appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf the memorandum shall be accompanied by a copy of the [substituted for decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded by CPC (Amendment) Act 46 of 1999, w.e.f. 01.07.2002]:
[(Inserted by CPC (Amendment) Act 104 of 1976, w.e.f. 01.02.1977) Provided that where two or more suits have been tried together and a common judgment has been delivered therefor and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the Appellate Court may dispense with the filing of more than one copy of the judgment.]
5.The Learned Senior counsel for the Petitioner/Appellant/Defendant refers to the Madras High Court amendment to Order 41 Rule A of Appeals to the High Court from Original Decrees of Sub Ordinate Courts which runs as under:
1.The rules contained in O.41 shall apply to appeals in the High Court of Judicature at Madras with the modifications contained in this order.
2.(1)The memorandum of appeal shall be accompanied by twelve printed copies of the judgment, one of such copies being a certified copy, the prescribed fees for service of notice of appeal and the receipt of the accountant of the Court for the sum prescribed by the rules of Court.
2)Notwithstanding anything contained in R.22 of O.41 the period prescribed for entry of appearance by the respondent and filing by him of memorandum of cross objections, if any, shall, unless otherwise ordered, be thirty days from the service of notice upon him.
6.The Learned Senior counsel for the Petitioner/Appellant/Defendant refers to Order 2 (under the head of Offices to Court) Rules 14 and 16 of the Madras High Court Appellate Side Rules, 1965 which runs as follows:
14.To extend the period mentioned in Order XLI-A, Rule 2 of the Code as follows:
i)if the respondent resides beyond the limits of Tamil Nadu but within India to not more than eight weeks.
ii)if the respondent resides outside India to not more than ten weeks.
16.To dispense with service of notice on respondents under the proviso to Order XLI, Rule 14(1) of the Code on an application by an appellant or petitioner.
7.A reading of Or.2 R.1 of the Madras High Court Appellate Side Rules, 1965 enjoins that the power of authority which under these or other rules or the Practice of the Court are exercisable by the Registrar, may be exercised by the Deputy Registrar or Assistant Registrar of the Appellate side or such other officers as the Chief Justice may be specified. The Chief Justice may, by general or special order, specify the power and authority exercisable by such officers.
8.Continuing further, the Learned Senior counsel for the Petitioner/Appellant/Defendant refers to Order IV Rule 14 to the Madras High Court, Appellate Side Rules which reads as follows:
APPEALS AGAINST ORIGINAL DECREES OF SUBORDINATE COURTS
R.14. Every memorandum of appeal from an original decree of a subordinate court shall be accompanied by -
(1) as many clear authenticated copies on plain paper of the memorandum of appeal as there are respondents to be served, together with another such copy for the court record;
(2) the particulars for service of notices on the respondents set out in Form No.2 of the Schedule to these rules; and
(3) the fees prescribed for service of such notices on the respondents
(4) such other papers as are referred to in Order XLI of Order XLI-A of Code.
9.The Learned Senior counsel for the Petitioner/Appellant/Defendant urges before this Court that the Petitioner/Appellant/Defendant had applied for the printed copy of the Fair judgment in O.S.No.150 of 2005 dated 26.02.2010 vide C.A.No.514 of 2010 and in this regard, the Application was made on 03.03.2010; 'Printing Charges' were called for on 02.06.2010 and deposited on 04.06.2010; the copy was made ready on 20.11.2003 and the Printed Copy was delivered on 07.12.2014.
10.The Learned Senior counsel for the Petitioner/Appellant/Defendant projects an argument that the Petitioner/Appellant/Defendant has filed the present Appeal A.S.SR.No.20590 of 2014 based on the printed copy of Judgment in O.S.No.150 of 2005 on the file of the trial Court and that the printed copy of the Judgment so given to the Petitioner/Appellant/Defendant in O.S.150 of 2005 is the copy duly certified by the Superintendent/Concerned Officer of the Learned I Additional District Judge, Fast Track Court-III, Coimbatore.
11.At this stage, the Learned Senior counsel for the Appellant contends that although the Petitioner/Appellant/Defendant has not filed the present Appeal with the Certified Copy of Judgment and Decree in O.S.No.150 of 2005 dated 26.02.2010 (obtainted either in Non Judicial Stamp papers or the xerox copies of the same), yet the Petitioner/Appellant/Defendant has filed the instant Appeal before this Court with a delay of 18 days and that too with that of filing of printed copy of judgment dated 26.02.2010 in O.S.No.150 of 2005 and the same being certified by the Competent Officer of the trial Court and hence, the present Appeal filed in AS.SR.No.20590 of 2014 before this Court is perfectly valid and maintainable in the eye of Law.
12.The Learned Senior counsel for the Petitioner/Appellant/Defendant cites the decision of this Court Panjam Thirumala Reddi V. C.K.Anavemareddi and others reported in AIR 1934 (Mad) at pages 306 & 307 whereby and whereunder it is observed and held as follows:
It must be held that the time requisite in S.12 of the Act is the time beyond the appellant's control occupied in obtaining the copy which accompanies the memorandum of appeal, and not an ideal lesser period which might have been occupied if the application for copy had been filed at some other date .
13.He also relies on the decision of the Hon'ble Supreme Court Additional Collector of Customs, Calcutta and another V. M/s Best and Co., reported in AIR 1966 Supreme Court 1713 and at Special pages 1715 to 1718 (V 53 C 341) (From Calcutta) wherein at paragraphs 6 to 12, it is observed and held as under:
6.The question for determination is whether the application for leave to appeal was barred by limitation and the petitioners were not entitled under S.12(2) of the Limitation Act to exclude the time taken in obtaining the certified copy of the said order. Section 12(2) provides that in computing the period of limitation for an appeal or application for leave to appeal, the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised shall be excluded. Similarly, under sub-section 8 where an application is made for leave to appeal, from a decree or order, the time requisite for obtaining a copy of the judgment on which the decree or an order is founded shall also be excluded. On a plain reading of these sub-sections, it is clear that the time for obtaining the certified copy of both the judgment and the decree or order as the case may be, must be excluded while computing the period of limitation. The object of the exclusion is to enable the person desiring to appeal to consider the terms of the decree, judgment and order before he decides to launch a further proceeding in respect of it.
7.Two views were, however, canvassed before us on the construction of S.12. One was that the right of exclusion of time is qualified by the words "time requisite for obtaining a copy of the decree, sentence or order" in sub-Section 2. Therefore, if an application for leave to appeal does not require a certified copy of the order in question to be annexed to the application, it is not possible to say that the time required for obtaining such a copy was requisite. In such cases the time in obtaining the copy would not be requisite time and consequently the applicant would not be entitled to exclude the time taken in obtaining the certified copy of the order. Certain decisions of some of the High Courts have also taken the view that such an applicant would not be entitled to the benefit of the sub-section where a copy of the decree, judgment or order is not actually annexed to the application or the memorandum of appeal. The other view is that sub-ss.2 and 3 of S.12 enact the rule of exclusion as a positive direction. The object of the sub-section being to afford a party opportunity to consider his position even where a certified copy of the judgment gives all the necessary information enabling the party to decide to proceed further or not, he would nevertheless be entitled to exclude the time for obtaining the certified copy of the decree or order. It has been held in some decisions that even in cases where it is not necessary to prepare a formal order, if such an order is prepared, the party would be entitled to the benefit of exclusion of time taken in preparing and furnishing a copy thereof where it is applied for.
8.Counsel for the respondents relied on the first view and argued that though the petitioners applied for certified copies of both the judgment and the order, they were at best entitled to exclude the time for obtaining the copy of the judgment as they had annexed such a copy but not to the exclusion of time in obtaining the latter. He contended that though the petitioners applied also for the copy of the said order it was not necessary for them to annex it to their application and in fact though it was applied for and obtained it was not actually annexed. That being the position and the application for leave to appeal being competent without annexing either the certified copy of the judgment or of the order under the rules of the High Court of Calcutta it would not be possible to say that the time for obtaining the copy was time for something that was requisite and therefore that time could not be excluded. He also argued that the rules of the High Court of Calcutta not only did not require such a party to annex a copy of the order but the prescribed form for such an application was mandatory in language and was a provision to the contrary. He therefore argued that there was a double reason for the petitioners not being entitled to the benefit of the exclusion.
9.We shall deal with the second contention first as it is capable of an easy disposal. Rule 4, in Chapter XXXIIIA of the Rules of the High Court requires that an application for leave to appeal shall be made by a notice of motion before the appellate court and shall be presented in the prescribed form, viz., Form No. 3. That form does not require that a certified copy of the judgment and/or decree or order need be annexed to such an application. The rule and the form thus enable a party to file an application for a certificate without annexing either a copy of a judgment or a copy of an order. But that does not mean that the rule and the form lay down any mandatory direction that a copy either of the order or of the judgment shall not be annexed. The rule and the form thus do not assist or further the argument urged by counsel for the respondents.
10.In regard to his first contention the learned counsel for the respondents urged that sub-ss. 2 and 3 of S.12 would not apply where it is not necessary to annex a copy of the judgment or order. For, in such a case it is not possible to say that the time taken in obtaining such a copy is time "requisite" within the meaning of that expression in sub-s.2 of S.12. Exclusion of the time required in obtaining a copy of the order therefore can only be allowed if and only if, such a copy is either required to be annexed or in any event is in fact annexed to the petition for leave to appeal. The question is: is the provision for exclusion of time in S.12(2) dependent upon whether the rules of a court permit a petitioner to file an application for leave with or without a copy of the judgment or order or decree and also where the rules so permit whether he has annexed such a copy to his application? In Jijibhoy v. N.Surty V.T.S.Chettyar Firm, 55 Ind App 161: (AIR 1928 PC 103) the Privy Council after considering various decisions of different High Courts held that (1) the preponderance of practice in India was that time for obtaining a copy of the judgment or decree or order should be excluded even though under the rules of the Court it was not necessary to obtain a copy of the judgment or decree to be filed with the memorandum of appeal, and (2) that on a grammatical construction of S.12(2), the subsection plainly lays down a positive direction for exclusion of time without any reference to the Code of Civil Procedure or any other Act. In that case the appellant had brought a suit on the original side of the High Court of Rangoon. That suit was dismissed on January 8, 1925. On April 28, he filed his memorandum of appeal before the appellate side of the High Court. A question arose whether the appeal was filed in time. The appellant tried to explain the delay and prayed for extension of time but the court refused to condone the delay and dismissed the appeal. The appellant then filed an application for review and it was then that he for the first time invoked sub-ss. 2 and 3 of S.12 contending that the time taken in obtaining the copy of the order and of the judgment should be excluded. The Court upheld the contention of the respondents that such time, could not be excluded as under the rules of that High Court the memorandum of appeal could be filed without annexing thereto the copy of the judgment or the order. This view was challenged in appeal before the Privy Council. The rule on which the respondents in that case relied provided that a memorandum of appeal and an application for revision should be accompanied by certified copies of the judgment and decree unless they were dispensed with by the court. That rule however had a proviso which was in the terms following:-
"Provided that a memorandum of appeal against a decree or order of the High Court in the exercise of the original jurisdiction may be presented without a certified copy of the decree or formal order accompanying it.
Relying on this rule, it was contended that inasmuch as the proviso enables the appellant to file his appeal without a copy of the order or judgment the appellant would not be entitled to exclusion of time as such time, would not be "requisite" time within the meaning of S.12(2) and the High Court was therefore right in dismissing the appeal as being beyond time. The Privy Council disagreed with this contention holding that S.12 contained a positive direction for exclusion of time and that such direction applied irrespective of whether the rules permitted the filing of an appeal or an application without annexing the copy of the order or judgment. The Privy Council emphasised that the positive direction contained in S.12 was unconditional inasmuch as there was no reference therein to the Code of Civil Procedure and the section did not say why the time was to be excluded. At page170 of the report (Ind app): (at P.105 of AIR) the Privy Council observed:
"If, indeed, it could be shown that in some particular class of cases there could be no object in obtaining the two documents, an argument might be offered that no time could be requisite for obtaining something not requisite. But this is not so. The decree may be complicated, and it may be open to draw it up in two different ways, and the practitioner may well want to see its form before attacking it by his memorandum of appeal. As to the judgment, no doubt when the case does not come from up country, the practitioner will have heard it delivered, but he may not carry all the points of a long judgment in his memory, and as 'Sir John Edge says, the Legislature may not wish him to hurry to make a decision till he has well considered it."
11.These observations were an answer to the contention that no time could be requisite for obtaining something not requisite. The legislature allowed the exclusion even though the rules of a Court might not require a copy to be annexed to the memorandum of appeal for a party who intends to file an appeal may desire to examine the decree or the judgment before he launches a further proceeding. Therefore, the exclusion was allowed irrespective of tile rules of a court which permit a party to file an appeal without annexing a certified copy of the judgment or decree or order.
12. In imperial Bucket Co. V Smt. Bhagwati Basak AIR 1954 Cal 520 there are however observations to the effect that an appellant will have the benefit of S.12 in a case where he has annexed to the memorandum of appeal a certified copy of the judgment appealed from even though by the statute under which the appeal is filed, no certified copy of the order appealed from is required. This decision does not necessarily mean that where a copy is applied for and obtained but not annexed the time in obtaining it was for a thing not requisite. As the Privy Council observed, a party might like to examine the judgment or the decree or the order before he challenged it in a higher forum. Though the judgment states that such time would be excluded where the copy is annexed, it does not lay down that there can be no exclusion of time where it is not annexed. But in Gangaram v. Beharilal, AIR 1952 Bhopal 39 a view has been taken that sub-ss. 2 and 3 of S.12 would only be attracted when a copy of the judgment or decree or order appealed from accompanies the application for review. This view is not in consonance with and in fact is contrary to the interpretation of S.12 by the Privy Council in Surty's Case, 55 Ind.App. 161: (AIR 1928 P.C.103) (supra) the view of the High Courts of Bombay, Calcutta and Allahabad as expressed in Haji Hassum v. Noor Mohammad, (1904) ILR 28 Bom 643, Kalipada v. Shekharbasini Dasya, 24 Cal LJ 235: (AIR 1917 Cal 320) and Waid Ali Shah V. Nawal Kishore, (1895) ILR 17 All 213 was that an appellant was entitled to exclusion of time in obtaining a copy of a judgment and decree even though the rules permit him to file the appeal without annexing such a copy. The view contended for on behalf of the respondents is thus not only contrary to the decision of the Privy Council but if accepted would lead to a somewhat surprising result, viz., that if the petitioners had waited till the copy of the order was furnished to them, their application would have been in time or if they had withdrawn their application and filed a fresh one or amended their application and annexed the copy of the order such a fresh application, or such amended application, which in its unamended form was in their view time barred, would have been well within the period of limitation. In our view such a result is not to be contemplated. As the Privy Council has laid down the provisions of S.12(2) and (3) are a positive direction excluding the time taken in obtaining a copy of the judgment and decree or order as the case may be and those provisions are irrespective of the Code of Civil Procedure or the rules made by a Court under S.122 of the Code. Such rules if they permit a memorandum of appeal to be filed without annexing thereto a copy of the judgment or decree or order confer a privilege on a would be appellant but do not govern the positive direction contained in S.12. The High Court in this view, therefore, was not right in dismissing the petitioners' application for leave to appeal on the ground that it was barred by limitation.
14.The Learned Senior counsel for the Petitioner/Appellant/Defendant refers to the following decisions:
a)In the decision of the Hon'ble Supreme Court State of U.P. V. Maharaja Narain and others reported in AIR 1968 Supreme Court at page 960 (V 55 C 191), Criminal Appeal No.122 of 1965, it is observed and held as follows:
What is deductible under S.12(2) is not the minimum time within which a copy of the order appealed against could have been obtaained. It must be remembered that sub-s (2) of S.12 enlarges the period of limitation prescribed under entry 157 of schedule I. That section permits the appellant to deduct from the time taken for filing the appeal, the time required for obtaining the copy of the order appealed from and not any lesser period which might have been occupied if the application for copy had been filed at some other date. That section lays no obligation on the appellant to be prompt in his application for a copy of the order. A plain reading of S.12(2) shows that in computing the period of limitation prescribed for an appeal, the day on which the judgment or order complained of was pronounced and the time taken by the court to make available the copy applied for, have to be excluded, There is no justification for restricting the scope of that provision. AIR 1965 All 443, Reversed. AIR 1935 Lah. 682, Overruled. AIR 1934 Mad 306 (FB) and AIR 1950 All 486 and AIR 1953 TC 552 and AIR 19602 Madh Pra 140, Approved AIR 1922 PC 352 and AIR 1928 PC 103. Ref. (Para 6)
If the appellate courts are required to find out in every appeal filed before them the minimum time required for obtaining a copy of the order appealed from, it would be unworkable. In that event every time an appeal is filed, the court not only will have to see whether the appeal is in time on the basis of the information available from the copy of the order filed along with memorandum of appeal but it must go further and hold an enquiry whether any other copy had been made available to the appellant and if so what was the time taken by the court to make available that copy. This would lead to a great deal of confusion and enquries into the alleged laches or dilatoriness in respect not of copies produced with the memorandum of appeal but about other copies which he might have got and used for other purposes with which the court has nothing to do.
b)In the Full Bench decision of this Court State of Madras rep. By Spl. Tahsilar Regional Engineering College Scheme, Tiruchirapalli V. Muthurethinam and others in AIR 1970 MADRAS 353 (V 57 C 104) FULL BENCH and at Special pages 354 to 357 whereby and whereunder at paragraphs 12 to 21, it is observed as follows:
....12. The question we are called upon to answer is whether the benefit of exclusion of time under S.12(2) of the Indian Limitation Act, 1908 is available to each of the appeals, which are all directed by the same appellant against a common judgment disposing of together certain connected land acquisition references, or, to only one of the appeals in which alone certified copies of the judgment and decree were filed along with the related memorandum of appeal. The common judgment of the court below was dated 2-12-1965 and an application for a copy thereof and of the decree was made on 06.12.1965. The copies of the judgment and decree were delivered to the appellant on 15.04.1966 and the appeals were filed on 04-07-1966.
13. There is no dispute that so far as the appeal in which the copies of the judgment and decree were filed is concerned, it was in time, having regard to the time to be excluded in furnishing the copies. We may mention that certified copies of the decree were filed in each of the appeals, but, applications were filed to dispense with production of copies of the judgment in the appeals except in the main one in which, as we said, they had been produced. These applications have since been allowed. On the assumption that these appeals, except the main one, were out of time, applications also were taken out for excusing the delay in filing them. Evidently this procedure was followed because of State of Madras V. Md.Sirajudeen, 1966-2Mad LJ 380 = (AIR 1967, Mad 122) which was decided by two of us constituting a Division Bench. Venkataraman and Ramamurti JJ. before whom the applications went up for disposal, being of the view that 1966-2 MAD LJ 380 = (AIR 1967 Mad 122) required reconsideration they have referred the matter to a Full Bench for an authoritative decision on the point, to wit, whether in the appeals arising from a common judgment disposing of a batch of suits a party will be entitled to exclusion of time under S.12 of the Limitation Act in respect of all the appeals, though he had obtained only one set of copies of judgment.
14. 1966-2 Mad LJ 380 = (AIR 1967 Mad 122) expressed the view that the time for preferring an appeal should be calculated on the endorsements on the copies of judgment produced in each of the said appeals, even if they were filed in a batch and in one of them such copies were produced and in the rest their production was dispensed with. At the same time it was felt in that case that delay, in such cases might, however, be excused in the circumstances. The correctness of this view has been examined by us and we are of opinion that, on a proper construction of S.12(2) and (3) and of the principles evolved by some of the decided cases relevant to the question, the view in 1966-2 Mad LJ 380= (AIR 1967 MAD 122) does require modification.
15. S.3 of the Limitation Act directs that any appeal preferred after expiry of the period of limitation prescribed therefor by the First Schedule should be dismissed. Part III contains the procedure for computation of the period of limitation, and S.12 allows exclusion of time in the computation. In computing time the day from which the period is to be reckoned has to be excluded. Sub-sec (2), which is in point here, is:
In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for leave to appeal and an application of a review of judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded
The next sub-section says that where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of the judgment, on which it is founded, shall also be excluded. On a careful reading of these provisions it is evident that they are not in any way qualified or limited in their application by anything outside these provisions. The direction by those provisions is that in computing time for purposes of exclusion the day on which the judgment appealed against was pronounced and the time required for obtaining a copy of the decree as well as of the judgment should be taken into account for exclusion. The provisions are silent as to who should apply for such copies or whether they should at all be filed along with the appeals. But Order XLI, Rule 1 CPC, as in force in this State, requires that every memorandum of appeal should be accompanied by a copy of the decree appealed from and also a copy of the judgment. This requisite, except as to the decree, is not an inflexible rule, as the court has the power to dispense with the production of copies of the judgment. This provision of the Code, however, is obviously unrelated to S.12 of the Limitation Act, and cannot be understood, in our view, as enjoining that exclusion for computation of time for limitation for an appeal should only be based on the endorsements in the certified copies of the judgment necessarily to be filed therewith. O.XLI, Rule 1 C.P.Code is limited to the procedure in filing an appeal and is concerned with the form of the memorandum of appeal and the enclosures thereto. That rule has nothing to do with the exclusion of time which is entirely dependent on S.12 of the Limitation Act. The result of this view of the scope of S.12 of the Limitation Act and O.XLI, Rule 1 is that there is no interdependence or connection between them so that whether or not an appellant is entitled to exclusion of time will not depend upon any requisition for filing of copies of judgment and decree in an appeal, though of course, exclusion of time has to be determined in the light of the endorsements on the certified copy of the judgment or the decree, or both, as the case may be, as to the time taken in supplying them.
16.Where, therefore, several appeals arise from a common judgment and they have been filed by the same party, there is nothing to prevent him from relying on a copy of the judgment or decree, or both, filed in only one of them, for exclusion of time in computing limitation for each of such appeals. For that purpose the party concerned is not required by S.12(2) to file copies of the judgment and decree along with the memoranda of any of the appeals. That requisite, as we said, flows not from the provisions of the Limitation Act but from the procedure prescribed by O.XLI, Rule 1 CPC. The idea in allowing exclusion of time for computation of limitation is to allow the party concerned time to consider whether he is called upon to file an appeal. If that is borne in mind, we do not see why a copy of the Judgment and decree filed in one of the appeals cannot be made use of for purposes of getting exclusion of time in the other connected appeals filed along with it simultaneously by the same party. If in such appeals it is shown with reference to the endorsements on the copies of the judgments and decrees that by the exclusion of time warranted by them the appeals are in time, the requirement of the Limitation Act is satisfied. On that view no question of limitation will, therefore, arise in the appeals. Dispensation of production of copies of the judgments is called for only because of O.XLI, Rule 1 CPC.
17. The view we have just expressed, which is based on a reading of S.12, is also, as it seems to us, in consonance with the decided cases. Jijibhoy Surty v. T.S.Chettiar, AIR 1928 PC 103 though not concerned with appeals from a common judgment laid down, on a construction of S.12(2) of the Limitation Act, that this Section was not qualified by the Civil Procedure Code or any other Act, but contained an independent direction for exclusion of time. The Privy Council there rejected a contention that because no enclosure was required by the procedural rules to be filed of copies of the judgment and decree along with a memorandum of appeal, it followed that limitation should be computed without exclusion of time taken for obtaining those copies. Dealing with that question, the Board observed :-
Their Lordships have now to return to the grammatical construction of the Act, and they find plain words directing that the time requisite for obtaining the two documents is to be excluded from computation. S.12 makes no reference to the Civil Procedure Code or to any other Act. It does not say why the time is to be excluded, but simply enacts it as a positive direction.
The object of the exclusion, said the Privy Council, was that counsel or the party should have time to decide with reference to a copy of the decree and judgment whether it was necessary to file an appeal.
18. The view of the Privy Council that S.12(2) of the Limitation Act operates irrespective of the Code of Civil Procedure has been approved by the Supreme Court in Additional Collector of Customs v. Best and Co., AIR 1966 SC 1713. This is what the Supreme Court stated:
As the Privy Council has laid down the provisions of S.12(2) and (3) are a positive direction excluding the time taken for obtaining a copy of the judgment and decree or order as the case may be and those provisions are irrespective of the Civil Procedure Code or the rules made by a court under S.122 of the Code.
We are aware that neither of these two cases related to appeals from a common judgment, but, all the same, the principle is well established by them that exclusion of time under S.12(2) of the Limitation Act has no relevance and is not in any way related to the requirement of filing copies of judgments and decree along with the memoranda of appeals.
19. Bibi Umtul Rasul V Ramcharan, AIR 1920 Pat 535 is directly in point here as it was concerned with the case of several appeals filed by the same party against a common judgment. The Patna High Court held that where more appeals that one were presented by the same appellant from the same judgment but with only one certified copy of the judgment enclosed with one of the appeals, they should all be held to be in time if the one with the enclosures was found to be in time. In support of this view, the court relied on its own practice, but obviously, this practice is certainly in consonance with the law. The Patna High Court pointed out:
In such a case the time requisite for obtaining a copy fo the judgment would be excluded under S.12(3) in computing the period of limitation in respect of all the appeals filed by the appellant, although only one copy of the judgment is filed for all the appeals.
1966-2 Mad LJ 380 = (AIR 1967 Mad 122) had but followed an earlier Bench decision in Avudaiammal v. Ganapathi AIR 1915 Mad 493(2). Sadasiva Aiyar and Tyabji JJ. In AIR 1915 Mad 493(2), were of the view that an appellant was not entitled to a deduction of the time taken in obtaining copies of judgments filed in another connected appeal. The basis for this view was the consideration that the requirement of O.XLI, Rule 1 was related to the application of S.12(2) and (3) of the Limitation Act, Sadasiva Aiyar J. expressed his opinion thus:-
Order XLI, Rule 1 CPC., requires the appeal memorandum to be accompanied by a copy of the judgment unless the appellate court dispenses therewith. No such dispensation was given and hence there was an irregular presentment of the appeal on 27.7.1910 to be District Court. Assuming however that the presentation of the copy of the judgment was dispenses with by the appellate Court the appeal was presented long out of time. The appellant could not claim the deduction of any period as required for obtaining copy of the judgment, as no time could be required or could have been spent in obtaining copy of the judgment when such copy was dispensed with.
The time spent in obtaining a copy of the same judgment for purposes of filing a different appeal in another suit (though it was a connected suit disposed of with present suit by a single judgment) cannot legally be excluded in computing the period of limitation for filing this appeal.
Tyabji J. concurred in that view. But, with respect, we may point out that no attempt was made in that case to determine the true scope and effect of S.12(2) and (3); in fact, no reference was even made in the judgment to the section. As the Privy Council pointed out in AIR 1928 PC 103, the learned judges lost sight of the true position that exclusion of time for purposes of limitation was not in any way controlled or affected by the requirements in the Civil Procedure Code of filing of certified copies of judgment and or decree with the memoranda of connected appeals from a common judgment.
20.In the course of the argument before us the discussion was widened to the proposition that once a certified copy of the judgment and decree furnished the basis for exclusion under S.12(2) and (3), it would enure to the benefit of not merely the appellant who had secured them but also to other parties to the judgment appealed against, whether or not they filed appeals together or separately on the same day or different dates. Having regard to the limited scope of the reference before us, in the light of the facts, we do not think it necessary to cover that area and express our view. It will suffice to say that Aminuddin Sahib v. Pyari Bi, ILR 43 Mad 633 = (AIR 1920 Mad 159 (2)) and Ramkishan Shastari v.Kashibai, (1907) ILR 29 All 265 do not, as we are inclined to think, contribute to such a proposition. In the first of these cases all that was held was that an appellant who was required to file with his memorandum of appeal a copy of the decree appealed from, might file a copy obtained by another party and that under S.12(2) of the Limitation Act, he was entitled to a deduction of the time taken to obtain that copy. In (1907) ILR 29 All 264 it was held that the words ' the time requisite for obtaining a copy' in S.12(2) and (3) were not confined to cases where the person appealing had in person or by a properly authorised agent applied for a copy of the judgment or decree. But that is not the question under our consideration.
21. We are of the view, in these cases, that the common appellant having filed a copy of the judgment in one of the connected appeals and filed copies of decrees in each of all the appeals, the benefit of exclusion, on the basis of the endorsements, of the time taken in furnishing the certified copy of the judgment would not merely be available to the appeal in which the certified copy of the judgment was filed out would enure also to the other connected appeals filed by the same party against the common judgment. Accordingly, we hold that the appeals were all within time and that on that view, the petitions for excusing the delay are unnecessary. They are, therefore, dismissed. No costs.
Submissions on the side of the Respondents/Plaintiffs:
15.Per contra, it is the contention of the Learned counsel for the Respondents/Plaintiffs that the Petitioner/Appellant has filed the Copy Application in C.A.No.514 of 2010 in which the Judgment and Original Decree were received by the Copy Section of the District Court, Coimbatore on 31.05.2010 and that copy papers were called for on 02.06.2010 and the necessary copy papers were deposited on 04.06.2010 by the Petitioner/Appellant and in fact, the copies were made ready on 21.06.2010 and at last, the Petitioner/Appellant/Defendant received the said certified copy of Judgment and Decree on 21.06.2010 itself.
16.The Learned counsel for the Respondents/Plaintiffs proceeds to take a plea that in fact, a 'Preliminary Decree' for Rs.80,26,830/- was passed on 26.02.2010 and later because of the typographical error in the 'Decree', the same was modified to Rs.92,64,973/- and in fact, the certified copy of the 'Judgment and Decree' was made ready during the year 2010 itself and that the Respondents/Plaintiffs had received the 'Certified Copy' of 'Judgment and Decree' in the year 2010 itself under Xerox Copy Application No.2191 of 2010. Apart from that, the Learned counsel for the Respondents/Plaintiffs brings it to the notice of this Court that the Respondents/Plaintiffs had received the copy of the 'Preliminary Judgment and Decree' in O.S.No.150 of 2005 on 19.02.2013 vide Copy Application No.1087 of 2012 and moreover, after passing of a 'Preliminary Decree', the Respondents/Plaintiffs had also received the copies of 'Judgment and Decree' dated 21.06.2010 under Copy Application Nos.601 of 2010 and 625 of 2010.
17.The Learned counsel for the Respondents/Plaintiffs submits that the Respondents/Plaintiffs received the copy of 'Final Decree' on 01.08.2012 in C.A.No.1255 of 2012. Besides this, the Respondents/Plaintiffs filed E.P.No.21 of 2012 on 03.09.2012 and finally, mortgaged property was sold out in a 'Court Auction' that took place on 02.06.2014 and later, the sale was also confirmed on 05.11.2014.
18.In fact, the stand of the Respondents is that the Petitioner/Appellant/Defendant on receipt of 'Judgment and Decree' dated 21.06.2010 in O.S.No.150 of 2005 on the file of the trial Court had deliberately ignored to file the Appeal in time. Also that, the Petitioner/Appellant for the past five years has not preferred the Appeal.
19.The Learned counsel for the Respondents/Plaintiffs cites the decision of the Hon'ble Supreme Court in P.A. Oommen V. Moran Mar Baselius Marthoma reported in AIR 1992 Supreme Court at page 1977 and at Special pages 1980 & 1981, whereby and whereunder at paragraphs 6 & 7 it is observed and held as under:
6.We have given our careful consideration to the arguments advanced by learned counsel for the parties and thoroughly perused the record. The proviso to Order XLI, Rule 1, C.P.C. was added by Section 87 of C.P.C. Amendment act, 1976 w.e.f.1-2-1977. The Statement of Objects and Reasons for the above amendment are given as under:-
Objects and Reasons
Where to or more suits or appeals are disposed of by a common judgment, the requirement of Order XLI that the memorandum of appeal should be accompanied by a copy of the judgment occasions extra expenses. It is intended to meet with this difficulty by providing that where more cases than one are disposed of by common judgment the Appellate Court may dispense with the necessity of filing of more than one copy of the judgment.
7.Thus the entire purpose of introducing the above provision was to avoid extra expenses where more cases than one were disposed of by common judgment and the Appellate Court was authorised to dispense with the necessity of filing more than one copy of the judgment. It was no doubt made clear by adding the proviso to Order XLI, Rule 1, C.P.C. that the filing of the certified copies of the judgment could be dispensed with where two or more appeals are filed against the common judgment by the same appellant or by different appellants. The above O.XLI, R.1 contained in the Code of Civil Procedure only deals with the provision as to what documents should be accompanied along with the memorandum of appeal. This provision has no relevance nor can control the provisions of limitation which are contained separately under the Limitation Act, 1963. Part (III) of the Limitation Act, 1963 provides for computation of period of limitation and Section 12 deals with exclusion of time in legal proceedings with which we are concerned in the present case. So far as the case in hand before us is concerned, the admitted facts are that the plaintiffs in O.S.No.105 of 1980 filed the memorandum of appeal in the High court against the judgment and decree passed by the Subordinate Judge, Mavalikar dated 27.08.1982. The memorandum of appeal was accompanied by a certified copy of the decree as well as a printed copy of the common judgment. We are at pains to understand as to how the appellant can claim any benefit of the proviso to Order XLI, Rule 1, C.P.C. and as a consequence thereof the benefit of the time spent in obtaining the certified copy of the judgment by the plaintiffs of O.S.No.21 of 1979. The proviso permits the Appellate Court to dispense with the filing of more than one copy of the judgment in order to save the expenses, but in the present case the plaintiffs in O.S.No.105 of 1980 had already filed a printed copy of the judgment of the Subordinate Judge and as such there was no question of seeking any order from the Appellate Court (High Court in the present case) for dispensing with the filing of more than one copy of the judgment. The only question then remains to be considered is whether the appellant is entitled to be benefit of Section 12 of the Limitation Act. The appellant and respondents Nos.6 to 9 who were plaintiffs in O.S.No.105 of 1980 had filed certified copy of the decree under challenge along with the memorandum of appeal and the time in obtaining the certified copy of the decree can be excluded in computing the limitation and there is no dispute that such time has been excluded but even after excluding such time the appeal is barred by limitation. So far as the printed copy of the judgment filed with the memorandum of appeal it does not contain the necessary particulars regarding the person who made the application, the date of application, the date of issue, the date notified for receiving the same as required in Rules 253 and 254 of the Civil Rules of Practice in order to entitle the appellants to claim extension of time under S.12(3) of the Limitation Act. Confronted with this difficulty, the appellant and other plaintiffs in O.S.No.105 of 1980 sought to rely on the proviso to Order XLI, Rule 1, C.P.C., and to get the advantage of the time taken by the plaintiffs in O.S.No.21 of 1979 in obtaining the certified copy of the common judgment. We are clearly of the view that there is no justification nor any basis for claiming such benefit and the High Court rightly dismissed the C.M.P.No.32544 of 1983. It is, however, made clear that we are upholding the judgment of the High Court on different grounds and we are not expressing any opinion on the merits of the questions of law decided by the learned single Judge. We also do not find it necessary to advert to any case law referred in the judgment of the High Court or cited before us, as in the facts and circumstances of the case there is no basis or justification at all for the applicability of the proviso to O.XLI, R.1, C.P.C., itself. Thus when the main bedrock of the entire case of the plaintiffs / appellants of O.S.No.105 of 1980 falls to the ground the question of seeking any benefit, therefor, does not arise.
20.He also refers to the order dated 19.09.2014 of this Court in CRP (NPD) No.1930 of 2014 [S.Venkataraman (Petitioner/Defendant) V. K.S.Balakrishnan and V.V.Seethalakshmi (Respondents/Plaintiffs)] wherein at paragraphs 2 and 3 it is observed and held as follows:
2.It is brought to the notice of the Court that sale was already over and the sale amount of Rs.1,25,02,000/- had been deposited before the Executing Court on 2.6.2014.
3.In these circumstances, the C.R.P., at this stage is not maintainable and it is dismissed. However, it is open to the revision petitioner to work out his remedies in the manner known to law. No costs. M.P.No.1 of 2014 is closed.
Discussions and Findings:
21.It is to be noted that Order 41 Rule 1 of the Civil Procedure Code specifies an inflexible rule that in the case of Appeals from decrees, the memorandum of appeal shall be accompanied by a copy of the decree. It is to be remembered that the Judgment copy can be exempted in terms of the ingredients of Or.4 R.1 of the Civil Procedure Code. However, the exemption of a copy of the decree cannot be granted on a simple reading of the ingredients of procedure contemplated under Or.41 R.1 of the Civil Procedure Code. As a matter of fact, the copy to be accompanied of the Judgment and Decree appealed against has to be a copy which has been issued as envisaged under Section 76 of the Indian Evidence Act, 1872 as per decision State of Jammu & Kashmir V. Nabi War [AIR 1997 J & K at page 24].
22.It is to be borne in mind that under the provisions of the Civil Procedure Code, 1908, certified copies of the Judgment and Decrees shall be furnished on their Application and at their expense (vide Or.20 R.20 of the Civil Procedure Code) and in terms of Or.11 R.15 of the Civil Procedure Code, every party to a suit shall be entitled to inspect documents referred to in the pleadings or affidavits or to take copies. Moreover, certified copies of the Judgment and Decree in Appeal shall be furnished to the parties on their Application to the Appellate Court and at their expense (vide Or.41 R.36 of the Civil Procedure Code). To put it precisely, the benefit of Section 76 of the Indian Evidence Act, 1872 is available only to certified copies of public documents. In the case of certified copy of a public document, further proof of the same is not required by examining the person who had issued it etc., as per decision [C.Thimmappa V. Mariyappa, (AIR 2008 (Kant) 107 and at Special page 110)].
23.It cannot be forgotten that filing of a certified copy under Or.41 R.1 of the Civil Procedure Code is mandatory and without this copy, the appeal will be incomplete. Apart from that, when the copy of the decree is filed, only then the question of limitation may be considered as per decision Ramkali V. Indradeo Choudhary [AIR 1985 (Patna) 148]. In case, if an Appeal is filed with the certified copy, then the question of the same is barred by limitation will have to be decided after giving the appellant the benefit of time requisite for obtaining the certified copy as per decision Dilip Kumar Chaterjee V. National Jute Manufacturers [AIR 2000 (Cal) 117 (DB)]. If a copy of the decree is furnished within the time granted, the appeal must be deemed as presented properly as per decision L.Varadarajan V. Thomas [AIR 2000 (Mad) 283].
24.In this connection, this Court very pertinently points out that if the copy of the Decree is filed after the expiration of the period limitation prescribed for the Appeal, the Appeal is time barred because of the fact that there is no valid appeal until the copy of the Decree is filed as per decision Brij Mohan Lal V. Sarabjit Singh [AIR 1937 Oudh 513]. If the copy of the Judgment is not dispensed with, then copy of the final judgment is to be filed as per decision Sabon V. Shahabal [AIR 1929 (Lahore) 481].
25.In the decision of the Hon'ble Supreme Court Jagat Dhish V. Jawahar reported in AIR 1961 SC at page 832, it is observed and held that 'question of limitation may be examined only after filing of copy of the Decree'. Also that in the decision of the Hon'ble Supreme Court in AIR 1996 SCC 2812 [State of Rajasthan V. Raj Singh] at page 2812, it is held that 'the right to file an appeal arises only from the date when the decree is supplied and coming to the aspect of term 'Time Requisite' under Section 12(2) of the Limitation Act, 1963 it is to be pointed out that the Hon'ble Supreme Court in the decision Lala Bux Mukand V. Lajawanti [AIR 1975 SC 1089] held that it means 'all the time counted from the date of judgment (the same being the date of decree) which would be properly required for obtaining a copy of the decree including the time which must ex necessitate elapse in the circumstances of the particular case before a decree is drawn up and signed'.
26.Where the applicant slept for the entire period of limitation for filing an Appeal and thereafter, files an application for copies of 'Decree and Judgment', the benefit of Section 12 of the Limitation Act, 1963 cannot be availed as per decision Rajanarayan Singh Avadhraj Singh V. Smt Vidhyadevi [2003 AIHC at page 3742 (Bom)]. In fact, the date for application of copy after pronouncement of judgment is a day requisite for obtaining the copy as per decision C.Ram V. R.Kumar [1986 (2) LLR 448 (P & H)]. In short, in order to entitle a party to the benefit of the provisions of the Section 12 of the Limitation Act, 1963 in this behalf the application for a copy must be made before expiry of the period prescribed for the purpose as per decision Atmaram V. Ramchand [1937 (167) IC 250]. If the delay in obtaining the copy is due to the laches of the Appellant/Applicant himself, he cannot claim the benefit of the provision as per decision Sudhansu Bhusan V. Mayho Bibi [AIR 1937 (Cal) at page 732]. The burden showing that no part of the delay was due to the fault of the Appellant is on him as per decision Sitaram V. Chamali Bai [AIR 1969 MP 310].
27.At this juncture, it may not be out of place for this Court to make a significant mention that the right to prefer an 'Appeal' is a right created by a statute. In reality, no litigant can prefer an Appeal against any Judgment, Decree or Order, as a matter, of course, in the absence of suitable provision of some Law conferring on the party concerned, the right to prefer an 'Appeal' against any Judgment, Decree or Order. In fact, the right of 'Appeal' so conferred on any litigant may be lost to the person in appropriate case by the provisions of some law such as, 'Limitation' and also by the 'Conduct of the Party' in an appropriate case.
28.One cannot brush aside a vital fact that the right of filing a suit is an inherent right, while right of 'Appeal' is to be showered by a statute. In real sense, an Appeal is a substantive right. To put it succinctly, 'Right of Appeal' is a vested right which vest in the suitor at the time of initiation of original proceedings and confers on him a right of entering an Appellate/Higher Forum and invoking its aid and inter- position to redress an error of the Court concerned.
29.It is worthwhile to quote the ingredients of Or.41 R.1 of the Civil Procedure, 1908 which runs as under:
1. (1) Every appeal shall be preferred in the form of a memorandum Form of appeal, signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded. (What to accompany memorandum)
The copy of the judgment shall be a printed copy in every case in which Copy of judgment to be the High Court has prescribed that the judgment shall printed for appeal. be printed when a copy is applied for for the purpose of appeal. (Copy of the judgment to be printed for appeal)
Provided that, in appeals from decrees or orders under any special or local Act to which the provisions of Parts II and III of the Limitation Act, IX of 1908, do not apply and in which certified copies of such decrees or orders have not been granted within the time prescribed for preferring an appeal, the Appellate Court may admit the memorandum or appeal subject to the production of the copy of the decree or order appealed from within such time as may be fixed by the Court.
30.Also this Court refers to Order VIII [under the head of 'Preparation of the record in appeals against Original Decrees of Sub-ordinate Courts'] Rule 9 of the Madras High Court Appellate Side Rules, 1965 which enjoins as follows:
R.9.The records shall be arranged into two parts-
(A) Pleadings
Pleadings shall include -
(i) a table of contents with reference to the appropriate pages in the record;
(ii) the plaint, written statement and reply statement, if any;
(iii) the judgment and decree and Schedules thereto;
(iv) grounds of appeal and memorandum of cross-objections, if any, and any order calling for a finding or report, together with such finding or report, and the objections thereto, if any.
NOTES
(1) Issues, Judges' Notes and B Diary shall be included in the pleadings, if the parties apply for the same.
(2) Judgments shall be printed by the High Court unless they have been already printed in accordance with the rules in the Civil Rules of Practice.
(3) Where judgments are printed in the High Court, one free copy thereof shall be granted to the respondent, and, if there are more respondents than one, to the respondent who applied for the same.
(4) The paper book prepared through court or privately shall be in separate volumes, one for pleadings and the other for documents. No Volume of the paper book should contain more than 250 pages.
(B) Documents
This part shall include all the papers other than the pleadings which the parties desire to be included in the record. The documents exhibited shall be arranged in chronological order followed by the deposition of the witnesses examined in the case. The papers included under Rule 8 shall next be arranged in their chronological order. A table of contents with reference to the pages of the record shall also be prefixed.
31.Earlier to Or.41 of the Civil Procedure Code (the Madras Amendments) reads as follows:
FORM OF APPEAL WHAT TO ACCOMPANY MEMORANDUM
Madras (i) In sub-rule(1) before the word copy insert the word certified (25-12-1963) (ii) To sub-rule (1) add the following:-
The copy of the judgment shall be printed copy in every case in which the High Court has prescribed that the judgment shall be printed when a copy is applied for, for the purpose of appeal. - (GO No.933, Home (Judl) of 03-5-1917)
(iii) To sub-rule (1) add the following proviso:-
Provided that, in appeals from decrees or orders under any special or local act to which the provisions of Parts II and III of the limitation Act, IX of 1908, do not apply and in which certified copies of such decrees or orders have not been granted within the time prescribed for preferring an appeal, the Appellate court may admit the memorandum of appela subject to the production of the copy of the decree or order appealed from within such time as may be fixed by the Court Dis No.2135 of 1918
(iv) Add the following further proviso and Explanation to Sub-rule (1)
Provided further that when the decree appealed from is a final decree in partition suit with schedules attached thereto, the Appellate Court may dispense with the production of the copy of the decree, if the appellant files a certified copy of the judgment appealed against and produces also a certificate from the lower Court as to the value of the subject-matter of the proposed appeal - P. Dis.No.97 of 1963 of 20-3-1963.
Explanation The words 'Appellate Court' in sub-rule (1)be deemed to include the Registrar of the High Court, where the appeal is preferred to the High Court. (25-12-1963)
(v) To Sub rule (2) add the following:- The memorandum shall also contain a statement of the valuation of the appeal for the purposes of the Court fees Act Dis.No.2057 of 1917.
(vi) The following amendments were made by Tamil Nadu Government Gazettee, dated 04-1-1984 Pt.IIIS2,p.2 (No.1)
In order 41, for sub-rule (1) substitute the following:-
(1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the court or to such officer, as it appoints in this behalf. The memorandum of appeal shall be accompanied by a certified copy of the decree appealed from and (unless the Appellate Court dispenses therewith) by a certified copy of the judgment on which it is founded and by such number of type written or cyclostyled or printed or mechanically reproduced copies of the judgments as are necessary to serve on the respondents to the appeal and four additional copies for the use of the Court. The copies so filed shall be neatly and legibly prepared without any error, of which four copies intended for the use of the Court, shall be on thick paper, in case the judgment is typed or cyclostyled, the four copies intended for the use of the Court must be typed or cyclostyled on one side of the paper only:
Provided that where two or more suits have been tried together and a common judgment has been delivered therefor and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, it shall not be necessary to file more than one set of copies of the judgment as provided for in this rule:
Provided further htat the Court shall have the copies of the judgment so filed compared with the certified copy of the judgment on payment of the prescribed charges .
(vii) the following amendments were made by Tamilnadu Government Gazette, dated 17.9.1980, Part III S2, P.222 and Pondicherry Government Gazette dated 14.10.1980 P.758.
Sub-rule (3) omitted.
32.It may not be out of place for this Court to cite the following decisions to prevent an aberration of justice and to promote substantial cause of justice.
i)In the decision of the Hon'ble Supreme Court in State of Uttar Pradesh V. C.Tobit and others reported in AIR 1958 Supreme Court at page 414 (V 45 C 63) and at Special page 419 whereby and whereunder at paragraph 10, it is observed and held as follows:
10. Reference has been made to a number of sections of the Code of Criminal Procedure where the word copy has been used and to Ss.425, 428, 442 and 511 which, it is said, talk about certified copy and on this circumstance is founded the argument that where the Legislature insists on the production of a certified copy it says so expressly and that as the word copy used in S.419 is not qualified by the word certified the interference is irresistible that the filing of a plain copy was intended to be sufficient for the purpose of that section. Turning to the four last mentioned sections, it will be noticed that the first three Ss.425, 428 and 442 do not really refer to any certified copy of any document at all. Section 425 requires that whenever a case is decided on appeal by the High Court under Chapter XXXI it shall certify its judgment or order to the Court by which the finding, sentence or order appealed against was recorded or passed. It really means that the High Court is to formally communicate its decision on the appeal to the Court against whose decision the appeal had been taken. Likewise S.428 requires the Court taking additional evidence to certify such evidence to the appellate Court. Section 442 requires the High Court to certify its decision on revision to the Court by which the finding, sentence or order revised was recorded or passed. Lastly S.511 lays down the mode of proof of a previous conviction or acquittal, namely, by the production of an extract certified under the hand of the officer having the custody of the records of the Court to be a copy of the sentence or order. Therefore, the four sections relied on do not in reality refer to certified copy of a judgment or order supplied to a party on his application for such copy and consequently no argument such as has been sought to be raised is maintainable. The question whether a copy in a particular section means a plain copy or a certified copy must depend on the subject or context in which the word copy is used in such section. In many sections relied on, the copy is intended to serve only as a notice to the person concerned or the public and is not intended to be acted upon by a Court for the purpose of making a judicial order thereon. We think that N.U.Beg, J., rightly pointed out that the object and purpose of such sections are distinguishable from those of S.419 where the copy is intended to be acted upon by the appellate Court for the purpose of founding its judicial decisions on it. We do not consider it desirable on the present occasion to express any opinion as to whether any of those sections relied on requires a plain copy or a certified copy. It will suffice for us to hold that so far as S.419 is concerned, having regard to the context and the purpose of that section, the copy to be filed along with the petition of appeal must be a certified copy.
ii)In the decision of Daim V. Hayat and others reported in AIR 1921 Lahore at page 266 and at Special page 267, wherein it is observed and held as under:
The only question in this appeal is whether there is any sufficient ground for holding that the learned Judge in Chambers exercised his discretion wrongly in refusing to extend time for the reception of a copy of the decree which was under appeal.
In our view, there is no ground for our interference.
The appellant's case on the merits is even worse than it appeared to the learned Judge in Chambers, for the Urdu decree held with the memorandum of appeal is signed by an official styling himself 'Translator'.
As the decrees of no District Court (it is safe to say) are now-a-days drawn up in Urdu, and as the appellant's attention was drawn to the probability that the decree filed was not a copy but only a translation of the decree, and as the decree bore on the face of it indications that it was a mere translation, we agree that negligence alone is responsible for the circumstance that no copy of the decree was presented with the appeal or within limitations.
We dismiss the appeal with costs.
iii)In the decision of the Hon'ble Supreme Court M/s.M.Ramnarain Private Limited and Another V. State Trading Corporation of India Limited reported in 1983 (3) Supreme Court Cases at page 75 and at Special pages 76 and 77, it is observed and held as follows:
An appeal against any provision granting instalments or refusing to grant instalments will not be competent, if the direction granting or refusing to grant installments is considered to be an order. Such an order is not appealable under Code. Such an order will also not be a ' judgment' within the meaning of Clause 15 of the Letters Patent and will not be appealable as such. (Para 18)
Order 20, Rule 11 of the Code (as amended by the CPC Amendment Act, 1976) postulates that the direction regarding postponement of payment of money decree of payment thereof in instalments is an independent order which is to be incorporated in the decree, and the order can only be incorporated when the decree is drawn up; until then the direction or order regarding instalments retains the character of an order in law. In view of the Rules of the Original Side of the Bombay High Court for the drawing up of a decree, there is bound to be a time-lag between the judgment and the drawing up of a decree in which the order regarding instalment is to be incorporated. In the present case since at the time of filing the earlier appeal the order regarding instalments had not been incorporated in the decree, the order retained its character of an order. The precipe filed for the drawing up of the order, the letter to the Prothonotary and Senior Master of the High Court by the Advocates for the defendant-appellant, the memorandum of appeal filed and the amount of stamp furnished on the memorandum are facts which go to indicate that the earlier appeal had been filed against an order regarding instalments treating the same to be an order.(Paras 18 and 19)
Moreover, if the earlier appeal were to be considered to be an appeal against the decree, the appeal would not be competent for want of payment of requisite court fee payable in respect of an appeal against the decree for, the defendant-appellant had furnished the amount of stamp necessary for preferring an appeal against an order. (Para 20)
Further, though by virtue of the provisions contained in the Original Side Rules of the High Court an appeal may be filed without the certified copy of the decree or order a provision made to enable the party to seek immediate interim relief from the appellate court the appeal would not be valid unless the further requirement to file a certified copy of the decree in the case of an appeal from a decree within the period of limitation is satisfied. At the time when the earlier appeal had been withdrawn, the certified copy of the decree had not been filed. The said appeal without the certified copy of the decree remained an incompetent appeal.
iv)In the decision of the Hon'ble Supreme Court in Raja Kulkarni V. The State of Bombay reported in AIR 1954 SC 73 (Vol. 41, C.N. 21) and at Special page 74, wherein at paragraph 6 it is observed and held as under:
(6) It is contended that Section 24 contemplates the pendency of a valid or competent appeal but, as no valid or competent appeal under the law was pending, the appellants committed no offence under Section 27. We are unable to accept this contention. Section 24 on a plain and natural construction requires for its application no more than that an appeal should be pending and there is nothing in the language to justify the introduction of the qualification that it should be valid or competent.
Whether the appeal is valid or competent is a question entirely for the Appellate Court before whom the appeal is filed to determine, and this determination is possible only after the appeal is heard, but there is nothing to prevent a party from filing an appeal which may ultimately be found to be incompetent e.g., when it is held to be barred by limitation or that it does not lie before that court or is concluded by a finding of fact under Section 100 of the Civil Procedure Code. From the mere fact that such an appeal is held to be unmaintainable on any ground whatsoever, it does not follow that there was no appeal pending before the Court. Article 182(2) of the Indian Limitation Act prescribes three years' period of limitation for the execution of a decree or order of the Appellate Court when there has been an appeal . The Privy Council constructed the latter phrase to mean that any application by a party to the Appellate Court to set aside or revise a decree or order of a Court subordinate thereto is an 'appeal' within the meaning of the above provision, even though it is irregular or incompetent, or the persons affected by the application to execute were not parties, or it did not imperil the whole decree or order. They refused to read into the words any qualification either as to the character of the appeal, or as to the parties to it. 'Nagendra Nath V.Suresh Chandra', we consider that the word 'appeal' must be constructed in its plain and natural sense without the insertion of any qualifying words such as are intended to be introduced by the contention raised before us. There is yet another reason for not constructing the word 'appeal' in the manner suggested by the appellants and that is that the legislature in introducing this provision contemplated that industrial peace should not be disturbed so long as the matter was pending in the court of appeal, irrespective of the fact whether such an appeal was competent in law, if this were not the case, the parties could easily defeat the object of the legislature by arrogating to themselves the right to decide about the competency of the appeal without reference to the court, commit a breach of peace and escape the penalty imposed by Section 27. There was no justification for the appellants to instigate the workers in the so-called 'bonafide' belief that Section 27 did not apply to an appeal which they thought was incompetent. In this view of the matter it is not necessary to consider whether the conferment of a right of appeal during the pendency of a proceeding can affect the rights of the parties to those proceedings and make the order the pending proceeding appealable
v)In the decision Paras Nath Keshari V. Dwarika Prasad Keshari & Others reported in 2009 (1) AIHC at page 642 and 643, wherein at paragraphs 3 & 4, it is observed and held as follows:
....3. From perusal of the copy of the order sheet it appears that on 18.03.2008 a memo of appeal was filed by the respondent which was registered as Title Appeal No.5/08. After the Court fee stamp was filed and stamp reporting was made the appeal was listed on 31.03.2008. On 31.03.2008 the appellate Court condoned the delay in filing the appeal and thereafter admitted the appeal and directing to file process fee.
4. Prima facie either the District Judge is not aware of the procedure to be followed before condonation of delay or he has no elementary knowledge of law. It is well settled that right of appeal is a creature of statute. If the appeal is not filed within time provided in law, the appeal becomes barred and a right accrued to the other party. It is therefore, mandatory for the appellate Court to issue notice and hear the other side before passing the order condoning the delay in filing the appeal. A person in whose favour right accrued must be given reasonable opportunity of hearing in the limitation matter. The impugned order, therefore, cannot be sustained in law.
vi)In the decision Arumughan V. Kumaran Ezhuthassan reported in 2006 (2) Kerala Law Times at page 64 & at Special page 67, wherein at paragraphs 7 to 10, it is observed and held as follows:
7.The substantial question of law arising for consideration is whether the lower appellate court was justified in dismissing the appeal filed by the plaintiff on the ground of non production of the printed copy of the judgment of the trial court, when the appellant had filed the application for issuing printed copy well within time and when the printed copy was issued by the trial court after the date of disposal of the Appeal.
8. It is true that the appellant has not produced the printed copy of the judgment of the trial court before the lower appellate court. He filed the appeal before the District Court on 06.02.1989. On that date, the order of the Land Tribunal was not appended to the judgment of the trial court. I.A.No.165 of 1989 filed by the defendant was allowed by the trial court only on 06.02.1989. Therefore, on the date on which the appellant/plaintiff filed the appeal before the District Court, the records of the trial court were not proper in the sense that the order of the Land Tribunal was not appended to the judgment of the trial Court. It is not stated by the respondent in any of the objections filed before the lower appellate court that the plaintiff did not apply for printed copy of the judgment of the trial court before 06.02.1989, the date on which the appeal was filed. The appellant/plaintiff having filed an application, though on the date of the application, the order of the Land Tribunal was not appended to the judgment of the trial court. It is not the plaintiff's concern whether the records were maintained properly by the court. It is not the plaintiff's concern whether the records were maintained properly by the court. When the mistake was on the part of the court, the party cannot be blamed for that mistake. Laches cannot be attributed to the plaintiff since he applied for printed copy well within the time. Going by the statements in grounds no.3 of the Memorandum of Second Appeal, it is seen that the appellant received the printed copy only after the disposal of the appeal by the lower appellate court. Thus for no fault of the appellant, his appeal before the lower appellate court stood dismissed on technical grounds. The reason for the delay in getting the printed copy of the judgment and the reason why printed copy of the judgment could not be issued before 06.02.1989 are all matters for the court, for which the appellant need not concern himself. The question is whether the appellant is guilty of not filing the application within the time. The answer is he is not. If so, the Lower appellate court was not justified in dismissing his appeal on the ground that the printed copy of the judgment was not produced.
9.There is another circumstance which has relevance. Rr.255 to 271 of Civil Rules of Practice (Kerala) were deleted as per the notification dated 26.04.2000, which was published in the Kerala Gazette dated 06.06.2000. Sub-r.(2) of R.1 of O.XLI as in force in Kerala, provides that the copy of the judgment shall be a printed copy in every case in which the High Court has prescribed that the judgment shall be printed when a copy is applied for the purpose of appeal. Rr.255 to 271 are the rules prescribed by the High Court of Kerala and those rules have been deleted. Therefore, now it is not necessary to produce the printed copy of the judgment along with the memorandum of Second Appeal. There is no printing itself and therefore there is no necessity of producing the printed copy. The requirement of production of the printed copy of the judgment along with the memorandum of appeal being in the nature of procedure and Rr.255 to 271 of Civil Rules of Practice (Kerala) having been deleted, I am of the view that there is nothing wrong, at present, to direct the lower appellate court to dispose of the appeal on merits.
10. The communication dated 14.03.1989 issued by the Sub Judge, Ottappalam to the District Judge, Palakkad would show that five copies of the printed copy of the judgment of the trial court have been forwarded to the appellate court. The printed copy of the judgment of the trial court is now available with the lower appellate court.
vii)In the decision Charminar Co-operative Urban Bank Ltd., V. State Bank of Hyderabad & Another reported in AIR 2007 Andhra Pradesh at page 339 and at Special page 340 to 342 at paragraph 13 to 21, wherein it is observed as follows:
13.It is true that normally in practice the Courts would be liberal in dealing with dispense with applications. However, liberality cannot be stretched too far. It is needless to say that dispense with applications also can be permitted only where the Law permits the same or at least in the interest of justice, provided there is urgency involved in the matter. Otherwise, discretion cannot be exercised in ordering such applications for dispensing with certified copies of the judgments and decrees.
14.It is needless to say that the inherent powers can be exercised only for obtaining substantial justice. The Court has to keep in view not only the interest of the applicant but also the interest of the other party who will be affected by the order. It is also needless to say that normally when the specific provisions of the Code govern the field, inherent powers not to be resorted to. The distinction between the appeal and memorandum of appeal was pointed out by the Apex Court in Lakshmiratan Engineering Works Ltd. v. Assistant Commissioner (Judicial) I, Sales Tax, Kanpur and Anr. at paragraph No. 10 which reads as hereunder:
In our opinion these cases have taken a correct view of the word 'entertain' which according to dictionary also means 'admit to consideration'. It would therefore appear that the direction to the court in the proviso to S.9 is that the court shall not proceed to admit to consideration an appeal which is not accompanied by satisfactory proof of the payment of the admitted tax. This will be when the case is taken up by the court for the first time. In the decision on which the Assistant Commissioner relied, the learned Chief Justice (Desai, C.J.) holds that the words "accompanied by " showed that something tangible had to accompany the memorandum of appeal. If the memorandum of appeal had to be accompanied by satisfactory proof, it had to be in the shape of something tangible, because no intangible thing can accompany a document like the memorandum of appeal. In our opinion, making 'an appeal' the equivalent of the memorandum of appeal is not sound. Even under Order 41 of the Code of Civil Procedure, the expressions "appeal" and "memorandum of appeal" are used to denote two distinct things. In Wharton's Law Lexicon, the word "appeal" is defined as the judicial examination of the decision by a higher Court of the decision of an inferior court. The appeal is the judicial examination; the memorandum of appeal contains the grounds on which the judicial examination is invited. For purposes of limitation and for purposes of the rules of the Court it is required that a written memorandum of appeal shall be filed. When the proviso speaks of the entertainment of the appeal, it means that the appeal such as was filed will not be admitted to consideration unless there is satisfactory proof available of the making of the deposit of admitted tax.
15.In A.S.M.P. No. 1021 of 2007 in A.S. (SR) No. 6787 of 2007 in Pratap Karan V.Government of Andhrapradesh rep., by its Principal Secretary, Revenue Department, Secretariat, Hyderabad and Ors., dated 9-5-2007, reported in 2007(4) Andh LT 334, the Division Bench of this Court to which one of us was a party (PSN, J) observed in paragraph Nos. 7 & 8 as follows:
7. It is pertinent to note that Order 20 Rule 6-A of the Code had been introduced by Amending Act with a view to ensure that the delay in preparation of the decree may not hamper the filing of an appeal. It is needless to say that though Sub-rule (1) of Order 20 Rule 6-A of the Code specifies that every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible and in any case within fifteen days from the date on which the judgment is pronounced, there may be cases where there may be urgency, that is the reason why Sub-rule (2) of Order 20 Rule 6-A of the Code specifies that an appeal may be preferred against the decree without filing a copy of the decree and in such a case the copy made available to the party by the Court shall for the purposes of Rule 1 of Order XLI of the Code be treated as the decree, and further specifies that so long as the decree is not drawn up, the last paragraph of the judgment shall be deemed to be the decree for the purpose of execution and the party interested shall be entitled to apply for a copy of that paragraph only without being required to apply for a copy of the whole of the judgment; but as soon as a decree is drawn up, the last paragraph of the judgment shall cease to have the effect of a decree for the purpose of execution or for any other purpose.
8.On a careful reading of the language of Order XLI Rule 1; along with Section 96 of the Code; and also Sub-rule (2) of Order 20 Rule 6-A of the Code, the Court is empowered to order dispensing with the filing of the decree copy while presenting an appeal. Moreover it is an enabling provision and it is within the discretion of the Court either to dispense with the filing of the decree copy or to direct the party to present the appeal along with the decree copy depending upon the facts and circumstances of a given case.
16.It is no doubt true that the said decision was rendered by this Court when an application under Order XX Rule 6-A of the Code has been moved. It is also needless to say that the present application is moved under Section 151 of the Code. On a careful reading of Order XX Rule 1; Order XX Rule 6-A; Order XX Rule 6-B, and Order XLI Rule 1 of the Code, this Court is of the considered opinion that in the light of the reasons which had been explained the dispensing with cannot be ordered. The words "every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible and, in any case, within fifteen days from the date on which the judgment is pronounced" and the words "but as soon as the decree is drawn, the judgment shall cease to have the effect of a decree for the purposes of execution or for any other purpose" in Sub-rule (2) of Order XX Rule 6-A of the Code would assume some importance. The language employed even in Order XLI Rule 1 of the Code also may be relevant in this context.
17.In Jagat Dhish Bhargava V. Jawahar Lal Bhargava, AIR 1961 SC 832 the Aped Court at paragraph Nos. 5 and 14 observed as hereunder:
5.The position of law under Order 41, Rule 1, is absolutely clear. Under the said rule every appeal has to be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in that behalf, and has to be accompanied by a copy of the decree appealed from, and of the judgment on which it is founded. Rule 1 empowers the appellate Court to dispense with the filing of the judgment but there is no jurisdiction in the appellate Court to dispense with the filing of the decree. Where the decree consists of different distinct and severable directions enforceable against the same or several defendants the Court may permit the filing of such portions of the decree as are the subject-matter of the appeal but that is a problem with which we are not concerned in the present case. In law the appeal is not so much against the judgment as against the decree that is why Article 156 of the Limitation Act prescribes a period of 90 days for such appeals and provides that the period commences to run from the date of the decree under appeal. Therefore there is no doubt that the requirement that the decree should be filed along with the memorandum of appeal is mandatory, and in the absence of the decree the filing of the appeal would be incomplete, defective and incompetent.
14.Let us then consider the technical point raised by the appellant challenging the validity or the propriety of the order under appeal. The argument is that Order 41, Rule 1, is mandatory, and as soon as it is shown that an appeal has been filed with a memorandum of appeal accompanied only with a certified copy of the judgment the appeal must be dismissed as being incompetent, the relevant provisions of O. 41 with regard to the filing of the decree being of a mandatory character. It would be difficult to acceded to the proposition thus advanced in a broad and general form. If at the time when the appeal is preferred a decree has already been drawn up by the trial Court and the appellant has not applied for it in time it would be a clear case where the appeal would be incompetent and a penalty of dismissal would be justified. The position would, however, be substantially different if at the time when the appeal is presented before the appellate Court a decree in fact had not been drawn up by the trial Court; in such a case if an application has been made by the appellant for a certified copy of the decree, then all that can be said against the appeal preferred by him is that the appeal is premature since a decree has not been drawn up, and it is the decree against which an appeal lies. In such a case, if the office of the High Court examines the appeal carefully and discovers the defect the appeal may be returned to the appellant for presentation with the certified copy of the decree after it is obtained. In the case like the present, if the appeal has passed through the stage of admission through oversight of the office, then the only fair and rational course to adopt would be to adjourn the hearing of the appeal with a direction that the appellant should produce the certified copy of the decree as soon as it is supplied to him. In such a case it would be open to the High Court, and we apprehend it would be its duty, to direct the subordinate Court to draw up the decree forthwith without any delay. On the other hand, if a decree has been drawn up and an application for its certified copy has been made by the appellant after the decree was drawn up, the office of the appellate Court should return the appeal to the appellant as defective, and when the decree is filed by him the question of limitation may be examined on the merits. It is obvious that the complications in the present case have arisen as a result of two factors; the failure of the trial Court to draw up the decree as required by the Code, and the failure of the office in the High Court to notice the defect and to take appropriate action at the initial stage before the appeal was placed for admission under Order 41, Rule 11. It would thus be clear that no hard ad fast rule of general applicability can be laid down for dealing with appeals defectively filed under Order 41, Rule 1. Appropriate orders will have to be passed having regard to the circumstances of each case, but the most important step to take in cases of defective presentation of appeals is that they should be carefully scrutinized at the initial stage soon after they are filed and the appellant required to remedy the defects. Therefore, in our opinion, the appellant is not justified in challenging the propriety or the validity of the order passed by the High Court because in the circumstances to which we have already adverted the said order is obviously fair and just. The High Court realised that it would be very unfair to penalise the party for the mistake committed by the trial Court and its own office, and so it has given time to the respondents to apply for a certified copy of the decree and then proceed with the appeal.
18.In Naraindas and Ors. v. Daya Narain AIR 1975 Delhi 9 the learned judge of Delhi High Court in paragraph No. 8 held as hereunder:
with regard to the second contention, I find that no orders had been obtained from the Tribunal on the application for exemption from filing a certified copy of the order of the Court below. At all events, the appellants prayed that exemption may be granted at that stage in order to know the facts of the case and grant stay of the proceedings before the Additional Controller. It had been asserted that the certified copy had been applied for but was not till then available. The prayer in the application was that the exemption from filing the certified copy be granted pending receipt of the certified copy which would be filed as and when received. Assuming the case of the appellants to be the highest, the Tribunal in admitting the appeal could not be presumed to be granting the prayer and the relief which had not been asked for in the application for exemption. Most certainly the Tribunal was not granting exemption from filing the certified copy at any time. It only agreed to consider and grant the application for the opposite party pending filing of the certified copy. Surely the Tribunal was not granting exemption to the party from the bar of limitation and the filing of the certified copy within period of limitation. Obviously it still remained the duty of the party to file a certified copy of the order within the prescribed period of limitation and there is nothing in the order of the Court to grant this privilege to the party not to file the certified copy at all or to exceed the bar of limitation. In Joti Pershadv. Gajendra Sharma, 1968 Delhi LT 125, I.D. Dua, C.J. (as he then was) observed that unless and until the prayer to exempt the filing of the certified copy . is granted, the party cannot claim any relief against the rigour of the law of limitation and it was the duty of the counsel to secure an order for exemption at the time of preliminary hearing. In the facts and circumstances of the case, the learned Chief Justice, however, felt inclined to condone the delay in filing the certified copies beyond time. It is a normal rule of construction of the orders of the Court that a relief which is expressly not granted would ordinarily be deemed to have been refused. Even if it be assumed that a relief could be granted by necessary implication, the relief granted cannot be presumed to rise higher than the prayer made for it. Under the law, the appeal- would be incompetent unless and until it is accompanied by a certified copy of the order appealed from. In some urgent cases when the party is likely to suffer any serious injury by delaying the filing of the appeal and wants to obtain some interim relief, the appellate Court shows indulgence on entertaining the appeal and granting interim relief on perusing the plain copy of the impugned order pending the receipt and filing of the certified copy. This, however, does not make the appeal competent unless and until the certified copy has been filed or the Court expressly grants exemption from its being filed altogether and unless and until such an order is obtained, the party is not relieved from the duty of complying with the requirements of law and filing the certified copy of the impugned order within the prescribed period of limitation.
19.Filing of the certified copy of the decree was held to be mandatory by a catena of decisions. No doubt Order XX Rule 6-A of the Code had been introduced. The object of introducing the provision also may have to be kept in mind. The dispensing with of the judgment and the power of the High Court had been dealt with in elaboration by the Full Bench of the Madras High Court in State of Madras represented by Special Tahsildar, Regional Engineering College Scheme, Tiruchirapalli V. Muthurethinam AIR 1970 Madras 353 (FB).
20.In Ramachandrarao and Ors. v. Mayaram AIR 1928 Nagpur 131, it was held that in Order XLI Rule 1 of the Code it is not left to the litigant's choice to file or not to file a copy of judgment, but it is for the Judge alone who can dispense with it. It is true that the learned Judge of the Madras High Court in L.Varadarajan V. Thomas AIR 2000 Madras 283, observed that in a proper case the Court can give time for production of copy of decree and powers under Sections 148 and 151 of the Code also could be invoked and if a copy of decree is produced within the time granted, the appeal must be deemed as presented properly.
21.Here is a case where the appeal is presented with an application for condonation of delay, that too, an inordinate delay of 1189 days. In the light of the different provisions of the Code already specified supra this Court is of the considered opinion that this is not a fit case where the dispense with as prayed for can be ordered, especially in the light of the language employed in Order XX Rule 1; Order XX Rule 6-A; Order XX Rule 6-B, and Order XLI Rule 1 of the Code. Hence, viewed from any angle this Court is satisfied that the dispense with application cannot be ordered. It is needless to say that the appellant/ petitioner is at liberty to present the appeal in a proper form along with the certified copy of the judgment and decree if the counsel for the appellant is so advised.
viii)In the decision of the High Court of Calcutta Amal Chandra Mondal V. Anita Biswas and Another reported in 2006 (4) CHN at page 644 wherein at paragraphs 22 to 24, it is observed as follows:
....22. With respect, we cannot agree with the decision rendered in Sankari Maity's case (supra), which has also relied upon Sideswar Biswas's case (supra), because of the following reasons:-
(i) In our opinion if any issue, whether it relates to jurisdiction or resjudicata or limitation or maintainability of the suit is answered in favour of the defendants then in that event the suit itself has to be dismissed and nothing remains in that suit to be decided and such decision should held to be a decree.
(ii) Order 7 Rule 11(d) of the Civil Procedure Code stipulates that the plaint should be rejected where suit appears from the statement in the plaint to be barred by any law and such rejection of plaint has been included in the definition of decree in Section 2(2) of the Civil Procedure Code.
(iii) Order 20 Rule 6A of the Civil Procedure Code allows an appeal to be preferred against a decree without filing a copy of the decree and the said provision says that a copy which is made available to the party by the Court shall for the purposes of Order 41 Rule 1 be treated as the decree. Now, it appears that by way of the Amendment Act of 1999, Order 41 Rule 1 stipulates that the memorandum of appeal should be accompanied by the copy of the judgment. Thus, in our view whether formal decree has been drawn up or not, cannot in any way affect the filing of an appeal.
23.For the aforesaid reasons, with respect, we agree with the decision of the Hon'ble Single Judge in the case of Bimal Saha (supra). We hold that the impugned order is deemed decree and an appeal lies against such a decree. In view of our above discussion we cannot accept the submission of the learned Advocate for the respondent that no appeal would like since no decree has been drawn up.
24.But, it appears that the appellants have filed the instant second appeal against the impugned order passed by the learned Revisional Court below. There cannot be any dispute that revisional jurisdiction is a part of the appellate jurisdiction and the learned Court below passed the impugned order by exercising revisional jurisdiction which is a part of the appellate jurisdiction. In such situation, we are of the view, that the impugned order should be treated to be a deemed decree passed by the Court of First Appeal and accordingly, the appellants should have filed second miscellaneous appeal before this Court. We, accordingly, convert the present second appeal into a second miscellaneous appeal and we direct the department concerned to assign an appropriate number to the said case and again place the matter for hearing under Order 41 Rule 11 CPC before the appropriate Bench. We make it clear that we have decided only a preliminary point as indicated above.
34.It is to be relevantly pointed out that this Court in the order dated 12.08.2015 in M.P.No.1 of 2015 in AS.SR.20590 of 2014 at paragraphs 8 and 9 had passed the following order:
8.In view of the fact that the Respondents had clearly averred in paragraph No.3 of the counter affidavit filed in M.P.No.1 of 2014 in A.S.SR.No.20590 of 2014, that the Certified Copies of the judgment and decree were received by the Petitioner/Appellant/Defendant on 21.06.2010 itself and later, the said judgment and decree were also corrected for the typographical error that had crept in and also that the Respondents had received the Certified Copies of the judgment and decree in the year 2010 itself under a Xerox Copy Application No.2191 of 2010, this Court, at this stage, in the interest of justice, directs the Learned Principal District Judge, Coimbatore, to transmit the 'A' Register of the copy Section, to this Court in respect of the relevant period and the same shall be submitted through a Special Messenger, so as to reach this Court by 27.08.2015.
9.Registry is directed to list the matter on 28.08.2015.
35.Also that this Court on 21.09.2015 in M.P.No.1 of 2015 in A.S.SR.20590 of 2014 had passed the following order:
The Learned Principal District Judge, Coimbatore is hereby directed to a) produce the relevant records/register showing the date on which the proof in respect of printed copy of the judgment in O.S.No.150 of 2005 was received from the printer b) send the relevant records/materials showing the date on which the proof was sent to the printer (after the same was compared and read over by the Examiner/Copyist concerned) in regard to the suit in O.S.No.150 of 2005 c) send other materials/records/relevant details to show when the said printed copy of the judgment in O.S.No.150 of 2005 was made ready.
2.That apart, the necessary/relevant documents pertaining to 'call for date' of the printing charges and the date on which the said printing charges were deposited before the Court of the Learned Principal District Judge, Coimbatore insofar as the O.S.No.150 of 2005 is concerned, may be transmitted to this Court through a Special Messenger within a week.
3.Registry is directed to list the matter on 29.09.2015.
36.On behalf of the Respondents, the copy of the official memorandum of the Principal District Court, Coimbatore dated 05.08.2015 in RTI No.138 of 2015 in D.No.655 was filed before this Court and the same runs as under:
OFFICIAL MEMORANDUM OF THE PRINCIPAL DISTRICT COURT, COIMBATORE
RTI No.138/2015 D.No.6555 Dated 05.08.2015
Sub: Petitions under RTI Act Petition of Thiru. K.C.Loghanathan, Advocate, Coimbatore under RTI Act Information furnished Intimation sending of Regarding.
Ref: 1. RTI petition of Thiru. K.C.Loghanathan Advocate,
Coimbatore, dated 16.07.2015 received on 21.07.2015
2. This Court's Official Memorandum in D.No.6131 dated
21.07.2014
3. Report received from the Superintendent, Copying
Section, District Court, Coimbatore in R.No.6763 dated
31.07.2015.
4. Report received from the V Additional District & Sessions
Judge, Coimbatore in R.No.6899 dated 04.08.2015
With reference to the RTI petition dated 16.07.2015 1st cited in the reference, the particulars are furnished based on the information received from the V Additional District & Sessions Judge, Coimbatore and the Superintendent, Copying Section, District Court, Coimbatore, cited in references 4th and 3rd as follows:
Sl
Question
Information
1.
When the Copy Application in C.A.No.514 of 2010 related to the suit in O.S.No.150 of 2005 is filed? And who filed the above CA?
03.03.2010. Thiru.N.Sundaravadivel, Advocate, Coimbatore
2.
What are all the documents sought for in the above copy application in C.A.No.514 of 2010?
Decree and Judgment in O.S.No.150 of 2005
3.
When the Copies of documents asked for in the above copy application in C.A.No.514 of 2010 were made ready?
Filed on 03.03.2010 ready on 21.06.2010
4.
When the certified copy of said documents delivered to the concerned counsel?
Copy delivered date 21.06.2010
5.
Further provide me the copy of said A Register related to the above C.A.No.514 of 2010 and I am ready to pay the required Xerox fees
To file necessary Copy Application for getting certified copy of the A Register extract along with the provision of law under which it is applied.
This is for information.
Sd/-
ASSISTANT PUBLIC INFORMATION OFFICER /
CHIEF ADMINISTRATIVE OFFICER,
DISTRICT COURT, COIMBATORE.
To
Thiru.K.C.Loghanathan, Advocate,
179, Mercicar Road, R.S.Puram,
Coimbatore-02.
37.Apart from that, a copy of the 'Extract of Printing Register of Copyist Section, District Court, Coimbatore in O.S.No.150 of 2005 was filed before this Court and the same runs as under:
1.Printer Sl. No. : 213
2.C.A.No. : 514/2010
3.Case No. : OS.150/2005
4.Applicant : Thiru.N.Sundaravadivelu
5.Call for date : 02.06.2010
6.Deposit Date : 04.06.2010
7.Information given of
Printer : 02.02.2011
8. Proof Received from
Printer : ----
9. Proof Sent to Printer : 10.09.2012
10. Clean Copies Received
from Printer : --
11. Ready Column : 01.07.2013
12. Printing Charges : Rs.1053
// True Copy //
Sd/-
Superintendent
Sd/-
Copied by:
Sd/-
Examiner:
38.A cursory perusal of the 'A Register' Copy Applications of the District Court, Coimbatore (for the period from 01/2010 to 1139/2010 in C.A.514 of 2010 in O.S.150 of 2005) shows that the Applicant was one N.Sundara Vadivelu, who had sought for decree and judgment. Further, in the said 'A Register', it was mentioned that on 31.05.2010, originals in the Copy Department were received. As a matter of fact, the Stamp papers were called for on 02.06.2010 and that 76 stamp papers were deposited on 04.06.2010. On 09.06.2010, it was given to copyist RJ and on 10.06.2010, they were given to the examiners as per initials seen in the 'A Register copy' and the 'Decree and Judgment' was made ready on 21.06.2010 and in reality, 75 stamps were used and one was not used. Date of delivery of the 'Decree and Judgment' was on 21.06.2010 and the signature was affixed under the caption of signature of the Applicant. Also that, it was written in blue ink that printed copies are ready on 20.07/.13. A deepest scrutiny of the date 20.07/.13 latently and patently shows that it was over written thickly. It appears that the figure '20' is smudged. Also the dot after the figure '20' is thicker, the figure '7' is also slightly i.e., 7/. thicker and only the year figure '13' is thinner on appearance. Further, in pencil on the right hand side of the words written, figure was written in blue ink and over and above the figure one, it was written in pencil as '1'. The next to the figure '1', the figure 7.13 are written in pencil and down below that, it was written as 07.02.2014 in a thick fashion.
39.At this stage, this Court very pertinently points out that 'A Register' pertaining to copy Applications of the District Court, Coimbatore being part of the record should be maintained or entries therein should be made in a neat, proper and legible fashion. There should not be any overwriting over the figures entered in the said Register. Also that, in future, smudging be avoided. If figures are written thickly or if they appear thinner, on perusal it may give room for a cloud or suspicion in the considered opinion of this Court. The dates pertaining to, when the printed copies were made ready etc., must be written in an unambiguous fashion, as opined by this Court.
40.Moreover, in Copy Application No.601 of 2010 in O.S.No.150 of 2005, the name of the Applicant was mentioned as K.C.Loganathan and that the description of papers sought for were 'Decree and Judgment'. In fact, the original of the 'Decree and Judgment' were received in the Copyist Department on 27.05.2010. The stamp papers were called for on 02.06.2010 and they were deposited on the same day. The number of stamps was 76. The Decree and Judgment were given to copies on 09.06.2010 and on 10.06.2010, they were given to examiners on 21.06.2010. The Judgment and Decree were made ready and that 75 stamps were used and one stamp paper was unused. The Judgment and Decree were taken delivery on 21.06.2010 and to that effect, a signature of the Applicant was affixed.
41.A glance of the 'A Register' of the District Court, Coimbatore pertaining to Xerox Copy Application numbers for the period from 1117 of 2012 to 2253/12 shows that in Copy Application No.1255/2012, the copy of the 'Final Decree' in I.A.315 of 2011 in O.S.150 of 2005 was sought for by the Applicant K.C.Loganathan and the originals of the 'Final Decree' was received on 19.07.2012 by the Copying Department. As a matter, the stamp papers were called for on 23.07.2012 and on the same day, 7 stamp papers were deposited. The original of 'Final Decree' in I.A.315 of 2011 was given to copyist on 30.07.2012 and that on the same date, it was given to the Examiners. This stamps papers were used for preparing the 'Final Decree' and one stamp paper was unused. The date of delivery of 'Final Decree' in I.A.No.315 of 2011 in O.S.150 of 2005 was on 01.08.2012 and signature was affixed by the concerned to that effect.
42.Insofar as the 'A Register' of District Court, Coimbatore pertaining to Xerox Copy Applications (for the period from 02.11.2012 to 31.12.2012) shows that in C.A.11087 on 09.11.2012 in O.S.No.150 of 2005, the Applicant K.C.Loganathan has sought for 'Preliminary Decree', 'Final Decree', 'Plaint', 'Written Statement' and the originals of all these were received in the Copyist Department on 04.02.2013 and stamp papers were called for on 06.02.2013 for Rs.32/- and non judicial stamp papers were deposited on 12.02.2012, the documents in question were given to the Dxaminers and that 32 stamp papers were used and the documents sought for were delivered on 19.02.2013.
43.As seen from the Printing Register of the Copyist Section pertaining to District Court, Coimbatore in C.A.No.514 of 2010 pertaining to case O.S.No.150 of 2005, the Applicant's name was mentioned as N.Sundara Vadivelu and call for date was mentioned as 02.06.2010. The date of deposit was mentioned as 04.06.2010. Further, the intimation was given to the printer on 02.02.2011 and it was mentioned that the proof was sent to the printer on 10.09.2012. But the significant factor is that the date namely, 10.09.2012 on which the proof was sent to the printer is clearly seen as overwriting in thick fashion. Further, the printed copy was made ready on 01.07.2013 and the printing charges was mentioned as Rs.1053/-.
44.In the decision of this Court, Sheik Meera Saheb and another V. Mohammed Kyathi Saheb reported in 1943 (2) MLJ (Volume II) MLJ at page 517 and at special pages 518 and 519, it is observed and held as under:
In this case an order was passed by the District Munsiff on an application under Order 21, Rule 2, Civil Procedure Code. An appeal was filed with a certified copy of the decretal order and a manuscript certified copy of the judgment was also filed. It would appear that printed copies of the judgment were also applied for in the trial Court and that the application was dismissed as the printing charges were not paid within seven days after they were called for. Along with the appeal memorandum, the appellant presented an application for dispensing with the appeal memorandum, the appellant presented an application for dispensing with the production of printed copies, undertaking to file them later on. The application was granted; the appeal was taken on file and numbered and notice went to the respondents. When with a view to fulfil the undertaking given to the appellate Court the appellant went to the trial Court and asked for printed copies of the judgment, he was met with opposition. A note was made on the copy application evidently by some clerk that under rule 135, clauses (3) and (5) of the Civil Rules of Practice and Circular Orders of the High Court, a second application for a copy of the printed judgment could not be made. Thereupon notice was given to the opposite party who naturally opposed the grant of the application. The District Munsiff heard arguments and dismissed the application, holding that it did not lie. When the appeal was taken up for arguments by the lower appellate Court, this difficulty was mentioned but instead of having the judgment printed in the appellate Court if it was felt necessary, the appellate Judge held that because the appellant had undertaken to produce printed judgments and that was not done, the appeal ought to be dismissed. This is really technicality with vengeance. The order is wholly indefensible. There is nothing in the Rules of Practice prohibiting a second copy application and the respondent's advocate was not able to show me any Circulars or orders to this effect. It was not open to the District Munsiff to say that he would not entertain a second or third or later application. It was his obvious duty to give the printed copy leaving it to to the appellate Court to excuse the delay in producing the printed judgment. The appellate Court in this case granted time to the appellant to produce printed copies of the judgment of the trial Court and this means that the delay in producing printed copies of the judgment of the trial Court and this means that the delay in producing printed copies was excused. The appellant was disabled from fulfilling the undertaking given to the appellate Court to produce printed copies by the curious attitude taken by the District Munsiff. An application to restore the first copy application to file is permissible in proper cases see Ramanuja Iyengar v. Narayana Iyengar [1895) ILR 18 Mad 374] and Bermull Sowcar V Velugramani [1942 (1) MLJ 372]. In these cases the first copy application was dismissed for not supplying copy stamps in time and later on, an application was made to restore the first application and to grant copies. Copies were granted and appeals were filed with those copies. If time for filing the appeals had been calculated treating the second application as an independent one, the appeals would have been barred. In both the cases the Court (Best and Subramania Ayyar, JJ. in the first case and Patanjali Sastri, J., in the other case) held that the appeals were in time and that the second application might in proper cases be treated as a continuation of the first one. It was never doubted that a second application could be entertained and copies granted thereon. It is a travesty of justice for the first Court to deny the appellant a printed copy and for the appellate Court to dismiss the appeal on the ground that printed copies were not produced. Courts are in existence to do justice to the parties and not to dismiss appeals on such grounds. Rules which are designed to promote efficient and good hearing of appeals are grossly abused as they have been done in this case. The appellate Judge might have ordered printing to be done in his Court and to dismiss an appeal under such circumstances betrays utter disregard of his duty. Order 41 Rule 1, Civil Procedure Code clearly gives the appellate Court power to dispense with the production of a copy of the judgment. Only the production of the decree copy is compulsory.
I reverse the decree of the lower appellate Court and remand the appeal to it for disposal. The certified copy of the judgment of the first Court has been printed by the appellate Court for the purposes of this second appeal and this will be utilized for the appeal and the appellant will not be asked to produce any other copy. Costs of all the Courts will abide and he provided for by the lower appellate Court.
45.In the decision State of Assam V. Gobinda Chandra Paul reported in AIR 1991 Gauhwati at page 104 and at Special page 109, whereby and whereunder at paragraphs 14 to 17, it is observed and held as follows:
...14. The discussion was summed up by the Supreme Court in the following words (at page 2327) :
The correct legal position, therefore, is that under S.12(2) read with the Explanation a person cannot get exclusion of the period that elapsed between pronouncement of the judgment and the signing of the decree if he made the application for a copy only after preparation of the decree.
15. Incidentally, the aforesaid judgment of the Supreme Court was also delivered by P.K.Goswami J (as his Lordship then was) who had delivered the judgment of the Division Bench of this Court in Naimuddin Ahmed (1972 Assam LR 8) (supra)
16. In view of the clear pronouncement of the Supreme Court and this Court, the interpretation of S.12(2) read with the explanation cannot be a subject matter of further judicial controversy. It is now well settled that under S.12(2) of the Limitation Act, 1963 read with the Explanation, the appellant is not entitled to exclude the time that had elapsed from the date of the judgment till signing of the decree prior to his application for a copy thereof in computing the period of limitation prescribed by for filing the appeal.
17.The facts of this case may now be examined in the light of the law stated above, for that purpose, it is expedient to note the relevant dates. The judgment of the trial Court was delivered on 23-12-81. The decree was signed on 19-1-82. Application for certified copy was made on 7-1-82. The requisites were notified on 19-1-82 and the same were supplied on 22-1-82. Certified copy was ready on 1-2-82 and the appeal was filed on 23-2-82. In computing the period of limitation, the lower appellate court excluded the time requisite for obtaining the copy from the date of the application that is 7-1-82. Evidently, there was a time lag between the date of judgment and the date of preparation of the decree. The time taken in preparation of the decree after the application for copy was filed was taken into account in calculating the time requisite for obtaining the copy. However, the time taken by the Court before the application for a copy of the decree was made was not taken into account. If that time is also taken into account in computing the time requisite for obtaining the copy, the appeal will not be barred by limitation. Otherwise, the undisputed position is that it was barred. In view of the well-settled legal position emerging from the foregoing discussion, it is clear that such time cannot be taken into account in calculating the time requisite for obtaining the copy. The appeal is, therefore, barred by limitation.
46.There is no two opinion of a candid fact that a 'Decree' must agree with the Judgment as per decision Pandurang V. Saraswatibai [AIR 1976 (Bom) at page 369]. As a matter of fact, a 'Decree' must correctly express what is really decided and intended by the Court as per decision Bishnu Charan V. Dhani Biswal [AIR 1977 (Orissa) 68]. A conjoint reading of Section 33 (Judgment and Decree) and Order 20 Rule 6 (contents of Decree) of the Civil Procedure Code makes it clear that once judgment is delivered and signed, the Decree automatically follows. Even drawing up of 'Decree' cannot be postponed for non payment of Court fees. Further, Or.20 R.6-A of the Civil Procedure Code speaks of 'Preparation of Decree'. In fact, Or.20 R.6A of the Civil Procedure Code can be pressed into service only when the Copy Application was filed within the period of limitation in accordance with Section 12 of Limitation Act, 1963. Or.20 R.6-B refers to 'Copies of typewritten Judgments when to be made available'. Order 20 R.6-B of the Civil Procedure Code relates to making available copies of Judgment to the parties immediately after the pronouncement of Judgment for preferring an 'Appeal' on payment of such charges according to the rules framed by the High Court. Or.20 R.7 of the Civil Procedure Code deals with 'Date of Decree', and under this rule, the decree comes into existence on the date of Judgment though it is signed later as per decision Venkataraya V. Mallappa [1946 (1) MLJ 163]. The term of 'Date of Decree' does not mean the date when it is reduced into writing and signed, but the date on which the Judgment is actually delivered. For the purpose of filing an 'Appeal', time runs from the date of pronouncement of the Judgment as per decision Kamala Mining V. Daulatram [AIR 1968 (AP) 138]. It is well settled principle in Law, that 90 days time for filing the 'Appeal' are to be computed from the date of 'Judgment', but the 'time requisite' for obtaining copy is excluded. In fact, the term 'Date of Decree' in Art.123 of the Limitation Act, 1963 should be construed in terms of Or.20 R.7 of the Civil Procedure Code and therefore, means 'the date when the Judgment is pronounced'. A time for execution of 'Decree' should be computed from the date when the 'Judgment' is delivered and not when the 'Decree' is signed. The time spent in drawing up of a 'Decree' cannot be excluded for the purpose of limitation for filing an Application for execution as per decision Champshi V. Bhailal [AIR 1968 (Guj) 189].
47.If a 'Final Decree' is to be prepared in terms of directions given in the 'Preliminary Decree', the 'Final Decree' is to be taken into account for the purpose of limitation (vide Art. 136 of the Limitation Act, 1963). Also that, there is a distinction between the 'Passing of a Decree' and the 'Drawing of a Decree'. However, if the drawing of a 'Decree' is postponed, until the plaintiff does a certain act and it is competent for the plaintiff to do that act immediately, the law will presume that the plaintiff has done that act immediately and as such, even if the plaintiff delays doing of that act still the Decree when drawn up will bear the date on which the Judgment was pronounced as per decision Bai Vasanti V. Suryaprasad [AIR 1969 (Guj) pag 152].
48.It is to be pointed out that under Section 3 of the Limitation Act, 1963, it is the duty of the Court of first instance to dismiss a suit, if it is barred by limitation, whether the plea of limitation has been taken by the defendant or not as per decision Gulam Khan V. Mohammad Hassan [(1902) ILR 29 (Cal) 67]. Likewise, it is the duty of the Appellate Court to dismiss an Appeal before it, if the Appeal was barred by limitation when presented, whether limitation has been set up as a defence or not i.e., if it is the First Appeal, the Appeal should be dismissed by the First Appellate Court and if it is the Second Appeal, it should be dismissed by the Second Appellate Court. It is true that the ingredients of Section 107 of the Civil Procedure Code specifies that the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred as imposed on Courts of Original Jurisdiction in respect of suits instituted therein.
49.At this stage, this Court aptly points out the decision [AIR 2000 (NOC) 1492 (Ori) DB] wherein it is held that the 'Memorandum of Appeal' filed without certified copy of 'Decree' is rejected as not maintainable.
50.At the risk of repetition, it is to be pointed out that Or.41 R.1 of the Code of Civil Procedure (Act V of 1908) specified that the 'Memorandum of Appeal' shall be accompanied by a copy of the Decree, appealed from and (unless the Appellate Court dispenses therewith) of the Judgment on which it is founded. Also that, the copy of the 'Judgment' shall be a printed copy for an 'Appeal'. Also, Or.41 R.3 of the Code of Civil Procedure, 1908 mentioned as follows:
3.When an appeal is presented after the period of limitation prescribed therefor, it shall be accompanied by a petition supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period, and the Court shall not proceed to deal with the appeal in any way (otherwise than by dismissing it either under rule 11 of this Order or on the ground that it is not satisfied as to the sufficiency of the reasons for extending the period of limitation) until notice has been given to the respondent and his objections, if any, to the Court acting under the provisions of Section 5 of Act IX of 1908, have been heard.
51.Or.41 R.1 of the Civil Procedure Code, 1908 by virtue of the Code of Civil Procedure (Amendment) Act, 46 of 1999 with effect from 01.07.2002 specifies that the 'Memorandum of Appeal' shall be accompanied by a copy of the 'Judgment' and the word 'Judgment' was substituted for 'Decree' appealed from and unless the Appellate Court is dispensed with therewith. But the Amendment made by the Tamil Nadu Gazette dated 04.01.1984 Part III pg 388 S.2. Page 2 (1) in Or.41 for sub rule (1) said that the 'Memorandum of Appeal' shall be accompanied by a certified copy of the 'Decree' appealed from and (unless the Appellate Court dispenses therewith) by a certified copy of the 'Judgment' on which it is founded and by such number of typewritten or cyclo-styled or printed or mechanically reproduced copies of the Judgments as are necessary to serve on the Respondents to the Appeal and four additional copies for the use of the Court. Added further, this Court amendment to Or.41A of the Civil Procedure Code (relating to Appeals to the High Court from Original Decrees of Sub-ordinate Courts) inter-alia reads that Appeal shall be accompanied by 12 printed copies of the Judgment, one of such copies being a certified copy, the prescribed fees for service of notice of appeal etc. From the above, as on date, it is lucidly clear that as per Or.41 of the Civil Procedure Code (after amendment w.e.f. 01.07.2002) the 'Memorandum of Appeal' shall be accompanied by a copy of the 'Judgment' (instead of Decree) but the Or.41 R.1 of 'Appeals from Original Decrees' when it deals with 'Form of Appeal' only mentions that words the 'Copy of the Judgment'. It does not say categorically that the copy of the judgment should be obtained in non judicial stamp papers or in printed form. However, the Madras High Court Amendment of Or.41-A enjoins that the Memorandum of Appeal shall be accompanied by 12 printed copies of the Judgment, one of such copies being a certified copy etc.
52.In the instant case on hand, the Petitioner/Appellant/Defendant has filed the printed copy of Judgment in O.S.150 of 2005 on the file of the trial Court and has filed the Appeal based on the said copy. It is an admitted fact that the Petitioner/Appellant/Defendant has not filed the present Appeal either with the certified copy of Judgment of the trial Court in O.S.No.150 of 2005 prepared in non judicial stamp papers or with the xerox copies of the same. As a matter of fact, the Petitioner/Appellant/Defendant had obtained the certified copy of the 'Judgment and Decree' (not the printed copy of Judgment) from the trial Court on 21.06.2010 itself. Apart from that the Respondents/Plaintiffs had also obtained the copy of 'Judgment and Decree' on 21.06.2010 under Copy Application Nos.601 & 625 of 2010. Moreover, they had also received copy of 'Preliminary Decree' and Judgment on 19.02.2013 in Copy Application No.1087 of 2012 and they received the copy of 'Final Decree' on 01.08.2010 under Copy Application No.1255 of 2012 for filing the same into Registrar's office and also to file Execution Petition.
53.It is quite evident in the present case that the Petitioner/Appellant/Defendant has not preferred the instant Appeal with the certified copy of 'Judgment and Decree' (prepared in Non Judicial Stamp papers or the xerox copy of the same in O.S.No.150 of 2005 on the file of the trial Court) before this Court. Further, he has filed a Miscellaneous Petition No.2 of 2014 before this Court in the present Appeal seeking to dispense with the production of original copy of 'Decree' dated 26.02.2010 of the trial Court in the main suit in O.S.No150 of 2005 on 25.04.2014 and that the Petitioner/Appellant was permitted to withdraw the Miscellaneous Petition as per endorsement dated 19.10.2015 and accordingly, the said Miscellaneous Petition was dismissed as withdrawn by this Court. It is to be relevantly pointed that the filing of requisite copy of 'Printed Judgments' may be dispensed with by the Registrar only for the present as per Or.II R.4(16) of the Rules of the High Court, Madras Appellate Side, 1965.
54.It is to be remembered that the Petitioner/Appellant/Defendant in the instant case for reasons best known to him has not preferred the present Appeal in A.S.SR.No.20590 of 2014 with the original certified copy of 'Judgment and Decree' obtained by him under Copy Application No.514 of 2010 in respect of O.S.150 of 2005 on the file of trial Court (either obtained in Non Judicial Stamp papers or the xerox copies). Per contra, he has filed the present Appeal before this Court with the aid of printed copy of Judgment obtained by him passed in the main suit in O.S.150 of 2005 dated 26.02.2010, which according to him is also duly certified by the Competent Officer of the trial Court.
55.Coming to the aspect of the validity of the Petitioner/Appellant/Defendant filing a printed copy of Judgment in O.S.No.150 of 2005 passed by the trial Court which according to the Learned Senior counsel for the Petitioner/Appellant is also certified copy, duly attested by the concerned officer of the trial Court and in this regard, Or.41 R.1 only speaks of 'Copy of the judgment', it is to be pointed by this Court that ordinarily in respect of 'First Appeal matters' the suitors/aggrieved persons would not project the Appeal/Appeal(s) with the printed copy/copies of Judgment before the First Appellate Court, although the said printed copy of Judgment(s) was/were duly certified by the officer concerned of the trial Court, unless the rule mandates in this regard.
56.It is to be borne in mind that after amendment of the Civil Procedure Code by means of Act 46 of 1919 with effect from 01.07.2002 in Or.41 R.1 under the caption Form of Appeal after the words copy of the' term 'Judgment' is shown in brackets'. The word 'Judgment' though substituted for the term 'Decree' in view of the specified amendment to Or.41 R.1 of the Civil Procedure Code with effect from 01.07.2002 in and by which, the term 'Judgment' was inserted under Or.41 R.1 of the Civil Procedure Code replacing for the word 'Decree' and also this Court taking note of the fact that the Madras High Court Amendment to Or.41 A specifies that the memorandum of appeal shall be accompanied by 12 printed copies of Judgment while satisfying the requirements of Or.41 R.1 and Or.41A of the Civil Procedure Code for the purpose of entertaining an Appeal.
57.Insofar as the term 'Decree' is concerned, generally, all Decrees are appealable unless the Appeal is barred by under Civil Procedure Code. Although the term 'Judgment' is employed under Or.41 R.1 of the Civil Procedure Code. Also, the Madras High Court Amendment in respect of Or.41-A of the Civil Procedure Code speaks of 12 printed copies of judgment, one of such copies being a certified copy shall be accompanied with the Memorandum of Appeal. Also that, it is open to a litigant to seek for dispensing with the filing of the requisite copy of printed judgments before the Registrar of this Court only for the transiting period as envisaged under Or.II R.4(16) of Appellate Side Rules of this Court. Although the term is employed in Or.41 R.1 of the Civil Procedure Code, the Madras Amendment to Order 41A to the Civil Procedure Code speaks of Memorandum of Appeal . In this connection, this Court significantly points out that by an Amendment Act 46 of 1999 (w.e.f. 01.07.2002) to Or.41 R.1 of the Civil Procedure Code, it would suffice that 'Memorandum of grounds of Appeal'is accompanied by a copy of the Judgment and the filing of the copy of the Decree is deleted/substituted.
58.At this stage, this Court points out that in the decision Damodar Das V. Gokal Chand and Others reported in (1885) ILR 7 All at page 79 at paragraph 1, the Hon'ble Justice Oldfield had observed the following:
1.In my opinion, the words at or before the first hearing in Section 53 of the Civil Procedure Code are directory only, and allow of a discretion, of course to be properly exercised, of rejecting or amending a plaint after the first hearing.
Further in the aforesaid decision, there is a reference to the decision Modhev V. Dongre [I.L.R. 5 Bom. 609] wherein (Straight, the Hon'ble Offg. Chief Justice and Hon'ble Judges Brodhurst and Duthoit) at paragraph 6 had observed as under:
As we have before remarked, when a Court exercises its discretion under Section 53, the appeal from its decision must be confined to the question of whether, looking to the plaint itself, such discretion has been properly exercised, and the merits of the case cannot be examined. We may perhaps not inappositely add that in the later section of the Code, which deals with the rejection or amendment of a memorandum of appeal, no limitation as to the time when that may be done is provided,-- a circumstance that is not without significance.
59.Be that as it may, it is to be noted that the right of Appeal is only provided against the 'Decree' and not against the 'Judgment' under Section 96 of the Civil Procedure Code. No wonder, a party/litigant preferring an Appeal ordinarily is aggrieved against the Decree passed against him. In reality, the Decree passed in a main suit by a competent trial Court is only to be executed by the Decree Holder. As on date, the present Civil Procedure Code dispenses with the filing of the copy of the Decree. Therefore, in the considered opinion of this Court there must be a power conferred on a Court of Law to dispense with the production of the copy of the Decree in appropriate cases, of course, on good/sufficient cause being projected for its non filing together with the Judgment and Memorandum of Grounds of Appeal and this aspect requires an indepth deliberations and discussions etc., for bringing a suitable amendment in the near future, as opined by this Court.
60.As far as the present case is concerned, admittedly, the Petitioner/Appellant/Defendant has filed the Appeal in A.S.SR.No.20590 of 2014 with one printed copy of Judgment of O.S.No.150 of 2005 (duly certified by the Competent Officer of the trial Court). He has not filed the remaining 11 printed copies of Judgment accompanying the Appeal as required by the Madras High Court amendment to Or.41A (2) of the Civil Procedure Code. In fact, the requirement of 11 (necessary) printed copies of Judgment is obviously meant to serve on the Respondents to the Appeal and for the use of the Courts concerned. Further, he has not sought for dispensation of 11 requisite copies of Printed Judgments of the trial Court in O.S.No.150 of 2005 before the Registrar of this Court in terms of Or.2 R.4(6) of the Appellate Rule, 1965 of this Court. As such, the Appeal filed in A.S.SR.No.20590 of 2014 in present form is incomplete and suffers from procedural defect/infirmity which cannot be cured at this distant point of time. Therefore, the Appeal is incompetent in the eye of Law. Viewed in that perspective, the Appeal in A.S.SR.No.20590 of 2014 filed by the Petitioner/Appellant is rejected.
61.In regard to the delay of 18 days in preferring the Appeal in A.S.SR.20590 of 2014 by the Petitioner/Appellant/Defendant is as against the Judgment and Decree dated 26.02.2010 in O.S.150 of 2005 on the file of the Learned Additional District Judge, FTC-III, Coimbatore, the Petitioner/Appellant/Defendant in M.P.No.1 of 2014 in A.S.SR.No.20590 of 2014 at para 5 had only stated that he applied for certified copy of Judgment through his counsel on 03.03.2010 itself and the same was called for on 02.06.2010 and necessary fee was deposited on 04.06.2010 itself. Also, he had stated that the said certified copy was ready only on 20.11.2013 owing to the inordinate delay, the readiness was known only later and the copy was finally delivered on 07.02.2014. Further, after receiving the certified copy of Judgment, he came to Chennai and approached the counsel on record and instructed them to file an Appeal also that the other reason assigned on behalf of the Petitioner/Appellant is that his advocates advised him to bring him some vital papers to prefer the Appeal and it took several days to make search and bring the same, in that process there had occasioned a delay of 18 days.
62.In this connection, it is not out of place for this Court to relevantly make a mention that at paragraph 5 of M.P.No.1 of 2015 in A.S.SR.20590 of 2014 (condone delay petition) that nowhere the Petitioner/Appellant/Defendant had employed the words 'Printed copies of the Judgment'. It is represented on behalf of the Petitioner/Appellant/Defendant that the 'Printed copy of Judgment' which is duly certified by the Superintendent of Copyist Section of the trial Court is also a Certified Copy and the Petitioner/Appellant/Defendant with the aid of the same has filed the present Appeal which satisfies the requirement of amended Or.41 R.1 of the Civil Procedure Code (The Memorandum of Appeal shall be accompanied by a copy of the Judgment (vide Act 46 of 1999 w.e.f. 01.07.2002).
63.On the side of the Respondents/Plaintiffs, the plea of the Petitioner/Appellant/Defendant is that there is a delay of 18 days in preferring the present Appeal in A.S.SR.No.20590 of 2014 is repudiated and the contention put forward is that the Petitioner/Appellant after receiving the 'Judgment and Decree' copy dated 21.06.2010 in O.S.No.150 of 2005 on the file of the trial Court under C.A.514 of 2010 has not preferred the Appeal in time and in this regard, he remained as a silent spectator.
64.It is true that Or.41 R-3A of the Civil Procedure Code deals with 'Application for Condonation of Delay'. A combined reading of Or.41 R.3A(1) and (2) makes it candidly clear that the purpose of requiring the filing of an application for condonation of delay under R3A-1 of Or.41 along with the time barred appeal is mandatory in the sense that the Appellant cannot, without such application being decided, insist upon the Court to hear the time barred 'Appeal'. Also that the tenor of Sub Rule 2 and Rule 3 A of Order 41 of the Civil Procedure Code makes it imperative on the part of an Appellate Court to decide the question of limitation and puts an embargo on the Court's power to proceed further with the 'Appeal'. In short, the 'Appeal' cannot be heard even on the question of admission much less on merits. In substance, there is no 'Appeal' before the Court unless the delay is condoned. It can clearly be stated that the intention of the legislature is that unless the delay is condoned, it cannot be treated in law that there is an 'Appeal' before the Court as per decision R.C.Chandhry V. Prestige Finance and Chit Fund [AIR 1996 Del 382]. Or.41 R.3A of the Civil Procedure Code gives an additional right to a party to claim condonation at the time of presenting the 'Appeal' as per decision Nirmala Chaudhaly V. Bishesharlal [AIR 1979 Del at page 26].
65.It is to be pointed out that a Three-Judge Bench of the Hon'ble Supreme Court has held that Where application for condonation of delay in filing an 'Appeal' is dismissed and consequently, the 'Appeal' itself is dismissed as time barred due to refusal to condone the delay, the order of dismissal of appeal is nevertheless a decision in Appeal . Therefore, the explanation appended to Or.9 R.13 would apply and an application under Or.9 R.13 of the Civil Procedure Code is not maintainable against the Ex-Parte Decree after dismissal of the appeal as per decision Shyam Sunder Sharma V. Pannalal Jaiswal [AIR 2005 (SC) 226].
66.At this stage, it is worthwhile for this Court to point out the decision of this Court in 1995 (II) CTC 465 C.M.P.No.8010 of 1993 in O.S.A.No.107 of 1993 (Shoba Viswanathan V. D.P.Kingsley) whereby and whereunder at paragraphs 3 and 4, it is observed as follows:
3. In Krishnasami Panikondar V. S.R.M.A.R.Ramasami Chetty and others (34 MLJ 63), the Privy Council held that the question of limitation should not be left open till the hearing of the appeal, although it was till then the usage in India. The Privy Council categorically ruled that the Courts in this Country should adopt a procedure which will secure at the stage of admission the final determination of any question of limitation affecting the competence of an appeal. It is pointed out that the admission of an appeal after the period of limitation deprives the respondent of a valuable right, for it puts in peril the finality of the decision in his favour and where such an order is made ex parte, it is open to reconsideration at the respondent's instance.
4. This position in law as laid down by the Privy Council is now recognised statutorily under Order XLI, Rule 3A of the Code of Civil Procedure, introduced by the Amendment Act 104 of 1976. Under that provision, if an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period. Clause (2) provides that if the Court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under Rule 11 or Rule 13, as the cse may be. Hence also, the language is mandatory. Thus, it is the duty of the court to decide the question of condonation of delay before the appeal is taken on file.....
67.Also this Court aptly refers to the decision Kommidi Mahender Reddy V. Kommidi Suryamma [2007 (5) Andhra Legal decisions at page 90 and at special page 91] whereby and whereunder it is observed as follows:
It is true that while exercising the jurisdiction under Section 5 of the Limitation Act generally the Courts are liberal so as to advance substantial justice to the parties by deciding the dispute on merits. However, this is a case where the explanation offered by the petitioner was found to be false. The finding recorded by the court below to that effect was based on the authenticated record which shows that the petitioner was physically present before the Judicial magistrate of First Class, Sulthanabad on various dates between 04-10-2005 to 25-11-2005. Having found that the petitioner's plea was false and incorrect, the Court below had rightly declined to condone the delay. May be the delay was only 47 days, however since the conduct of the petitioner was not bona fide which itself shows that the delay was on account of deliberate inaction, sufficient cause cannot be said to be made out within the meaning of Section 5 of the Limitation Act. (Paras 5,6 )
68.In the decision, AIR 1992 PATNA 146 (Birendra Nath Singh V.Santa Devi and Others) it is observed and held as follows:
Leading of oral evidence while adjudicating an application under O.41, R.3(2) or S.5 Limitation Act is not permissible. The question of limitation has to be decided on the basis of affidavits filed on record. It was open to the petitioner-appellant first to have filed the affidavits of persons named by him in the limitation petition or in any view of the matter not after the closing of arguments and when case was fixed for reply.
69.Undoubtedly, an existence of a valid cause/sufficient cause is a condition precedent to be satisfied by a party when he files an application seeking the permission of a Court of Law to condone the delay in question. No wonder, 'condondation of delay' is not an empty ritualistic formality. Conversely, it creates a valuable right accrued to the opposite party and the same cannot be so easily taken away by a Court of Law, in a cavalier fashion. It is to be pertinently pointed out that the Petitioner/Appellant/Defendant filed M.P.No.1 of 2014 in A.S.SR.No.20590 of 2014 (seeking to condone the delay of 216 days in representing the Appeal under Or.4 R.9(4) of the Appellate Side Rules) before this Court and the same was condoned by this Court on 20.11.2014. It is to be noted that a litigant seeking condonation of delay shall plead and especially, that he was neither careless nor negligent in prosecuting the legal proceedings at a given point of time. Further, this Court cites the decision of the Hon'ble Supreme Court H.Dohil Constructions Company Private Limited V. Nahar Exports Limited and Another reported in (2015) 1 Supreme Court Cases 680 at Special Page 681 whereby and whereunder at paragraphs 19 & 24 it is held as follows:
...19.It is true that the delay in filing the appeals was only 9 days and that the longer delay was only relating to the refiling of the appeal papers. But even if it is related to refiling of the appeals, the net result is that the appeals could be taken into records only when such a delay in refiling is condoned. Therefore, if the refiling had been made within the time granted by the Registry of the High Court, no fault can be found with anyone much less with the party concerned or whomsoever was entrusted with the filing of the papers into the registry. But when an enormous delay of nearly five years occurred in the matter of refiling, it definitely calls for a closer scrutiny as to what was the cause which prevented the party concerned from refiling the papers in time to enable the Registry to process the papers and ascertain whether the papers were in order for the purpose of numbering the appeals.
24. The failure of the respondents in not showing due diligence in filing of the appeals and the enormous time taken in the refiling can only be construed, in the absence of any valid explanation, as gross negligence and lacks in bona fides as displayed on the part of the respondents. Further, when the respondents have not come forward with proper details as regards the date when the papers were returned for refiling, the non-furnishing of satisfactory reasons for not refiling of papers in time and the failure to pay the Court fee at the time of filing of appeal papers on 06.09.2007, the reasons which prevented the respondents from not paying the court fee along with the appeal papers and the failure to furnish the details as to who was their counsel who was previously entrusted with the filing of the appeals cumulatively considered, disclose that there was total lack of bona-fides in its approach.
70.As far as the present case is concerned, the Petitioner/Appellant had received the copy of the 'Judgment and Decree' on 21.06.2010 in O.S.150 of 2005 on the file of trial Court vide C.A.No.514 of 2010, but has not chosen to approach this Court for filing an Appeal, (as an aggrieved person), at the earliest point of time. In the instant case, the Respondents/Plaintiffs after passing of 'Preliminary Decree' in O.S.150 of 2005 on the file of the trial Court dated 21.06.2010, had obtained the said copy of the 'Preliminary Decree and Judgment' on 21.06.2010 vide C.A.601 & 625 of 2010. Later, they received the copy of 'Preliminary Decree' again on 19.02.2013 under C.A.1087 of 2012. Besides the above, they received the copy of 'Final Decree' on 01.08.2012 vide C.A.1255 of 20102 for filing the same into registrar office and also to file Execution Petition.
71.It comes to be known that the Executing Court by an order dated 03.04.2014 in E.A.No.3 of 2014 in E.P.No.21 of 2012 in O.S.No.150 of 2005 on the file of the trial Court permitted the Respondents/Decree Holders to participate in the 'Auction Sale' and the same was challenged by the Petitioner/Appellant by way of CRP (NPD) No.1930 of 2014 and the same was dismissed by this Court on 19.09.2010 because of the reason that it was brought to the notice of this Court that the sale was already over and sale amount of Rs.1,25,02,000/- was deposited before the Executing Court on 02.06.2014. At the admission stage itself, this Court has dismissed the CRP NPD 1930 of 2014 as not maintainable.
72.As a matter of fact, the Petitioner/Appellant in M.P.No.1 of 2015 in A.S.SR.No.20590 of 2014 had filed the true xerox copy of the Decree in O.S.No.150 of 2005 (duly certified by the Head Clerk of the District and Sessions Court, Coimbatore). A perusal of the said true xerox copy of the Decree (filed by the Petitioner/Appellant/Defendant) shows that the xerox copy application was 170 of 2015 (seeking copy of the Decree of the trial Court) and that the application was made on 07.01.2015 and stamps were called for on 17.06.2015 and stamps were deposited on 19.06.2015. In fact, the true xerox copy of the Decree (applied for in Copy Application No.170 of 2015) was made ready on 19.06.2015 and the same was delivered on 19.06.2015, as seen from the signature of the Head Clerk of the District and Sessions Court, Coimbatore.
73.In the instant case on hand, though an endeavour on behalf of the Petitioner/Appellant was made to ascribe the reasons for the delay of 18 days in question pertaining to the filing of A.S.SR.No.20590 of 2014 by stating that in terms of paragraph 5 of the M.P.No.1 of 2015 is that he applied for the certified copy of Judgment through his counsel on 03.03.2010 itself and the same was called for on 02.06.2010 and necessary fee was deposited on 04.06.2010 itself and also, he had stated that the said certified copy was ready only on 20.11.2013 and ultimately, the copy owing to the inordinate delay, the readiness was only known later and the copy was finally ready on 07.02.2014 etc., in the considered opinion of this Court, these reasons are not quite convincing in nature and further, they have not been satisfactorily explained to the subjective satisfaction of this Court. Since the explanations offered on behalf of the Petitioner/Appellant/Defendant that the copy was finally delivered on 07.02.2014 and that immediately, after receiving the same, he had come to Chennai and approached the counsel on record and instructed them to file an Appeal and the counsel advised him to bring the vital papers for preferring the Appeal are not valid ones and also, they lack in bona-fides,hence, this Court is not in a position to exercise its sound judicial discretion in condoning the delay of 18 days in question. Looking that from any angle, the M.P.No.1 of 2015 in A.S.S.R.No.20590 of 2014 is devoid of merits and the same is dismissed without any costs.
[S.M.K., J.] [M.V., J.]
26.10.2015
26.10.2015
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