C. Sundaram Aiyar vs Raja Rajeswara Muthuramalinga, Sethupathi Averghal through his authorised agent and Dewan Rao Sahib S. Thirumalai Aiyangar

Kumaraswami Sastri, J.—This is an application to vacate an exparte order excusing the delay in re-presentation and to dismiss the second

appeal with Costs.

The Second Appeal in which the Rajah of Ramnad is the appellant was filed in time but without a copy of the decree appealed against. The

papers were returned for representation with a copy of the decree. When the copy of the decree was filed, the appeal was 53 days out of time as

the papers were returned on the 6th of December 1918 and the decree was filed on the 16th of January 1919. On the 18th of January 1919 the

papers were again returned with the remark that the appeal became out of time when the copy of the decree appealed against was filed and that an

affidavit explaining the cause of the delay should be filed. On the 20th January 1922 the papers were again presented with an affidavit and orders

were obtained from me on the same day excusing the delay. The petitioner who was served with notice of the appeal on the 15th'' of April 1922

has filed this application on the 13th November 1922 for setting aside the exparte order passed.

There can be little doubt that, though the second appeal was presented in time, there was no valid presentation because the memorandum of

appeal was not accompanied by a copy of the decree appealed against. Order 41. Rule 1. is imperative and states that a memorandum of appeal

shall be accompanied by a copy of the decree appealed against. In Sirikantha Roy v. Bipra Das (1919) 27 I.C.447, it was held that it was a

condition precedent to there being a valid memorandum of appeal that it should be accompanied by a copy of the decree appealed from. The

same view was taken in Binapani Bibi v. Sashibhushan (1912) 16 C.L.J. 133 ; Khirodi Sundari Debt v. Jnanendra Nath Pal Chaudhuri (1901) 6

C.W.N. 283 ; and Chamela Kuar v. Amir Khan ILR 16 All. 77 . In Dand Bahadur Singh v. Deo Nandan Prosad (1913) 20 I.C. 513, it was held

that where an exparte order is passed excusing the delay, it is open to the other party to apply to have it set aside. There can be little doubt that

Courts have power to excuse the delay in the presentation of a copy of the decree appealed against and I need only refer to Binapani v.

Sashibhusan (1912) 16 C.L.J. 133 Hem Chandra v. Jadab Chandra (1912)46 C.L.J.116 and Prosonno Kumari v. Ram Chandra (1912) 17

C.L.J 66 where it has been held that it is open to the Court to pass an order that a certified copy of a decree be received and attached to the

memorandum of appeal if it is satisfied that the discretion vested in it u/s 5 of the Limitation Act should be exercised in favour of the appellant.

The question here is whether the delay should be excused. So far as the affidavit filed on behalf of the appellant is concerned, the reason for not

filing the copy of the decree appealed against along with the memorandum of appeal is that the Dewan of the appellant did not send a copy of the

decree along with the papers to be filed and that as the last day for filing the appeal was the 7th November 1918 the clerk of Mr. A.

Krishnaswami Aiyar Vakil for the appellant, filed the appeal without the copy of the decree. On the application to set aside the ex-parte order

excusing the delay, no affidavit has been filed either by the appellant or his Dewan or any other person explaining why a copy of the decree was

not sent along with the other papers or why there was a delay of 53 days. In the absence of any explanation I am of opinion that the delay has not

been properly explained. I am, after hearing the petitioner, of opinion that the long delay has not been explained so as to justify me in exercising my

discretion u/s 5 of the Limitation Act and excuse the delay in the presentation of the appeal as the authorities which have been cited to me by the

petitioner''s Vakil show that the second appeal itself was incompetent at the time of presentation owing to the absence of a copy of the decree

appealed against.

I, therefore, set aside my order excusing the delay and direct that the Second Appeal be posted for orders before a bench.

(This second was eventually dismissed on the ground of delay in presentation by Spencer and Venkatasubba Rao, JJ. Rep.).