Dig Vijay Singh vs Mahavir Gupta

Sunil Hali, J.—Feeling aggrieved by an order of ejectment passed by the Additional Munsiff, Samba vide his judgment dated 10-6-2004,

the appellant filed an appeal before the Additional District Judge, Jammu on 21-7-2004. A preliminary objection was taken by the respondent that

the appeal is not competent, as it is not accompanied by a copy of the decree sheet. First appellate Court after hearing the parties, dismissed the

appeal vide its judgment dated 30-10-2007 holding thereby that the present appeal was not competent, as it was not accompanied by a decree

sheet. It is under these circumstances, that the present appeal has been filed.

I have heard the learned Counsel for the parties and perused the record.

The appellant preferred an appeal against the order dated 10-6-2004 without accompanying a decree sheet as required under Order 41 Rule 1

CPC, the same is quoted hereinbelow:

Form of appeal. What to accompany memorandum:

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 decree appealed from and (unless the Appellate Court

dispenses therewith) of the judgment on which it is founded.

The mandate of Order 41 Rule 1 is that an appeal has to be accompanied by a certified copy of the decree sheet. The settled law is that the

memorandum of appeal has to be accompanied by a certified copy of the decree sheet and absence of decree sheet makes the appeal ineffective

and incompetent. The only exception, which the Jaw permits regarding non-filing of certified copy of decree sheet, is failure on part of the Court

below to frame the decree sheet within time prescribed by law. In this regard, the appellant is required to show to the Court by a proper

application that despite his best efforts to procure the certificate copy of the decree sheet, he could not obtain the same, as the trial Court had

failed to prepare the decree sheet. The time taken by the office Or the Court in drawing up a decree after the litigant applies for certified copy of

judgment being pronounced, would be treated as time taken for obtaining certified copy of the said decree. If the appellant does not take any step

to procure certified copy of the decree nor he does file any application indicating the reasons for not accompanying the certified copy of the

decree, non production of the same shall be fataled and the appeal could not be competent. If the appellant fails to obtain certified copy of the

decree sheet, which had been prepared well within time, but on account of his negligence or improper advice, he does not apply for the same; the

penalty of dismissal of the appeal would be justified.

In the present case, the judgment was passed on 10-6-2004 and the decree sheet was also prepared on 10-6-2004. The appellant filed an

application on 24-9-2005 seeking permission to place certified copy of the decree sheet on record. In the said application, he stated that due to

bona fide mistake that he had not filed certified copy of the decree sheet at the time of presentation of the appeal. Appellant had filed an

application for procuring certified copy of the decree sheet after a lapse of one year from the date the decree is passed. The appellate Court after

hearing the appellant, has rightly dismissed the appeal on the ground that he did not come in the exception enumerated hereinabove. Reliance has

been placed on judgment titled Jagat Dhish Bhargava Vs. Jawahar Lal Bhargava and Others, , in which the Court held:

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 Order 41 with regard to the filing of

the decree being of a mandatory character. It would be difficult to accede 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....

The finding returned by the appellate Court is legally correct. The appellant took no steps to procure certified copy of the decree sheet, which

was prepared on the same date when the judgment was passed i.e. 10-6-2004. He filed an application for obtaining certified copy of the decree

sheet after a lapse of one year. The appeal under these circumstances of the case, is incompetent and could not have been entertained. The other

submission made by the appellant is that this defect-should have been detected by the appellate Court at the time of filing of appeal. Once the

appeal was filed due to mistake of the office, the option left with the Court was to direct the appellant to file certified copy of the decree sheet. His

argument is misconceived, as the omission on part of the office of appellate Court in not detecting this defect would not care the basic defect in

filing of the appeal. The appeal admittedly was not accompanied by a decree sheet which is mandate of Order 41 Rule 1. It has also been admitted

that it was only due to negligence on part of the appellant that he failed to procure copy of the decree sheet.

In these facts and circumstances of the case, I find no merit in this appeal, the same is dismissed. Interim direction dated 27-11-2007 shall stand

vacated.