Mansur Ali and Another vs Md. Usman and Another

U.N. Sinha, C.J.—This civil revision application has been filed by the petitioners for a succession certificate and it is directed against an appellate order dated the 27th May, 1971, by which the appeal filed by the petitioners was held to be barred by limitation. The petitioners had filed an application for a succession certificate which application was dismissed by the Subordinate Judge, first Court, Chapra, by an order dated the 13th January, 1971. An appeal was presented on the 19th February, 1971, without a certified copy of the judgment and order appealed against and there were other defects also in the memorandum of appeal. The certified copy of the order of the first court was filed on the 29th March, 1971. The limitation for filing the appeal had expired on the 24th February, 1971. It is stated that the appellate court had granted time for the removal of defects, more than once, and on 7th April, 1971, an application u/s 5 of the Limitation Act, for condoning the delay in filing the appeal, was made. The question of admission of the appeal was taken in the court of appeal below on the 25th May, 1971, and the impugned order followed on the 27th May, 1971. learned counsel for the petitioners has urged several points for consideration.

The first point urged is that the application made u/s 5 of the Limitation Act had not been considered by the appellate court while passing the impugned order. Reading the order as a whole, I do not think that the contention is valid. Clearly, everything that had been pressed before the court of appeal below was considered before the final order had been passed. He then argued that when the appeal was presented on the 19th February, 1971, the certified copy of the order appealed against was not filed, on wrong legal advice. There is no validity in this argument either. Merely to say that a relevant document, was not filed on wrong legal advice is not enough for condoning the fact that a necessary document had not been filed at the proper stage. It is then contended that as the court had granted time on several occasions, for removing defects and then the certified copy of the judgment and order was filed within that time, it ought to be taken that limitation, if any, had been condoned and no written order condoning the delay in filing the appeal was necessary. I do not think that this contention can be accepted. A valuable right had accrued to the respondent to the appeal and by an order which was not explicit in the matter made in the absence of the respondents, could not be taken to be an order by which the limitation had been condoned impliedly.

The last submission made by learned counsel for the petitioners is that Order 41, Rule 1 of the CPC did not apply to this case and in filing the appeal in the court of appeal below, it was not necessary to file a certified copy of the judgment and order passed by the original court. Learned counsel has relied on the cases of AIR 1948 261 (Oudh) and Dolit Singh Piara Singh Vs. Shamsher Kaur, . Learned counsel for the contesting opposite party has referred to the case of Ramji Sao and Others Vs. Jageshwari and Another, and has argued that the CPC had governed the case and a certified copy of the judgment and order had to be filed in the appeal. In my opinion, the argument advanced on behalf of the petitioners cannot be accepted as valid. Both the decisions to which learned counsel for the petitioners has referred are distinguishable. In the Punjab case, the question was one of filing a decree. In that context the implication of Order 41, Rule 1 of the CPC was considered. The question which has arisen in the instant case did not fall for consideration before their Lordships of the Punjab and Haryana High Court. The case before the Oudh court was different where the question had arisen in a second appeal. It was held that the sub-rules in Chapter XII of the Rules of the Chief Court of Oudh prevailed where it had laid down that any memorandum of appeal from appellate decree or from an order shall not be presented unless it be accompanied by a copy of the decree or order appealed against and a copy of the judgment upon which such decree or order was founded. Therefore, it was held that the rules of the Chief Court of Oudh had preference so far as filing of necessary documents was concerned. I think the view taken by this Court in Ramji Sao and Others Vs. Jageshwari and Another, indicates that Order 41, Rule 1 of the CPC would apply and the appellants in the court of appeal below were bound to file a certified copy of the judgment and order of the first court within the period of limitation. This civil revision application must fail and it is accordingly dismissed. There will be no order as to costs.