SHAKUNTALA DEVI JAIN versus KUNTAL KUMARI & ORS.

SHAKUNTALA DEVI JAIN

KUNTAL KUMARI & ORS.

September 5, 196~

[S. M. S!KRI, R. S. BACllAWAT A:-ID K. s. HEGDE, JJ.]

Code of Cil'il Procedure, s. 47, 0. 41 r. I-Appeal Q11ainst order on ob;ection under s. 47 filed without certified copy of order-Appeal whe-ther competent-Admission of appeal by High Court whether implies that High Court dispensed with filing of certified copy-Limitation Act, 1963, s. 5-De/ay in filing appeal when may be condoned.

One of the respondents herein filed an application for execution of final decree in partition suit. The appellant filed objections under s. 47 Code of Civil Procedure. The Subordinate Judge dismissed the objections in January, 1967; the decision y:as not in the form of decree because the relevant rules and orders did not require it to be so. Jn March, 1967 the appellant filed an appeal against the above order in the High Court. With the appeal she filed plain copy of the order and an application praying that the appeal be enterLiined without certified copy. She also filed an application for stay of execution. The High Court admitted the appeal, granted interim stay and directed issue of notice to the respondents. The attention of the High Court was not drawn to the fact that certified copy of the order bad not been filed, nor was any application for dispensing with the certified copy moved. In October, 1967 the respondents raised an objection that the appeal was incompetent as certified copy of the order under appeal had not been filed. On November 3, 1967 the appellant filed an application for eondonation of the delay in filing the copy under s. 5 of the Limitation Act. On November 6 she obtained certified copy and on the same day filed it in court. The High Court held that as the memorandum of appeal was not accompanied by certified copy of the order, the appeal was incompetent and that there \\'a~ no sufficient ground for condonation of the delay. By special leave the appellant came to tcis Court.

HELD: (i) decree and judgment arc public documents and under s. 77 of the Evidence Act only certified copy may be produced in proof of their contents. Undc'r 0. 41, r. 1 the appellate court can dispense with the filing of the copy of the judgment hut it has no power to dispense with the filing of the c'opy of the decree. [1009 A-BJ

Under s. 2(2) of the Oxle of Civil Procedure the term decree is deemed to include the determination of any question within s. 47. 1l1is inclusive definition of decree applies to 0. 4 I r. I. In sonte courts, the decision under s. 47 is required to be formally drawn up as decree and in that case the mcn1orandum of appeal must be accompanied by copy of the decree as v.·cll a~ the judgment. But in some other courts no separate decree is dra\\'O up embodving the adjudication under s. 47. In such case the decision under ~- 47 is the decree and also the judg· mcnt and the filing of certified copv of the decision is sufficient compli· ancc 'v.ritb O. 41 ·r. 1. As the dcciSion is the decree, the appeal is in· competent unless the memorandum of appeal is accompanied by certfl fied copy of the decision. I 009 E-G I

In the present case therefore the memorandum of appeal not being accompanied by the requisite certified copy of the order under s. 4 7, was defective and incompetent. [1010 DJ

Kamala Devi v. Tarapada Mukherjee, 15 C.L.J. 498, approved and applied.

Bodh Narain Mahto v. Mahabir Pra!ad & Ors. A.LR. 1940 Pat. 176, disapproved.

It may be that in proper case an ordelr dispensing with the filing of copy of the order under s. 47 may be implied from the fact that the High Court admitted the appeal after its attention was drawn to the fact. But in the present case the High Court was not aware of the defect and did not intend to dispense with the filing of the copy. [1009 DJ

G.l.P. Railway Co. v. Radhakissen Jaikissen, A.I.R. !926 Nag. 57, referred to.

(ii) The appellant made repeated attempts to pirocure certified copy. The failure of the copying department to supply the copy in spite of those applications contributed largely to the unfortunate delay in filing it. The appellant could not be held responsible for the !aches of the copying department. It was not case where it was possible to attribute to the appellant want of bona {ides or such inaction or negligence as would deprive her of the protection of s. 5 of the Limitation Act. Heir applica-tion under that section must therefore be allowed and the delay in re-filing the appeal with certified copy of the order, condoned. [1012 A-DJ

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 970 of 1968.

Appeal by special leave from the judgment and decree dated December 22, 1967 of the Delhi High Court in Execution First Appeal No. 86 of 1967.

B. C. Misra and S. S. Shukla, for the appellant.

Bishan Narain, Daya Krishen and Mohan Behari Lal, for res-F pondent No. 2.

Mohan Behari Lal, for respondents Nos. 3, 4 and 6.

The Judgment of the Court was delivered by

Bachawat, J. The respondent Sumat Prashad filed an appli-cation for execution of final decree in partition suit. The appellant filed objections under sec. 4 7 of the Code of Civil Pro-cedure. By an order dated January 20, 1967 the Subordinate Judge, Deihl, dismissed the objections. It is common case before us that under the relevant Civil Rules and Orders the Subordinate Judge, Deihl, was not required to draw up formal expression of the decision under s. 47 as decree. On March 17, 1967 the appellant filed an appeal against this order in the Delhi High Court. Along with the memorandum of appeal she filed plain &opy of the order and an application praying that the appeal be entertained without certified copy of the order. In the applica-

tion she stated that she had applied for certified copy of the order but the same was not ready and that she would file the certified copy as soon as it would be ready and available to her. She added that she wanted urgent interim relief and would be seriously prejudiced if she waited for certified copy. She also filed an application for stay of execution. On the same date Bench of the High Court admitted the appeal, granted an interim stay and directed issue of notice to the respondents. The attention of the Court was not drawn to the fact that certified copy of the order had not been tiled nor was the application for dispensing with the certified copy moved and an order obtained thereon. The appeal was registered as Execution First Appeal No. 86 of 1967. The appellant diligently prosecuted the appeal. On Octo-ber 25, I 967 the respondents raised an objection that the appeal was incompetent as certified copy of the order under appeal had not been filed. On November 3, she filed an application for condonation of the delay in filing the copy under sec. 5 of the Limitation Act. On November 6, she obtained certified copy and on the same day she filed it in court. On December 22. I 967 the High Court held that as the memorandum of appeal was not accompanied by certified copy of the order, the appeal was incompetent, and that there was no sufficient ground for condon-ing the delay in filing the copy. Accordingly the High Court dis-missed the appeal and the application under sec. 5 of the Limita-tion Act. The present appeal has been preferred after obtaining special leave from this Court.Two questions arise in this appeal. First, was the appeal from the order disposing the objections under sec. 47 incompetent in view of the fact that the memorandum of appeal was not accompanied by certified copy of the order appealed from ? Second, whether the delay in filing the appeal should be condoned under sec. 5 of the Limitation Act ?

Section 2(2) of the Code of the Civil Procedure defines "decree". Unless there is anything repugnant in the subject or context, "decree" means "the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively deter-mines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of plaint and the determination of any question within sec. 47 or sec. 144 .... " It is because the determination of any question within sec. 47 is decree that the appellant could file an appeal from the order under sec. 96 of the Code. Order 41 rule 1 of the Code provides that every appeal shall be preferred in the form of memorandum signed by the appellant or his pleader "and the memorandum shall be accompanied by copy of the decree appealed from and (unless • the appellate court dispenses therewith) of the judgment on which

it is founded." Under 0. 41 r. 1 the appellate court can dispense with the filing of the copy of the judgment but it has no power to dispense with the filing of the copy of the decree. decree ~d judgment are public documents and under sec .. 77 of the Ev1~­ence Act only certified copy may be produced m proof of their contents. The memorandum of appeal is not· validly presented, unless it is accompanied by certified copies of the decree and the judgment.

The contention of Mr. Misra is that decree is the formal ex-pression of the adjudication and that where, as in this case, no formal decree is drawn up, the determination under sec. 4 7 is judgment and the Court having admitted the appeal must be pre-sumed to have dispensed with the filing of the copy of the judg-ment. In this connection he drew our attention to sec. 2(2), 33 and O. 20 rules 1, 4, 6. We are unable to accept these conten-tions. We are not satisfied that the High'Court dispensed with the filing of the copy of the order under sec. 4 7. Admittedly, the High Court did not pass any express order to that effect. It may be that in proper case such an order may be implied from the fact that the High Court admitted the appeal after its attention was drawn to the defect. [see G.l.P. Railway Co. v. Radhakissen Jaikissen(') .] But in the present case the High Court was not aware of the defect and did not intend to dispense with the filing of the copy.

Moreover an order under sec. 4 7 is decree, and the High Court had no power to dispense with the filing of copy of the decree. Ordinarily decree means the formal expression of av adjudication in suit. The decree follows the judgment and must be drawn up separately. But under sec. 2(2), the term "decree" is deemed to include the determination of any question within sec. 47. This inclusive definition of decree applies to 0. 41 r. 1. In some courts, the decision under sec. 47 is required to be formally drawn up as decree and in that case the memorandum of appeal must be accompanied by copy of the decree as well as the judg-ment. But in some other Courts no separate decree is drawn up embodying the adjudication under sec. 4 7. In 'such case, the d~cision under sec. 4 7 is the decree and also the judgment, and the · filmg of certified copy of the decision is sufficient compliance with 0. 41 r. 1. As the decision is the decree, the apr:eal is incompe-tent unless the memorandum of appeal is accompamed by certified copy of the decision. Our attention was drawn to the decision in Bodh Narain Mahto v. Mahabir Prasad & Ors. ([2 ]) where Agarwala, J. seems to have held that where no formal decree was prepared ·in the case of decision under sec. 4 7 the appellant was not re-• quired to file copy of the order with the memorandum of appeal.

(l) A.LR. 1926 Nag. 57.

(2) A.1.R. 1940 Pat. 176.

• We are unable to agree with this ruling. The correct practice was • laid down in Kamala Devi v. Tarapada Mukherjee(') where Mookcrjee J. observed:-

"Now it frequently happens that in cases of execution proceedings, though there is judgment, an order, that is, the formal expression of the decision is not drawn up. In such cases the concluding portion of the judgment which embodies the order may be treated as the order against which the appeal is preferred. In such case it would be sufficient for the appellant to attach to his memorandum of appeal copy of the judgment alone, and time should run from the date of the judgment. Where, however, a' in the case before us, there is judgment stating the grounds of the decision and sepa-rate order is also drawn up embodying the formal ex-pression of the decision, copies of both the documents must be attached to the memorandum, and the appellant is entitled to deduction of the time taken up in obtain-ing copies thereof."

We hold that the memorandum of appeal from the order dated January 20, 1967 should have been accompanied by certified copy of tbe order and in the absence of the requisite copy the appeal was defective and incompetent.

The next question is whether the delay in filing the certified copy or, to put it differently, the delay in re-filing the appeal with the certified copy should be condoned under sec. 5 of the Limita-tion Act. If the appellant makes out sufficient cause for the delay, the Court may in its discretion condone the delay. As laid down in Krishna '" Clwthappan(') "section 5 gives the Courts discre-tion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which arc well understood; the words 'sufficient cause' receiving liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona {ides is imputable to the appellant."

The record discloses that the appellant made repeated attempts to obtain certified copy of the order. She is pardanashin lady and her affairs were managed by her husband Ajit Pra,ad and sometimes by her son Virendra. On March 2, 1967 she applied for certified copy of the order under appeal. The application distinctly stated that she wanted copy of the order dated January 20, 1967 dismissing her objections. The application bore the serial number 17542. The copying department supplied to her copy of another order passed by the Court on the same date dis- . missing Sumat Prasad's objections to the appellant's application for • (!) I 5 C.L.J.498. (I) 1.L.R. I 3 Mad. ~h9, 271.

execution. · The mistake is solely attributable to the negligence of the copying department. In her affidavit the appellant s~ted that the application for copy dated February 17, 1967 was m respect of the order dismissing Sumat Prasad's objections. This state-ment is not correct, but it may well be that having got certified· copy of the order dismissing Sumat Prasad's objections she believed that she had applied for copy of that order.

On March 2, 1967 the appellant's son Virendra made another application for certified copy of the order. He got the certified copy on March 10. In paragraph 6 of the petition for condona-tion of delay the appellant stated that Virendra did not give her the copy and this statement was corroborated by Virendra in his supporting affidavit. In paragraph 9 she stated that Virendra had misplaced the copy and due to fear of reprimand he did not inform her or her husband. Virendra's affidavit is silent on this point. But the affidavits sufficiently establish that the appellant did not receive the certified copy from Virendra. Had she received the copy there is no reason why she would not have filed it along. with the memorandum of appeal on March 17, 1967.

On March 20, 1967 the appellant field another urgent applica-tion for certified copy of the order dated January 20, 1967 and also copies of two other orders dated February 17, 1967 and May 13, 1966. On this application bearing serial number 19451 the copying department made note on March 23, 1967 that the orders dated February 17, 1967 and May 13, 1966 were not found and the applicant should be asked to indicate the file whereon the orders were. It is surprising that the copying department should have asked the appellant to give this clarification. If the depart-ment found difficulty in finding the orders, it should have con-tacted the officer-in-charge of the records who would have secur-ed the orders for them. The note did not indicate why copy of the order dated January 20, 1967 was not being supplied. The next note on the application dated March 27, indicates that the application was returned to the appellant. From the next note dated April 11, it appears that the clerk-in-charge, copying department, directed that the application be filed. We may safely presume that before April 11, the application was re-submitted by the aPPellant to the copying department. There is nothing to show that the clarification asked for was not supplied by the appellant. The department took no further action on the appli-cation and made no effort to supply the certified copies to the appellant. No ground was given by the department for not supplying certified copy of the order dated January 20, 1967. 11 The time for filing the appeal expired on April 20, 1967. On ·October 25, 1967· the respondents took the objection for the first • time that the appeal was incompetent. Before that date, the ·record of the Executive Court including the original order appeal-

ed from had been received by the High Court. On October 27, 1967 the appellant made another application for certified copy and on November 6, 1967 a> soon as she received the copy she filed it in Court. The appellant made repeated attempts to pro-cure certified copy. The failure of the copying department to supply the copy in spite of those applications contributed largely to the unfortunate delay in tiling it. The appellant cannot be held responsible for the !aches of the copying department. Once her son actually got the copy but she never received it. The appellant could have filed another copy before November 6, 1967 had it been supplied to her by the copying department. We are inclined to accept the statement that she was under the bona fide impression that the certified copy was not ready, and that is why it was nor supplied to her by the copying department. It is not case where it is possible to impute to the appellant want of bona fides or such inaction or negligence as would deprive her of the protection of sec. 5 of the Limitation Act. We are there-fore inclined to allow her application under sec. 5 and to con-done the delay in re-filing the appeal with certified copy of the order. J '

In the result, we allow the appeal. The application filed by the appellant under sec. 5 of the Limitation Act is allowed and !he order of the High Court dismissing Execution First Appeal No. 86 of i 967 is set aside. The appeal is remanded to the High Court so that it may deal with and dispose of the appeal on the merits. There will be no order as to the costs of the appeal in this Court.

ppea/ allowed.