Summary
The respondents filed a suit for specific performance against the appellant which was dismissed on March 12, 1954.
On March 24 the respondents made an application for a certified copy of the judgment and decree. The decree was not drawn up and the respondents were supplied a certified copy of the judgment and the memo of costs. The respondents filed an appeal before the High Court without the certified copy of the decree and only with the certified copy of the judgment and the memo of costs. The appeal was admitted under 0. 41, r. 11 Code of Civil Procedure on August 30, 1954. On December 23, 1958, the appellant served a notice on the respondents that he would raise a preliminary objection at the hearing that the appeal was incompetent as a certified copy of the decree was not filed as required by 0. 41, r. 1. On December 24, 1958, the respondents moved the trial Court for drawing up of the decree, but since the record was in the High Court this could not be done. At the hearing of the appeal, the appellant raised the preliminary objection, but the High Court passed an order on December 15, 1959, allowing the respondents one month's time for getting a decree drawn up and obtaining. a copy and directed the record to be sent to the trial Court. Against this order the appellant preferred an appeal to the Supreme Court contending that the High Court was bound to dismiss the appeal as it was manifestly incompetent under 0. 41, r. 1.Subsequently, on December 23, 1959, the respondents obtained a certified copy of the decree and filed it before the High Court the same day. The appellant contended that the appeal was to be deemed to be filed on this date and was time barred.Held, that in the circumstances of this case the order passed by the High Court was right.' There was no doubt that 0. 41, r. 1 was mandatory and in the absence of or the decree the filing of the appeal was incomplete, defective and incompetent. The office of the trial Court was negligent in not drawing up a decree and the office of the High Court was also not as careful as it should have been in examining the appeal and these have contributed substantially to the unfortunate position. In such a case, the respondents deserved to be protected. Besides the, 919question had become academic and technical in view of subse- quent events. The certified copy of the decree was filed on December 23, 1959, and even if the appeal was considered to have been filed on that date, it was within time. Under s.12(2) of the Limitation Act the respondents could treat the time taken in the drawing up of the decree after the application for a certified copy thereof had been made as part of the time taken in obtaining the certified copy of the decree.Tarabati Koer v. Lala jagdeo Narain, (1911) 15 C.W.N. 787, Bani Madhub Mitter v. Matungini Desai, (1886) I.L.R. 13 Cal.104 (F.B.), Gabriel Christian v.'Chandra Mohan Missir, (1936), I.L.R. 15 Pat. 284(F.B.), Jayashankar Mulshankar Mehta v. Mayabhai Lalbhai Shah, (1951) 54 B.L.R 11 (F.B.), Gokul Prasad v. Kunwar Bahadur, (1935) I.L.R. 10. Luck. 250 and Umda v. Rupchand, (1926) 98 I.C. 1057 (F.B.), referred to.Rodger v. Comptoir d'Escompte de Paris, (1871) L.R. 3 P.C.465, relied on.See the full content of this document
Extract
M/s Pepsi Foods Limited VS. Collector Of Central Excise, Chandigarh
PETITIONER: JAGAT DHISH BHARGAVA Vs.RESPONDENT: JAWAHAR LAL BHARGAVA & OTHERSDATE OF JUDGMENT: 05/12/1960BENCH: GAJENDRAGADKAR, P.B.BENCH: GAJENDRAGADKAR, P.B.WANCHOO, K.N.GUPTA, K.C. DASCITATION: 1961 AIR 832 1961 SCR (2) 918CITATOR INFO : F 1967 SC1470 (5)RF 1972 SC 414 (32)RF 1977 SC2319 (10)D 1978 SC 537 (4)R 1983 SC 786 (9,20)RF 1992 SC 109 (6)ACT: Appeal--Decree not Prepared--Appeal filed without copy of decree--Competency of--Subsequently decree prepared and copy filed--Limitation--Code of Civil Procedure, 1908(V of 1908) 0. 41, r. 1--Indian Limitation Act, 1908 (IX of 1908) s.12(2).JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 222 of 1960.Appeal from the judgment and order dated December 15, 1959, of the Punjab High Court (Circuit Bench), Delhi, in R. F.Appeal No. 77-D of 1954.G. S. Pathak and B. C. Misra, for the appellant.Mukat Behari Lal Bhargava and J. P. Goyal, for respondents Nos. 1 to 7.1960. December 5. The Judgment of the Court was delivered byGAJENDRAGADKAR, J.-The short question of law( which arises for decision in, the present appeal by special leave is whether the appeal preferred against the appellant and respondents 8 and 9 in the High Court of Punjab by respondents 2 to 7 'was competent in law or not. ...
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