Ram Pratap v. Ram Khelawan — 1982 DIGILAW 849 (ALL)

JUDGMENT I.B. Singh. Member - A preliminary objection has been raised that the copy of the decree of the lower appellate court has not been filed, therefore, the appeal is incompetent. 2. This appeal was filed against judgment and decree dated January 6, 1981 passed by learned Additional Commissioner. Jhansi Division, Jhansi, partly allowing the appeal against order dated December 31, 1979 passed by S.D.O. Karvi, district Banda confirming the lots regarding village Karvi Buzurg that thereby making allotment only in plot No. 2246 area 10 Biswas after making legal inspection. 3. I have heard the learned counsel for the parties regarding preliminary objection. 4. The following facts are clear from the records: - (i) Judgment of the lower appellate court is dated May 5, 1981. (ii) The file of the lower appellate court above that decree was also prepared on June 5, 1981. (iii) The second appeal was filed on August 6, 1981 and the defect was pointed out by noting so by the registrar but the learned counsel for the appellant made a note that no formal decree in persuance of order dated August 5 1981 has been prepared. 5. It has been argued that under Section 331(3) of Act 1 of 1951 appeal lies from any decree or from an order passed under Section 47 or an error of the nature mentioned in Section 104 of the Code of Civil Procedure or in Order 43 Rule 1; that copy of decree was prepared on the date of the judgment but no application for it was moved and no copy of decree was filed, therefore, the appeal is incompetent and is time barred and should be ejected. Reliance has been placed on Jagdish Singh v. Jawahar Lal Bhargava, A.I.R. 1961 SC 838. 6. It has been argued in reply that the appeal is against preparation of lots and its confirmation. No formal decree is prepared and it is only against final order in the shape of judgment of the lower appellate court that the appeal has been filed. Reliance has been placed on Gur Dayal v. Buddhu, 1958 R.D. 342. Raj Bahadur Singh v. Ganpat Singh, 1959 R.D. 234 and Tej Singh v. Gaj Singh, 1975 R.D. 396. 7. No formal decree is prepared and it is only against final order in the shape of judgment of the lower appellate court that the appeal has been filed. Reliance has been placed on Gur Dayal v. Buddhu, 1958 R.D. 342. Raj Bahadur Singh v. Ganpat Singh, 1959 R.D. 234 and Tej Singh v. Gaj Singh, 1975 R.D. 396. 7. It has been argued as rejoinder that the said rulings are not applicable which are prior to the amendment of Section 331 (3) by U.P. Act No. XXX of 1976. 8. It has been held in Jagatdhish Bhargava v. Javahar Lal Bhargava (supra) as follows: - "Where a decree is not drawn up immediately or soon after a judgment is pronounced and a litigant feeling aggrieved by the decision applied for the certified copy of the judgment and the decree before the decree drawn up, as he has done all that he could and has made a proper application for obtaining the necessary copies, the time requisite for copies mi necessarily include not only the time taken for the actual supply of the certified copy of the decree but also for the drawing up of the decree itself. The time taken by the office on the court in drawing up a decree after a litigant has applied for its certified copy on judgment being pronounced, would be treated as a part of the time taken for obtaining the certified copy of the said decree. The requirement that certified copy of the decree should be filed along with the memorandum of appeal is mandatory and in the absence of the decree the filing of the appeal would be incomplete, defective and incompetent." 9. It has been held in Udayan Chinubhai v. R.C. Bali, A.I.R. 1977 SC 2319 as follows: - "Under Section 12(2) read with the Explanation a person cannot get exclusion of the period that elapsed between pronouncement of the judgment and the signing of the decree if he made the application for a copy only after preparation of the decree. While this is the true legal position that emerges from Section 12(2) read with the Explanation there may be as exceptional case. A judgment which is unconditioned by the requirement of any action by a party, stands on a different footing and in that event the date of the judgment will necessarily be the date of the decree. While this is the true legal position that emerges from Section 12(2) read with the Explanation there may be as exceptional case. A judgment which is unconditioned by the requirement of any action by a party, stands on a different footing and in that event the date of the judgment will necessarily be the date of the decree. In such a case, a party cannot take advantage of any ministerial delay in preparing the decree prior to his application for a copy, that is to say, if there is no impediment in law to prepare a decree immediately alter pronouncement of the judgment, no matter if, in fact, the decree is prepared after some time elapses. No party, in that event, can exclude that time taken by the court for preparing the decree as time requisite for obtaining a copy of an application for a copy of the decree has not been made prior to the preparation of the decree. It is only when there is a legal impediment to prepare a decree on account of certain directions in the judgment or for non-compliance with such directions or for other legally permissible reasons, the party who is required to comply with such direction or provisions, cannot rely upon the time required by him, under those circumstances, as running against his opponent. The trial court decreed the suit by its judgment dated March 27, 1976 and directed the plaintiff to make up deficiency in court-fee within one month. The plaintiff after obtaining from the court on extension of time applied the deficient court-fees on May 6, 1976 on which date the decree was prepared and signed. The defendant applied for certified copies on May 14, 1976 and the copies were ready on September 17, 1976 on which day they were received by the defendant. The appeal was filed on September 29, 1976. Held that the appeal was not barred by limitation. The respondent could not take advantage of his own default to defeat the appellant's appeal on the ground of limitation. The period of 90 days, would start from the date when the plaintiff had deposited the court-fees, as ordered, when only the court could take up the preparation of the decree. It was not a case of the court omitting or delaying to prepare the decree without any further action by a party." 10. The period of 90 days, would start from the date when the plaintiff had deposited the court-fees, as ordered, when only the court could take up the preparation of the decree. It was not a case of the court omitting or delaying to prepare the decree without any further action by a party." 10. It has been held in 1954 R.D. page 209 as follows: - "It is well known that the appeal under U.P. Zamindari Abolition and Land Reforms Act lies against the 'final order'. There is no necessity for filing the decree. Where the appeal before the lower appellate court was filed against the order of the trial court within limitation but the copy of the decree was filed long after the expiry of the period of limitation the up-peal was within time. Rule 339(2) requires the appeal to be filed from the decree or order; whereas under Section 331(5) the appeal lies against the 'final order'. But the specific provisions in the U.P. Zamindari Abolition and Land Reforms Act would override the provisions made in the Rules. Section 341 is qualified by the clause 'unless otherwise expressly provided'. This specific provisions lies in Section 331(1) and it would over-ride the general provisions of C.P.C." 11. It has been held in 1959 R.D. page 234 as follows: - "The final order mentioned in Section 331, U.P. Zamindari Abolition and Land Reforms Act or Rule 191, U.P. Zamindari Abolition and Land Reforms Rules does not refer to the "decree, though it is desirable for parties to file a copy of the decree along with the memo of appeal, there was nothing in U.P. Zamindari Abolition and Land Reforms Act or Rules to stipulate the filing of the decree with the memo of appeal and the appeal could not be thrown of on the ground that the decree had not been filed within limitation. The view is fortified by the fact that Section 331 U.P. Zamindari Abolition and Land Reforms Act has been amended by Act XXXVII of 1968 under Section 77(3) and the term 'final order or decree' has been substituted for 'final order'. In the instant ease it was held that the lower appellate court was not justified in throwing out the appeal merely on the ground that copy of the decree had not been held with the memo of appeal or within limitation." 12. In the instant ease it was held that the lower appellate court was not justified in throwing out the appeal merely on the ground that copy of the decree had not been held with the memo of appeal or within limitation." 12. It has been held in 1975 R.D. page 398 (supra) as follows: - "In the instant case rights of the parties had been finally determined with the acceptance by the trial court of the Qurras filed by the Lekhpal and these rights had been determined on merits. The mere fact that decree had not yet been prepared does not take away from the finality of the order passed by the trial court, for preparation of the decree is a mere routine and ministerial affair to be complied with by the office on receipt of a written request by a party to the partition suit, and as far as the court is concerned it has nothing more to do except to sign the decree when it is prepared. No doubt the trial court had also ordered that the final decree be prepared but this is merely a formality that office had to comply with on the basis of the court's order confirm the Qurras. It was not essential for the appeal to be accompanied by a copy of the decree also for in terms of rule 161 of the Revenue Court Manual which relate to presentation of appeals the memorandum of appeal is to be accompanied by copies of the decrees or order appealed against but not both. The contention for the appellant could not be accepted that he could not possibly file copy of the decree, as taking out of a decree (by depositing appropriate stamps) would have implied the appellants' acceptance of the Qurras." 13. Sub-sections 3 and 4 of Section 331 of Act I of 1951 run as follows. The contention for the appellant could not be accepted that he could not possibly file copy of the decree, as taking out of a decree (by depositing appropriate stamps) would have implied the appellants' acceptance of the Qurras." 13. Sub-sections 3 and 4 of Section 331 of Act I of 1951 run as follows. Sub-section (3) was substituted by U.P. Act No. XXX of 1975 which came into force on August 19, 1975: - Section 331(3): - "An appeal shall lie from any decree or from an order passed under Section 47 or an order of the nature mentioned in Section 104 of the Code of Civil Procedure, 1908, or in Order XLIII, Rule 1 of the First Schedule, to that code passed by a court mentioned in column No. 4 of Schedule II of this Act in proceedings mentioned in column No. 3 thereof to the court or authority mentioned in column No. 5 thereof). (4) A second appeal shall lie on any of the grounds specified in Section 100 of the Code of Civil Procedure, 1903 from the final order or decree, passed in an appeal under sub-section (3), to the authority, if any, mentioned against it in column 5 of the Schedule aforesaid." 14. Para 161 of Revenue Court Manual runs as follows: - " Presentation of appeal: - Every appeal shall be preferred in the form of a memorandum and presented to the court concerned or to such officer as it appoints in this behalf. The memorandum shall be accompanied by copies of the decree or order appealed from and of the judgments or orders passed in the case by all the courts subordinate to the court to which the memorandum of appeal is presented." 15. Order XLI Rule 1(i) of the Civil Procedure Code runs as follows: - Order XLI Rale 1 (i): - "Form of appeal, what to accompany memorandum - (1) Every appeal shall be preferred in the form of 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 the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded. (Provided that where two or more suits have been tried together and a common judgment has been delivered therefor and two or more appeals are filed against any decree covered by that judgment whether by the same appellant or by different appellants, the Appellate Court may dispense with the filing of more than one copy of the judgment." 16. Sub-section (3) of Section 331 was substituted by Section 25 of U.P. Act No. XXX of 1975 and was made retrospective as it was provided for sub-section (3) the following sub-section shall be substituted will be deemed always to have been substituted. 17. The interpretation given in 1958 R.D. page 206, 1959 R.D. page 24 are according to old Section 3 of Section 331 in which final order only existed. Rule 151 of U.P. Z.A. Rules has nothing to do with appeal under Section 331 of Act I of 1951 which is regarding appeal against orders under Section 232 of Act of 1951. The new sub-section (3) of Section 331 of Act I of 1951 now provides appeals against decree or from an order mentioned in sub section itself and the word order in the new subsection does not refer to final orders which existed in the old sub-section. Therefore, after coining into force of U.P. Act XXX of 1975 the interpretation given in the said two rulings are not at all applicable. Therefore, the memorandum of appeal shall be accompanied with copy of judgment act decree both as required by para 161 of the Revenue Court Manual and also as required by Order XLI Rule 1 of the C.P.C. and when the copy of the decree is not hied with the memorandum of appeal the appeal is incompetent and is liable to is rejected. 18. The observations made in 1975 R.D. page 396 (supra) also do not hold field now in view of the said amendment in sub-section (3) of Section 331 of Act I of 1951. 18. The observations made in 1975 R.D. page 396 (supra) also do not hold field now in view of the said amendment in sub-section (3) of Section 331 of Act I of 1951. It is true that para 161 of the Revenue Court Manual has not been suitably amended alter the said amendment of sub section (3) of Section 331 by U.P. Act No. XXX of 1975 but it is no way provides that where decree is prepared its copy shall not be filed. If the final decree is not prepared and is not signed on the dale of the order and if application for its copy is given within the time so taken in preparation of the final decree shall be counted towards obtaining of the copy of decree as has been held in the above referred two Supreme Court cases. The interpretation given in 1975 R.D. page 396 (supra) does not now hold good for the reasons given above. 19. After passing or U.P. Act No. XXX of 1975 and substituting word decree for word final orders and enumerating the orders which are appealable the copy of the decree except in cases of orders mentioned in that sub-section must accompany the members of appeal and in case of second appeal copy of decree of the lower appellate court and the copies of judgments of both, the courts below must accompany the memorandum of appeal and the provisions of Order XLX. Rule 1 of the C.P.C. read Section 331 sub-sections (3) and (4) together with para 161 of the Revenue Court Manual the guidelines provided be Order XII Rule 1 of the C.P.C. are to be followed above must be given to the above mentioned effect to avoid unnecessary conflict due to which the said amendment in sub-section (3) by U.P. Act No. XXX of 1975 was incorporated. 20. The application for granting time for filing copy of decree is rejected as it has got no force and it was pressed only after the aforesaid arguments were advanced against it which amounts to taking chance and reaping benefit of gambling. 21. The appeal was filed without copy of decree and as no application was moved for the copy of the decree till July 15, 1982 and the suit was filed on August 5, 1976 after coming into force of U.P. Act No. XXX of 1975. 21. The appeal was filed without copy of decree and as no application was moved for the copy of the decree till July 15, 1982 and the suit was filed on August 5, 1976 after coming into force of U.P. Act No. XXX of 1975. Therefore, the appeal is incompetent as copy of decree passed by learned Additional Commissioner was not filed with the memorandum of appeal although it was prepared and signed on the very date of the judgment. Hence this appeal is rejected being incompetent for not tiling copy of the decree along with memorandum of the appeal.