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Allahabad High Court · body

1986 DIGILAW 488 (ALL)

Raghubar v. Bachhilal

1986-07-28

P.SINGH

body1986
JUDGMENT P. Singh, Member - This second appeal has been filed against the judgment and decree dated 1.8.85 passed by the learned Additional Commissioner, Agra Division, Agra in Appeal no. 43 of 84-85/. 2. Briefly stated the facts of the case are that Bachhi Lal filed a suit under section 176 of Z.A. & L.R. Act in the court of S.D.O. alleging therein that his share in the land in dispute was 3/8, that his share should be separated. The defendant filed written statement on 23.11.1984 contending the share of the plaintiff. Issues were framed on the pleadings of the parties on 13.1.75. The trial court decreed the suit of the plaintiff on 21.10.1978. An appeal was preferred before the learned Additional Commissioner against that order of the trial court, who allowed the appeal on 2.11.81, and remanded the suit for re-trial by the trial court. On 12.11.1982, the trial court decreed the suit, of the plaintiff. Appeal was preferred against that order before the learned Addl. Commissioner who dismissed the appeal on the ground that no certified copy of the decree has been filed. 3. I have heard the learned counsel for the appellant and have gone through the judgments of the courts below. 4. The learned counsel for the appellant submits that the learned Additional Commissioner has taken a technical view of the matter and has rejected the appeal, that in spite of best efforts of the appellants they could not get the certified copy of the decree as the decree was not prepared by the trial court, that the appellants filed a questionaire obtained from the trial court to the effect that no decree was prepared by it, along with the memorandum of appeal. 5. 5. The learned counsel for the appellants drew my attention to order 20 Rule 6-A and 2-B of the C.P.C. The order 20 rule 6 (2) (b) reads as under :- "so long as the decree is not drawn up, the last paragraph of the judgment shall, be deemed to be the decree for the purpose of execution and the party interested shall be entitled to apply for a copy of that paragraph only without being required to apply for a copy of the whole of the judgment ; but as soon as a decree is drawn up, the last paragraph of the judgment shall cease to have the effect of a decree for the purpose of execution or for any other purpose." From the perusal of the above mentioned rule it is clear that the last paragraph of the judgment shall be deemed to be the decree for the purpose of execution and not for the purpose of filing an appeal. The sub-rule 2-a of order 20 prescribes the procedure for filing the appeal. The order 20 Rule 6 (2) and 2-a of the C.P.C. reads as under :- "Every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible and, in any, case, within fifteen days from the date on which the judgment is pronounced ; but where the decree is not drawn up within the time aforesaid, the court shall if requested so to do by a party desirous of appealing against the decree, certify that the decree has not been drawn up and indicate in the certificate the reasons for the delay, and thereupon. (2-a) an appeal may be preferred against the decree without filing a copy of the decree and in such a case the last paragraph of the judgment shall, for the purposes of rule 1 of order XLI, be treated as the decree." From the perusal of the above rule it is evident that in the instant case no such certificate of the trial court was filed along with the memorandum of the appeal before the learned Additional Commissioner. Under Rule 161 of Revenue Court Manual it has been provided that 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 court subordinate to the court to which the memorandum of appeal is presented. 6. In the instant case the compliance, of Order 20 Rule 6-A (2), (2a) and (2b) and Rule 161 of Revenue Court Manual has not been made. Consequently, I find that no illegality has been committed by the courts below in dismissing the appeal. In view of the above the second appeal has no force which is dismissed summarily.