Nand Kishore Singh v. Ram Ahir — 1988 DIGILAW 361 (PAT)

ORDER The moot question for decision in this case is whether in a proceeding initiated for grant of probate or letters of administration under Section 272 and/or 273 of Indian Succession Act, 1925 (hereinafter referred to as the 'Act'), which is contested the' memorandum of appeal to the High Court should accompany a decree against the final order disposing of the Proceeding. 2. A regular First Appeal No. 481 of 1987 under section 299 of the Act has been filed by the appellant against a contested final order allowing probate on the basis of a will. The stamps reporter raised an objection that a "contentious proceeding" under the Act will be deemed to be a regular suit and is required to be disposed of under the provisions of the Code of Civil Procedure, in which the petitioner for probate or letters of administration shall be the plaintiff and the person who opposes the grant shall be defendant. Therefore, for all purposes, an appeal under section 299 of the Act against such an order is akin to the provisions of section 96 of the Code of Civil Procedure and the appeal would be incompetent if it is not accompanied by a copy of the decree. The very first line of the judgment reads: "This is a suit for grant of probate....." As a matter of fact, a decree has been prepared and the same has also been filed at a later date which is at Flag 'M', The stamp reporter has relied on a Division Bench decision of the Calcutta High Court in the case of Hem Chandra Buxi vs. Jadub Chandra Buxi reported in 17 Indian Cases, page 99, where in a similar situation, the Court held that the memoramdum of appeal having not been accompanied by the decree, it cannot be treated to be valid presentation of appeal. The subsequent filing of the decree beyond the period of limitation in the said case, without praying for the condonation of the delay under section 5 of the Limitation Act, led to the dismissal of the appeal itself. 3. Mr. The subsequent filing of the decree beyond the period of limitation in the said case, without praying for the condonation of the delay under section 5 of the Limitation Act, led to the dismissal of the appeal itself. 3. Mr. Dhrub Narain, learned counsel appearing on behalf of the appellant, contended that a contentious case, even though may take the form of regular suit for the purpose of classification of the proceeding, but the character of the proceeding is not changed and the order passed in such a proceeding, even though may have force of decree but it is not a decree having been passed in a suit. Learned counsel in support of his submission relied on a decision of the Calcutta High Court in case of Bolai Lal Banerji and others vs. Devoki Kumar Ganguly (A. I. R. 1984 Calcutta page 16), a Division Bench decision of the Calcutta High Court. 4. I may at the very outset observe that Bolai Lal Banerji's case did notice the earlier Division Bench decision of that Court and there being no direct Patna decision on this point, the Court is called upon to decide the matter afresh, independent of the two contra}y Division Bench decisions of the Calcutta High Court. 5. To initiate a proceeding under section 272 and/or 273 of the Act, one is required to file a petition under section 276 of the Act, requiring various statements as enumerated therein. Similar is the provision for the grant of letters of administration under section 278 of the Act by filing a petition therefor enumerating the various facts required to be stated in the said petition. Section 279 of the Act requires that if such probate or letters of administration is intended to have the effect throughout India, the petitioner is required to further state that no such application has been made to any other Court for a probate of the same will or for grant of letters of administration of the said estate. The petition for both shall be verified by the petitioner as required under section 280 of the Act. Section 284 of the Act envisages the filing of a caveat on citation under section 283 of the Act. After entry of a caveat, the proceeding becomes contentious under section 286 of the Act. The petition for both shall be verified by the petitioner as required under section 280 of the Act. Section 284 of the Act envisages the filing of a caveat on citation under section 283 of the Act. After entry of a caveat, the proceeding becomes contentious under section 286 of the Act. The Explanation to Section 286 of the Act defines "contention" as meaning; the appearance of any one in person, or by his recognised agent, or by a pleader duly appointed to act on his behalf, to oppose the proceeding. 6. The procedure in contentious cases has been laid down under section 295 of the Act which reads as hereunder :- "Procedure in contentious cases.-In any case before the District Judge in which there is contention, the proceeding shall take, as nearly as may be, the form of a regular suit, according to the provisions the Code of Civil Procedure, 1908, in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant." Section 299 of the Act provides an appeal to the High Court and it reads as follows : "App fats from orders of District Judge.-Every order made by a District Judge by virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure, ]908, applicable to appeals." (Emphasis is added) This, in short, is the Scheme. 7. For proper appreciation of the point raised, it would be advantageous to note the definition of "decree" under section 2 (2), Section 96, section 104 (1) and also Order 41, Rule 1 of the Code of Civil Procedure which read as follows: Section 2 (2) C. P. C. " 'decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines 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 a plaint and the determination of any question within section 144 but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default Explanation.-A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final' Section 96 C. P. C. "96. Appeal from original decree.- (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, all appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to bear appeals from the decisions of such Court. (2) An appeal may lie from the original decree passed ex parte. (3) No appeal shall lie from a decree passed by the Court with the consent of parties. (4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of small Causes, when the amount of value of the subject-matter of the original suit does not exceed three thousand rupees. Section 104 (1) C.P.C. “An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of the Code or by any law for the time being in force, from no other orders............" Order IV, rule 1 C.P.C. "Suit to be commenced by plaint.-(1) Every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf.' Order 41, rule 1 C. P. C. "1. Form of appeal-what to accompany memorandum. - (1) Every appeal shall be preferred in the form of a 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." 8. We have already noticed that for initiation of a proceeding under the Act, a petition is required to be filed. 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." 8. We have already noticed that for initiation of a proceeding under the Act, a petition is required to be filed. Section 295 of the Act describes that such a proceeding should take in the form of a regular suit and the petitioner for grant of probate or letters of administration should be known as the plaintiff and the person who opposes the same will be known as the defendant. It nowhere says that the petition filed under the Act for grant of probate should be treated as plaint and the objection filed by the caveat or to be treated as written statement. It has further to be noticed here that section 299 of the Act which provides for filing of an appeal does not refer to an appeal to be filed against the judgment and decree, but merely says that every order made by the District Judge shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure, 1908, applicable to appeals. The definition of a "decree" refers to a formal expression of adjudication in a suit and includes rejection of the plaint. How, a suit is to be commenced is provided for under Order IV, rule 1 and it mandates every suit to be instituted by presenting a plaint and the said plaint shall comply with the rules contained in Orders VI and VII of the Code of Civil Procedure as may be applicable. 9. An appeal from original decree as provided under section 96 read with Order 41, Rule 1 of the Code of Civil Procedure requires memorandum of appeal to be accompanied by a copy of the decree, but there is no such requirement where an appeal to the High Court is preferred against an order expressly provided in the body of the Code. Section 104(1) of the Code of Civil Procedure lays down the orders from which an appeal lies. Section 104, however, does not exhaust itself with respect to the orders provided for in the body of the Code, but also adopts such orders which has by any law for the time being in force so provides. 9A. Section 104(1) of the Code of Civil Procedure lays down the orders from which an appeal lies. Section 104, however, does not exhaust itself with respect to the orders provided for in the body of the Code, but also adopts such orders which has by any law for the time being in force so provides. 9A. The question, therefore, arises whether the final order disposing of the proceeding when passed in a contentious case as envisaged under section 295 of the Act, whether the appeal under section 299 partake to the provisions of section 96 read with Order 41, Rule 1 or an appeal under section 104 (1) of the Code. In short, preparation of decree is an absolute necessity and decree, even if prepared, is required to accompany the memorandum of appeal for valid presentation of appeal in the High Court. 10. The question required to be decided assumes importance because of many aberrations, namely, the court-fee payable, the limitation applicable, taxation of costs, and so on and so forth. It is true that in the instant case, a decree bas been prepared and the same has been subsequently filed, but not along with the memorandum of appeal. But the debate, however, is not resolved in view of the next question that will arise, whether the appeal is barred by time, the memorandum of appeal having not been accompanied by a copy of the decree, and what would be the court-fee payable. 11. A question arose before a Division Bench of the Allahabad High Court in the case of Bohra Kanhaiya Lal and others vs. Gendo (A. I. R. 1928 Allahabad 51) for the purpose of taxation of costs in contested application for probate, whether a contested application for probate is a suit. Sulaiman, J. speaking for the Court, while considering, the provision of section 83 of the Probate and Administration Act, 1881, which is para materia with section 295 of the Act observed ; "In our opinion this section (section 83), instead of helping the respondent, is really against him, for it clearly implies that the proceeding is itself not a suit but is to take, as nearly as may be, the form of a suit. If the proceeding were itself a suit, there would he no necessity to say that it should take the form of a suit when there is a contention. If the proceeding were itself a suit, there would he no necessity to say that it should take the form of a suit when there is a contention. Their Lordships relied upon a Bench decision of the Born bay High Court in the case of Sundrabai Saheb vs. The Collector of Belgaum ( I. L. R. 33 Bombay 256) as well as the case of Baijnath Prasad vs. Sham Sundar Kuer ( I. L. R. 51 Calcutta 637) for the said conclusion. This case, however, was dissented from the another Division Bench decision of the Allahabad High Court in the case of Dr. Mrs. T. S. Bose vs. Mrs. H. N. Judah (A. I. R. 1958 Allahabad 672), and it was held that once the proceedings are treated as proceedings in a regular suit, all the incidents of a suit will fasten to such proceedings. An appeal against an order passed in such a suit will therefore be an appeal from a decree and should be treated as such for the purpose of taxation also. Reference may also be made to the case of Mountstephens vs. Mr. Hunter Granett (I.L.R. 35 Allahabad 448), which also took the aforesaid view. This question, so far as Allahabad High Court is concerned, was set at rest in a Full Bench decision of the said Court in the case of Mrs. Panzy Fernandas vs. Mrs. M. P. Queoros and others (A.I.R. 1963 Allahabad 153), and the Full Bench approved the case of Bohra Kanhaiyalal (supra). The Full Bench was of the view that proceedings for letters of administration under the Act are not commenced by the institution of a plaint. On the other hand, they are commenced by an application or a petition. The decision appealed against is described in section 299 of the Act as an "order", and not a "decree". Thus the decision of a Court in proceedings for letters of administration cannot be described as a decree. The final order passed can, however, be described as an order having the force of a decree, and after having so held, the Full Bench was of the opinion that an appeal from such an order will not, therefore, be governed by the provision of Article 11 of Schedule II of the Court Fees Act. The final order passed can, however, be described as an order having the force of a decree, and after having so held, the Full Bench was of the opinion that an appeal from such an order will not, therefore, be governed by the provision of Article 11 of Schedule II of the Court Fees Act. The final order in such a proceeding do possess the essential characteristics of a decree, i. e., it adjudicates the rights of the parties and the said adjudication is final and conclusive. 11A. In the case of Mosst. Punibai Majhiani v. Shiba Bhue and another, a single Judge decision of the Orissa High Court (A. I. R. 1967 Orissa page 41), where while considering the applicability of Articles 11 and I7-A of the Court Fees Act, as amended by' the Orissa Act 5 of 1939, the Court held that the words "as nearly as may be" and "form of a regular suit" in section 295 of the Act merely require to assume the form of a contentious proceeding as a regular suit, though in reality, they are not in the nature of a regular suit, and unless there is a suit as provided under the Code of Civil Procedure, there can be no decree. The word "prescribed" in section 26 of the Code of Civil Procedure means prescribed by rule. The rule, in view of Order IV, Rule 1 of the Code of Civil Procedure mandates a proceeding to be started with a plaint as such, and till that requirement is fulfilled, it is not a suit and an order in such a proceeding cannot be a decree within the meaning of the Code of Civil Procedure. A proceeding to obtain probate of a will, therefore, cannot be said to be instituted on a plaint nor an appeal against an order in such a proceeding can be said to arise out of a suit. Having thus held, the Court ordered that an order refusing grant of a probate of a will is not governed by Article l7-A of the Court Fees Act. The Orissa High Court while rendering the said decision placed reliance on a Division .Bench decision of the Patna High Court in Antala Gope v. Smt. Sarbo Gopain (A. I. R. 1962 Patna 489). The Orissa High Court while rendering the said decision placed reliance on a Division .Bench decision of the Patna High Court in Antala Gope v. Smt. Sarbo Gopain (A. I. R. 1962 Patna 489). The case of Antala Gope (supra) was rendered under section 13 of the Hindu Marriage Act, and in the context of the said Act, it held that a decree of divorce in such a proceeding under the Hindu Marriage Act cannot be treated as a decree within the meaning of section 2 of the Code of Civil Procedure and, therefore, an appeal preferred against such a decree will not be treated as an appeal from an original decree, though the procedure to be adopted by the Court ill dealing with proceedings under the Hindu Marriage Act will be akin to that provided for the trial of suits in a Civil Court, but that by itself does not make the proceedings a suit or the application a plaint. The Patna High Court was considering section 21 of the Hindu Marriage Act which provided that all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, and sect ion 23 of the said Act further provided "All decrees and orders made by the Court in any proceeding under this Act shall he enforced in like manner as the decrees and orders of the Court made ill the exercise of its original civil jurisdiction are enforced and may be appealed from under any Jaw for the time being in force". Having referred to the aforesaid provision, this Court held that a decree of divorce contemplated under section 13 is not a decree within the meaning of section 2(2) of the Code of Civil Procedure. It also held that an appeal arising out of section 13 will be treated as an appeal contemplated under Article 11 of Schedule II of the Court Fees Act, namely, the memorandum of appeal will not be deemed to be an appeal against the decree, even though it would have the force of a decree. In the case of Mosst. Bhonri vs. Suwalal (A. I. R. 1956 Rajasthan 119), the Court held, on interpretation of section 295 of the Act, that the words used in the said section are not precise. In the case of Mosst. Bhonri vs. Suwalal (A. I. R. 1956 Rajasthan 119), the Court held, on interpretation of section 295 of the Act, that the words used in the said section are not precise. Contentious proceeding merely assumes a form of a regular suit, though in reality the proceeding are not in the nature of a regular emit under the provisions of the Code of Civil Procedure, and unless there is a suit as provided for under the Code of Civil Procedure, there can be no decree, except in cases of certain orders which are expressly included in the definition of' 'decree". 12. The word "every order" under section 299 of the Act came to be considered by a Bench of this Court in the case of Darogi Singh vs. Smt. Girja Devi (1978 B. B. C. J. 264 : 1978 PLJR 287 ). In the said case, the question arose whether an appeal under section 299 of the Act lies to the High Court only against the final order granting or refusing the probate as the main order amounts to a decree within the meaning of the Act, or it also applies to an order rejecting the prayer of a person to be allowed to enter caveat, thus entitled to a citation. This Court held that section 104(1) of the Code of Civil Procedure saves the special provision of appeal provided in section 299 of the Act. The Bench was not called upon to decide whether the final order disposing of the probate proceeding to a decree and the applicability of section 96 or section 104 of the Code of Civil Procedure. In this connection a single Judge decision of this Court in the case of Bindeshwari Pandey vs. Kari Devi and others (A. I. R. 1976 Patna 186) may be referred to. In this case, the question arose, whether an objector is entitled to grant of a certified copy of the will. It was held that the will being a document annexed with the petition for grant of probate, which is converted into a title suit, the objector will then be entitled to grant of a copy thereof by virtue of Note 2 to Rule 355 in Chapter I of Part IV of the Civil Court Rules. It was held that the will being a document annexed with the petition for grant of probate, which is converted into a title suit, the objector will then be entitled to grant of a copy thereof by virtue of Note 2 to Rule 355 in Chapter I of Part IV of the Civil Court Rules. While so observing, H. L. Agrawala, J. made a passing reference that once a caveat is filed and on examining the objection, the Court decides to convert the proceeding into a regular title suit, “On happening of that event, the application for the grant of probate has to be deemed to be as a plaint and the petitioner a plaintiff". Even this case does not decide that the application for probate is a plaint, but will be deemed to be so. Further, the court was not called upon to decide in that case whether the final order passed in a probate proceeding is a decree within the meaning of the Code of Civil Procedure. The Court, however, was aware that a contentious proceeding is to partake the form of a regular suit which conversely would mean not a regular suit according to the provision of the Code of Civil Procedure. This case, therefore, is not of any particular assistance in resolving the question which the Court has been called upon to decide. In this connection I may refer to the case of Ramani vs. Kumud Bandhu (14 Calcutta Weekly Notes 924 at page 926). This case decides that section 299 of the Act does not say that the provisions of the Code of Civil Procedure are applicable to probate proceeding in their entirety. Therefore, an applicant for probate, though he is to be treated as a plaintiff, is not to be regarded as a plaintiff who brings a suit in respect of same cause of action within the meaning of Order 9, Rule 9. Therefore, an application for probate by the executor, when dismissed for default, such dismissal does not bar the presentation of another application for grant of probate. The ratio of this case is mere description of the petitioner as a plaintiff under section 295 of the Act cannot be regarded as a plaintiff who has brought a suit. 12A. Therefore, an application for probate by the executor, when dismissed for default, such dismissal does not bar the presentation of another application for grant of probate. The ratio of this case is mere description of the petitioner as a plaintiff under section 295 of the Act cannot be regarded as a plaintiff who has brought a suit. 12A. Somewhat a similar view, as has been expressed in Hemcbandra Buxi's case (supra), relied upon by the stamp reporter, has been taken in the case of Ganga Bai vs. Jai Kishun Das, a Full Bench decision of the Sindh High Court (A. I.R. 1938 Sindh 36). It appears that the Sindh High Court made inquiry from different High Courts, namely, Allahabad Bobay, Calcutta, Madras, Patna and Rangoon, as to whether a decree is always prepared in a contentious proceeding. The Court was informed that a decree is always prepared in contentious proceeding within the purview of section 295 of the Act and the Courts have insisted upon its production along with the memorandum of appeal. The High Courts have treated an appeal filed against an order passed in contentious proceeding as an appeal filed under Order 41, Rule 1 of the Code of Civil Procedure, and not under section 104. Therefore, the Sindh High Court opined that an appeal only lies as required under Order 41, Rule 1 of the Code by adopting the procedure obtainable in Calcutta High Court. 'In my opinion, Ganga Bai's case is no more a good authority in view of a later Division Bench decision of the Calcutta High Court in the case of Bolai Lal Banerji's case (A. I. R. 1984 Calcutta page 16 supra), as also the Full Bench decision of the Allahabad High Court in Mrs. Panzy Fernandas's case (A. I. R. 1963 Allahabad 153). The Sindh High Court's case also goes contrary to the Division Bench decision of our own High Court in Darogi Singh's case (1978 B. B. C. J. 264 : 1978 PLJR 287 supra). 13. Now I would like to advert to the case of Bolai Lal Banerji (supra), which has been strongly relied upon by the learned counsel for the appellant, that in preferring an appeal to the High Court under section 299 of the Act against the final order, failure to supply a copy of the decree along with the memorandum of appeal cannot render the appeal incompetent. In the said case, a Bench of the Calcutta High Court, after considering the reasoning of the Full Bench decision of the Allahabad High Court in the case of Panzy Fernandas's case (supra) as also after referring to the case of Hansraj Gupta vs. Dehradoon Masoorie Tramby Electric Co. (A. I. R. 1933 Privy Council 63) observed that a suit is instituted by presentation of a plaint, whereas a proceeding for grant of probate or letters of administration is initiated by filing a petition and, therefore, not strictly a suit, but is so deemed for the purpose of classification of the proceeding without changing its character. The order passed in such a proceeding may have the force of a decree but strictly speaking, it is not a decree, not having been passed in a suit. Therefore, a formal decree does not seem to be required to be drawn up following an order of grant and the failure to supply a copy of the decree along with the memorandum of appeal cannot render the appeal incompetent. In Hemchandra Buxi's case (17 Indian Cases 99, supra], the earlier decision of the Calcutta High Court, heavily relied upon the fact that a decree was prepared in the said proceeding and the same was filed, but not along with the memorandum of appeal. It was, therefore, held that there being no application for condonation of the delay under section 5 of the Limitation Act, the appeal was incompetent. In arriving at the said conclusion, the Court did not take into consideration-the reasons assigned in the latter Full Bench decision of the Calcutta High Court as also of the Allahabad Full Bench decision ill Mrs. Panzy Fernandas's case (supra) as well as in the Patna decision in the case of Antala Gope (supra). In this connection I may also refer to a decision of the Supreme Court in the case of Diwan Brothers vs. Central Bank (A. I. R. 1976 Supreme Court 1503). The Supreme Court was considering whether the decision of the Tribunal constituted under the Displaced Persons (Debts Adjustment) Act, allowing a claim or rejecting a claim though described as a decree under the Act, will be a decree within the meaning of the Court .Fees Act. The Supreme Court was considering whether the decision of the Tribunal constituted under the Displaced Persons (Debts Adjustment) Act, allowing a claim or rejecting a claim though described as a decree under the Act, will be a decree within the meaning of the Court .Fees Act. It held that a decree referred to in the Court Fees Act must have the same sense and meaning as is understood under the Code of Civil Procedure, and, therefore, the decree must fulfil the requirements of section 2(2) of the Code of Civil Procedure. To be a decree within the meaning of the Code of Civil Procedure, three essential conditions must be fulfilled, namely, the adjudication must be in a suit, the suit must start with a plaint and culminate in a decree, and the adjudication must be the formal and final and must be given by a Civil Court or Revenue Court. Applying the said test of the Supreme Court, I am constrained to conclude that the final order passed in a contentious proceeding is not passed in a suit, but in a proceeding, as nearly as may be, the form of a regular suit. The proceeding is not initiated by presentation of a plaint, but by a petition, even though in view of section 295 of the Act, the petitioner shall be called a plaintiff and the person opposing the grant may be called as the defendant. I am, therefore, of the opinion that the final order passed is not a decree in the real sense of the term and I respectfully agree with the view of the Calcutta High Court in Bolai Lal Banerji's case (supra) that a formal decree does not seem to be required to be drawn up following an order of grant. 14. In my view, section 295 of the Act creates a legal fiction, and it is well established that legal fiction should operate only for the purpose for which it was created, and should not be extended beyond its legitimate field. Contentious proceeding under section 295 of the Act, therefore, is required to be decided in the form and mode of a regular suit for the purpose of adjudication, but cannot be extended beyond it so as to defeat the law or result in illegality. The basic element of fiction is an assumption, contrary to reality. That reality is contradicted by the legal fiction. The basic element of fiction is an assumption, contrary to reality. That reality is contradicted by the legal fiction. In nutshell, section 295 of the Act classifies the proceeding as a regular suit without changing its character, and even though the order passed in such a proceeding may have the force of a decree, but strictly speaking, it is not a decree within the meaning of the Code of Civil Procedure, having not been passed in a suit instituted by filing of a plaint and written statement. Section 295 of the Act for the sake of convenience in the said proceeding describes the petitioner as a plaintiff and the person opposing it as a defendant, but stops short of treating the petition filed as a plaint and the objection as a written statement. Further, section 299 of the Act speaks about order subject to appeal; and not a decree subject to appeal. It makes no distinction between order or orders or final order. Therefore, a formal decree does not seek to be required to be drawn up following an order of grant, and failure to supply a copy of the decree along with the memorandum of appeal cannot render the appeal itself incompetent. I respectfully agree with the decision rendered in Bolai Lal Banerji's case (supra). 15. 1 am, accordingly, of the opinion that the memorandum of appeal filed against the final order in a proceeding for probate or letters of administration under section 299 of the Act to the High Court in accordance with the provision of the Code of Civil Procedure need not accompany a formal decree and the appeal cannot be held to be incompetent for non-accompaniment of such a formal decree, whether prepared or not prepared. The provisions of the Code of Civil Procedure relevant to such an appeal would be section 104(1).