Manoranjan Nath v. Sumati Das — 1995 DIGILAW 248 (GAU)

The short question of law which arises in this second appeal is whether the first appeal which was preferred before the learned Sub-Judge, West Tripura against the order of learned Second Additional Munsiff, Sadar dismissing the suit of the appellant-plaintiff was competent in law or not. The circumstances under which this question arises may therefore be briefly stated as under. 2. On 13.4.1970 the plaintiff who is the appellant before this Court filed Title Suit No.31 of 1970 in the Court of learned Munsiff, Sadar for declaration of his title to and recovery of khas possession of the suit land. After appearance of the defendants the issues were framed and the case was fixed for peremptory hearing. But at this stage of peremptory hearing the suit suffered a good number of adjournments. However, as a last chance to the plaintiff the case was fixed on 4.1.1973 for peremptory hearing. But on this date the plaintiff neither appeared nor took any step. So, the learned Munsiff dismissed the suit for default. Thereafter, the plaintiff filed an application for restoration of the suit. This application was numbered as 8 (Misc) of 1973. By the order dated 21.3.1973 learned Additional Munsiff disposed of the misc case restoring the suit to its original file. But again the suit suffered a few adjournments and thereafter case was fixed on 7.2.74 as a last chance for peremptory hearing. But even though the date was fixed as a last chance the plaintiff again approached for adjournment and the prayer for adjournment was granted fixing the next date on 28.2.1974. On this date the plaintiff again prayed for adjournment but learned Additional Munsiff rejected the prayer and dismissed the suit for default. 3. Thereafter, the plaintiff filed an appeal in the Court of learned Sub-Judge being Title Appeal No. 19 of 1974 on 2.5.1974 along with a prayer for condonation of the delay in preferring the appeal. But the appeal was filed only with a certified copy of the judgment and since no certified copy of the decree was filed along with the memo of appeal learned counsel appearing on behalf of the respondents-defendants raised a preliminary objection as to the maintainability of the appeal on the ground that certified copy of the decree was not annexed along with the appeal. Learned appellate authority by his judgment dated 27th April, 1977 dismissed the appeal on the ground that the prayer for condonation cannot be granted as the appellant-plaintiff did not file the application for certified copy of the decree within the period of limitation. Hence, this second appeal. 4. The certified copy of the order dated 28.2.74 of the learned Additional Munsiff shows that the plaintiff filed the application on 1.3.1974 for certified copy of the judgment. The certified copy of the judgment was made ready for delivery on 26.3.1974. So, the appeal was due to be filed on 24.4.1974. In his prayer for condonation for this few days the plaintiff stated that he had to leave Agartala for Khowai on receipt of some information that his father had fallen sick and he remained busy in connection with the treatment of his father and he came back to Agartala only on 1.5.74 and thereafter filed the appeal. 5. But the learned counsel for the respondents raised a preliminary objection before the learned first appellate Court as to the maintainability of the appeal on the ground that the certified copy of the decree was not filed along with the memo of appeal. Learned first appellate Court, therefore, dismissed the appeal on the ground that the appellant did not even file the application for certified copy of the decree within the prescribed period of limitation. 6. Now Mr. P. Deb Roy, the learned counsel appearing on behalf of the appellant has at the very outset argued that it is true that Order 41 Rule 1 of CPC requires that the memo of appeal has to be accompanied with a certified copy of the decree. But it is submitted by Mr. Deb Roy that the decree has not yet been prepared and the certified copy of the order of the Judge-in-charge will show that the prayer for certified copy of the decree was rejected on the ground that no decree was prepared as the suit was dismissed for default. 7. Mr. S. Deb, the learned senior counsel appearing on behalf of the respondents has on the other hand argued that the appellant is not entitled to get the benefit of the period intervening between the date of announcement of the judgment and preparation of the decree. 7. Mr. S. Deb, the learned senior counsel appearing on behalf of the respondents has on the other hand argued that the appellant is not entitled to get the benefit of the period intervening between the date of announcement of the judgment and preparation of the decree. In drawing my attention to the explanation to the section 12 of the Limitation Act, 1963 it is submitted by Mr. Deb that the explanation has quite categorically stated that the time taken by the Court to prepare the decree or order before an application for a copy thereof is made shall not be excluded and hence, in the instant case, the appellant is not entitled to get that period because the record will show that the appellant filed the application for certified copy of the decree on 14.5.1974. In support of his contention Mr. S. Deb has placed reliance upon a decision of the Supreme Court rendered in the case of Udayan Chinubhai vs. RC Ball reported in (1977) 4 SCC 309 where it was held that the correct legal position is that under section 12 (2) read with explanation a person cannot get exclusion of the period that elapsed between the pronouncement of the judgment and the signing of the decree if he made an application for copy only after the preparation of the decree. It is therefore, clear from the above observation of the Supreme Court that the time between signing the judgment and signing the decree is not to be excluded if the application for copy of the decree is made after it is signed. 8. Learned first appellate Court therefore held that the appeal was not maintainable as the appellant filed the application for certified copy of the judgment only on 14.5.1974 i.e. after the period of limitation. 9. But it is contended by Mr. Deb Roy that no decree has yet been prepared in the aforesaid suit and that it would be apparent from the order of the Judge-in-charge rejecting the application of the appellant that the appellant's application for certified copy of the decree was rejected as no decree is prepared when the suit is dismissed for default. The certified copy of the order of the Judge-in-charge rejecting the application and note of the Dealing Assistant has been submitted which as follows : "To custodian of the records of the Court's concerned for assessment and report. The certified copy of the order of the Judge-in-charge rejecting the application and note of the Dealing Assistant has been submitted which as follows : "To custodian of the records of the Court's concerned for assessment and report. Sd/- AK Dey 14.5.74 Head Copying Clerk Copying Department District Judge's Court, Tripura. M. Chakraborty copiest to prepare copy if requisites filed. Sd/- AK Dey 14.5.74 Head Copying Clerk Copying Department District Judge's Court, Tripura. Note : It appears from the records that the decree was not prepared as it was dismissed for default so estimate was not given. Sd/- T.Sarkar 17.5.74 Seen the report of the clerk concerned the application is rejected. Seen Sd/- SC Das 31.5.74 Sd/- BB Deb Sarkar Judge-in-charge 29.5.74 Sd/- AK Deb 30.5.74." 10. It is therefore clear from the certified copy of the order of the Judge-in-charge and the note of the Dealing Assistant that it was not the practice at that time to prepare any decree when the suit was dismissed for default. 11. In the case of Shakuntala Devi Jain vs. Kuntal Kumari & others, reported in AIR 1969 SC 575 it was observed by the Supreme Court that "ordinarily a decree means the formal expression of an adjudication in a suit. The decree follows the judgment and must be drawn up separately. In some Courts, the decision under section 47 is required to be formally drawn up as a decree and in that case the memorandum of appeal must be accompained with a copy of the decree as well as the judgment. But in some other Courts no separate decree is drawn up embodying the adjudication under section 47. In such a case, the decision under section 47 is the decree and also the judgment, and the filing of a certified copy of the decision is sufficient compliance with Order 41 Rule 1. As the decision is the decree, the appeal is incompetent unless the memorandum of appeal is accompanied by a certified copy of the decision." 12. In the instant case, it will appear from the facts discussed above that the appellant filed the application for certified copy of the judgment within the time and there is no controversy over this. The appeal was however filed after 7 days with a prayer for condonation. In the instant case, it will appear from the facts discussed above that the appellant filed the application for certified copy of the judgment within the time and there is no controversy over this. The appeal was however filed after 7 days with a prayer for condonation. In the application for condonation the appellant stated that he had to leave Agartala for Khowai as he got the news that his father was seriously ill and in that connection, he was held up there upto 1st of May, 1974. Learned first appellate Court did not consider this application for condonation mainly on the ground that the memo of appeal was not accompanied with a certified copy of the decree and that the application for certified copy of the decree was not filed within the prescribed period of limitation. But as quoted above, it would appear from the notes of the Dealing Assistant and the order of the Judge-in-charge that no separate decree is drawn up when the suit is dismissed for default. It is also an admitted fact that, no separate decree has yet been drawn up embodying the adjudication of the order dismissing the suit. 13. The records disclose that the appellant made attempts to get the certified copy of the decree. But the Copying Department rejected the prayer on the ground that no separate decree was drawn up in a suit which was dismissed for default. 14. In view of the above facts and circumstances, I am of the view that this is not a case where negligence can be attributed to the appellant to deprive him of the protection of section 5 of the Limitation Act. It is clear from the certified copies of the note of the Dealing Assistant of the Copying Department and the order of the Judge-in-charge that no decree is prepared when a suit is dismissed for default. I am however of the view that even if a suit is dismissed, for default then .also a decree should be prepared. But as already stated the appellant cannot suffer for that reason. 15. Now in respect of the application for condonation of the delay of 7 days the appellant stated that on 24th April, 1974 he had suddenly left for Khowai as he got information that his father had fallen ill and he had to remain there until 1..5.1974. But as already stated the appellant cannot suffer for that reason. 15. Now in respect of the application for condonation of the delay of 7 days the appellant stated that on 24th April, 1974 he had suddenly left for Khowai as he got information that his father had fallen ill and he had to remain there until 1..5.1974. This application for condonation has been supported by an affidavit and the respondents did not controvert this ground. I am, therefore, inclined to allow the application under section 5 of the Limitation Act and condone the delay in filing the appeal with a certified copy of the order. 16. In the result, I allow the appeal. The application filed by the appellant under section 5 of the Limitation Act is allowed and the judgment of the first appellate Court dismissing the appeal is set aside. The appeal is remanded to the Court i of learned First appellate Court for hearing the appeal afresh and to dispose of it no merit. But under the circumstances, there would be no order as to cost.