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2007 DIGILAW 188 (JK)

State Financial Corp. J&K v. Balwant Singh

2007-09-14

J.P.SINGH

body2007
This Civil 1st Miscellaneous Appeal No. CIMA No. 44/2002, which ought to have been registered as civil 1st appeal is directed against judgment dated 18.4.2001 of learned Additional District Judge, Jammu whereby he had dismissed the appellants suit for recovery of an amount of Rs. 4,20,154.78, as barred by the law of limitation. 2. On this appeal coming up for hearing, learned counsel for the respondents submitted that this appeal was incompetent because Civil Procedure Code does not contemplate appeal against a judgment under section 96 of the Code of Civil Procedure which provides for an appeal against a decree alone. Learned counsel submits that while dismissing the suit, the trial court had passed a decree and a decree sheet too had been prepared by it. The appellant, while filing appeal had not filed copy of the decree along with the appeal. The appeal thus is liable to be rejected, being incompetent. 3. Mrs. Seema Shekher, learned counsel for the appellant submitted that the appeal though not filed against the decree can still to be treated against it because the defect was only of a technical nature and the appeal of the appellant needs to be considered on merits. 4. I have considered the submissions of learned counsel for the parties. 5. Section 96 of the Code of Civil Procedure contemplates filing of appeal from original decrees; Appeal against judgment is not contemplated by Section 96 of the Code of Civil Procedure. For filing an appeal against a decree, the appellant is required to comply with the mandate of order 41 Rule 1 of the CPC Which provides that the memorandum of appeal has to be accompanied by a copy of the decree appealed against. Order 41 Rule I of CPC, provides that filing of copy of the judgment of the Court whose decree is sought to be appealed against, may be dispensed with by the Court. Order 41 Rule 1 of the Code, however, does not contemplate dispensing with the filing of the copy of the decree. 6. Order 41 Rule I of CPC, provides that filing of copy of the judgment of the Court whose decree is sought to be appealed against, may be dispensed with by the Court. Order 41 Rule 1 of the Code, however, does not contemplate dispensing with the filing of the copy of the decree. 6. Even if one were to accept the appellants counsels submission that the respondents objection was purely technical and if appellants appeal were to be treated as one filed against the decree of the trial court, yet the appellants appeal would continue to remain incompetent because the memorandum of appeal when presented was not accompanied with a copy of the decree appealed against. This is so because while dismissing appellants suit as barred by time, a decree had been drawn by the trial court and failure of the appellant to supply copy of the decree with the memorandum of appeal, as required under Order 41 Rule 1 of CPC would amount to non-compliance of the mandatory provisions of Order 41 Rule 1 of CPC, rendering appellants appeal incompetent. The appellant has not projected any reason in the memorandum of appeal nor has any such reason been projected at the time of hearing of the appeal that the appellant was in any way disabled to file the copy of the decree with the memorandum of appeal when it was so presented in the Court. 7. In the absence of any disability with the appellant to annex copy of decree with the memorandum of appeal, I do not find any material to hold the appeal competent in view of the law laid down by this Court in Shri Ram Rattan Sharma v. Station Commander Military Estates officer, Station H. O, Nagrota reported as 2000 SLJ 529, which reiterates the view taken by Honble Supreme Court of India in Jagat Dish Bhargava v. Jawahar Lal Bhargava and others, reported as AIR 1961 SC 832. 8. This appeal is, accordingly, dismissed as incompetent. Registrar Judicial to draw a decree accordingly.