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2015 DIGILAW 608 (ALL)

Tara Devi v. Addl. Commissioner Gorakhpur

2015-03-27

ANJANI KUMAR MISHRA

body2015
JUDGMENT : Anjani Kumar Mishra, J. Heard Sri R.C. Singh learned counsel for the petitioner and Sri Tariq Maqbool Khan who appears for the respondent no. 3, Gram Panchayat. 2. The petitioner has filed this writ petition seeking quashing of the proceedings in Appeal no. 8/2008/K/2014 (Vijay v. Smt. Tara Devi and others) as also the order dated 30.01.2015 which is an interim order granted in this appeal whereby the operation of the judgment dated 16.1.2.2014 passed in a suit under Section 229-B/164 of the U.P. Zamindari Abolition & Land Reforms Act has been stayed. 3. It is case of the petitioner that she is the mortgagee in possession of Plot no. 1219 area 0.308 hectare situated in village Jangal Belwa which was the property of one Ghanshayam, father of respondent no. 4. Ghanshyam is alleged to have executed a mortgage deed with possession in favour of the petitioner to secure a loan. The petitioner alleges to be in possession of the land in question from the date the mortgage was made. It is contended that the mortgage with possession amounted to a sale in view of Section 164 of the U.P.Z.A. & L.R. Act. The petitioner therefore, filed a suit for declaration under Section 229-B/164 of the Act. The Trial Court decreed the suit on 16.12.2014. Against the judgment of the Trial Court respondent no. 4 instituted an appeal before the Additional Commissioner, respondent no. 1. This appeal was entertained holding it to be maintainable and the interim order noticed herein above was granted in favour of respondent no. 4, hence this writ petition. 4. Sri R.C. Singh has submitted that the appeal was filed without annexing thereto a copy of the decree. The appeal therefore, was incompetent and could not have been entertained and no interim order could have been granted therein. It is therefore contended, that the proceedings in the appeal are liable to be quashed. 5. The second submission made by learned counsel for the petitioner is that the specific objection raised in this regard by the petitioner has not been considered while granting the interim order. He therefore submits that the writ petition is liable to be entertained and the relief prayed is liable to be granted. 6. In have considered the submissions made by learned counsel for the petitioner who has primarily relied upon Section 96 of the CPC which reads as follows:- 96. He therefore submits that the writ petition is liable to be entertained and the relief prayed is liable to be granted. 6. In have considered the submissions made by learned counsel for the petitioner who has primarily relied upon Section 96 of the CPC which reads as follows:- 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, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. (2)...... (3)...... (4)...... 7. On the strength of the above extracted provision, the submission of learned counsel for the petitioner is that since an appeal lies against the decree, the same must necessarily accompany the memorandum of appeal. Since, in the instant case, the copy of the decree has not been filed, the appeal is clearly not maintainable and must necessarily be dismissed. 8. Upon a consideration of the submissions made and upon a perusal of the record the contentions of learned counsel for the petitioner must necessarily be rejected. The relevant provision of law in the context of the submissions made by learned counsel for the petitioner is Rule 1 Order 41 of the CPC which deals with appeals from original decrees. 9. Rule 1 provides as to what documents must accompany the memorandum of appeal. The said Rule is extracted below:- R. 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 'judgment'. 'Provided that where two or more suits have been tried together and a common judgment has been delivered therefore 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.' 10. It is clear from a perusal of Rule 1 extracted above that a memorandum of appeal should be accompanied by a copy of the judgment. It is clear from a perusal of Rule 1 extracted above that a memorandum of appeal should be accompanied by a copy of the judgment. The word 'judgment' has been inserted by Act No. 46 of 1999 w.e.f. 01.07.2002 by replacing certain words occurring in the said Rule earlier.. The words that have replaced by the word judgment were: 'decree, appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded'. 11. From the above noted amendment it is clear that after 01.07.2002 the memorandum of appeal must not be necessarily accompanied by a copy of the decree. The memorandum of appeal must be accompanied by a copy of the judgment and this alone is the mandatory requirement under Order 41, Rule 1 . It is not in dispute in the instant case that a copy of the judgment appealed against has been annexed with the memorandum of appeal. It must, therefore, necessarily be held that the appeal is competent and has rightly been entertained. The submissions of learned counsel for the petitioner to the contrary therefore cannot be accepted and must necessarily be rejected. 12. The amendment aforesaid in Rule 1 Order 41 of the Civil Procedure Code has been made in view of the 125th report of Law Commission of India which had suggested this amendment so as to dispense with the requirement of filing a certified copy of the decree along with the memorandum of appeal. It was so recommended because the period of limitation for filing of appeal invariably got extended due to the delay in preparation of decree itself. Thus, the object of the amendment was to shorten the period of limitation, at least by the period spent in drawing up a decree, after the judgment had been pronounced. 13. It is therefore, held that any appeal filed, annexing with the memorandum a certified copy of the judgment and without a copy of the decree founded upon such judgment is in proper form and therefore entertain able. 14. Accordingly and for the reasons given above I find no merit in the submissions made by learned counsel for the petitioner and the writ petition therefore is liable to be and is hereby dismissed.