An appeal filed without a certified copy of the order appealed against, subject to the undertaking that the certified copy would be filed within the limitation period, cannot be entertained if the certified copy is not filed within the limitation period.

( 1 ) THIS appeal, being an appeal from original Order No. 557 if 1994, was taken up for hearing by this Division Bench and during the hearing of this appeal, an application under S. 5 of the Limitation Act was presented for condonation of initial 103 days' delay in filing the memorandum of appeal.

( 2 ) ACCORDINGLY, a question arose whether the court can entertain this application under S. 5 of the Limitation Act in an appeal which is pending and which is, on the face if it, defective.

( 3 ) THE appeal was against the order dared May 20,1994, passed by the Hon'ble Mr. Justice 'prabir Kumar Mazumdar, (as His Lordship then was), in Matter No. 165 1 of 1993. As per the usual and long standing practice prevailing in the Original Side of this Court, as a prevalent, acting under Chapter 31, Rule 29 (11) of the Original Side Rules, and having the force of law under Chapter 40, R. 3, the appellant was allowed to file the memorandum of appeal without certified copy of the order appealed from subject to the undertaking that the said certified copy would be flied within the period of limitation after excluding the time requited by the department concerned in make it ready for filing thereof within the meaning of S. 12 (2) of the Limitation Act, 1963.

( 4 ) IT is not in dispute that such an application for obtaining leave for preferring the memorandum of appeal with the aforesaid undertaking was filed before a Division Bench of this Court consisting of Their Lordships Hon'ble Mr. Justice Gitesh Ranjan Bhattacharya and Hon'ble Mr. Justice Basudev Panigrahi, who were pleased to grant such leave to file the memorandum of appeal on usual terms and conditions, namely without certified copy, after granting leave to draw up and complete the order appealed against and to file the same within the period of limitation after excluding the time required by the department concerned to make it ready for filing thereof within the meaning of S. 12 (2) of the Limitation Act.

( 5 ) ADMITTEDLY, that application was filed and leave was obtained by suppressing the fact before Their Lordships that by that time, the appeal had become barred by limitation and that there was delay of 103 days in preferring the appeal. We have no, manner of doubt that if this fact was drawn to the notice of their Lordships, Their Lordships would not have entertained the application and would not have allowed the memo of appeal to be filed without certified copy on the basis of the aforesaid undertakings as a part of the long-standing practice of this Court.

( 6 ) IN the application for obtaining leave to prefer appeal without certified copy, the necessary particulars with regard to limitation were not disclosed, as in such application, it is necessary to disclose the date when the requisition has been filed for drawing up and complete the order, the date of filing the application for certified copy of the order and that in such a case, the court grants leave only being satisfied that within the period of limitation all steps at required to be taken in this behalf for obtaining the certified copy of the order have been taken and that, because of the delay on the part of the office, such a leave is granted and that on the basis of the undertaking if certified copy is obtained later on. and filed to the court, in that event the defect is cured and the appeal is treated to be valid.

( 7 ) IN the instant case, in the application for leave, it was not drawn to the notice of the Division Bench that the appeal was barred by limitation and that it is well settled principle that a memo of appeal could not be presented without certified copy after the period of limitation as held 1 by a Division Bench of this Court in the case of State v. Biswanath Ghosh, reported in (1994) 2 Cal LJ 466.

( 8 ) IN this connection, the law is very clear inasmuch as under O. 41, R. I of the Code of civil Procedure, it is expressly provided that the "memorandum shall be acc