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High Court Of Rajasthan
Judgename : L.N.Chhangani,J.P.Jain
LABHMAL - Appellant
Versus
LALCHAND - Respondent
Special Appeal (Execution) 26 Of 1966
Decided On : 05/06/1971
LIMITATION ACT - SECTION 5 - APPEAL - SUFFICIENCY OF CAUSE - DECREE-SHEET - FILING - NECESSITY - MISTAKE OF COUNSEL - SUFFICIENCY OF CAUSE - SECTION 47, CIVIL PROCEDURE CODE - DECREE - DEFINITION - ORDER 41, RULE 1, CIVIL PROCEDURE CODE - MANDATORY - APPEAL - INCOMPETENT - DISMISSAL.
Fact of the Case:
The appellant filed an appeal against an order of the District Judge setting aside an order of the execution court for the arrest and detention of the judgment-debtor in civil prison. The appellant had applied for a copy of the decree-sheet on the last day of limitation and submitted it along with the memorandum of appeal. The office raised an objection that the appeal was barred by limitation. The appellant applied under Section 5 of the Limitation Act, stating that he believed that no decree-sheet was required to be prepared.
Finding of the Court:
The court held that the appeal was time-barred. It held that a copy of the decree-sheet was required to be filed along with the memorandum of appeal and that the appellant had not shown sufficient cause for not filing it within time. The court also held that the mistake of the appellant's counsel was not a sufficient ground for condoning the delay.
Issues: 1. Whether a copy of the decree-sheet is required to be filed along with the memorandum of appeal? 2. Whether the appellant had shown sufficient cause for not filing the decree-sheet within time? 3. Whether the mistake of the appellant's counsel was a sufficient ground for condoning the delay?
Ratio Decidendi: 1. Yes, a copy of the decree-sheet is required to be filed along with the memorandum of appeal. Order 41, Rule 1, Civil Procedure Code, is mandatory and requires that every appeal shall be accompanied by a copy of the decree appealed from. 2. No, the appellant had not shown sufficient cause for not filing the decree-sheet within time. The appellant had not alleged that he was misled by any bona fide advice of a counsel. He had also not explained the delay of three days in applying for the copy of the decree-sheet. 3. No, the mistake of the appellant's counsel was not a sufficient ground for condoning the delay. The mistake was not tainted with any mala fide motive, but it was not a sufficient ground by itself.
Final Decision: The appeal was dismissed as time-barred.
JAIN, J.
( 1 ) THIS Is a special appeal under Section 18 (2) of the Rajasthan High Court ordinance, 1949 by leave of a Single Judge of this Court.
( 2 ) LABHMAL had a money decree against Lalchand, judgment-debtor for a sum of rs. 5,862/ -. By his application dated 12-7-1962 in the execution court, he prayed for the arrest and detention of the judgment-debtor in civil prison. On notice the respondent judgment-debtor opposed the application under Section 47 of the Code of Civil Procedure. After enquiry, the Civil Judge, Jodhpur ordered the judgment-debtor to be sent to civil prison for six months. In appeal against this order the learned District Judge held that in view of the proviso to Section 51 of the Code of civil Procedure, the judgment-debtor was not liable to arrest and detention in civil prison. He accordingly set aside the order of the execution court and allowed the appeal by his order dated 7th April, 1965.
( 3 ) THE decree-holder presented an appeal against this order on 12th July, 1965 on the last day of limitation in the High Court. The memorandum of appeal was accompanied only by a copy of the judgment. Copy of the order-sheet was not submitted. On 21-7-1965 it was pointed out by the office that the copy of the decree or the formal order against which the appeal was directed has not been submitted. The appellant then applied for a copy of the decree-sheet on 24-71965 and obtained the same from the court of District Judge, Jodhpur and submitted the same on the same day. The office then raised the objection that the appeal was barred by limitation. The appellant then made an application under section 5 of the Limitation Act and stated therein that no decree-sheet was required to be prepared under Order XX, Rule 6, Civil P. C. as the question decided was under Section 47, Civil P. C. It was also stated that no decree-sheet was prepared by the execution court and he believed that no decree-sheet was required to be prepared by the first appellate court. It was also submitted that he got the file of the appellate court inspected by his counsel on the next day and he came to know for the first time that the decree-sheet was prepared in that case. He applied for a copy and obtained the same. The learned single Judge held that a copy of the decree-sheet was required to be filed and the reasons given under section 5 of the Limitation Act were not sufficient for extending the limitation. He dismissed the appeal as time-barred. He, however granted leave to file special appeal.
( 4 ) WE have heard Shri Biradmal Singhvi for the appellant and Shri In-derchand maloo on behalf of the respondent.
( 5 ) IT is admitted that the appellant applied for obtaining a copy of the decree-sheet in the court of District Judge. Jodhpur for the first time on 24-7-1965. This application was not made within time. This is also not in dispute that a decree was drawn in pursuance of the order of the District Judge dated 7th April. 1965 on the same day and it was also signed the same day. It is well borne out from the order sheet dated 7-4-1965 of the Court.
( 6 ) GENERAL Rules (Civil), 1952 were framed by the High Court for the subordinate courts. Rules 85 and 87 read as follows :-
""85. Every decree and order as defined in Section 2 of the Code shall be drawn up in such a manner that in order to the understanding and execution thereof, it may not be necessary to refer to any other document or paper whatever, which is not made part of the decree or order. In all cases in which the form of a decree has been prescribed or indicated by statute, the decree shall be prepared, as far as possible in the form so prescribed. 67. (1) The decree or formal order shall be drawn up ordinarily within three days of the date of judgment and shall bear that date. After the decree has been examined it shall be signed by the Judge and the date of such signature entered by him immediately beneath the signature. (2) The Judge shall see that the decree or f
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