Power of Court to dispense with production of decretal decree.

This is a Civil Miscellaneous Appeal against the order of the City Civil Judge dismissing an application filed by the appellant for temporary injunction. The appeal was filed on 25th January, 1954, but it was not accompanied by a decretal order. Along with the appeal, an application was filed for dispensing with the production of the decretal order. Basheer Ahmed Sayeed, J., by an order, dated 27th January, 1954, dispensed with the production for the time being, on the appellant undertaking to produce the same within six weeks. The same learned Judge made an order issuing a temporary injunction pending disposal of the Civil Miscellaneous Appeal. The respondent filed a Letters Patent Appeal against that order, and a Divisional Bench of this Court, consisting of Chief Justice and Umamaheswaram, J., suspended the order made by Basheer Ahmed Sayeed, J., but directed the above Civil Miscellaneous Appeal and the Letters Patent Appeal to be posted before a Bench, to-day, and it is accordingly posted before us.

Learned counsel appearing for the respondent contends that the C.M.A. is not maintainable, as the memorandum of appeal was not accompanied by a decretal order. In support of his contention he relies upon Order 41, rule (1), Civil Procedure Code, read along with Order 43, rule (2) of the Code. Order 41, rule (1) reads:

“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 decree appealed from and unless the Appellate Court dispenses therewith of the judgment on which it is founded”.

Order 43, rule (2) says that:

“the rules of Order 41 and of Order 41-A shall apply so far as may be, to appeals from the orders specified in rule (1) and other orders of any Civil Court from which an appeal to the High Court is allowed under any provision of law”.

We should have thought that the wording of Order 41, rule (1) was clear and unambiguous and would not lend any scope for argument, for the rule says in express terms that “the memorandum shall be accompanied by a copy of the decree” and the next clause giving power to an appellate Court to dispense with the production of a judgment indicates that in the case of a decree, the appellate Court has no such power. It was so held by Kumaraswami Sastri, J., in Sundaram Aiyar v. RajaRajeswara Muthu Ramalinga Sethupathi1. There the learned Judge stated that the provisions of Order 41, rule (1), Civil Procedure Code, are imperative and the presentation of a memorandum of second appeal without a copy of the decree appealed against is not a valid presentation. A Division Bench of this Court, consisting of Wadsworth and Patanjali Sastri, JJ., have accepted the correctness of that judgment in Sitarama v. Lakshminarayana2.

But the learned counsel for the appellant relies upon the judgment of Chandrasekhara Aiyar, J., in Ravalla Ramappa, In re3 and argues that that decision supports his contention. There the learned Judge was construing the provisions of Order 41-A, rule (1), Civil Procedure Code. Order 41-A applies to appeals to the High Court from original decree of subordinate Courts. The relevant rules are rules (1) and (2). Rule (1) reads:

“The rules contained in Order 41 shall apply to appeals in the High Court of Judicature at Madras with the modifications contained in this order”.

Rule 2(1) says:

“The memorandum of appeal shall be accompanied by twelve printed copies of the judgment, one of such copies being a certified copy, the prescribed fee for service of notice of appeal and the receipt of the accountant of the Court for the sum prescribed by the rules of Court.”

The memorandum of appeal before the learned Judge was not accompanied by 12 printed copies of the judgment. It was contended that the appeal was not maintainable, but the learned Judge held that the power contained in Order 41, rule (1) was not taken away by