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1960 (12) TMI 89 - SC - Indian Laws

Issues Involved:
1. Competence of the appeal filed without a certified copy of the decree.
2. Application of Order 41, Rule 1 of the Code of Civil Procedure.
3. Exclusion of time under Section 12, sub-section (2) of the Limitation Act.
4. Judicial discretion in procedural defects.

Issue-wise Detailed Analysis:

1. Competence of the Appeal Filed Without a Certified Copy of the Decree:
The primary issue in this appeal is whether the appeal filed by the respondents in the High Court of Punjab was competent, given that it was filed without a certified copy of the decree. The appeal was filed with a certified copy of the judgment and the bill of costs but not the decree, as the decree had not been drawn up by the trial court.

2. Application of Order 41, Rule 1 of the Code of Civil Procedure:
Order 41, Rule 1 mandates that every appeal must be accompanied by a copy of the decree appealed from and the judgment on which it is founded. The rule is clear that while the appellate court may dispense with the filing of the judgment, it has no jurisdiction to dispense with the filing of the decree. The appeal is primarily against the decree, not the judgment, making the filing of the decree mandatory. Failure to file the decree renders the appeal incomplete, defective, and incompetent.

3. Exclusion of Time Under Section 12, Sub-section (2) of the Limitation Act:
The respondents applied for a certified copy of the judgment and decree on March 24, 1954, but were only given the judgment and bill of costs as no decree had been drawn up. The High Court allowed time for the respondents to obtain the decree, which they did on December 23, 1959. The period for filing the appeal is 90 days from the date of the decree, and Section 12, sub-section (2) of the Limitation Act allows for the exclusion of the time requisite for obtaining a copy of the decree. In this case, the time taken for drawing up the decree is included in the period requisite for obtaining the copy, making the appeal filed on December 23, 1959, within the limitation period.

4. Judicial Discretion in Procedural Defects:
The High Court, recognizing the procedural defect, allowed the respondents time to obtain the decree. The Supreme Court noted that the failure to draw up the decree was a result of negligence by the trial court's office and the High Court's office. The High Court's decision to permit the respondents to rectify the defect was deemed fair and just. The Supreme Court emphasized that procedural rules should not penalize litigants for the court's or its officers' negligence. The appeal, having been properly filed on December 23, 1959, was in time and should be heard on its merits.

Conclusion:
The Supreme Court upheld the High Court's order, dismissing the appellant's contention that the appeal should have been dismissed as incompetent. The appeal was deemed to have been filed in time, and the High Court was directed to proceed with the hearing on the merits. The judgment highlights the importance of judicial discretion in procedural matters and the need to ensure that litigants are not unfairly penalized for procedural lapses beyond their control. The appeal was dismissed with no order as to costs.

 

 

 

 

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