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Dhanpat Mal Vs. Mela Mal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in41Ind.Cas.918
AppellantDhanpat Mal
RespondentMela Mal and anr.
Excerpt:
civil procedure code (act v of 1908), order xli, rule 1 - appeal, presentation of--copies of decree and judgment, necessity of--copy filed after expiry of period of limitation, effect of--limitation. - .....this appeal within the period prescribed by law, and the appeal must, therefore, be dismissed. the decree appealed from was passed on the 21st april 1916, and the memorandum of appeal accompanied by a copy of the decree, and not by a copy of the judgment on which it was founded, was presented to this court on the 26th july 1916. it will be observed that this memorandum did not bear the signature of either the appellant or his pleader, and it was returned on the 27th july for rectifying this mistake and also for filing a copy of the judgment of the lower appellate court. the appeal was re-filed on the 2nd august but again without a copy of the judgment, and it was only after it had been returned again that the said copy was filed on the 8th august.2. now, order xli, rule 1, lays down that.....
Judgment:

Shadi Lal, J.

1. There was no valid presentation of this appeal within the period prescribed by law, and the appeal must, therefore, be dismissed. The decree appealed from was passed on the 21st April 1916, and the memorandum of appeal accompanied by a copy of the decree, and not by a copy of the judgment on which it was founded, was presented to this Court on the 26th July 1916. It will be observed that this memorandum did not bear the signature of either the appellant or his Pleader, and it was returned on the 27th July for rectifying this mistake and also for filing a copy of the judgment of the lower Appellate Court. The appeal was re-filed on the 2nd August but again without a copy of the judgment, and it was only after it had been returned again that the said copy was filed on the 8th August.

2. Now, Order XLI, Rule 1, lays down that the memorandum of appeal shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it was founded. It is quite clear that no dispensation referred to above has been granted, and that a copy of the judgment is a necessary accompaniment for a valid appeal, vide, inter alia, Bhag Singh v. Jhanda Singh 7 P. R. 1879. It was not, as observed above, until the 8th August that the copy of the lower Appellate Court's judgment was filed and it is beyond dispute that after excluding the time requisite for obtaining the copies of the judgment and the decree, the appeal was validly presented long after the expiry of the period of ninety days prescribed by law. No just cause has been shown for extending the time, and I am, therefore, constrained to dismiss the appeal with costs.


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