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S.K. Export Corporation Vs. Punjab and Sind Bank - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberRegular First Appeal No. 213 of 1983
Judge
Reported in1984RLR434
ActsDelhi High Court Act - Sections 10
AppellantS.K. Export Corporation
RespondentPunjab and Sind Bank
Advocates: N.N. Gupta,; A.S. Chandhiok and; Harish Chander, Advs
Excerpt:
the case debated on whether the appeal under section 10 of the delhi high court act, should be accompanied by the judgment - it was ruled that by virtue of order 41 rule 1 of the civil procedure code, 1908, the appeal from a decree would be accompanied by the decree against which the appeal was directed and generally, it would be accompanied by the judgment - however, there was no rule regarding the appeal under section 10 of the act - an appeal under section 10 of the act could be filed without a certified copy - - as the failure to stamp the copy of the judgment appears to be an oversight, we condone the delay, and this decides c......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'. thus, there is a very clear provision that if there is an appeal from a decree it has to be accompanied by the decree against which the appeal is directed and normally has to be accompanied also by the judgment unless the court dispenses with the same. in fact, a normal appeal of this type, if the decree is not filed, will be incompetent. on the other hand, if we turn to s. 10 of the delhi high court act we find that the appeal lies from the 'judgment' but there is no provision as to what document is to accompany such an appeal. obviously, this should have been provided for by.....
Judgment:

D.K. Kapur, J.

(1) We have first to deal with a number of applications. In C.M. 551/83, there is a prayer for condensation of delay in stamping the judgment under appeal with the court fee of Rs. 2.75. The appeal was filed on 4.7.83 which was the last day of limitation with an unstamped order and without a decree and also without the necessary court-fee payable on the appeal. As the failure to stamp the copy of the judgment appears to be an oversight, we condone the delay, and this decides C.M. 551/83.

(2) C.M. 553/83 prays for time to file the court fee on the appeal. It states that the court fee was not available by the closing time of the court on 4.7.83. but we find that it was bought on 4.7.83. Possibly, the appellant could not get the court fee to the High Court in time and had to file the same when the appeal was re-filed. We allow this application and condone the delay.

(3) C.M. 554/83 prays for exemption to file the decree-sheet. This point is inter-connected with the question whether a decree-sheet is necessary in this appeal, and we will deal with this matter shortly.

(4) C.M. 555/83 prays for permission being granted to Shri Khanna to sign the appeal on behalf of the other two appellants as he was the power of attorney holder on behalf of his wife Mrs. Sheetal Khanna. There seems to be no doubt that he can sign the appeal. So, this application stands allowed.

(5) Now, we turn to the most important application C.M. 598/83, which is an application u/s 5 of the Limitation Act for condoning the delay in filing the certified copy of the decree-sheet. This question has assumed some importance because the decree-sheet is undoubtedly filed beyond the period of limitation, and if we have to condone the delay, we would have to accept the fact that both the counsel had scooter accidents on 18.7.83 which resulted in them receiving injuries and so they could not get the certified copy till 5.8.83 etc. But even then, the limitation period expired on 4.7.83. So, there would be considerable difficulty in condoning the delay.

(6) Turning now to the question of time, it may be mentioned that the judgment under appeal is dated 26.4.83. The copy was applied for on 11.5.83 and was ready on 16.6.83. The period of limitation expired during the vacation. So, the appeal had to be filed on the re-opening of the court, i.e. 4.7.83. If a copy of the decree was necessary along with the appeal then the same had to be filed on 4.7.83 and the Explanationn given in this application is inadequate to condone the delay.

(7) However, a much more important question is involved which is that any appeal on the original side of the High Court has to be filed u/s 10 of the Delhi High Court Act which provides that 'an appeal shall lie from the judgment of the single judge to a Division Bench of that High Court'. This provision does not mention any decree. Under this section which is similar to clause 10 of the Letters Patent of Lahore High Court or clause 16 of the Letters Patent of Bombay and Calcutta High Courts; the appeal lies against the judgment and many courts have rules regarding what documents have to accompany such appeals. Unfortunately, the Delhi High Court has made no rules regarding the documents which have to accompany appeals on the original side of the Court.

(8) It has been held by a D.B. of this Court in C.M. 547/76 in R.F.A. (OS) 28/76 D/on 1.2.77 that the provisions of S. 10 of the Delhi High Court Act are quite clear and the appeal can be filed with a judgment alone and need not be accompanied by a certified copy of the decree. The correctness of this view is doubted by learned counsel for the respondent. A reference was made to another case decided by this court, namely, Hegde and Golay v. M/S National Co-op Con. Fed. Ltd. F.A.O. (OS) No. 15/82 D/8.11.82. One of us (Kapur, J.) delivered this judgment and there is certainly a reference in this case that a R.F.A. required the copy of the decree to accompany the appeal and under order 41, Rule 1, Civil Procedure Code ., the judgment can be dispensed with but not the decree. However, in that particular case, the appeal had been filed as an F.A.O. although it was against a decree and in spite of time being taken, no court fee had been filed. This reference to the decree being necessary is based on the express language of Order 41, Rule 1, Civil Procedure Code .

(9) The real differences between the two provisions comes to light only when the question is closely analysed. A normal appeal under the Civil Procedure Code lies to the appellate court u/s 96, CPC. That provision states that 'an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court One would have supposed that this provision would also apply to appeals on the original side of the High Courts in which case there would have been no difficulty on the question now being debated. However, this provision does not apply to the original side of the High Courts. In the other High Courts having original side jurisdiction appeals lie from the judgments under the Letters Patent setting up the High Courts or under other provisions of the law as the case may be. But, in the case of the Delhi High Court, the appeal lies u/s 10 of Delhi High Court Act where, as noted herein- above, the appeal lies from the judgment of the single judge to a D.B. of that High Court. It is particularly noteworthy that the word' judgment' is used and not the word' decree'. On the other hand, S. 96 Civil Procedure Code . does not use the word' judgment but uses the word 'decree'. Thus, we are faced with the peculiar situation that if an appeal is brought from one of the subordinate courts to the High Court or to some other appellate court, then the appeal lies from the decree but if the appeal is from the decision of a single judge of the High Court exercising original civil jurisdiction then the appeal lies from the 'judgment' and not from the 'decree'. Though these words may not have much significance by themselves they have a bearing as to the rules which are applicable regarding the formal validity of appeal which is to be filed. The question is what are the documents that are to accompany the appeal when filed from the original side of the Court

(10) If we turn to Order 41 of the Code, we find it has a heading 'Appeal From Original Decrees'. The heading is not appeals from original judgments but from decrees. 'The first rule in this order states that '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'. Thus, there is a very clear provision that if there is an appeal from a decree it has to be accompanied by the decree against which the appeal is directed and normally has to be accompanied also by the judgment unless the court dispenses with the same. In fact, a normal appeal of this type, if the decree is not filed, will be incompetent. On the other hand, if we turn to S. 10 of the Delhi High Court Act we find that the appeal lies from the 'judgment' but there is no provision as to what document is to accompany such an appeal. Obviously, this should have been provided for by some rule made under the Act but no such rule is to be found. This is a short cowing in the Original side Rules of the Delhi High Court, but we cannot do anything about this.

(11) The question we have to consider is whether an appeal which is accompanied only by a judgment is a proper appeal or whether it can be rejected by us on the footing that a certified copy of the decree had to accompany the same. As the rules stand, there is no rule at all regarding what is to accompany an appeal u/s 10 of the Delhi High Court Act. We would, thereforee, prefer to follow the view expressed by the bench of Prakash Narain and P.S. Safeer, JJ. (as they then were) in R.F.A. (OS) 28/76, referred to above, to the effect that an appeal of this type may be filed without a certified copy of the decree and the appeal cannot be held to be barred by time. In the circumstances, there is no need to condone the delay in filing the certified copy of the decree and thus the application praying for condensation of delay in this respect is dismissed, but it is held that the appeal is within time in view of our condoning the delay in filing the court-fee.

(12) Here again, we may mention that an appeal is deemed to be filed when it is properly filed along with the necessary court- fee and if we do not condone the delay in filing the court-fee then also the appeal would have been barred by time.

(13) We now take up the main appeal itself. We have examined the same with the help of learned counsel, and we are of the view that the appeal has to be dismissed in liming, and we order accordingly.


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