Kumaraswami Sastri, J.
1. This is an application to vacate an exparte order excusing the delay in re-presentation and to dismiss the second appeal with Costs.
2. The Second Appeal in which the Rajah of Ramnad is the appellant was filed in time but without a copy of the decree appealed against. The papers were returned for representation with a copy of the decree. When the copy of the decree was filed, the appeal was 53 days out of time as the papers were returned on the 6th of December 1918 and the decree was filed on the 16th of January 1919. On the 18th of January 1919 the papers were again returned with the remark that the appeal became out of time when the copy of the decree appealed against was filed and that an affidavit explaining the cause of the delay should be filed. On the 20th January 1922 the papers were again presented with an affidavit and orders were obtained from me on the same day excusing the delay. The petitioner who was served with notice of the appeal on the 15th' of April 1922 has filed this application on the 13th November 1922 for setting aside the exparte order passed.
3. There can be little doubt that, though the second appeal was presented in time, there was no valid presentation because the memorandum of appeal was not accompanied by a copy of the decree appealed against. Order 41. Rule 1. is imperative and states that a memorandum of appeal shall be accompanied by a copy of the decree appealed against. In Sirikantha Roy v. Bipra Das (1919) 27 I.C.447, it was held that it was a condition precedent to there being a valid memorandum of appeal that it should be accompanied by a copy of the decree appealed from. The same view was taken in Binapani Bibi v. Sashibhushan (1912) 16 C.L.J. 133 ; Khirodi Sundari Debt v. Jnanendra Nath Pal Chaudhuri (1901) 6 C.W.N. 283 ; and Chamela Kuar v. Amir Khan I.L.R. 16 All. 77 . In Dand Bahadur Singh v. Deo Nandan Prosad (1913) 20 I.C. 513, it was held that where an exparte order is passed excusing the delay, it is open to the other party to apply to have it set aside. There can be little doubt that Courts have power to excuse the delay in the presentation of a copy of the decree appealed against and I need only refer to Binapani v. Sashibhusan (1912) 16 C.L.J. 133 Hem Chandra v. Jadab Chandra (1912)46 C.L.J.116 and Prosonno Kumari v. Ram Chandra (1912) 17 C.L.J 66 where it has been held that it is open to the Court to pass an order that a certified copy of a decree be received and attached to the memorandum of appeal if it is satisfied that the discretion vested in it under Section 5 of the Limitation Act should be exercised in favour of the appellant.
4. The question here is whether the delay should be excused. So far as the affidavit filed on behalf of the appellant is concerned, the reason for not filing the copy of the decree appealed against along with the memorandum of appeal is that the Dewan of the appellant did not send a copy of the decree along with the papers to be filed and that as the last day for filing the appeal was the 7th November 1918 the clerk of Mr. A. Krishnaswami Aiyar Vakil for the appellant, filed the appeal without the copy of the decree. On the application to set aside the ex-parte order excusing the delay, no affidavit has been filed either by the appellant or his Dewan or any other person explaining why a copy of the decree was not sent along with the other papers or why there was a delay of 53 days. In the absence of any explanation I am of opinion that the delay has not been properly explained. I am, after hearing the petitioner, of opinion that the long delay has not been explained so as to justify me in exercising my discretion under Section 5 of the Limitation Act and excuse the delay in the presentation of the appeal as the authorities which have been cited to me by the petitioner's Vakil show that the second appeal itself was incompetent at the time of presentation owing to the absence of a copy of the decree appealed against.
5. I, therefore, set aside my order excusing the delay and direct that the Second Appeal be posted for orders before a bench.
6. (This second was eventually dismissed on the ground of delay in presentation by Spencer and Venkatasubba Rao, JJ. Rep.).