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Balakrishna Industrial Works Vs. C.S. Venkatachari and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 55 of 1954
Judge
Reported inAIR1954Mad883; (1954)IIMLJ290
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 1 - Order 43, Rule 2
AppellantBalakrishna Industrial Works
RespondentC.S. Venkatachari and anr.
Appellant AdvocateS.K. Ahmed Meeran and ;M. Khaja Mohideen, Advs.
Respondent AdvocateSundararajan, ;Sivaswami, ;V.T. Rangaswami Iyengar and ;K. Kalyansundaram, Advs.
DispositionAppeal dismissed
Cases ReferredSitarama v. Lakshminarayana
Excerpt:
.....of appeal--whether appellate court has power to dispense with copy of the decree;order xli, rule1, civil procedure code, makes a distinction between a copy of the decree and that of a judgment. that order does not empower the appellate court to dispense with a copy of the decree. the presentation of a memorandum of appeal, without a copy of the decree appealed against, is not a valid presentation and the appeal is not maintainable. sitarama v. lakshminarayana(1) followed.;jami kurmanna, in re(2) and royalla ramappa, in re(3) considered.;appeal against the order of the city civil court at madras, dated 21st january 1954 and made in interlocutary application no. 16 of 1954 in original suit no. 26 of 1954.;s.k. ahmed meeran and m. khaja mohideen for appellant.;sundararajan and.....1. 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 25-1-1954, 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 27-1-1954, 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 division bench of this court, consisting of the chief justice and umamaheswaram j. suspended.....
Judgment:
1. 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 25-1-1954, 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 27-1-1954, 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 Division Bench of this Court, consisting of the 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 today, and it is accordingly posted before us.

2. Learned counsel appearing for the respondent contends that the civil miscellaneous appeal 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 P. C. read along with Order 43 (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." (3) Order 43, Rule 2 says that; "The rules of order XLI and of Order XLI--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 appear to the High Court is allowed under any provision of law."

4. 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 he 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 Iyer v. Muthuramalinga Sethupati', AIR 1923 Mad 482 (A). There the learned Judge stated that the provisions of Order 41, Rule 1, Civil P. C. 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. Lakshminarayana', AIR 1943 Mad 185 (B).

5. But the learned counsel for the appellant relies upon the judgment of Chandrasekhara Aiyar J. in -- 'Rayalla Ramappa in re', AIR 1946 Mad 163 (C) and argues that that decision supports his contention. There the learned Judge was construing the provisions of Order 41-A Rule 1, Civil P. C. Order XLIA 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 XLI 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 12 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 reason of Order 41-A and therefore that the power conferred on an appellate Court under Order 41 Rule 1 could be exorcised for dispensing with the production of copies of judgment. On the other hand, another learned Judge, Byers J. in -- 'Jami Kurmanna In re', AIR 1945 Mad 353 (D), took a different view on the construction of Order 41-A. The learned Judge held that the power of dispensing contained in Order 41, Rule 1 does not extend to appeals presented to the High Court, for which special provision has been made by the amended rule.

It Is not necessary to express our final opinion as to the correctness of either of the two decisions for neither of the said decisions would help the appellant. If the judgment of Byers J. is correct, the appeal necessarily will have to be dismissed. The judgment of Chandrasekhara Aiyar J. only considers whether copies of the Judgment can be dispensed with, and the learned Judge finds the power in Order 41, Rule 1. Order 41, Rule 1 clearly makes a distinction between a copy of the decree and that of a judgment. As that order does not empower an appellate Court to dispense with a copy of the decree, the judgment of Chandrasekhara Aiyar J. obviously cannot be of any help to the appellant.

6. We therefore hold that the appeal, as it is today before us, is not maintainable. But the learned counsel for the appellant says that he will produce a copy of the decree and that he will file a petition tomorrow for receiving the certified copy of the decree. The appeal will therefore be posted tomorrow for further orders.

(This appeal coming on for further hearing today the Court delivered the following judgment) . SUBBA RAO J. :

7. The appellant has filed a petition today for receiving the certified copy of the decretal order dated 27-1-1954. As we are satisfied that the petitioner has done what all he should do for obtaining the copy, and the delay in filing the same was not due to his negligence or default, we direct the receipt of that order. The result would be that the appeal is now in order and is free from the objection raised.

8. Now coming to the merits, we do not think that this is a fit case for interference. The period of lease of the All India Khadi and Industrial Exhibition, Mount Road, Madras, expired on 31-1-1954, and it was extended till midnight of 7-2-1954. It is represented to us by the learned counsel for the respondents that no further extension will be made. In the circumstances, no practical purpose would be served if an order of interim injunction was made today, for by the time the appellant would receive the order, the term of the lease would run out.

But it is stated that the tentative finding given by the learned City Civil Court Judge might prejudice the appellant at the time of the trial. We would, therefore, vacate that finding and leave open the question to be tried afresh at the time of the disposal of the suit. We should not be understood to have expressed any opinion on the correctness or otherwise of the finding of the learned Judge. In the circumstances the appeal is dismissed, but without costs.


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