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Binapani Debi Vs. Sashibhushan Sinha - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in17Ind.Cas.119
AppellantBinapani Debi
RespondentSashibhushan Sinha
Cases ReferredKhirode Sundari Debi v. Jnanendra Nath Pal
Excerpt:
appeal - memorandum of appeal not accompanied by copy of decree appealed against, though decree was in existence when appeal was filed--mis-statement in memorandum of appeal--civil procedure code (act v of 1908), order xli, rule 1(1). - .....the 1st february 1910. that copy was ready for delivery to her on the 5th february 1910. at that time, the decree was in existence. consequently, there is no reason why an application should not have been made for a copy of the decree as well. the memorandum of appeal is thus not in conformity with the provisions of the statute which, it will be observed, authorises the court to dispense with the production of a copy of the judgment alone and not of the decree also. that the production of a copy of the decree is essential has not been and cannot be disputed: kamala dasi v. tarapada 15 c.l.j. 498 : 14 ind. cas. 1006 the memorandum of appeal must, consequently, be rejected. the course we adopt is in accordance with that followed in hem chandra bakshi v. jadub chandra bakshi 16 c.l.j. 116.....
Judgment:

1. This appeal plainly does not comply with the provisions of the Civil Procedure Code. A copy of the decree was not attached to the memorandum of appeal as required by Order XLI, Rule 1(1); and when objection was taken by the Deputy Registrar, the learned Vakil for the appellant was instructed to state that, the decree had not been drawn up. The appeal was accordingly registered. As a matter of fact, it now transpires, the judgment was delivered on the 11th January 1910 and the decree was drawn up on the 15th January 1910. The appellant applied to the Court below for a copy of the judgment on the 1st February 1910. That copy was ready for delivery to her on the 5th February 1910. At that time, the decree was in existence. Consequently, there is no reason why an application should not have been made for a copy of the decree as well. The memorandum of appeal is thus not in conformity with the provisions of the statute which, it will be observed, authorises the Court to dispense with the production of a copy of the judgment alone and not of the decree also. That the production of a copy of the decree is essential has not been and cannot be disputed: Kamala Dasi v. Tarapada 15 C.L.J. 498 : 14 Ind. Cas. 1006 The memorandum of appeal must, consequently, be rejected. The course we adopt is in accordance with that followed in Hem Chandra Bakshi v. Jadub Chandra Bakshi 16 C.L.J. 116 : 17 Ind. Cas. 99 mentioned in Khirode Sundari Debi v. Jnanendra Nath Pal 6 C.W.N. 283.

2. We may add that the appellant has not offered to produce a copy of the decree; but even if such an offer had been made, the memorandum when perfected would obviously be out of time, and could not be entertained without an order for its reception under Section 5 of the Limitation Act; there are, however, no materials before the Court, at present, to justify an order under that section.

3. The appeal will stand dismissed, but without costs.


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