TMI Blog1960 (12) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... Pending decision in the trial court Gokal Dhish Bhargava (fled and his son Jawahar Lal Bhargava, respondent 1 and Chunni Lal Bhargava were brought on the record as legal representatives. After the suit was dismissed and before the appeal in question was preferred in the High Court Chunni Lal Bhargava died; thereupon respondents 2 to 7, as his legal representatives, joined respondent 1 in preferring an appeal against the said decree in the High Court of Punjab. The memo of appeal along with the judgment dismissing the suit and the taxed bill of costs endorsed on the back of the last page of the judgment was filed in the High Court on July 29, 1954. It is the competence of this appeal that was questioned before the High Court and is in dispute before us in the present appeal. The record shows that on March 24,1954, an application was made by respondents 2 to 7 (who will be called the respondents hereafter) for a certified copy of the judgment and decree passed in the said suit for specific performance. A certified copy of the judgment and the bill of costs was supplied to them but the decree had not been drawn up and no copy of the decree was therefore supplied to them. In the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same in the High Court along with their appeal. Bishan Narain, J., before whom this application was taken out for orders, directed that it may be heard by the Bench which would hear the appeal. Eventually the appeal came on for hearing before Falshaw and Chopra, JJ. on De ember 8, 1959. At the said hearing the appellant raised a preliminary objection that the appeal was not competent having regard to the mandatory provisions of 0. 41, r. 1, and urged that the appeal should be dismissed as incompetent. This preliminary objection was, however, not upheld by the High Court, and it was held that the proper course to follow was to allow the respondents a month's time for the purpose of getting a decree drawn up in the proper form by the lower Court and obtaining a copy thereof . Accordingly the record which had in the meanwhile been received by the High Court after the appeal was admitted under 0. 41, r. 11 was ordered to be sent back to the lower Court without delay. It is against this order which was passed by the High Court on December 15, 1959, that the present appeal by special leave has been filed. On behalf of the appellant Mr. Pathak contends that the appeal filed be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such judgment a decree shall follow. Order 20, r. 3 provides, inter alia, that the judgment shall be dated and signed by the judge in the open Court at the time of pronouncing it, and under r. 4, sub-r. (2) a judgment has to contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. Rule 6 of the same Order prescribes the con. tents of the decree. It provides that the decree shall agree with the judgment and shall contain the particulars therein specified. Under r. 7 it is provided that the decree shall bear the date, the day on which the judgment was pronounced, and it directs that when the judge has satisfied himself that the decree has been drawn up in accordance with the judgment he shall sign the decree. It is, therefore, clear that the drawing up of the decree in the present case was the function and the duty of the office, and it was obligatory on the judge to examine the decree when drawn up, and if satisfied that it has been properly drawn up to sign it. Except in places where the dual system prevails the litigant or his lawyer' does not play any material or important part in the drawing up of the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal was in time then the objection raised by the appellant against the propriety or the correctness of the High Court's order under appeal would be purely technical and academic. The answer to the question as to whether the presentation of the appeal on December 23, 1959, is in time or not would depend upon the construction of s. 12, sub-s. (2) of the Limitation Act. We have already noticed that the period prescribed for filing the present appeal is 90 days from the date of the decree. Section 12, sub-s. (2) provides, inter alia, that in computing the period of limitation the time requisite for obtaining a copy of the decree shall be excluded . What then is the time which can be legitimately deemed to have been taken for obtaining the copy of the decree in the present case? Where a decree is not drawn up immediately or soon after a judgment is pronounced, two types of cases may arise. A litigant feeling aggrieved by the decision may apply for the certified copy of the judgment and decree before the decree is drawn up, or he may apply for the said decree after it is drawn up. In the former case, where the litigant has done all that he could and has made a proper applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that more than five years have thus elapsed after the pronouncement of the judgment but for this long delay and lapse of time the respondents are not much to blame. The failure of the trial Court to draw up the decree as well as the failure of the relevant department in the High Court to examine the defect in the presentation of the appeal at the initial stage have contributed substantially to the present unfortunate position. In such a case there can be no doubt that the litigant deserves to be protected against the default committed or negligence shown by the Court or its officers in the discharge of their duties. As observed by Cairnes, L. C. in Rodger v. Comptoir d'Escompte de Paris (L.R. 3 P.C. 465, 475) as early as 1871 one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors ; that is why we think that in view of the subsequent event which has happened in this case, namely, the filing of the certified copy of the decree in the, High Court, the question raised by the appellant has( become technical and academic. Faced with this position Mr. Pathak attempted to argue that the application made by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oint raised by the appellant challenging the validity or the propriety of the order under appeal. The argument is that 0. 41, r. 1 is mandatory, and as soon as it is shown that an appeal has been filed with a memorandum of appeal accompanied only with a certified copy of the judgment the appeal must be dismissed as being incompetent, the relevant provisions of 0. 41 with regard to the filing of the decree being of a mandatory character. It would be difficult to accede to the proposition thus advanced in a broad and general form. If at the time when the appeal is preferred a decree has already been drawn up by the trial Court and the appellant has not applied for it in time it would be a clear case where the appeal would be incompetent and a penalty of dismissal would be justified. The position would, however, be substantially different if at the time when the appeal is presented before the appellate Court a decree in fact had not been drawn up by the trial Court; in such a case if an application has been made by the appellant for, a certified copy of the decree, then all that can be said against the appeal preferred by him is that the appeal is premature since a decree has not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for a certified copy of the decree and then proceed with the appeal. In this connection our attention has been drawn to the fact that in the Punjab High Court two conflicting and inconsistent views appear to have been taken in its reported decisions. Dealing with appeals filed with-out a certified copy of the decree some decisions have dismissed the appeals as defective, and have given effect to the mandatory words in 0. 41, r. 1, without presumably examining the question as to whether the failure of the trial Court to draw up the decree would have any bearing or relevance on the point or not. (Vide: Gela Ram v. Ganga Ram(A.I.R. (1920) 1 Lah. 223); Municipal Committee, Chiniot v. Bashi Ram (A.I.R (1922) Lah. 170.); Mubarak Ali Shah v. Secretary of State (A.I.R. (1925) Lah. 438); Nur Din v. Secretary of State (A. I.R. (1927) Lah. 49) Hakam Beg v. Rahim Shah (A I.R. (1927) Lah. 912); Fazal Karim v. Des Raj (35 Punj. L.R. 471); and Banwari Lal Varma v. Amrit Sagar Gupta (A.I.R. (1940) East Punj. 400. On the other hand it has in some cases been held that it would be fair and just that the hearing of the appeal should be adjourned to enable the appellant to obtain a certified copy of ..... 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