TMI Blog1968 (9) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... lant filed on appeal against this order in the Delhi High Court. Alongwith the memorandum of appeal she filed a plain copy of the order and an application praying that the appeal be entertained without a certified copy of the order. In the application she stated that one had applied for a certified copy of the order but the same was not ready and that she would file the certified copy as soon as it would be ready and available to her. She added, that she wanted urgent interim relief and would be seriously prejudiced if she waited for a certified copy. She also filed an application for stay of execution. On the same date a Bench of the High Court admitted the appeal, granted an interim stay and directed issue of notice to the respondents. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code of the Civil Procedure defines decree . Unless there is anything repugnant in the subject or context decree means the formal expression of an adjudication which so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144... It is because the determination of any question within Section 47 is a decree that the appellant could file an appeal from the order under Section 96 of the Code. Order 41 Rule 1 of the Code provides that every appeal shall be preferred in the for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Railway Co. v. Radhakrissen Jaikissen). But in the present case the High Court was not aware of the defect and did not intend to dispense with the filing of the copy. 5. Moreover an order under Section 47 is a decree, and the High Court had no power to dispense with the filing of a copy of the decree. Ordinarily a decree means the formal expression of an adjudication in a suit. The decree following the judgment and must be drawn up separately. But under Section 2(2), the term decree is deemed to include the determination of any question within Section 47. This inclusive definition Of decree applies to Order 41 Rule 1. In some courts, the decision under Section 47 is required to be formally drawn up as a decree and in that case the mem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is a judgment stating the grounds of the decision and a separate order is also drawn up embodying the formal expression of the decision, copies of both the documents must be attached to the memorandum, and the appellant is entitled to a deduction of the time taken up in obtaining copies thereof. 6. We hold that the memorandum of appeal from the o'rder dated January 20, 1967 should have been accompanied by a certified copy of the order and in the absence of the requisite copy the appeal was defective and incompetent. 7. The next question is whether the delay in filing the certified copy or, to put it differently, the delay in re-filing the appeal with the certified copy should be condoned under Section 5 of the Limitation Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that having got a certified copy of the order dismissing Sumat Prasad's objections she believed that she had applied for a copy of that order. 9. On March 2, 1967 the appellant's son Virendra made another application for a certified copy of the order. He got the certified copy on March 10. In paragraph 6 of the petition for condonation of delay the appellant stated that Virendra did not give her the copy and this statement was corroborated by Virendra in his supporting affidavit. In paragraph 9 she stated that Virendra had misplaced the copy and due to fear of reprimand he did not inform her or her husband, Virendra's affidavit is silent on this point. But the affidavits sufficiently establish that the appellant did not rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication and made no effort to supply the certified copies to the appellant. No ground was given by the department for not supplying a certified copy of the order dated January 20, 1967. The tune for filing the appeal expired on April 20, 1967. On October 25, 1967 the respondents took the objection for the first time that the appeal was incompetent. Before that date, the record of the Executing Court including the Original order appealed from had been received by the High Court. On October 27, 1967 the appellant made another application for a certified copy and on November 6, 1967 as soon as she received the copy she filed it in Court. The appellant made repeated attempts to procure a certified copy. The failure of the copying department t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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