TMI Blog1969 (11) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... of appeal or at any time thereafter within the period of limitation allowed by law and no cogent reason had been made out for allowing him to file the same during the course of arguments. 2. Mr. Suri appearing on behalf of the appellant has urged that the first appeal against the decision of the trial court was filed before the Collector on 22-5-1968 and right upto 20-11-1968 no objection was raised either by the office of the Collector or by the opposite party to the effect that the memorandum of appeal not having been accompanied by a copy of the decree the appeal was not properly presented and was incompetent. The argument of the learned counsel is that the appeal having been admitted without a copy of the decree it could not have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the lower appellate court is correct and cannot be interfered with. The provisions of Order 41, Rule 1(1) of the CPC are imperative and it is essential that the memorandum of appeal should be accompanied by a copy of the decree appealed from. If a copy of the decree appealed from is not filed with the memorandum of appeal, the appeal is defective, incomplete and cannot be treated as validly presented. I am fortified in this view by a decision of the Supreme Court in Jagat Dhish Bhargava v. Jawahar Lal Bhargava, AIR 1961 SC 832 wherein their Lordships held that 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree does not appear to have been made by the appellant before 6-11-1968, nor was the requisite copy produced by him before the lower appellate court before 20-11-1968. There is also nothing to show that any practice of filing the appeals in this court without a copy of the decree appealed from had come to be built up. 8. It is also to be noted that in his first application dated 2-5-1968 for a copy of the judgment of the trial court the appellant did not mention that he required it for the purpose of filing an appeal. Moreover, neither any request for time to produce the requisite copy was made nor granted to him by the lower appellate court. The Single Bench decision of this court in Mst. Mali v. Lassi Thakur, AIR 1968 J and K 19 cited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time for filing a copy of the decree, cogent reasons for exercise of the discretion must in my judgment be made out. 13. Let us now see whether adequate and satisfactory reasons for exercise of discretion in favour of the appellant under Section 5 of the Limitation Act had been made out in the present case. 14. The appeal before the lower appellate court appears to have been presented by Mr. G.L Goel, Advocate, who I am told has about 17 years standing at the Bar. He should have been well aware that a copy of the decree has to accompany the memorandum of appeal. He has not given any cogent explanation for the omission to file a copy of the decree along with the memorandum of appeal or its non-production within the period of limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
