# Prem Chand & Ors v. Charat Kumar Bansal

- **Citation:** (2025) 1 ILRA 701
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-16
- **Case number:** Second Appeal No. 12 of 2018
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-chand-ors-v-charat-kumar-bansal-53064
- **Pages:** 5

## Headnote

Civil Law - Code of Civil Procedure, 1908 -
Section 100 - Order XLI Rule 5 - Order
XLII Rule 1 - Order XLIII Rule 1 - Code of
Civil
Procedure
(UP
Amendments)
-
Section 115, 115(4)- Second Appeal - Appeal
is pending at admission stage - issue of
Summoning
VIS-À-VIS
Retaining
or
Returning the Original Record - The
respondent's counsel raised an issue regarding
the return of the original record of the first
Appellate Court and the trial court, which had
been summoned by the High Court without
admitting the appeal - Legislative Mandate
on Stay of Proceedings - The court discussed
the legislative mandate under Order XLI Rule 5
of the Code of Civil Procedure and U.P.
amendments in Section 115 of C.P.C., which St.
that mere filing of an appeal or revision does
not operate as a stay against the proceedings -
court finds that, - the Supreme Court, in the
case of Asian Resurfacing of Road Agency P.
Ltd., directed that photocopies or scanned
copies of records should be summoned instead
of the original records - However, the Supreme
Court's decision in Asian Resurfacing was later
reversed by the Constitution Bench in a case of
High Court Bar Association, Allahabad Vs St. of
702 INDIAN LAW REPORTS ALLAHABAD SERIES
Uttar Pradesh, but the directions regarding
summoning
photocopies/scanned
copies
of
records remained unaffected - held, - the office
is
directed
to
summon
only
photocopies/scanned copies of records unless
specifically directed otherwise and to remit back
any original records previously summoned -
directions are also issued to the Registrar
General
to
issue
necessary
Circular
/
communication to the office of this court as well
as all the district judgeships to act as per
directions - Appeal is pending. (Para - 9, 10, 11,
12, 13)

Second Appeal Pending. (E-11)

List of Cases cited:

## Text

1 All. Prem Chand & Ors. Vs. Charat Kumar Bansal
701
discrepancy
in
the
findings
recorded by the courts below, it will not
make any difference because since the
plaintiff-appellant has failed to prove that it
has not been executed in accordance with
law. Even otherwise he is not entitled for
any share in the ancestral property of the
deceased Ram Kishore, therefore he could
not have challenged the will deed executed
in favour of the father of the defendantrespondent and even if it is set aside, the
plaintiff-appellant would not get any right
over the property of the deceased Ram
Kishore in view of Section 171 of the Act
of 1950.

39. It is also settled law as
disclosed
above
that
the
concurrent
findings recorded by the two courts below
cannot be set aside by this Court in second
appeal unless the findings are perverse and
without jurisdiction, which is not the case
herein because the learned courts below
have passed the judgment and decrees in
accordance with law after considering
pleadings, evidence and material on record
by passing a reasoned and speaking orders
and dealing the same and the same are not
perverse and without jurisdiction. Even
otherwise any defect in the findings
recorded by the courts below in regard to
the will which does not affect the merits of
the case regarding claim of half share in the
property in dispute or the jurisdiction of the
court because the plaintiff-appellant has
also failed to prove the title and possession
on the land in dispute, cannot be a ground
for interference by this Court. Thus,
impugned judgment and decrees cannot be
reversed or modified in view of Section 99
of CPC. The aforesaid substantial questions
of law formulated in this appeal are
answered accordingly. Thus, the appeal has
been filed on misconceived and baseless
grounds and is liable to be dismissed.
40.

The
second
appeal
is
dismissed. No order as to costs.
----------
(2025) 1 ILRA 701
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.01.2025

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Second Appeal No. 12 of 2018

Prem Chand & Ors. ...Appellants
Versus
Charat Kumar Bansal ...Respondent

Counsel for the Appellants:
Sri Jagdish Prasad Mishra, Sri Prem Prakash
Chaudhary

Counsel for the Respondent:
Sri Nipun Singh, Sri Sumit Daga

Civil Law - Code of Civil Procedure, 1908 -
Section 100 - Order XLI Rule 5 - Order
XLII Rule 1 - Order XLIII Rule 1 - Code of
Civil
Procedure
(UP
Amendments)
-
Section 115, 115(4)- Second Appeal - Appeal
is pending at admission stage - issue of
Summoning
VIS-À-VIS
Retaining
or
Returning the Original Record - The
respondent's counsel raised an issue regarding
the return of the original record of the first
Appellate Court and the trial court, which had
been summoned by the High Court without
admitting the appeal - Legislative Mandate
on Stay of Proceedings - The court discussed
the legislative mandate under Order XLI Rule 5
of the Code of Civil Procedure and U.P.
amendments in Section 115 of C.P.C., which St.
that mere filing of an appeal or revision does
not operate as a stay against the proceedings -
court finds that, - the Supreme Court, in the
case of Asian Resurfacing of Road Agency P.
Ltd., directed that photocopies or scanned
copies of records should be summoned instead
of the original records - However, the Supreme
Court's decision in Asian Resurfacing was later
reversed by the Constitution Bench in a case of
High Court Bar Association, Allahabad Vs St. of
702 INDIAN LAW REPORTS ALLAHABAD SERIES
Uttar Pradesh, but the directions regarding
summoning
photocopies/scanned
copies
of
records remained unaffected - held, - the office
is
directed
to
summon
only
photocopies/scanned copies of records unless
specifically directed otherwise and to remit back
any original records previously summoned -
directions are also issued to the Registrar
General
to
issue
necessary
Circular
/
communication to the office of this court as well
as all the district judgeships to act as per
directions - Appeal is pending. (Para - 9, 10, 11,
12, 13)

Second Appeal Pending. (E-11)

List of Cases cited:

1. Asian Resurfacing of Road Agency P. Ltd. Vs
Central Bureau of Investigation - Supreme
Court Order dated 25.04.2018 - (2018) 16 SCC
299),

2. High Court Bar Association, Allahabad Vs St. of
U.P. & ors. (2024) 6 SCC 267.

(Delivered by Hon'ble Kshitij Shailendra, J.)

ON THE ISSUE OF SUMMONING
VIS-A-VIS
RETAINING
OR
RETURNING
THE
ORIGINAL
RECORD

1. Shri Sumit Daga, learned counsel
for the respondent, raised an issue which
prima facie appears to be quite small, but has
a significant value. The matter is being
treated as of general importance qua a limited
issue that is coming up before this Court in
many cases.

2. The case was mentioned in the
morning, not for the purposes of its hearing
as the time constraints otherwise do not allow
hearing of the matter today, but making a
prayer as regards return of the original record
of the first Appellate Court and the trial court
which, earlier, had been summoned by this
Court without admitting the appeal.
3. Referring to the order dated
19.01.2018, it is contended that, till today, the
instant appeal has not been admitted but the
Court had summoned the original record
seven years ago, and, on 07.03.2019, an order
was passed to the effect that mere pendency
of appeal would not mean passing of any
interim order staying execution of decree.
Submission is that the matter is being
adjourned for last several years and though
the appeal has not been admitted, since the
original record is lying before this Court for
hearing
on
admission,
the
execution
proceedings are held up. He requests the
Court to remit back the original record to the
District Judgeship.

4. It is quite common and part of
proceedings of this Court that whenever this
Court summons the record of the proceedings
of sub-ordinate court, particularly those
decided finally, it is done so as to facilitate
consideration of the matter before it, either
for admission or for final hearing. Reason is
that the Court wants to peruse the documents
forming part of the record of sub-ordinate
Court. Therefore, irrespective of the fact that
the appeal or revision has or has not been
admitted, summoning the original record
would create some unforeseen problems.

5. Legislative mandate contained
under Order XLI Rule 5 of Code of Civil
Procedure or U.P. amendments made in
Section 115 of C.P.C. is clear to the effect that
mere filing of an appeal or revision would not
operate as stay against the proceedings. The
said provisions are quoted for a ready
reference:-

Order XLI Rule 5 of
Code of Civil Procedure
"5. Stay by Appellate
Court- (1) An appeal shall not
operate as a stay of proceedings
1 All. Prem Chand & Ors. Vs. Charat Kumar Bansal
703
under a decree or order appealed
from
except
so
far as
the
Appellate Court may order, nor
shall execution of a decree be
stayed by reason only of an
appeal having been preferred
from
the
decree;
but
the
Appellate
Court
may
for
sufficient cause order stay of
execution of such decree."
Sub-section (4) of Section
115 of Code of Civil Procedure
(U.P. Amendment)
"(4) A revision shall not
operate as a stay of suit or other
proceedings before the court
except where such suit or other
proceedings is stayed by the
superior court."

6. By virtue of Order XLII Rule
1 of Code of Civil Procedure, 1908,
provisions of Order XLI are also made
applicable to appeals from appellate
decrees and, hence, Rule 5 of Order XLI
would also apply to second appeals. It is
quoted hereunder:-

"1. Procedure- The rules
of Order XLI shall apply, so far as
may be, to appeals from appellate
decrees."

7. Similarly, vide Order XLIII
Rule 1 of Code of Civil Procedure, 1908,
provisions of Order XLI are also made
applicable to appeals from orders and,
hence, Rule 5 of Order XLI, as quoted
above, would also apply to appeals from
orders.

8. In this regard, this Court called
for relevant circular/notification etc. from
the office of this Court so as to understand
as to on what basis original/photostat copy
of the record is summoned. The officials
concerned placed before the Court a copy
of order dated 25.04.2018 passed by the
Supreme Court in Asian Resurfacing of
Road Agency P. Ltd. and another vs.
Central Bureau of Investigation, and
submitted that it is pursuant to the
directions contained in the said order that
now the photostat copy of the record is
being summoned and not its original. For a
ready reference, the order dated 25.04.2018
is quoted hereunder:-

"1. Heard learned counsel
for the parties.
2. In view of judgment of
three Judge Bench dated 28th
March,2018 and after considering
the material on record, we do not
find any ground to interfere with
the order framing charge.
3. Accordingly, the trial
court is directed to proceed with the
matter pending before it. All
contentions of the parties are left
open which may be gone into by
the trial court. Parties are directed
to appear before the trial court on
14th May, 2018.
4.
To
give
effect
to
directions in judgment of this
Court dated 28th March, 2018,
noted above, we direct that
wherever original record has
been
summoned
by
an
appellate/revisional
court,
photocopy/scanned copy of the
same
may
be
kept
for
its
reference and original returned
to the trial courts forthwith.
5. We also direct that if in
future the trial court record is
summoned, the trial courts may
send photocopy/scanned copy of
the record and retain the original so
704 INDIAN LAW REPORTS ALLAHABAD SERIES
that the proceedings are not held
up. In cases where specifically
original record is required by
holding that photocopy will not
serve
the
purpose,
the
appellate/revisional court may call
for the record only for perusal and
the same be returned while keeping
a photocopy/scanned copy of the
same.
6. A copy of this order be
sent to all the High Courts. The
appeals are disposed of."

9. The aforesaid order was passed
by the Supreme Court in the matter of
Asian Resurfacing (supra) and, later on, a
judgment was passed in same matter
reported in (2018) 16 SCC 299 containing
directions in paragraphs 36 and 37 of it
regarding automatic vacation of interim
orders after expiry of six months. The said
directions were, later on, set aside by the
Constitution Bench of the Supreme Court
in High Court Bar Association, Allahabad
vs. State of Uttar Pradesh and others,
(2024) 6 SCC 267. This Court finds that
reversal of previous decision in Asian
Resurfacing by the subsequent decision in
High Court Bar Association (supra) is an
authority on the issue as to whether stay
order granted by the High Court would
automatically lapse after expiry of six
months period. The judgment of the
Supreme Court, with great respect, would
not affect the directions contained in the
order
dated
25.04.2018
insofar
as
summoning of the photostat/scanned copy
of the record of subordinate court is
concerned nor did the said issue form
subject
matter
of
deliberations
or
consideration before the Apex Court.

10. In view of the above, since, even
after reversal of the decision in Asian
Resurfacing
(supra),
the
Registry
is
summoning the photostat/scanned copy of the
records of the courts subordinate to this
Court, following directions are issued to the
office of this Court:-

(a) Henceforth, the original
record shall not be summoned by
the
office,
unless
otherwise
specifically directed by this Court in
a
particular
case
and
only
photostat/scanned copy of the same
shall be summoned.
(b) Whenever, in the past,
original record has been summoned
by this Court, office shall remit back
the same to the concerned District
Judgeship with a direction to the
concerned District Judgeship to
immediately send photostat/scanned
copy of the said record to this Court
and, thereafter, it is the said
photostat/scanned copy that shall be
kept for the purpose of consideration
of the matter by this Court pursuant
to previous directions issued by it.

11. Insofar as the present case is
concerned, since the Court has already
summoned the original record for hearing on
admission, this Court is of the view that
photostat copy of the record would serve the
purpose.

12. Office is directed to remit back
the original record of the courts below to the
District Judgeship within two weeks. The
District Judgeship, after receipt of record,
shall get photostat copy of the same and shall
forthwith send the same to this Court. It shall,
then, be placed before this Court whenever
the matter is listed for hearing on admission.

13. The Registrar General is
directed
to
issue
necessary
1 All. Zila Ganna Utpadak Sahkari Samiti Ltd. Vs. Union of India & Ors.
705
circular/communication to the
office of this Court as well as all the
District
Judgeships
to
act
as per
directions contained in paragraph No 10
of this order.
----------
(2025) 1 ILRA 705
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.01.2025

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Second Appeal No. 400 of 2011

Zila Ganna Utpadak Sahkari Samiti Ltd.
 ...Appellant
Versus
Union of India & Ors. ...Respondents

Counsel for the Appellant:
Rajeev Kumar Sinha

Counsel for the Respondents:
Dr. Ravi Kumar Mishra, I H Farooqui, I S
Farooqui

Civil Law - Code of Civil Procedure, 1908 -
Sections 34 & 80 - General Rules (Civil),
1957
-
Rule
6
-
National
Savings
Certificate ( VIth issue) Rules, 1981 -
Rules 7, 8, 9, 11 - Government Savings
Certificate Act, 1959 - Section 2(a), 12 -
Maturity amount - Appellant invested
amount of Rs.1,50,000/- on 27.09.1984 in
NSC
VIth
issue
and
amount
of
Rs.3,02,250/- was to be paid on maturity
on 19.09.1990, but amount was not paid
on maturity - Appellant filed suit for
recovery of amount , dismissed without
considering
pleadings,
evidence
and
records - Appellant filed civil appeal,
partly allowed and held holder not
entitled for interest - The learned courts
below failed to consider that NSC can be
issued in name of society and appellant
society rightly invested on behalf of its
members in accordance with law. (Para
4)
Held, appellant can't be held guilty of
issuance of NSCs in name of society in
irregular manner and contravention of
rules but respondents are also guilty of it,
as issued without verifying properly as to
whether it was in accordance with law or
not, respondents didn't detect during
whole period of NSCs but thereafter for
long
time
and
detected
after
correspondence
by
appellant
and
thereafter
respondents
no.2
called
consent of appellant for payment of SB
interest on Public Accounts on deposited
amount, consent was not given, invested
amount was not returned and thus
appellant entitled for interest of 6% p.a
applicable on SB Public Accounts from
date of deposit till date payment. (Para
28)

Appeal partly allowed. (E-13)

List of Cases cited:

1. U.P. Forest Corporation Employees' Provident
Fund Trust Vs U.O.I.& ors., Writ Petition
No.4393 of 1990, order dated 10.9.1996

2. Mahesh Chandra Bansal Vs Krishna Swaroop
Singhal & ors., reported in (1997) 10 SCC 681,
(Para 4)

3. Municipal Board, Chandpur Vs U.O.I.& ors.;
2002 SCC OnLine All 323

4. Romeo Sam Arambhan Vs U.O.I.& ors.; 2004
(1) Mh.L.J. 56

5. Tyrreli Leth Lodge Vs U.O.I.; AIR 2004
Gujarat 340, (Para 6)

6. Arulmighu Dhandayudhapaniswamy Thirukoil,
Palani, Tamil Nadu, thr. Its Joint Commissioner
Vs The Director General of Post Offices,
Department of Posts & Ors., Civil Appeal
No.4995 of 2006, order dated July 13, 2011

7. Postmaster, Dargamitta H.P.O., Nellore Vs
Raja Prameeelamma (Ms), 1995 Legal Eagle
(SC) 587 (1998 (9) SCC 706)

8. Superintendent of Post Offices & ors. Vs
Helpline Grahak Mandal & anr.by National