# JAGAT DRISH BHARGAVA v. JAW AHAR LAL BHARGAV A & OTHERS

- **Citation:** [1961] 2 S.C.R. 918
- **Court:** Supreme Court of India
- **Decided:** 1958-12-23
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, K. C. DAs GUPTA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jagat-drish-bhargava-v-jaw-ahar-lal-bhargav-a-others-2110
- **Pages:** 14

## Headnote

Appeal-Decree not prepared-Appeal filed without copy of
decree-Competency of-Subsequently decree prepared and copy filed
-Limitation-Code of Civil Procedure, r908 (V of r908) O. 4r, r. I
-Indian Limitation Act, r908 (IX of r9o8) s. Iz(z).
The respondents filed a suit for specific performance against
the appellant which was dismissed on March 12, 1954. On
March 24 the respondents made an application for a certified copy
of the judgment and decree. The decree was not drawn up and
the respondents were supplied a certified copy of the judgment
and the memo of costs. The respondents filed an appeal before
the High Court without the certified copy of the decree and
only with the certified copy of the judgment and the memo of
costs. The appeal was admitted under 0. 41, r. II Code of Civil
Procedure on August 30, 1954· On December 23, 1958, the appellant served a notice on the respondents that he would raise a
preliminary objection at the hearing that the appeal was incompetent as a certified copy of the decree was not filed as required
by 0. 41, r. l. On December 24, 1958, the respondents moved
the trial Court for drawing up of the decree, but since the
record was in the High Court this could not be done. At the
hearing of the appeal, the appellant raised the preliminary
objection, but the High Court passed an order on December 15,
1959, allowing the respondents one month's time for getting a
decree drawn np and obtaining a copy and directed the record
to be sent to the trial Court. Against this order the appellant
preferred an appeal to the Supreme Court contending that the
High Court was bound to dismiss the appeal as it was manifestly incompetent under 0. 41, r. l. Subsequently, on December 23,
1959, the respondents obtained a certified copy of the decree
and filed it before the High Court the same day. The appellant
contended that the appeal was to be deemed to be filed on this
date and was time barred.
Held, that in the circumstances of this case the order passed
by the High Court was right. There was no doubt that 0. 41,
r. l was mandatory and in the absence of the decree the filing
of the appeal was incomplete, defective and incompetent. The
office of the trial Court was negligent in not drawing up a decree
and the office of the High Court was also not as careful as it
should have been in examining the appeal and these have contributed substantially to the unfortunate position. In such a
case, the respondents deserved to be protected. Besides the ,
-
2 s.c.R. SUPREME COURT REPORTS
919
question bad pecome academic and technical in view of subser960
quent events. The certified copy of the decree was filed on
December 23, 1959, and even if the appeal was considered to
Jagal Dhish
have been filed on that date, it was within time. Under s. 12(2)
Bhargava
of the Limitation Act the respondents could treat the time taken
v.
in the drawing up of the decree after the application for a certiJawahar Lal
lied copy thereof had been made as part of the time taken in Bhargava 0- Olh•rs
obtaining the certified copy of the decree.
Tarabati Koer v. Lala ]agdeo Narain, (19n) 15 C.W.N. 787,
Bani Madhub Mitter v. Matungini Desai, (1886) I.L.R. 13 Cal. 104
(F.B.), Gabriel Christian v. Chandra Mohan Missir, (1936), I.L.R.
15 Pat. 284(F.B.), ]ayashankar Mulshankar Mehta v. Mayabhai
Lalbhai Shah; (1951) 54 B.L.R. II (F.B.), Gokul Prasad v. Kunwar
Bahadur, (1935) I.L.R. IO Luck, 250 and Umda v. Rupchand, (1926)
98 I.C. 1057 (F.B.), referred to.
Rodger v. Comptoir d'Escomptede Paris, (1871) L.R. 3 P.C.
465, relied on.
Crvn.. APPELLATE JURISDICTION: Civil Appeal No.
222of1960.
Appeal from the judgment and order dated December
15, 1959, of the Punjab High Court (Circuit Bench),
Delhi, in R. F. Appeal No. 77-D of 1954.
G. S. Pathak and B. 0. Misra, for the appellant.
M ukat Behari Lal Bhargava and J. P. Goyal, for
respondents Nos. 1 to 7.
1960. December 5. The Judgment of the Court
was delivered by
GAJENDRAGADKAR, J.-The short question of law Gafendragadka

## Text

Decembe-r S·
918
SUPREME COURT REPORTS
[1961)
JAGAT DRISH BHARGAVA
v.
JAW AHAR LAL BHARGAV A & OTHERS
(P. B. GAJENDRAGADKAR, K. N. WANCHOO
and K. C. DAs GUPTA, JJ.)
Appeal-Decree not prepared-Appeal filed without copy of
decree-Competency of-Subsequently decree prepared and copy filed
-Limitation-Code of Civil Procedure, r908 (V of r908) O. 4r, r. I
-Indian Limitation Act, r908 (IX of r9o8) s. Iz(z).
The respondents filed a suit for specific performance against
the appellant which was dismissed on March 12, 1954. On
March 24 the respondents made an application for a certified copy
of the judgment and decree. The decree was not drawn up and
the respondents were supplied a certified copy of the judgment
and the memo of costs. The respondents filed an appeal before
the High Court without the certified copy of the decree and
only with the certified copy of the judgment and the memo of
costs. The appeal was admitted under 0. 41, r. II Code of Civil
Procedure on August 30, 1954· On December 23, 1958, the appellant served a notice on the respondents that he would raise a
preliminary objection at the hearing that the appeal was incompetent as a certified copy of the decree was not filed as required
by 0. 41, r. l. On December 24, 1958, the respondents moved
the trial Court for drawing up of the decree, but since the
record was in the High Court this could not be done. At the
hearing of the appeal, the appellant raised the preliminary
objection, but the High Court passed an order on December 15,
1959, allowing the respondents one month's time for getting a
decree drawn np and obtaining a copy and directed the record
to be sent to the trial Court. Against this order the appellant
preferred an appeal to the Supreme Court contending that the
High Court was bound to dismiss the appeal as it was manifestly incompetent under 0. 41, r. l. Subsequently, on December 23,
1959, the respondents obtained a certified copy of the decree
and filed it before the High Court the same day. The appellant
contended that the appeal was to be deemed to be filed on this
date and was time barred.
Held, that in the circumstances of this case the order passed
by the High Court was right. There was no doubt that 0. 41,
r. l was mandatory and in the absence of the decree the filing
of the appeal was incomplete, defective and incompetent. The
office of the trial Court was negligent in not drawing up a decree
and the office of the High Court was also not as careful as it
should have been in examining the appeal and these have contributed substantially to the unfortunate position. In such a
case, the respondents deserved to be protected. Besides the ,
-
2 s.c.R. SUPREME COURT REPORTS
919
question bad pecome academic and technical in view of subser960
quent events. The certified copy of the decree was filed on
December 23, 1959, and even if the appeal was considered to
Jagal Dhish
have been filed on that date, it was within time. Under s. 12(2)
Bhargava
of the Limitation Act the respondents could treat the time taken
v.
in the drawing up of the decree after the application for a certiJawahar Lal
lied copy thereof had been made as part of the time taken in Bhargava 0- Olh•rs
obtaining the certified copy of the decree.
Tarabati Koer v. Lala ]agdeo Narain, (19n) 15 C.W.N. 787,
Bani Madhub Mitter v. Matungini Desai, (1886) I.L.R. 13 Cal. 104
(F.B.), Gabriel Christian v. Chandra Mohan Missir, (1936), I.L.R.
15 Pat. 284(F.B.), ]ayashankar Mulshankar Mehta v. Mayabhai
Lalbhai Shah; (1951) 54 B.L.R. II (F.B.), Gokul Prasad v. Kunwar
Bahadur, (1935) I.L.R. IO Luck, 250 and Umda v. Rupchand, (1926)
98 I.C. 1057 (F.B.), referred to.
Rodger v. Comptoir d'Escomptede Paris, (1871) L.R. 3 P.C.
465, relied on.
Crvn.. APPELLATE JURISDICTION: Civil Appeal No.
222of1960.
Appeal from the judgment and order dated December
15, 1959, of the Punjab High Court (Circuit Bench),
Delhi, in R. F. Appeal No. 77-D of 1954.
G. S. Pathak and B. 0. Misra, for the appellant.
M ukat Behari Lal Bhargava and J. P. Goyal, for
respondents Nos. 1 to 7.
1960. December 5. The Judgment of the Court
was delivered by
GAJENDRAGADKAR, J.-The short question of law Gafendragadkar J.
which a.rises for decision in the present appeal by spe~
cial leave is whether the appeal preferred against the
appellant and respondents 8 and 9 in the High Court
of Punjab by respondents 2 to 7 was competent in law
or not. This question arises under somewhat unusual
circumstances. It appears that an agreement of sale of
one third of the one-fourth share in the property covered by the document was entered into between Go~al
Dhish Bhargava and the appellant Jaga.t Dhish
Bhargava. Gokal Dhish Bha.rgava. sued the appellant and pro forma respondents 8 and 9 for specific
performance of the said agreement of sale in the Court
of the Senior Civil Judge, New Delhi (Civil Suit No.
684/128 of 1949/50).
This suit was dismissed on
920
SUPREME COURT REPORTS
[19611
I960
March 12, 1954. Pending decision in the trial court
Jagal Phish
Gokal bhish Bharga.va died and his son Jawahar Lal
Bhargava
Bhargava, respondent 1 and Chunni Lal Bhargava.
v.
were brought on the record as legal representatives.
Jawahar Lal
After the suit was dismissed and before the appeal in
Bh••g•v• <So Others question was preferred in the High Court Chunni Lal
Ga'md;;;.dkar 1 Bhargava died; thereupon respondents 2 to 7, as his
'1
'legal representatives, joined respondent 1 in preferring an appeal against the said decree in the High
Court of Punjab. The memo of appeal a.long with t.he
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 a.ppli·
cation was ma.de by respondents 2 to 7 (who will be
ca.lied the respondents hereafter) for a certified copy
of the judgment and decree passed in the said suit for
11pecific 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 result
the appeal was filed without the certified copy of the
decree and only with the certified copy of the judgment and the bill of costs. On August 2, 1954, the
Assistant Registrar of the High Court returned the
memo of appeal filed by the respondents to their
counsel and pointed out to him that since no copy of
the decree had been filed the presentation of the
appeal was defective and the defect needed to be rectified. Thereafter, on August 16, 1954, the respondents' counsel re-filed the appeal with an endorsement
that a memo of costs alone had been prepared by the
trial court and no decree had been drawn up, and so
the appeal should be held to be properly filed. Apparently this explanation was treated as satisfactory by
the office of the High Court and the appeal was registered as No. 77-D ofl954.
In due course the appeal was placed for preliminary hearing under O. 41, r. 11 of the Code of Civil -
2 s.c.R. SUPREME COURT REPORTS
921
Procedure before Dulat, J. who admitted it on August
Z960
30, 1954. Notice of the appeal was accordingly served
Jagai Dhisli
on the appellant and the pro forma respondents.
Bhargava
Ultimately when the appeal became ready for hearing
v.
it was put up on the Board of the Circuit Bench of
Jawahar Lal
the High Court to be heard on December 26, 1958. Bhargava .s. Others
Meanwhile on December 23, 1958, the appellant . . -
k
served a notice on the respondents' counsel intimat. Ga1endragad ar f.
ing to him that he proposed to raise a preliminary
objec_tion against the competence of the appeal on the
ground that the decree under appeal had not been
filed as required under 0. 41, r. l a.long with the memo
of appeal and the certified copy of the judgment.
Next day, that is to say on December 24, 1958, the
respondents moved the trial Court for drawing up of
the decree, but since ~he record had in the meantime
been sent by the trial Court to the High Court no
decree could be drawn up by the trial Court, and so
the motion became infructuous. The appeal, however,
did not reach hearing on December 26, 1958. On
December 29, 1958, the respondents moved the Court
that the appeal should be declared to be maintainable
as the memo of costs which alone had been prepared
by the trial Court read a.long with the concluding
paragraph of the judgment may be held to satisfy the
requirements of the decree; in the alternative they
prayed that the record of the suit in the trial Court
should be sent for to enable tl:iem to get a decree prepared with a view to file the same in the High Court
a.long 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 December 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
922
SUPREME COURT REPORTS
[1961]
z960
month's time for the purpose of getting a decree drawn
up in the proper form by the lower Court and obtain-
! ;~:~c~~!'"
ing a copy thereof". Accordingly the record which
v.
had in the meanwhile been received by the High
Jawahar Lal
Court after the appeal was admitted under O. 41, r. 11
Bhargava .s- Others was ordered to be sent back to the lower Court without
G . d-dA
delay. It is against this order which was passed
aJ•• raga
ar J. 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 before the High Court was plainly and
manifestly incompetent, and so the High Court was in
error in not dismissing it on that ground.
The position of law under 0. 41, r. 1 is absolutely
clear. Under the said rule every appeal has to be
preferred in the form of a memorandum signed by the
appellant or his pleader and presented to the Court or
to such officer as it appoints in that behalf, and has to
be accompanied by a copy of the decree appealed
from, and of the judgment on which it is founded.
Rule 1 empowers the appellate Court to dispense with
the filing of the judgment but there is no jurisdiction t
in the appellate Court to dispense with the filing of
the decree. Where the decree consists of different
distinct and severable directions enforceable against
'
the same or several defendants the Court may permit
the filing of such portions of the decree as are the
subject matter of the appeal but that is a. problem
with which we a.re not concerned in the present case.
In law the appeal is not so much against the judgment as against the decree; that is why Article 156 of
the Limitation Act prescribes a period of 90 days for
such appeals and provides that the period commences
to run from the date of the decree under appeal.
Therefore there is no doubt that the requirements that
the decree should be filed along with the memorandum
of appeal is mandatory, and in the absence of the
decree the filing of the a ppea.l would be incomplete,
defective a.nd incompetent.
That, however, cannot finally dispose of the point
raised by the appellant before us. In the present case
the respondents had applied for a certified copy of
2 S.C.R. SUPREME COURT REPORTS
923
the judgment a.s well as the decree in the trial Court
r960
on March 24, 1954, and they were not given a copy of
the decree for the simple reason that no decree was 1;!:!:::;sh
drawn up; what they were given was a copy of the
v.
judgment and taxed bill of costs endorsed on the back
Jawahar Lal
of the last page of the judgment. These documents Bhargava .s. Other
they filed along with their memo of appeal; but that
. -
would not affect the mandatory requirement of O. 41, Ga1endragadkar J
r. I. In considering the effect of this defect in the
presentation of the appeal we must bear in mind the
rules of procedure in regard to the drawing up of the
decree. The position in that behalf is absolutely
clear. Section 33 of the Code of Civil Procedure
requires that the Court, after the case has been heard,
shall pronounce judgment, and on such judgment a
decree shall follow. Order 20, r. 3 provides, inter a.Ha,
that the judgment shall be dated and signed by the
judge in the open Court at th~ 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 tlie contents 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
decree. In fact the process of drawing up of the
decree is beyond the litigant's control. Therefore,
there is no doubt whatever that in failing t<;> draw up
a. decree in the present suit the office of the trial
Court was negligent in the discharge of its duties, and
924
SUPREME COURT REPORTS
[1961]
'960
the 1;1aid negligence was not even noticed by the learned
J•gat Dhish
trial judge himself.
Bh•rg•••
Unfortunately, when the appeal was presented in
v.
the High Court, even the office of the High Court was
Jaw•har Lal
not as careful in examining the appeal as it should
Bharg•••& Others have been, and as we have already indicated the
G . d-adk 1 appeal passed through the stage of admission under
•Jen rag
ar · O. 41, r. 11 without the defect in the appeal being
brought to .the notice of the learned judge who admitted it. Thus it is quite clear on the record that the
respondents had applied for· a certified copy of the
judgment and the decree, and when they were given
only a certified copy of the judgment and the bill of
costs they filed the same along with the memo of
appeal in the bona fide belief that the said documents
would meet the requirements of O. 41, r. 1. It is true
that before the appeal came on for actual hearing
before the High Court the appellant gave notice to the
respondents about his intention to raise a. preliminary
objection that the appeal had not been properly filed;
but, a.s we have already pointed out, the attempt
made by the respondents to move the trial Court to
draw up the decree proved infructuous and ultimately
the High Court thought that in fairness to the respondents they ought to be allowed time to obtain the
certified copy of the decree and file it before it; and so
the High Court passed the order under appeal. The
appellant contends that this order is manifestly
erroneous in law; according to him the only order
which could and should have been passed was to
dismiss the appeal as incompetent under 0. 41, r.l.
The problem thus posed by the appellant for our
decision has now become academic because subsequent
to the decision of the High Court under appeal the
respondents have in fa.ct obtained a certified copy of
the decree on Deoember·23, 1959, and have filed it in
the High Court on the same day. This fa.ct immediately raises the question a.s to whether the appeal which
has admittedly been completely and properly filed on
December 23, 1959, was in time or not. If it appears
that on the date when the decree was thus filed the
2 S.C.R. SUPREME COURT REPORTS
925
presentation of the appeal was in time then the objeczg6o
tion raised by the appellant against the propriety or
fagai Dht.h
the correctness of the High Court's order under appeal
Bhargava
would be purely technical and academic.
v.
The answer to the question as to whether the preJawahar Lal
sentation of the appeal on December 23, 1959, is in Bhargaoa.S. Olhm
time or not would depend upon the construction ofG . 4
ad•a 1
. .
,
W
h
a;•n rag " r
•
s. 12, sub-s. (2) of the L1m1tat10n Act.
e
ave
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 exclud ..
ed". 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 application for obtaining the necessary copies,
the time requisite for obtaining the copies must necessarily include not only the time taken for the actual
supply of the certified copy of the decree but also for
the drawing up of the decree itself. In other words,
the time taken by the office or the Court in drawing
up a decree after a litigant has applied for its certified
copy on judgment being pronounced, would be treated
as a part of the time taken for obtaining the certified
copy of the said decree. Mr. Pathak has fairly conceded that on this point there is a consensus of judicial opinion, and in view of the formidable and imposing array of authorities against him h~ did not
raise any contention about ·the validity of the view
take in all those cases. (Vide: Tarabati Koer v. LaJ,a
Jagdeo Narain(1); Bani Madhub Mitter v. Mathungini
Dassi ch Ors. (Full Bench)(9); Gabriel
Okris~ian v.
(1) (19u) 15 C.W.N. 787.
(2) (1886) I.L.R. 13 Cal. 104.
'
' \
-~'
926
SUPREME COURT REPORTS
[1961)
x960
Chandra Mohan Missir (Full Bench) (1),: Jayashankar
Mulshankar Mehta v. Mayabhai Lalbhai Shah (Full
1:!:~g~:!'h Bench) (2); Gokul Prasad v. Kunwar Bahadur & Ors.(');
v.
and Umda v. Rupchand & Ors. (Nagpur Full Bench)(')).
fawahar Lal
There is, however, a sharp difference of opinion in
Bhargava & Others regard to cases where an application for a certified
-
copy of the decree is made after the said decree is
Gajendragadkar f. drawn up. In dealing with such cases Courts have
differed as to what would be the period requisite for
obtaining the certified copy of the decree. The Bombay, Calcutta and Patna High Courts, appear to have
held that the period taken in drawing up of the decree
would be part of the requisite period, while other
High Courts have taken a contrary view. It is signifificant that though the High Courts have thus differed
on this .point, in every case an attempt is judicially
made to do justice between the parties. With that
aspect of the problem, however, we are not concerned
in the present appeal.
The position, therefore, is that when the certified
copy of the decree was filed by the respondents in
the High Court on December 23, 1959, the whole of
the period between the date of the application for the
certified copy and the date when the decree was actually signed would have to be excluded under s. 12,
sub-s. (2).
Inevitably the presentation of the appeal
on December 23, 1959 would be in time. It is true
that more than five yea.rs 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
(1) (1936) l.L.R. 15 Pat. 284.
(3) (1935) I.L.R. 10 Lucknow 250.
(2) (1951) 54 B.L.R. 11.
(4) (1926) 98 LC. 1057.
2 S.C.R. SUPREME COURT REPORTS
927
d'Escomptt- de Paris (1) as early as 1871 "one of the first
r~6o·
and highest duties of all Courts is to take care that
the a.ct of the Court does no in1"ury to any of the suifagal Dhish
Bhargava
tors"; that is why we think that in view of the subsev.
quent event which has happened in this case, namely,
Jawahar Lal
the filing of the certified copy of the decree in the Bhargav11 & Others
High Court, the question raised by the appellant has
. --
become technical and academic.
Ga1endr1Jgadkar J.
Faced with this position Mr. Pathak attempted to
argue that the application ma.de by the respondents on
March 24, 1954, was not really an application for a
certified copy of the decree; he contended that it was
an application for the certified copy of the judgment
and the bill of costs. This argument is wholly untenable. The words used in the application clearly show
that it was an application for a certified copy of the
judgment as well as the decretal order, and as subsequent events have shown, a certified copy of the
decree was ultimately supplied to the respondents in
pursuance of this application.
Then it was argued that the respondents should
have moved the trial Court for the drawing up of a
decree as soon as they found that no decree had been
drawn up. It may be assumed that the respondents
might have adopted this course; but where the dual
system does not exist it would be idle to contend that
it is a part of the duty of a. litigant to remind the
Court or its office about its obligation to draw up a
decree after the judgment is pronounced in any suit.
It may be that decrees when drawn up are show~ to
the lawyers of the parties; but essentially drawing up
of the decree is the function of the Court and its
office, and it would be unreasonable to' penalise a.
party for the default of the office by suggesting that
it was necessary that the party should have moved
the Court for the drawing up of the decree. Therefore, we are not satisfied that the appellant is justified
in attributing to the respondents any default for
which the penalty of dismissing their appeal can be
legitimately imposed on them. The result is tha~ the
apl>eal preferred by the respondents on December 23,
(1) (1871) L.R. 3 P.C. 465, 475·
928
SUPREME COURT REPORTS
[1961)
r960
1959, is proper and in time and it can now be dealt
with in accordance with law. It is true that in the
}agal Dhish
Bha.gava
circumstances over which the respondents had no conv.
trol the appeal in question has already been admitted
Jawahar Lal
under 0. 41, r. 11, and as a result of the decision under
Bhargava&Othmappeal it may not have to go through that process
Gajendragadkar J. again. Dulat, J. who heard the appeal for admission
was satisfied that it deserved to be admitted and we
do not think it necessary to require that the present
appeal should go through the formality of the procec
dure prescribed by 0. 41, r. 11 once again. This position is no doubt unusual, but in the circumstances of
the case it is impossible to say that the order passed
by the High Court is not fair and just.
Let us then consider . the technical point raised by
the appellant challenging the validity or the propriety
o.f 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 bee~ filed with a memorandum of
appeal accompanied only with a certified copy of the
judgment the appeal must be dismissed as being in-
. competent, the relevant provisions of O. 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 genera.I 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 drawn up, and it
is the decree against which an appeal lies. In such a.
oa.se, if the office of the High Court examines the
appeal carefully and discovers the defect the .appeal
may be returned to the appellant for presentation
,
- '
.....
2 s.c.R. SUPREME COURT REPORTS
929
with the certified copy of the decree after it is obtain196.1
ed. In the case like the present, if the appeal has
passed through the stage of admission through over1;!::g~:aish
sight of the office, then the only fair and rational
v.
course to adopt would be to adjourn the hearing of
Jawahar Lal
the appeal with a direction that the appellant should Bltargava & Others
produce the certified copy of the decree 1as soon as it
. -
is supplied to· him. In such a case it would be open Ga1endragadkar J.
to the High Court, and we apprehend it would be its
duty, to direct the .subordinate Court to draw up the
decree forthwith without any delay. On the other
hand, if a decree has been drawn up and an application for its certified copy has been made by the appellant after the decree was drawn up, the office of the
appellate Court should return the appeal to the appellant as defective, and when the decree is filed by him
the question of limitation may be examined on the
merits. It is obvious that the complications- in the
present case have arisen as a result of two factors;
the failure of the trial Court to draw up the decree as
required by the Code, and the failure of the office in
the High Court to notice the defect and to take appropriate" action at the initial stage before the appeal was
placed for admission under 0. 41, r. 11. It would
thus be clear that no hard and fast rule of general
applicability can be laid down for dealing with
appeals defectively filed under 0. 41, r. 1. Appropriate orders will have to be passed having regard to
the circumstances of each case, but the most important step to take in cases of defective presentation of
appeals is that they should be carefully scrutinised at
the initial stage soon after they are filed and the
appellant required to remedy the defects. Therefore,
in our .opinion, the appellant is not justified in challenging the propriety or the validity of the order
passed by the High Court because in the circumstances to which we have already adverted the said order
is obviously fair and just. The High Court realised
that it would be very unfair to penalise the party for
, the mistake committed by the trial Court and its own
office, and so it has given time to the respondents to
930
SUPREME COURT REPORTS
[1961]
1960
apply for a certified copy of the decree and then proceed with the appeal.
fagat Dhish
In this connection our atwntion has been drawn to
Bhargava
v.
the fact that in the Punjab High Court two conflicting
fawahar Lal
and inconsistent views appear to have been taken in its
Bh••gaua & Others reported decisions.
Dealing with appeals filed with-
. --
out a certified copy of the decree some decisions have
Ga1endragadkar 1 ·dismissed the appeals as defective, and have given
effect to the mandatory words in O. 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('); Municipal Committee, Ohiniot v. Bashi Ram("); Mubarak Ali Shah v.
Secretary of State('); N ur Din v. Secretary of State(')
Hakam Beg v. Rahim Shah('); Fazal Karim v. Des
Raj('); and Banwari Lal Varma v. Amrit Sagar
Gupta(')).
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 the decree and
produce it before the appellate Court (Vide: Manoharlal v. Nanak Chand("); Mt. Jeewani v. Mt. Misri (');
and, Sher Muhamrood v. Muhamrood Khan(")). It
would obviously have been better if this conflict of
judicial opinion in the reported decfaions of the High
Court had been resolved by a Full Bench of the said
High Court but that does not appear to have been
done so far.
However, as we have indicated, the
question about the competence of the appeal has to be
judged in ea.ch case on its own facts and appropriate
orders must be passed at the initial stage soon after
the appeal is presented in the appellate Court. If any
disputed question of limitation arises it may have to
go before the Court for judicial decision.
In the result the order passed by the High Court is
right. Having regard to the fact that the decree
(1) A.LR. (1920) I Lah. 223
(3) A.I R. (1925) Lah. 43S.
(5) A I.R. (1927) Lah. 912.
(7) A.LR. (r949) East Punj. 400.
(9) A.l.R. (r9r9) Lah. 125.
(2) A.I.R (r92>) Lah. 170.
(4) A J.R. (1027) Lah. 49.
(6) 35 Punj. L.R. 47r.
(8) A.l.R. (1919) Lah. 53·
(10) A.I.R. (1924) Lah. 352.
2 S.C.R. SUPREME COURT REPORTS
931
under appeal has already been filed by the respon1960
dents before the High Court on December 23, 1959,
Jagat Dhish
the High Court should now proceed to hear the appe,al
Bhargava
on the merits and deal with it in accordance with law.
v.
In the circumstances of this case we make no order as
Jawahar Lal
to costs.
Bhartava b Others
Appeal dismissed.
GAZULA DASARATHA RAMA RAO
v.
THE STATE OF ANDHRA PR.ADESH & OTHERS
(S. K. DAS, M. HIDAYATULLAH, K. c. DAS GUPTA,
J.C. SHAH and N. RAJAGOPALA AYYANGAR, JJ.)
Village Offices-Village Munsij-Enactment providing for
selection of post according to heredity-Constitutionality-Madras
Hereditary V illage-Offtces Act, I895 (3 of I895), s. 6(1)-Constitution of India, Art, r6(I}(z).
Yillage P in the State of Andhra Pradesh was originally
comprised of a village of the same name and a fairly large
hamlet called PP, but in view of the difficulties in the two
being treated as one unit for purposes of village administration
the Board of Revenue sanctioned the bifurcation of P into two
villages, P and PP. On the division of the village all the
hereditary village offices of the original village ceased to exist
under s. 6(1) of the Madras Hereditary Village-Offices Act, 1895,
and new offices were created for the two villages. The section
provided, inter alia, that "in choosing persons to fill such new
offices the Collector shall select the persons w horn he may consider the best qualified from among the families of the last
holders of the offices which have been abolished." Though
'applications for the post of Village Munsif of PP had been
invited by the Revenue authorities and the petitioner among
others had made the application, respondent 4 who was the son
of the Village Munsif of the old village, P, was selected on the
ground that in view of s. 6(1) of the Act, as the last holder of
the office was appointed to the new village, P, after bifurcation,
respondent 4 as the son of the last holder and nearest heir had a
preferential claim for the post of Village Munsif for PP. The
petitioner challenged the validity of the order of the Revenue
authorities on the grounds (1) that the office of Village Munsif
was an office under the State, and that the order in favour of
Gajendragadlrar],