# s.c.n. SUPREMI~ COUR1; REI>ORTS THE STATE OF UTTAR PRADESH v. C. TOBIT AND OTHERS

- **Citation:** [1958] 1 S.C.R. 1275
- **Court:** Supreme Court of India
- **Decided:** 1955-01-31
- **Case number:** Criminal Appeal No. 128 of 1955
- **Bench:** S. R. DAs C. J, Venkatarama Aiyar, A." K. Sarkar, Vivian Bose
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-c-n-supremi-cour1-rei-orts-the-state-of-uttar-pradesh-v-c-tobit-and-others-1412
- **Pages:** 13

## Headnote

Criminal Procedure-Petition of appeal-If must be accompanied b11 certified copy of jtligment or order appealed
against-Code of Criminal Procedure (Act V of 1898), s. 419.
The word 'Copy' occurring in s. 419 of the Code of Criminal
Procedure means a certified copy and a petition of appeal filed
under that section must, therefore, be accompanied by a certified. copy of the judgment or order appealed against.
Ram Lal v. Ghanasharn Das, A.I.R. (1923) Lah. 150, referred
to.
Firm Chota Lal-Amba Parshad v. Firm Basdeo Mal-Hira
Lal, A.I.R. (1926) Lah. 404, distinguished.
Consequently, where a State Government filed an appeal
against an order of acquittal under s. 417 of the Code of Criminal Procedure with a plain copy of the judgment appealed
against and put in a certified copy of it after the period of limitation prescribed for the appeal had expired and the High Court
dismissed the appeal as time-barred, that order 'was correct
and must be affirmed.

## Text

s.c.n.
SUPREMI~ COUR1; REI>ORTS
THE STATE OF UTTAR PRADESH
v.
C. TOBIT AND OTHERS
1275
(S. R. DAs C. J., VENKATARAMA AIYAR, A." K. SARKAR and
VIVIAN BOSE JJ.)
Criminal Procedure-Petition of appeal-If must be accompanied b11 certified copy of jtligment or order appealed
against-Code of Criminal Procedure (Act V of 1898), s. 419.
The word 'Copy' occurring in s. 419 of the Code of Criminal
Procedure means a certified copy and a petition of appeal filed
under that section must, therefore, be accompanied by a certified. copy of the judgment or order appealed against.
Ram Lal v. Ghanasharn Das, A.I.R. (1923) Lah. 150, referred
to.
Firm Chota Lal-Amba Parshad v. Firm Basdeo Mal-Hira
Lal, A.I.R. (1926) Lah. 404, distinguished.
Consequently, where a State Government filed an appeal
against an order of acquittal under s. 417 of the Code of Criminal Procedure with a plain copy of the judgment appealed
against and put in a certified copy of it after the period of limitation prescribed for the appeal had expired and the High Court
dismissed the appeal as time-barred, that order 'was correct
and must be affirmed.
CRIMINAL APPELLATE JURISDICTION:
Criminal Appeal
No. 128 of 1955.
Appeal from the judgment and order dated February 8.
1955, of the Allahabad High Court in Government Appeal
No. 165 of 1954, arising out of the judgment and order dated
July 24, 1953, of the Court of the Civil and Sessions Judge
at Gorakhpur in Sessions Trial No. 5 of 1953.
G. C. Mathur and C. P. Lal, for the appellant.
. S. N. Andley, for the respondents.
1958. February 14. The following Judgment of the
Court was delivered by
DAS C. J.-The respondents before us were put up for
trial for offences under ss. 147, 302, 325 and 326, Indian
Penal Co4e read with s. 149 of the same Code. On July· 24,
195J: the temporary Civil
Sessions Judge, Gorakhpur,
acqmtted them. The State of Uttar Pradesh apparently felt
L/S4SCI-6(a)
1958
Fel,ruary H.
DctsC. J,
19ii8
f'lie Slate of
Uttar Pmrlr~li
v.
C. Tobit a.nd Otlirr1
Dad C. J.
1276
SUi'HElllE COUHT Rl~POHTS
[1968]
aggrieved by this acquittal and intended to appeal to the
High Court under s. 417 of the Code of Criminal Procedure.
Under art. 157 of the Indian Limitation Act an appeal under
the Code of Criminal Procedure from an order of acquittal
is required to be filed within six months from the date of the
order appealed from. The period of limitation for appealing
from the order of acquittal passed by the Sessions Judge on
July 24. 1953. therefore. expired on January 24, 1954. That
day being a Sunday the Deputy Government Advocate on
January 25. 1954. field a petition of appeal on behalf of that
State. A plain copy of the judgment sought lo be appealed
from was filed with that petition. The High Court office im·
mediately made a note that the copy of the judgment filed
along with the petition of appeal did not appear to be a certified copy.
After the judicial records of the case had been
received by the High Court, an application for a certified
copy of the judgment of the trial court was made on behalf
of the State on February 12, 1954.
The certified copy was
received by the Deputy Government Advocate on February
23, 1954 and he presented it before the High Court on February 25. 1954. when Harish Chandra J. made an order that
the certified copy be accepted and that three days' further
time be granted to the appellant for making an application
under s. 5 of tlie Indian Limitation Act for condoning the
delay in the tiling of the certified copy. Accordingly an application for the condonation of delay was made by the appdhint on the same day and that application was directed to b~
laid before a Division Bench for necessary orders.
The application came up for hearing before a Division
Beiv;h consisting of M. C. Desai and N. U. Beg JJ. At the
hearing of that application learned counsel appearing for the
appellant urged that as there was, in the circumstances of
this case, sufficient cause for not filing the certified copy along
with the petition of appeal the delay should be condoned
and that. in any event. the filing of the plain copy of the
judgment of the trial court along with the petition of appeal
constituted a sufficient compliance with the requirements of
S.C.R.
SUPREME COURT llEPOR'J'S
1277
s. 419 of the Code of Criminal Procedure. By their judgment
1968
delivered on December 7. J 954, both lhe learned Judges took
Tlie Rl,,te of
the view that no case had been made out for extending the
CJttar PrllllMto
period of limitation under s. 5 of the Indian Limitation Act c. Tobit ::.ui Olkt:•
and dismissed the application an. d nothing further need be
c J
DQI ••
said on that point. The learned judges, however, differed on
the question as to whether the filing of a plain copy of the
judgment appealed from was a sufficient compliance with the
law. M. C. Desai J. holding that it was and N. U. Beg J.
taking the contrary view.
The two Judges having differed
they directed the case to be laid before the Chief Justice for
obtaining a third Judge's. opinion on that question. Raghu·
bar Dayal J. to whom the matter was referred, by his judgment dated January 31, 1955, expressed the opinion that the
word "copy" in s. 419 meant a certified copy, and directed
bis opinion to be laid before the Division Bench. In view
of the opinion of tlie third Judge, .the Division Bench held
that the memorandum of appeal had not been accompanied
by "a copy" within the meaning of s. 419 and that on February 25, 1954, when a certified copy came to be filed the
period of limitation for appealing against the order of acquittal passed on July 24, 1953, had already expired and that as the
application for extension of the
period of limitation· had
been dismissed the appeal was time barred and they accordingly dismissed the appeal. The learned Judges, however,
by the same order gave the appella.nt a certificate that the
case was a fit one for appeal to this Court. Hence
thi~
appeal.
Section 419 of the Code of Criminal Procedure, under
which the appeal was filed, provides as follows:_:_
"419. Every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader, and
every such petition shall (unless the Court to which it is presented otherwise directs) be accompained by a copy of the
judgment or order appe1:1led against, and, in cases tried by
a jury. a copy of the heads of the charge recorded under
11ection 367."
1958
The Stale of
Vttar Pradesh
v.
C. Tobit and Ot/1ers
Da~ C. J.
1278
SUPREME COURT REPORTS
[1958)
The sole question raised in this appeal is whether this section
requires a petition of appeal to be accompanied by a certified copy of the judgment or order appealed from. It will
be noticed that the section requires "a copy" of the judgment
to be filed along with the petition of appeal. There can be
no doubt that the ordinary dictionary meaning of the word
"copy" is a reproduction or transcription of an original
writing. As the section does not, in terms, require a certified
copy, it is urged on behalf of the appellant that the word
"copy" with reference to a document has only one ordinary
meaning, namely: a transcript or reproduction of the original document and that there bi:ing nothing uncertain or
ambiguous about the word "copy", no question of construction or interpretation of the section can at all arise. It is
contended that it is the duty of the court to apply its aforesaid: ordinary and grammatical meaning to the word "copy"
appearing in s. 419 and that it should be held that the filing
of a plain copy of the judgment along with the petition of
appeal was a sufficient compliance with the requirements of
that section. The matter, however, does not appear to us
to be quite so simple. A "copy" may be a plain copy, i.e., an
unofficial copy, or a cerlified copy, i.e., an official copy. If
a certified copy of the judgment is annexed to the petition
of appeal nobody can say that the requirements of s. 419
have not been complied with, for a certified copy is none the
less a "copy". That being the position a question of construction does arise as to whether the word "copy" used in
s. 419 refers to a plain copy or tQ a certified copy or covers
both varieties of copy. It is well settled that "the words of
a statute, when there is doubt about their meaning, are to
be understood in the sense in which they best harmonise
with the subject of the enactment and the object which the
Legislature Jias in view.
Their meaning i~ found not so
much in a strictly grammatical or etymological propriety of
language, nor even in its popular use, as in the subject or in
the occasion on which they are used, and the object to be
attainfd." (Maxweli's Interpretation of S!<!tutes, 10th Edi-
S.C.R
SUPREME COURT REPORTS
1279
tion, page 52).
In order, therefore, to come to a decision
as to the true meaning of a word used in a Statute one has
to enquire as to the subject-matter of the enactment and the
object which the Legislature had in view.
This leads us to
a consideration of some of the relevant sections of the Code
of Criminal Procedure and other enactments having a material bearing on the question before us.
Section 366 of the Code of Criminal Procedure, which
is in Chapter XXVI headed "Of the Judgment", requires
that the judgment in every trial in any criminal court of
oria\inal jurisdiction shall be pronounced in open court and
in the language of the court. Section 367 requires every such
judgment to be written by the presiding officer (or from his
dictation) in the language of the court or in English. containing the point or points for determination, the decision
_ thereon and the reasons for the decision. The judgment has
to be dated and signed by the presiding officer in open court.
Except as otherwise provided by law, s. 369 forbids the court,
after it has signed its judgment, from altering or reviewing
the same except to correct mere clerical errors.
After the
judgment is pronounced and signed it has, under s. 372, to be
filed with the record of proceedings and becomes a part of
the record and remains in the custody of the officer who is in
charge of the records. Under s. 371, when an accused is
sentenced to death and an appeal lies from such· judgment
as of right, the court is to inform him 0£ the period within
which he may, if he so wishes, prefer his appeal· and when
he is sentenced to imprisonment a copy of the findings and
sentence must as soon as may be after the delivery of the
judgment be given to him free of cost without any application.
This, however, is without prejudice to his right to obtain free of cost on an application made by him, a "copy" of
the judgment or order and in trials by jury a "copy" of the
heads of charge to the jury. The copy that is supplied to the accused under sub-s. (4) of s. 371 is not a full copy of the entire
judgment, but the copies supplied to him under sub-ss. (I) and
1958
Tlie State of
Uttar Pradesh
~.
O. T-Obil onul Other8
DaaO. J,
1958
The State of
Uttar Pradesh
v.
C. Tobit and Others
Das C. J,
1280
SCPREME COURT REPORTS
[1958)
(2) of s. 371 on application made by him are full copies of
the judgment or the heads of the charge to the jury as the
case may be.
The copy of the
findings and the sentence
which is supplied to the accused under sub-s. (4) without his
asking for the same is presumably to enable him to decide
for himself whether he would appeal against his conviction
and the sentence. The copies, whicli are supplied to the
accused under sub-ss. (I) and (2) on his application for such
copies, are obviously full copies of the entire judgment or
the heads of charges as the case may be and are intended to
enable him to prepare his grounds of appeal should he decide
to prefer one and to file the same along with his petition of
appeal as required by s. 419 of the Code of Criminal Procedure. There are no provisions corresponding to s. 371 for
giving any copy of the judgment to the State for the public
prosecutor representing the State in case of an acquittal. If,
therefore, the State desires to file an appeal against acquittal
under s. 417 of the Code of Criminal Procedure the State will
have to procure a copy of the judgment or the heads of
charge in order to enable it to file the same along with .its
petition of appeal and thereby to comply with the requirements of s. 419.
According to s. 74 of the Indian Evidence
Act a judgment, being the Act or record of the act of a judicial officer, would be included in the category of public documents. Under s. 548 of the Code of Criminal Procedure if a
person affected by a judgment desires to have a copy of the
judge's charge to the jury or of any order or deposition or
other part of the record he has the right, on applying for
such copy, to be furnished therewith. A person desirous of
such a copy has to apply for it to the public officer having
the custody of it and, und~r s. 76 of the Indian Evidence Act,
such public officer is bound to give that person, on demand,
a copy of it on payment of the legal fees thereof together
with a certificate written at the foot of such copy that it is a
true copy of such document, that is to say, to supply to the
1pplicant what is known as a certified copy. Therefore, whether it is the accused person who applies for a copy under s.
S.C.R.
SUPREME COURT REPORTS
1281
371. sub-ss. (I) and (2) or it is the State which applies for a
copy, the copy supplied by the public officer must be a certified copy. Then when s. 419 requires that a copy of the
judgment or of the heads of charge be filed along with the
petition of appeal, it is not unreasonable to hold that it is
the certified copy so obtained that must be filed.
Under arts. 154, 155 and 157 of the Indian Limitation
Act the petition of appeal has to be filed within the time
. specified in those
articles. Obviously it may take a little .
time to apply for and procure a certified copy. In order that
the full period of limitation be available to the intending
appellant s. 12 of the Limitation Act permits the deduction
of the time requisite for obtaining the copy of the judgment
or the heads of charge in ascertaining whether the appeal
is filed within .time.
A certified copy of the judgment will
on the face of it show when the copy was applied for, when
it was ready for delivery and when it was actually delivered
and the court may at a glance ascertain what time was requisite for obtaining the copy so as to deduct the same from
the computation of the period of limitation.
Taking all
relevant facts into consideration, namely, that a "copy" of
the judgment has to be filed
along with the petition of
appeal, that the copies of the judgment which the accused
gets free of cost under s. 371 (l) and (2) read with ·S. 76 of
the Indian Evidence Act and which the State can obtain on
an application made by it under s. 76 of the last mentioned
Act can only be certified copies, that the tim.e requisite for
obtaining such copies is to be e:itcluded from the computation of the period of limitation all quite clearly indicate that
the copy to be filed with the petition of appeal must be a
certified copy.
Section 419 requires a copy of the judgment or order
appealed against to be filed not without some purpose. That
purpose becomes clear when we pass on to s. 421 of the· Code
of Criminal Procedure. That section enjoins the court, on
receiving the petition of appeal and copy of the judgment or
order appealed from under s. 419. to peruse the same and
1958
'!'At Stau of
Ullar Prllduh
"'·
o. 'l'obil •nd Otl!eta
DuO.J,
1968
The Slate of
Uttar Pradesh
v.
C. Tobit and Oth~rs
Das C. J.
1282
SUPREME COURT REPOHTS
[1958]
after perusing the same to do one of the two things, namely,
if it finds that there is no sufficient ground for interfering. to
dismiss the appeal summarily or when the court does not
dismiss the appeal summarily, then under s. 422 to cause
notice to be given to the appellant or his pleader and to such
officer as the Provincial Government may appoint in this behalf, of the time and place at which such appeal will be heard
and furnish such officer with a copy of the grounds of appeal
and in a case of appeal under s. 417. as in the present case,
to cause a like notice to be given to the accused.
The act
of summarily rejecting the appeal or admitting it and issuing
notice is necessarily a judicial act and obviously it must be
founded on proper materials.
The authenticity or correctness of the copy of a judgment is also essential in order to
enable the appellate court to make interlocutory orders which
may have serious consequences.
In the case of an appeal by
the accused he may ask for the stay of the execution of the
order, e.g., of the realisation of the fine or he may move the
court for bail.
Likewise in the case of an appeal by the
State, the State may ask for the accused to be apprehended
and brought before the court under warrant of arrest. Orders
made on these applications are all judicial acts ~nd accordingly it is essential that the appellate court in order to take
these judicial decisions have proper materials before it.
Therefore. it is of the utmost importance that the copy to be
filed with the petition of appeal is a full and correct copy of
the judgment or order appealed against.
Under s. 76 of the
Indian Evidence Act the public officer who is to supply a copy
is required to append a certificate in writing at the foot of
such copy that it is a true copy and then to put the date and
to subscribe the same with his name and official title. Therefore, the production of a certified copy ipso facto and without
anything more will show ex facie that it is a correct copy on
which the appellate court may safely act. The fact that the
appellate court is by law enjoined to peruse the copy of the
judgment and take judicial decision on it indicates that it
must have before it a correct copy of the judgment and this
S.C.R.
SUPREME COURT REPORTS
1283
further indicates that the copy required to be filed with the
petition of appeal under s. 419 should be a certified copy
which will ipso facto assure the appellate court of its correct19/18
The State of
Uttar Pradesh
v.
ness.
0. Tobit and Othera
It is said that the appellate court may not summarily
reject or admit the appeal or make an
interlocutory order
until the record is produced or until a certified copy of the
judgment or order is presented before it. There is no doubt
that the court can under s. 421 of the Code of Criminal Procedure call for the record of the case, . but the court is not
bound to do so. The calling for the records in every case or
keeping the proceedings in abeyance until a .certified copy is
presented before the court is bound to involve delay and
there is no apparent reason why there should be any delay
in disposing of criminal matters involving the personal liberty
of the convicted accused. All this inconvenience may easily
be obviated if s. 419 be read and understood to require a
certified copy to be filed along with the petition of appeal.
Learned counsel for the appellant urges that in case of
urgency the court need· not wait until the record or the certified copy is received, but may call
upon the appellant to
adduce evidence to prove the correctness of the judgment in
order to induce the court to act upon it and take a judicial
decision thereon.
In the first place there is no such procedure envisaged in the Code of Criminal Procedure. In the
next place adoption of such a procedure may cause much
delay and in the third place no question ordinarily arises
under s. 419 of proving the correctness of the judgment
under appeal in the way in which a document is to be proved
in order to tender· it in evidence in the case.
But assuming that the correctness of the judgment under appeal is to be
established then as soon as the appellant is out to "prove"
by oral evidence of witnesses the contents of the original
judgment so as to establish the correctness of the plain copy
filed along with his petition of appeal the question wiil immediately arise whether such evidence is admissible under the
Jaw. As already stated s. 367 of the Cod·e of Criminal ProceDas O. J.
1958
1'he S,...of
Uttar Pro.duh
v.
U. Tobit and Other8
Dtu C. J.
1284
SUPREME COURT REPORTS
(1958]
dure requires the judgment to be reduced to writing. Section
91 of the Indian Evidence Act provides, inter alia, that in all
cases in which any matter is requited by law to be reduced
to the form of a document-and a judgment is so required'-
no evidence shall be given for the proof of the terms of such
matter except the document itself or secondary evidence of its
contents in cases in which secondary evidence is admissible
under the earlier provisions of that Act.
In the absence of
the production of the original judgment if a witness is put
into a witness box and is asked to say whether the copy produced befure the appellatl: court is a correct copy of the origi•
nal judgment filed of record• in the trial court he will necessarily have to say that he read the original judgment and
from his memory he can say that the copy correctly reproduces the text of the original judgment. This means that he
will give secondary evidence as to the contents of the original
judgment which under the law is required to be reduced to
the form of a document.
A further question will, therefore,
arise if such evidence, which at best is secondary evidence,
is admissible under the Indian Evidence Act.
As already
stated the judgment, which under s. 367 of the Code of Criminal Procedure has 10 be in writing and under s. 372 has to
be filed with the record of the proceedings, becomes, under
s. 74 of the Indian Evidence Act, a public document. As the
original judgment is a public document within the meaning
of s. 74, only a certified copy of such document and no other
kind of secondary evidence is admissible under s. 65.
This
circumstance also indicates that the word "copy" in s. 419
means, in the context, a certified copy and so it was held in
Ral Lal v. Ghanasham Das('). The decision in Firm Clthota
Lal~Amba Parshad v. Firm Basdeo Mal-Hira Lal('), proceeded on its peculiar facts, namely, that no certified copy could
be obtained as the original judgment could not be traced in
the record and the decision can be supported on the ground
that the court had, in the circumstances, dispensed with the
production of a certified copy.
(') A.I.R. (1923) Lah. 150,
( ') A.I.R. (1926) Lah. 404.
S.C.R.
SUPREME COURT REPORTS
1285
Learned counsel for the appellant next urges that the
1958
fact that the appellate court to which the petition of appeal
The State of
is presented is given power to dispense with the filing of a
Uttar Pradesh
copy of the judgment appealed against indicates that the o. Tobit V,:nd Other.
Legislature did not consider the filing of the copy to be essenDas O. J.
tial and that if the filing of the copy is not essential and copy
can be wholly dispensed with, a plain copy should be sufficient for the purpose of s. 419.
This bower of dispensation
had to be given to the court for very good reasons. In certain cases an order staying the operation of the order sought
to be appealed from may be immediately necessary· and the
matter may be so urgent that it cannot brook the delay which
will inevitably occur if a certified copy of the judgment or
order has to be obtained. In some cases it may be that a
certified copy of the same judgment is already before the
same court in an analogous or connected appeal and the
filing of another certified copy of that very judgment may
be an unnecessary formality.
The circumstance that the
court may, in urgent cases, dispense with the filing of a copy
does not imply that in a case where the court does not think
fit to do so it should be content with a plain copy of the
document which ex facie contains no guarantee as to its correctness.
Reference has been made to a number of sections of
the Code of Criminal Procedure where the word "copy" has
been used and to ss. 425, 428, 442 and 511 which, it is said,
talk about certified copy and on this circumstance is founded
the argument that where the Legislature insists on the production of a certified copy it says so expressly and that as the
word "copy" used in s. 419 is not qualified by the word
"certified" the inference is irresistible that the filing of a
plain copy was intended to be sufficient for the purpose of that
section. Turning to the four last mentioned sections, it will
be noticed that the first three sections 425, 428 and 442 do
not really refer to any certified copy of any document at all.
Section 425 requires that whenever a case is decided on appeal by the High Court under Chapter XXXI it shall certify
1958
The State of
Uttar PrackaA
v.
G. Tobit ancl 011•"'
Da• G. J.
1286
SUPHEME COURT REPOHTS
[1958]
its judgment or order to the court by which the finding, sentence or order appealed against was recorded or passed. It
really means that the High Court is to formally communicate
its decision on the appeal to the court against whose decision
the appeal ,had been taken.
Likewise s. 428 requires the
court taking additional evidence to certify such evidence to
the appellate court. Spction 442 requires the High Court to
certify its decision on revision to the
court by which the
finding, sentence or order revised was recorded or passed.
Lastly s. 511 lays down the mode of proof of a previous conviction or acquittal, namely, by the production of an extract
certified under the hand of the officer having the custody of
the records of the court to be a copy of the sentence or order.
Therefore, the four sections relied on do not in reality refer
to certified copy of a judgment or order supplied to a party
on his application for such copy and consequently no argument such as has been sought to be raised is maintainable.
The question whether a copy in a particular section means
a· plain copy or a certified copy must depend on the subject
or context in which the word "copy" is used in such section.
In many sections relied on, the "copy" is intended to serve
only as a notice to the person concerned or the public and
is not intended to be acted upon by a court for the purpose
of making a judicial order thereon. We think that U. N.
Beg J. rightly pointed out that the object and purpose of such
sections are distinguishable from those of s. 419 where the
copy is intended to be acted upon by the appellate court for
the purpose of founding its judicial decision on it. We do
not consider it. desirable on the present occasion to express
any opinion as to whether any ~ those sections relied on
requires a plain copy or a certified copy. It will suffice for
us to hold that so far as s. 419 is concerned, having regard
to the context and the purpose of that section, the copy to
be filed along with the petition of appeal must be a certified
copy.
We have also been referred to several sections of the
Code of Civil Procedure where tha word "copy" is used. We do
S.C.R
SUPREME COUHT REPORTS
1287
not consider it right to enter upon a discussion as to the true
interpretation of the word "copy" occurring in any of those
sections for we think that each section in each Act must, for ·
its true meaning and effect, depend on its own language, context and setting.
In the result, for reasons stated above, we agree that the
order passed by the Allahabad High Court on February 8,
1955 was correct and this appeal should be dismissed.
Appeal dismissed.
SM. SAILA BALA DASSI
v.
SM. NIRMALA SUNDARI DASSI. AND ANOTHER
(S. R. DAS c. J., VENKATARAMA AIYAR, A. K. SARKAR and
VIVIAN BosE JJ.)
Civil Procedure-Addition of party-Transfer pendente
lite-Appeal filed by ttansferor-Ri:ght of transferee to continue appeal-Code of Civil Procedure (Act 5 of 1908); s. 146, 0.
22, r. 10 .
. The second respondent sold the properties to the appellant
in 1952 and the deed of sale recited that t.he properties were
sold free of all enct.Jmbrances.
The first (respondent who had
obtained a mortgage decree in respect of the properties in 1935
did not take any steps to have the decree drawn up as required
under the Original Side
Rules of the Calcutta High Court
until 1954, when she commenced proceedings for sale of. the
mortgaged properties. The second respondent raised the objection that the execution of the decree was barred by limita-
. tion but that was. overruled by a single Judge·· of the High
Court and an appeal against that order was preferred by the
second respondent. Apprehending that the second respondent
might enter into a collusive arrangement with the first respondent with a view to defeat her rights, the appellant made an
application in the High Court under 0. 22, r. 10, of the. Code
of Civil Procedure praying that she might be substituted in the
place of the second respondent, · or in the alternative, be
brought on record as additional appellant. The High Court
having dismissed the application, the appellant. brought the
present appeal:
·
Held, that the application could not be sustained under 0.
22, r. 10, of the Code of Civil Procedure because (1) assuming
1958
The State of
Uttar Pradesh
v.
a. Tobit and Olh.ers
Daso. J.
1968
February U.