# • • • • • SHAKUNTALA DEVI JAIN v. KUNTAL KUMARI & ORS

- **Citation:** [1969] 1 S.C.R. 1006
- **Court:** Supreme Court of India
- **Decided:** 1967-11-03
- **Case number:** Civil Appeal No. 970 of 1968
- **Bench:** S. M. S!Kri, R. S. BACllAWAT A:-ID K. s. HEGDE
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shakuntala-devi-jain-v-kuntal-kumari-ors-4364
- **Pages:** 7

## Headnote

Code of Cil'il Procedure, s. 47, 0. 41 r. I-Appeal Q11ainst order on
ob;ection under s. 47 filed without certified copy of order-Appeal whether
competent-Admission of appeal
by
High
Court
whether
implies that High
Court
dispensed
with
filing of certified copyLimitation Act, 1963, s.
5-De/ay in filing appeal when
may be
condoned.
One of the respondents herein filed an application for execution of a
final decree in a partition suit.
The appellant filed objections under s. 47
Code of Civil Procedure. The Subordinate Judge dismissed the objections
in January, 1967; the decision y:as not in the form of a decree because the
relevant rules and orders did not require it to be so. Jn March, 1967 the
appellant filed an appeal against the above order in the High Court. With
the appeal she filed a plain copy of the order and an application praying
that the appeal be enterLiined without a certified copy.
She also filed
an application for stay of execution. The High Court admitted the appeal,
granted interim stay and directed issue of notice to the respondents. The
attention of the High Court was not drawn to the fact that certified copy
of the order bad not been filed, nor was any application for dispensing
with the certified copy moved. In October, 1967 the respondents raised an
objection that the appeal was incompetent as a certified copy of the order
under appeal had not been filed.
On November 3, 1967 the appellant
filed an application for eondonation of the delay in filing the copy under
s. 5 of the Limitation Act. On November 6 she obtained a certified copy
and on the same day filed it in court. The High Court held that as the
memorandum of appeal was not accompanied by a certified copy of the
order, the appeal was incompetent and that there \\'a~ no sufficient ground
for condonation of the delay. By special leave the appellant came to tcis
Court.
HELD: (i) A decree and a judgment arc public documents and
under s. 77 of the Evidence Act only a certified copy may be produced
in proof of their contents.
Undc'r 0. 41, r. 1 the appellate court can
dispense with the filing of the copy of the judgment hut it has no power
to dispense with the filing of the c'opy of the decree. [1009 A-BJ
Under s. 2(2) of the Oxle of Civil Procedure the term decree is
deemed to include the determination of any question within s. 47.
1l1is
inclusive definition of decree applies to 0. 4 I
r.
I.
In
sonte
courts,
the decision under s. 47 is required to be formally drawn up as a decree
and in that case the mcn1orandum of appeal must be accompanied by a
copy of the decree as v.·cll
a~ the judgment.
But in some other courts
no separate decree is dra\\'O up embodving the adjudication under s. 47.
In such a case the decision under ~- 47 is the decree and also the judg·
mcnt and the filing of a certified copv of the decision is sufficient compli·
ancc 'v.ritb O. 41 ·r. 1.
As the dcciSion is the decree, the appeal is in·
competent unless the memorandum of appeal is accompanied by a certfl
fied copy of the decision. f I 009 E-G I
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SHAKUNTALA v. KUNTAL KUMAR! (Bachawat, /.)
1007
A
In the present case therefore the memorandum of appeal not being
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accompanied by the requisite certified copy of the order under s. 4 7,
was defective and incompetent. [1010 DJ
Kamala Devi v. Tarapada Mukherjee, 15 C.L.J. 498, approved and
applied.
Bodh Narain Mahto v. Mahabir Pra!ad & Ors. A.LR. 1940 Pat. 176,
disapproved.
It may be that in a proper case an ordelr dispensing with the filing of
a copy of the order under s. 47 may be implied from the fact that the
High Court admitted the appeal after its attention was drawn to the fact.
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. [1009 DJ
G.l.P. Railway Co. v. Radhakissen Jaikissen, A.I.R. !926 Nag.
57,
referred to.
(ii) The appellant made repeated attempts to pirocure a certified copy.
The failure of the copying department to supply

## Text

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SHAKUNTALA DEVI JAIN
v.
KUNTAL KUMARI & ORS.
September 5, 196~
[S. M. S!KRI, R. S. BACllAWAT A:-ID K. s. HEGDE, JJ.]
Code of Cil'il Procedure, s. 47, 0. 41 r. I-Appeal Q11ainst order on
ob;ection under s. 47 filed without certified copy of order-Appeal whether
competent-Admission of appeal
by
High
Court
whether
implies that High
Court
dispensed
with
filing of certified copyLimitation Act, 1963, s.
5-De/ay in filing appeal when
may be
condoned.
One of the respondents herein filed an application for execution of a
final decree in a partition suit.
The appellant filed objections under s. 47
Code of Civil Procedure. The Subordinate Judge dismissed the objections
in January, 1967; the decision y:as not in the form of a decree because the
relevant rules and orders did not require it to be so. Jn March, 1967 the
appellant filed an appeal against the above order in the High Court. With
the appeal she filed a plain copy of the order and an application praying
that the appeal be enterLiined without a certified copy.
She also filed
an application for stay of execution. The High Court admitted the appeal,
granted interim stay and directed issue of notice to the respondents. The
attention of the High Court was not drawn to the fact that certified copy
of the order bad not been filed, nor was any application for dispensing
with the certified copy moved. In October, 1967 the respondents raised an
objection that the appeal was incompetent as a certified copy of the order
under appeal had not been filed.
On November 3, 1967 the appellant
filed an application for eondonation of the delay in filing the copy under
s. 5 of the Limitation Act. On November 6 she obtained a certified copy
and on the same day filed it in court. The High Court held that as the
memorandum of appeal was not accompanied by a certified copy of the
order, the appeal was incompetent and that there \\'a~ no sufficient ground
for condonation of the delay. By special leave the appellant came to tcis
Court.
HELD: (i) A decree and a judgment arc public documents and
under s. 77 of the Evidence Act only a certified copy may be produced
in proof of their contents.
Undc'r 0. 41, r. 1 the appellate court can
dispense with the filing of the copy of the judgment hut it has no power
to dispense with the filing of the c'opy of the decree. [1009 A-BJ
Under s. 2(2) of the Oxle of Civil Procedure the term decree is
deemed to include the determination of any question within s. 47.
1l1is
inclusive definition of decree applies to 0. 4 I
r.
I.
In
sonte
courts,
the decision under s. 47 is required to be formally drawn up as a decree
and in that case the mcn1orandum of appeal must be accompanied by a
copy of the decree as v.·cll
a~ the judgment.
But in some other courts
no separate decree is dra\\'O up embodving the adjudication under s. 47.
In such a case the decision under ~- 47 is the decree and also the judg·
mcnt and the filing of a certified copv of the decision is sufficient compli·
ancc 'v.ritb O. 41 ·r. 1.
As the dcciSion is the decree, the appeal is in·
competent unless the memorandum of appeal is accompanied by a certfl
fied copy of the decision. f I 009 E-G I
A
B
c
D
E
F
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H
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...
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SHAKUNTALA v. KUNTAL KUMAR! (Bachawat, /.)
1007
A
In the present case therefore the memorandum of appeal not being
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accompanied by the requisite certified copy of the order under s. 4 7,
was defective and incompetent. [1010 DJ
Kamala Devi v. Tarapada Mukherjee, 15 C.L.J. 498, approved and
applied.
Bodh Narain Mahto v. Mahabir Pra!ad & Ors. A.LR. 1940 Pat. 176,
disapproved.
It may be that in a proper case an ordelr dispensing with the filing of
a copy of the order under s. 47 may be implied from the fact that the
High Court admitted the appeal after its attention was drawn to the fact.
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. [1009 DJ
G.l.P. Railway Co. v. Radhakissen Jaikissen, A.I.R. !926 Nag.
57,
referred to.
(ii) The appellant made repeated attempts to pirocure a certified copy.
The failure of the copying department to supply the copy in spite of those
applications contributed largely to the unfortunate delay in filing it. The
appellant could not be held responsible for the !aches of the
copying
department. It was not a case where it was possible to attribute to the
appellant want of bona {ides or such inaction or negligence
as
would
deprive her of the protection of s. 5 of the Limitation Act. Heir application under that section must therefore be allowed and the delay in re-filing
the appeal with a certified copy of the order, condoned. [1012 A-DJ
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 970 of
1968.
E
Appeal by special leave from the judgment and decree dated
December 22, 1967 of the Delhi High Court in Execution First
Appeal No. 86 of 1967.
B. C. Misra and S. S. Shukla, for the appellant.
Bishan Narain, Daya Krishen and Mohan Behari Lal, for resF
pondent No. 2.
G
H
Mohan Behari Lal, for respondents Nos. 3, 4 and 6.
The Judgment of the Court was delivered by
Bachawat, J. The respondent Sumat Prashad filed an application for execution of a final decree in a partition suit.
The
appellant filed objections under sec. 4 7 of the Code of Civil Procedure.
By an order dated January 20, 1967 the Subordinate
Judge, Deihl, dismissed the objections.
It is common case before
us that under the relevant Civil Rules and Orders the Subordinate
Judge, Deihl, was not required to draw up a formal expression of
the decision under s. 47 as a decree. On March 17, 1967 the
appellant filed an appeal against this order in the Delhi High
Court.
Along with the memorandum of appeal she filed a plain
&opy of the order and an application praying that the appeal be
entertained without a certified copy of the order.
In the applica-
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SUPREME COURT REPORTS
(1969] l S.C.R.
tion she stated that she 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. The attention
of the Court was not drawn to the fact that a certified copy of the
order had not been tiled nor was the application for dispensing
with the certified copy moved and
an order obtained thereon.
The appeal was registered as Execution First Appeal No. 86 of
1967. The appellant diligently prosecuted the appeal. On October 25, I 967 the respondents raised an objection that the appeal
was incompetent as a certified copy of the order under appeal had
not been filed.
On November 3, she filed an application for
condonation of the delay in filing the copy under sec.
5 of the
Limitation Act.
On November 6, she obtained a certified copy
and on the same day she filed it in court.
On December 22.
I 967 the High Court held that as the memorandum of appeal was
not accompanied by a certified copy of the order, the appeal was
incompetent, and that there was no sufficient ground for condoning the delay in filing the copy.
Accordingly the High Court dismissed the appeal and the application under sec. 5 of the Limitation Act.
The present appeal has been preferred after obtaining
special leave from this Court.
Two questions arise in this appeal.
First, was
the
appeal
from the order disposing the objections under sec. 47 incompetent
in view of the fact that the memorandum of appeal
was
not
accompanied
by a certified copy of the order appealed from ?
Second, whether the delay in filing the appeal should be condoned
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under sec. 5 of the Limitation Act ?
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Section 2(2) of the 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
G
final.
It shall be deemed to include the rejection of a plaint and
the determination of any question within sec. 47 or sec. 144 .... "
It is because the determination of any question within sec. 47 is a
decree that the appellant could file an appeal from the order under
sec. 96 of the Code.
Order 41 rule 1 of the Code provides that
every appeal shall be preferred in the form
of a memorandum
H
signed by the appellant or his pleader "and the memorandum shall
be accompanied by a copy of the decree appealed from and (unless •
the appellate court dispenses therewith) of the judgment on which
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SHAKUNTALA V. KUNfAL KUMAR! (Bachawat, I.)
10011
it is founded." Under 0. 41 r. 1 the appellate court can dispense
with the filing of the copy of the judgment but it has no power to
dispense with the filing of the copy of the decree.
A decree ~d
a judgment are public documents and under sec .. 77 of the Ev1~
ence Act only a certified copy may be produced m proof of their
contents.
The memorandum of appeal is not· validly presented,
unless it is accompanied by certified copies of the decree and the
judgment.
The contention of Mr. Misra is that a decree is the formal expression of the adjudication and that where, as in this case, no
formal decree is drawn up, the determination under sec. 4 7 is a
judgment and the Court having admitted the appeal must be presumed to have dispensed with the filing of the copy of the judgment. In this connection he drew our attention to sec. 2(2), 33
and O. 20 rules 1, 4, 6.
We are unable to accept these contentions.
We are not satisfied that the High'Court dispensed with the
filing of the copy of the order under sec. 4 7.
Admittedly, the
High Court did not pass any express order to that effect. It may
be that in a proper case such an order may be implied from the
fact that the High Court admitted the appeal after its attention was
drawn to the defect. [see G.l.P. Railway Co.
v.
Radhakissen
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.
Moreover an order under sec. 4 7 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 av
adjudication in a suit.
The decree follows the judgment and must
be drawn up separately.
But under sec. 2(2), the term "decree"
is deemed to include the determination of any question within sec.
47.
This inclusive definition of decree applies to 0. 41 r. 1.
In
some courts, the decision under sec. 47 is required to be formally
drawn up as a decree and in that case the memorandum of appeal
must be accompanied by a copy of the decree as well as the judgment.
But in some other Courts no separate decree is drawn up
embodying the adjudication under sec. 4 7.
In 'such a case, the
d~cision under sec. 4 7 is the decree and also the judgment, and the ·
filmg of a certified copy of the decision is sufficient compliance with
0. 41 r. 1. As the decision is the decree, the apr:eal is incompetent unless the memorandum of appeal is accompamed by a certified
copy of the decision.
Our attention was drawn to the decision in
Bodh Narain Mahto v. Mahabir Prasad & Ors. (2 ) where Agarwala,
J. seems to have held that where no formal decree was prepared
H ·in the case of a decision under sec. 4 7 the appellant was not re-
• quired to file a copy of the order with the memorandum of appeal.
(l) A.LR. 1926 Nag. 57.
(2)
A.1.R. 1940 Pat. 176.
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"1010
SLlPREME COURT REPORTS
[1969] 1 s.c.R.
• We are unable to agree with this ruling.
The correct practice was
laid down in Kamala Devi v.
Tarapada
Mukherjee(') where
Mookcrjee J. observed:-
"Now it frequently happens that in cases of execution
proceedings, though there is a judgment, an order, that
is, the formal expression of the decision is not drawn up.
In such cases the concluding portion of the judgment
which embodies the order may be treated as the order
against which the appeal is preferred.
In such a case
it would be sufficient for the appellant to attach to his
memorandum of appeal a copy of the judgment alone,
and time should run from the date of the judgment.
Where, however, a' in the case before us,
there 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."
We hold that the memorandum of appeal from the order dated
January 20, 1967 should have been accompanied by a certified
copy of tbe order and in the absence of the requisite copy the
appeal was defective and incompetent.
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 sec. 5 of the Limitation Act.
If the appellant makes out sufficient cause for the delay,
the Court may in its discretion condone the delay.
As laid down
in Krishna '" Clwthappan(') "section 5 gives the Courts a discretion which in respect of jurisdiction is to be exercised in the way
in which judicial power and discretion ought to be exercised upon
principles which arc well understood; the words 'sufficient cause'
receiving a liberal construction so as to advance substantial justice
when no negligence nor inaction nor want of bona {ides is imputable
to the appellant."
The record discloses that the appellant made repeated attempts
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to obtain a certified copy of the order.
She is a pardanashin lady
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and her affairs were managed by her husband Ajit Pra,ad and
sometimes by her son Virendra.
On March 2, 1967 she applied
for a certified copy of the order under appeal.
The application
distinctly stated that she wanted a copy of the order dated January
20, 1967 dismissing her objections.
The application bore the
serial number 17542.
The copying department supplied to her a
copy of another order passed by the Court on the same date dis- . H
missing Sumat Prasad's objections to the appellant's application for •
(!) I 5 C.L.J.498.
(I) 1.L.R. I 3 Mad. ~h9, 271.
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SHAKUNTALA v. KUNTAL KUMAR! (Bachawat, I.)
io11•
execution. · The mistake is solely attributable to the negligence of
the copying department.
In her affidavit the appellant s~ted that
the application for a copy dated February 17, 1967 was m respect
of the order dismissing Sumat Prasad's objections.
This statement is not correct, but it may well be 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.
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
receive the certified copy from Virendra.
Had she received the
copy there is no reason why she would not have filed it along. with
the memorandum of appeal on March 17, 1967.
On March 20, 1967 the appellant field another urgent application for a certified copy of the order dated January 20, 1967 and
also copies of two other orders dated February 17, 1967 and May
13, 1966.
On this application bearing serial number 19451 the
copying department made a note on March 23, 1967 that the
orders dated February 17, 1967 and May 13, 1966 were not found
and the applicant should be asked to indicate the file whereon the
orders were.
It is surprising that the copying department should
have asked the appellant to give this clarification. If the department found difficulty in finding the orders, it should have contacted the officer-in-charge of the records who would have secured the orders for them.
The note did not indicate why a copy
of the order dated January 20, 1967 was not being supplied.
The next note on the application dated March 27, indicates that
the application was returned to the appellant.
From the next
note dated April 11, it appears that the clerk-in-charge, copying
department, directed that the application be filed.
We may safely
presume that before April 11, the application was re-submitted
by the aPPellant to the copying department.
There is nothing to
show that the clarification asked for was not supplied by the
appellant.
The department took no further action on the application 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.
11
The time 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 Executive Court including the original order appeal-
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SUPREME COURT REPORTS
(1969] I S.C.R.
ed 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 a> 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 to
supply the copy in spite of those applications contributed largely
to the unfortunate delay in tiling it. The appellant cannot be held
responsible for the !aches of the copying department. Once her
son actually got the copy but she never received it.
The
appellant could have filed another copy before November 6, 1967
had it been supplied to her by the copying department.
We are
inclined to accept the statement that she was under the bona fide
impression that the certified copy was not ready, and that is why
it was nor supplied to her by the copying department.
It is not
a case where it is possible to impute to the appellant want of
bona fides or such inaction or negligence as would deprive her
of the protection of sec. 5 of the Limitation Act. We are therefore inclined to allow her application under sec. 5 and to condone the delay in re-filing the appeal with a certified copy of the
order.
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In the result, we allow the appeal.
The application filed by
the appellant under sec. 5 of the Limitation Act is allowed and
!he order of the High Court dismissing Execution First Appeal
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No. 86 of i 967 is set aside.
The appeal is remanded to the
High Court so that it may deal with and dispose of the appeal on
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the merits.
There will be no order as to the costs of the appeal
in this Court.
G.C.
A ppea/ allowed.
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