1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. Appeal against Order No. 24 of 2008 [Smt. S.S. Khot & two ors. Vs. R.Z. Selokar & ors.] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. B.N. Mohta, Advocate for the appellants. ----- CORAM : A.H. JOSHI, J. DATE : 02nd May,2008. 1. Heard. 2. The appellants are aggrieved by Judgment and Order dated 15th January, 2008 passed by District Judge-5, Nagpur, in Regular Civil Appeal No. 260 of 1992. 3. It is admitted that a common Judgment and Decree was passed in Regular Civil Suit Nos. 1553, 1554 and 1555 all of 1985. It is also admitted that Regular Civil Appeal No. 260 of 1992 was preferred by Ramaji and five others. 4. It is seen that the present appellants raised an objection before the Appellate Court that the appeal was incompetent for want of filing of a certified copy of the decree appealed against. 2 5. The ground as to want of a certified copy is recorded in para 21 of the Judgment of the First Appellate Court, which is quoted ad verbatim for convenience as follows:- “21. On the other hand, Mr. Mohta on behalf of Sambhaji and others has argued that the learned Trial Judge has not committed any error of law and facts. It is further argued that Regular Civil Appeal No.260/92 is not tenable because the Appellants therein have not filed certified copy of decree in three civil suits as required by Order 41 of C.P.C. Therefore, decrees in three civil suits filed by Ramaji and others have become final. Under such circumstances, Regular Civil Appeal No. 459/00 challenging the judgment and decree in S.C.S. No. 191/83 is also not tenable and deserves to be dismissed.” 6. The Appellate Court then formulated Point No.1 based on the objection, which reads as follows:- “1. Whether Reg. Civil Appeal No.260/92 deserves to be dismissed on account of non filing of decrees appealed against? 7. Learned Advocate for the Appellants herein placed reliance in the Trial Court on the Judgment of Hon'ble Supreme Court in case of Jagat Dhish Bhargava Vs. Jawahar Lal Bhargava & ors. [AIR 1961 SC 832]. Reliance is placed in specific on part of the observations from the said Judgment appearing in Paragraph No.14, 3 which reads as follows:- “14. ..... 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. ....” 8. After discussing all questions involved, the First Appellate Court declined to accept present appellants' contention, and held that the appeal was competent. On merits, the District Court has remanded the suits for hearing and disposal according to law. 9. This order of remand is challenged in this Court in present Appeal from Order. 10. Appellants' grievance is the same one argued before the First Appellate Court and quoted above as para no. 21 of the Judgment of the Appellate Court. 11. Learned Advocate for the appellants has urged that the learned Judge has misread the Judgment of Hon'ble Supreme Court in case of Jagat Dhish Vs. Jawahar Lal [cited supra]. 12. It is seen from paragraph no. 26 of the Judgment that the First Appellate Court has read para 14 in its totality. The Appellants, however, want to read only a few lines from 4 para 14, which suit the cause of the appellants, i.e., lines which are quoted in paragraph no.7 above. 13. The Appellants do not dispute the fact that the appeals were originally filed in the High Court and those were transferred to District Court, and had passed through the stage of admission and until actual final hearing, any objection as to failure to file certified copy was not raised. 14. In Appeal Memo on record of District Court, what is shown in the opening paragraph and in the prayers is that the appeal is being preferred against Judgment and decrees dated 23rd April, 1992 passed by Sixth Joint Civil Judge [Senior Division] in Regular Civil Suit Nos. 1553, 1554 and 1555 all of 1985. 15. This Court has already noted that it is very clearly seen from body of Memo of Appeal and prayers as made in Regular Civil Appeal No. 260 of 1992 that what is challenged is the decree and not the judgment. 16. Had the deficiency about the decree been brought to the notice by raising an objection before registration of appeal, as observed in case of Jagat Dhish Vs. Jawahar Lal, the objection could have been very well removed in time. 5 17. It is not a case where present respondents [appellants in District Court], by any manner suggested that they are not challenging the decree. 18. In this background, the case on hand is one as already dealt with by Hon'ble Supreme Court in para 14 in Jagat Dhish Vs. Jawahar Lal, where Hon'ble Supreme Court observed as follows:- “14. .....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 O. 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 O. 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 scrutinized 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 6 the trial Court and its own office, and so it has given time to the respondents to apply for a certified copy of the decree and then proceed with the appeal.” 19. Since the Appellate Court has very well adverted to, and considered this aspect, it would be uncharitable to hold that the Appellate Court did not apply mind properly to the Judgment of Hon'ble Supreme Court. 20. Learned Advocate Mr. Mohta then relied upon reported Judgment of High Court of Himachal Pradesh in case of Smt. Satya Devi Vs. Pratap Singh & ors. [AIR 2006 HP 75]. 21. In the light of the direct Judgment which is available on the issue and relied upon, it is not necessary to deal with the effects of second judgment relied upon by learned Advocate Mr. Mohta. 22. In the circumstances, appeal does not merit interference. It is, therefore, dismissed. Judge |Hedau|