r^ «s;sia»1 ^\ .. "'"'^^ HiaH COURT Or CHHATTISOARH AT BILASPim Civtl Revislon Ko. 77 Of 2009 aT AooUcaat Natotiff IVon-mmUcaxite ResDondente Veffms 1) 2) Thakur Jeewraldaaa Six^h, @/o late Stei Maasia^i, aged about 76 years, Occupation Legal ProfessioBy Resideat of Bramhanpara^ R^xiaadgaon (C.G,). Rajendra Pcasad Yadav, S/o Murlidtl^ Yadav, Ex. BNC JMHUs Woifcer, Resident of Saxyey - Nag^r^ Laldioli, Rajnaiadgacm, District R^aaxidgacm (00.). eMadaii Slirivastava, S/o Not IOMWXI, a^d about 86 yeara, resideat of beldnd Civil Coiirt Rajnaadgaon, Distorict Rajnandgaon (C,G.). CIVIL RBVI8ION UWDBR 8BCTION 115 OP THB CODB OP €T(^L PROCBDVRB. (8B !Hoa»bteRlr. T.P.SIiaraaa, J.) F^esent; - Mr. H.B> Agrawal, Sr. Advocate with M^. Mefera Jais1^, Advoc^te for the applicant/petitioner, None for the respondents. QRI^-PROBR (Passedon 19/10/2010) 1< By fhis civil revision petitioaer has chaMeiiged the legalily and propriety offhe judg^nent aad decrce dated 19/2/2009 pas»ed toy First Additional Distdct Judge, Rajnandgaon m Gwil Appeal No. 8- B/2008 whereby appeal filed on belialf of fhe petitloiier has beea dismissed as mcompeterkt uuider Oxder 41 Ririe l(3) of the dvt Procedure Codc, 1908 (in ahort 'the Code'). 2. Mr. H,B, Agrawal, Sr. Advo<ate with Ma. Meeia Jaiswal, Advocate for fhe appUcaiit/petitioner are heard, 3, Judgment and decxiee impi^iied penised, - .^- ^ 4, Learaed couiisel for fhje petltioner vehementily arg'ued (hat app^d fiBed on behajf of the petitioner was wifhia Moaitatiaa but by mistaken petitioner has not filed the copy of fhe jixdgmeat as required under Oxder 41 Ride 1(3) ofthe Qxiebut afterwaFds he has fiiled fhe copy offhe judgnaent along wifh appMcatfoa iinder Secrticm 151 of fhe Code for takiag copy ofjudgmeat oa rrocwl whiah was dismissed aad fiaaUy appeal was dismissed as tocompeteat aaaid ® it xciaiiitaiiiable, 5< Leamed counsel for fhe petitkmer fiirfbe^ siibxafts fhat defeMM we^ cuxable aiid Court below w<s^ under obligation to retura &e memo of appeal for filiTig afrcsh after complyixig fhe pxovisioas of ixnder Order 41 Rule 1(3) oftfae Code. 6. Learaed couasel for tbe petfcdoiier pte^ed reMaaic^ m< fhe matter of rcported in AIR 1961 SC 832 in which Supreme Court teas heid that ia case copy ofdecrce was not filed along wifli tihe m^aao ofappeal on account of fhe fact that deciee was not dxawix up by fhe C@urt below fhen fhe Uftgants are rcquired to pxotect agaiast llie defaialt committed or negligence showii by the Coiirt or Its oflicers te dischargmg its duty and Court was required to letiira fhe aprpsal for filiag afixish after removiag ffae default 7, In the present case suit for recovery ofmoneyeusa eouimel fees alaag with iiiterest was dismissed by fhe 1st Civit Judge Class-I, Rajnandgaon vide order dated 11/10/2007 in civil auit No. l- B/2007 same W£KS challexiged beforc fhe lower appeflate CSourt. Copy of tihie judgment of fhe trial Ccmrt was ffled aloag wifh mfemo of appeal ia accordao.ee witih xinder Order 41 Rule l(3) of fhe Ccde ...- J- ^ subsequeafly, copy ofjudgmeiit was filed aloag witihi oiae appMcatioa under Section 151 of the Code for taldag fhe same om recaid wNdh was disxaissed by tlue lower appel]ate Court. As perjudgmeEit oftiie lower appeUate Court petitioner has not filed aay a^Mcatfa» for condonation ofdelay ia JBlfcag sixch copy ofjudgmeat wliich was sivw^ guo-non for fiHng aloag wifli memo ofappesd, 8, In ffcie present case petitioner tiimaedf is aa adwwate smd was represented by fhe advocate aad swt was for recovery of Ra, ^O/- couasel fees along with iatereat of 18% rcasoas beat kaowii to tfae petitkmer^ petitioia^r has ifcot filed copy ofjudgmaGtt/ DefixiJtdfy, iGi absence ofcopy ofjudgment as rcquired uiider Oxder41 Rute l(^ of fhe Code appeal was wyt competeiit evexi after dtemisadl of appUcation under Section 151 of the Code petitioaer had not fited aay application fi»" coaadaaatioxi of xietoy ia filmg sradi copy crf judgment, ia these circiaiastance ao oplloii e^ccept to dismias fhe appeal was left to fhe lower ap^llate Court and Coiirt below hias dismtesed the appeal. Court below has iieitfaer exxxedcd ^arisdicfkm vested on it nor fafled to exexeise the juxisdiction vested oax ifc Court below has also not committed any iUegaBty ia dtomissiag ^e appeal thereforc, I do not fixad any scope of intetfefence m exensbae <rf revisioiaal jurtediction ia Judgmeait aiad dectiee ioipu^iied. Conseqiienfly, cMl xievision is liabte to be diBmia»ed aiid ia hereby disxmssed. No oxder as to costs. I T.P. Sharma i Judge ^