JAGAT DRISH BHARGAVA versus JAWAHAR LAL BHARGAVA & OTHERS

Citation: [1961] 2 S.C.R. 918 · Decided: 05-12-1960 · Supreme Court of India · Bench: P.B. GAJENDRAGADKAR · Disposal: Dismissed
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Judgment (excerpt)

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 appel-
lant served a notice on the respondents that he would raise a 
preliminary objection at the hearing that the appeal was incom-
petent 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 manifest-
ly 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 con-
tributed 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 subse-
r960 
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 certi-
Jawahar 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 questio
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