SHAKUNTALA DEVI JAIN versus KUNTAL KUMARI & ORS.

Citation: [1969] 1 S.C.R. 1006 · Decided: 05-09-1968 · Supreme Court of India · Bench: S.M. SIKRI · Disposal: Appeal(s) allowed

Cited by 5 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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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 whe-
ther 
competent-Admission of appeal 
by 
High 
Court 
whether 
implies that High 
Court 
dispensed 
with 
filing of certified copy-
Limitation 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 
G 
H 
. , 
... 
• 
SHAKUNTALA v. KUNTAL KUMAR! (Bachawat, /.) 
1007 
A 
In the present case therefore the memorandum of appeal not being 
B 
c 
D 
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 

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