N.L. Ganguly, J. - (1.) THIS revision is directed against the order dated 16 -9 -1991 passed by the court below. Initially, an appeal was filed by the Respondents, but certified copy of the decree was not filed. An application was moved for accepting the appeal without the decree. It was stated that the decree was not obtained till that date. The appeal was filed on 7 -5 -1991. A month's time was granted to file certified copy of the decree. Inspite of the fact that a month had been over, neither any application for extending the time was moved and time granted, nor the certified copy of the decree itself was filed in the court below. On behalf of the applicant Shakuntala Devi v. Kuntal Kumari : AIR 1969 SC 575 and Ors. cases were cited before the court below. It was pointed out that it was mandatory that the certified copy of the decree should accompany along with the memo of appeal in the court. The case cited (supra) no doubt says that the filing of the decree with the memo of appeal is mandatory. An amendment in the Code of Civil Procedure was made by the Amendment Act, 1976. Thereafter by the Code of Civil Procedure (Amendment) Act 1976, Order 41 Rule 1 was also amended for the State of U.P. The provisions of Order 41 Rule 1 Code of Civil Procedure was added w.e.f. 1 -2 -77. The provisions of the amended proviso is quoted as under: 1. Form of appeal. What to accompany memorandum. - -(1) Every appeal shall be preferred in the form of a memorandum signed by the Appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. 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 it is founded. Provided that where two or more suits have been tried together and a common judgment has been delivered therefore and two or more appeals are filed against any decree covered by that judgment, whether by the same Appellant or by different Appellants, the Appellate Court may dispense with the filing of more than one copy of the judgment. After this amendment, it is amply clear that time may be granted for filing of the decree also, provided the counsel for the Appellant certifies that the copy has been applied for and has not been issued. In view of the U. P Amendment, the judgment relied by the learned Counsel reported in : AIR 1969 SC 575 (supra) is not applicable as in the case before the Supreme Court cited there was no such provision as introduced by the aforesaid Amendment Act.
(2.) LEARNED Counsel for the Appellant strenuously urged that in absence of an application for extending time, the Court has no jurisdiction to extend time for accepting the certified copy of the decree. The court below observed that he was not inclined to dismiss the appeal on technical ground. After hearing the learned Counsel for the applicant and perusing the case law and the aforesaid Order 41 Rule 1 as amended, I am of the opinion that there is no error in the order of the court below. The Court below rightly observed that he was not of the view to dismiss the appeal on mere technicality. The justice has to be done not on mere technicality. The delay in filing of the certified copy of the decree was not on account of any latches or negligence on the part of the applicant, but it has been clearly stated that it was for the fault of the advocate. For the fault of the advocate, the client is not to be necessarily punished. The delay, if any, in filing of the certified copy of the decree is short and that may be condoned. Merely on technicality, the Appellant cannot be made to suffer. I am of the opinion that the revision under Section 115 Code of Civil Procedure is to be dismissed summarily.
(3.) DISMISSED summarily.;