- (1.) The mortgage in dispute was effect in the year 1863. The present appellant is one of the successors-in-interest of the original mortgagor and the present respondents are the successors-in-interest of the original mortgagees. The mortgagor made an application under the Redemption of Mortgages Act (Punjab Act, II of 1913) for redemption of the mortgage in theyer 1925 to the Collector. The Collector allowed the application and the mortgagor entered into possession of the mortgaged property. The mortgagees sued for possession under S. 12 of the Act and got a decree for possession and consequently got back the possession of the mortgaged property and since then are in possession as mortgagees. On the 5th of October, 1955, the present suit was filed by Prabh Dyal and Smt. Sampti, who are successors-in-interest of the mortgagees, for a declaration that they have become owners of the said land by reason of the expiry of the period of limitation fixed for redemption under Art. 148 of the Indian Limitation Act. This plea prevailed with both the Courts below with the result that the trial Court decreed the suit and an appeal against it was rejected by the learned Additional District Judge. The Custodian of Evacuee Property has come to this Court in second appeal.
(2.) Mr. S. L. Puri, learned counsel for the respondents, has raised a number of preliminary objection. His first objection is that the trial Court's judgment was not filed when the appeal was filed on the last day of limitation, i.e., the 22nd of October, 1958, and that the judgment of the trial Court was filed on the 30th of October, 1958. An application for obtaining its copy was made on the 29th of October, 1958. Mr. Chetan Dass, learned counsel for the appellant, admits that if the delay in filing the copy of the judgment of the trial Court is not condoned, the appeal would be barred by time. He, however, prays that the delay in filing the same may be condoned. In my view no case has been made out for the exercise of discretion under section 5 of the Limitation Act in his favour. There is no explanation why an application was not made to obtain the copy of the judgment within the period of limitation for filling an appeal. The application for the copy was filed after the period of limitation had expired. In such circumstances the time spent in obtaining the copy of the judgment of the trial Court cannot be said to be time requisite within the meaning of the expression in Section 12 of the Limitation Act. Moreover it was filed a week after the date of the expiry of the period of limitation including the time spent in obtaining the copy of the judgment of the lower appellate Court. Thus it cannot be said that it is a fit case where any indulgence can be shown to the appellant, either under section 5 of the Limitation Act or in the matter of dispensing with the filing of the copy of the trial Court's judgment. It was held in Molu Mal v. Sri Ram, AIR 1921 Lah 73 that "according to the rules of the Lahore High Court (the rules of this Court are the same) in the case of second appeals the memorandum of appeal shall, in addition to the copies specified in Order XLI, rule 1, be accompanied by a copy of the judgment of the Court of first instance. Where such copy is not produced within time, the presentation is not valid". To similar effect are the decisions Naul v. Mula AIR 1926 Lah 626 and Mathra v. Ram Singh, AIR 1927 Lah 747. I am in respectful agreement with the authorities mentioned above. On this short ground the appeal would fail.
(3.) The other preliminary objection of Mr. Puri is that the trial Court's judgment is not stamped and it cannot be deemed to have been filed at all. It cannot now be allowed to be stamped as the period of limitation for filing the appeal has expired. He relies on the observations of Scott-Smith J. in Shahadat v. Hukam Singh, AIR 1924 Lah 401 which are as under: "In my opinion it is the duty of the counsel when filing an appeal to see that all the documents requiring stamp are properly stamped. He cannot shelter himself behind his clerk, and if his clerk has been guilty of any carelessness, he is responsible for that. A valuable right has accrued to the respondent by reason of the period of limitation for filing the appeal having elapsed, and I do not think it would be fair to him to admit this appeal". To the same effect is the decision reported as Mohammad Fazal Elahi v. Ram Lal, AIR 1935 Lah 124 (2). I am in respectful agreement with the view expressed in the decisions referred to above and would accordingly uphold this preliminary objection as well.;