Gurdev Singh, J. - (1.) THIS application under section 5 of the Limitation Act, read with section 151 of the Code of Civil Procedure arises out of the Regular Second Appeal No. 974 of 1968 brought by the Union of India against the appellate decree of the Second Additional District Judge, Karnal, dated the 18th of March 1968. The appeal was instituted on the 18th of June 1968, admittedly within the prescribed period of limitation, after allowing the period spent in obtaining certified copies of the judgment and decree appealed against. On the 13th of January 1969, when the appeal came up for hearing before me, Mr. Shambu Lal Puri, counsel for respondents other than the State of Punjab, took up the preliminary objection that the appeal was not properly presented and had to be dismissed without adjudication on merits, as the memorandum of appeal was not accompanied by a certified copy of the decree appealed against.
(2.) ON reference to the documents accompanying the memorandum of appeal, it was found that no copy, certified or uncertified, of the appellate decree accompanied the memorandum of appeal or had been furnished till the date of the hearing. Instead, what was filed with the memorandum of appeal was only a certified copy of the memorandum of costs prepared by the appellate Court. There was thus a clear breach of the mandatory provision contained in rule 1 of Order 41 of the Code of Civil Procedure, which requires that the memorandum of appeal "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." It has been held in Jagat Dhish Bhargava v. Jawahar Lal Bhargava, A.I.R 1961 S.C. 882, that Order 41 rule 1 is mandatory and, in the absence of certified copy of the decree, the filing of the appeal is incomplete, defective and incompetent. Faced with this situation, Mr. Chetan Dass Dewan, Advocate -General, Haryana, who represented the appellant, sought an adjournment to ascertain how and under what circumstances omission to file a certified copy of the decree -sheet along with the memorandum of appeal had occurred. He has now put in a certified copy of the decree appealed against and come up with the present application praying for extending the period of limitation under section 5 of the Limitation Act, 1963. The certified copy of the appellate decree, which he has placed on record, bears attestation of the Copying Department, dated the 30th of March 1968. This is also the date which the certified copy of the memorandum of costs, that was furnished with the memorandum of appeal, bears, and it cannot be disputed that both the certified copies, which in fact go to make out the decree of the appellate Court, were applied for and obtained by the appellant with in the period of limitation prescribed for filing the appeal The circumstances, under which the omission to furnish a certified copy of the decree -sheet (excluding the memorandum of costs, which is on a separate sheet of paper even in the decree as it exists on the record of the appellate Court) occurred, have been explained by Mr. Chetan Dass Dewan, under whose signatures the appeal was filed, in paragraphs 2 to 9 of his affidavit, dated the 16th of January 1969, which read thus - 2. That for the purpose of the said appeal an officer, namely Shri K.L. Gupta, of the office of the Military Estate, Ambala Circle, Ambala, brought with him a certified copy of the judgment and decree of the lower appellate Court, consisting of two sheets, as also a certified copy of the judgment of the Court of first instance. That I dictated the grounds of appeal and a note to be appended thereto in the following terms: Certified copies of the judgment and decree of the lower appellate Court and judgment of the first Court are attached.
(3.) THAT the grounds of appeal were typed out for submission in the Court and the same were put up before me for signatures on the 17th of June 1968.;