Mahajan, J. - (1.) THIS second appeal must fail on the ground of limitation. The reason, why it fails, may now be stated ;
(2.) THE Plaintiff suit was decreed partially by the trial Court on the 27th of April, 1962. Both the parties appealed to the District Judge, Amritsar and the learned Additional District Judge rejected both the appeal. Smt. Dipo who was dissatisfied with the ultimate decision of the learned Additional District Judge moved an application under order 44 Rule 1, Code of Civil Procedure for leave to appeal in forma pauperis to this Court This application was moved on the 23rd of January, 1963(sic) Along with the memorandum of appeal accompanying the application , under Order 44, Rule 1, Code of Civil Procedure Code, the judgment of the trial Court was not filed ; and for that reason ; the office returned the application. This application was refiled on the 5th of April, 1963, long after the period of limitation had expired. In the meantime, the applicant had moved an application for the copy of the trial Courts judgment on the 9th of January, 1963. This copy was prepared and attested on the 15th of February, 1963 And if soon after the copy had been attached to the memorandum of appeal filed with the application under Order 44, Rule 1, Code of Civil Procedure Code, possibly there would be justification to treat the application within limitation. But unfortunately, this was not done. On the other hand, the copy was filed on the 5th of April, 1963. There is no justifiable cause for condoning the delay between the 15th of February and the 15th of April, 1963 - Therefore, no case has beer made out for the exercise of my discretion under Section 5 of the Limitation Act. So far as the legal position is concerned, it admits of no doubt whatever. Under Order 44, Rule 1, Code of Civil Procedure Code, the application to appeal in forma pauperis has to be accompanied by a memorandum of appeal under Order 41, Rule 1, read with the provisions to Order 42, Rule 1. In the state of Punjab, a memorandum of appeal has to be accompanied by a copy of the decree and judgment appealed against as well as a copy of the trial Court's judgment. It was held by Madras High Court in Rajammal v. C.S. Parthasarathi Ayyengar,, A.I.R 1936 Mad. 600 as follows: - The proviso to 0. 44 R.I. Civil P.C. makes it incumbent on the applicant, when he applies for leave to appeal as a pauper, to show to the Court that prima facie the decree appealed from was contrary to law, which can only be done by a reference to the decree and judgment on which it is founded. Though R.I.O. 44, Civil P.C. does not make its provisions subject to O.41, Rule 1, where the copies of decree and judgment appealed from are not filed along with the application for leave to appeal as a pauper, there will be no valid application for leave to appear before the Court. Therefore, it is necessary that the provisions of Order 41, Rule 1, should be complied with while appealing as a pauper. In this case, the appeal was dismissed because the memorandum of appeal was not accompanied by one of the relevant documents required by Order 41, Rule 1, Code of Civil Procedure Code. The same view has been taken by the Allahabad High Court in Ram Charan v. Shri Radha Kishanji, : A.I.R. 1951 All. 242 and the Patna High Court in Gopi Nath Pandey v. Bhukhan,, A.I.R. 1855 Pat. 301 No authority taking the country view has been brought to my notice. I am, therefore clearly of the view that neither on principle nor on authority this appeal can be said to be within limitation.
(3.) MR . D.N. Aggarwal, learned Counsel for the Appellant, then contended that I should given him time to make good the deficiency in Court -fee. That question could only arise if there was a legal and valid application under Order 44. Rule 1. But there is no such application. The question of exercising of the discretion under Section 149, Code of Civil Procedure Code, to make good the Court -fee does not arise. Thus this contention must also fail.;