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1 - 6 of 6 (0.40 seconds)Jagat Dhish Bhargava vs Jawahar Lal Bhargava & Others on 5 December, 1960
Learned counsel for Phool Chand appellant has attacked the
findings of the High Court on all the three points. He
first contends that as a copy of the decree was not filed
along with the memorandum of appeal the appeal was
incompetent and relies in this connection on the decision of
this Court in Jagat Dhish Bhargava v. Jawahar Lal
Bhargava(1). In that case it was observed that every
memorandum of appeal has to be accompanied by a copy of the
decree appealed from, that this requirement of O. XLI r. 1
of the Code of Civil Procedure is mandatory and in the
absence of a copy of the decree the filing of the appeal
would be incomplete, defective and incompetent. That no
doubt is the correct position in law; but as was pointed out
in that case, there may be circumstances where an appeal may
be competent even though a copy of the decree may not have
been filed along with the memorandum of appeal. One such
exceptional case was dealt with in Jagat Dhish Bhargava's
case(1). We consider that the present case is another
exceptional case where in the absence of the copy of decree
the appeal could be maintained. We have already indicated
that the trial court did not frame a formal decree when it
varied the shares and naturally Gopal Lal was not in a
position to -file a copy of the decree when he presented the
memorandum of appeal to the High Court. Even when time was
granted by the High Court and Gopal Lal moved the trial
court for framing a formal decree, the trial court refused
to do so. In those circumstances it was impossible for
Gopal Lal to file a copy of the formal decree. It is
unfortunate that when the matter was brought to the know-
ledge of the High Court it did not order the trial court to
frame a formal decree; if it had done so, the appellant
could have obtained a copy of the formal decree and filed it
and the defect would have been cured. We do not think it
was necessary for Gopal La] to file a revision against the
order of the trial court refusing to frame a formal decree,
for Gopal Lal's appeal was pending in the High Court and the
High Court should and could have directed the trial court in
that appeal to frame a decree to enable Gopal Lal to file it
and cure the defect. In such circumstances we fail to see
what more Gopal Lal could have done in the matter of filing
a copy of the decree. The fact that the trial court refused
to frame a formal decree cannot in law deprive Gopal Lal of
his right to appeal. The defect in the filing of the appeal
in the circumstances was not due to any fault of Gopal Lal
and it cannot be held that he should be
(1) [1961] 2 S.C.R. 918.
Kasi Alias Alagappa Chettiar And Ors. vs Rm. A. Rm. V. Ramanathan Chettiar Alias ... on 17 December, 1948
The Madras, Bombay
and Calcutta High Courts seem to take the view that there
can be more than one preliminary decree : (see Kasi v. V.
Ramanathan Chettiar(5) Raja Peary Mohan v. Manohar(6), and
Parshuram v. Hirabai.
(Raja) Peary Mohan Mookerjee vs Manohar Mookerjee on 9 May, 1923
The Madras, Bombay
and Calcutta High Courts seem to take the view that there
can be more than one preliminary decree : (see Kasi v. V.
Ramanathan Chettiar(5) Raja Peary Mohan v. Manohar(6), and
Parshuram v. Hirabai.
Joti Parshad Lahri Mal And Anr. vs Ganeshi Lal Ram Narain And Anr. on 31 August, 1960
The Allahabad High Court in Bharat Indo v. Yakub Hassan ( 2
) the Oudh Chief Court in Kedemath v. Pattu Lal ( 3 ) , and
the Punjab High Court in Joti Parshad v. Ganeshi Lal ( 4 )
seem to take the view that there can be only one preliminary
decree and one final decree thereafter.
Bharat Indu And Ors. vs Yakub Hasan And Anr. on 10 January, 1913
The Allahabad High Court in Bharat Indo v. Yakub Hassan ( 2
) the Oudh Chief Court in Kedemath v. Pattu Lal ( 3 ) , and
the Punjab High Court in Joti Parshad v. Ganeshi Lal ( 4 )
seem to take the view that there can be only one preliminary
decree and one final decree thereafter.
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