ORDER
Abdul Hadi, J.
1. This Civil Miscellaneous Petition is for dispensing with the production of the fair order dated 24.7.1990 in R.P.No.75 of 1989 in O.S. No.254 of 1987 on the file of Sub Court, Dharmapuri, which is sought to be revised in the above civil revision petition. The said C.R.P. is also posted before me along with the said civil miscellaneous petition, for admission. When the said Civil Miscellaneous Petition and the Civil Revision Petition originally came up before me for admission on 9.8.1990, I posed the question to the learned Counsel for the petitioner, whether the production of fair order could be dispensed with at all by the court and whether arid the civil Revision petition is validly presented without the production of certified copy of the fair order. Then I also expressed that the affidavit in support of the petition for dispensing with did not give necessary particulars. Then the learned Counsel for the petitioner took time for filing an additional affidavit. When the C.R.P. and C.M.P. were posted the next day on 10.8.1990, I posed the above said question of maintainability of the above said C.M.P., for dispensing with. Then after making some submissions, the learned Counsel said that he would file a copy of the fair order itself within a week. So, I gave him time for a week. But, on 27.8.1990 when the matter came up again, he did not file the copy of the fair order, but argued that the said CMP, was maintainable. Before I deal with the said argument of the learned councel, let me refer to the relevant rules. Order 4, Rule 21 of the Appellate Side Rules which were framed by this Court under Section 122 of the Code of Civil Procedure, 1908, provides as follows:
Civil revision petition under Section 115 of the Code or any other enactment shall be accompanied by (1) a certified copy of the decree or order which is to be revised, (2) a certified copy of the judgment, if any on which decree is based (3) (4) (5) (6) and (7)….
It is needless to observe that in the above context the expression ‘order’ in Clause (1) of the above Rule refers only to decretal order and would not include the above referred to “fair order” of the present case. The said fair order could only come under the expression “Judgment…on which decree is based” referred to in Clause (2) above. No doubt Order 41, Rule 1, C.P.C. relating to appeals from original decree, provides “every appeal shall be preferred in the form of a memorandum shall be ccompanied by a certified copy of the decree applied from and (Unless the Applellate court dispenses therewith) of the judgment on which it is founded. “So, in the case of the first appeals, the Appellate Court is given the power to dispense with the production of copy of the judgment, though not the power to dispense with the copy of the decree. But, as already seen under Rule 21 of Order 4 of Appellate Side Rules relating to Civil Revision Petitions, no such power to dispense with, has been given at all.
2. However, the learned Counsel contended that this Court could dispense with the production of the copy of the fair order even in the case of Civil Revision Petitions under its inherent powers referred to in Section 151, C.P.C. The learned Counsel, in this connection relied on Century Flour Mills v. S. Suppiah where it was held that injunction could be granted by court under Section 151, C.P.C. even in a case which does not come under Order 30, C.P.C. But the said decision, in my opinion, can have no application to the question at issue, In a case not covered by Order 39, C.P.C. the Court can no doubt grant injunction under Section 151, C.P.C. But, here, the Appellate Side Rules framed under C.P.C., specifically provides that the memorandum of Civil Revision Petition “shall” among other things, be accompanied by a certified copy of the judgment, if any, on which the decree is based, and so, the inherent power under Section 151, C.P.C., cannot be exercised inconsistent with or coming into conflict with the above said Rules. The Supreme Court in Ramchand & Sons Sugar Mills v. Kanhayalal Bhargava A.I.R. 1976 S.C. 1209 held that the inherent power “will not be exercised if it is exercised inconsistent with, or comes into conflict with, any of the power expressly or by necessary implication conferred by the other provisions of the Code”. In Manoharlal Chopra v. Rai Bahadur Rao Raja Seth Hiralal too it was held that inherent powers are not to be exercised when their exercise may be in conflict with what had been expressly provided in the code or against the intentions of the Legislature”.
Further in Arjun Singh v. Mohindra Kumar the Supreme Court also observed “it is common ground that the inherent power of the court cannot override the express provisions of the law”.
3. The Supreme Court further held in Shakuntala Devi v. Kuntal Kumari dealing with Order 41, Rule 1 C.P.C., that the Appellate Court has no power to dispense with the filing of the copy of the decree. As already pointed out, the said Order 41, Rule I does not provide for such dispensing with the filing of the copy of the decree, though it provides for dispensing with the filing of the copy of the judgment. It said once, along with the memorandum of Appeal, the appellant filed a plain copy of the order passed by the court below under Section 47, C.P.C. and on application, praying that the appeal be entertained without the certified copy of the order. In the said application, the appellant stated that she had applied for the certified copy of the order, but the same was not ready and that she would file the certified copy as soon as it would be ready and available to her. She also added that she wanted an urgent interim relief and would be seriously prejudiced if she wanted for a certified copy. In that context, the Supreme Court held that the memorandum of appeal was not validly presented. It further observed as follows:
…an order under Section 47 is a decree, and the High Court had no power to dispense with the filing of a copy of the decree….In some courts, the decision under Section 47 is required to be formally drawn up as a decree and in that case, the memorandum of appeal must be accompanied by a copy of the decree as well as the judgment. But in some other courts, no separate decree is drawn up embodying the adjudication under Section 47. In such a case the decision under Section 47 is the decree and also the judgment, and the filing of a certified copy of the decision is sufficient compliance with Order 41, Rule 1. As the decision is the decree, the appeal is incompetent unless the memorandum of Appeal is accompanied by a certified copy of the decision”.
4. The learned Counsel for the petitioner, also relied on Shanmugham Transports v. Kunju Chettiar . But the said decision does not help him at all. The said decision actually points out that in Balakrishna Industrial Works v. Venkatachari a Bench of this Court held that the provision in Order 41 Rule 1 C.P.C., that the appeal memorandum shall be accompanied by a certified copy of the decree appealed from “is imperative and the presentation of a Memorandum of Civil Miscellaneous Appeal without a copy of the decree order appealed against, is not a valid presentation and that rule does not empower an appellate court to dispense with the production of a copy of the decree with the Memorandum of Appeal. In referred to above, also observed as follows:
In the Supreme Court pointed out that Rule 1 of Order 41 C.P.C., empowers the appellate court to dispense with the filing of the judgment but there is no jurisdiction for the appellate court to dispence with the filing of the decree and there is no doubt that the requirement that the decree should be filed along with the memo of appeal is mandatory and in the absence of the decree the filing of appeal would be incomplete, defective and incompetent–
5. A circular bearing Judicial No.38/89 dated 31.10.1989 issued by this Court was also brought to my notice and it was contended that pursuant to the said circular such petition for dispensing with the production of the fair order in Civil Revision Petitions are maintainable. But after going through the circular, I find that the said circular does not at all say that such dispensing with the production of the fair order is allowed. But the purport of the said circular is only to direct both the main case and the petition for dispensing with, together. That apart, it is needless to say that such circulars cannot go against the specific provision made in the Rules made by the High Court under Section 122, C.P.C., or any other law.
6. Therefore, since with reference to Civil Revision Petition, there is no power to dispense with the production of the fair order (judgment) as per the above referred to Order 4, Rule 21 of the Appellate Side Rules, I hold that this Civil Miscellaneous Petition is not maintainable and hence I dismiss it.
7. Therefore, post the civil revision petition for admission as and when certified copy of the fair order is filed.
8. The learned Counsel for the petitioner submits that there is undue delay, in the court below, in granting the certified copy of the above fair order and that his party is very much affected in view of the delay. If that is so, it is very much deprecated and it is needless to say that whenever an aggrieved party wants urgently the certified copy of an order to prefer an appeal or revision and obtain stay of the order in question, the court which passes the order should make all endeavors to furnish the certified copy of the said order as expeditiously as possible.