Posted On by &filed under High Court, Kerala High Court.


Kerala High Court
K.V. Damodaran vs P.K. Muraleekrishnan And Anr., … on 9 October, 2000
Equivalent citations: AIR 2001 Ker 3
Author: Balasubramanyan
Bench: P Balasubramanyan, T H Pillai


JUDGMENT

Balasubramanyan, J.

1. These appeals are filed under Section 5 of the Kerala High Court Act, 1958. They seek to challenge the decisions of a learned single Judge in A.S. Nos. 338 and 376 of 1999, both filed under Section 96 of the Code of Civil Procedure. Along with these appeals, the appellants have not produced the certified copy of the decree of the learned single Judge in the respective appeals. The Registry therefore returned the appeals as defective inter alia on the ground that the appeals have to be accompanied by the certified copies of the decrees in the first appeal disposed of by a learned single Judge. The appeals were represented by counsel for the appellants along with petitions for time for production of the certified copies of the decrees. In those petitions, what was stated was that applications for copies made, were pending and the certified copies of the decrees have not been issued so far. Hence, in the interests of justice, it was just and necessary to grant time for production of the decrees in the first appeals. The Registry having felt a doubt about the entertainability of the appeal without production of the certified copies of the decrees in the first appeals has sent up these appeals for orders without numbering them. The question is whether in an appeal filed before this Court under Section 5(ii) of the Kerala High Court Act, the production of the decree is necessary and if it is necessary, in the absence of any extraordinary circumstance, the Court can dispense with the production of the decree or grant time for the production of the decree.

2. Section 5 of the High Court Act in so far as it is relevant, provides that an appeal shall lie to a Bench of two Judges from a judgment of a single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of original jurisdiction by a subordinate Court. Order XLII, A of the Code of Civil Procedure provides that the Rules of Order XLI and Order XLIA shall apply so far as may be, to appeals from decrees and orders of a Single Judge to a Division Bench. Thus normally, Order XLI applies to such an appeal and Rule 1 of Order XLI provides that every memorandum of appeal shall be accompanied by a copy of the decree appealed from, and unless the appellate Court dispensed with it, the copy of the judgment on which the decree is founded. Thus prima facie an appeal under Section 5(ii) of the High Court Act has to comply with the requirements of Order XLI, Rule 1 of the Code of Civil Procedure. If that is the position, the memorandum of appeal has to be accompanied by a certified copy of the decree appealed from which in these cases would be the decrees in A.S. Nos. 338 and 376 of 1999 disposed of by the learned Single Judge.

3. What is argued on behalf of the appellants is that Section 5(ii) of the High Court Act speaks of an appeal lying to a Bench of two Judges from the judgment of a single Judge in exercise of appellate jurisdiction and therefore, what is relevant is only the production of the judgment and there is no need to produce a copy of the decree. Counsel further contended that an appeal under Section 5 of High court Act was not an appeal under the Code of Civil Procedure and consequently, compliance with Order XLI, Rule 1 of the Code of Civil Procedure cannot be insisted upon.

4. In Venugopalan v. Malappuram Dist. Co-operative M. S. Union Ltd., (1995) 2 Ker LT 200 ; (AIR 1995 Kerala 369) (FB) a Full Bench of this Court held that an appeal under Section 5(ii) of the High Court Act before a Bench of two Judges from the judgment of a single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of original jurisdiction by a subordinate Court, was not fettered in any manner as provided under Section 100 of the Code of Civil Procedure. It is therefore clear that the right of appeal under Section 5(ii) of the Act is independent of the right conferred by Section 100 of the Code of Civil Procedure. That is different from saying that the procedure prescribed by the Code of Civil Procedure cannot at all apply to an appeal filed under Section 5(ii) of the High Court Act. The right as such is substantive, but the manner of exercising that right is procedural. The High Court Act or the Rules of the High Court of Kerala does not provide any specific procedure for the filing of an appeal under Section 5(it) of the Act. Rule 43 of the Rules of the High Court of Kerala dealt with appeals under Section 5(iii) of the Kerala High Court Act as it existed. That Rule makes Order XLI and XLI A of the Code applicable to those appeals. But that rule has now become redundant in view of Section 100A of the Code of Civil Procedure and the deletion of Section 5(iii) of the High Court Act by Act 20 of 1987. That rule as such has no application to appeals under Section 5(ii) of the High Court Act. But, Order XLII A of the Code of Civil Procedure inserted in Kerala with effect from 9-6- 1959, governs such appeals. There is nothing inconsistent with it in the Code of Civil Procedure as amended by Amendment Act 104 of 1976 which would enable us to overlook Order XLIIA of the Code as available in Kerala. Therefore, when an appeal is filed from a decree passed in an appeal under Section 96 of the Code of Civil Procedure, that memorandum of appeal has necessarily to be accompanied by a certified copy of the decree appealed against. If Order XLI, Rule 1 of Code of Civil Procedure applies, there cannot be any doubt in the light of the decisions of the Supreme Court in Jagat Dhish Bhargava v. Jawaharlal Bhargava, AIR 1961 SC 832 and Phoolchand v. Gopal Lal, AIR 1967 SC 1470 that every memorandum of appeal has to be accompanied by a copy of the decree appealed from and that requirement of Order XLI, Rule 1 of the Code of Civil Procedure is mandatory, though there may be circumstances where an appeal may be competent even though a copy of the decree may not have been filed along with memorandum of appeal. But those are exceptional cases. In that view, we come to the conclusion that the production of a copy of the decree in the first appeal is mandatory while filing an appeal under Section 5(ii) of the High Court Act.

5. In the case on hand, we are not called upon to consider whether any exceptional circumstances as expounded by the Supreme Court exists which would compel us to depart from the insistence on the mandatory requirement in terms of Order XLI, Rule 1 of the Code of Civil Procedure. What has been stated in the two petitions filed, for time to produce the certified copies of the decrees, is only that the applications for copy made are still pending. That by itself does not make out an exceptional circumstance. We cannot therefore now find that any exceptional circumstance has been made out for dispensing with the production of the certified copies of the decrees in the appeals along with the memorandum of appeals in these cases.

6. We therefore uphold the objection raised by the Registry. The appeals can be numbered and sent up for admission only on production of the certified copies of the decrees in A.S. Nos. 338 and 376 of 1999.


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