Appeal to the Division Bench on the Original Side of the Court as provided in Chapter XXXI of the Original Side Rule. Rule 2 provides:
“Form of Memorandum.
2. Every memorandum of appeal from the Original Side shall be in Form No.1 and shall be drawn up in the manner prescribed by O. XLI, R.1 of the Code, and shall be presented to the Registrar, accompanied by a copy of the Decree of Order appealed from”. Rules 3, 4, 5 and 29(a) and (b) provide:
“3. The Registrar shall accept and file a Memorandum of Appeal, if it is duly stamped and R.2 has been complied with and if it appears to him to have been presented within the time allowed by the law of limitation. But such acceptance and filing shall not be a bar to any objection that may be taken in respect of any of such matters at the hearing of the appeal.”
“4. When the Memorandum of Appeal is not accepted by the Registrar he shall endorse thereon the date of its presentation and return it to the party or attorney by whom it was tendered. Such Memorandum of Appeal may then be presented to the Appellate Court for admission.”
“5. Application for the admission of a Memorandum of Appeal rejected by the Registrar shall be made to the Appellate Court the earliest opportunity. The Appellate Court on hearing such application may admit or reject the same with or without notice to the respondent. Where it is admitted without notice to the respondent such admission shall not be a bar to any objection that may be taken at the hearing of the appeal in respect of its admissibility.”
“29(a). The Appellate Court, or, if such courts be not sitting, a judge sitting on the original side of the High Court may, upon application and upon sufficient cause being shown, enlarge the time prescribed by these rules for doing any act to be done under these provisions. An application for enlargement of time must ordinarily be made before the expiration of the prescribed time and must be supported by an affidavit, and also by a certificate of the Registrar, showing the dates on which any acts prescribed by these rules were done.”
(b) The Appellate Court, or the Judge as aforesaid may also upon application and upon sufficient grounds verified by affidavit, exempt the parties or any of them from the operation of the whole or any part of these rules and may make such special order as shall appear desirable with regard to any matter with which these rules are concerned.”
Vis-a-vis these rules we have now to consider the provisions of O.XLI of the CPC for filing of appeals from original decrees. The relevant part of R.1(1) is set out as follows:–
“1(1). Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the court or to such officer as it appoints in this behalf. The memorandum 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.”
14. The Division Bench of this (Court) in Smt. Annada Sundari Saha Vs. Monoharan Saha and Others, had held that (at p.370 of AIR):
“There is a long standing practice of this court to grant such exemption but to a limited extent. It is granted conditionally upon the appellant’s undertaking to court, inter alia, to file the certified copy of the decree or order appealed from, within the period of limitation. That time old practice has the force of law under Chapter 40, Rule 3 of the Original Side Rules as set out above. In other words, the appellant is allowed to file the memorandum of appeal without the certified copy of the decree or order appealed from but if ultimately it is found at the hearing of the appeal or earlier that he has allowed the time to expire and has failed to file such certified copy of the decree or order appealed from within the period of limitation, after excluding the time required by the department concerned to make it ready for filing thereof within the meaning of S. 12(2) of the Limitation Act, 1963, then the appeal would be incompetent. Under such circumstances, the question of limitation will arise, because it was allowed to be filed subject to the question of limitation.”
