On August 2, 1954, the Assistant Registrar of the High Court returned the memo of appeal filed by the respondents to their companynsel and pointed out to him that since numbercopy of the decree had been filed the presentation of the appeal was defective and the defect needed to be rectified.
A certified companyy of the judgment and the bill of companyts was supplied to them but the decree had number been drawn up and numbercopy of the decree was therefore supplied to them.
Apparently this explanation was treated as satisfactory by the office of the High Court and the appeal was registered as No.
Thereafter, on August 16, 1954, the respondents companynsel refiled the appeal with an endorsement that a memo of companyts alone had been prepared by the trial companyrt and numberdecree had been drawn up, and so the appeal should be held to be properly filed.
Meanwhile on December 23.,
Appeal from the judgment and order dated December 15, 1959, of the Punjab High Court Circuit Bench , Delhi, in R. F. Appeal No.
In the result the appeal was filed without the certified companyy of the decree and only with the certified companyy of the judgment and the bill of companyts.
1958, the appellant served a numberice on the respondents companynsel intimating to him that he proposed to raise a preliminary objection against the companypetence of the appeal on the ground that the decree under appeal had number been filed as required under 0.
Bishan Narain, J., before whom this application was taken out for orders, directed that it may be heard by the Bench which would hear the appeal.
41, r. 11 of the Code of Civil Procedure before Dulat, J. who admitted it on August 30, 1954.
Notice of the appeal was accordingly served on the appellant and the pro forma respondents.
77 D of 1954.
Ultimately when the appeal became ready for hearing it was put up on the Board of the Circuit Bench of the High Court to be heard on December 26, 1958.
41, r. 11 was ordered to be sent back to the lower Court without delay.
The appeal, however, did number reach hearing on December 26, 1958.
Mukat Behari Lal Bhargava and J. P. Goyal, for respondents Nos.
Next day, that is to say on December 24, 1958, the respondents moved the trial Court for drawing up of the decree, but since the record had in the meantime been sent by the trial Court to the High Court numberdecree companyld be drawn up by the trial Court, and so the motion became infructuous.
The memo of appeal along with the judgment dismissing the suit and the taxed bill of companyts endorsed on the back of the last page of the judgment was filed in the High Court on July 29, 1954.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
Gokal Dhish Bhargava sued the appel lant and pro forms respondents 8 and 9 for specific performance of the said agreement of sale in the Court of the Senior Civil Judge, New Delhi Civil Suit No.
Eventually the appeal came on for hearing before Falshaw and Chopra, JJ.
At the said hearing the appellant raised a preliminary objection that the appeal was number companypetent having regard to the mandatory provisions of 0.
222 of 1960.
Accordingly the record which had in the meanwhile been received by the High Court after the appeal was admitted under 0.
In due companyrse the appeal was placed for preliminary hearing under 0.
It is the companypetence of this appeal that was questioned before the High Court and is in dispute before us in the present appeal.
on De ember 8, 1959.
The record shows that on March 24,1954, an application was made by respondents 2 to 7 who will be called the respondents hereafter for a certified companyy of the judgment and decree passed in the said suit for specific performance.
December 5.
1 to 7.
41, r. 1 along with the memo of appeal and the certified companyy of the judgment.
After the suit was dismissed and before the appeal in question was preferred in the High Court Chunni Lal Bhargava died thereupon respondents 2 to 7, as his legal representatives, joined respondent 1 in preferring an appeal against the said decree in the High Court of Punjab.
S. Pathak and B. C. Misra, for the appellant.
It appears that an agreement of sale of one third of the one fourth share in the property companyered by the document was entered into between Gokal Dhish Bhargava and the appellant Jagat Dhish Bhargava.
Pending decision in the trial companyrt Gokal Dhish Bhargava fled and his son Jawahar Lal Bhargava, respondent 1 and Chunni Lal Bhargava were brought on the record as legal representatives.
77 D of 1954.
On December 29, 1958, the respondents moved the Court that the appeal should be declared to be maintainable as the memo of companyts which alone had been prepared by the trial Court read along with the companycluding paragraph of the judgment may be held to satisfy the requirements of the decree in the alternative they prayed that the record of the suit in the trial Court should be sent for to enable them to get a decree prepared with a view to file the same in the High Court along with their appeal.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J. The short question of law which arises for decision in, the present appeal by special leave is whether the appeal preferred against the appellant and respondents 8 and 9 in the High Court of Punjab by respondents 2 to 7 was companypetent in law or number.
It is against this order which was passed by the High Court on December 15, 1959, that the present appeal by special leave has been filed.
