Bodh Narain Mahto vs Mahabir Pd. and Others

Agarwala, J.—In one of the two analogous appeals between the same parties arising out of the same judgment the appellant filed a copy of the judgment and prayed that copy of the judgment in the other appeal should be dispensed with. The Registrar has taken the view that as the appeal is from an order u/s 47, Civil P.C., which has the force of a decree the appellant is bound to file a copy of the order as required by Rule 1 of Order 41 of the Code. That rule requires that the memorandum of appeal shall be accompanied by a copy of this decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded. In this Court no formal decree is prepared in a case u/s 47 of the Code.

There seems to be no reason why the appellant should be obliged to file a copy of the judgment which is already on the record in the analogous appeal and which is available for use in both the appeals as Rule 1 does not expressly require that an order which has the force of a decree but which is not a decree shall be filed with the memorandum.