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Judgment
Ram Labhaya, J.—This appeal is directed against an order of Shri D.N. Hazarika, B.L. Additional District Judge, Upper Assam Districts, Silchar by which defendants'' appeal was dismissed as barred by time.
Two preliminary objections have been raised by the learned Counsel for the respondent. They are as follows:--(1) That the appeal is incompetent as it is not accompanied by a certified copy of the decree. (2) That the appeal has abated as one of the respondents died and her legal representatives have not been brought on the record.
It is common ground that the lower appellate Court failed to prepare a decree sheet as required by Section 33 of the Civil P.C. The provisions of Section 33 are mandatory. After the case has been heard the Court has to pronounce judgment and on such judgment a decree must follow. This obligation which was on the Court has not been discharged. It was open to the appellants to apply to the Court to prepare a decree.
But even that omission on their part may not result in the total loss of the right of appeal when the Court failed to comply with the requirements of the provision of law which makes it imperative for the Court to prepare the decree when the judgment is pronounced. The appellants may not be deprived of their right of appeal, by reason of an inadvertent failure on the part of the Court to perform its duty. This was the view which prevailed in '' Manohar Lal v. Nanakchand'' AIR 1919 Lah 53 : (AIR V 6) (A) and I am in respectful agreement with it.
In the circumstances the preliminary objections against the competency of the appeal may not prevail. As held in the Lahore case the appellants may be permitted to apply to the lower Court within two months from this date for the drawing up of formal decree & it is ordered accordingly. They shall attach to the memorandum of appeal a certified copy of the decree as soon as it is obtained. The record of the appellate Court shall be sent down for the preparation of the decree.
The second objection relating to the abatement of appeal can be taken up appropriately only after there is a properly constituted appeal. I give no finding on that objection at this stage.