Peethambaran vs Munsiff Court

K. Padmanabhan Nair, J.—This Original Petition was disposed of by me on 5th November, 2002 when it came up for admission by giving a direction to the Munsiff, Kayamkulam to receive the appeal filed by the petitioner against the judgment and decree passed in O.S. No. 655 of 1998 on the file of that court. After pronouncement of this judgment, I have received a copy of the judgment passed by the Supreme Court in Salem Advocate Bar Association v. Union of India (WP (C) Nos. 496 of 2002 and connected case (2002 (3) KLT 920 SC) in which the Apex Court has considered the effect of Rule 9 of Order XLI of the Code of Civil Procedure. In view of the principle laid down by the Supreme Court in Salem Advocate Bar Association''s case (supra) the judgment passed in the O.P. was suo motu reviewed and the matter was again heard.

The petitioner in this Original Petition is the defendant in O.P. No. 655 of 1998 on the file of the Munsiff Court, Kayamkulam. The suit was decreed against him. He preferred an appeal challenging the judgment and decree and presented the same before the Court which passed the decree. According to the petitioner, in view of the provisions contained in Order XLI Rule 9 of C.P.C. the appeal has to be presented before the Court which passed the decree. The grievance of the petitioner is that in spite of the specific provisions contained in Order XLI Rule 9 CPC, the learned Munsiff is refusing to receive the appeal. Hence the Original Petition was filed for a direction to the Munsiff to receive the appeal.

Even though Order XLI Rule 9 CPC deals with registry of memorandum of appeal in the court which passed the decree, the provisions contained in Order XLI Rule 1 are not amended. Order XLI Rule 1 enjoins that appeals are to be filed before the Appellate Court. In Salem Advocate Bar Association''s case (supra) the Apex Court after considering the effect of the amended Rule 9 of Order XLI CPC held as follows:-

"Lastly Mr. Vaidyanathan drew our attention to Rule 9 which was inserted in Order XLI which reads as follows:- .

"9. Registry of memorandum of appeal:-

(1) The Court from whose decree an appeal lies shall entertain the memorandum of appeal and shall endorse thereon the date of presentation and shall register the appeal in a book of appeal kept for that purpose.

(2) Such book shall be called the register of appeal".

The apprehension was that this rule requires the appeal to be filed in the Court from whose decree the appeal is sought to be filed. In our opinion, this is not so. The appeal is to be filed under Order 41 Rule 1 in the Court in which it is maintainable. All that Order 41 Rule 9 requires is that a copy of memorandum of appeal which has been filed in the appellate court should also be presented before the court against whose decree the appeal has been filed and endorsement thereof shall be made by the decreeing court in a book called the Register of Appeals. Perhaps, the intention of the Legislature was that the Court against whose decree an appeal has been filed should be made aware of the factum of the filing of the appeal which may or may not be relevant at a future date. Merely because a memorandum of appeal is not filed under Order 41, Rule 9 will not, to our mind, make the appeal filed in the Appellate Court as a defective one".

In view of the decision of the Supreme Court in the above said case the position is very clear. The memorandum of appeal accompanied by the copy of the judgment has to be filed before the Appellate Court. In view of the provisions contained in Order XLI Rule 9 CPC the appellant has to file a copy of the memorandum of appeal before the Court which passed the decree also. In view of the settled position, the prayer in this O.P. cannot be allowed and the O.P. is only to be dismissed. If the petitioner has already filed the appeal and presented the same before the Court which passed the decree his remedy is to get back the appeal memorandum, judgment and decree and file the same before the Appellate Court. If the period prescribed for filing the appeal is already over, the fact that he presented the appeal before the Court which passed the decree has to be taken into account as a valid ground for condoning the delay if any in filing the appeal.

In the result, the Original Petition is dismissed. If the petitioner had already presented the appeal before the Court which passed the decree, he is given two weeks'' time to get back the appeal memorandum and connected records from the Munsiff Court, Kayamkulam and present the same before the Appellate Court as provided under Order XLI Rule 1 CPC. If the period of filing the appeal is already over and the appellant files a petition for condoning the delay, the lower Appellate Court shall take into account the fact that the appeal was presented before the court which passed the decree and treat the same as a valid ground to condone the delay, if any, in filing the appeal.