MUHAMMAD ANWAR ETC. vs Mst. SOMA

' The respondent filed a suit for possession of the land in dispute, through pre-emption, which was dismissed by the learned trial Court on 20th October, 1979 on the ground that the petitioners were minors but were not sued through their guardian-ad-litem and that she failed to apply for appointment of such a guardian during the period of limitation for the pre-emption suit. Against the judgment and decree of the learned trial Court, the respondent preferred an appeal under section 96, C. P. C. Copy of the decree-sheet as required by Order XLI, rule 1, C. P. C. Was, however, not appended with memorandum of appeal. The petitioners objected to the maintainability of the appeal but the objection was turned down by the learned Additional District Judge, who on perusal of the record found that the decree was not drawn by the learned trial Court. He was, thus of the view that the respondent could get the decree-sheet prepared and the period of limitation for appeal would start from the date of such preparation and that on its submission to the Court the appeal would become maintainable. On these premises, the learned Additional District Judge concluded that the preparation of the decree-sheet would be merely an exercise in futility.

Accordingly, by his judgment dated 28th May, 1980, he accepted the appeal, allowed the respondent's application for appointment of guardian and sent back the case to the learned trial Court, for its hearing on merits.

' The vendees-petitioners have now come to this Court on its revisional side.

2. The respondent has not entered appearance despite service. She shall be therefore, proceeded against ex parte.

3. I have heard the petitioners' learned counsel. His only argument resting on Order XLI, rule 1, C. P. C.

Was that as the corundum of appeal was not accompanied by a copy of the decree-sheet, the appeal could not be entertained.

4. There is lot of force in the argument of the learned counsel. Upon the language of Order XLI, rule 1.

C. P. C. The learned lower appellate Court could not dispense with the filing of the copy of the decree -A As is borne out from the judgment, under revision, the learned Additional District Judge was also not unaware of this I- ,a1 position. The reason advanced by him for entertaining the appeal, without copy of the decree, runs counter to the provisions of Order XLI, rule I. C. P. C. He, thus, fell in error in holding that the appeal was maintainable. Be that as it may, hearing of the appeal by the learned Additional District Judge without annexation of the copy of the decree with the memorandum of appeal was without any legal sanction. He could have allowed time to the respondent to get the decree-sheet prepared and move the learned trial Court in the matter. Any how, since the memorandum of appeal was not accompanied by a copy of the decree, it cannot be deemed to have been properly instituted.

5. This Revision is, therefore, accepted, the judgment and decree under appeal set aside, with the result that the judgment and decree of the trial Court stand restored. If the decree-sheet has not been drawn it shall be open to the respondent to move the trial Court in the matter, in accordance with law. In the circumstances of the case, the parties are left to bear their own costs.