I.D. Dua, J.
(1) This appeal has been referred to a Division Bench because the litigation between the parties has been pending since 1919 and the controversy being only in connection with partition, it was considered to promtoe the cause of justice, to conclude it by the decision of a Division Bench in the very first instance.
(2) The respondents have raised a prolimiary objection that the appeal is barred by time. The facts relevant for considering this objection may now be stated. The order appealed from was passed on 20th January, 1967 in execution proceedings relating to the execution of the partition decree and was made on the objection of Smt. Shakun tala Devi, appellant in this Court,. Her objections, needless to emphasise, were dismissed. The appeal was presented in this Court on 17th March, 1967 without a certified copy of the order sought to be appealed from. Along with the memorandum of appeal, an application was presented under Rule 2(b) of Chapter 1 A, Vol. V of the High Court Rules and orders and section 151 of the Code of Civil Procedure, in which it was expressly averred that the appellant had applied for a certified copy of the order dated 20th January, 1967 against which the appeal was directed. As the aopellant was seek ing urgent interim relief, she would be put to grave and irreparable injury in case she wilted to get a certified copy before approaching this Court. She furhter averred that she had filed a true copy of the impugned order mada after inspection of the records. It was in the circumstances prayed, to qutoe the exact words, 'that the appellants appeal be entertained without the certified copy of the order. She will however, file the same as soon as it is ready and made available to her.' At the buttom of this application, there is a ntoe by the Counsel that the date when application for certified copy had been made was rto known to him. This application was dated 17th March, 1967. The appeal came up for hearing before the Mtoion Bench which admitted the appeal and granted the interim stay as prayed with ntoice. This order was made on 20th March, 1967. The appeal was placed before me sitting in Single Bench on 24th October, 1967, on that dat I oberved that on 28th July, 1967, I had been infromed by Shri Daijit Singh that Mahabir Prashad Jain, one of the respondents had died. Shri Yogeshwer Dyal. counsel for Shri Sumat Prashad Jain respondent No. 4 son of the deceased, offered to respresent toher legal representatives of the deceased as well, Shri Daljit Singh the learned counsel for the appellant, however, said that an application for bringing on record the legal representatives of the deceased had acturlly been presented in this Court on 1st August, 1957, but, for certain reasons the office had nto been able to place it for preliminary hearing before a Mtoion Judge, I, however, allowed the application and directed the case to be set down following day. On 25th Ocomber, 1967the respondents raised an objection to the effect that the appellant had nto produced in this Court a certified-copy of the order challenged on appeal. The learned counsel for the appellant wanted time for substantiating that an application for a certified copy had actually been made as represented in tbi application dated 17th March, 1967 and for showing that the same had nto been produced in Court, for reasons justifying condensation of delay. The case was accordingly adjourned for one week on payment of costs. Later, it was referred to a larger Bench as already ntoiced. buth sides have filed affidavits in support of their various contentions and what seems to be almost indisputable may now be stated. On 16th February, 1967, an application was presented by the appellant through her husband Shri Ajit Pershad Jain for certified copies of the following three documents :-
(1)Copy of Court's order dated 10th June, 1966 directing that a gap of three feet be left in the wall; (2) Copy .of order dated 20th January, 1967 dismissing the objections of Shakuntla Devi, and (3) Copy of order dated 10th February, 1967 ordering the gap being filled.
Shri G. D. Jain, Advocate, This Hazari, Delhi and Shri Ajit Pershad were entered in column No 15 of the printed application form for the certified copies, as the persons through whom the application was filed and the copies were stated to be urgently required for the purpose of appeal etc. The amount was to be paid and the copies to be recceived by Shri Ajit Pershad. At the back of this application, all the three copies are reported to have been received by Shri Ajit Pershad Jain either on 8th March, 1967 or on 10th March, 1907. The position in this connection does nto seem to be very clear. A certified copy of this application has been produced before us by the respondents. On 2nd March, 1937, antoher application was made for a certified copy of the impugned order by the appellant and her son. This time again, it was stated to he required for the purpose of filing the appeal. This copy was also obtained on 10th March, 1967. On 20th March, 1967, a third application for a certified copy of the impugned order was made by the appellant herself. According to the respondents, on 30th March, 1967, this application was returned to the party presenting it, though, according to the appellant, this application was consigned to the record-room. On 27th October, 1967, it is common ground, antoher application was presented for a certified copy of the impugned order which was secured on 6th November, 1967 and filed in this Court on that very day. On behalf of the appellant, there is a categorical and persistent denial of any application for a certified copy of the impugned order having been made on 16th February, 1967. When confronted with the certified copy of the applcation dated 16th February, 1967, an ingenious, but wholly unconvincing, Explanationn has been offered on behalf of the appellant. It is suggested that the copy required, as mentioned at Seriall No 2 of the application dated 1th February, 1967, was a copy of the order dated 20th January, 1967 relating to the objections by Shakuntla Devi and was nto the order dismissing her objections, the counsel has emphasized the words 'relatingto'. In support of this suggestion, the appellant's counsel has produced before us, at the time of arguments, a certified copy of an order dated 20th Januaiy,1967 dismissing Sumat Prashad Jain's objections. It is no doubt true that this certified copy dues bear the endorsement that it was supplied as per application No. 17542 dated 16th February, 1967 and the above application for certified copies of the three orders mentioned therein also bears the same number, But there can be no doubt that tlii' orde' v^s ntoinclujedintheahovc-appiicati->nand quite obviously no copy of the order overruling Sumat Prashad's objections could possibly have been required by the apellant for the purpose of filing an appeal because that order was indisputably in her favor, I am nto unmindful of the fact that the copying agency in the lower Courts cannto be considered to be very efficient and it may even be described as positively inefficient; it may thus be that the copy produced by the appellant was wrongly supplied to her by that agency. But the appellant's suggestions that she had never applied for a copy of the impugned order on 16th February, 1967 is extremely difficult to believe. In this connection, it is ntoeworthy that the appellant had also applied to the Court below on 16th February, 1967 for staying execution proceedings and in paragraph 7 of her application, it was expressly averred that she had applied on urgent fee for certified copies of the various orders, which, on reading paragraphs I and 7 of that application together, would clearly seem to include the impugned order. Incidentally this application was supported by an affidavit sworn on 16th February, 1967 by the appellant herself before an oath Commissioner and she was identified by her by advocate Shri G. D. Jain. There is no cogen Explanationn forth coming for the above representation to the Court below, if in the application dated 16th February, 1967, a certified copy of the impugned order had nto been applied for on urgent fee. There is also one toher circumstance which has aroused our suspicion. In the certified copy of the order dated 20th January, 1967, overruling Sumat Prashad's objectoions to the appellant's locus stande to file the execution application, which copy is a typed document, there is an addition in pen and ink in the heading which reads thus:-
'(OBJECTIONis filed by Smt. Shakuntla Devi)'
but which is nto found in the original record. This insertion may well be reasonably suspected to have been made with some collateral purpose after the copy was typed out and may be it was tampered with after the objection of time-bar had been raised in this Court and after the appellant had planned to put forth the Explanationn, that the certified copy of the impugned order had nto been applied for on 16th Ferbaury 1967 and further that the item at Seriall No. 2 of that application related to the order overruling Sumat Prashad's Jain's objections. This clear-cut express plea was stated only in the rejoinder dated 20th December, 1967 and our attention has nto been drawn to anything, prior to that data, suggesting the appellant's present stand.
(3) Now, after the present objection was raised by the respondents and the case was adjourned, the appellant filed an application in this Court under Section 5. Limitation Act. This application does nto bear any date but the court-fee stamps bear the date 25th October, 1967. In this application, it was stated that the appellant, a pardanashin lady depended on her son, who had applied for a certified copy of the impugned order, on 2nd March, 1967. She, however, actually swore the affidavit before an Oath Commissioner in the High Court on 3rd November, 1967 and was identified by her counsel. This fact is of some importance because in her rejoinder dated 20th December, 1967, she had denied in paragraph 3 that she attends courts and offices, though care has been taken to have this rejoinder supported nto by the appellant's affidavit but by that of her husband Shri Ajit Pershad Jain, who purports to have filed the rejoinder on her behalf. In this application it is stated in paragraph 9 that the copy applied for on 2nd March, 1967 had been duly delivered but the same was misplaced by the appellant's Son Virendra Kumar. It is however, intresting to ntoe that her son Virendra Kumar in his affidavit affirmed on 3rd November, 1967 excluded this fact from those which he affirmed to bs true to his knowledge, It would nto be out of place at this stage to point out that in his affidavit dated 1st August, 1967 'filed in this Co
(4) Leaving this aspect alone for the present, and turning to the question of limitation, it is quite clear that the limitation for filing the present appeal would have expired on the expiry of 90 days from 20th January, 1967, which would bring the period to about 20th April, 1967. The copy now filed in this Court was applied for on 27th October, 1967 and secured on 6th November, 1967. Apparently, the record of the case had by that time arrived in this Court and the copy was obtained from the copying agency of this Court, this application for the copy having admittedly been made long after the expiry of limitation, there is no question of excluding these days To get the benefit of action 5, the proof of a sufficient cause is a condition precedent and it is only thereafter that the question of exercise of discretionary Jurisdiction arises. This aspect introduces the consideration of all the relevant facts including the diligence of the party or its bona fide. It is of course true that the expression sufficient cause' as used in section 5 is nto defined, but the broad test applied for making out a sufficient cause is whether the delay could have been avoided by the party invoking this Section, by the exercise of due care and attention. Subject to this test, the expies?ion 'sufficient cause' demands a liberal construction so as to advance the cause of substantial Justice, la toher words, no negligence, inaction or want of bona ftde should be imputable to the party seeking condensation under this Section. It is obvious, by looking at that facts of the present case, even as represented on behalf of the appellant, that when the copy applied for on behalf of the appellant.on 2nd March, 1967 was secured by the appellant's son, it should have been with due promptitude produced in this Court. Again, assumming it was misplaced, though the appellant's son does nto testify to this assertion, it is nto shown why an application was nto made immediately for securing antoher copy for producing it in this Court It may bs re nemberad in this connection that under s. 5,a party is bound to explain each individual day's delay,but even placing a liberal construction on s. 5 it is nto possible to find any cogent ground for holding that the production of certified copy on 6th November, 196/ which was applied for on 27th October, 1967 can justifiably controvert the plea of time bar by invoking the provisions of section 5
(5) The learned counsel for the appellant has then contended that there was no necessity for producing a certified copy of the impugned order because the Admitting Bench must be presumed to have dispensed with its production. This raises a question of some importance. Now the only provision on which reliance has been placed on behalf of the appellant in support of the exemption is Order 41, Rule 1(1), Code of Civil Procedure, which lays down that every appeal shall b', oreferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf, and that the memorandum shall be accompanied by a copy of the decree appealed from and (unless the appellate Court dispenses therewith) of the judgment on which it is founded. It is obvious that the decree appealed from can. nto be dispensed with and the Appellate Court is empowered only to dispenese with a copy of the judgment on which that decree is founded. The learned counsel has submitted that the impugned order is only a judgment and nto a decree. Let us now turn to the relevant definitions. Clauses (2) and (9) of section 2 define the words 'decree and judgment' in the following terms : -
'2.In this Act, unless there is anything repugnant in the subiect or context :- (2) 'decree' means the formal expression of an adjudication which so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the re)ection of a plaint and the 'determination of any question within section 47 or Section 144, but shall nto include- (a) any adjudication from which an appeal lies as appeal from an order, or (b) any order of dismissal for default. Explanationn :-A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adiudication completely disnosss of the suit. It may be partly preliminary and partly final :- (c) 'Judgment' means the statement given by the Judge of the grounds of a decree or order,'
The word 'order' as used in clause (r) means the formal expressing of any decision of a civil court which is nto a decree. Appea's are provided in the Code of Civil Procedure in Part Vii and under section 96, an appeal is Provided from every decree paused by a Court exercising original Jurisdiction. Orders which are nto decrees, are made at peal- able only if they fall within section 101 of the Code read with Ordar 43 of the Code. It is ntoeworthy that any order which is appealal ie as such is taken out of the purview of the word 'decree' by virlue of the defintion of the word as contained in section '. (2) (a). Now. the appellant has presented this appeal to this Court under scc ion 47 of the Code.- This quit.' clearly shows that the appellant has treated the impugned order to amount to a decree within the definition contained in Section 2(2), it being a determination of a question within section 47 of the Code. The argument addressed on behalf of the appellant, if accepted, would recoil on him in as much as it would render this aopeal wholly incompetent because if it does nto amount to a decree as defined in the Code, and it is of course nto suggested that it is an appealable order, then the present appeal would become incompetent on this shto ground. It is of course true that a determination cannto be buth a decree and an order, but there can certainly be no legal impediment in a document being buth an order which is to be deemed to be a decree within the meaning of section 47 section 2(2) of the Code and a judgment merely means that a Court may incorporate buth its formal expression of an adjudication conclusively determining the rights of the parties in any matter in controversy and also the statement and the ground thereof This seems to me to be the position in regard to an order which contains a determination of a question within section 47 of the Code and falls within the purview of section 2(2). The appellant's learned counsel has drawn our attention to the following observation in Gi, Rat/way Co. v. Radhakishan Jiakisan.
'THEmemorandum of appeal in each case stated that the copy of Judgment would be given afterwards and as the appeals were admitted on presentation, ntoice being ordered to issue to the respondents, it must be taken that the Court dispensed with the copy of Judgment. In any case, this is a matter between the Court and the appellant.'
From this observation, it is sought to be deduced as a matter of law that whenever an appeal is admitted by the Mtoion bench without a copy of the judgment being attached with the memorandum of appeal, its production must be assumed to have dispensed with, even though it is stated in the memorandum that the copy would be supplied after .yards. I must confess my inability to subscribe to such a broad proposition of law. Reference has also been made to a Bench decision of the Lahore High Court in Mt Fazl-un-Nissav. Didar Hussain. In that case, two preliminary issues had been struck as to the frame of the suit and the valuation and they were buth decided by the trial court. In the final judgment, no reference was made to those preliminary issues and the plaintiff's suit was decreed. On appeal by the defendant, the findings on the preliminary iss^ues were also attached, but no copy of the order disposing of those preliminary issues was attached with the memorandum of appeal. It was held by the Bench that it was absolutely essential to attach a copy of the earlier decision with the memorandum of appeal and it was added on the authority of the Nagpur decision in the case of Radhakrishan Jaitkrishan that the admission of a defective memorandum of appeal may operate as a decision and bar a later objection where the defect is quite obvious The appellant's learned counsel has drawn our attention to a later Full Bench decision of the Lahore High Court in Mt. Satan v Shabbal, which according to the counsel, overrules the decision in the case of Mt Fazl-un-Nissa. In my opinion, the Full Bench decision only overruled the earlier decision on the point of the necessity of attaching with the memorandum of appeal from the final decree a copy of the determination of the preliminary issues and the observation based on the authority of the decision of the Nagpur High Court in the case of Radhakisan Jaikisan was nto overruled as such a contingency did nto arise. But be that as it may, the Bench decision of Lahore High Court in the case of Mt Fazl-un-Nissa does nto support the broad proposition that mere admission of an appeal, when a copy of the Judgment is nto attached with it, must mean that the High Court has exercised its discretion in dispensing with the judgment under Order 41, Rule 1 of the Code. The following observations bring out the precise view of the Bench :-
'VARIOUSauthorities have been relied on, counsel for the respondent qutoing more specially Abdula v. Bihari Lal, which in its turn, refers to Civil Appeal No. 24-0 of 1922, while Mr. Mtoi Sagar for the appeallant relies on G. I. P. Ry. Co. v. Kadha Kishan Jaikishan and an unpublished ruling in Morion Woodfall. Out of the latter the first two deal with the question of whether the admission of a defective memorandum of appeal my operate as a decision and bar a later decision. They are buth cases where there was no copy whatsoever of the Judgment attached to the memorandum and where the admitting Judge could nto have failed to realise the situation. If, thereforee, while Realizing that situation he admitted the appeal he must be held to have exercised his discretion under 0.41, K. 1. Morton v. Wood fall', is somewhat similar to the present case, but the facts, in our opinion, are distinguishable : for it was clearly explained therein that the final judgment was a self contained document and gave all that was required for compliance with the definition in section 2(9)'.
Even according to these decisions, it would seem that it is a question to be determined on the facts and circumstances of each case whether or nto the Bench admitting an appeal has dispensed with the production of a copy of the Judgment. On the facts and circumstances of the case in hand, it is nto possible even to say if the admitting Bench was aware of the legal dafect and the praysr for exemption The correct position, broadly speaking, appears to be that when an application has been made for dispensing with the production of a copy of the judgment on which the decree appealed from is founded, then the Court must ordinarily make an order in writing on the application granting the prayer and merely because an appeal has been admitted without adverting to the infirmity, it does nto necessarily give rise to the presumption that the production of a copy of the judgment has been dispensed with, though if the attending circumstances clearly suggest an intention on the part of the Court to grant exemption, then mere accidental ommission to record an order in writing may nto, as a matter of law, militate against the intended exemption. In any event, it is normally open to the Bench hearing the appeal after ntoice, to consider the question of the effect of non production of the copy of Judgment and the respondent cannto be held debarred from claiming adjudication on this point.
(6) As a last resort, the appellant's learned Counsel made a desperate attempt by urging that the impugned order is wholly without jurisdiction and, thereforee, he is entitled to claim an adjudication on the merits of this appeal even without complying with the. provisions of Order 41, Rule 1 This submission has nto been supported by any principle or authority and is prima facie unsustainable. As acorollery to this submission, it his been argued that there would be no prejudice caused to the-toher side if this appeal is heard on the merits This sub mission ignores the vital factor that once an order becomes final, without being appealed against in accordance with law within the oreseribed period of Limitation, it cltohes the successful party with a vested right and to encroach on that vested right is by itself sufficient prejudice which the Courts are entitled, and indeed bound, to take ntoice of. It may be remembered that right of appeal is statutory and outside the statute there is no inherent right of appeal and such right has to be exercised in accordance with the statutory provision. The manadatory character of section 3, Limitation Act, has also to be kept in view. Whether or nto the appellant before us may be able to seek relief under some toher jurisdiction than appellate, does nto arise and has nto been convassed before us.
(7) For all the foregoing reasons, this appeal fails and is hereby dismissed with costs.
S.K. Kapur
(8) I agree.