Certified decree requirement and limitation: court delay in drawing up the decree cannot prejudice a diligent appellant.

Order 41 Rule 1 CPC requires an appeal to be accompanied by copies of the judgment and decree, but an appellant is not to be penalised where the decree has not yet been drawn up by the court despite a timely request for a certified copy. In that situation, the appeal is treated as premature rather than wholly incompetent, and time may be allowed to cure the defect. For limitation purposes, Section 12(2) of the Limitation Act includes the period consumed by the court in preparing and signing the decree when the copy was applied for before the decree was drawn up. The appeal was therefore within limitation once the decree was filed.

---

---

Issues: (i) Whether an appeal filed without a certified copy of the decree, when the decree had not yet been drawn up by the trial court, was incompetent under Order 41, Rule 1 of the Code of Civil Procedure; (ii) Whether, for computing limitation, the time taken by the court in drawing up the decree could be excluded under Section 12(2) of the Limitation Act where a copy of the decree had been applied for before the decree was drawn up.

Issue (i): Whether an appeal filed without a certified copy of the decree, when the decree had not yet been drawn up by the trial court, was incompetent under Order 41, Rule 1 of the Code of Civil Procedure.

Analysis: Order 41, Rule 1 requires an appeal to be accompanied by a copy of the decree and the judgment. The requirement of filing the decree is mandatory, and an appeal filed without it is ordinarily defective and incomplete. However, where the decree has not been drawn up by the trial court despite the litigant having applied for a certified copy, the omission is not attributable to the appellant. The drawing up of the decree is the function of the court and its office, and the litigant should not be penalised for the court's default. In such a situation, the appeal may be treated as premature rather than wholly incompetent, and appropriate time may be granted to cure the defect.

Conclusion: The appeal could not be dismissed as incompetent on the facts of the case, and the order allowing time to obtain and file the decree was upheld.

Issue (ii): Whether, for computing limitation, the time taken by the court in drawing up the decree could be excluded under Section 12(2) of the Limitation Act where a copy of the decree had been applied for before the decree was drawn up.

Analysis: Section 12(2) excludes the time requisite for obtaining a copy of the decree. Where an application for a certified copy is made before the decree is drawn up, the requisite time includes not only the time taken to supply the copy but also the period consumed by the court in preparing and signing the decree. On that basis, the filing of the decree in the High Court was within time. The appellant's challenge therefore became technical, especially since the delay had substantially resulted from the court's own default.

Conclusion: The appeal, once the decree was filed, was within limitation.

Final Conclusion: The procedural objection to the maintainability of the appeal failed, and the High Court's direction permitting the appeal to proceed was affirmed.

Ratio Decidendi: Where an appellant has duly applied for a certified copy of the decree before it is drawn up, the period consumed by the court in preparing the decree is included in the time requisite for obtaining the copy, and the appellant cannot be penalised for the court's default in complying with its ministerial duty.

---