Report No. 79
II. Pre-Requisites for Appeal: Copy of The Decision
5.3. Scope of delay.-
The first pre-requisite for an appeal is the statutory requirement to file, a copy of the decision sought to be appealed from.1 Delay may result from the time that elapses between the pronouncement of the judgment and the preparation of a copy thereof. The filing of the appeal, either in a subordinate court having appellate Jurisdiction or in the High Court, may then be delayed. This has been sought to be remedied by amendment of Order 20 of the Code of Civil Procedure.2 by the insertion of certain new provisions, referred to in the next paragraph.3
1. Order 41, rule 1(1), Code of Civil Procedure.
2. Order 20, rules 6A and 6B, Code of Civil Procedure.
3. Para. 5.4, infra.
5.4. Filing of appeal.-
By the amendment of 1976, there was inserted a new rule to which we made a reference in our Report on arrears in trial courts,1 namely. Order 20, rule 6A, Code of Civil Procedure, which deals with judgment and decree. Sub-rule (1) of this rule provides that the last paragraph of the judgment shall state in precise terms the relief which has been granted by such judgment. Sub-rule (2), clause (a) then provides that an appeal may be preferred against the decree without filing a copy of the decree and, in such a case, the last paragraph of the judgment shall, for purposes of Order 41, rule 1, be treated as the decree.
This amendment will, to some extent, ameliorate the difficulty which was faced in the past about having to wait for a long time to get certified copy2 of the decree with a view to filing the appeal. Despite the above provision, we cannot under-estimate the importance of the prompt supply or the copies of the judgment soon after its pronouncement to the parties. Long delays have in the past occurred in the supply of such envies by the copying agency. Such delays have now been sought to be minimised by Order 20, rule 6B of the Code of Civil Procedure which was added by Act 104 of 1976.
According to this provision, where the judgment is typewritten, copies of the type-written judgment shall, where it is practicable so to do, be made available to the parties immediately after the pronouncement of the judgment, on payment, by the party applying for such copy, of such charges as may be specified in the rules made by the High Court. Apart from that, such delays, as pointed out by us in the 77th Resort,3 can be avoided or cut short if, instead of typing out the copies, the whole thing is done by mechanical or electronic process.
1. 77th Report, para. 7.8.
2. Para. 5.2(1), supra.
3.- 77th Report, para. 13.10.
5.5. Application for extension of limitation to be heard first.-
An appeal is normally filed within the time prescribed therefore by the Limitation Act, 1963. But if, for any reason,1 it is filed beyond the prescribed time, the memorandum of appeal has to be accompanied by an application under section 5 of the Act. In such case, the Code2 of Civil Procedure requires that the application should be finally decided before the court proceeds to deal with the appeal under Order 41, rule 11 or Order 41, rule 13.
1. Section 5, Limitation Act, 1963.
2. Order 41, rule 3A, Code of Civil Procedure, 1908.