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PETITIONER: JAGAT DHISH BHARGAVA

       Vs.

RESPONDENT: JAWAHAR LAL BHARGAVA & OTHERS

DATE OF JUDGMENT: 05/12/1960

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. WANCHOO, K.N. GUPTA, K.C. DAS

CITATION:  1961 AIR  832            1961 SCR  (2) 918  CITATOR INFO :  F          1967 SC1470  (5)  RF         1972 SC 414  (32)  RF         1977 SC2319  (10)  D          1978 SC 537  (4)  R          1983 SC 786  (9,20)  RF         1992 SC 109  (6)

ACT: Appeal--Decree  not Prepared--Appeal filed without  copy  of decree--Competency of--Subsequently decree prepared and copy filed--Limitation--Code of Civil Procedure, 1908(V of  1908) 0.  41,  r. 1--Indian Limitation Act, 1908 (IX of  1908)  s. 12(2).

HEADNOTE: The  respondents  filed  a  suit  for  specific  performance against the appellant which was dismissed on March 12, 1954. On  March  24  the respondents made  an  application  for  a certified  copy of the judgment and decree.  The decree  was not  drawn up and the respondents were supplied a  certified copy of the judgment and the memo of costs.  The respondents filed an appeal before the High Court without the  certified copy  of the decree and only with the certified copy of  the judgment  and  the memo of costs.  The appeal  was  admitted under  0.  41, r. 11 Code of Civil Procedure on  August  30, 1954.   On December 23, 1958, the appellant served a  notice on  the  respondents  that  he  would  raise  a  preliminary objection at the hearing that the appeal was incompetent  as a certified copy of the decree was not filed as required  by 0. 41, r. 1. On December 24, 1958, the respondents moved the trial  Court  for drawing up of the decree,  but  since  the record was in the High Court this could not be done.  At the hearing of the appeal, the appellant raised the  preliminary objection,  but the High Court passed an order  on  December 15,  1959,  allowing the respondents one  month’s  time  for getting a decree drawn up and obtaining. a copy and directed the  record  to be sent to the trial  Court.   Against  this order the appellant preferred an appeal to the Supreme Court contending  that  the High Court was bound  to  dismiss  the appeal  as it was manifestly incompetent under 0. 41, r.  1. Subsequently, on December 23, 1959, the respondents obtained

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a certified copy of the decree and filed it before the  High Court the same day.  The appellant contended that the appeal was  to  be  deemed to be filed on this date  and  was  time barred. Held,  that  in  the circumstances of this  case  the  order passed by the High Court was right.’ There was no doubt that 0. 41, r. 1  was  mandatory  and in the absence  of  or  the decree the filing of     the    appeal    was    incomplete, defective  and incompetent.  The office of the  trial  Court was  negligent in not drawing up a decree and the office  of the  High  Court was also not as careful as it  should  have been  in  examining the appeal and  these  have  contributed substantially to the unfortunate position.  In such a  case, the respondents deserved to be protected.  Besides the, 919 question had become academic and technical in view of subse- quent events.  The certified copy of the decree was filed on December 23, 1959, and even if the appeal was considered  to have been filed on that date, it was within time.  Under  s. 12(2) of the Limitation Act the respondents could treat  the time  taken  in  the  drawing up of  the  decree  after  the application  for a certified copy thereof had been  made  as part  of the time taken in obtaining the certified  copy  of the decree. Tarabati  Koer v. Lala jagdeo Narain, (1911) 15 C.W.N.  787, Bani Madhub Mitter v. Matungini Desai, (1886) I.L.R. 13 Cal. 104  (F.B.),  Gabriel  Christian  v.’Chandra  Mohan  Missir, (1936),  I.L.R.  15 Pat. 284(F.B.),  Jayashankar  Mulshankar Mehta  v. Mayabhai Lalbhai Shah, (1951) 54 B.L.R 11  (F.B.), Gokul Prasad v. Kunwar Bahadur, (1935) I.L.R. 10.  Luck. 250 and  Umda v. Rupchand, (1926) 98 I.C. 1057 (F.B.),  referred to. Rodger v. Comptoir d’Escompte de Paris, (1871) L.R. 3   P.C. 465, relied on.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil  Appeal No. 222 of 1960. Appeal from the judgment and order dated December 15,  1959, of  the Punjab High Court (Circuit Bench), Delhi, in  R.  F. Appeal No. 77-D of 1954. G. S. Pathak and B. C. Misra, for the appellant. Mukat  Behari Lal Bhargava and J. P. Goyal, for  respondents Nos. 1 to 7. 1960.   December 5. The Judgment of the Court was  delivered by GAJENDRAGADKAR,  J.-The short question of law( which  arises for  decision  in, the present appeal by  special  leave  is whether  the  appeal  preferred against  the  appellant  and respondents  8  and  9  in  the  High  Court  of  Punjab  by respondents  2  to  7 ’was competent in law  or  not.   This question  arises unDer somewhat unusual  circumstances.   It appears  that an agreement of sale of one third of  the  one fourth  share  in the property covered by the  document  was entered into between Gokal Dhish Bhargava and the  appellant Jagat Dhish Bhargava.  Gokal Dhish Bhargava sued the  appel- lant  and  pro  forms  respondents  8  and  9  for  specific performance  of the said agreement of sale in the  Court  of the Senior Civil Judge, New Delhi (Civil Suit No. 684/128 of 1949/50).  This suit was dismissed on 920 March 12, 1954. , Pending decision in the trial court  Gokal Dhish  Bhargava  (fled  and his son  Jawahar  Lal  Bhargava, respondent  1  and Chunni Lal Bhargava were brought  on  the

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record  as  legal  representatives.   After  the  suit   was dismissed and before the appeal in question was preferred in the   High  Court  Chunni  Lal  Bhargava   died;   thereupon respondents  2  to 7, as his legal  representatives,  joined respondent 1 in preferring an appeal against the said decree in the High Court of Punjab.  The memo of appeal along  with the judgment dismissing the suit and the taxed bill of costs endorsed  on the back of the last page of the  judgment  was filed  in  the  High  Court on July 29,  1954.   It  is  the competence  of  this appeal that was questioned  before  the High  Court  and  is in dispute before  us  in  the  present appeal. The  record shows that on March 24,1954, an application  was made  by  respondents  2  to  7  (who  will  be  called  the respondents hereafter) for a certified copy of the  judgment and decree passed in the said suit for specific performance. A  certified copy of the judgment and the bill of costs  was supplied to them but the decree had not been drawn up and no copy  of the decree was therefore supplied to them.  In  the result  the appeal was filed without the certified  copy  of the decree and only with the certified copy of the  judgment and  the  bill of costs.  On August 2, 1954,  the  Assistant Registrar  of  the High Court returned the  memo  of  appeal filed by the respondents to their counsel and pointed out to him  that’  since no copy of the decree had been  filed  the presentation  of  the appeal was defective  and  the  defect needed to be rectified.  Thereafter, on August 16, 1954, the respondents’ counsel refiled the appeal with an  endorsement that  a memo of costs alone had been prepared by  the  trial court  and  no decree had been drawn up, and so  the  appeal should  be  held  to be  properly  filed.   Apparently  this explanation  was treated’ as satisfactory by the  office  of the High Court and the appeal was registered as No. 77-D  of 1954. In due course the appeal was placed for preliminary  hearing under 0. 41, r. 11 of the Code of Civil 921 Procedure  before  Dulat, J. who admitted it on  August  30, 1954.   Notice of the appeal was accordingly served  on  the appellant  and the pro forma respondents.   Ultimately  when the  appeal  became ready for hearing it was put up  on  the Board of the Circuit Bench of the High Court to be heard  on December  26,  1958.  Meanwhile on December 23.,  1958,  the appellant  served  a  notice  on  the  respondents’  counsel intimating  to him that he proposed to raise  a  preliminary objection against the competence of the appeal on the ground that the decree under appeal had not been filed as  required under  0.  41, r. 1 along with the memo of  appeal  and  the certified copy of the judgment.  Next day, that is to say on December 24, 1958, the respondents moved the trial Court for drawing  up of the decree, but since the record had  in  the meantime  been sent by the trial Court to the High Court  no decree  could  be drawn up by the trial Court,  and  so  the motion  became  infructuous.  The appeal, however,  did  not reach  hearing on December 26, 1958.  On December 29,  1958, the  respondents moved the Court that the appeal  should  be declared to be maintainable as the memo of costs which alone had  been  prepared by the trial Court read along  with  the concluding paragraph of the judgment may be held to  satisfy the  requirements  of the decree; in  the  alternative  they prayed that the record of the suit in the trial Court should be  sent for to enable them to get a decree prepared with  a view  to  file the same in the High Court along  with  their appeal.  Bishan Narain, J., before whom this application was taken  out for orders, directed that it may be heard by  the

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Bench which would hear the appeal. Eventually the appeal came on for hearing before Falshaw and Chopra,  JJ. on De ember 8, 1959.  At the said  hearing  the appellant raised a preliminary objection that the appeal was not  competent having regard to the mandatory provisions  of 0.  41, r. 1, and urged that the appeal should be  dismissed as  incompetent.  This preliminary objection  was,  however, not  upheld  by the High Court, and it was  held  that  "the proper course to follow was to allow the respondents a 922 month’s time for the purpose of getting a decree drawn up in the  proper  form by the lower Court and  obtaining  a  copy thereof ". Accordingly the record which had in the meanwhile been  received  by  the  High Court  after  the  appeal  was admitted under 0. 41, r. 11  was ordered to be sent back  to the  lower  Court without delay.  It is against  this  order which  was  passed by the High Court on December  15,  1959, that the present appeal by special leave has been filed.  On behalf of the appellant Mr. Pathak contends that the  appeal filed  before  the  High Court was  plainly  and  manifestly incompetent,  and  so  the High Court was in  error  in  not dismissing it on that ground. The  position of law under 0. 41, r. 1 is absolutely  clear. Under the said rule every appeal has to be preferred 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  that behalf, and has to be accompanied by a copy of  the decree  appealed  from, and of the judgment on which  it  is founded.   Rule 1 empowers the appellate Court  to  dispense with the filing of the judgment but there is no jurisdiction in  the appellate Court to dispense with the filing  of  the decree.  Where the decree consists of different distinct and severable directions enforceable against the same or several defendants the Court may permit the filing of such  portions of  the decree as are the subject matter of the  appeal  but that  is  a problem with which we are not concerned  in  the present case.  In law the appeal is not so much against  the judgment  as against the decree; that is why Article 156  of the  Limitation Act prescribes a period of 90 days for  such appeals  and provides that the period commences to run  from the date of the decree under appeal.  Therefore there is  no doubt that the requirements that the decree should be  filed along with the memorandum of appeal is mandatory, and in the absence  of  the decree the filing of the  appeal  would  be incomplete, defective and incompetent. That, however, cannot finally dispose of the point raised by the   appellant  before  us.   In  the  present   case   the respondents had applied for a certified copy of 923 the  judgment  as well as the decree in the trial  Court  on March 24, 1954, and they were not given a copy of the decree for the simple reason that no decree was drawn up; what they were  given  was a copy of the judgment and  taxed  bill  of costs endorsed on the back of the last page of the judgment. These documents  they filed along with their memo of appeal; but  that would not affect the mandatory requirement  of  0. 41,  r. 1. In considering the effect of this defect  in  the presentation of the appeal we must bear in mind the rules of procedure  in regard to the drawing up of the  decree.   The position in that behalf is absolutely clear.  Section 33  of the  Code of Civil Procedure requires that the Court,  after the  case has been heard, shall pronounce judgment,  and  on such  judgment  a  decree  shall follow.   Order  20,  r.  3 provides,  inter alia, that the judgment shall be dated  and signed  by  the  judge  in the open Court  at  the  time  of

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pronouncing it, and under r. 4, sub-r. (2) a judgment has to contain  a  concise statement of the case,  the  points  for determination, the decision thereon and the reasons for such decision.   Rule  6 of the same Order  prescribes  the  con. tents  of  the decree.  It provides that  the  decree  shall agree  with the judgment and shall contain  the  particulars therein  specified.   Under  r. 7 it is  provided  that  the decree  shall bear the date, the day on which  the  judgment was  pronounced,  and  it directs that when  the  judge  has satisfied  himself  that  the decree has been  drawn  up  in accordance  with the judgment he shall sign the decree.   It is,  therefore, clear that the drawing up of the  decree  in the  present  case  was the function and  the  duty  of  the office,  and it was obligatory on the judge to  examine  the decree  when  drawn up, and if satisfied that  it  has  been properly  drawn up to sign it.  Except in places  where  the dual  system prevails the litigant or his lawyer’  does  not play any material or important part in the drawing up of the decree.  In fact the process of drawing up of the’ decree is beyond the litigant’s control.  Therefore, there is no doubt whatever that in failing to draw up a decree in the  present suit  the  office of the trial Court was  negligent  in  the discharge of its duties, and 924 the  said  negligence was not even noticed  by  the  learned trial judge himself. Unfortunately,  when  the appeal was presented in  the  High Court, even the office of the High Court was not as  careful in examining the appeal as it should ,,have been, and as  we have  already indicated the appeal passed through the  stage of  admission under 0. 41, r. 11 without the defect  in  the appeal being brought to the notice of the learned judge  who admitted it.  Thus it is quite clear on the record that  the respondents had applied for a certified copy of the judgment and  the decree, and when they were given only  a  certified copy  of the judgment and the bill of costs they  filed  the same  along with the memo of appeal in the bona fide  belief that  the said documents would meet the requirements  of  0. 41,  r.  1. It is true that before the appeal  came  on  for actual  hearing  before the High Court  the  appellant  gave notice  to  the respondents about his intention to  raise  a preliminary objection that the appeal had not been  properly filed; but, as we have already pointed out, the attempt made by  the respondents to move the trial Court to draw  up  the decree  proved  infructuous and ultimately  the  High  Court thought that in.fairness to the respondents they ought to be allowed time to obtain the certified copy of the decree  and file  it before it; and so the High Court passed  the  order under  appeal.   The appellant contends that this  order  is manifestly erroneous in law; according to him the only order which  could and should have been passed was to dismiss  the appeal as incompetent under 0. 41, r.1. The problem thus posed by the appellant for our decision has now  become academic because subsequent to the  decision  of the  High  Court under appeal the respondents have  in  fact obtained  Po  certified copy of the decree on  December  23, 1959,  and have filed it in the High Court on the same  day. This fact immediately raises the question as to whether  the appeal  which  has admittedly been completely  and  properly filed  on  December  23, 1959, was in time or  not.   If  it appears that on the date when the decree was thus filed the 925 presentation  of the appeal was in time then  the  objection raised  by  the  appellant  against  the  propriety  or  the correctness of the High Court’s order under appeal would  be

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purely technical and academic. The answer to the question as to whether the presentation of the  appeal  on December 23, 1959, is in time or  not  would depend  upon  the construction of s. 12, sub-s. (2)  of  the Limitation  Act.   We have already noticed that  the  period prescribed for filing the present appeal is 90 days from the date of the decree.  Section 12, sub-s. (2) provides,  inter alia,  that in computing the period of limitation "the  time requisite  for  obtaining  a copy of  the  decree  shall  be excluded".  What then is the time which can be  legitimately deemed  to  have been taken for obtaining the  copy  of  the decree in the present case?  Where a decree is not drawn  up immediately  or  soon after a judgment  is  pronounced,  two types  of cases may arise.  A litigant feeling aggrieved  by the  decision  may  apply  for the  certified  copy  of  the judgment and decree before the decree is drawn up, or he may apply  for  the said decree after it is drawn  up.   In  the former  case, where the litigant has done all that he  could and  has  made  a  proper  application  for  obtaining   the necessary  copies,  the  time requisite  for  obtaining  the copies must necessarily include not only the time taken  for the  actual supply of the certified copy of the  decree  but also  for  the drawing up of the decree  itself.   In  other words, the time taken by the office or the Court in  drawing up  a decree after a litigant has applied for its  certified copy  on  judgment being pronounced, would be treated  as  a part  of the time taken for obtaining the certified copy  of the  said  decree.  Mr. Pathak has fairly conceded  that  on this point there is a consensus of judicial opinion, and  in view  of  the formidable and imposing array  of  authorities against  him  he  did not raise  any  contention  about  the validity  of  the  view  take in  all  those  cases.  (Vide: Tarabati Koer v. Lala Jagdeo Narain (1); Bani Madhub  Mitter v. Mathungini Dassi & Ors. (Full Bench) (2);Gabriel Christian v. (1) (1911) 15 C.W.N. 787. (2) (1886) I.L.R. 13 Cal- 104. 926 Chandra   Mohan   Missir  (Full  Bench)   (1);   Jayashankar Mulshankar Mehta v. Mayabhai Lalbhai Shah (Full Bench)  (2); Gokul  Prasad  v.  Kunwar Bahadur &  Ors.(3);  and  Umda  v. Rupchand & Ors. (Nagpur Full Bench) (1)). There  is, however, a sharp difference of opinion in  regard to  cases where an application for a certified copy  of  the decree  is  made  after the said decree  is  drawn  up.   In dealing  with  such cases Courts have differed  as  to  what would  be the period requisite for obtaining  the  certified copy  of  the decree.  The Bombay, Calcutta and  Patna  High Courts, appear to have held that the period taken in drawing up  of  the decree would be part of  the  requisite  period, while  other High Courts have taken a contrary view.  It  is significant  that though the High Courts have thus  differed on  this point, in every case an attempt is judicially  made to do justice between the parties.  With that aspect of  the problem,  however,  we  are not  concerned  in  the  present appeal. The position, therefore, is that when the certified copy  of the decree was filed by the respondents in the High Court on December 23, 1969, the whole of the period between the  date of the application for the certified copy and the date  when the  decree  was actually signed would have to  be  excluded under s. 12, sub-s. (2).  Inevitably the presentation of the appeal  on December 23, 1959 would be in time.  It  is  true that  more  than  five years have  thus  elapsed  after  the pronouncement  of the judgment but for this long  delay  and

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lapse  of time the respondents are not much to  blame.   The failure of the trial Court to draw up the decree as well  as the failure of the relevant department in the High Court  to examine the defect in the presentation of the appeal at  the initial stage have contributed substantially to the  present unfortunate position.  In such a case there can be no  doubt that  the  litigant  deserves to be  protected  against  the default  committed or negligence shown by the Court  or  its officers  in the discharge of their duties.  As observed  by Cairnes, L. C. in Rodger v. Comptoir (1) (1936) I.L.R. 15 Pat. 284. (2) (1951) 54 B.L.R. II. (3) (1935) I.L.R. 10 Lucknow 250. (4) (1926) 98 I.C. 1057. 927 d’Escompte  de Paris (1) as early as 1871 "one of the  first and  highest duties of all Courts is to take care  that  the act of the Court does no injury to any of the suitors"; that is  why we think that in view of the subsequent event  which has  happened  in  this  case, namely,  the  filing  of  the certified  copy  of  the  decree in  the,  High  Court,  the question  raised by the appellant has( become technical  and academic. Faced with this position Mr. Pathak attempted to argue  that the  application made by the respondents on March 24,  1954, was  not really an application for a certified copy  of  the decree;  he  contendea that it was an  application  for  the certified copy of the judgment and the bill of costs.   This argument  is  wholly  untenable.   The  words  used  in  the application  clearly show that it was an application  for  a certified  copy  of  the judgment as well  as  the  decretal order, and as subsequent events have shown, a certified copy of the decree was ultimately supplied to the respondents in pursuance of this application. Then  it was argued that the respondents should  have  moved the  trial Court for the drawing up of a decree as  soon  as they  found  that  no decree a been drawn  up.   It  may  be assumed that the respondents might have adopted this course; but where the dual system does not exist it would be idle to contend  that  it  is a part of the duty of  a  litigant  to remind the Court or its office about its obligation to  draw up  a decree after the judgment is pronounced in  any  suit. It  may  be  that decrees when drawn up  are  shown  to  the lawyers  of the parties; but essentially drawing up  of  the decree  is the function of the Court and its office, and  it would be unreasonable to penalise a party for the default of the  office  by suggesting that it was  necessary  that  the party should have moved the Court for the drawing up of  the decree.  Therefore, we are not satisfied that tie  appellant is  justified in attributing to the respondents any  default for  which  the penalty of dismissing their  appeal  can  be legitimately imposed on them.  The result is that the appeal preferred by the respondents on December 23, (1)  (1871) L.R. 3 P.C. 465, 475. 928 1959, is proper and in time and it can now be dealt with  in accordance  with law.  It is true that in the  circumstances over  which  the respondents had no control  the  appeal  in question  has already been admitted under 0. 41, r. 11,  and as a result of the decision under    appeal  it may not have to  go through that process again.  Dulat, J. who heard  the appeal  for admission was satisfied that it deserved  to  be admitted  and we do not think it necessary to  require  that the  present appeal should go through the formality  of  the procedure prescribed by 0. 41, r. 11 once again.  This posi-

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tion  is no doubt, unusual, but in the circumstances of  the case  it is impossible to say that the order passed  by  the High Court is not fair and just. Let  us  then  consider the technical point  raised  by  the appellant  challenging the validity or the propriety of  the order  under  appeal.  The argument is that 0. 41, r.  1  is mandatory,  and  as soon as it is shown that an  appeal  has been filed with a memorandum of appeal accompanied only with a  certified  copy  of  the  judgment  the  appeal  must  be dismissed  as being incompetent, the relevant provisions  of 0.  41  with regard to the filing of the decree being  of  a mandatory character.  It would be difficult to accede to the proposition  thus advanced in a broad and general form.   If at  the  time  when the appeal is  preferred  a  decree  has already  been drawn up by the trial Court and the  appellant has  not  applied for it in time it would be  a  clear  case where  the  appeal  would be incompetent and  a  penalty  of dismissal would be justified.  The position would,  however, be substantially different if at the time when the appeal is presented  before the appellate Court a decree in  fact  had not  been drawn up by the trial Court; in such a case if  an application has been made by the appellant for, a  certified copy  of the decree, then all that can be said  against  the appeal  preferred  by him is that the  appeal  is  premature since  a decree has not been drawn up, and it is the  decree against which an appeal lies.  In such a case, if the office of  the  High  Court  examines  the  appeal  carefully   and discovery  the  defect  the appeal may be  returned  to  the appellant for presentation 929 with the certified copy of the decree after it is  obtained. In  the  case  like the present, if the  appeal  has  passed through  the  stage of admission through  oversight  of  the office,  then  the only fair and rational  course  to  adopt would  be  to  adjourn  the hearing of  the  appeal  with  a direction  that the appellant should produce  the  certified copy  of  the decree as soon as it is supplied to  him.   In such  a  case  it would be open to the High  Court,  and  we apprehend  it would be its duty, to direct  the  subordinate Court to draw up the decree forthwith without any delay.  On the  other  hand,  if  a decree has been  drawn  up  and  an application  for  its certified copy has been  made  by  the appellant  after the decree was drawn up, the office of  the appellate Court should return the appeal to the appellant as defective, and when the decree is filed by him the  question of limitation may be examined on the merits.  It is  obvious that the complications in the present case have arisen as  a result  of  two factors; the failure of the trial  Court  to draw up the decree as required by the Code, and the  failure of the office in the High Court to notice the defect and  to take  appropriate  action at the initial  stage  before  the appeal  was  placed for admission under 0. 41,  r.  11.   It would  thus be clear that no hard and fast ’rule of  general applicability  can  be laid down for  dealing  with  appeals defectively filed under 0. 41, r. 1. Appropriate orders will have to be passed having regard to the circumstances of each case,  but  the  most important step to  take  in  cases  of defective  presentation  of appeals is that they  should  be carefully  scrutinized at the initial stage soon after  they are filed and the appellant required to remedy the  defects. Therefore, in our opinion, the appellant is not justified in challenging  the  propriety  or the validity  of  the  order passed  by  the High Court because in the  circumstances  to which  we have already adverted the said order is  obviously fair  and  just.  The High Court realised that it  would  be

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very unfair to penalise the party for the mistake  committed by  the trial Court and its own office, and so it has  given time to the respondents to 930 apply  for a certified copy of the decree and  then  proceed with the appeal. In this connection our attention has been drawn to the  fact that   in  the  Punjab  High  Court  two   conflicting   and inconsistent  views  appear  to  have  been  taken  in   its reported  decisions.  Dealing with appeals filed with-out  a certified copy of the decree some decisions have   dismissed the  appeals  as  defective, and have given  effect  to  the mandatory words in 0. 41, r. 1, without presumably examining the question as to whether the failure of the trial Court to draw  up the decree would have any bearing or  relevance  on the point or not. (Vide: Gela Ram v. Ganga Ram(1); Municipal Committee,  Chiniot  v. Bashi Ram (2); Mubarak Ali  Shah  v. Secretary  of State (3); Nur Din v. Secretary of  State  (4) Hakam Beg v. Rahim Shah (5); Fazal Karim v. Des Raj (6); and Banwari  Lal Varma v. Amrit Sagar Gupta (7).  On  the  other hand  it has in some cases been held that it would  be  fair and just that the hearing of the appeal should be  adjourned to  enable the appellant to obtain a certified copy  of  the decree  and  produce it before the  appellate  Court  (Vide: Manoharlal  v. Nanak Chand (8); Mt.  Jeewani v.  Mt.   Misri (9);  and,  Sher Muhammad v. Muhammad Khan (10).   It  would obviously  have  been better if this  conflict  of  judicial opinion in the reported decisions of the High Court had been resolved  by  a Full Bench of the said High Court  but  that does  not appear to have been done so far.  However,  as  we have  indicated,  the question about the competence  of  the appeal  has to be judged in each case on its own  facts  and appropriate orders must be passed at the initial stage  soon after  the appeal is presented in the appellate  Court.   If any disputed question of limitation arises it may have to go before the Court for judicial decision. In  the result the order passed by the High Court is  right. Having regard to the fact that the decree (1)  A.I.R. (1920) 1 Lah. 223 (3)  A.I.R. (1925) Lah. 438. (5)  A I.R. (1927) Lah. 912. (7)  A.I.R. (1940) East Punj. 400. (9)  A.I.R. (1919) Lah. 125. (2)  A.I.R (1922) Lah. 170. (4)  A. I.R. (1927) Lah. 49. (6)  35 Punj.  L.R. 471. (8)  A.I.R. (1919) Lah. 53. (10) A.I.R. (1924) Lah. 352. 931 under  appeal  has  already been filed  by  the  respondents before  the High Court on December 23, 1959, the High  Court should now proceed to hear the appeal on the merits and deal with  it  in accordance with law.  In the  circumstances  of this case we make no order as to costs.                                          Appeal dismissed.