1980 PLP 66 (CLC)

Date of hearing : 3rd May 1978. This revision application under section 115, C. P. C. is directed against the judgment, dated 10-8-1976, passed by the learned District Judge, Hyderabad, in Civil Appeal No. 201,/76, dismissing the appeal filed by the applicant on the ground that it was barred by Limitation.

2. The applicant and 6 other plaintiffs had filed a suit, being Suit No. 16/1971, in the Court of the learned Civil Judge, Tando Allahyar, for declaration that they are owners of certain Agricultural land situated in Deh Kamaro, taluka Tando Allahyar, and also for injunction and mesne profits of suit land. The learned Civil Judge, by his judgment, dated 30th October 1975, dismissed the suit. Without waiting for preparation of the decree, the applicant filed an appeal to the learned District Judge, Hyderabad, who dismissed the appeal on the ground of Limitation, as already stated, by his judgment dated 10th August 1976. Subsequent to the dismissal of the appeal, on 20-8-1976, the learned trial Court prepared the decree in the suit.

3. Mr. Imam Ali Memon, the learned counsel for the applicant, has submitted that the learned appellate Court was not competent to dismiss the appeal on the ground of limitation, when the decree had not been framed. In support of his contention, he has relied upon the decisions in Sher Muhammad v. Muhammad Khan (A I R 1924 Lah. 352), and Government of Pakistan v. Niaz Muhammad (P L D 1967 S C 271). In the Lahore case, the facts were that on the plaintiff's suit being dismissed by the trial Court, the plaintiff appealed to the District Court, though no decree had been prepared. The District Judge accepted the appeal and granted the plaintiff a decree. It was held that the appropriate course for the District Judge was to grant an adjournment to enable the plaintiff to get a decree prepared and; therefore, the decree granted by him was a nullity. In the Government of Pakistan's case, it was held- (a) that Order XLI, rule 1, requires that the memo, of appeal must be accompanied by the decree and judgment appealed against ; (b) that under Article 156 of the Limitation Act, limitation for filing appeal runs from time of signing of decree ; (c) that under rule 185 of the Sind Civil Courts Rules, the Judge, when signing the decree, is to record below his signature, the date, month and year on which the decree is actually signed by him; (d) that the above rule is the foundation for the practice prevalent in Sind of allowing as a general rule the time elapsing between the date of the judgment and the signing of the decree.

4. In the instant case, since the memo of appeal was not accompanied by a copy of the decree, and as a matter of fact the decree had not yet been prepared, the appropriate course for the learned District Judge was, as held A in the Lahore case, to grant an adjournment till the decree was prepared and copy of it was filed. Since be dismissed the appeal before even the decree was prepared, his judgment is a nullity. In the circumstances, I would hold the impugned order of the learned District Judge to be without any legal force and would formally set aside the same and remand the matter to the learned District Judge, for re-hearing the appeal after copy of the decree, which has since been prepared, is filed by the applicant. No doubt, the question of limitation will arise. Since this matter has not been argued before me it is to be considered by the learned District Judge after hearing the parties and taking all the circumstances of the case into consideration. In the circumstances of the case there will be no order as to costs. K. M. A. Case remanded.