S.P. Goyal, J.@mdashThis petition u/s 115, Code of Civil Procedure, is directed against the order of the learned Additional District Judge overruling the objection that the appeal pending before him wai barred by time because of the production of the copy of the order under appeal long after the expiry of the period of limitation.
2. The appeal before the Appellate Court was presented on May 16, 1981 without any certified copy of the order under appeal. The appeal was admitted to hearing on May 20, 1981 and execution of the ex parte decree stayed. At the hearing of the appeal on August 10,1982, an objection was railed by the Respondent that the certified copy of the order under appeal having been produced long after the expiry of the period of limitation, the appeal was liable to be dismissed as barred by time. The objection was, however, overruled by the impugned order.
3. According to the second proviso to Sub-rule (1) of Order 41, Code of Civil Procedure, added by this Court, the Appellate Court can permit an appeal to be filed with true copies duly authenticated by an Advocate as correct The contention of the Learned Counsel for the Petitioner is that unless the application is moved and permission granted in writing, the appeal would be deemed to have been presented without a certified copy and liable to be dismissed if the copies are produced after the expiry of the period of limitation for the appeal. I am unable to subscribe to this view. Ordinarily an application would be required for seeking permission to file an appeal without a certified copy but if the office fails to raise any objection and the appeal is admitted to hearing, the permission shall be deemed to have been granted. It is the duty of the court or the official concerned in the Registry to check up the appeal and point out any defect falling under Order 41, Rule 1, Code of Civil Procedure. If that was done, the Appellant would have made an application for entertainment of the appeal without certified copy. Office of the learned Additional District Judge thus failed in its duty to point out the defect and as held by the Supreme Court in Jagat Dhish Bhargava v. Jawahar Lal Bhargava 1 litigant deserves to be protected against the fault committed or negligence shown by the Court or its officers in the discharge of their duties. The lower appellate Court, therefore, rightly overruled the objection holding that the permission to file the appeal with a true copy was impliedly granted by the court by admission of the appeal to hearing.
4. For the reasons recorded above, this petition fails and is hereby dismissed but without any order as to costs.
