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Rupeswar Saikia Vs. Aniram Saikia and anr. - Court Judgment

LegalCrystal Citation
Subject;Limitation
CourtGuwahati High Court
Decided On
Case NumberCivil Revn. No. 11 of 1980
Judge
ActsLimitation Act, 1963 - Sections 5 and 12
AppellantRupeswar Saikia
RespondentAniram Saikia and anr.
Advocates:D.C. Mahanta and B. Dutta, Advs.
DispositionPetition dismissed
Excerpt:
- - the finding clearly shows that the learned judge did not find the cause to be a sufficient cause contemplated under section 5 of the limitation act......by making an application for getting the copy. hence, giving effect to all the words appearing in the explanation, the conclusion is irresistible that the time taken by the court to prepare the decree or order prior to the making of the application for a copy cannot be excluded in computing the period of limitation. that is so say, when a party makes an application for copy after signing of the decree, that period will not be covered for the benefit of the appellant as time requisite for obtaining the copy. the submission of the learned counsel for the appellant has, therefore no force.'6. the aforesaid decision is binding as far as the court is concerned. mr mahanta has not been able to show that the decision has been overruled by a larger bench or by any decision of the hon'ble.....
Judgment:

Lahiri, J.

1. This is an application Under Section 115 of the Civil P. C. directed against an order dated 20-9-79 passed by Shri S. M. Deka, Assistant District Judge, Jorhat, in Title Appeal No. 26 of 1979 rejecting prayer of the petitioner for condonation of delay in presenting the appeal,

2. It is indubitable that the judgment of the court of the first instance was delivered on 31-3-79 and the decree was drawn up on the same date though signed on 5-4-1979. It is also inescapable that the petitioner-appellant did not make any application for getting the certified copies of the judgment and decree until 3-5-79, The petitioner-appellant made an application for obtaining copies of the judgment and decree on 3-5-79 and presented the appeal on 5-5-79.

3. The petitioner-appellant made somewhat startling statement for condonation of the delay. According to the petitioner his marriage was solemnised on 18-2-79 and he continued to remain 'engrossed in his marriage' and did not take steps either to obtain the copies or to present the appeal In view of his inaction a valuable right was secured by the Respondents. The learned Appellate Court turned down the prayer of the petitioner for condonation of the delay holding that such a contention was not legally tenable. The finding clearly shows that the learned Judge did not find the cause to be a sufficient cause contemplated Under Section 5 of the Limitation Act. I concur that the cause shown for condonation of the delay for not preferring the appeal within the period of limitation cannot be a sufficient ground.

4. In any view of the matter the Appellate Court arrived at the conclusion that remaining 'engrossed in marriage', on the facts and in the circumstances of the case, was not a sufficient cause and the finding cannot be termed as perverse so much so that no reasonable person instructed in law could have so concluded. Under these circumstances I do not find that the Judge has committed any error whatsoever.

5. Mr. Mahanta, the learned counsel for the petitioner has submitted that the appellant was entitled to exclusion of the entire period commencing from 31-3-79 till 5-4-79 as the petitioner ap-plied for the copy on 3-5-79. Accord-

ing to the learned counsel the time taken by the court to prepare and sign the decree must be excluded. Mr. Mahanta submits that the decree though prepared on 31-3-79 was signed and made ready only on 5-4-79, as such, the petitioner is entitled to exclusion of time as the said period must be included as 'Time requisite for obtaining copy' contemplated Under Section 12, Limitation Act, 1963. However, I find that there is a conclusive decision of a Division Bench setting at rest all doubts and confusions, namely, Assam. LR 1972 (Assam & Nagaland) 8, Naimuddin Ahmed v. Lokeswar Gogoi. It has been conclusively held by the Division Bench that when an application is made after the drawal of the decree the applicant is not entitled to get the benefit of the period under Section 12. The Division Bench observed as follows :--

'Therefore the time requisite for obtaining a copy must be after the appellant or the applicant makes an effort by making an application for getting the copy. Hence, giving effect to all the words appearing in the Explanation, the conclusion is irresistible that the time taken by the court to prepare the decree or order prior to the making of the application for a copy cannot be excluded in computing the period of limitation. That is so say, when a party makes an application for copy after signing of the decree, that period will not be covered for the benefit of the appellant as time requisite for obtaining the copy. The submission of the learned counsel for the appellant has, therefore no force.'

6. The aforesaid decision is binding as far as the court is concerned. Mr Mahanta has not been able to show that the decision has been overruled by a larger Bench or by any decision of the Hon'ble Supreme Court.

7. In the result I hold that the application has no merit and the same is dismissed in limine.


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