Skip to content


Kanji Devsi Shet Vs. Velji Haridas and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai High Court
Decided On
Case NumberCivil Application No. 677 of 1949
Judge
Reported inAIR1950Bom350; (1950)52BOMLR405; ILR1951Bom696
ActsLimitation Act, 1908 - Sections 12
AppellantKanji Devsi Shet
RespondentVelji Haridas and ors.
Appellant AdvocateB.N. Gokhale, Adv.
Respondent AdvocateV.S. Desai, Adv.
Excerpt:
.....also time requisite for obtaining a copy of the judgment. in order that an appellant can get the time excluded, which falls under sub-sections (2) and (3), the time taken for obtaining a copy of the decree and the time taken for obtaining a copy of the judgment must be distinct. if the time taken for obtaining a copy of the decree and the time required for obtaining a copy of the judgment is identical, sub-sections (2) and (3) do not provide that the time should be computed over again although the time is overlapping.;macmillan & co. v. cooper (1923) 25 bom. l. b. 1309 and timappa v. manjaya (1924) 26 bom. l, r. 362, relied on.;on september 29,1948, the judgment appealed from was delivered. on october 11,1948, an application was made for obtaining copies of the judgment and decree...........time requisite for obtaining a copy of the judgment. but in order that an appellant should get the time excluded which falls under sub-ss. (2) and (3) the time taken for obtaining a copy of the decree ; and the time taken for obtaining a copy of the judgment must be distinct. if the time taken for obtaining a copy of the decree and the time required for obtaining a copy of the judgment is identical, then these two sub-sections do not provide that the time should be computed over again although the time is overlapping. apart from authority - and i shall presently deal with the cases referred at the bar - this seems to be the clear construction of these two clauses of s. 12. therefore, applying that test, we have first the position that the decree was not signed till 22nd october 1948, and.....
Judgment:

Chagla, C.J.

[1] The question that we have to consider on this application is whether an appeal preferred to this Court is in time. The material dates are these. The Court pronounced judgment on 29th September 1948. Copies were applied for of the judgment and of decree on the 11th October 1948. Copies of the judgment were furnished on 21st October 1948. The decree was signed on 22nd October 1948, and the copy of the decree was furnished on 26th October 1948. The appeal was preferred on 27th January 1949. Limitation would begin to run from 29th September 1948, and the last day on which the appeal could be filed would be 28th December 1948. In fact the appeal was preferred on 27th January 1949, and the question, that we have to consider is whether the appeal was in time.

[2] Now, under S. 12, Limitation Act, in computing the period of limitation, the time requisite for obtaining a copy of the decree is to be excluded under sub-s. (2). Also under sub-s. (3) the time requisite for obtaining a copy of the judgment is to be excluded. The Privy Council has construed the expression 'requisite' in Jijibhoy N. Surty v. J. S. Chettyar Firm 55 I. A. 161 : A. I. R. 1928 P. C. 103, and their Lordships have pointed out that 'requisite' means something much more than required. The proper connotation of that expression is that the time indicated in these two sub-sections must be properly required before it could be excluded. It is perfectly true that the right given to the appellant to exclude these two periods contemplated by sub-ss. (2) and (3) is absolute. It is also correct that time must be excluded both for obtaining a copy of the decree and also time requisite for obtaining a copy of the judgment. But in order that an appellant should get the time excluded which falls under sub-ss. (2) and (3) the time taken for obtaining a copy of the decree ; and the time taken for obtaining a copy of the judgment must be distinct. If the time taken for obtaining a copy of the decree and the time required for obtaining a copy of the judgment is identical, then these two sub-sections do not provide that the time should be computed over again although the time is overlapping. Apart from authority - and I shall presently deal with the cases referred at the bar - this seems to be the clear construction of these two clauses of S. 12. Therefore, applying that test, we have first the position that the decree was not signed till 22nd October 1948, and therefore no copy of the decree could have been supplied and the time taken between 29th September 1948, when the judgment was pronounced and 22nd October 1948, when the decree was signed must be excluded. If authority was required for the proposition, see Balappa Tammanna v. Dyamappa Bhusappa : AIR1940Bom415 . The further time which has to be excluded is the four days that expired after 22nd October 1948, on which date the appellant obtained a copy of the decree. Therefore, on that basis the appeal should have been preferred by 24th January 1949, and inasmuch as it has been preferred on 27th January 1949, it is out of time by three days.

[3] The contention put forward by Mr. Gokhale is that inasmuch as he made an application for a copy of the judgment and of the decree on 11th October 1948, and the copy of the decree was furnished on 26th October 1948, he should be allowed 16 days for the time taken up for obtaining the copy of the decree and also 10 days for obtaining the copy of the judgment because he applied for that on 11th October and the copy of the judgment was furnished to him on 21st October. According to Mr. Gokhale, each right given to the appellant, is independent, viz., the right given to exclude time under clause (2) of S. 12 and the right given to him to exclude time under clause (3), and even if these two periods overlapped, he is entitled to exclusion with regard to each of the two applications made by him and the time taken up in respect of those two applications. In our opinion, that contention is not well founded. Under S. 12, a certain time has to be excluded, time which is properly required for a particular purpose, and the two purposes set out are obtaining a copy of the judgment and obtaining a copy of the decree. Once the time was excluded because the decree of the Court was not signed till 22nd October 1948, that same period cannot be excluded over again because the appellant had applied for a certified copy of the judgment or he had applied for a certified copy of the decree. The additional four days between 22nd October 1948, and 26th October 1948, stand on a different footing because those four days were requisite because he did not get a copy of the decree till that date. We do not read the expression in clause (3), viz 'shall also be excluded,' as indicating that the two periods covered by cls. (2) and (3) should be excluded even though they may be overlapping. 'Also' in clause (3) only means that an additional right is given to the appellant to exclude the period for obtaining a copy of the judgment. But if such time has already been excluded as falling under clause 92), then that period is not to be computed over again for the purpose of clause (3).

[4] Mr. Gokhale has relied on a judgment of Dixit J., in Sadashiv Madhavrao v. Kashinath Pandurang, C. R. A. No. 93 of 1948, D/- 4th November 1948, which has taken the view for which he is contending. The learned Judge in coming to that conclusion first relied on the Privy Council decision to which we have already referred, viz., Surty v. Chettyar 55 I. A. 161 : A. I. R. 1928 P. C. 103 and as I have pointed out, all that that case laid down was that 'requiste' must be read to mean properly required, and further it threw upon the pleader or counsel for the appellant the necessity of showing that no part of the delay beyond the prescribed period was due to his default. He further relied on an unreported judgment of Macklin J., in Vedu Hiraman v. Jaikisan Rambilas, S. A. No. 1001 of 1946 D/- 19-11-1946. That case again was dealing with the question of what was the requisite time under S. 12 which could be excluded. Then the learned Judge also relied on the case of Balappa Tammanna v. Dyamappa Bhusappa : AIR1940Bom415 . That case laid down that in presenting an appeal the appellant is entitled to deduct from the period of limitation for filing his appeal, not only the time requisite for obtaining a copy of the decree, but also time taken in signing the decree. With respect to the learned Judge, none of these three decisions deal with the question which the learned Judge had to decide, viz., whether in computing time under S. 12, cls. 92) and (3), benefit should be given to the appellant even of the time which overlaps, or whether under cls. (2) and (3) the time to be computed must be exclusive and distinct. In this judgment Dixit J., has referred to a judgment of Bavdekar J., in Government of Bombay v. Ahmedabad Borough Municipality, C. A. No. 61 of 1947 D/- 18-6-1947 where the learned Judge has taken the contrary view, and Dixit J., felt obliged not to agree with the judgment of Bavdekar J., because he felt that he was bound to follow the decision of the Privy Council in Surty v. Chettyar 55 I. A. 161 : A. I. R. 1928 P. C. 103.

[5] As a matter of fact, our attention has not been drawn by Mr. Gokhale to any decision of this Court except the judgment of Dixit J., where the question of overlapping time was considered and it was held that although the periods overlapped the appellant was entitled to the benefit of the overlapping periods. In fact, Mr. Gokhale has very fairly drawn our attention to two judgments which clearly indicate that the correct view of the law is that overlapping periods cannot be availed of by the appellant. The first is Macmillan & Co., v. Cooper 25 Bom. L. R. 1309 : A. I. R. 1924 Bom. 185. In that case the appellant applied for a certified copy of the judgment on 12th June 1923, and of the decree on 30th June 1923. Certified copies were supplied respectively on 3rd July and 8th August 1923, and the party lodged the appeal on 22nd August 1923. Shah J., took the view that the appellant was entitled to exclusion of time from 12th June 1923 to 8th August 1923. It was suggested that he would also be entitled to exclusion of time between 30th June and 3rd July, although that period overlapped, and Shah J., rejected that contention pointing out that that particular period could not be excluded twice over. Although in this particular case the Court held that the appeal was in time, the question of overlapping periods was considered and the view expressed as I have just indicated. The other decision is Timappa v. Manjaya 26 Bom. L. R. 362 : A. I. R. 1924 Bom. 425. That is the judgment of Sir Norman Macleod, C. J., who sat with Shah J. There the judgment was delivered on 10th August 1922, the appellant applied for a certified copy of the decree on 28th August 1922, and the copy was supplied to him on 7th September 1922. He next applied for a certified copy of the judgment on 9th September, and the copy was supplied to him on 14th September 1922, and what the Court held was that the two periods which were sought to be excluded were quite distinct and they could be excluded under S. 12, cls. 92) and (3). Therefore, impliedly it follows that if the two periods had been overlapping, they could not have been excluded.

[6] Therefore, in our opinion, the only exclusion to which the appellant is entitled in this case is from 29th September 1948 till 26th October 1948. On that basis the appeal should have been preferred by 24th January 1949, and the appeal is out of time as it has been preferred three days after that date. We, therefore, hold that the appeal is out of time.

[7] Mr. Gokhale applies that the delay should be condoned as his client was not in possession of funds and was not in a position to file the appeal. As the delay is only of three days, we think that the delay should be condoned.

[8] Applicant to pay the costs of this application to the other side.

[9] Order accordingly.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //