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Ramchandra Govind Unavne Vs. Laxman Savleram Ronghe - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 493 of 1936
Judge
Reported inAIR1938Bom447; (1938)40BOMLR892
AppellantRamchandra Govind Unavne
RespondentLaxman Savleram Ronghe
DispositionAppeal allowed
Excerpt:
.....of expression in judicial order and statute-decree directing payment in court ' within fifteen days ' from date of decree-whether first day of order to be excluded-indian limitation act (ix of 1908), sections 5, 12.; a decree passed on january 23, 1936, directed that the defendant should deposit rs. 200 in court within fifteen days from the date of the decree. the defendant deposited the amount on february 7, 1936. on the question whether the deposit was made in time in view of section 9 of the general clauses act, 1897 :-;(1) that though section 9 did not apply in terms to the present case, for the sake of uniformity the same interpretation should be given to an expression occurring in a judicial order as would be given to it in a statute, and therefore the expression '..........passed against the appellant directed that the defendant should deposit rs. 200 in court within fifteen days from that day, i.e. january 23, 1936, that the plaintiff should pass a sale-deed of the suit property to the defendant and then recover the amount deposited in court, and that if the defendant failed to pay rs. 200 within fifteen days as ordered, the plaintiff was at liberty to recover possession of half of the property from the defendant upon an equitable partition. the defendant deposited rs. 200 on february 7, 1936, but the trial court held that the deposit was not made within fifteen days as directed but that it was made on the sixteenth day, and that therefore it was not made in time and the decree was to be executed on the basis that the deposit was not made. there was an.....
Judgment:

Divatia, J.

1. This is an appeal by defendant No. 2 against a decree directing that the amount deposited by him should not be accepted and that the decree should be executed as if default had taken place in the deposit of the amount. The decree passed against the appellant directed that the defendant should deposit Rs. 200 in Court within fifteen days from that day, i.e. January 23, 1936, that the plaintiff should pass a sale-deed of the suit property to the defendant and then recover the amount deposited in Court, and that if the defendant failed to pay Rs. 200 within fifteen days as ordered, the plaintiff was at liberty to recover possession of half of the property from the defendant upon an equitable partition. The defendant deposited Rs. 200 on February 7, 1936, but the trial Court held that the deposit was not made within fifteen days as directed but that it was made on the sixteenth day, and that therefore it was not made in time and the decree was to be executed on the basis that the deposit was not made. There was an application by the defendant to extend the time by one day, but the learned Judge was of opinion that Section 5 of the Indian Limitation Act did not apply to execution proceedings and therefore he had no power to extend the time.

2. On appeal the learned Judge has confirmed that decision on the ground that Section 12 of the Indian Limitation Act and Section 9 of the General Clauses Act, which were invoked on behalf of the appellant, did not apply as this was not a case of a provision in a statute or related to the limitation of suits, and he was of opinion that the first day of the order, viz. January 23, should be included within the period of fifteen days, and therefore, the fifteen days would expire on February 6. With regard to the prayer about extension of time the learned appellate Judge thought it was entirely within the discretion of the trial Court and he was not prepared to disturb the order based on such discretion.

3. It is contended here on behalf of the appellant that the lower Courts were wrong in holding that the deposit was not made within time, and I am of opinion that that contention is correct. The material words in the decree are that the defendant was to pay Rs. 200 'within fifteen days from this day.' Now it is clear that if these words occurred in a statute, the first day would be excluded, and the fifteenth day would expire on February 7. It is enacted in Section 9 of the General Clauses Act of 1897 that in any Act of the Governor General in Council or Regulation it shall be sufficient for the purpose of excluding the first in a series of days or any other period of time to use the word ' from ', and, for the purpose of including the last in a series of days or any other period of time to use the word ' to '. Thus the word ' from ' excludes the first day in a series of days. So that the days mentioned would be clear days. It is true that Section 9 would not apply here in terms as the words do not occur in a statute but in an order of the Court, but it is desirable for the sake of uniformity that the same interpretation should be given to an expression occurring in a judicial order as would be given to it in a statute, and I think, therefore, the expression ' fifteen days ' would mean fifteen clear days, and that the date of making the order should be excluded.

4. The learned trial Judge who made the order says that he intended that the fifteenth day should expire on the 6th. Whatever might have been the intention of the learned Judge, it is to be made out from the expression he has used, and it is the meaning of the expression and not his intention that is material.

5. The order of the lower appellate Court is, therefore, reversed, and the dar-khast filed by the plaintiff on the basis that the amount has not been paid in time is dismissed. The appellant is at liberty to file a darkhast for requiring the plaintiff to pass a sale-deed on the basis that the deposit was made in time. The appeal is allowed with costs in this Court and in the lower appellate Court.


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