1. This is an appeal against a judgment of Coyajee J.,' and preliminary objections are taken by Mr. Purshottam on behalf of respondent 1 that the appeal is barred by limitation. The judgment of Coyajee J., was delivered in an Originating summons and the learned Judge answered most of the questions on 11-8-1954.
Some questions were not answered and certain directions remained to be given, and therefore the Originating summons came on again before the learned Judge on 15-9-1954 on which day he delivered his final judgment. Therefore the period of limitation for an appeal on the Original Side is 20 days. The appeal was filed on 8-12-1954. Primp, facie, therefore, the appeal is barred by limitation.
2. Now, what is contended by Mr. Desai isthat he is entitled to exclusion of time under Section12 (2). Limitation Act. His contention is thattime was requisite for getting a copy of the ordermade by Coyajee J., and that time can be excluded under the provisions of Section 12 (2). As a matterof fact, a certified copy of the order was issuedto the appellant on 23-2-1955. .
Therefore, if the time taken between 15-9-1954 'and 23-2-1955 was requisite time, then undoubtedly the appeal is in time because as a matter of fact the appeal was filed some time before the certified copy of the order was issued to the appellant, viz., on 8-12-1954. On 13-8-1954 the appellant applied for a copy of the order and on 10-9-1954 he applied for a copy of the judgment and a certified copy of the judgment was furnished to the appellant on 4-10-1954.
Therefore the appellant is entitled to exclude the time between 15-9-1954 and 4-10-1S54. As the appeal was filed on 8-12-1954 he would have to satisfy us that apart from 20 days which is the period of limitation, the rest of the time taken up was the time properly taken up for obtaining a certified copy of the order passed by Coyajee J.
3. Now, the question of a proper interpretation of Section 12 (2) was considered by a Pull Bench of this Court and the judgment is reported in -- 'Jayashankar Mulshankar v. Mayabhai' : AIR1952Bom122 (A). We have pointed out in that judgment that only that time can be excluded which is properly required for the purpose of obtaining a copy of the order and in that case we considered the matter from two aspects, the aspect from the point of view of the Appellate Side and the aspect from the point of view of the Original Side, & we drew attention there to the distinction in the practice prevailing in the districts and on the Original Side.
In the districts ordinarily it is for the Court to draw an order or a decree and the time taken up by the Court would ordinarily be exempted. On the Original Side the practice is entirety different. The order is to be drawn up by attorneys and therefore on the Original Side the Attorneys have to satisfy us that the time they took in drawing up the order was the time properly required for doing so.
4. Now, under Rule 273 it is incumbent upon an attorney to draw up an order if he wants'' a certified copy of that order. After drawing up the order he must submit a draft of the order to all the other parties concerned and if they do not return the order approved then again it is made incumbent upon the attorney to apply to the Prothonotary for an appointment to settle the draft before him.
Then the rules provide for a meeting to be held by the Prothonotary where all parties and their attorneys' are present and the draft order is finally settled at the meeting and after the draft order is settled the order has got to be engrossed and ultimately sealed by the Prothonotary's office. In this case the most significant feature is that although the appellant's attorneys obtained a copy of the judgment on 4-10-1954 they did nothing at all with regard to the drawing up of the order.
Mr. Desai has suggested a rather curious practice as prevailing in this Court. We do not think such a practice prevails and if it does the sooner it is put an end to the better. What Mr. Desai suggested is that inasmuch as the plaintiff had obtained an order in her favour it was for the plaintiff's attorneys to have taken the necessary steps for the drawing up of the order.
Now, if no question of appeal arises, undoubtedly the plaintiff, respondent 1 to this appeal, would draw up the order because the plaintiff is interested in the order and unless she gets the order drawn up she cannot assert her rights under the order. But the position is entirely different when a party wishes to appeal against an order by which he is aggrieved.
In this case the appellant was aggrieved by the order passed by Coyajee J. Therefore, whatever the practice might be under ordinary circumstances it was for the appellant's attorneys immediately to take the necessary steps to have the order drawn up under Rule 273 and take all the other necessary steps. The appellant's attorneys took no step whatsoever with regard to the drawing up of this order. On 8-10-1954 respondent 1's attorneys prepared a draft of the order.
On the 19th October the attorneys for respondents 2, 3 and 4 returned the draft approved. On the 22nd October respondent 1's attorneys sent the draft as approved by the attorneys for respondents 2, 3 and 4 to the attorneys of the appellant, and although two reminders were sent to them they did not return the draft approved. Therefore, on 26-11-1954, respondent 1's attorneys asked the Prothonotary to fix a meeting for settling of the draft.
On 8-12-1954 the appellant's attorneys returned the draft approved and this was, it should be noted, on the same day that they preferred the appeal. On 17-1-1955 the draft was settled by the Prothonotary and it was finally engrossed and sealed on 23-2-1955.
5. Mr. Desai says that although his attorneys were inactive and although they did nothing for the purpose of getting the draft settled and finally engrossed and sealed, inasmuch as the matter was taken up by respondent 1's attorneys we must consider that the time taken up after respondent 1's attorneys had initiated the matter was the time which would have been ordinarily taken even if the appellant's attorneys' had initiated the proceedings.
In other words, according to Mr. Desai respondent 1's attorneys having prepared the draft on 8-10-1954 the time taken up for sealing the draft up to 23-2-1955 was the time which is ordinarily necessary for preparing the draft. Now, in the first place, we are not concerned with what time was taken up by respondent 1's attorneys, nor are we concerned with the hypothetical question as to what time would have been taken up if the appellant's attorneys had taken the necessary steps.
What Section 12 (2) requires is that the appellant must take the requisite steps and get an exemption of time under Section 12 (2). It is for him to justify every day of delay after the period of limitation has elapsed. But even if Mr. Desai's contention were sound, we are not prepared to accept it, because in accepting it, it would be a serious reflection on the prothonotary's office that ordinarily in this Court it takes nearly four months for the sealing of a draft after the first step has been taken under Rule 273.
If respondent 1's attorneys had been the appellant's attorneys and if respondent 1's attorneys had been, called upon to explain the delay, we would have no hesitation in saying that respondent 1's attorneys acted in a most dilatory fashion and did not obtain the draft with the despatch which they could have obtained if they had followed the proper procedure under Rule 273.
But, it is Unnecessary to make any observations on the action taken by Mr. Purshottam's attorneys because Mr. Purshottam is not here to justify his conduct. He is not the appellant. He could take such time as he liked. But it was for Mr. Desai to satisfy us that his Solicitors had acted with due diligence. Therefore, whichever way one looks at it, there is no justification whatsoever for the action taken by the appellant's attorneys in permitting the order not to be sealed till 23-2-1955.
In fairness to the appellant's present attorneys it may be said that the appellant was represented by another firm of solicitors till two days before the appeal was filed and the real fact of the matter seems to be that it was only when the present attorneys came on the scene that the appellant made up his mind to prefer an appeal against the order of Coyajee J. But the fact that his earlier Solicitors did not think of preferring an appeal can be no ground for the inaction on the part of the appellant.
6. Mr. Desai then applies that the delay should be condoned under Section 5, Limitation Act. It is difficult to understand how in view of the observations we have just made we could possibly say that there was sufficient cause as contemplated by Section 5. If the appellant was guilty of inaction, if he was guilty of negligence in not taking the necessary 'steps for the purpose of getting the draft settled by the Prothonotary and ultimately sealed, it cannot possibly be urged that inaction on his part or negligence on his part could constitute sufficient cause for the purpose of Section 5.
7. Mr. Purshottam also wanted to urge that the appeal was not maintainable on the ground that the proper parties were not before the Court. In view of our decision on the question of limitation we do not think it necessary to call upon Mr. Purshottam to argue that point.
8. The result is that we must uphold Mr. Purshottam's preliminary objection. The appeal will therefore be dismissed with costs.
9. Mr. Purshottam's clients have filed cross-objections, and he wanted to urge those cross-objections before us. In our view, the cross-objections cannot survive. If a higher Court were to take the view that an appeal was within time, then undoubtedly it will be open to Mr. Purshottam to urge his cross-objections. Cross-objections dismissed with costs.
10. Liberty to the attorneys of the respondents to withdraw the sum of Rs. 500/- depositedin Court.
11. Appeal dismissed.