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Nemichand Uttamchand Vs. Chaturbhuj Damji - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case Number O.C.J. Appeal No. 48 of 1935 and Suit No. 61 of 1935
Judge
Reported inAIR1937Bom64; (1936)38BOMLR1281
AppellantNemichand Uttamchand
RespondentChaturbhuj Damji
Excerpt:
.....(ix of 1908), sections 12(2), 5 - appeal-period of limitation-time occupied in obtaining copy of decree appealed from-exclusion of time.;on july 31, 1935, the judgment appealed from was delivered, and on the same day the appellant applied for a certified copy of the order. on august 2 the respondent sent a draft of the order to the appellant for approval, and as nothing was done the respondent sent a reminder on august 15. on august 26 the order was settled before the prothonotary. the copy order was issued by the prothonotary on september 10, and the appeal was filed on september 28 :-;that though the appellant was guilty of a certain amount of unnecessary delay, still in view of the practice prevailing so far he had sufficient cause for the delay, and that, therefore, the delay was..........the period of limitation prescribed for an appeal the time requisite for obtaining a copy of the decree appealed from shall be excluded. it has, i think, generally been the practice in this court to assume that under that section there is excluded the whole period taken in obtaining a copy of the decree. but it is necessary to point out that according to the ruling of the privy council in pramatha nath roy v. lee , ' the time requisite' does not mean the time actually taken in obtaining a copy of the decree, but means the time properly required for such purpose, and does not include time taken unreasonably by the appellant. in applying section 12 (2) the court has to consider whether the appellant has exercised reasonable and proper diligence in obtaining a copy of the order. in this.....
Judgment:

John Beaumont, Kt., C.J.

1. In this appeal a preliminary objection is taken that the appeal is out of time. The relevant dates are that the judgment appealed from was given on July 31, 1935, and the present appellant applied on the same day to the Prothonotary for a certified copy of the order. On August 2 the respondent, in whose favour the order had been made, sent a draft of the order to the appellant for approval. The appellant did not approve the draft, and on August 15 the respondent sent a reminder to the appellant. On the 16th the respondent applied under Rule 268 of the High Court Rules to the Prothonotary to fix an appointment for settling the order. On August 26 there was an appointment by the Prothonotary, at which the parties appeared, and the order was settled. The copy order was actually issued by the Prothonotary on September 10, and the appeal was filed on September 28. So that, the time for appeal being twenty days, the appeal was filed in time if the starting point be the date on which the decree was finally settled. But the practice in this Court has always been to date the decree as on the day on which judgment is pronounced, and not on the day on which the decree is settled, and under Article 151 of the Indian Limitation Act time runs from the date of the decree. It is, of course, clear that in cases where the order is complicated it might be impossible to draft a memorandum of appeal without having the formal order appealed from in front of counsel, and presumably to get over that difficulty it is provided in Section 12 (2) of the Indian Limitation Act that in computing the period of limitation prescribed for an appeal the time requisite for obtaining a copy of the decree appealed from shall be excluded. It has, I think, generally been the practice in this Court to assume that under that section there is excluded the whole period taken in obtaining a copy of the decree. But it is necessary to point out that according to the ruling of the Privy Council in Pramatha Nath Roy v. Lee , ' the time requisite' does not mean the time actually taken in obtaining a copy of the decree, but means the time properly required for such purpose, and does not include time taken unreasonably by the appellant. In applying Section 12 (2) the Court has to consider whether the appellant has exercised reasonable and proper diligence in obtaining a copy of the order. In this case the appellant was certainly guilty of a certain amount of unnecessary delay. Between August 2 and 16 he did nothing, and that period was wasted. His excuse is that his clients live at Dhulia, some distance from Bombay, and that he could not approve the order without their instructions, but the managing clerk, who has made an affidavit, does not say that the copy of the draft was sent to the clients, or that any effort was made to obtain their instructions. However, in view of the practice which has prevailed up to now, we think that the appellant had sufficient cause for the delay, and that we can therefore excuse it under Section 5 of the Indian Limitation Act, and that course we propose to adopt. But now that the point has been raised attorneys must not assume that the whole time actually occupied in procuring the copy of the decree to be appealed from will be allowed under Section 12(2), or that in future we shall be prepared to excuse delay under Section 5.

Rangnekar, J.

2. I agree with the judgment just delivered on the first preliminary point.

3. [His Lordship next dealt with the facts of the case which are not material for the purposes of this report].


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