John Beaumont, Kt., C.J.
1. In this case the following questions have been referred to a full bench :-
1. Whether in computing the time for appealing from a decree, it is legitimate (in a proper case) to exclude the period requisite for obtaining a copy of the decree when no application for such copy was made till after the expiration of the time limited for appeal?
2. Whether Yamaji v. Antaji I.L.R. (1898) 23 Bom. 442 and New Piece Goods Bazaar Co. v. Jivabhai : (1913)15BOMLR681 are good law?
The facts in the appeal, so far as necessary for the determination of the questions referred, are as follows. The judgment was given on March 6, 1936, and, according to the practice prevailing in this Court, that date is the date of the decree. On the same date the appellant applied for a copy of the judgment, and on March 19 a copy was supplied to his attorneys. On April 9 the appellant applied for a copy of the decree. The decree was sealed on April 20. But the draft approved by the attorneys of the appellant and respondents was first submitted to the Prothonotary on March 24. This appeal was filed on April 23. A preliminary objection was taken that the appeal is out of time, since it was filed more than twenty days after the date of the decree, and no extension of time can be allowed for obtaining a copy appealed from, as no copy of such decree was applied for within the twenty days and such extension as is allowable for obtaining a copy of the judgment. It was argued that this is the view which has been taken in decisions of this Court, and it was for the purpose of considering the correctness of these decisions that the matter was referred to a full bench.
2. Under Article 151 of the Indian Limitation Act the time for appealing is twenty days from the date of the decree. But that article has to be read in conjunction with Section 12, Sub-section (2) and (3). Sub-section (2) provides that in computing the period of limitation prescribed for an appeal, the day on which the judgment was pronounced, and the time requisite for obtaining a copy of the decree shall be excluded. Under Sub-section (3) the time requisite for obtaining a copy of the judgment is also to be excluded. The contention of the respondents is that under Article 151 time commenced to run on March 6, 1936, that being the date of the decree, and that in computing the time for appeal the period between March 6 and 19, when the copy judgment was supplied, has to be excluded, that accordingly the time for appealing expired on April 8 before any application for a copy of the decree had been made, and that being so, according to the decisions of this Court no time can be allowed for obtaining a copy of the decree.
3. Apart from authority, the effect of Article 151 and Section 12 of the Indian Limitation Act read together seems to me to be this. The starting point of time is the date of the decree, and the finishing point is the date when the appeal is filed. If the period between those two dates exceeds twenty days, or the time limited by the appropriate article of the Indian Limitation Act, the Court has to see whether the excess of time was requisite for obtaining a copy of the decree and a copy of the judgment. If it was so requisite, the appeal is in time, if not, it is out of time. The meaning of this section has recently been considered in two decisions of the Privy Council, Pramatha Nath Roy V. Lee and Surty v. Chettyar (1928) L.R. 55 IndAp 161 and the effect of those decisions is to show that the time requisite does not mean the time actually required, but the time properly required for obtaining copies of the decree and the judgment. If the time actually taken in obtaining the copies is due to any dilatoriness on the part of the appellant, then that time is not allowed to him. But he is allowed any time occasioned by his opponent, or by anything done in the offices of the Court. The latter case also points out that Section 12 confers a substantive right upon the appellant to claim the time as excluded.
4. The decisions of this Court, Yamaji V. Antaji I.L.R. (1998) 23 Bom. 442 and New Piece Goods Bazaar Co. v. Jivabhai : (1913)15BOMLR681 mentioned in the reference have laid it down that if the appellant allows the twenty days limited by Article 151 to expire without making any application for a copy of the decree, then no time can be claimed for obtaining a copy of the decree. In my opinion there is no justification in the language of the section for imposing such a limitation upon the rights which the section confers upon the appellant. The decisions of this Court really amount to adding to Section 12 a proviso that application for copy of the decree has been made before the time limited for appeal by Article 151 has expired, and the section contains no such proviso. Under the practice existing on the Original Side of this Court it is the application to have the decree drawn up, and not the application for a copy, which starts the procedure which leads to copy being supplied. The practice is for the respondent's attorneys to draft the decree and send the draft to the appellant's attorneys, and if the attorneys agree on the draft, as happened in this case, it is then sent to the Prothonotary, who has the decree drawn up and sealed. In complicated cases it may take some months to settle the terms of the decree, since the draft may pass backwards and forwards many times between the attorneys and there may be applications to the Court for speaking to the minutes. It is difficult to see in such a case what advantage is to be gained by the appellant applying within twenty days from the date of the decree for a copy of the decree, when he well knows that the decree itself is not in existence, and cannot be copied. In cases in the mofussil where the decree is actually, though not always, signed within the time limited for appeal, it may be difficult to prove that the time taken for obtaining a copy was requisite if no application for such copy was made within the time limited. But in my opinion the question whether the time was requisite is always one of fact to be decided in the circumstances of each case. I demur to the theory that the Court can impose upon the statutory right of an appellant a restriction not warranted by the Act. I entertain no doubt that a rule providing that no time shall be allowed for obtaining a copy of the decree unless such copy be applied for within twenty days from the date of the decree would be ultra vires.
5. The decisions of this Court followed a full bench decision of the Allahabad High Court, Bechi v. Ahsan-nllah Khan I.L.R. (1890) All. 461. and the decisions were followed by the Patna High Court in Jyotindranath Sarkar V. The Lodna Colliery Company, Ltd (1921) 6 P.L.J. 350. But a recent full bench decision of the Patna High Court, Gabriel Christian v. Chandra Mohan Missir I.L.R. (1935) Pat. 284 has overruled the case of Jyotindranath Sarkar v. The Lodna Colliery Company Ltd., and disagreed with the view taken by this Court. In a full bench decision of the Calcutta High Court, The Secretary of State of India in Council V. Parijat Debee I.L.R. (1932) Cal. 1215. the view of the Bombay High Court has also been disapproved.
6. In my opinion there is no justification for the limit imposed upon the rights of the appellant under Section 12 by the decisions of this Court. I think that those decisions are inconsistent with the decision of the Privy Council in Surty v. Chettyar (1928) L.R. 55 IndAp 161 that Section 12 confers a substantive right upon the appellant to the exclusion of the time specified. I am not, however, prepared to agree with the view which, I understand, the Calcutta High Court took in The Secretary of State for India in Council v. Parijat Debee, namely, that the requisite time for obtaining a copy of the decree in no case begins Beaumont C.J. to run until the decree has been sealed. It is, no doubt, self-evident that a copy cannot be supplied of a decree which does not exist; but it does not follow from this that the time requisite for obtaining a copy does not include time required in drawing up the order. In my opinion, if the time actually required for obtaining a copy of the decree has been increased by the default of the appellant in getting the decree settled, then the time taken for obtaining a copy of the decree was not requisite within the meaning of Section 12.
7. In my opinion, the first question referred should be answered in the affirmative, and the second question, in the negative.
8. Having regard to the language of Section 12 of the Indian Limitation Act, the questions raised are not free from difficulty. I am unable to agree with the view which seems to have been taken by the Calcutta High Court that limitation begins to run from the date of the signing of the decree. Having regard to the fact, however, that it is difficult to reconcile the decision in Pramatha Nath Roy v. Lee with the Bombay view, I am not prepared to differ from the view taken by the learned Chief Justice.
9. I, therefore, agree that the questions should be answered in the way proposed in the judgment just delivered.
10. I agree that the answers to the two questions should be as proposed in the judgment of the learned Chief Justice.
11. Starting with the decision in Yamaji v. Antaji I.L.R. (1898) 83 Bom. 442 the Bombay High Court accepted the view that in order to obtain the benefit of Section 12(2) of the Indian Limitation Act an application for a copy of the decree should be made before the period of limitation prescribed in the schedule to that Act expired. That decision approved of the view taken by the full bench of the Allahabad High Court in Bechi v. Ahsm-ullak Khan I.L.R. (1890) All. 461. which was contrary to the view taken by a full bench of the Calcutta High Court in Bani Madhub Mitter v. Matungini Dassi I.L.R. (1886) 13 Cal. 104. According to the view of the Allahabad High Court, which was thus accepted by this Court, the starting point for the exclusion of time under Section 12(2) of the Indian Limitation Act was the day on which an application for a copy was made to the Court and ended when the copy became ready for the applicant. In Pramatha Nath Roy v. Lee although the question was not directly considered by the Privy Council, it appears from the judgment that their Lordships agreed with the view of the Calcutta High Court that it was open to the Court to treat the time properly spent in preparing the original decree as requisite for obtaining a copy of the decree. That argument was considered not only in respect of the facts of that case in which the application for a copy was made after the prescribed period of limitation had expired, but also in respect of the time of six days excluded in Bani Madkub's case. It was held that the time spent in having the original prepared in Pramatha Nath Roy's case was due to the appellants' laches and therefore was not requisite within the meaning of the section. The six days spent for the decree in Bani Madhub Mitter v. Matungini Dassi, even before the application for a copy was made, was considered to be properly excluded under that section. Having regard to that view it is now difficult to accept the correctness of the view taken in Yamaji v. Antaji and the subsequent decisions following the same.
12. The decision in Pramatha Nath Roy v. Lee came to be considered by a bench of this Court in Macmillan & Co. Ltd. v. K. & J. Cooper I.L.R. (1923) 48 Bom. 292 : 25 Bom. L.R. 1309. I am unable to accept the view there taken that Pramatha Nath Roy's case does not touch the decision or practice of this Court in this respect. After the judgment in Pramatha Nath Roy's case was given the Allahabad High Court does not appear to have occasion to consider its effect on the full bench, decision in Bechi v. Ahsan-ullah Khan. In Tirumala Reddi v. Anavemareddi I.L.R. (1933) Mad. 560. Pramatha Nath Roy's case was distinguished on the ground that it was in respect of a decree on the original side (see the observations at p. 568). The Patna High 'Court which had formerly accepted the Bombay view, in a subsequent full bench decision in Gabriel Christian v. Chandra Mohan Missir I.L.R. (1935) Pat. 285. came to a different conclusion. Under these circumstances and having regard to the uniform view taken by the other High Courts of the effect of Pramatha Natk Roy's case, I think that the view taken by this Court in Yamaji v. Antaji cannot now survive.
13. Having regard to the decision in Pramatha Nath Roy's case together with the decision in Surty v. Chettyar (1928) L.R. 55 IndAp 161 the principle laid down in New Piece Goods Bazaar Co. v. fivabhai : (1913)15BOMLR681 must not also be considered now as good law.