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The Dharwar Bank Ltd. Vs. Vasudeorao Madhavrao Deshpande - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai High Court
Decided On
Case NumberS.C.C. Appln. Nos. 109, 506, 507 and 508 of 1952
Judge
Reported inAIR1954Bom525; (1954)56BOMLR907; ILR1954Bom1266
ActsLimitation Act, 1908 - Sections 12 and 12(2) - Schedule - Article 179; High Court Rules; High Court Orders; Bombay High Court (Appellate Side) Rules - Rule 187; Code of Civil Procedure (CPC), 1908 - Order 45, Rule 2
AppellantThe Dharwar Bank Ltd.
RespondentVasudeorao Madhavrao Deshpande
Appellant AdvocateG.P. Murdeshwar, Adv.
Respondent AdvocateK.G. Datar, Adv.
Excerpt:
limitation - leave to appeal - sections 12 and 12 (2) and article 179 of schedule to limitation act, 1908, rule 187 of bombay high court (appellate side) rules and order 45 rule 2 of code of civil procedure, 1908 - application for leave to appeal to supreme court filed after prescribed period - admissibility challenged - time taken for obtaining copy of decree be excluded in computation of limitation period - said exclusion renders application within limitation period - held, application admissible. - .....supreme court for leave to appeal has to file such application within 90 days of the date of the decree appealed from. the period of 90 days therefore, begins to run from the date of the decree. although the judgment of this court was delivered on 7-3-1951, in all the four letters patent appeals, the decree in all the four cases was drawn up on 4-4-1951. therefore, although the period of 90 days has to be computed from the date of the decree, the period up to the drawing up of the decree has to be excluded which in effect means the period of 90 days must be calculated from the date of the signing of the decree. on that computation the application for leave to appeal to the supreme court had to be filed on 3-7-1951. in fact the applications were filed on 2-8-1951. therefore, it has been.....
Judgment:

Rajadhyaksha, J.

1. These are four applications for leave to appeal to the Supreme Court. They arise out of the decisions of this Court in certain Letters Patent Appeals, namely, 45, 46, 47 and 48 of 1949. These Letters Patent Appeals arose out of the orders made in two Darkhasts Nos. 6 and 9 of 1947 in the Court of the Civil Judge (S. D.) Dharwar. Prom Darkhast No. 6 of 1947 the two First Appeals were F. A. Nos. 131 of 1948 and 505 of 1948 and from Darkhast No. 9 of 1947 the First Appeals were F. A. Nos. 130 of 1S48 and 507 of 1948.

All these four appeals were disposed of by Mr. Justce Gajendragadkar and Letters Patent Appeals from the judgment of the learned Judge were disposed of by Mr. Justice Dixit and myself on 7-3-1951, by one common judgment. Letters Patent Appeals Nos. 48 and 46 of 1949 were from Darkhast No. 6 of 1947 and Letters Patent Appeals Nos. 45 and 47 of 1949 were in respect of Darkhast No. 9 of 1947. After these appeals were disposed of on 7-3-1951, the present applications for leave to appeal to the Supreme Court were filed on 1-8-1951. Rule was issued in all those four applications and the applications have now come up before us for final hearing.

2. The main objection which has been taken by Mr. Datar for the opponents is that all the four applications are barred by limitation.. Under Art. 179 of the Limitation Act a person desiring to file an application under the Code of Civil Procedure to the Supreme Court for leave to appeal has to file such application within 90 days of the date of the decree appealed from. The period of 90 days therefore, begins to run from the date of the decree.

Although the judgment of this Court was delivered on 7-3-1951, in all the four Letters Patent Appeals, the decree in all the four cases was drawn up on 4-4-1951. Therefore, although the period of 90 days has to be computed from the date of the decree, the period up to the drawing up of the decree has to be excluded which in effect means the period of 90 days must be calculated from the date of the signing of the decree. On that computation the application for leave to appeal to the Supreme Court had to be filed on 3-7-1951. In fact the applications were filed on 2-8-1951. Therefore, it has been argued by Mr. Datar that the applications are barred by limitation.

3. Mr. Murdeshwar has, however, contended that in making this computation, the periodrequired for obtaining copies of the decrees should be excluded. What has happened in these cases is that on 2-8-1951, all the four applications for leave to appeal to the Supreme Court were presented. But only in C. A. 109 of 1952 a copy of the Judgment of this Court was produced. In all the four civil applications the copies of the decrees were ready with the learned advocate and were in fact produced in the office.

We have ascertained from the office that they were in fact produced by the learned advocate but as Rule 187 of the rules of this Court on the Appel-late Side did not require the production of copies of any decrees, the office informed the learned advocate that they need not be produced, with the result that they were taken back by thelearned advocate. The question is whether in these circumstances time required for obtaining copies of the decrees should be excluded or not.

4. In two applications, C. A, Nos. 109 and 506, the time required for obtaining copies of the decree was 45 days but in the other two applications, C. A. Nos. 507 and 508, the time required was 15 days.

5. It has been argued by Mr. Murdeshwar that as all these Letters Patent Appeals were disposed of by one common judgment, the time required for obtaining the copies of the judgment should be excluded. In this particular case, the time required for obtaining the copies of the judgment was 83 days. If Mr. Murdeshwar's-contention is accepted, then all the four applications will be within time. We are, however, unable to accept the contention. The time required for obtaining copies can be excluded only under Section 12 of the Lmitation Act.

Sub-section (2) of that section refers to applications for leave to appeal and it has been laid down that in computing the period of limitation prescribed for an appeal and an application for leave to appeal, the time requisite for obtaining the copy of the decree, sentence or order appealed from or sought to be reviewed shall be excluded. Sub-section (3) of that section specifically refers to appeals from decrees and it is only in those cases that the time required for obtaining a copy of the judgment can be excluded.

This view has recently been taken by the East Punjab High Court in - 'Tej Krishen v. Delht ' Cloth and General Mills Co. AIR 1950 EP 195 (A). At p. 199 this point has been considered by Mr. Justice Kapur and he has come to the conclusion that in applying for leave for appeal to the Supreme Court, the applicant is not entitled to get any time expended in obtaining a copy of the judgment deducted in computing the period of limitation.

6. Then Mr. Murdeshwar urged that under Sub-section (2) of Section 12 of the Limitation Act, the petitioner is entitled to deduct at least the time required for obtaining the copy of the decree. In answer to this, it has been contended by Mr. Datar that the rules of our Court do not require that any copy of the decree or judgment need be filed in making applications for leave to appeal to the Supreme Court and that therefore any time required for obtaining such copy should not be excluded.

There is, however, an answer to this contention in the decision of the Privy Council in -- 'Jiji-bhoy N. Surty v. T. S. Chettyar Firm AIR 1928 PC 103 (B). There also under a rule of the High Court it was not necessary to append a copy of the decree in filing an appeal therefrom and question arose whether in such a case the applicant was entitled to exclude the period expended in obtaining a copy of the decree. Their Lordships held that

'Sub-section (2) of Section 12 of the Limitation Act, which excludes from the period of limitation for appealing from a decree, the time requisite for obtaining a copy of it, applies even when by a rule of the High Court a memorandum of appeal need not be accompanied by a copy of the decree.'

This ruling would apply to the cases before us and the applicants would be entitled to excludethe period required for obtaining the copies of decrees even though Rule 187 of the High Court Appellate Side Rules does not require that the application for leave to appeal to the Supreme Court should be accompanied by the copy of the decree.

7. On this footing applications Nos. 109/52 and 506/52 in which 45 days were taken in obtaining copies of the decrees would bring the two applications within time. But as only 15 days were taken in obtaining copies of the decrees in C. A. Nos. 507 of 1952 and 508/52 even the exclusion of the period would not bring those applications within time.

8. It has, however, been argued by Mr. Murde-shwar that application No. 109/52 which arose from L.P.A. 48 of 1949 is undoubtedly linked with C. A. No. 508 of 1952 which arose from L. P. A. 46 of 1949. As I have already stated in the opening part of this order, both these L. P. Appeals Nos. arise out of orders passed in Darkhast No. 6 of 1947. The learned Judge of the trial Court made one order on 23-12-1947, against which first appeal was filed almost immediately in this Court. As no stay was granted, the execution proceeded for some time and in the same darkhast another order was passed on 4-8-1948, against which another appeal was filed in this Court. The two appeals were heard together and the Letters Patent Appeals were also heard together. The order dated August 4 is based to a very large extent on the order passed on 23-12-1947.

Therefore, the two L. P. Appeals deal with the same subject matter. An anomalous situation is likely to arise if C. A. No. 109 of 1952 which is held to be in time is allowed and the appeal to the Supreme Court succeeds, while the later order based on the earlier order stands confirmed as a result of no leave being granted to appeal to the Supreme Court. Under these circumstances, we think that it would he just and equitable that the two matters should be treated as one and C. A. Nos. 109 of 1952 and 508 of 1952 as arising out of the same decision of the trial Court and should be disposed of by the Supreme Court at the same time.

We, therefore, hold that both C. As. 109 and 508 of 1952 are within time though technically C. A. No. 508 of 1952 will have to be held to be out of time by 15 days. The same reasoning applies to C. A. Nos. 506 of 1952 and 507 of 1952 which arise out of the original Darkhast No. 9 of 1947 and those two applications have also to be held to be within time.

9. This disposes of the preliminary objection raised by Mr. Datar. On merits, although there have been two concurrent judgments of this Court, we think the point involved in this appeal is an important one and therefore these are fit cases for appeal to the Supreme Court.

10. The costs in C. A. Nos. 109 of 1952 and 506 of 1952 will be costs in the cause and the applicants will have to pay the costs of the opponents in C. A. Nos. 507 of 1952 and 508 of 1952.

11. We direct that the copies of the decrees which were ready with the applicant on 2-8-1951, but were not accepted by the office should be produced today in all these applications.

12. All the four appeals may be consolidatedas they are between the same parties and thesame question of law arises in all the fourappeals.

13. Applications allowed.


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