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Chunilal Jethabhai Vs. Dahyabhai Amulakh - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtMumbai
Decided On
Case NumberCivil Application No. 389 of 1907
Judge
Reported in(1907)9BOMLR1138
AppellantChunilal Jethabhai
RespondentDahyabhai Amulakh
Excerpt:
high court rules, rules 17, 18 and 25-certified copies required by the rule- limitation act (xv of 1877)-civil procedure code (act xiv of 1982), section 652- presentation of memoranda of second appeals &c.-accompaniments.;an appeal &c. if presented in time is validly presented for the purposes of the limitation act if it is accompanied by copies required by the code of civil procedure, 1882. ;the accompainments directed under rule 25 of the high court rules are extraneous to the memoranda of appeals, applications or appeals in execution and the rule does not fix any time within which they are to accompany the memoranda &c. ;chandavarkar, j.- no rule of the high court can add to or modify the conditions and limitations of the law laid down in the limitation act. it is true that..........from an original decree, requires that such an appeal 'shall be accompanied by a copy of the decree appealed against and (unless the appellate court dispenses therewith) of the judgment on which it is founded. '18. that is, an appeal is to be regarded as presented if it is tendered with the two copies specified in the section. otherwise it cannot be said to be presented at all.19. having special regard to this essential condition laid down in the code for the due presentation of an appeal, the limitation act, by section 12, studiously prescribes that 'the time requisite for obtaining a copy of the decree appealed against' and 'the time requisite for obtaining a copy of the judgment on which it is founded ' shall both be excluded 'in computing the period of limitation prescribed for.....
Judgment:

Louis P. Russell, Acting C.J.

1. In this case it appears that the petitioners have filed a Second Appeal against the order dated the 20th December 1906, in Appeal No. 399 of 1905 on the file of the District Court of Ahmedabad on the 6th of April 1907 with all the necessary copies except the certified copies of the order of the first Court and of the decree of the appellate Court and of the decree of the High Court in the original suit. The said certified copies of the order of the first Court and of the appellate decrees in the original suit were filed on the 10th June 1907.

2. The Registrar, however, directed the appeal to be returned as being beyond time.

3. The appeal as presented on the 6th of April 1907 was in time, but the Registrar treated it as having been presented on the day on which the remaining copies were filed and has treated it as time-barred.

4. The question referred to us is whether he was right in so doing.

5. By Rule 17, Chapter V, Part V, of this High Court, Appellate Side, the Registrar shall admit to the register all memoranda of appeal which

(a) are duly stamped,

(b) are in the form,

(c) contain the particulars required by law,

(d) are accompanied by the necessary copies, and

(e) are presented within the time prescribed for the same.

The Registrar shall decide all questions under this rule and if he returns a memorandum of appeal, the appellant may apply to a Judge to direct registration.

6. Rule 18 provides that the Registrar may reject or return for amendment any memorandum of appeal for the reasons specified in Section 543 of the Code of Civil Procedure,

7. Rule 25(2) says : 'Memoranda of second appeals or applications for the revision of appellate decrees or orders, must be accompanied by copies of the decrees and judgments or orders of both the lower Courts.

(3) Appeals in execution proceedings must be accompanied by copies of the decrees sought to be executed as well as by copies of the order of the lower Court or Courts.

8. Now, in Rule 17, it will appear, there are five necessary points set out above and by the latter part of it the Registrar is to decide all questions thereunder. It is obvious, therefore, that it rests with him to decide one or more of the points, stated in the said five points.

9. Rule 25 expressly does not fix any time at which the documents mentioned in Clauses (2) and (3) are to accompany the memoranda, applications and appeals in execution proceedings thereunder specified.

10. Therefore, it appears to us that for purposes of limitation, the Registrar may accept the memoranda, applications or appeals in execution proceedings but may return them for the requirements of Rule 25(2) and (3) to be complied with.

11. In our opinion the accompaniments directed under Rule 25 are extraneous to the memorandum of appeal, application or appeal in execution, and, of course, it must be remembered that the Limitation Act being an enactment of a restrictive character must be strictly construed.

12. We are of opinion that the case of Ramchandra Sadashiv v. Laxman Sadashiv(1906) 8 Bom. L.R. 892, is in pari materia and accordingly we make the rule herein absolute and direct each party to have their own costs.

13. This decision will govern the various other cases in which the same point is involved.

Chandavarkar, J.

14. Rule No. 25, Clause (2) of this Court, the legality and construction of which for the purposes of limitation are now in dispute, requires that ''memoranda of second appeals ... must be accompanied by copies of the decrees and judgments or orders of both the lower Courts.'

15. Ever since the rule came into force in 1882, it has been the uniformpractice of this Court to construe it as laying down that a second appeal, presented within the period prescribed in Article 156 in Schedule II to the Limitation Act but accompanied only by copies of the decree and judgment appealed against and not by copies of the decree and judgment of the Court of first instance, shall be rejected as not having been presented in time, unless, the latter copies having been subsequently produced, the Court deems fit to excuse the delay.

16. It is now contended that such a construction of the rule is opposed to the language and spirit of the material sections both of the Code of Civil Procedure and the Limitation Act. And in support of the contention the decision in Ramchandra v. Laxman (1906) 8 Bom. L.R. 892 is relied upon. That decision, in my opinion, has no bearing and cannot be cited as an authority on the question now before us. It deals with the construction of the words 'in accordance with law' in Article 179 of Schedule. II of the Limitation Act; and those words contemplate a certain elasticity and power of variation and mean that the law is to be followed not verbatim et literatim but substantially. The words in fact allow a certain degree of latitude in the observance of the law (see Thomas v. Kelly (1888) 13 App. Cas. 506). The question now before us is entirely different, turning as it does upon certain sections of the Civil Procedure Code and the Limitation Act with different wording.

17. Dealing first with the Code, Section 541, which applies to an appeal from an original decree, requires that such an appeal 'shall be accompanied by a copy of the decree appealed against and (unless the appellate Court dispenses therewith) of the judgment on which it is founded. '

18. That is, an appeal is to be regarded as presented if it is tendered with the two copies specified in the section. Otherwise it cannot be said to be presented at all.

19. Having special regard to this essential condition laid down in the Code for the due presentation of an appeal, the Limitation Act, by Section 12, studiously prescribes that 'the time requisite for obtaining a copy of the decree appealed against' and 'the time requisite for obtaining a copy of the judgment on which it is founded ' shall both be excluded 'in computing the period of limitation prescribed for an appeal.'

20. The necessary implication of this is that for the purposes of limitation an appeal is presented within time, if, being accompanied by copies of the decree appealed against and the judgment on which it is founded, it has been presented within the period resulting from the mode of computation specified.

21. Now, Section 587 of the Code makes Section 541 applicable to a second appeal as well. Besides, in Section 12 of the Limitation Act the term ' appeal ' is used so as to comprehend both 'appeals from original decrees ' and ' appeals from appellate decrees.' It follows from that, that the necessary implication in Section 12 of the Limitation Act abovementioned applying to both appeals without distinction, there is a due presentation of a second appeal if it is accompanied by copies of the decree and the judgment appealed against. The Limitation Act read with the Code of Civil Procedure requires no more in the case of such an appeal. It puts it on the same footing for the purposes of limitation as an appeal from an original decree. Had the intention of the Limitation Act been otherwise, had the Legislature meant that in the case of a second appeal the period of limitation must be computed by treating it as duly presented only when and if it is accompanied by copies of the decree and judgment of the first Court as well as by those of the second Court, there would have been express provision made for deduction of the time requisite for obtaining a copy of the decree and of the judgment of the first Court. Expressio unius est exclusioalterius.

22. To put it more shortly, the solution of the question before us depends on the intention of the Legislature as it is expressed or necessarily implied in the Limitation Act and that intention must be discovered from the words actually used, and, where they are ambiguous, from surrounding circumstances, including other laws in pari materia. The Code of Civil Procedure is one of such laws. Applying this test, it is plain that Section 12 of the Limitation Act, with which Section 541 of the Code of Civil Procedure, made applicable to a second appeal by Section 587 of the same Code, must be read, treats an appeal from an original decree and a second appeal as the same for the purposes of presentation within the time prescribed for it.

23. If that is so, no rule of this Court can add to or modify the conditions and limitations of the law laid down in the Limitation Act. It is true that the Court has the power of making certain rules given by Section 652 of the Code of Civil Procedure But those rules must be 'consistent with ' the Code. And there is no power given to frame a rule modifying; any rule or mode as to computation of limitation prescribed, expressly or by necessary implication, in the Limitation Act.

24. Enough and legitimate room is left for the operation of the rule now under discussion after excluding it as ultra vires for the purposes of the due presentation of a second appeal within the period prescribed by the Limitation Act. Under Rule 17, the Regis' trar is competent to refusethe admission of such an appeal to the register if it is not accompanied by all the copies required by Rule 25. Though the copies of a decree and judgment of the Court of first instance are not necessary for the purpose of the presentation of a second appeal within the period prescribed in the Limitation Act, they may be and very often are necessary for other purposes. For instance, they may be required for the purpose of correctly ascertaining the amount of Court fee leviable on a memorandum of second appeal; or they may be required for the purpose of determining whether the second appeal should be dismissed under Section 551 or admitted under Section 552 of the Code of Civil Procedure. Rule No. 25 must be regarded as providing for such contingencies and so far it is intra vires and obligatory. That being its scope, its operation must be limited to such purposes.

25. On these grounds I am of opinion that the rule must be made absolute.

Heaton, J.

26. I agree in the conlusion arrived at.

Knight, J.

27. I concur.


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