1. This second appeal raises a small but very important point of law. It relates to the interpretation of the expression 'time requisite for obtaining a copy of the decree' as mentioned in Sub-section 2 of Section 12 of the Limitation Act. The suit in this case was No. 121/1 of 1951-52 on the file of the Subordinate Judge, Gulbarga. The Judgment in that suit was delivered on 30-9-54 but the decree was actually signed as late as on 21-12-54. The appeal No. 37/4/56 was filed in the District Court of Gulbarga on .23-12-54. A preliminary objection having been raised that the appeal was barred under Art, 152 of the Limitation Act, the same was upheld by the learned District Judge and it was dismissed on 28-3-57. It is against this that the present appeal has been filed.
2. According to the learned District Judge, tho period of 30 days under Article 152 of the Limitation Act has to be counted from the date of the decree which means the date of the judgment ) i.e., 80-9-54. That is how the appeal is barred by time. It is urged by the learned Advocate for the appellant that, in pursuance of Rule 7 of Order XX, C. P, C. the decree has to bear the same date as the judgment. The date of signing the decree will be different. It will invariably take some time for the office of the Court to draw up a decree in terms of the judgment and to get it signed by the Judge. Order 41 rule 1 of the Civil Procedure Code requires that a copy of the decree and also of the judgment appealed from must accompany the memorandum of appeal.
According to him, time required for the Court to prepare the decree and to get the signature of the Judge should be considered as part of the lime requisite for obtaining a copy of the decree under the terms of Section 12(2) of the Limitation Act. If this period is excluded, he contends the appeal is quite in time. On the other hand, the contention of the learned Advocate for the respondent is that the said term is intended to include, merely the period of time between the date of application for a copy of the decree and the date when the copy is ready for delivery.
According to him, if the party wants to take the benefit under Section 12 of the Limitation Act, he must apply soon after the delivery of the judgment so that whatever time is occupied for drawing up of the decree and for getting it signed, will be covered by the period required for preparing a copy of the decree. If he fails to apply, he cannot claim the benefit of exemption under Section 12 merely by putting forth the ground that Court also took some time for preparing the decree since the latter period is not intended to be covered by Section 12.
3. One preliminary objection was raised by the learned Advocate for the respondent. He urges that according to Hyderabad High Court Act, an appeal like the one under consideration has to be heard by a Bench of two Judges and that a single Judge has no jurisdiction. Section 4(ii) of that Act enumerates the cases which can be heard by a single Judge, and Section 6 lays down that all other cases should be heard by a Bench. It cannot, therefore, he disputed that if the present case was heard by the Hyderabad High Court (which is now defunct), if ought to have been heard by a Bench of two Judges.
It is also not disputed that, according to the Rules of practice of the High Court of Mysore, an appeal like the one under consideration can be heard by a single Judge. What the learned Advocate for the respondent urges is that the hearing of the appeal in this High Court also must be according to the rules of Hyderabad. In support of this proposition, he relies on the provisions of Section 52 of the States reorganization Act 37 of 1956. This section says that the High Court of a new State shall have in respect of any part of the territory included in that new State all such original, appellate and other jurisdiction as under the law in force immediately before the appointed day is exercisable in respect of that part by any High Court in an existing State.
This section merely clothes this High Court with all the powers originally enjoyed by the Hyderabad High Court. I cannot understand how it can he interpreted to mean that an appeal from that area when it is being heard by this High Court ought to be governed by the rules of procedure of that High Court.
So far as the practice and procedure is concerned, there is the specific Section 54 of the States Reorganisation Act. It lays down that the practice and procedure of the corresponding State (old Mysore State) shall, with necessary modifications, apply in relation to the High Court of the New Stale of Mysore. In hearing the present appeal, the rules of practice and procedure that will apply will be those of the High Court of Mysore and not those of Hyderbad.
4. In this connection, it is urged that the right of appeal is a vested right of a suitor which accrues to him on the very day when a suit is instituted. If cannot be taken away or even altered by any change in the law subsequent to the institution of the suit. It is thus urged that in the old Hyderabad State the present appellant had a right of being heard by a Bench of two Judges and that this right enures to his benefit even now. No doubt, right of appeal is a substantive right; but that cannot be extended to claim a right of being heard by a specific Bench of the High Court. A single Judge of this Court can hear the appeal.
5. after reorganisation of States, there has been a decision on this very point in In re Sridhar Rao. AIR 1958 Andh Pra 60 Holdine that a single judge of the Andhra Pradesh High Court can hear such second appeals, their Lordships observe;
'There is an essential distinction between a substantive right of appeal and the procedure pre-scribed for disposing of that appeal. The Second appeal filed in the Hyderabad High Court was transferred to the Andhra Pradesh High Court and was disposed of by the said High Court in accordance with the procedure prescribed by that High Court for disposing of such appeals. Whether the appeal is disposed of by a single Judge or by a Bench of two Judges it is a disposal by the High Court itself.
The internal distribution and allocation of work between and among the judges of the High Court is a matter of procedure and the change of the procedure does not affect the vested right of a party as it does not deprive him of his right of appeal to the High Court, Therefore, the fact that the appellant had a right under the Hyderabad High Court Act (3) of 1357 (F) to have the Second Appeal heard by a Bench of two Judges will not make the judgment of the single Judge of the Andhra High Court without jurisdiction.'
6. As already mentioned before the point for consideration is the interpretation of Section 12(2) of the Limitation Act. It would, therefore, be useful to quote that sub-section is extenso,
'In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded.' Since this section contemplates the Exclusion of a certain period while computing the period of Limitation, one should expect the Legislature to state with precision the terminal dates, the period between which is to be excluded. Unfortunately that is not done. The wording 'the time requisite for obtaining a copy of the decree' is rather ambiguous and it has given rise to two different interpretations. The ambiguity is further enhanced by the fact that a decree which is drawn up bears two dates. A' decree is drawn up after the pronouncement of the judgment and it necessarily takes some time before its preparation.
Still it is required to bear the date on which the judgment is pronounced as provided in Order XX, rule 7 C. P. C. But the date of actual signing of the decree will be different from the date of judgment. The third column of Articles 151. 152 and 156 of the Limitation Act refers to the date of the decree appealed from as the starting point of limitation in respect of those articles.
A question arises whether the said Articles refer to the actual date on which it is signed and sealed or the fictional date which is the same as the date of judgment. If only the Legislature had put the date of the signing of the decree as the starting point of limitation in the above Articles, there would have been little room for divergence of views in the matter of interpretation.
It would not be reasonable to expect limitation to start even before the decree comes into existence and is signed and sealed as the token of its completion. But, as laid down in those Articles, the starting point is the date of the decree, and by reason of Order XX, rule 7, C. P. C. It will have to be assumed to refer to the date of judgment.
7. As already referred to above, the expression 'the time requisite for obtaining a copy of the decree' is capable of two interpretations. The practical difficulty in the application of the said sub-section hinges on the question as to whether an application for copy is a necessary pre-requisite for invoking the benefit of the period of exclusion laid down in the sub-section.
According to one view, greater stress is laid on the words 'obtaining a copy of the decree' and it is interpreted that this presupposes an application for copy given by the party. According to that view, it is urged that the filing of an application for copy is a condition precedent for getting the benefit of the exclusion mentioned in the sub-section. The other view lays stress on the term 'time requisite'.
On that basis, it is interpreted that whether there is any application for copy or not, whatever time is necessarily required has got to be excluded. Thus, it appears that both the views are possible. Then the proper interpretation would be that which is more convenient or reasonable. Maxwell on the Interpretation of Statutes (page 191, 10th Edition 1953) observes:
'In determining either the general object of the Legislature or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord With convenience, reason, justice and legal principles, should, in all cases of doubtful significance, be presumed to be the true one.'
8. It would, therefore, be useful to examine which of the above two interpretations is more convenient or reasonable. As already discussed before, some time does elapse between the date of the judgment and the preparation of the decree and its signing. In conceivable cases, it extends to months. In most cases (except in the case of decrees on the original side of the High Court and some other matters), the decree is to be drawn up by the office of the Court itself and nothing is required to be done by the party towards the same.
If the Court takes three or four weeks or more for preparing the decree, it is not understood why the period so occupied should be counted to the detriment of a party and not excluded as the period requisite for obtaining a copy. The obvious reply is that the party should be diligent and should apply for a copy of the decree soon after the judgment is delivered so that the period thus occupied by the Court will also be included in the time requisite for obtaining a copy of the decree.
It is not reasonable to expect, much less to insist, that a person ought to apply for a copy of a document which is non-existent. Ordinarily a party will apply for a copy of the decree when he wants to go in appeal or revision. Before deciding whether an appeal should he filed or not, he should know the contents of the decree. It is not impossible to conceive of cases where a party may not think of filing an appeal when he sees merely the judgment.
He may still be persuaded to file one after he looks at the decree, since the decree brings out more details and also shows the assessment of costs. Speaking of the necessity of looking into the decree before a party decides whether it should be appealed against or not their Lordships of the Privy Council have observed in Jijibhov N Surty v. T. S. Chettyar Firm, AIR 1928 P.C. 103:--
'The decree may he complicated and it may be open to draw it up in two different ways and the practitioner may well want to see its form before attacking it by his memorandum of appeal ..... and as Sir John Edge says, the Legislature may not wish him to hurry to make a decision till he has well considered it.'
8a. On the other hand, there may be cases where a party is expected to do some act before the decree is drawn up. In most of the High Courts, the rules of the original side require that a party should apply for the drawing up of the decree. In some other cases, it may be that a party has to deposit some money before the decree is prepared. In all such cases, the drawing up of the decree may be delayed by any negligence or default on the part of the party concerned.
If, in such cases, the party has put in an application soon after the judgment, according to the first view the whole period occupied in the drawing up of the decree will be deemed as 'time requisite' under Sub-section 2 and will get exempted, and would thus lead to curious results. A party would be getting the benefit of his own default or negligence. Law never intended such a result.
Obviously an interpretation which leads to such unreasonable results ought not to be accepted.
9. The same objection is likely to he raised against the second view also, according to which, the provisions of Sub-section 2 of Section 12 can be invoked even prior to an application for copy. It may be said that if the whole of the period occupied in the preparation of the decree is to be excluded, the time spent on account of the negligence or default of a party will also get exempted as time requisite for obtaining a copy.
This objection could, however, be met by so interpreting the words 'time requisite' as not to include the time covered by any delay caused by an act of the party. The word 'requisite' has been interpreted by their Lordships of the Privy Council as meaning 'properly required' (Vide AIR 1928 P. C. 103). In that view of the case, the abovesaid time will have to be excluded. What is to be considered as 'time requisite' is the time which is necessarily spent by the Court in preparing the decree excluding the time for which the party may himself be responsible.
10. According to the first view, an application for copy gives a starting point for exemption to be claimed under Sub-section 2, the last point, however, being the date on which the copy of the decree is ready for delivery. The whole of this time is considered to be 'the time requisite for obtaining a copy' of the decree. One could understand such an emphasis being laid on filing an application for copy if the expression were 'time requisite in obtaining a copy of the decree.' But the wording in Clause 2 is 'time requisite for obtaining a copy of the decree.'
The word 'for' is broader in its implication. It is broad enough to admit of all the time that is required for the purpose of obtaining a copy viz. both the time that is required in the preparation of the decree and also the time that is required in making of the decree. The second view which is broader in its implication and which is more reasonable appears to be the proper interpretation. Besides, it is more convenient from the point of view of a party who wants to appeal.
This question has been the subject matter of consideration by various High Courts including in some measure the Privy Council also. As abovesaid, there has been a divergence of opinion in the interpretation of the said clause. It would be, therefore, worth while considering the views expressed by the Privy Council and the different High Courts.
11. The earliest case on the point is a Full Bench decision of the Calcutta High Court, viz., Bani Madhub v. Matungini Dassi, ILR 13 Cal. 104. In that case, the judgment was delivered on 17-7-1883 but the decree was actually signed on 23-7-1883. A copy for application was filed on 3-8-1883 and the copy was delivered on 11-8-1883. The appeal was actually filed on 30-8-1884. Under Article 152, the period of limitation was 30 days from the date of the decree. The Chief Justice who delivered the judgment observed:
'But, in our opinion, the fact that the decree was not in existence, that is signed by the particular Judge, and could not therefore be copied until 23rd July, that is, 6 days after the date it bears, entitles the appellant to ask us to deduct those six days in addition to the eight days, and thus to 'hold that under Section 12 the appeal has been presented within the prescribed period.
The above case was quoted with approval by the Privy Council in Pramatha Nath v. William Arthur, AIR 1922 P.C. 352. In this case, there was a decree in favour of the plaintiff by the original side of the High Court on 14-2-1918. Subsequently there was an application to set aside the decree and that application was ultimately refused on 26-7-1918. On 13-8-1918 an appeal was filed to the appellate side of the High Court against that order of refusal. One of the original side rules of the Calcutta High Court directed that no decree should be drawn up until applied for by a party and that an application therefore should be made by a requisition in writing of the party in whose favour the decree was made or in default of his applying within 4 days from the date, of the decree, by any party within one month. After the order was passed on 26-7-1918, no steps were taken by the plaintiff within four days to have the decree drawn up. He, however, applied on 6-8-1918 for the purpose.
On 7-8-1918 the draft order was sent to the appellant but he returned the draft on 16-8-1918. On 28-8-1918 it was signed and on 3-9-1918 it was filed by the party in court. The period of appeal was 20 days. The High Court having held that the appeal was out of time, the matter was taken up to the Privy Council. There it was contended for the appellant that the 'time requisite' within the meaning of the sub-section was the entire time that was actually occupied in obtaining the decree.
If that period was allowed, the appeal would be in time. Their Lordships declined to accept that view. According to them, the periods of time between 30th July and 6th August and again between 7th August and 12th August which were within tile appellant's control could not be excluded under the provisions of Section 12(2) of the Limitation Act. In mis connection, their Lordships observed:
''In their Lordships' opinion, no period can be regarded as requisite under the Act which need not have elapsed if the appellant had taken reasonable and proper steps to obtain the order.'
Speaking of the abovementioned Calcutta case, ILR 13 Cal 104 (FB), their Lordships refer to two periods of time. The first was six days between the pronouncing of the judgment and the signing of the decree, and the second was 8 days from the date of application for copy to the obtaining of the copy. Their Lordships further observed:
'All that the case decided was that those two periods of time, one of which was prompt and effective, and the other of which the appellant might not have been able to control, ought to be deducted from the length of time between the decree and the lodging of the memorandum.'
From this, it appears clear that their Lordships did approve that the period from the pronouncing of the judgment to the signing of the decree was liable to be excluded where the appellant himself was in no way responsible for the delay and where he had taken prompt and effective steps in so far as such steps were necessary. This was further clarified:
'It (ILR 13 Cal 104 (FB)) certainly does not support the proposition that in determining what period is to be deducted in any case the time actually consumed in obtaining the decree is to be ' regarded.'
12. There is one more case of the Privy Council in AIR 1928 P. C. 103, where the provisions of Section 12 of the Limitation Act came to be considered. Although this case does not precisely deal with the problem we are considering, their Lordships' interpretation of the 'word 'requisite' appearing in Section 12 is useful:
'The word 'requisite' is a strong word; it may be regarded as meaning something more than the word 'required'. If means 'properly required' and it throws upon the pleader or counsel for the appellant the necessity of showing that no part of the delay beyond the prescribed period is due to his default.
But, for that time which is taken, up by his opponent, in drawing up of the decree, or by the officials of the Court in preparing and issuing the two documents, he is not responsible.'
From this, it appears that, according to their Lordships, the period mentioned in the second part of the above observation is one which deserves to be excluded under Section 12. It would not, therefore, be reasonable to expect that a party must have filed an application for copy before gelling the benefit of exemption under Section 12(2).
13. Prior to these two decisions of the Privy Council, the view contrary to that discussed above, was expressed in Bechi v. Ahassan Ullah Khan, ILR 12 All 461 (FB). It was observed:
'In computing the time to be excluded under Section 12 of the Limitation Act, from a period of limitation, the 'time requisite for obtaining a copy' does not begin until an application for copy has been made, if, therefore, after judgment, the decree remains unsigned, such interval is not to be excluded from the period of limitation, unless, an application for notice having been made, the applicant is actually and necessarily delayed through the decree not having been signed.'
After the above decision of the Privy Council, this decision was reconsidered by a Full Bench of the Allahabad High Court in Keshar Sugar Works v. R.C. Sharma : AIR1951All122 . and the view expressed in the former case was reaffirmed by a majority of the judges. It was observed that what was considered in AIR 1922 P. C. 352, was as to whether the time which need not have elapsed, if the appellant had taken reasonable and proper steps to obtain the order, could be treated as time requisite within the meaning of Section 12. The appeal was disposed of by holding that the same could not be regarded as requisite. According to the Allahabad High Court, the Privy Council did not proceed to consider the other point which is now under consideration.
In this way, the said case has been distinguished. It has also been distinguished on the ground that it was an appeal from the original side where a party has to apply for preparation of the decree before it is drawn up. This latter distinction is, no doubt, there. But the Privy Council has specifically expressed that, under such circumstances where a party is required to do certain acts, no portion of the time which could have been avoided if he had taken reasonable and proper steps should be deemed to be time requisite for obtaining a copy. Referring to the case of AIR 1928 P. C. 103, Malik C. J. who wrote the principal Judgment observed:
'So far as I can see, that case has no bearing on the point for decision before us, as the application for copy of the decree was filed to the day the judgment was delivered.'
It is significant to note here that Malik C. T. concedes that it is not possible to file an application for a copy of a decree before it is actually prepared (para 16). It is, therefore, not possible to understand why an application for a copy ought to be insisted upon even before the decree is drawn up and signed. So far as this point is concerned, the considerations do not differ whether it is a ease where some act of the party is necessary before the decree is drawn up or a case where the drawing up of the decree is to be done wholly by the Court itself.
14. While dealing with this case, it may be mentioned with respect, that the views expressed by Agarwala J. in his dissenting judgment are entitled to much weight. As pointed out by him, it would be difficult to apply the principle accepted by the majority to a case where the first application for copy is rejected and a second one is made after the decree has been prepared and copy supplied on the basis of that application. In such a case, what is to happen to the intervening period between the dismissal of the first application and the preparation of the decree?
On a strict application of the principle laid down according to the majority view, this period cannot be included as the period contemplated for exclusion under Section 12 (2). This would lead to anomalous results. The learned Judge has further discussed that if it is said that the said interval can be excluded under Section 5 of the Limitation Act, it would mean that a party who has otherwise a right to claim its excursion under Section 12 is reduced to the position of depending upon the discretion of a Court. Lastly, it may be mentioned that this view of the Allahabad High Court has not found favour with the other High Courts in India.
15. The principle laid down in ILR 13 Cal 104 (FB) (Bani Madliu) has been accepted by most of the High Courts. So far as the Calcutta High Court is concerned, it has been followed in Secy, of State v. Parijat Debi : AIR1932Cal331 . Relying on the same Bani Madhu's case, ILR 13 Cal 104 (FB), in Dwarka Dag Kedar Bux v. Gajanan Jagan-nath, AIR 1946 Cal 10, a Full Bench of that High Court held
'the interval between the delivery of the judgment and the date of the signing of the decree can be excluded under Section 12 irrespective of the date of the application for copies of the judgment and the decree.'
16. The same question had arisen before a Full Bench of the Patna High Court in Gabriel v. Chandra Mohan, AIR 1936 Pat 45. The judgment was delivered on the 6th December 1930 but it was not signed till the 13th. An application for copy was however, filed on the 10th and the copy was ready for delivery on the 15th of December. The appeal was actually filed on the 13th of Jan. 1931.
The period of limitation was 30 days under Article 152. Under the circumstances, it was held that
'the period between the 6th and 15th December was not under the control of the appellant and should be excluded while computing the period of limitation.'
Their Lordships further interpreted the expression 'time requisite for obtaining a copy of the decree' as meaning the time which would nave been necessary in any case for obtaining a copy of the decree appealed from. Their Lordships opined that more emphasis ought to be laid on the word 'requisite' than on the word 'obtaining.' This case as well as Bani Madhu's case, ILR 13 Gal 104 (FB), were followed in Manoo Rai v. Keshwar Rai, AIR 1948 Pat 260. Although the main question in that case was slightly different, it involved the question under consideration. The observations of Bennett J. are very clear;
'The period between the pronouncement of judgment and the signing of the decree is properly and necessarily excluded both as part of the time required for obtaining a copy of the decree and also as part o the time required for obtaining a copy of the Judgment. For practical purposes, therefore, they always begins to run from the date the decree is signed. Once the time begins to run, it continues to run unless it is interrupted by an application for a copy of the decree or by an application for a copy of the judgment.'
17. Following an earlier decision of the Oudh High Court in Yusuf Ali Khan v. Mohammad Ka-zim, reported in , the same High Court held as follows in Jadubir Singh v. Sheonaresh Singh AIR 1944 Oudh 154:
'In cases, therefore where it is the duty of the court to draw up a decree or order without reference to the parties, the rule of exclusion of time between the date of judgment and the signing of the decree or order has to be applied.'
The decisions of the Lahore High Court do not, however appear to be uniform. In Kahn Chand v. Gurdit Singh, AIR 1936 Lah 976, the case of Bani Madhu of the Calcutta High Court in ILR 13 Cal 104 (FB), has been followed. The observations are:
'Where the law creates a limitation and a party is disabled to conform to that limitation without any default in him, and he has no remedy over it, the law will ordinarily excuse him, There can be no legal obligation on a litigant to apply for a copy of the decree which, is non-existent; the existence of a decree is a necessary condition precedent to the accrual of even the right or obligation to apply for a copy. Where a decree is not drawn up within the period of limitation prescribed for preferring an appeal against the decree, the suit must be deemed to be pending up to the date on which the decree is actually drawn up and limitation for preferring an appeal will commence to run only from that date.'
I am afraid I have to say with respect that the proposition of law laid down is a little too wide. In a subsequent case of the same High Court reported 'in AIR 1945 Lah 233, Abdul Salam v. Abdul Khaliq, it has been held that under Article 156, limitation for appeals runs from the date of the judgment even though the decree; is actually prepared and sighed later. The abovementioned case of Kahn Chand, AIR 1936 Lah 976, has been noticed but not followed, It also refers to the Calcutta decision in Bani Madhu's case, ILR 13 Cal 104 (FB) and tries to explain it away by saying that there
'it was found that it was the duty of the Courts concerned to prepare the decree suo motu and that there was nothing to be done by the parties.'
Referring to the case on hand, their Lordships say that no decree could be drawn up until stamp duty had been paid by the parties. It is finally observed:
'In my judgment, the case is governed by the principle laid down by their Lordships of the Privy Council in 49 Ind. App. 307 (equivalent to AIR 1922 PC 352) wherein they observe, that time which need not have elapsed if the appellant had taken reasonable and proper steps to obtain a copy of the decree or order could not he regarded as requisite time within the meaning of Sub-section (2) of Section 12 of the Limitation Act.'
From this, it is possible to infer that if the time was occupied for any reason to which no fault of the party could be attributed, the time could be exempted.
18. Before I proceed to discuss the decisions of the other High Courts. I think it worth-while to refer to one more decision of the Privy Council which, though not precisely in point, is sufficient to give a further indication of the view of the Privy Council on this question. In Hubert v. Mohamed Kamgar Shah , the period, of appeal was 20 days under Article 151 of the Limitation Act. It was a case on the original side of the Calcutta High Court.
The total period of delay involved was 124 days. The delay of a period more than 104 days was accounted for by the period which elapsed before the party could obtain a copy of the order against which an appeal was to be filed. The High Court was satisfied about the explanation and the Privy Council agreed with that conclusion. Referring to a portion of this period, their Lordships observed :
'The first portion of the material period was occupied in an attempt to obtain a variation of the order as to costs. In fact, a variation was made, although not the one asked for and their Lordships think that it cannot be said that during the period the respondent here was failing to take reasonable and proper steps to obtain a copy of the decree. With regard to the second period, that seeing to have been mainly accounted for by an attempt by application to the Registrar by the respondent here, to get the order when issued dated not as 5th December 1934, but as at 31st January 1935, which was not the true date; but, at any rate, the main part of the judgment had been delivered on the 5th December 1934.
In that attempt he was unsuccessful, and in-deed the application may have been doomed to failure from the first; but the fact remains that during that period the respondent was occupied in making application to the Registrar for something which was connected with the settling of the order and in fact, the order was not ultimately settled and sighed until 12th March 1935. Accordingly, their Lordships agree with the High Court that the appeal was competent.'
The foregoing, is sufficient to show that the period occupied by an application to get a variation of the order is also one that has been held to be included in the period for exclusion as time requisite for obtaining a copy of the decree under Section 12(2) of the Limitation Act. There is no specific mention in the report of the judgment as to whether an application for copy was filed prior to such an application. In all probability, it is not possible that such an application could have been filed. If so, the period excluded covers the period which must have elapsed prior to the application for a copy of the decree.
19. No decision of the Madras High Court on the specific point has been brought to my notice. But there are some decisions where incidentally an opinion is expressed which may be said to cover the point on hand. In Saminatha Ayyar v. Ven-katasubba Ayyar, ILR 27 Mad 21, judgment was delivered in a case on the afternoon of the last working day of the Court before the commencement of the Christmas vacation. It was then too late to apply for a copy of the judgment that day. An application for copy was, however, made on the re-opening day of the Court. The appeal was filed on a subsequent day by which time the limitation had expired.
It was contended that the period covered by the Christmas vacation when the Court was closed should be deducted under the provisions of Section 12 of the Limitation Act. On these facts, the High Court held 'that the appellant is entitled to deduct the period during which the Court was closed. Such period, in the circumstances of the case, must be taken to be part of the 'time requisite for obtaining a copy of the judgment' The period covered by the vacation was obviously a period before any application for copy was filed.
Even then the High Court held that it can be treated as 'time requisite' for obtaining a copy. Though this has no reference to the date of signing of the decree, it shows that the provisions of Section 12 (2) are wide enough to include time prior to the date of the application much the same as was done in the above noted Privy Council case of . Dealing with the question as to whether an application for a copy is a necessary condition for invoking the benefit under Section 12(2), their Lordships of the Madras High Court observed:
'The argument was that the words 'requisite for obtaining a copy of the judgment' presuppose an application for copy. There is nothing in the section itself to Suggest that these words ought to be so construed. It is not impossible to conceive of cases where time may properly be deducted though the commencement of the period from which time is deducted precedes the actual application for a copy of the judgment.'
Accepting this proposition of law which is the same as that of the Privy Council in , that in proper cases time prior to the date of the implication for copy can be deducted, it follows that the time between the date of the judgment and the date of signing of the decree can also be excluded on the ground that it is proper to exempt it. In Subrahmanyan v. Narasimham, ILR 43 Mad 640: AIR 1920 Mad 559 (2), the facts were to some extent similar to the above. The judgment was pronounced on the first day of the X'mas vacation and an application for copy was not made till several days after the re-opening of the Court.
It was then held that the applicant was not entitled to deduct the period of the vacation as time requisite for obtaining a copy under Section 12. Their Lordships did notice the above, mentioned case of ILR 27 Mad 21, and distinguished it from the one with which they were dealing, on the ground that the application for copy in Saminath's case, ILR 27 Mad' 21, was filed on the re-opening day while in the case they were considering it was filed several days thereafter. But, it appears that their Lordships did go somewhat further since they relied on ILR 12 All 461 and observed:
'I think it may be said that generally, if not invariably, as held in ILR 12 All 461, the time requisite for obtaining copies cannot include any period antecedent to the appellant's asking for copies in the usual way.'
There are conflicting decisions of the old Mysore High Court on this point. The earliest case on the p;:int is Mahomed Yusufali v. Mahomed Ali Khan, Reported in 22 Mys. C. C. R. 311. It was held:
'In computing the period of limitation for an appeal, time begins to run from the date of the decree appealed against, which is the same as the date of the judgment, and not from the date on which the decree happens actually to be prepared and signed.'
It appears the Judges in that case thought it fit to follow the decision in ILR 12 All 461 and Yemajt v. Antaji, ILR 23 Bom 442. It may be mentioned here that the latter case was overruled by the Full Bench of the Bombay High Court in MurJidhar y. Motilal AIR 1937 Born 162. So fat as the former case is concerned, although it has been confirmed by the said High Court in : AIR1951All122 , most of the other High Courts have dissented from it following the two decisions of the Privy Council above discussed: In Srikantiah v. Naranappa, 33 Mys. C. C. R. 97: 5 Mys LJ 270, it is laid down that
'if an application for a copy is made after the decree is signed, but before the expiry of the period prescribed for appeal, time may be computed from the date of the signing of the decree.'
In a later case, reported in 10 Mys. LJ 23, Basavaraj v. Narasing, it was held:
'Where an application for copy had been made before the decree was signed, the party would be entitled to count in his favour the period between the date of the application and the signing of the decree. Even if the application is made for copy after the decree is signed, but before the expiry of the period prescribed for appeal, time may be computed from the date of signing of the decree.
Where, however, an application for copy is made beyond the period allowed for appeal, time cannot be reckoned' from the date of the signing of the decree.'
In none of these cases there is a discussion of the principles on which the conclusion is based. It is therefore difficult to understand the justification for the view expressed in 22 Mys. C.C.R. 311.
20. The earlier view of the Bombay High Court as noted in ILR 23 Bom 442 and in New Piece Goods Bazar Co. v. Jivabhai Vadilal, 15 Born LR 681 was similar to that expressed in ILR 12 All 461. But both these cases were overruled by the .Full Bench of the Bombay High Court in AIR 1937 Born 162. Commenting on those decisions, Beaumont C. J. (as he then was) observed:
'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.'
The decision of the Full Bench has been expressed in the following words:
'The Court cannot impose upon statutory right of an appellant a restriction not warranted by the Act and a rule providing that no time shall be allowed for obtaining a copy of the decree unless such copy be applied for within 20 days from the date of the decree would be ultra vires. So 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 even when no application for such a copy was made till after the expiration of the time for appeal. The question whether the time was requisite is always one of fact to be decided in the circumstances of each case.'
21. The question again came up before a Full Bench of the same High Court in Jayashankar v. Mayabhai : AIR1952Bom122 . Delivering the judgment of the Full Bench, Chagla C. J. (as he then was) observed:
'In our opinion, equal emphasis should be placed on both the expressions used in this subsection. What has got to he excluded is the time which is properly required, and the time which has got to be so excluded is the time which is necessary for obtaining a copy of the decree, It is difficult to understand why the action on the part of the appellant in applying for a copy of the decree should be decisive factor in considering whether time should be excluded under the sub-section or not. If is also difficult to understand why the appellant should apply for a copy of decree which is non-existent and which has not yet been prepared or signed by the Judge.'
As their Lordships were considering the question as to whether the whole of the period between the date of the judgment and the date of signing of the decree should be excluded, their Lordships observed:
'Therefore, apart from authorities, with which we shall presently deal, the view we take on a construction of this section is that the time properly taken for the preparation of the decree and the time which elapses between the pronouncement of the judgment and the signing of the decree should be excluded under Section 12(2), Limitation Act. We advisedly use the word 'properly' because it is not necessarily the whole of the time that must be excluded in every case.'
Referring to the Privy Council case in AIR 1922 P.C. 352, it was observed:
''It is rather significant that their Lordships did not consider the question of the application for a copy of the order at all. That was not the test that they applied. What they considered was whether the time taken up between the matins of an order and the signing of it was properly taken up or whether part of it was due to default of the applicant. That case clearly shows that their Lordships did not consider the application for a certified copy as the conclusive evidence. That case rather assumes that the period between the making of the order and the signing of it should be ordinarily excluded and that is why their Lordships were at pains to consider whether the whole of the period was properly required or whether part of it was taken up by reason of the default on the part of the applicant.'
I agree, with respect, that this is a correct reading of the decision of the Privy Council.
22. On a careful consideration of the above rulings as well as on the interpretation of the section itself, it appears that the provisions of Section 12(2) of the Limitation Act admit of two periods of time for exclusion:
(1) the period from the date of the judgment up to the date of the signing of the decree;
(2) the period from the date of application for copy to the date when the copy is ready for delivery.
In this case, we are considering only the former period. Although ordinarily the whole of that period deserves to be excluded, that cannot be laid down as a necessary consequence. What has to be excluded is 'time requisite' which means 'time properly required'. Generally in cases as in the mofussil where the preparation of the decree and the signing of it is wholly to be done by the Court itself without reference to any of the parties, it can be safely said that the time so required is one for which tho party is not responsible. Hence that period of time deserves to be properly excluded. But there may be cases where some act of a party is necessary before the preparation of the decree or for the preparation of the decree. In such cases, the court would have to consider whether any of the time taken up for preparation of the decree could be attributed to the default or negligence of the appellant. If the appellant is responsible for any of the time so required, then it cannot be held that that period of time was properly required and that period could not be excluded in his favour under Section 12 (2).
23. In the ease on hand, nearly three months were occupied from the date of judgment before the decree was actually signed. It is not alleged that any act on the part of the appellant was necessary for the drawing up of the decree. The whole of the period was taken by the Court itself for which the party cannot be held in any way responsible. Under these circumstances, the period of time from 30-9-1954 to 21-12-1954; must be held to have been properly required in preparing the decree. If this period is excluded, the appeal is certainly in time.
24. The appeal is allowed. The decree of the lower appellate court is reversed. It is declared that the appeal to that Court is in time. The case is remanded to the lower appellate court for decision according to law.
25. Appeal allowed.