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Krishnaji Vasudev Paradeshi Vs. N.R. Mattikoppa and Co. and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 1292 of 1969
Judge
Reported inAIR1972Kant274; AIR1972Mys274; (1972)1MysLJ674
ActsLimitation Act, 1908 - Sections 4, 12 and 12(2) - Schedule - Article 151; Limitation Act, 1963
AppellantKrishnaji Vasudev Paradeshi
RespondentN.R. Mattikoppa and Co. and anr.
Appellant AdvocateM. Rama Bhat, Adv.
Respondent AdvocateS.C. Javali, Adv.
DispositionAppeal allowed
Excerpt:
.....such valuation, shall keep pending the process of registration and refer the matter along with a copy of the instrument to the deputy commissioner for determination of the market value of the property and in turn, as per section 45a of the act itself, an obligation is cast on the deputy commissioner to hold a proper enquiry after affording reasonable opportunity to the parties concerned and then to fix the market value. it appears, enough safeguard is provided under the amended section 45a as well as section 45b of the act. even the guidelines provided does not emphasis on the sub-registrar being the registering authority, to accept the guidelines and to determine the market value rather the discretion has been given to the sub-registrar whenever a paper is presented for registration..........case whether the period of limitation should be computed either from the date of judgment or the date of decree. in that view of, the matter, in my view, the principles laid down in c. raghavendra rao's case, air 1960 mys 216 do not apply.7. from the facts already stated and the dates already mentioned, it would be apparent that the decree was signed on 2-11-1966 and the appeal is filed on 18-11-1966. the appeal was obviously in time. as already pointed in air 1959 mys 253 following the full bench decision in air 1937 bom 162. it was unnecessary for the appellant to apply for the certified copy for the purpose of betting the benefit of the period from 30-9-1966 to 2-11-1966. in that view the learned judge was wholly in error in holding that the appeal is barred by limitation.8. this.....
Judgment:

H.B. Datar, J.

1. Plaintiffs instituted L. C. Suit No. 20/1966 in the Court of the Munsiff at Hubli. That suit was heard, and by the judgment dated 30-9-1966 a decree was passed in favour of the plaintiffs. The draft decree appears to have been circulated and the learned Advocates for the parties signed the draft decree on 31-10-1966. On that very day, an application for copy was filed on behalf of the defendant asking for the certified copy of judgment and decree. The learned Judge signed the original Decree on 2-11-1966. The certified copy was delivered to the appellant-defendant on 18-11-1966 and the appeal was filed on that very day. The appeal was registered as Civil Appeal No. 192/1966 on the file of the Civil Judge. Hubli.

2. When the appeal came up for hearing several years later, the learned appellate Judge took the view that the appeal was barred bv limitation, and accordingly dismissed the appeal. That is how the defendant has preferred the second appeal.

3. The short question that arises is as to whether the appeal filed by the defendant i. e., Civil Appeal No. 192/1966 is within limitation. It is submitted by the learned Advocate for the appellant that the view taken by the lower appellate court is opposed to the several decisions of this Court and the learned appellate Judge was wholly in error in holding that the appeal was barred by limitation. It was submitted that the question of applying for a certified copy of the decree did not arise prior to the signing of the decree, and for purpose of computing the period of limitation, tine entire period i. e. the period from the date of the judgment till the date of signing the decree was required to be excluded. It was, on the other and, submitted by the learned Advocate for respondent that since the application for copy was filed on 31-10-1966 beyond the period of limitation, what is applicable is the principle laid down by this Court in C. Raghavendra Rao v. Vasavamba. AIR 1960 Mys 216.

4. The short question is which of these contentions urged by the learned Advocates, is sound.

5. In Channabasapoa v. Narasing Rao., AIR 1959 MYS 253 while considering the scope of Section 12 (2) of the Limitation Act, 1908, this is what was laid down :

'The provisions of Section 12 (2) admit of two periods of time for exclusion :--

(1) the period from the date of the judgment upto the date of signing of the decree;

(2) the period from the date of application for copy to the date when the copy is ready for delivery.

Although ordinarily the whole of former period deserves to be excluded, that cannot be laid down as a necessary consequence. What has to be excluded is time requisite which means the time properly required. Generally in cases 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 parties, it can be safely said that the time so required is one for which the party is not responsible. Hence that period of time deserves to be properly excluded,'

As pointed out by this Court, the provisions of Section 12 (2) admit of two periods of exclusion : (1) the entire period from the date of judgment to the date of signing of the decree, and (2) the time required for actual obtaining of copy. The first is excluded having regard to the fact that it has to be treated as a time requisite for preparation of decree itself. That is why in that case it was held that when the judgment was delivered on 30-9-1954, decree was actually signed on 2-12-1954 and the appeal was filed on 23rd December 1954. the entire period from 30-9-1954 to 2-12-1954. was required to be excluded. In giving this decision, this court referred to the judgment of the Full Bench of the High Court of Bombay in Murlidhar v. Moti-lal, AIR 1937 Bom 162 (FB). Beaumont. C. J. in that case held that :

'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.'

It was further stated that for purposes of claiming a benefit of Section 12 of the Act, making of the application for copy was not requisite, and the Court therefore stated that the court cannot impose upon the statutory right of an appellant, a restriction not warranted by the Act. So in computing the period of time for appeal, it is legitimate to exclude the period required for obtaining the copy even when no such application for copy was made till after the expiration of the time for appeal. This principle of law has been applied to cases which have arisen after the Limitation Act of 1963. This court has followed the decision of Patna High Court in State of Bihar v. Md. Ismail, : AIR1966Pat1 (FB) in which it was held that :

'Under Section 12 of the New Act of 1963, the time taken by the Court to prepare the decree before the application for its copy is made, shall be included in the time requisite for obtaining the copy.'

There are two other judgments of this Court. One is the judgment in Sheshamal Khushalchand Kothayl v. B. Mudak-appa, (R. S. A. 351 of 1968 (Mys)) appearing at Item 229 reported in Short Notes of Recent Decisions. In that case Santhosh, J. laid down that the period from the date of judgment till the signing of the decree should be excluded under Section 12 (2) of the Act, and in computing the period of limitation for an appeal, the period from the date of judgment or the date of the decree and the date on which the decree is signed must be excluded even in cases where an application for copy of the decree is given after the decree is signed. The same has also been reiterated in a recent judgment in Gopal Krishna Rao Desai v. Laxmibai reported in Short Notes of Recent Decisions at Items 32 (R. S. A. No. 75 of 1970 (Mys)). In that case also it was held that:

'The explanation to Section 12 states that in computing 'time requisites for obtaining a copy of a decree or an order', the time taken by the court to prepare the decree or an order before an application for a copy thereof is made shall not be excluded. This is in contrast to the wording of Clause (2) of Section 12 which provides that in computing 'the period of limitation for an appeal.....'. the time requisite for obtaining a copy of the decree, sentence or order shall be excluded. Hence, the intention of the legislature must be deemed to be to exclude the period taken by the court to prepare the decree and order before the application for a copy therefor is made in computing the period of limitation for an appeal etc under Clause (2) of Section 12. Hence, the lower appellate court was in error in coming to the conclusion that there was delay in filing the appeal.'

6. In C. Raghavendra Rao v. Vasavamba. AIR 1960 Mys 216, the court was considering the scope of Section 4 and Section 12 (2) of the Act. In the present case, in my view, the provisions of Section 4 is wholly inapplicable and Section 4 is not invoked at all. AIR 1960 Mys 216, the court did not consider the question which arose in the present case whether the period of limitation should be computed either from the date of judgment or the date of decree. In that view of, the matter, in my view, the principles laid down in C. Raghavendra Rao's case, AIR 1960 Mys 216 do not apply.

7. From the facts already stated and the dates already mentioned, it would be apparent that the decree was signed on 2-11-1966 and the appeal is filed on 18-11-1966. The appeal was obviously in time. As already pointed in AIR 1959 Mys 253 following the Full Bench decision in AIR 1937 Bom 162. it was unnecessary for the appellant to apply for the certified copy for the purpose of Betting the benefit of the period from 30-9-1966 to 2-11-1966. In that view the learned Judge was wholly in error in holding that the appeal is barred by limitation.

8. This appeal is therefore allowed, the judgment and decree passed by the appellate Judge are set aside and he is directed to hear and dispose of the appeal on merits and in accordance with law. In the circumstances the parties will bear their own costs.

9. The appellant is entitled to refund of Court fee paid on the Memorandum of Appeal.


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