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Kechanda Ponnappa and anr. Vs. Chottora Thammaiah - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 584 of 1970
Judge
Reported inAIR1973Kant202; AIR1973Mys202; (1972)2MysLJ487
ActsLimitation Act, 1963 - Sections 12
AppellantKechanda Ponnappa and anr.
RespondentChottora Thammaiah
Appellant AdvocateN. Rama Bhat, Adv.
Respondent AdvocateT.T. Amble, Adv.
Excerpt:
.....of the market value does not arise. - 12 .(1) .(2) in computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a 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 revised or reviewed shall be excluded. 1 as well as the judgment and decree of the lower appellate court dismissing the appeal are......are entitled to deduct the time between the date of the judgment and the date on which the copy application was filed. 3. the judgment of the trial court is dated 27-6-1969. copy application was filed on 7-7-1969. the decree was signed on 11-7-1969 though the decree bears the date 27-6-1969 i.e. the date of the judgment. the applicant was told to appear to receive the copies on 21-7-1969. but he actually appeared on 31-7-1969 on which date the copies were delivered to him. the appeal was filed on 20th august, 1969. if the time taken for obtaining the copies is computed from the date the copy application was filed there will be a delay of 10 days in filing the appeal. but if the time between the date of the judgment and the date of the copy application is also deducted, the appeal.....
Judgment:

M. Sadananda Swamy, J.

1. The respondent-plaintiff filed the suit out of which the present Second Appeal arises for recovery of Rs. 3,490/- on the basis of an agreement. The suit was decreed by the trial Court. The defendants-appellants appealed. The application filed by the appellants in the lower appellate Court for condonation of delay was dismissed. The lower appellate Court accordingly dismissed the appeal as barred by time.

2. It is urged by Sri Rama Bhat on behalf of the appellants that there is no delay in filing the appeal and that the appellants are entitled to deduct the time between the date of the judgment and the date on which the copy application was filed.

3. The judgment of the trial Court is dated 27-6-1969. Copy application was filed on 7-7-1969. The decree was signed on 11-7-1969 though the decree bears the date 27-6-1969 i.e. the date of the judgment. The applicant was told to appear to receive the copies on 21-7-1969. But he actually appeared on 31-7-1969 on which date the copies were delivered to him. The appeal was filed on 20th August, 1969. If the time taken for obtaining the copies is computed from the date the copy application was filed there will be a delay of 10 days in filing the appeal.

But if the time between the date of the judgment and the date of the copy application is also deducted, the appeal will be in time. The question therefore, is whether the time between the date when the judgment was pronounced and the date when the copy application was filed, is also to be treated as time requisite for obtaining the copy of the decree.

4. The material portion of Section 12 of the Limitation Act reads as follows:

'12 .....

(1) .....

(2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a 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 revised or reviewed shall be excluded.

(3) Whether a decree or order is appealed from or sought to be revised or reviewed or where an application is made for leave to appeal from a decree or order, the time requisite for obtaining a copy of the judgment on which the decree or order is founded shall also be excluded.

(4) .....

Explanation, in computing under this Section the time requisite for obtaining a copy of a decree or order, any time taken by the Court to prepare the decree or order before an application for a copy thereof is made shall not be excluded.'

5. In a Full Bench decision of the Patna High Court. : AIR1966Pat1 (FB). State of Bihar v. Md. Ismail it has been held by the majority that under Section 12 of the Limitation Act, 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 of the decree and it was observed at Para 17 by A. B. N, Sinha, J. as follows:

'It may be that the legislature feltthat when a party is not allowed to putin a requisition himself for the drawingup of the decree or the order, the timetaken for the drawing up the same can-not be justly taken in account againsthim and he cannot be expected to putin an effort in a vacuum. Whatever mayhave been the motive or the logic whichpersuaded the legislature to insert theExplanation in question, the language ofthe explanation itself is clear and thatmust prevail.'

6. Under Section 12 Clause (2) in computing the period of limitation for an appeal, the 'time requisite for obtaining a copy of the decree ..... appealedfrom' shall be excluded. The explanation to that Section states that in computing 'that tune requisite for obtaining a copy of a decree', that time taken by the Court to prepare the decree before an application for a copy thereof shall not be excluded. It therefore, means that in calculating the time requisite for obtaining the copy of the decree, the time taken to prepare the decree before an application for a copy is made, shall also be included in the time requisite for obtaining the copy of the decree. The language used in the explanation, namely, 'time requisite for obtaining a copy of decree' is in contrast to the language used in Section 12, Clause (2) which provides that in computing 'the period of limitation for an appeal' ..... the time requisite for obtaining the copy of the decree shall be excluded. Hence the intention of the Legislature must be deemed to be to treat the period taken by the Court to prepare the decree before an application for a copy thereof is made also as part of the time requisite for obtaining a copy of the decree. Hence the appellants were entitled to deduct the period between the date when the judgment was pronounced and the date on which the application for copy was made also.

7. Moreover this is the view taken by this Court in R. S. A. 351 of 1968. (Sheshmal Kushalchand Kothayi v. Mudakappa Sangolli) decided on 10-7-11970 (Mys); R. S. A. No. 75 of 1970. (Gopala Krishna Rao Desai v. Laxmi Bai) decided on 9-11-1971 (Mys) and S. A. No. 1292 of 1969. (Krishnaji v. N. R. Mattikoppa) decided on 27-3-1972 (Mys) three unreported decisions of this Court. (Last case decided on 27-3-1972 is now reported in AIR 1972 Mys 274).

8. The appeal filed in the lower appellate Court, was therefore, in time. The order of the lower appellate Court on, I. A. No. 1 as well as the judgment and decree of the lower appellate Court dismissing the appeal are. therefore, set aside and the appeal is remanded to the lower appellate Court to be disposed of afresh according to law. The parties will bear their own costs in this appeal. The court-fee paid on the Memorandum, of appeal in this Court shall be refunded to the Appellants.


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