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Krishnappa Ramasa Walvekar Vs. Ramchandrasa Ramasa Walvekar and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 52 of 1969
Judge
Reported inAIR1973Kant234; AIR1973Mys234; (1973)1MysLJ115
ActsLimitation Act, 1963 - Sections 5 and 12
AppellantKrishnappa Ramasa Walvekar
RespondentRamchandrasa Ramasa Walvekar and ors.
Appellant AdvocateB.K. Ramachandra Rao, Adv. for ;Balagopalan, Adv.
Respondent AdvocateW.K. Joshi and ;N.A. Mandagi, Advs.
DispositionPetition allowed
Excerpt:
.....which thejudgment complained of was pronounced and the time requisite for obtaining a copy of the decree .appealed therefrom .shall be excluded. 12. secondly, it is equally clear that the period that is excluded (other than the day on which the judgment complained of was pronounced) by subsection (2) of section 12 of the limitation act is only one period and the said period is described as 'the time requisite for obtaining a copy of the decree' and not for preparing a decree or preparing a copy of the decree. ramu dada air1968bom204 in which it is stated that after the explanation to section 12 of the limitation act the ruling of the full bench of the bombay high court in ( :air1952bom122 (fb)) is no longer good law and that :the object of the explanation is to require the appellant to..........a period of 30 days, 10 days were lost before making the application, and 20 days thereafter the decree copy was obtained by the appellant, but the decree became ready only 20 days after the judgment, the appellant will be entitled to an exclusion of not merely the 20 days between the date of his application and the date of delivery of the judgment, but also the 10 days out of the time taken by the court for preparing the decree which fell subsequent to the date on which he made his application. it would really mean that even after the appellant has actually obtained the decree, he can say, that according to law some more time is 'requisite for obtaining the decree' which is a contradiction in terms. such seems to be the effect of the decision in ( : air1966pat1 (fb)). 16. in each of.....
Judgment:

A. Narayana Pai, C.J.

1. This Second Appeal has been referred to a Bench by Venkataswami, J. because he was not inclined to agree with the view taken by another single Judge Datar. J. in the case of Krishnaji v. Mittikoppa the judgment wherein is reported at page 674 of 1972 (1) Mysore Law Journal = (AIR 1972 Mys 274) so far as the correct effect of the Explanation to Section 12 of the Limitation Act. 1963, is concerned.

2. The judgment in O. S. No.418 of 1961 on the file of the SecondJoint Civil Judge, Junior Division. Belgaum, was pronounced against appellanton the 17th of January 1964 and the decree was drawn up and actually signedon the 14th of February 1964. By then,the appellant had already applied forcertified copies of the judgment anddecree on the 5th of February 1964.Without any further loss of time on thepart of the appellant, the copies weretaken delivery of by him On the 16thof March 1964. He filed his appeal againstthe same before the District Court atBelgaum on the 9th of April 1964. Theappeal has been dismissed as barred bylimitation on the ground that it waspresented twelve days after the expiryof the period of limitation prescribedfor appeals even after excluding thetime requisite for obtaining certifiedcopies of the judgment and decree asprovided by Section 12 of the Limitation Act.

3. The appellant had filed an application under Section 5 of the Limitation Act for condonation of delay, if any. In presenting the appeal on the ground that there was some doubt or confusion as to the exact effect of the Explanation to Section 12 of the Limitation Act and also on the ground that he was prevented from presenting the appeal in time by reason of serious illness of his wife. The Lower Appellate Court having taken the view on the question of law that the Explanation to Section 12 of the Limitation Act is of no assistance to the appellant, did not go into the averments of fact made in support of the prayer for condonation of delay.

4. In the second appeal the argument of Mr. B. K. Ramachandra Rao, learned counsel for the appellant, is that the view of law taken by the Lower Appellate Court is not correct and that even otherwise there was sufficient doubt about the correct application of Section 12 of the Limitation Act along with its Explanation to support a prayer for condonation of delay which in actual event was no more than twelve davs,

5. The relevant portion of Section 12 of the Limitation Act is subsection (2) and the Explanation which read as follows:--

12 (1) .... ...... ...... ...... ...

(2) In computing the period of limitation for an appeal ...... ...... ...... ............ ...... ....... the day on which thejudgment complained of was pronounced and the time requisite for obtaining a copy of the decree ...... ...... ...... appealed therefrom ... .. ...,' ...... .........shall be excluded.

(3) ...... '..,. .'._ .........

(4) .... ...'.' '.'.... .. ........

Explanation :-- In computing under this Section the time requisite for obtaining a copy of a decree or an 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.

6. The Limitation Act of 1908 which is replaced by the new Act of 1963 did not contain the Explanation Under the said Section of the Limitation Act, all the High Courts except the High Courts of Bombay. Calcutta and Patna had taken the view that the period of limitation which starts from the date of decree which is the same or should be the same under the Civil Procedure Code as the date of the judgment, does not stop unless for the purpose of obtaining exclusion under Section 12, a party proposing to appeal against the decree, makes an application for a certified copy of the Decree. The view of the other three High Courts Is represented by the Judgment of the Full Bench of the High Court of Bombay in the Case of Jay Shankar v. Mayabhai. : AIR1952Bom122 . In that case it was held that the appellant was entitled to look into not merely the Judgment but also the Decree before he makes up his mind whether or not to file an appeal against the Decree and that he should not be made responsible for or to suffer any adverse Or prejudicial consequence of the delay which is exclusively that of the Court for which the party cannot be held responsible. It is against the said background that the view was taken that even If a person had not made an application for a certified copy of the decree, if the decree itself has not been drawn up, the party Is not blame worthy because it is unreasonable to demand or insist upon an application being made for obtaining copy of a document which does not exist.

7. Following the said opinion of the Full Bench of the High Court of Bombay, this Court applied the same rule in the case of Channabasappa v. Narasing Rao. (1959-37 Mys LJ 397) - (AIR 1959 Mys 253) and in Raghavendra Rao v. Vasavamba (1960-38 Mys LJ 132) = (AIR 1960 Mys 216).

8. The question now is whether and if so to what extent the said view may still be taken that after the inclusion of Explanation to Section 12 in the Limitation Act, 1963, which we have already referred to and that is the question considered in 1972 (1) Mys LJ 674 - (AIR 1972 Mys 274). It was held, following the view taken by two other single Judges of this Court Sadanandaswamy. J. and Santhosh. J. in two unreported oases -- S. A. No. 351 of 1968 (Mys) and S. A. No. 75 of 1970 (Mys), that in computing the time for appeal, it is legitimate to exclude the period required for obtaining a copy even when no such application for copy was made, till after the expiration of the time for appeal and that the period from the date of Judgment till the signing of the decree should be excluded under Section 12(2) of the Act even if no application for copy of the decree was given till after the expiration of the time for appeal. As a fair and full reference to the opinion expressed in these two reported cases is made in the reported case of Krishnaji, it is unnecessary to repeat the same here.

9. Mr. Ramachandra Rao, learned counsel for the appellant arguing in support of the view expressed in the case of Krishnaji and the other two unreported decisions, made the proposition that before the introduction of the Explanation to Section 12 of the Limitation Act, there were two views as to the computation of the period to be excluded in Subsection (2) of Section 12 and that the Explanation has removed the efficacy of only one of those views. The said views according to him (1) that the entire period taken UD by the Court for the preparation of the decree should be excluded irrespective of whether an application for a copy thereof had been made before or after the drawing up of the decree and (2) that the time taken up by the Court for the preparation of the Decree could be excluded only to the extent to which it is immediately subsequent to the date of application for copy. According to the argument, what is rendered ineffective is only the first view. In support of this, he has cited four cases.

(1) State of Bihar v. Md. Ismail, : AIR1966Pat1 (FB) (2) D S Jain v.R. K. Jalal, : AIR1970Cal443 . (31Chunnilal Balaji v. State of Madhya Pradesh, : AIR1967MP127 and (4)Koutuki Sabatani v. Raghu Sethi : AIR1970Ori116 .

10. It seems to us that the matter is capable of a simpler explanation, not involving the necessity or the possibility of more than one view be taken or actually excluding such possibility.

11. It is indisputable that period of limitation for an appeal against a decree begins to run from the date of decree. The Limitation Act does not specify which that should be, whereas, the Civil Procedure Code expressly states that the decree shall bear the date of the Judgment. The legal position involved in the Rule contained In the Civil Procedure Code flows directly from the fact that under the Civil Procedure Code an appeal lies only against the decree and decree itself constitutes the final adjudication of matters in dispute in a suit and the Judgment is merely a statement of reasons in support of the decree. So, according to the clear understanding of the position by the Civil Procedure Code on which depends the right of appeal, the decree and Judgment are composite documents and together constitute the adjudication of the Court. Hence, the decree whenever it might have been prepared and signed cannot possibly be made to bear a date other than the date of the Judgment.

12. Secondly, it is equally clear that the period that is excluded (other than the day on which the Judgment complained of was pronounced) by subsection (2) of Section 12 of the Limitation Act is only one period and the said period is described as 'the time requisite for obtaining a copy of the decree' and not for preparing a decree or preparing a copy of the decree.

13. The effect of these two propositions is that there are no two periods for exclusion nor two dates for the commencement of the limitation, and the only period which is capable of being excluded is the period which is related to conduct or attempt on the part of the appellant to obtain the copy of the decree. The commencement of that period can only be the date on which the appellant takes the first step for obtaining a copy of the decree and that step could only be the making of an application for certified copy.

14. Once the appellant makes such an application, the mere fact that he has made an application but has not been furnished with a copy, without any default on his part, is sufficient to entitle him to secure exclusion of the period from computing the period of limitation for appeal.

15. If, therefore, any part of the period taken by the Court for completing and signing the decree falls beyond the date on which the application is made, and the exclusion of such period is regarded as not required either by Section 12(2) or by the Explanation, it would mean that, even if the appellant has actually obtained the decree, the further period will also stand excluded. For example, if out of a period of 30 days, 10 days were lost before making the application, and 20 days thereafter the decree copy was obtained by the appellant, but the decree became ready only 20 days after the Judgment, the appellant will be entitled to an exclusion of not merely the 20 days between the date of his application and the date of delivery of the Judgment, but also the 10 days out of the time taken by the Court for preparing the decree which fell subsequent to the date on which he made his application. It would really mean that even after the appellant has actually obtained the decree, he can say, that according to law some more time is 'requisite for obtaining the decree' which is a contradiction in terms. Such seems to be the effect of the decision in ( : AIR1966Pat1 (FB)).

16. In each of the other three cases viz., (1) : AIR1970Cal443 (2) : AIR1967MP127 and (3) : AIR1970Ori116 cited by Mr. Ramachandra Rao, the application for a copy of the decree was made some days after the decree had been drawn up. Hence, on a proper application of the Explanation, the period required for preparation of the decree could not possibly have been excluded because the express language of the Explanation direct that the time taken by the Court to prepare the decree before an application for copy thereof is made shall not be excluded.

17. The effect of the Explanation to Section 12 therefore cannot possibly be regarded as choosing one of two views as to whether and if so to what extent the time taken by the Court for preparation of a decree could be excluded. Its real purpose, in our opinion, is to clarify that in computing the time requisite for obtaining a copy of the decree the time taken by the Court for preparation of the decree can never be excluded. The first, as already pointed out, is directly related to the conduct of the party and the latter is related to the responsibility of the Court. The party is entitled to exclude only the period which is directly related to his attempt to get the certified copy and not any other period. That exactly is the view taken by Chandrachud. J. in Sitaram Dada v. Ramu Dada : AIR1968Bom204 in which it is stated that after the Explanation to Section 12 of the Limitation Act the ruling of the Full Bench of the Bombay High Court in ( : AIR1952Bom122 (FB)) is no longer good law and that :

'The object of the Explanation is to require the appellant to apply for a copy of the decree even if the decree is not ready. That is why the Explanation says in terms that the time taken by the Court to prepare the decree before an application for a copy thereof is made shall not be excluded. In other words, the Explanation contemplates that the period between the date of the application for a certified copy of the decree and the date when the copy is ready can alone be excluded.'

18. We, therefore, overrule the rulings in 1972 (I) Mys LJ 674 = (AIR 1972 Mys 274); Seshmal v. Mudakappa, (S. A. No. 351 of 1968 Mys) and Gopala Krishna Rao Desai v. Laxmibai (S. A. No. 75 of 1970 Mys).

19. The view taken by the LowerAppellate Court on the question of law that the appeal is barred by limitation is correct and has to be affirmed.

20. There remains only the question whether the application under Section 5 of the Limitation Act made in the Lower Appellate Court could have been rightly rejected by it. Apart from the question of the alleged serious illness of the appellant's wife, it is not disputed before us that the exact legal position emerging out of the previous rulings of this Court and the possible effect of the Explanation to Section 12 of the Limitation Act. 1963, thereon was a matter open to more views than one. That in our opinion, is sufficient ground to condone the delay.

21. We, therefore, allow the said application, condone the delay in presenting the Civil Appeal No. 339 of 1964 and remit the said appeal back to the said Court for disposal on merits.

22. The court-fee paid by the appellant on the memorandum of Second Appeal will be refunded. Parties to bear their own Costs.


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