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Mst. Shahjahan Begum and anr. Vs. Zahirul Hasan - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 508 of 1970
Judge
Reported inAIR1972All511
ActsLimitation Act, 1963 - Sections 12(2); Code of Civil Procedure (CPC) , 1898 - Sections 2(14)
AppellantMst. Shahjahan Begum and anr.
RespondentZahirul Hasan
Appellant AdvocateBashir Ahmad, Adv.
Respondent AdvocateG.N. Verma, Adv.
DispositionRevision allowed
Excerpt:
.....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. 6. the history of this provision clearly sets out the necessity for the explanation. this phrase has been mentioned in the explanation to emphasise and clarify the pre-existing difference of opinion between the various high courts, which was precisely on the point as to whether the time taken in drawing up the decree prior to the making of an application was or was not liable to be included in computing the period of time requisite for obtaining a copy. this is the significance of the phrase 'before an application for copy thereof is made'.if this phrase..........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) ..... (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.' it will be seen that under sub-section (2), the method of computation of the period of limitation for an appeal is provided. it requires that the date on which the judgment was pronounced and the time requisite for obtaining a copy shall be excluded. this exclusion has to be made while computing.....
Judgment:

Satish Chandra, J.

1. A learned Single Judge has referred this revision for decision by a larger Bench, because he felt that there was some conflict between the observations of the Supreme Court in Jagat Dhish Bhargava v. Jawahar Lal Bhargava : [1961]2SCR918 on the one hand and Full Bench decisions of Patna and Calcutta High Courts in State of Bihar v. Mohd. Ismail. : AIR1966Pat1 , Dungar Mal v. Rukma Kumar : AIR1970Cal443 on the other. A view similar to the one taken in the Calcutta and Patna cases was taken by a Single Judge of this Court in Har Bux Singh v. Gram Sabha, 1970 All LJ 720.

2. The revision is directed against an order dismissing the appeal as barred by time. A suit for restitution of conjugal rights was decreed ex parte. The defendants made an application for the setting aside of the ex parte decree. This application was also dismissed on 24-2-1969. The office of the Trial Court took some time in preparing the formal order. The learned Munsif signed the formal order on 10th March, 1969. The defendants made an application for a copy of the formal order on 10th March, 1969. The copy was ready on 21st March, 1969. The appeal against the order dismissing the application for the setting aside of the ex parte order was filed on 19th April, 1969. The appeal was clearly barred by time, if the period taken by the office in preparing the formal order namely between 24-2-1969 and 10-3-1969 was not taken into consideration. The learned District Judge relied upon the observations of the Supreme Court in Jagat Dhish Bhargava's case, and held that the time taken in drawing up the formal order prior to the date of the application for copy could not be excluded. He also held that the explanation for the delay was not sufficient. On these findings, the application for condoning the delay was dismissed, and the appeal was also dismissed as barred by limitation.

3. The question is whether the time taken by the office of the Court in drawing up the formal order prior to the making of the application for its copy was liable to be excluded in computing the period of limitation for the appeal. Section 12(2) of the Limitation Act of 1963 applies. It provides:--

'12. Exclusion of time in legal proceedings-

(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) .....

(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.'

It will be seen that under Sub-section (2), the method of computation of the period of limitation for an appeal is provided. It requires that the date on which the judgment was pronounced and the time requisite for obtaining a copy shall be excluded. This exclusion has to be made while computing the period of limitation for appeal.

4. The Explanation, however, provides the method of computing the time requisite for obtaining a copy. Once the time requisite for obtaining a copy has been computed in accordance with the Explanation then that is the period of time, which has to be taken into consideration while computing the period of limitation for the appeal under Sub-section (2) and the time so computed shall have to be excluded while computing the period of limitation for theappeal.

5. The Explanation expressly provides for the manner of computation of the time requisite for obtaining a copy and it says that any time taken by the Court in preparing the decree or order before the application for copy is made shall not be excluded. The phrase 'shall not be excluded' in the context of the Explanation can only mean that it shall not be excluded in computing the time requisite for obtaining the copy. In other words, whatever time is taken by the Court in drawing up the decree prior to the making of an application for copy will be deemed included in the time requisite for obtaining a copy. The time requisi-site for obtaining a copy will be the time taken by the Court in preparing the decree or order before the application for copy is made as also the time taken in preparing the copy after the application therefor has been made.

6. The history of this provision clearly sets out the necessity for the Explanation. Prior to the Limitation Act of 1963, there was a great controversy and difference of opinion between, the various High Courts as to the correct interpretation of the phrase 'the time requisite for obtaining a copy' occurring in Section 12. A Full Bench in Kesar Sugar Works v. R. C. Sharma : AIR1951All122 decided the matter by majority. It held that the words 'requisite' and 'obtaining' in Section 12 mean that some definite step should be taken by the appellant himself towards the attainment of the copy and it cannot be said that the time was required for obtaining a copy if the appellant has not applied for the same. The Full Bench reaffirmed earlier decisions of this Court in Parbati v. Bhola, (1890) ILR 12 All 79 and Bechi v. Ahsan Ullah, (1890) ILR 12 All 461 (FB), and disagreed with the contrary view taken by several other High Courts including Patna, Calcutta, Oudh, etc.

7. Now the controversy whether the time taken in drawing up the decree prior to the making of an application for copy was 'time requisite for obtaining a copy' has been settled by the Legislature by incorporating the present Explanation. By the Explanation, the Legislature has made it clear that the time taken in preparing the decree or order prior to the filing of an application for copy shall not be excluded in calculating the time requisite. Obviously, the time requisite for obtaining a copy will be the time inclusive of the time taken in preparing the decree prior to the making of the application for the copy. By the Explanation, the Legislature has obviously not accepted the view taken by this Court and has adopted the view of the other high Courts.

8. It was urged on behalf of the respondents that the opening phrase of the Explanation, namely 'In computing underthis Section' means that the method of computation contemplated by the Explanation, is with regard to computing the period of limitation provided by Section 12. This is a mis-reading of the Explanation. Section 12(2) gives the method of computing the period of limitation for an appeal. One such method of computation is to find the time requisite for the copy. The Explanation deals with the manner of computation of the time requisite for obtaining the copy only. Since the method of computing the time requisite for obtaining a copy was not mentioned in Sub-section (2) of Section 12, that is why the Explanation lays down the method of calculating the time requisite for obtaining a copy for purposes of 'this Section'.

9. It was then urged that in this view, the phrase 'before an application for a copy thereof is made' is redundant in the Explanation. We are unable to agree. This phrase has been mentioned in the Explanation to emphasise and clarify the pre-existing difference of opinion between the various High Courts, which was precisely on the point as to whether the time taken in drawing up the decree prior to the making of an application was or was not liable to be included in computing the period of time requisite for obtaining a copy. The Legislature has now said that this is a part of the time requisite for obtaining a copy. This is the significance of the phrase 'before an application for copy thereof is made'. If this phrase had not been there, the erstwhile controversy may well have remained unresolved. The view we have taken finds support from the decisions of the Calcutta and Patna High Courts mentioned above. The same view was taken by a learned Single Judge in Har Bux Singh's case, 1970 All LJ 720.

10. We find no conflict between these decisions and the Supreme Court decision in Jagat Dhish Bhargava's case : [1961]2SCR918 . The Supreme Court while considering the law as it was prior to the coming into force of the Limitation Act of 1963, held that the time taken in drawing up the decree prior to the making of the application for copy was not liable to be taken into consideration. We have seen that the situation has now been changed by the Legislature by incorporating the Explanation. The views expressed in Jagat Dhish Bhargava's case are no longer operative.

11. It is admitted that if the period between 24-2-1969 and 10-3-1969 is taken into consideration, the appeal is not barred by time.

12. Learned Counsel for the respondents, however, submitted that the applicant will not be entitled to the exclusion of time because Section 12(2) does not apply to a formal order. Section 12(2) specifically refers to copy of decree or order. The term 'order' has been defined in Sub-section (14) of Section 2, Civil ProcedureCode, to mean formal expression of any decision of a Civil Court which is not a decree. The formal order drawn up as a result of the judgment of the Trial Court dismissing the application for condonation of the delay was an order within meaning of Section 2(14), Civil Procedure Code and Section 12(2), Limitation Act will apply. Time taken in obtaining a copy thereof was liable to be taken into account.

13. In the result, the revision succeeds and is allowed. The Appellate order dismissing the appeal as barred by time is set aside and the matter is sent back to the court below for the decision of the appeal on its merits. The applicant will be entitled to his costs here and in the court below.


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