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Purshattam Narayan Vs. Sugan Chand Pannalal and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMadhya Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 1 of 1962
Judge
Reported inAIR1964MP27; 1963MPLJ678
ActsLimitation Act, 1908 - Sections 12(2)
AppellantPurshattam Narayan
RespondentSugan Chand Pannalal and ors.
Appellant AdvocatePatankar, Adv.
Respondent AdvocateB.D. Gupta, Adv.
DispositionAppeal allowed
Cases ReferredPramatha Nath Roy v. William Arthur Lee
Excerpt:
- .....narain is excluded the appeal is barred by time. but if the time spent in relation to the copy obtained by shital prasad is excluded under section 12(2) of the limitation act, the appeal was within time.4. the appellant is required by order 41 of the codeof civil procedure to file a copy of the judgment appealed against. the code, however, does not make it imperative that the appellant must himself obtain such copy. shrl b. d. gupta, learned counsel for the respondents concedas that the appeal could not be dismissed on the ground that the copy of the judgment which purushottam narain filed was not the one obtained by him. nor has the learned single judge held the appeal to be untenable tor that reason.5. ah that the civil procedure code requires is that a certified copy iof the.....
Judgment:

Shiv Dayal, J.

1. Second Appeal No. 242 of 1959 was filed in this Court on 27-10-1959 together with a copy of the Judgment dated 3-7-1959 of the Additional District Judge, Gung. This appeal has been dismissed by the learned Single Judge on the ground that it is barred by time.

2. It has been found that appellant Purushotram Warain applied for a copy of the judgment on 25-9-1959 and it was supplied to him on 6-10-1959. Another copy was obtained by his father Shital Prasad. Application for this latter copy was made on 14-7-1959, and it was supplied on 17-8-1959. The appeal was filed by Purushottam Narain and in this appeal Shital Prasad was one of the respondents. It may be mentioned in passing that !his was a suit under Order 21, Rule 63, C. P. C. by his son (objector) against Sifganchand and others (decree-holders) and his father (judgment-debtor).

3. With the second appeal filed by Purushottam Narain in this Court he filed that copy which was obtained by his father Shital Prasad instead of the one which was obtained by himself. If the time spent In obtaining the copy which was supplied to Purushottam Narain is excluded the appeal is barred by time. But if the time spent in relation to the copy obtained by Shital Prasad is excluded under Section 12(2) of the Limitation Act, the appeal was within time.

4. The appellant is required by order 41 of the Codeof Civil Procedure to file a copy of the judgment appealed against. The Code, however, does not make it imperative that the appellant must himself obtain such copy. Shrl B. D. Gupta, learned counsel for the respondents concedas that the appeal could not be dismissed on the ground that the copy of the judgment which Purushottam Narain filed was not the one obtained by him. Nor has the learned Single Judge held the appeal to be untenable tor that reason.

5. AH that the Civil Procedure Code requires is that a certified copy iof the judgment must be filed with the appeal. Now Section 12(2) of the Limitation Act can be applied only to that certified copy which is filed witn tho appeal and which copy is before the appellate Court Necessarily therefore, time to be excluded under that provision of the Limitation Act is the time which was spent in obtaining that particular copy which is filed with the appeal and not any other copy.

6. It is argued by Shri B. D. Gupta that the words . 'obtained by the appellant' are Implicit after the ward I 'copy' in Section 12(2) of the Limitation Act. We are * unable to accept this contention because that would not be interpreting the law but enacting the law, and1 that is beyond the power of the Courts. 'Time requisite' for obtaining a copy has relation only to the copy filed with the appeal. Supposing for instance, a party intending to prefer an appeal obtains a certified copy, but it is lost or destroyed. He then obtains another copy. Can it be said that the period to be excluded should be that which was spent in obtaining the first, but not the second, which is actually filed with the memorandum of appeal? This question must be answered in the negative because, otherwise the appellant cannot be asked to produce the first copy which is lost or destroyed. Nor can he be debarred from filing an appeal or from obtaining another copy. This discussion leads to the only conclusion that Section 12(2) of the Limitation Act intended to exclude the time spent in obtaining the particular copy which is filed with the memorandum of appeal. This view is supported by a Full Bench decision of the Madras High Court in P. Thirumala Reddi v. C. K. Anavemareddi, ILR 57 Mad 560 : (AIR 1934 Mad 306J (FB) and also in some other decisions: for instan:e Rudra Pratab v. Raghurajgir, AIR 1914 Mad 244, State v. Kashi Prasad, AIR 1950 All 486, a decision of Mr Justice Raghubar Dayal (now a Judge of the Supreme Court), uid Mst. Majidan v. Dalmirkhan, AIR 1951 Punj 388, a decision of Mr. Justice Kapoor (now a Judge of the Supreme Court).

7. A contrary view was taken in State v. Kaidia, AIR 1952 Him Pra 6. That view has been accepted by the learned Single Judge. In the Himachal Pradesh case reference has been made to Pramatha Nath Roy v. William Arthur Lee, AIR 1922 PC 352. In that case the appellant was the defendant in the suit. A decree was passed on 14t& February 1918. Application made fay the appellant for set-ting aside that decree was dismissed on 26-7-1918. The appellant desired to appeal from that refusal and he produted his memorandum of appeal on the 30th August 1918. After the order had been made on the 26th July no steps were Immediately taken by the plaintiff to have the order drawn up, but after the lapse of four days it was competent to the defendant to apply for that purpose. The four days elapsed and nothing was done. On the 6th August application was made by the plaintiff to have the order drawn up, and on the 7th August the draft of the order was sent to the appellant. The order was simplicity itself, but the appellant only returned the draft on the 16th August On the 28th August It was signed, and on the 3rd September it was filed by the plaintiff. It was in that context that the Judicial Committee observed as follows: -

'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.'

Their Lordships held that no proper steps were taken and the periods between, the 30th July and the 6th August and again between the 7th August and the 16th August, which were within the appellants' control are sufficiently great to prevent the appellant from saying that the time that did elapse must have elapsed even if he had acted with reasonable promptitude. In our opinion, the Privy Council case is not in point here.

8. In the result, this appeal is allowed. The judgment and decree passed by the learned Single Judge are set aside. This appeal is held to be within time, Second appeal No. 242 of 1959 shall be heard on merits. There shall be no order for costs.

A.H. Khan, J.

9. I agree.


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