1. The first respondent Kanhaiyalal had instituted a suit against the appellant and second respondent for specific performance of a contract dated 20-11-1964 whereby the defendants had agreed to sell the suit house motioned in detail in the plaint for a sum of R. 21,000 to the plain-tiff having received Rs. 3000 as earnest money on the date of the contract. The agreement of sale Ex. P-1 recites the tact that the defendants had borrowed Rs. 3000 from one Dr. Kishan Narain Saxena for the construction of the suit house after purchasing it from the previous owner of the house under registered sale-deed dated 30-7-1955. It further recites the fact that thereafter the defendants under the registered mortgage dated 4-3-1963 had borrowed Rs 7000 on the security of the said house from Dr. Kishen Narain Saxena and that the house was required to be sold for payment of the said debt.
2. After full trial, the trial Court decreed the plaintiff's claim on 8-1-1966 with costs. It ordered the defendants to execute registered sale-deed with respect to the suit house and receive the balance of consideration of Rs. 18000 from the plaintiff within the time stated in the Judgment. It further directed that In default, the registered sale-deed shall be executed by the Court
3. Feeling aggrieved by the said decree of the trial Court, defendant Harvilas has filed this appeal impleading the other defendant Narain Das as second respondent in the appeal.
4. It is not necessary to state the facts in detail because Shri Y. S. Dharmadhikari, learned counsel for the first respondent, hasraised a preliminary contention to the effect that the appeal filed by the defendant No. 1 is barred by time and should be dismissed on this short ground.
5. Facts which are necessary to be stated for the consideration of the said preliminary objection are these. The trial Court had decreed the plaintiff's claim by its judgment dated 8-1-1966. The defendant applied for a copy of the judgment and decree on 2-2-1966 and he was supplied the said copies on 25-3-1966. An application was made in the trial Court for amendment of the judgment and decree under sections 151 and 152, Code of Civil Procedure, by the plaintiff on 10-2-1966. In that application it was urged that as the house was the subject of mortgage on the date of the agreement Ex. P-1 and the mortgagee was entitled to Rs. 7000 as the principal amount, & interest, & to the amount of a simple loan of Rs. 2000, & the said amount was to remain with the plaintiff for payment to the mortgagee, in the operative portion of the judgment it should have been said that the claim of the plaintiff had been decreed as provided in Ex. P-1. It was urged in the application that the end of paragraph 22 of the judgment before the figure of Rs. 18000 the words 'as provided in Ex. P-1 be added. The judgment and decree were accordingly ordered to be amended on 8-7-1966.
6. The appellant, after the amendment of the judgment and decree, applied for fresh copies of the judgment and decree on 1-8-1966. He was supplied those copies on 29-8-1966. The copying period is 28 days. The appeal was filed on 17-10-1966 and in the memo of appeal it was urged that the appeal should be treated to be within lime as the limitation for filing the appeal would commence from 8-7-1966.
7. There is no dispute that if the limitation for filing the appeal could be held to commence from 8-7-1966 no question of limitation arises. However, the argument advanced by the learned counsel for the respondent is that as the judgment was amended on an application under Section 151 or Section 152 of the Code of Civil Procedure and the appeal is not confined to or based upon the amended portion of the judgment, the starting point of limitation would be the date of the original judgment as the appeal is directed against the decree as it stood prior to the amendment and no ground of appeal is urged against the amended portion of the judgment.
8. In our opinion, the preliminary objection raised on behalf of the respondent has force and must be given effect to. It is clear from the order passed on 8-7-1966 that the judgment was amended under Section 152 C. P C- for removing a clerical defect The amendment does not in all cases give a fresh starting point of time for appeal see Brojo Lal v. Tara Prosanna,(1906) 3 Cal LJ 188 ; Nagendra Nath Banerjee v. Ambica Charan Chakrabarty, AIR 1929 Cal 676 and Tincowri Haldar v. Nani-gopal Mondal, AIR 1960 Cal 258. A Division Bench of the Calcutta High Court, dissenting from the Division in Soudamini Dasi v. Nabalak Mia, AIR 1931 Cal 578 took the view that if the decree is amended on an application under Section 151 or Section 152, Code of Civil Procedure, and the appeal is confined to the amended portion only, the starting point would be the date of the amendment. If, however, the appeal is directed against the decree as it stood prior to the amendment, the starting point would be the date of the original decree. The same view was taken in Mohammad Yasin Khan v. Mt. Hansa Bibi, AIR 1935 Oudh 461 and Golab v. Janki Kuer, AIR 1920 Pat 622 (FB). We are in respectful agreement with the view taken in these cases.
9. The learned counsel for the appellant orally requested that we should condone the delay in filing the appeal which is barred by 140 days after excluding the copying time of 52 days reckoned from 2-2-1966 to 25-3-1966 under Section 5 of the Limitation Act. In our opinion, no sufficient cause for condonation of delay under Section 5 of the Limitation Act is made out. If the grounds on which the appeal is based were found to be intimately connected with the amendment of the decree or if the grounds were directed against the decree only in so far as it has been amended, the discretion of the Court under Section 5 of the Limitation Act could have been validly exercised for condoning the delay but as we have already said, the appeal is not directed against the amendment of the judgment and decree but against the judgment and decree as it originally stood. It is also significant to note that the appellant had obtained copies of judgment and decree on 25-3-1966 and there is nothing to show that he could be under the bona fide mistake that time runs from the date of the amendment The appellant is clearly guilty of laches.
10. For these reasons, the appeal is held to be barred by time and is therefore dismissed with costs Counsel's fee Rs 250 if certified.