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Chunnilal Balaji and ors. Vs. State of Madhya Pradesh - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 475 of 1965
Judge
Reported inAIR1967MP127
ActsLimitation Act, 1963 - Sections 5 and 12; Code of Civil Procedure (CPC) , 1908 - Order 20, Rule 7
AppellantChunnilal Balaji and ors.
RespondentState of Madhya Pradesh
Appellant AdvocateR.K. Pandey, Adv.
Respondent AdvocateR.J. Bhave, Govt. Adv.
DispositionAppeal dismissed
Cases ReferredA.D. Partha Sarathy v. State of Andhra Pradesh
Excerpt:
- - butthat ceased to be good law on 1st january1964, when the limitation act, 1903, came intoforce (the act was published in the gazetteof india dated 5th october 1903). the following explanation has been added to section 12 ofthe new act......procedure code, which enacts that the date of the decree shall be the date of the judgment, if the decree appealed from is signed on a date subsequent to the date of the judgment: (1) the period between the date of the judgment and the date of signing the decree shall he excluded, if the appellant had applied for a copy of the decree before the decree was signed, but (2) the period between the date of the judgment and the date of signing the decree shall not be excluded, if the appellant applied for a copy of the decree after the decree had been signed. thus, the view taken in umda v. rupchand, air 1927 nag 1 (fb), has been accepted by the legislature.5. learned counsel has applied for condonation of the delay on the ground that he had been relying on the full bench decision in bhagwant,.....
Judgment:

Shiv Dayal, J.

1. This is a second appeal from the judgment and decree of the District Judge Khandwa The question is whether this appeal was filed within the prescribed limitation.

2. Material dates are these:

6-10-1964 Date of judgment.

9-10-1964 Date of signing the decree

24-3-1965 This appeal was filed.

Thus the appeal was filed on the 169th day of the judgment

3. As regards the time spent in obtaining the copies of the judgment and decree, the material dates are

12-10-1964 Application made. 28-12-1964 Copies supplied (That was alsothe date on which the applicant was directed to appear for obtaining copies)

Thus, the time spent in obtaining copies is 78 days Excluding this time from computation, the appeal was filed on the 91st day so that it is barred by one day.

4. If the time intervening between signing of the judgment and signing of the decree, which is 3 days, is also excluded, the appealif, within time. It was held in Bhagwant v.Liquidator of Co-operative Society, 1955 NagLJ 286 (FB), that the appellant was entitledas of right to ask for the exclusion of the periodduring which the Court did not draw up thedecree, even though he did not apply for acertified copy of the decree before it was drawnup, unless there was some neglect on his partto take some action he was bound to take. Butthat ceased to be good law on 1st January1964, when the Limitation Act, 1903, came intoforce (the Act was published in the Gazetteof India dated 5th October 1903). The following explanation has been added to Section 12 ofthe new Act.

'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.'

Now, the law is that in spite of the provisions contained in Order 20, Rule 7, Civil Procedure Code, which enacts that the date of the decree shall be the date of the judgment, if the decree appealed from is signed on a date subsequent to the date of the judgment: (1) the period between the date of the judgment and the date of signing the decree shall he excluded, if the appellant had applied for a copy of the decree before the decree was signed, but (2) the period between the date of the judgment and the date of signing the decree shall not be excluded, if the appellant applied for a copy of the decree after the decree had been signed. Thus, the view taken in Umda v. Rupchand, AIR 1927 Nag 1 (FB), has been accepted by the legislature.

5. Learned counsel has applied for condonation of the delay on the ground that he had been relying on the Full Bench decision in Bhagwant, 1955 Nag LJ 286 (FB) (supra). But their Lordships have recently observed in A.D. Partha Sarathy v. State of Andhra Pradesh, 1965 SC (Notes) 240 Page 186: (AIR 1966 SC 38) that the Limitation Act of 1963 having been in force for more than a year the delay could not be condoned. The delay cannot, therefore, be condoned in this case.

6. If is also reported by the office that deficit court-fee was paid on 9th July 1965, so that the appeal was barred by 107 days. The deficiency was of Rs. 8. That question need not be gone into.

7. This appeal is dismissed as barred by time.


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