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Dalipram and anr. Vs. Chhabiram and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 39 of 1963
Judge
Reported inAIR1964MP233
ActsLimitation Act, 1908 - Sections 12(3)
AppellantDalipram and anr.
RespondentChhabiram and anr.
Appellant AdvocateA. Razzak, Adv.
Respondent AdvocateP.R. Padhye, Adv.
DispositionAppeal dismissed
Cases ReferredKisan v. Ramchandra
Excerpt:
- - the word 'requisite' is a strong word; nawal kishore, ilr 17 all 213 (fb) approved by the privy council in 55 ind app 161 :(air 1928 pc 163) (supra) ). (2) that as decrees do not contain the reasons for the decision, the terms of the decree may not always give the necessary information required to effectively determine the desirability for an appeal, thus making the obtaining of a copy of the judgment on which the decree is founded necessary......arises for consideration is whether the time spent in getting a certified copy of the judgment in civil appeal no. 69-a of 1961 could be 'excluded in computing the period of limitation for the filing of this second appeal.3. civil appeal no. 2-a of 1961 was decided by the district judge, raipur, on 25-9-1962 by an order which stated: 'for the reasons given in civil appeal no. 69-a of 1961, this appeal fails and is hereby dismissed.' the decree was filled in on 27-9-1962. thereafter, the appellants obtained certified copies of the judgment and decree in civil appeal no. 69-a of 1961 and filed this appeal in the high court on 5-1-1963; but, instead of filing, the certified copies of the 'order' and decree appealed from, filed the certified copies of the judgment and decree in civil appeal.....
Judgment:
ORDER

T.P. Naik, J.

1. This appeal has come up before me on an office objection that it was barred by limitation. The appellants contend that the appeal is within time; and, in the alternative, they pray that the delay, if any, in the filing of the appeal be condoned under Section 5 of the Limitation Act.

2. The only question that arises for consideration is whether the time spent in getting a certified copy of the judgment in civil appeal No. 69-A of 1961 could be 'excluded in computing the period of limitation for the filing of this second appeal.

3. Civil Appeal No. 2-A of 1961 was decided by the District Judge, Raipur, on 25-9-1962 by an order which stated: 'For the reasons given in Civil Appeal No. 69-A of 1961, this appeal fails and is hereby dismissed.' The decree was filled in on 27-9-1962. Thereafter, the appellants obtained certified copies of the judgment and decree in civil appeal No. 69-A of 1961 and filed this appeal in the High Court on 5-1-1963; but, instead of filing, the certified copies of the 'order' and decree appealed from, filed the certified copies of the judgment and decree in civil appeal No. 69-A of 1961. On the office pointing out the mistake, the appellants applied for, and having obtained, the certified copies of the 'order' and decree in civil appeal-No. 2-A of 1961, filed them on 22-1-1063. The appeal can thus be taken to have been filed on. 22-1-1963, and the question is whether it is within time.

4. If the time taken in obtaining the certified copies of the 'order' and decree in civil appeal No. 2-A of 1961 alone is excluded, which comes to three days, the appeal is barred by time by twentyfour days. If the time taken in obtaining, the certified copies of the judgment and decree in: civil appeal No. 69-A of 1961 is also excluded, this time being forty-seven days, the appeal would be within time.

5. The question, therefore, is whether the time taken in obtaining the certified copies of the judgment in civil appeal No. 69-A of 1961 could be excluded in computing the period of limitation for filing the appeal, on the ground that it was 'time requisite' for obtaining a copy of the judgment on which it was founded, within the meaning-of Sub-section (3) of Section 12 of the Limitation Act.

6. There is no definition of the expressions'time requisite' in the Limitation Act; but the judicial Committee of the Privy Council in Surty v.Chettyar, 55 Ind App 161 at p. 170: (AIR 1928 PC 103, at p. 106) pointed out that:

'The word 'requisite' is a strong word; it maybe regarded as meaning something more than the; word 'required'. It means 'properly required', and it throws upon the pleader or counsel for the appellant the necessity of showing that no part of the delay beyond the prescribed period is due to his default.'

But, the crucial expression with which we are concerned is 'a copy of the judgment on which it is founded', for if the judgment in civil appeal No. 69-A of 1961 is not a judgment on which the decree in appeal was founded the time requisite for obtaining its copy cannot be excluded under Sub-section (3) of Section 12 of the Limitation Act.

7. A perusal of the provisions of Sub-sections (2) and (3) of Section 12 of the Limitation Act shows that the lay unequivocally and unreservedly allows-the deduction of time taken in obtaining copies of the decree appealed from and the judgment on which it is founded from the period of limitation prescribed for an appeal therefrom. The time has to be deducted whether the copies of the judgment and the decree are required for the purpose of filing them with the memorandum of appeal, or whether their filing has been dispensed with under the provisions for filing of appeals.

In 55 Ind App 161: (AIR 1928 PC 103) (supra); the Judicial Committee of the Privy Council accepted the statement of law laid down in Haji Hassun v. Nur Mohammed II.R 23 Bom 643

'that in reckoning the time for presenting an appeal, the time required for obtaining a copy of the judgment must be excluded, even though, by the rules of the Court it was not necessary to obtain a copy of the judgment to file with the memorandum of appeal.

It has also been ruled that if the copies of the two documents have been separately applied for the time requisite for both has to be deducted, subject to the consideration that if any period of time overlapped, the period so over-lapping could not be the time requisite; (see Mitra's Limitation Act, Note 126).

In Ramchandrarao v. Mayaram, AIR 1928 Nag 131, it was pointed out that the law does not require that the copies of both judgment and decree must be applied for simultaneously; it is a well recognised practice for an unsuccessful litigant to obtain a copy of the judgment first so that he may consider whether he will appeal or riot; and then he may apply for a copy of the decree. In such a case, the aggregate period taken in obtaining copies of judgment and decree will be excluded.

8. The reasons for the rules embodied in Sub-sections (2) and (3) ibid thus appear to be:

(1) That the Legislature might have intended to give possible appellants time to consider the terms of the decree before hurrying into an appeal from it : (see the observations of Edge, C. J. in Wajid Ali Shah v. Nawal Kishore, ILR 17 All 213 (FB) approved by the Privy Council in 55 Ind App 161 : (AIR 1928 PC 163) (supra) ).

(2) That as decrees do not contain the reasons for the decision, the terms of the decree may not always give the necessary information required to effectively determine the desirability for an appeal, thus making the obtaining of a copy of the judgment On which the decree is founded necessary.

(3) That these requirements being for the subjective satisfaction of the possible appellants and their legal advisers, the obtaining of certified copies could alone satisfy them reasonably, as the hearing of the judgment while it was being delivered in open Court or a mere perusal of it in Court after its delivery could not in all cases give an adequate idea of the merits of the appeal to the possible appellants or their legal advisers to enable them to decide whether an appeal was either feasible or worthwhile.

9. Now if I am right in this, then, on a parity of reasoning, the order governing the decree, which, Instead of itself giving the reasons therefor referred the appellants to some other judgment where they were embodied, would equally be uninformative as the decree by itself was. And, unless a copy of the governing judgment was obtained, it would serve no useful purpose, so far as the consideration regarding the advisability of the filing of an appeal was concerned, to obtain a copy of the order which did not in terms contain the grounds on which the decree relating to it was founded. In such a case, 'a copy of the judgment on which it (the decree) is founded' within the meaning of Sub-section (3) of Section 12 would be the governing judgment, which contains the reasons for the decision read with the judgment of order in the case in which the appeal is to be preferred.

10. In S. A. No. 48 of 1947 D/- 28-11-1952 (Nag), Kisan v. Ramchandra, Mudholkar, J. (as he then was) held that the language of Section 12(3) of the Limitation Act permits the allowance of the time taken up in obtaining copies even of judgment in the other appeal, which only contained the reasons for the decision.

11. I am, therefore, of opinion that the 'time requisite' for obtaining the copy of the judgment in civil appeal No. 69-A of 1961, the copy of the order in civil appeal No. 2-A of 1961 and the copy of the decree in civil appeal No. 2-A of 1961, shall have to be excluded in computing the period of limitation for the filing of this second appeal.

12. It is not disputed that if all this time is excluded, the appeal would be within time.

13. The objection that the appeal is barredby limitation therefore fails and is dismissed.


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