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State of Orissa and anr. Vs. Govind Chaudhury - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtOrissa High Court
Decided On
Case NumberMisc. Appeals Nos. 159 to 164 of 1970
Judge
Reported inAIR1972Ori76
ActsLimitation Act, 1963 - Sections 5; Arbitration Act, 1940 - Sections 17 and 39
AppellantState of Orissa and anr.
RespondentGovind Chaudhury
Appellant AdvocateAdvocate General
Respondent AdvocateG. Rath, Adv.
Excerpt:
.....filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the..........its own, or the judgment incorporating it can be treated as such, and whether, in such a case, the time for appeal is to be computed from the date of judgment, or the date of decree, is not free from ambiguity. there is no decision on this point of this court. the view taken by the advocate-general may not be a correct one and probably is not. but the delay is relatable to such wrong opinion. it cannot be said that the advice of the advocate-general was not given in good faith, and with due care and caution. his mistake, if any, is a bona fide one, and cannot be attributed to any misconduct negligence, or want of reasonable skill. the nature of the legal question involved for determination, as already stated, is not free from doubt. it is also common knowledge that the office of the.....
Judgment:

Ray, J.

1. The sole question for consideration in these appeals is whether sufficient cause has been shown within the meaning of Section 5 of the Limitation Act for condonation of delay. If sufficient cause for excusing delay is shown, the Court may, in its discretion, condone delay and admit the appeals.

2. This batch of appeals is from a common order dated 4-8-1970 passed by Sri D.N. Misra, Subordinate Judge, Bhubaneswar, under Section 17 of the Indian Arbitration Act, 1940, by which six applications, being the subject-matter of six misc. cases, viz., Nos. 50, 13, 15, 16. 28 and 29 of 1967, were heard together and disposed of.

In all those cases, the respondent was the petitioner who had obtained six awards in six arbitration proceedings, commenced in pursuance of the arbitration clauses in six different contracts with the present appellant relating to disputes arising in connection with each such contract.

The arbitrators submitted their awards on January 16, 1970, in all these cases. The awards were filed in the court of the Subordinate Judge. Bhubaneswar under Section 14 of the Arbitration Act. Notice was given by the Court of filing of such awards and inviting objections on 29-1-1971. The appellants, in each case, filed objection on 3-3-1970 praying for setting aside the awards on various grounds, which were disputed by the respondent. After hearing the arguments in all the misc. cases, one common order was passed on 4-8-1970. The subordinate Judge, after refusing to set aside the awards, proceeded to pronounce judgments according to the awards. The order refusing to set aside the awards and passing of the judgment in accordance therewith were parts of the same composite order dated 4-8-1970. Subsequently, on 1-3-1971, the learned Advocate-General submitted that this batch of appeals should be treated as appeals from the order dated 4-8-1970, refusing to set aside the awards, and not as appeals against decrees which were drawn up following this order. He was allowed opportunity to give further particulars relating to the sufficiency of cause for excusing delay, on the footing that these appeals are from the order, and not from decrees, which he has done by a supplementary affidavit filed on 10-3-1971.

3. Section 39 of the Arbitration Act provides for appeal against an order refusing to set aside the award. The order of the Subordinate Judge dated 4-8-1970 being an order refusing to set aside the awards, was appealable, and these appeals have been preferred under this section of the Arbitration Act. Upon passing of the judgment in that very order, a decree was drawn up on 12-8-1970 which is also appealable as such under the provisions of the Civil Procedure Code, Limitation for filing of appeal against the order refusing to set aside the award is to commence running from the date of the order, that is 4-8-1970. The period for appeal being ninety days, the last day for filing of appeals expired on 2-11-1970. But the appeals having been filed on 27-11-1970 are clearly out of time by twenty-five days.

4. In each appeal the appellant has filed an application under Section 5 of the Limitation Act for condonation of delay. The grounds for condonation being the same in each appeal, all the aforesaid appeals being from one common order, and parties in each appeal being the same, the limitation matter in all the appeals are taken up together, and this order will govern that matter in all the appeals.

5. The cause shown under Sec. 5 of the Limitation Act runs as follows:

The Executive Engineer of Bhubaneswar Division, represented the State (appellant) in the litigation, and was in charge thereof. He was under the bona fide impression that appeal is to be preferred from the decree when the same is drawn up. The decree was signed and sealed on 12-8-1970. He, therefore, made an application for certified copy of the decree on 9-9-1970, and the decree was made ready on 10-9-1970, and the Executive Engineer took delivery of the certified copy on 12-9-1970 and forwarded the same to the Advocate-General for taking necessary action for filing of necessary appeals. It is obvious that all these steps were taken fifty days before expiry of the period of limitation for filing of the appeals from the order dated 4-8-1970. Copies of the decree remained with the Advocate-General for sometime, and the Executive Engineer received intimation from the Advocate-General on 11-11-70 that the appeal would be time-barred on 12-11-1970. As the Advocate-General wanted certified copy of the judgment to be obtained immediately for filing the appeal, an application for the same was made on 12-11-1970. The copy of the judgment was shown ready on 26-11-1970, and was taken delivery by the Executive Engineer that very day, and the appeal was filed on the 27th, that is, next day.

6. It is clear from the aforesaid narration of events that the matter remained pending with the Advocate-General from about 13-9-1970 till 11-11-1970, when he intimated the Executive Engineer to apply for a certified copy of the judgment which was an essential document for filing the appeal, simultaneously also intimating him that the appeal will be barred on 12-11-1970. It is alleged that the Advocate-General felt genuine doubt as to whether an appeal against the decree was to be filed, or an appeal under Section 39 of the Act is to be filed, when it is desired to reverse the decision refusing to set aside the award.

Section 17 of the Arbitration Act speaks of passing of an order refusing to set aside an award in the first instance and thereafter the judgment and decree are to be passed according to the award. Normally, an order should exist apart from the judgment In the present case that order has merged in the judgment which has given rise to a bona fide doubt as to whether it can be treated as an order for the purpose of an appeal under Section 39, and secondly, even if it is treated as an appealable order, the tune for filing the appeal would or would not commence running from the date of passing of the decree. In fact, it appears that the Advocate-General, at one time, entertained the opinion that even though the judgment was to be appealed from an order, the limitation is to be computed from the date of the decree and that is why while asking the Executive Engineer for a certified copy of the judgment, intimated him that the last day for filing the appeals was 11-12-1970. The memo. of appeal contains grounds envisaged under Section 39 of the Arbitration Act. It is clear therefrom that the appeal was directed against order of the Subordinate Judge refusing to set aside the award, as otherwise, the grounds would have been limited to the judgment and decree being in excess of, or not otherwise in accordance with the award. This view is not correct, but the delay that has occurred in filing the appeal is on account of this mistaken legal opinion of the Advocate-General.

7. It is not unreasonably contended by the counsel for the appellant that the determination of the question as to whether the order refusing to set aside the award passed under Section 17, should have a separate entity of its own, or the judgment incorporating it can be treated as such, and whether, in such a case, the time for appeal is to be computed from the date of judgment, or the date of decree, is not free from ambiguity. There is no decision on this point of this Court. The view taken by the Advocate-General may not be a correct one and probably is not. But the delay is relatable to such wrong opinion. It cannot be said that the advice of the Advocate-General was not given in good faith, and with due care and caution. His mistake, if any, is a bona fide one, and cannot be attributed to any misconduct negligence, or want of reasonable skill. The nature of the legal question involved for determination, as already stated, is not free from doubt.

It is also common knowledge that the office of the Advocate-General is a heavy one, and a great demand is made on his time and attention by Government Departments. In the circumstances, it is to be expected that normally more time is needed by the Advocate-General to reach his conclusion on a disputed point of law, than is otherwise expected of an ordinary counsel. The legal advice that was given by the Advocate-General, though mistaken, was given in good faith, and with due care and attention, and considerable time was consumed in the office of the Advocate-General in arriving at a definite conclusion. After this conclusion was intimated to the Executive Engineer, all expeditious steps were taken in obtaining certified copies of judgment, and no time has been lost as well appears from the fact that certified copy was applied for on 12-11-1970, and taken delivery on 26-11-1970, and the appeal was filed on 27-11-1970, the whole period between 12-11-1970 and 26-11-1970, being the time requisite for obtaining certified copy.

8. So far as the Executive Engineer is concerned, he acted bona fide without negligence all through. The mistake, which may be attributed to him was a bona fide erroneous impression that the appeal is to be filed from the decree and that time would not run until after the decree was sealed and signed. His action is consistent with this impression.This is the position in regard to appeals which are sought to be filed from decrees in civil suits. This is the normal impression of the people in general. That apart, he obtained certified copies of the decree, and entrusted them to the Advocate-General fifty days before the limitation expired. When the latter required judgment copies, he promptly took action without any loss of time. The Executive Engineer cannot be blamed for any laches or negligence. The time between 12-9-1970 and 11-11-1970 was apparently spent by the Advocate-General in reaching his legal conclusion, and he has acted promptly and with due diligence after receiving instruction from the Advocate-General.

9. We are satisfied that the appellant, represented by the Executive Engineer, acted with reasonable diligence in prosecuting the appeal, and the delay, which may be ascribed to his initially erroneous, but bona fide, impression that the appeal can be filed only from the decree, was really owing to his reliance on the opinion and advice of the Advocate-General, which was also arrived at in our opinion, having regard to all circumstances, in good faith, and with due care and caution. There is legal authority for the view that mistaken legal advice as to procedure to be adopted by the client, based upon a bona fide and honest, but erroneous opinion as to law which is neither clear, nor settled, as in this case, relying upon which the appeal is filed beyond time, can be shown and accepted as sufficient cause within the meaning of Section 5 of the Limitation Act for not presenting these appeals in time.

10. The subject-matter of these appeals involves substantial amount of money. That apart, legal questions of far-reaching import are also involved. In our opinion, therefore, this is a case where after coming to the conclusion that there was sufficient cause for excusing the delay for filing the appeals we should exercise our discretion to condone the delay and admit these appeal in the interest of justice.

We would, however, direct that the appellant shall pay Rs. one-hundred, in each appeal, to the counsel for the respondent by way of costs, within six weeks from today.

G.K. Misra, C.J.

11. I agree.


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