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DevkishIn Fatechand Vs. Bai Mariambai and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 637 of 1962
Judge
Reported inAIR1963Guj255; (1963)0GLR707
ActsLimitation Act, 1908 - Sections 12(2) - Schedule - Article 152
AppellantDevkishIn Fatechand
RespondentBai Mariambai and ors.
Appellant Advocate K.G. Vakharia, Adv.
Respondent Advocate P.V. Hathi, Adv.
DispositionRevision allowed
Cases ReferredJayashankar v. Mavabhai
Excerpt:
.....the time requisite for obtaining a copy of the decree. to accept the view contended for by the learned counsel for the respondents would mean that a party who applies for a copy of the decree two minutes before the decree is signed would be in a better position than a party who applies for a copy of the decree two minutes after the decree is signed......has come into existence. the time required for obtaining a copy of the decree would depend on the date the decree comes into existence, the date when the parties have applied for a copy of the decree and the date when the copy is ready to be supplied to the applicant.it would be immaterial for the purpose of determining this period whether the party has applied on sunday or monday or whether he has applied before ihe decree is signed, or after tbe decree is signed or whether he has applied for a copy of the decree two minutes before the decree is signed or two minutes after the decree is signed. to accept the view contended for by the learned counsel for the respondents would mean that a party who applies for a copy of the decree two minutes before the decree is signed would be in a.....
Judgment:

V.B. Raju, J.

1. This revision application arises, out of an order passed by the Assistant Judge, Rajkot District, Gondal, rejecting an application for permission to file an appeal as a pauper. The application was rejected on the ground that the appeal itself is barred by limitation. The application was given on 3-4-62. The date of judgment was 31-1-62. The decree was signed on 26-2-62. The application for certified copy of the decree-was given on 2-3-62. The copy was ready for-delivery on 28-3-62. The learned Judge held that in cases where an application for copies was given, after the decree has been signed, the time between the date of judgment and the date on which the decree was signed should not be excluded. The learned Judge relied on Bechi v. Ahsan Ullah Khan, ILR 12 All 461 (FB). The learned Judge has also relied on Kanji Devsi v. Velji Haridas.. : AIR1950Bom350 and Tincowri Haldar V. Nani-gopal Mondal : AIR1960Cal258 .

2. Under Order 20, Rule 7, Civil Procedure Code,

'The decree shall bear date the day on which the judgment was pronounced, and, when the Judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree'.

Section 12(2) of the Limitation Act reads as follows:

'In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree., sentence or order appealed from or sought to be reviewed, shall be excluded.'

The whole controversy turns on the exact meaning, to be given to the expression 'time requisite for obtaining a copy of the decree appealed from'. As observed by their Lordships of the Supreme-Court in Jagat Dhish v. Jawahar Lal, AIR 1961 SC S32:

'There is, however, a sharp difference of opinion in regard to cases where an application for a certified copy of the decree is made after the said decree is drawn up. In dealing with such cases Courts have differed as to what would be the period requisite for obtaining the certified copy of the decree. The Bombay. Calcutta and Patna High Courts appear to have held that the period taken in drawing up of the decree would be part of the requisite period, while other High Courts have taken a contrary view. It is significant that though the High Courts have thus differed on this point, in every case an attempt is judicially made to do justice between the parties. With that aspect of the problem, however, we are not concerned in the present appeal.'

Their Lordships, however, have not decided this point. The learned counsel for the applicant relies on a Full Bench decision in Jayashankar v. Mavabhai : AIR1952Bom122 . Chagla, C. J. observed, that the time that elapses between the pronouncement of the judgment and the signing of the decree should be excluded under Section 12(2), Limitation Act. The learned counsel for the respondent relies on Keshar Sugar Works v. R C. Sharma : AIR1951All122 .

3. As observed above, the expression 'time-requisite for obtaining a copy of the decree' has to be construed. It means the time properly required for obtaining a copy of the decree. Tt again-means the time properly required for obtaining the copy after the decree has come into existence because no copy of the decree can be given before the decree has come into existence. It, therefore, means the time required to supply a copy of the decree after the decree has come into existence. The time required for obtaining a copy of the decree would depend on the date the decree comes into existence, the date when the parties have applied for a copy of the decree and the date when the copy is ready to be supplied to the applicant.

It would be immaterial for the purpose of determining this period whether the party has applied on Sunday or Monday or whether he has applied before ihe decree is signed, or after tbe decree is signed or whether he has applied for a copy of the decree two minutes before the decree is signed or two minutes after the decree is signed. To accept the view contended for by the learned counsel for the respondents would mean that a party who applies for a copy of the decree two minutes before the decree is signed would be in a better position than a party who applies for a copy of the decree two minutes after the decree is signed. It is true, as observed by the learned Judges of the Allahabad High Court, that a party can file an application for a copy of the decree even before the decree is ready. But the period taken by the Court itself for bringing the decree info existence should not depend on when the party concerned makes an application for obtaining a copy. But at the same time, no portion of the period to be excluded under Section 12(2) of the Limitation Act should be repeated twice. For instance if part of the period to be excluded is the period taken by the Court to prepare the decree and that period is included in the period beginning from the date of the application and the date on which a copy of the decree is ready, that period should not be counted twice. The period which is required for obtaining a copy or any part of that period cannot be considered twice over for the purpose of Section 12(2) of the Limitation Act. But the period necessary for the Court itself to prepare the decree and make the decree come into existence must be excluded. The period for obtaining a copy of the decree is made up of two periods (1) the period requisite for bringing the original decree into existence and (2) the period requisite for preparing a copy after the decree has come into existence.

4. I, therefore, hold that the period from the date of the judgment or the date of the decree and the date on which the decree is signed must be excluded even in cases where an application for a copy of the decree is given after the decree is signed. The same view has been taken in : AIR1952Bom122 , and with respect, I agree with the observations contained in that judgment.

5. I, therefore allow the revision application and direct the learned Judge below to dispose of the application to file an appeal in forma pauperis in full in accordance with law without rejecting it as time-barred. No order as to costs.


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