1. The appellant brought a suit in the Court of Civil Judge, Pratapgarh, for a declaration that he was the Mahant of Vairagis of Pratapgarh and 'in that capacity was entitled to claim certain dues from the defendants on the occasions of certain ceremonies mentioned in the plaint. He also claimed Rs. 10/- on account of the 'Bhandara' of the father of defendant No. 1, which according to the plaintiff had been wrongly realised by the defendants Nos. 2 to 5. All the defendants except Jugaldas denied the claim. Jugaldas, defendant No. 3, admitted being liable for Rs. 10/- to the plaintiff. The court passed a decree against Jugaldas for Rs. 10/- but dismissed the entire suit against the rest of the defendants. The plaintiff, thereupon, filed an appeal before the District Judge of Pratapgarh but it was dismissed on the ground that it was barred by limitation. The plaintiff has filed this second appeal and it is contended that the view of law taken by the learned District Judge is not correct.
2. The relevant dates are as follows:
Date of judgment of the Civil Judge. 5th March, 1949,
Date of signature on the decree by 10th March, 1949, the Civil Judge.
Date of application by appellant for 12th March, 1949. copies of judgment and decree.
Date on which copies were ready for 16th April, 1949.delivery of which the appellanthad notice.
Date of delivery of copies, 20th April, 1949. Date of presentation of appeal before 16th June, 1949,the District Judge.
The court of the District Judge was closed from 15th May, 1949, to 15th June, 1949, as 15th May was Sunday and there were summer vacations from 16th May to 15th June, 1949.
3. Under Article 152 of the Limitation Act, the period prescribed for filing an appeal from the decree of the court of a Civil Judge to the court of a District Judge is 30 days and the time is stated to begin from the date of the decree or order appealed from.
4. After excluding the period from the date of the application for copies of the judgmentand decree i.e., the 12th March, 1949, till the date when copies were ready for delivery under notice to the appellant i.e., the 16th April, 1949, which comes to 36 days, the limitation for filing the appeal from the date of the decree expired on the 10th of May, 1949, and the appeal which was filed on 16th of June would obviously be barred by time. It was contended by learned counsel for the appellant that the period from the date of judgment till the preparation of decree, which comes to 5 days, should also be considered to be included in the 'time requisite' for obtaining copies of the judgment and decree, and in that case, the limitation for appeal would expire on the 15th of May which was a holiday and the appeal which was filed on the re-opening of the court on the 16th of June, 1949, was within time. The sole point for determination, therefore, is whether the period from the date of judgment till the date when the decree is drawn up and signed should be included in the 'time requisite' for obtaining the copy of the decree. The case came up in a Single Bench but was referred to a Division Bench as there was divergence of opinion among the High Courts in India and no decision of this court on the point was cited. The Calcutta, Bombay & Patna High Courts have taken the view that the period occupied in preparation of a decree should be included in the 'time requisite' for obtaining a copy. The Allahabad view is that any time spent in the preparation of a decree prior to the date when the appellant applies for a copy of a decree, is not 'time requisite' for obtaining a copy under Section 12 of the Limitation Act.
5. The leading case of the Calcutta High Court is -- 'Bani Madhub v. Matungini Dassi', 13 Cal 104 (FB). It was conceded by the Full Bench that whatever might be the day on which the actual signature was made, the date of the decree, for all purposes, was to be the date on which the judgment was pronounced, but in interpreting the words 'the time requisite for obtaining a copy of the decree appealed against', their Lordships held that the period taken for preparation of the decree must also be considered to be the time requisite for obtaining a copy on the ground that it would otherwise be unfair to the appellant. This case came up for consideration before the Full Bench of Allahabad in -- 'Bechi v. Ahsan-Ullah Khan', 12 All 461 (FB) and it was held that
' 'The time requisite for obtaining a copy of the decree' cannot refer to any period antecedent to the appellant's asking for a copy by the usual mode for applying therefore, or to any period subsequent to its being ready for delivery. If at the time when the application for a copy is made, the decree is not ready, he will of course be entitled to the allowance of such portion of time during which the decree remains unsigned, along with the time which may be occupied in preparing the copy for delivery; the reason being obvious that the act of obtaining has already commenced and the delay in such a case could not be referred to any omission or neglect on his part. But when he had made no application to obtain a copy and the decree remains unsigned for a portion of, or the whole period of limitation, he cannot claim the benefit of a matter which in no sense and to no extent frustrated or retarded any endeavour on his part to obtain a copy of the decree, the endeavour itself not having yet commenced.'
As regards the reasoning that it was unfair to compute the period of limitation from the date of the judgment when the decree was not ready, Mahmood J. observed
'that the right of appeal is the creation of statute law and has to be exercised subject to the restriction and qualifications imposed by the statute law,'
6. The Allahabad view was accepted in -- 'Yamaji v. Antaji', 23 Bom 442 and -- 'Jotindranath v. Lodna Colliery Co. Ltd.', AIR 1921 Pat 175 (FB). The Patna High Court constituted a larger Bench in 1936 and it was held that in view of the observations of their Lordships of the Judicial Committee in -- 'Jijibhoy N. Surty v. T. S. Chettyar Firm', 55 Ind. App. 161 (PC), -- 'Bechi v. Ahsan-ullah Khan', 12 All 461 (FB) was no longer good law and the view taken in -- Bani Madhub v. Matungini Dassi', 13 Cal 104 (FB) was affirmed. The Bombay High Court also constituted a Full Bench in 1937 in -- 'Murlidhar v. Motilal', AIR 1937 Bom 162 (FB) and it was observed that in view of the observations of their Lordships of the Privy Council in -- Pramatha Nath Roy v. William Arthur Lee', 49 Ind App 307 (PC), the law laid down in -- 'Bechi v. Ahsan-ullah Khan', was no longer good law. In the Oudh Chief Court, the Allahabad view was followed in -- 'Faquir Bux v. Beleshar', AIR 1930 Oudh 369. But the view was changed in -- 'Jadubir Singh v. Sheo Naresh Singh', AIR 1944 Oudh 154 on the ground that in 'the case of Pramatha Nath Roy', their Lordships of the Privy Council had approved of the principle laid down in -- 'Bani Madhub's case'. In the Nagpur Judicial Commissioner's Court, a Full Bench held in -- 'Umda v. Rupchand', AIR 1927 Nag 1 (FB) that the applicant was not entitled to claim a deduction of the period between the date of the judgment and signing of the decree, when his application for a copy had not been filed until after the signing of the decree. It appears therefore, that until the decision in the case of -- 'Pramatha Nath Roy', the majority of the High Courts in India approved of the decision in -- 'Bechi v. Ahsan-ullah Khan', but they changed their view thereafter.
7. It may be pointed out that the case of -- 'Pramatha Nath Roy v. William Arthur Lee', 49 Ind. App. 307 (PC) was on the Original Side of the High Court, in which under the Rules of the Original Side of the Calcutta High Court, it was laid down that:
'No decree or order shall be drawn up until applied for by a party. The application therefore, shall be made by the requisition in writing of the party in whose favour the decree or on whose application the order was made, or, in default of his applying within four days from the date of the decree or order, by any party within one month thereafter.
In case any decree or order is not applied for within the last mentioned time, the Registrar may decline to draw up the same' without the leave of the Court or a Judge.'
The particular order against the defendant, against which the appeal was filed, was passed on the 26th of July, 1918. The plaintiff applied on the 6th of August to have the order drawn up. It was served on the appellant on the 7th August, approved by him on the 16th August, signed by the Master on August 28 and filedon 3rd of September 1918. Their Lordships of the Privy Council held that the appellant had failed to give any satisfactory explanation for the periods between 30th July, the date on which the appellant could have applied for the preparation of the order and 6th August, the date when the plaintiff made the application, and again, between 7th August and 16th August, the time that the defendant took to approve the draft, and it was held that the appellant was not entitled to the exclusion of the periods mentioned above. This was, therefore, a case in which even after allowing the time necessary for preparation of a decree, the appeal was barred by time. -- 'Bani Madhub v. Matungini Dassi', 13 Cal 104 (FB) was relied upon by the appellant for the contention that even the delay from the 30th July to 6th August and 7th August to 16th August should not be taken in-to account, and their Lordships repelled the contention by observing that they were unable to see how that decision could be so misunderstood. Their Lordships further made an observation that in Bani Madhub's case, the decree was signed within six days of the pronouncement of the judgment and it would be impossible to suggest that that was an unreasonable time. It may be mentioned that their Lordships were considering the rules of the Calcutta High Court on the Original Side and were dealing with an appeal barred by time even allowing a reasonable time for the preparation of the decree and it is possible that their Lordships were not concerned at the time to see whether Bani Madhub's case was not on the original side of the High Court, since the appeal in that case was barred by time in any view of the matter. The observations of their Lordships in an earlier part of the judgment are, however, very emphatic where they say that 'in their Lordships' opinion, no period can be regarded as 'requisite' under the Act, which need not have elapsed if the appellant had taken reasonable and proper steps to obtain a copy of the decree or order. The period which can be excluded, therefore, can only begin from the date where the appellant has taken reasonable and proper steps to obtain a copy of the decree or order and as a consequence any period prior to the making of the application for copy cannot be excluded.
8. In -- 'Jijibhoy N. Surty v. T. S. Chettyar Firm', 55 Ind App 161 (P.C.) the point before their Lordships of the Privy Council was whether the period requisite for obtaining copies of both the judgment and the decree, should be excluded and their Lordships held that even if by a rule of the High Court, a memorandum of appeal need not be accompanied by a copy of the decree, it should be excluded. In that connection, the word 'requisite' was interpreted as meaning something more than the word 'required.' It meant 'properly required' and it was held that the time required by the opponent in drawing up the decree, or by the officials of the court in preparing and issuing the two documents, was not one for which the appellant could be held responsible. This case was one in which the appeal had arisen out of a suit in the original side of the High Court of Rangoon & an application had been made for copies of both the judgment and the decree on the very date of the pronouncement of the judgment. These two Privy Council cases, therefore, do not suggest that the view taken in -- 'Bechi v. Ahsan-Ullah Khan', 12 All, 461(F.B.) was wrong. Be that as it may, while the Calcutta, Bombay and Patna High Courts have taken the view laid down in -- 'Bani Madhub's case', 13 Cal. 104 (F.B.) some of the other High Courts have preferred to follow the view taken in -- 'Bechi v. Ahsanullah Khan'. In -- 'Maung Baw Byu v. Maung Yan Shin', I.L.R. (1939) Rang. 686 it was observed that the time requisite for obtaining a copy need not begin until an application for copy had been made and the view taken in -- 'Bechi v. Ahsanullah Khan' was accepted as correct. In -- 'Abdul Salam v. Abdul Khaliq', AIR 1945 Lah. 233, the learned Judges held that under Order 20, Rule 7, the date of the decree was the date of the judgment, & under Article 156 of Lim. Act limitation must run from the date of the judgment even though the decree was prepared and signed on the later date and the period between the date of the judgment and the date when the decree was prepared cannot be allowed to be deducted. In -- 'Mukunda v. Bisansa', AIR 1933 Nag, 125 their Lordships observed that in -- 'Pramatha Nath Roy v. W. A. Lee', 49 Ind App 307 (P.C.) their Lordships of the Privy Council had not considered the question whether or not the decision in -- 'Bani Madhub's case', would apply to cases where the appellant was not responsible for the delay in signing the decree, The Allahabad view was accepted in this case as correct. In a recent case -- 'Governor General in Council v. Jes Raj', AIR 1950 Assam 83, the view taken in -- 'Bechi v. Ahsan-ullah Khan', 12 All 461 (F.B.) was approved.
9. The Allahabad High Court had occasion to re-consider the question recently in--'Keshar Sugar Works v. R. C. Sharma', A.I.R. 1951 All 122 (F.B.) and in view of the fact that the Calcutta, Bombay and Oudh High Courts had in their Full Bench decisions taken a different view, a Full Bench of five Judges was constituted. It was held after a consideration of the leading decisions on the point that the decision in -- 'Bechi v. Ahsan-ullah Khan', was good law and had not been overruled by the Privy Council by -- 'Pramatha Nath Roy v. W.A. Lee', 49 Ind. App. 307 (P.C.). It may be pointed out that under Order 20, Rule 7 of the Civil Procedure Code, it has been laid down that the date of the decree shall be the date of the judgment and under Article 156 of the Limitation Act, the time for an appeal is to run from the date of the judgment even though the decree was prepared and signed on the later date. If the period from the date of the judgment till the signing of the decree was to be excluded, the result would be that the time for appeal would have to be counted not from the date of the judgment but from the date of signing of the decree which would be contrary to the provisions of the Limitation Act. If the time between the date of the judgment and the signing of the decree was to be excluded under Section 12 of the Limitation Act, on a view that the appellant was not in a position to apply for the copy of a document which had not come into existence, a further uncertainty would be brought in as illustrated by the decision in -- 'Bhausaheb Jamburao y. Sonabai', I.L.R, (1946) Bom. 437 where time was also allowed to the appellant to apply for copies even after the decree had been prepared and it was observed that if such time is reasonable one, it would also be included as 'time requisite'.
10. In our opinion, the time requisite for obtaining a copy of the decree cannot refer to any period antecedent to the appellant asking for a copy or to any period subsequent to its being ready for delivery. The decision on the question of law by the lower court is, therefore, correct.
11. Learned counsel for the appellant next made an oral application that the benefit of Section 5 of the Limitation Act be granted to him. The grounds alleged were that in the High Court of the Covenanting State of Pratapgrah, a decision given as far back as 1945, in which the view taken in -- 'Bani Madhub's case', 13 Cal. 104 (F.B.) was approved, and that it was under that misunderstanding that the appeal could not be filed in time. Learned counsel has filed a copy of the judgment of the High Court of the covenanting State of Pratapgarh in -- 'Mst. Sunder v. Bardi Chand', decided on 29th of May, 1945, in support of his contention. We accept the statement of the learned counsel at the bar that it was due to the misunderstanding created by that decision of the Pratapgarh court that the appeal could not be filed within time. As such, we deem it proper to give the appellant the benefit of Section 5 of the Limitation Act and the delay in filing the appeal in the lower court is condoned.
12. This appeal is, therefore, accepted, the judgment and decree of the lower court are set aside and the case is sent back to the lower appellate court for decision on merits. No order is made as to costs of this appeal as the other side has not appeared.