M.L. Jain, J.
1. This is an appeal against the judgment and decree of the learned District Judge, Jodhpur dated January 4, 19/7, by which he dissolved the marriage of the appellant Priti Parihar with respondent Kailash Singh. It comes today for decision of a preliminary point raised on behalf of the respondent Kailash Singh that the appeal was incompetent as a copy of the decree sheet had not been filed with the appeal within the period of limitation.
2. The dates which are material for consideration in this connection are as follows:
(1) The judgment under appeal was delivered on 4-1-1977.
(2) The appellant applied for a copy of the judgment only on 5-1-1977.
(3) Copy was to be given on 6-1-1977. It was was ready on 7-1-1977.
(4) It was received by the appellant on 7-1-1977.
(5) The decree was signed on 18-1-1977.
(6) Appeal was filed only with a copy of the judgment but without a copy of the decree on 27-1-1977.
(7) The appeal was listed for admission in the High Court OH 2-2-1977.
(8) Caveat was filed on behalf of the respondent and copies were given to him on 2-2-1977.
(9) The appellant applied for a copy of the decree on 7-2-1977. On that day the objection of the caveator was also filed in the High Court.
(10) The case was again listed for admission on 8-2-1977 on which date the preliminary objection was raised that the appeal was incompetent not being accompanied by a copy of the decree.
(11) The decree was filed on 10-2-1977 without any application or affidavit for condonation of delay and without Any permission for filing the same.
(12) An application for condonation of delay under Section 5 of the Limitation Act Was filed on 13-4-1977 but without any affidavit.
(13) Affidavit in support of the application was filed on 12-7-1977.
3. It follows from the above chronology that the decree was filed later by 7 days out of which the time requisite for obtaining a copy, namely, 4 days shall be excluded. Thus the total delay is of 3 days.
4. The learned Counsel for the appellant made submissions in this connection:
(i) The judgment dated 4 I 1977 amounted to a decree and there was no need of a separate decree sheet as it was not a decree within the meaning of Clause (2) of Section 2 of the Code of Civil Procedure.
(ii) The appellant was entitled to the exclusion of time which was. taken by the court from 4-1-77 to 18-1-1977 in the preparation of the decree-sheet.
(iii) The appellant was entitled to the condonation of delay under Section 5 of the Limitation Act.
5. In respect of the first contention Mr. Bhoot learned Counsel for the appellant relies upon a decision of the Punjab High Court reported in Baljit Singh v. Shamaher Kaur , Relying upon Vara Laxmi and Anr. v. Veeraddi and Anr. : AIR1961AP359 Bai Umiymbhen v. Ambalal Laxmidas 0043/1966 : AIR1966Guj139 and C.P. Jairath, v. Amrit Jairath , a Division Bench of the Punjab High Court appears to have held that a decree granted under Sections 9, 10, 11, 12, 13 and 23 of the Hindu Marriage Act, 1955, (hereinafter called the Act) is not a decree as defined in Section 2(2) of the Code of Civil Procedure as a petition under the Act is not some thing in the nature of a suit, nor an adjudication thereupon requires to be followed by a formal decree. The appeal against such a decree is also governed by Section 28 of the Act. which cannot be in any manner circumscribed by Order 41 Rule 1 of the CPC and in such a case no copy of the decree need accompany the memorandum of an appeal. The learned Judges of the Punjab High Court went on further to say that the legislature intended the judgment or statement of the adjudication itself, where relief is granted, to be a decree. Se no separate decree is necessary in regard to an appeal under Section 28 of the Act.
9. In Varalaxmi v. Veeraddi and Anr. : AIR1961AP359 , it was observed that the adjudications under Sections 9, 10, 11 and 13 of the Act, cannot be treated as decrees within the meaning of Section 2(2) of the Civil Procedure Code. Such decrees are outside the preview of Section 96 of the CPC. Appeals filed under Section 96 alone can fall within the category of regular appeals and should be registered as such. The appeals from the above decrees can only be registered as Civil Misc. Appeals and not as First Appeals.
7. According to Bat Umiyabhen v. Ambalal Laxmidas 0043/1966 : AIR1966Guj139 , Section 28 of the Act provides not only the procedure for filing the appeal and the forum in which the appeal must be filed but also the jurisdiction and power of the court in dealing with the appeal so filed
8. In PC. Jairath v. Amrit Jairath it was observed that the decrees under the Act are decrees under the Civil Procedure Code & are by a statutory fiction treated for the purpose of enforce merit as decrees under the Code. though in fact are not such decrees.
9. Based upon these decisions, the argument made on behalf of the appellant is that firstly, Order 41 Rule 1 which requires that the memorandum shall be accompanied by a copy of the decrees appealed from does not apply to the decrees under the Act and secondly, if it does and if a copy of the judgment is filed, that is sufficient compliance with the rule.
10. The learned count el for the respondent on the other hand relies upon Kusumlata v. Kapta Prasad : AIR1965All280 and contends that the proceedings under the Act are suits resulting in decrees within the meaning of Section 2(2) of the Civil Procedure Code: The provisions of the Civil Procedure Code regulate all proceedings under the Act subject to the special provisions thereof. There was nothing in Section 23 of the Act which could deprive the decrees parsed under the Act of the effect or of the meaning which the term 'decree' has under Section 2(2) of the Civil Procedure Code.
11. The learned Counsel for the respondent then submitted that the aforesaid rulings pertain to the provisions as they stood before the Marriage Laws (Amendment) Act, 1976 (Act 68 of 76) and all controversies have been set at rest beyond ill doubts by an amendment of Section 28 by the said Act, 68 of 1976. Now, it is specifically provided that all decrees made by the Court in any proceedings under the Act shall be appealable 'as decrees of the court made in the exercise of its original civil jurisdiction and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original Civil Jurisdiction.' This amendment it is urged has equated the decrees made under the Act with the decrees made in exercise of original civil jurisdiction and has further made them appealable in the fame manner as other decrees are under Section 96 of the Civil Procedure Code.
12. I have considered. It will be noticed that Section 28 employs more or less the same words which section. 96 has employed, though neither) Section 96 nor Section 28 defer (nine the forum of such appeals. The forum, of appeal is provided by Section 20 of the Rajasthan Civil Courts. Ordinance, 1950 or by a corresponding law prevalent in other areas. The distinction therefore which has been attempted to be drawn by the High Courts of Andhra Pradesh, Gujarat and Punjab appears with great respect and humility not to be well founded. Section 96 of the Civil Procedure Code and Section 28 of Act read together make (he distinction between a decree under the Act and a decree passed under the Civil Procedure Code disappear. To my mind when Section 23 or other sections of the Act direct that the court shall decree a relief it can have no meaning other than to make it a decree for all purposes of the Code of Civil Procedure. Section 2(2) CPC defines a decree as a 'formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the lights of the parties with regard to all or any of the matters in controversy in the suit.' Now, all decrees under the Act determine the rights of the parties in respect of all matters in controversy. To draw a distinction that a decree under Section 23 or any other provisions of the Act is not a decree within the meaning of Section 2(2) C.P.C. because the right of appeal is not under Section 96 of the Civil Procedure Code, but under Section 28 of the Act is not at all convincing. If the definition of sub-Section (2) of Section 2 of the C.P.C. is not to be applied to such decrees then what will one understand from the word 'decree', I must dispel the doubt that it is not a case of a decree called so by a legal fiction or what is popularly called a deemed decree. The statute requires that the relief is decreed or is declined to be decreed. Now, all proceedings under the Act are as far as may be, to be regulated by the Code of Civil Procedure, 1908, in virtue of Section 21 of the Act or in its absence in virtue of Section 141 of the C.P.C., then how can one say that appeals are not circumscribed by Older 41, R.I.C.P.C.? What I understand is that it will be applied as far as may be.
13. The second question is whether any decree-sheet was required to be prepared and obtained or whether the judgment itself shall be considered to be a decree. When the statute uses the word 'decree', then a decree-sheet has necessarily to be drawn up because that is the requirement of Section 33 of the Civil Procedure Code which lays down that the court after the case has been heard, shall pronounce a judgment and on such judgment a decree shall follow. Order 20 of the Civil Procedure Code makes a clear distinction between a judgment and a decree. Order 20 Rule 6 provides that the decree shall agree with the judgment and shall clearly specify the relief granted or other determination of the suit Order 20 Rule 7 lays-down that the decree shall bear the date on which the judgment was pronounced. Order 20 Rule 20 says that certified copies of the judgment and decree shall be furnished to the parties on application to the court and at their expenses. That is why sub-section (4) has been inserted in Section 23 the Act as a special provision by Act 68 of 76, to provide for a copy of a decree of divorce free of cost to each party. It is, therefore, clear from a perusal of the aforesaid provisions that the term decree used in Order 11 Rule 1 covers a decree under Section 23 of the Act and a decree-sheet has to be prepared thereof as required by the different provisions of Order 20 of the CPC. The judgment itself cannot be deemed to be a decree for the simple reason if nothing else that is not a case of a deemed decree. Even in a case of a deemed decrees, it is worth while to notice a judgment of the Supreme Court reported in Shakuntala Devi Jain v. Kuntal Kumari and Ors. : 1SCR1006 with reference to Section 47 of the Civil Procedure Code. Section 2(2) thereof had provided that the decree shall be deemed to include determination of any question within Section 47. The Supreme Court observed that in same Courts, the decision under Section 47 is required to be formally drawn up as a decree and in that case the memorandum of appeal must be accompanied by a copy of the decree as well as the judgment. But in some other courts, no separate decree is drawn up embodying the adjudication under Section 47. In such a case, the decision under Section 47 is the decree and also the judgment, and the filing of a certified copy of the decision is sufficient compliance with Order 41 Rule 1. This shows that where even in a case of deemed decree, if the practice is prevalent in the Court that a decree sheet is drawn up, then, it is mandatory that a copy of decree must be filed along with the memo of appeal within the period of limitation.
14. The learned Counsel for the appellant then contended that there was no direction in the judgment that a decree shall be drawn up. Moreover, Section 23(4) of the Act, provides that in every case where a m image is dissolved by a decree of divorce, the Court passing the decree shall give a copy thereof free of cost to each of the parties. When the appellant applied for the judgment of the learned District Judge, she was supplied with a copy of the judgment free of cost. If there were a practice to prepare a decree, them, the court would not have supplied the appellant with a copy of such a lengthy judgment cover in about 73 pages free of cost. It should therefore be held that according to the practice so far prevalent in the court of the District Judge, Jodhpur' no formal decree-sheet used to be drawn up hithertofore. To my mind, this argument dots not hold any water because if the Court has not charged any cost for the supply of a copy of judgment, it does not mean that the judgment itself is a decree. The very fact that a decree was in fact drawn up and signed by the Judge on 18-1-77 shows unmistakably that formal decree sheets are drawn up in that court in cases under the Act.
15. I therefore, hold that without a copy of a decree given under the Act, an appeal against such a decree is an incompetent one. Hence, I reject the first contention.
16. The second contention of Mr. Bhoot is that the appellant is entitled to claim the exclusion of the lime from 4-1-1977, the date of the judgment to 18-1-77, the date of the signing of the decree. If these 18 days are allowed, then the appeal will be within time. The contention is based upon Section 12 of the Limitation Act, 1963 This section provides that in computing the period of limitation for an appeal etc., the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree appealed from shall be excluded. An explanation to this section is as follows:
Explanation: In computing under this section, the time requisite for obtaining a copy of decree or an order, any time taken by the court to prepare a decree or order before an application for a copy thereof is made shall not be excluded.
17. A clear meaning of this explanation will be that the time taken in preparation of a decree before an application for a copy thereof is made cannot be excluded from the time requisite for obtaining a copy of the decree. This time cannot form part of the time spent on obtaining a copy of the decree. It further means that no benefit can be allowed to the appellant of this delay.
18. However, in the State of Bihar v. M. Ismail and other : AIR1966Pat1 , two learned Judges out of three took the view that the meaning of the explanation is that the time taken by the court to prepare the decree before the application for its copy is made shall be included in the time requisite for obtaining the copy. The (earned Judge who differed, held that the meaning of the explanation is that the said time shall not be excluded in favour of the appellant because Section 12 is not concerned with any inclusion of time at all. The section is concerned with exclusion of time and then fore, it is not possible to interpret the explanation by holding that the expression 'shall not be excluded' means shall be included in the time requisite for obtaining a copy of the decree.
19. A similar question respecting the interpretation of the explanation arose in Sitaram Dada Sawant and Anr. v. Ramu Dada Sawant. His Lord ship Chandrachud, J. observed that all that the explanation contemplates is that the period between the date of the application for a certified copy of the, decree and the date when the copy is ready can alone be excluded. Whether a decree is drawn up or not are whether it is signed or not, the time taken by the Court for preparing the decree before the date on which the appellant, applied for a certified copy for the decree cannot be excluded in computing the period of limitation for filing the appeal Same was the view taken in Chunilal and Ors. v. State of M.P. AIR 1967 MP 427 and in Bangeswari Cotton Mills Ltd. v. Dhanrajmal Govindram and Ors. : AIR1967Cal595 But Dungarmal Sarewalla Jain and Ors. v. Rukma Kumar Jalol : AIR1970Cal443 and Krishanappa v. N.R.N. and Company AIR 1973 Mys 274 appears to have endorsed the view taken in State of Bihar v. Mohd. Ismail & other : AIR1966Pat1 , However the Division Bench of the Mysore. High Court is Krishnappa Ramasa Maleekar. v. Ramchandrana Ramana Malvekar and Ors. AIR 1973 Mys 234 has over ruled Krishnappa v. N.R.N. Company (12.) and, has. also dissented. from the Patna decision. Thus, it is clear that the decision of the Patna High Court is with due respect, not a sound proposition of law. The latest decision of the Gauhati High Court reported in Keshabroy v. Malanehahebirsons AIR 1972 Gauhati 83 represents the correct view of the law.
20. It will be noticed that in the Limitation Act, where ever a benefit of some time is given to a suitor in regard to compute the prescribed period of limitation, the expression used is that such time shall be excluded, that is, the time to be excluded was to be deducted from the prescribed period of limitation. Therefore, when the draftsman employed the expression. 'shall not be excluded' in the explanation, his obvious meaning was that the time so specified shall not be deducted. The same proposition can be stated by saying that the periods that come Within each of the sub-sections of Section 12 have to be added to the period of limitation for ascertaining' the last date for filing the appeal, vide Krishna Murari Dutta v. Ajit Kumar 76 CWN 316 : AIR1971Cal213 . Consequently the effect of the explanation is that the period stated therein shall not be added to the time requisite for obtaining a copy of a decree(SIC).
21. A practice has recently grown in this country to refer to the reports of the Law Commission & the Proceedings of the Parliament in order to find the meaning of a statutory provision The Law Commission in its Third Report on the Limitation Act remarked, 'But we think that a delay of the office before the application for a copy is made should not count in favour of the party.' They rejected the suggestion that to avoid hardship to the (SIC)i a is the time taken for drafting a decree should also be excluded in computing the period of limitation. Further, the notes on clauses of the Limitation Bill stated that 'Section 12 was being amended to make it clear that any delay in the office of the Court in drawing up a decree or order before the application For a copy thereof is made, Shall not be excluded.' There is now no scope for the interpretation which Mr. Bhoot is canvassing and for the exclusion of time which he is asking for. The second contention therefore, is hereby rejected and the appellant cannot get the benefit of the period from 4-11-77 to 18-1-77.
22. Now comes the last question Whether the delay in filing a copy of the decree should be condoned under Section 5 of the Limitation Act. As stated above, the total delay in filing the certified copy of the decree is of three days, It is a settled proposition that the appellant must explain each day's delay. The respondent made an application on 7-2 77 that the appeal was incompetent because it was not accompanied by a copy of the decree. In her reply riled on 23-2-77 to the preliminary objection, the respondent stated that the fact of preparation of the decree sheet came to the knowledge of the appellant through her counsel for the first time on 7-2-1977 when he happened to go to the copying department of the District Court in connection with some other case and heard Mr. Kachhwaha Counsel for the respondent talking of the decree sheet. It was then that the appellant applied for a copy of the decree. The decree was filed thereafter on 10-2-77. On 13-4-77, the appellant made an application under Section 5 of the Limitation Act, in which she prayed for condonation of the delay on the ground that in the trial court, the document was not prepared in time and the official of the High Court accepted the appeal as complete and competent. The respondent cannot be punished for the fault of the officials of the lower court and the High Court. As soon as the appellant came to know of the alleged document and the alleged objection, she acted with all speed without wasting even an hour. File application was not accompanied by an affidavit. The affidavit was tiled as late as 12-7-77. In this affidavit the appellant has stated that the fact of the preparation of the alleged decree ca:ne to her knowledge through her counsel for the first time on February 7, 1977 and her counsel applied for the same on the very day. It was filed in the High Court on the very day it was received from the trial court without any delay. She believed bonafide that the judgment is the decree under the provisions of the Hindu Marriage Act and as such it was supplied to her free of cost. All the contents of the affidavit were based on her personal knowledge except the content? of para 3 and para 7 which were stated on the basis of legal advice given to her counsel. There was no affidavit of the counsel regarding his knowledge of the fact that a decree had been drawn up in the case by the learned District Judge. The substance of the application is that the advice which was tendered to her by her lawyer was a sufficient cause for condonation of data/ within the meaning of Section 5 of the Limitation Act.
23. In Shakuntala Devi Jain v. Kuntal Kumari and Ors. : 1SCR1006 , the Supreme Court held that Section 5 gives the Court a discretion which is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction not want of bonafides is imputable to the appellant. If the appellant makes out sufficient cause for the delay, the Court may in its discretion con-done the delay in filing an appeal. In Jagat Dhish Bhargava v. Jawahar Lal Bhargava and Ors. : 2SCR918 , the Supreme Court with reference to Order 41 Rule 1 observed as follows:
If at the time when the appeal is preferred a decree has already been drawn by the trial court and the appellant has not applied for it in time it would be a clear case where the appeal would be incompetent and a penalty of dismissal would be justified '
'On the other hand, if a decree has been drawn up and an application for its certified copy has been made by the appellant after the decree was drawn up, the office of the appellate court should return the appeal to the appellant as defective, and when the decree is filed by him, the question of limitation may be examined on the merits.'
'No hard and fast rule of general applicability can be laid down for dealing with appeals directively filed under Older 41, Rule 1. Appropriate order will have to be passed having regard to the circumstances of each case, but the most important step to take in cases of defective presentation of appeals is that they should be carefully scrutinised at the initial stage soon after they are filed and the appellant required to remedy the defects
24. The learned Counsel for the respondent relying upon the aforesaid observations submitted that in this case when the appeal was preferred a decree had already been drawn up by the trial Court and it was a clear case where the appeal would be incompetent and the penalty of dismissal will be justified The learned Counsel for the appellant on the other hand maintained that the appeal had passed through the stage of admission through oversight of the office and the only fair and rational course to adopt was to give time to the appellant to produce the certified copy of the decree because it would be very unfair to penalise the party for the mistake committed by the registry.
25. In Chunnilal Balaji and Ors. v. State of Madhya Pradesh AIR 1967 MP 427, the learned Counsel applied for condonation of delay on the ground that he has been relying on an earlier decision of the Nagpur High Court. But the High Court of M.P. rejected the application because the Limitation Act of 1963 having been in force for more than a year, the delay could not be condoned vide A.D. Partha Sarthy v. State of A.P. : 57ITR408(SC) .
26. In Labhmal v. Lal Chand . it was held that the mistake of counsel may in certain circumstance be taken in account in condoning the delay, although there is no general proportion that mistake of counsel by itself is a sufficient ground. In every case it is a question of fact whether the mistake was bonafide or was merely on advice. The explanation of Section 5 however provides that the fact. that the appellant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of this section. It is contended that several decisions of the High Court referred to above lay down 'hat no decree sheet was to be prepared in respect of the decrees under the Act and the judgment itself was the decree. The learned Counsel further cited Supreme Court decision reports in Balbir Singh v. Bodh Singh 1975 SLR 4(SIC). In this case the appellant prosecuted his appeal before Add. District Judge bonafide and on some ground of mistaken belief. The matter also escaped scrutiny of office at the time of its institution and even in course of hearing before the District Court which had no jurisdiction to entertain the same. The Supreme Court held that this was sufficient cause for delay in filing the first appeal.
27. Having considered the matter, it appears to roe that the advocate of the appellant had been under a bonafide albeit mistaken belief that no decree sheet apart from the judgment was required to be prepared or filed along with the memo of appeal, on account of some decisions of the High Courts referred to above. There is no lack of diligence on the part of the appellant. Even the office of the High Court did not find the appeal defective. If the defect had been discovered in time near about 27-1-77, the appellant could have obtained a certified copy and filed the same, there being still a week more available to the appellant before the period of limitation came to expire. It is a case in which it shall not be proper to throw out the appeals and it is a just and judicious exercise of the discretion under Section 5 of the Limitation Act, 1963, 'if application for condemnation of delay is allowed. I accordingly accept the applicant on condone the delay and direct the appeal to be admitted even though the period of Limitation had expired on the day the certified copy of the decree was filed.
28. The preliminary point having thus been disposed of, the case may now be listed for hearing on merits.