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Secy. of State and anr. Vs. Sm. Parijat Debi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1932Cal331
AppellantSecy. of State and anr.
RespondentSm. Parijat Debi and anr.
Cases ReferredPramatha Nath v. W. A. Lee and J. N. Surly
Excerpt:
- .....of the act which says: ' that in computing the period of limitation prescribed for an appeal the time requisite for obtaining a copy of the decree, sentence or order appealed from shall be excluded.'4. it is contended for the respondent that under this section no time can be excluded prior to the time when the appellant filed his requisition for a copy of the order and that the fact that the order had not been signed until 20th may or filed until 1st june does not enable the appellant, who filed his requisition for copy on 18th may, to deduct under this provision the time which had by that date elapsed since the making of the order on 17th march.5. taking his stand upon the self-evident fact that an order cannot be copied until it is completed, the appellant contends that as he filed.....
Judgment:
ORDER

Rankin, C.J.

1. The order appealed from in this case was passed on 17th March 1931, and the question before us is whether the memorandum of appeal, which was presented to the Court on 9th June, was presented within the time allowed and, if not, whether the time ought to be extended under Section 5, Limitation Act, 1908.

2. On 18th March the attorneys for the applicant, Srimati Parijat Debi, filed a requisition for the drawing up of the order; on 30th April the appellant's solicitor wrote to the Registrar asking that direction may be given for expediting the settling of the order; on 6th May appellant's attorney received the draft order for approval and returned it approved on the 8th. It was settled by the Registrar in the presence of the parties on the 12th, but it was not signed by the Registrar until the 20th and was not filed until 1st June. Meanwhile, on 18th May, the appellant's Attorney lodged a requisition for a copy of the order; on 2nd June the number of folios was marked in order that the appellant might file stamps for the appropriate amount; stamps were furnished on the same day; on 8th June, the copy of the order was ready for delivery to the appellant and he presented his memorandum of appeal on the 9th. It was refused by the Registrar on the ground that it had been presented after the expiry of 20 days from the date of the order.

3. By Article 151, Limitation Act, the time for filing an appeal is 20 days from the date of the order. But the question before us turns upon the proper application of Section 12, Sub-section (2) of the Act which says: ' that in computing the period of limitation prescribed for an appeal the time requisite for obtaining a copy of the decree, sentence or order appealed from shall be excluded.'

4. It is contended for the respondent that under this section no time can be excluded prior to the time when the appellant filed his requisition for a copy of the order and that the fact that the order had not been signed until 20th May or filed until 1st June does not enable the appellant, who filed his requisition for copy on 18th May, to deduct under this provision the time which had by that date elapsed since the making of the order on 17th March.

5. Taking his stand upon the self-evident fact that an order cannot be copied until it is completed, the appellant contends that as he filed his requisition for a copy on 18th May, and the order was not even signed until the 20th, the time prior to 18th May was time requisite for obtaining a copy of the order.

6. Different High Courts have taken different views upon the question whether under Section 12 an appellant is entitled to a deduction for the time which elapses from the date on which an order has been pronounced until a formal order is made out and completed. In this High Court the question has long been governed by the Full Bench decision in Bani Madhub Mitter v. Matangini Dassi [1886] 13 Cal. 104 (F.B.) according to which the appellant is entitled to deduct the time which elapses until the formal order is completed as being time requisite for obtaining a copy of the order.

7. The Allahabad High Court in Bechi v. Ahsanullah [1890] 12 All. 461 and the Bombay High Court in Yemaji v. Antaji [1898] 23 Bom. 442 took another view.

8. In the Subordinate Courts there would seem to be no practice or procedure under which the parties take a share in the drawing up of a decree or order. Upon the original side however an order is not drawn up unless one or other of the parties applies for the drawing up of the order, whereupon a draft of the proposed order is sent to the parties, and the order is finally settled by the Registrar in the presence of the parties. B. 27, Oh. 16 of the Original Side Rules is as under:

No decree or order shall be drawn up until applied for by a party. The application therefor shall be made by the requisition in writing of the party in whose favour the decree or 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 ....

9. The view taken in Allahabad and Bombay appears to be that unless the appellant has in fact applied for a copy of the decree, he is not delayed in obtaining a copy of it by the fact that the decree was not signed until a later date. As the ruling in Bani Madhub's case is a Full Bench ruling of this Court binding upon us and as it still governs all appeals presented to this Court on the appellate-side and as Section 12, Lira. Act, says nothing about an appellant being delayed, but refers to the time requisite for obtaining a copy of the decree, I have no doubt that prima facie we must follow Bani Madhab's case.

10. The respondents contend however that the case of Pramatha Nath Roy v. W. A. Lee [1919] 52 I.C. 582 and Pramatha Nath Roy v. W. A. Lee A.I.R. 1922 P.C. 352 changed the current of authority, and they maintain that the appellant is not entitled to deduct the time between 17th March and 18th May. In fact that his right to deduct any time as being time requisite for obtaining a copy, can only begin on the date on which he applied for a copy. The facts of Prama-tha Nath Roy's case [1919] 52 I.C. 582 were that the order appealed from was made on 26th July and the memorandum of appeal was filed on 30th August. Twenty days from the date of the order expired on 15th August and the question was as to the period between 15th and 30th August. No application had been made by the appellant for a copy of the order until. 9th September; the order was completed on 28th August and filed on 3rd September. The appellant contended that as the order was not filed till 3rd September, there was no necessity for him to take any steps prior to that date. It was held by Sanderson, C. J., that if the plaintiff made delay in applying for the order to be drawn up, the defendant was entitled under the rules to make the application, and that he could not claim to deduct time on the ground that the order had not come into existence if he was himself responsible for the delay in having the order drawn up. In other words, as Mr. Pugh contends before us for the appellants, Sanderson, C. J., did not refuse or fail to apply the rule in Bani Madhab's case; what he did was to add a rider, applicable to appeals from the original side, to the effect that delay in drawing up an order may be attributable to the negligence or laches of the appellant; and that in that event, the non-completion of the order will not show that the time prior to its completion was time requisite for obtaining a copy. In the judgment of Chitty, J., however it was stated:

On principle I would hold that an appellant who has not, within the period of limitation applied for a copy of the order appealed from and who has within that period taken no steps whatever towards procuring such copy cannot be allowed after the period of limitation has run out, to claim exclusion of time requisite for procuring such copy.

11. When the case went to the Privy Council, the appellant contended that the time requisite, within Section 12, is the time which in the circumstances of the case is actually occupied in obtaining the order. Their Lordships rejected this argument, holding that 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 the order. It was argued before their Lordships that Bani Madhab's case or the practice thereunder, had decided that in all cases it was sufficient to look at the time that had actually elapsed in obtaining the order. Their Lordships rejected this interpretation of Bani Madhab's case. They pointed out that in that ease only six days had elapsed between the pronouncing of the judgment and the signing of the decree and said that it would be impossible for anybody to suggest that that was an unreasonable time, It certainly does not support the proposition that in 'determining what period is to be deducted in any case, the time actually spent in obtaining the decree is to be deducted.' Now if the present case falls to be decided in accordance with the Privy Council decision, or in accordance with the judgment of Sanderson, C. J, the appellant is entitled to the deduction which he claims and his appeal is in time. In this case requisition for drawing up the order was made by the applicant on the very next day and the appellant did what he could to get the order expedited. No laches can be imputed to him so as to make him responsible for the fact that the order was not completed and filed till the 1st June. He filed his requisition for a copy before the order was completed and presented his memorandum of appeal on the day after the copy of the order was ready for delivery to him. The dictum of Chitty, J., is against the appellant, but nothing else in this case warrants a suggestion that where there has been no delay by anyone in obtaining the completion of the order the time occupied in obtaining it is not part of the time requisite for obtaining a copy of it, because the requisition for the copy was not filed until the time approached when the order was about to be completed.

12. Nibaran Chandra v. Martin & Co. [1920] 58 I.C. 408 was decided by Mukerji, Ag. C. J. and Fletcher, J., before the decision in Pramatha's case came before the Judicial Committee. Notwithstanding Bani Madhab's case the Division Bench follows the Allahabad decision, Bechi v. Ahsanulla, and agreed with the observations which I have cited from the judgment of Chitty, J., in Pramath's case holding that the time requisite for obtaining a copy does not begin till an application for a copy has been made. The learned Judges referred to Harish v. Chandpur Co. Ltd. [1912] 39 Cal. 766 where Bani Madhab's case had been distinguished and held not to govern an appeal brought from the High Court to the Privy Council, the main reason given being that in this Court there was no provision for the date of signature being stated on the face of a decree. This reason has now for many years ceased to have force as all decrees and orders of this Court when signed bear the date of signature underneath the signature.

13. Kamruddin Hyder v. M. N. Mitter : AIR1925Cal735 was a case where the appellant had failed to take the necessary steps to get the order drawn up contenting himself with filing an application for a copy of the order. The case therefore fell under the rule laid down in Pramatha Nath Roy's case, and the appeal was held to be time barred. In Gobind Lal v. Official Assignee : AIR1925Cal291 the appellant had made the same mistake. He had filed a requisition for a copy and had left the drawing up of the order to take care of itself. There is nothing in the judgment of Sandersen, C. J., contrary to the contention of the present appellant, but in the judgment of Buckland, J., it is stated:

Consequently, it is now not open to question that a party who desires to prefer an appeal against a decree or order, must apply for a copy of such decree or order within twenty days, the period of limitation, for preferring an appeal.

14. This observation was made in passing and as a preliminary to the statement of the point raised in that case. In Sarat Chandra v. Upendra Nath : AIR1927Cal623 the appellant was held to be in time even upon the footing that no time can be excluded prior to his application for a copy of the decree; but in referring to the previous decisions and endeavouring to understand and apply them, I said that those decisions show that a copy of the order must be applied for within 20 days of its being pronounced, and that the proper way of ascertaining whether the appellant is in time is to look first at the date on which he applied for a copy. It was not necessary to consider whether the law was not more favourable to an appellant than had been laid down in Nibaran's case and in the dicta quoted from the judgments of Chitty, J. and Buckland, J. It was sufficient for the purposes of the decision to follow the most recent authority which may not have been challenged by the appellant in that case.

15. In 1928 the matter came again before the Privy Council in the case of J. N. Surty v. T.S. Chettyar A.I.R. 1928 P.C. 103. That case turned upon a different point. But their Lordships in explaining Section 12, Lim. Act, observed:

The word 'requisite' is a strong word; it may he 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 for showing that no part of the delay beyond the prescribed period is duo to his default. But for the time which is taken up by his opponent in drawing up the decree, or by the officials of the Court in preparing and issuing the two documents he is not responsible.

16. In Sambhunath v. Gopilal A.I.R. l929 Cal 734 these observations were applied to a case where the decree had been pronounced on 16th May; the requisition for drawing up the decree had been given on 17th by the plaintiff; and the defendant for the first time filed a requisition for obtaining an, office copy on 5th June. The present question was glanced at but loft as a matter which need not be decided.

17. In my opinion Bani Madhab's case, which is daily followed on the appellate side of this Court, is applicable to appeals from decrees and orders made on the original side. If the fact that the decree is not in existence is not imputable to negligence on the part of the appellant, then the rule may be applied in the same way in which it is applied to decrees of the subordinate Courts without condition. The fact that the decree was not in existence and could not; therefore be copied, entitles the appellant to deduction of the time which elapsed before the decree was completed. His right to the deduction does not depend upon his filing an application for a copy at a time when there is no possibility of copying it. Pramatha Nath Roy's case lays down a qualification of the rule in Bani Madhab's case. That qualification is that the appellant must be diligent in taking stops to have the decree or order drawn up. But there is no rule which dissentitles an appellant to exclude time which elapses between the making and the drawing up of an order by reason merely of the fact that his application for a copy was not filed prior to the drawing up.

18. The question therefore arises whether in view of Nibaran's case it is open to this Bench to give effect to this opinion. Upon careful consideration I do not think that the two Privy Council decisions which have since been given entitle us to disagree with Nibaran's case without referring the matter to a Full Bench. The point now raised was not really raised in either case before the Judicial Committee. Again, I do not think it right to consider the Secretary of State's alternative application under Section 5, Lim. Act 1908, until it has first been decided whether the appeal is out of time.

19. I would refer to a Full Bench the questions:

(1) Whether in the case of an appeal from the original side the time requisite for obtaining a copy of the decree or order does not begin until an application for a copy has been made.

(2) Whether in the present case the appellant may claim under Section 12, Lira. Act 1908, to have the period prior to 18th May 1931, or any part of it excluded in computing the period of limitation applicable to this appeal.

(3) Whether the case of Nibaran Chandra v. Martin & Co. (6). was rightly decided in so far as it held (a) that the time requisite for obtaining a copy does not begin until an application for copies has been made, (b) that if the application for a copy is made after the expiry of 20 days from the date of the decree or order reference to Section 12, Lim. Act, is of no avail to the appellant.

20. The appeal being a first appeal these questions of law are alone referred and the appeal will under Rule 3, Ch. 7, Appellate Side Rules, come back to a Division Bench thereafter.

Pearson, J.

21. I agree.

Opinion

C.C. Ghose, J.

22. The questions referred to the Full Bench in this case are as follows: (1) Whether in the case of an appeal from the original side the time requisite for obtaining a copy of the decree or order does not begin until an application for a copy has been made. (2) Whether in the present case the appellant may claim under Section 12, Lim. Act, 1908, to have the period prior to 18th May 1931, or any part of it excluded in computing the period of limitation applicable to this appeal. (3) Whether the case of Nibaran Chandra v. Martin & Co. (6), was rightly decided in so far as it held: (a) that the time requisite for obtaining a copy does not begin until an application for copies has boon made; (b) that if the application for a copy is made after the expiry of 20 days from the date of the decree or order, reference to Section 12, Lim. Act is of no avail to the appellant.

23. The facts involved in the case out of which this Pull Bench reference has arisen as also the cases in the books bearing on the question in issue, are fully stated in the referring order of the learned Chief Justice, but it may be useful to state the facts once more in this judgment. On 17th March 1931 my learned brother Costello, J., made an order on the application of Srimati Parijat Debi directing the Administrator-General of Bengal as executor to the will of one Pashupati Mukerji, deceased, to make over to the applicant, who is the widow of the deceased that portion of the residuary estate of the testator in his hands to which her deceased son Tirthapati Mukerji was entitled after retaining in his hands a sum sufficient to cover any claim by the Secretary of State for India for court-fees under Section 19-H, Court-fees Act, in case it be held that the said Srimati Parijat Debi ought to have taken out a succession certificate as a condition precedent.

24. On 18th March Messrs. Dutt and Sen, attorneys for Srimati Parijat Debi, filed a requisition for the drawing up of the order. On 25th March the attorney for the Secretary of State for India in Council and the Administrator-General of Bengal presented a requisition for the drawing up of the said order and it is stated that such requisition was refused by the Order Department on the original side of this Court on the ground that a requisition had already been filed by Messrs . Dutt and. Sen. The order had not been drawn up even by 30th April and on that date the appellants' attorney wrote to the Registrar requesting him to expedite the drawing up of the said order. On 6th May the appellants' attorney received the draft order for approval; it was returned by him after, approval on 8th May. The order was settled by the Registrar in the presence of the attorneys of the parties on 12th May. It was signed by the Registrar on 20th May and it was filed on 1st June. Meanwhile on 18th May the appellants' attorney had lodged a requisition for a certified copy of the order. On 2nd June the number of folios was, marked in order that the appellants might file stamps for the appropriate amounts stamps were furnished on the same day; the certified copy of the said order was delivered to the appellants on 8th June and they presented a memorandum of appeal to the Registrar on 9th June. The memorandum of appeal was however refused by the Registrar on the ground that it had been presented after the expiry of 20 days from the date of the said order.

25. The question for determination is whether the memorandum of appeal was presented within the time allowed by Article 151, Lira. Act, read with Section 12, Sub-section (2), Lira. Act.

26. It is unnecessary for me to go through the various eases wherein the proper application of Section 12, Sub-section (2), Lim. Act, has been considered, As I have said, all the relevant cases are to be found collected and discussed in the referring order of the learned Chief Justice.

27. Under Article 151, Lim. Act, the time for filing an appeal from a decree or order of the High Court in the exercise of its original jurisdiction is 20 days from the date of the decree or order, and under Section 12, Sub-section (2), Lim. Act, in computing the period of limitation prescribed for an appeal, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree or order appealed from is excluded.

28. The words 'time requisite' have been recently considered by their Lordships of the Judicial Committee in the case of J. N. Surty v. T. S. Chettyar. Their Lordships observed as follows:

The word 'requisite' is a strong word; it may be 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 for showing that no part of the delay beyond the prescribed period is due to his default. But for the time which is taken up by his opponent in drawing up the decree, or by the officials of the Court in preparing and issuing the two documents, ho is not responsible.

29. The appellant is as of right, entitled to the exclusion of such time as is properly required for the drawing up of the decree or order, assuming that no part of the delay, if any, is due to his default. In other words, if the delay in obtaining a copy is due to the laches of the appellant, he cannot claim the benefit of this provision for exclusion of the time required for obtaining a copy of the decree or order.

30. Prior to the decision in the case reported in J. N. Surety v. T. S. Chettyar the rule, as understood by the profession on the original sides was as stated by the learned Chief Justice in his judgment in the case of Sarat v. Upendra Nath (10) at p. 482 (of 54 Cal):

These decisions show (1) that a copy of the order must be applied for within 20 days of its being pronounced and (ii) that it will be of no avail to apply for such copy unless within the 20 clays a requisition to draw up the order has been given either by the appellant or by some other party to the cause.

31. The law being now as stated by their Lordships of the Judicial Committee, the real point for consideration is whether or not on the facts of this particular case, any part of the delay beyond the prescribed period was due to the default or laches on the part of the appellants. Before 1st June the order in the present case was not in existence for the purpose of obtaining a copy; the order, it is true, was signed by the Registrar on 20th May but no copy could be available until the 1st June, because it had not been filed till that date. The appellants who had applied for a copy on the 18th May would, in my opinion, clearly be entitled to deduction of time which elapsed before the order was completed. There was no delay or laches on their part. And as regards the period between the 2nd June and 9th June no question arises or could possibly arise.

32. In my opinion, the decision of the Full Bench in Beni Madhab's case, which was referred to with approval by their Lordships of the Judicial Committee in the case of Pramatha v. Lee, is still the law so far as appeals from the original side are concerned, subject of course to what has been stated by their Lordships of the Judicial Committee in Pramatha Nath v. W. A. Lee and J. N. Surly v. T.S. Chettyar.

33. In my opinion, the memorandum of appeal is within time and should be admitted. I would therefore answer the question referred to the Full Bench in manner indicated below:

(1) The answer is in the negative.

(2) The answer is in the affirmative.

(3a) The answer is in the negative.

(3b) Not necessarily; the answer to the question whether Section 12 can be invoked when the application for a copy is made after the expiry of 20 days from the date, of the decree or order depends on the facts of each particular case.

Buckland, J.

33. I agree.

Pearson, J.

34. I agree.

Mukerji, J.

35. I agree.

Rankin, C.J.

36. Having been a party to the order of reference, I need only say now that I agree with the judgment which has just been delivered.


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