1. This Rule was issued upon an application under Section 5 of Limitation Act praying for condonation of delay that is thought to have occurred in filing a memorandum of appeal in this Court which was filed on 24th of December 1969.
2. The appeal is directed against a decree passed by the 3rd Court of Subordinate Judge at Alipore in Title Suit No. 7_5 of 1956. The suit was one for partition. At the stage after the preliminary decree had been passed and the Commissioner for Partition had submitted his report, the objections to the Commissioner's report was disposed of by the learned Subordinate Judge on 24th December 1968 and the Commissioner's report was accepted. It was then ordered by Order No. 138 dated 24-12-68 that the preliminary decree be made final with subsequent costs. Commissioner's report, plan and the Field Book be made part of the final decree.
3. Thereafter two applications for amendment of the plaint were made and by Order No. 154 dated 10-5-69 the learned Subordinate Judge rejected those applications saying in the order:
'Now that the final decree of partition passed, the Court has no jurisdiction to open up the decree at this stage on the present petition, hence, both the petitions be rejected.'
4. The decree when drawn up was signed by the learned Subordinate Judge on 22-9-69 and Order No. 156 dated 22-9-69 recorded 'Final Decree sealed and signed this day'. It now appears that Nrisingha Murari Dutta who was the plaintiff in the suit and was intending to prefer an appeal against the Final Decree in the partition suit made an application for certified copy of the Order No. 138 dated 24-12-68 which really was the judgment at that final stage of the suit and also of the final decree that was drawn up in the suit on the same day that is 28th November 1969. The copies were made ready for delivery on 15th December 1969 and the memorandum of appeal was filed in this Court accompanied by those certified copies on 24th December 1969.
5. The said memorandum of appeal was returned to the learned Advocate for the appellant with the enforcement by the Stamp Reporter of this Court saying:
'In time upto 24-3-69. Out of time on 24-12-69.
In form (vide Order 41, Rule 1. C. P. C.) the date of prosecution by 275 days.
In this connection if any be noted that the final decree in suit challenged in this appeal was drawn up and signed as late as on 22-9-69 i.e., long after the prescribed period of limitation. In such a case, if the benefit of time occupied in the preparation of the decree after the delivery of judgment be allowed to be excluded from the period of limitation, the appeal will be within time. This is, however, a matter for the consideration of the Court.'
6. The report of the Stamp Reporter is dated 13-1-70 and the memorandum was in fact returned to the learned Advocate for the appellant on 15th January 1970 and on the same day the said memorandum of appeal was riled in Court accompanied by the application under Section 5 of the Limitation Act 1963. Present Rule issued upon that application.
7. In the application under Section 5 of the Limitation Act the material dates have been mentioned in paragraphs 3 and 4 and it has also been stated in paragraph 5 that as the decree was signed on 22nd September 1969 the benefit of time for delay in drawing up the decree should go in favour of the petitioner. For that reason in paragraph 6 of the petition it has been stated on behalf of the petitioner that there was no delay in filing the appeal. It has also been stated in that paragraph that in any event even if there was any delay there was no laches on the part of the petitioner and the delay should be condoned.
8. In support of the petitioner's contention that there was no delay in filing the appeal the learned Advocate Mr. Chandra Nath Mukherjee has pointed out that the Stamp Reporter in his report has said that if the benefit of time occupied for the preparation of the decree after the delivery of judgment be allowed to be excluded from the period of limitation, the appeal will be within time.
9. The Rule has been opposed on behalf of the opposite parties Nos. 5, 6 & 7. In the amdavit-in-opposition which was sworn to by one of those opposite parties namely Jharna Dutta opposite party No. 6 riled in Court on 18th September 1970 has raised the contentions that (a) Final decree for partition was passed on 24th December 1969 and appeal would lie from the said final decree.
(b) Though the decree was formally signed on 22nd September 1969, the appellant-petitioner having made the application for obtaining certified copy of the final decree on 22nd November 1969, the appellant is not entitled in law to obtain a deduction of the period between the date of passing of the said final decree and the date of signing of the same by trial Court, i.e., the period from 24th December 1968 to 22nd September 1969, (c) On proper construction of relevant provision of Limitation Act the time for filing an appeal against the final decree had begun to run from the date of the final decree, i.e., 24th December 1968 (d) The Stamp Reporter's recommendation that benefit for time of delay for drawing up the final decree should go to the appellant is erroneous and misconceived and that the delay of 275 days not having been explained by any sufficient cause the appellant is not in law entitled to the condonation of that delay.
10. These contentions raised on either side were elaborately discussed before us by the learned Advocate for the petitioner Mr. Chandra Nath Mukherjee and the learned Advocate for the opposite parties Nos. 5, 6 & 7 Mr. Hari Prasanna Mukherjee by referring to many decisions of this High Court and 'also ol other High Courts. For the opposite parties Mr. Hari Prasanna Mukherjee particularly emphasised the two well-known decisions of the Privy Council one reported in 49 Ind App 307 = (AIR 1922 PC 352), (Pramatha Nath Roy v. Lee) and the other reported in 55 Ind App 161 = (AIR 1928 PC 103), (J.N. Surty v. T. S. Chettyar) and also the Full Bench decision of this Court in the case of (The Secy, of State for Indian Council and the Administrator General of Bengal v. Sm. Parijat Debi) reported in 36 Cal WN 469 = (AIR 1932 Cal 331 (FB)). For contending that under Section 12 of the Limitation Act for getting deduction of time requisite for obtaining a copy of the decree in computing the period of limitation it must be shown that there was no laches on the part of the appellant in the matter of taking all steps for obtaining the certified copy, he contends that such laches may occur not only after the decree has been drawn up and sealed and signed by the Court, but also in the matter of enabling the Court to draw up and sign the decree when the decree is a Final Decree in a Partition Suit. The learned Advocate refers to Section 29(g) of the Stamp Act and Article 45 of that Act as the particular requirement in a final decree for partition. In other words, Mr Hari Prasanna Mukherjee contends that when a final decree in a Partition Suit has been made it is the duty particularly of the party who intends to prefer an appeal against that decree to take steps with diligence and without unreasonable delay as would enable the Court to draw up the formal decree and seal and sign that decree. If delay has occurred due to latches on the part of the appellant to take those steps although none of the other parties have taken the steps on their part, the time that elapses between the date of the final judgment and the date of drawing up of the Final Decree is time spent due to laches and negligence of the appellant and cannot be construed as the time taken by the Court to prepare the decree within the meaning of the Explanation in Section 12 of Limitation Act 1963.
11. For proper appreciation of Mr. Hari Prasanna Mukherjee's contention it is necessary to remember the provision in Order 20, Rule 7 of the C. P. Code and along with it. it is necessary also to remember that Section 96 of the Code of Civil Procedure creates right of appeal in these words:
'..... an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decision of such Court.'
Limitation for such appeal is now governed by Article 116 of Limitation Act 1963 which provides in material part:
'To a High Court fromany decree or order.
The data of the decree or order'.
Keeping those fundamentals- in view and also the definition of decree in Section 2(2) in Civil Procedure Code and the Explantion in that definition, the provisions in Section 29 of the Stamp Act has to be complied with. Section 29, Clause (g) of the Stamp Act is in these terms:
'(g) In the case of an instrument of partition by the parties thereto in proportion to their respective shares in the whole property partitioned, or, when the partition is made in execution of an order passed by a Revenue authority or Civil Court or arbitrator, in such proportion as such authority, Court or arbitrator directs,' Article 45 of the Stamp Act required an Instrument of Partition 'the same date as a bond (No. 15) for the amount of the value of the separated share or shares of property'. In the Partition Act Instrument of Partition has been defined in Section 2(15) and that definition includes also a final order of effecting a partition passed by any Civil Court.
12. Effect of those provisions in the Civil Procedure Code and in the Stamp Act taken together requires that in the Final Decree for partition where joint properties are separated by allotments, the amount of the value of each separated share or shares of the property need be mentioned to enable each party to apply for furnishing the stamp duty due from him to enable the Court to draw up the Final Decree in conformity of the provisions of law. That, of necessity, must be done in the order by which the Court directs that the Preliminary Decree be made final because that order is the judgment in accordance of which the Final Decree can be drawn up. If the Court omits to include in that judgment the determination of the value of each separated share and the stamp duty that each party need furnish for drawing up the final decree the judgment is not complete. In that event rights of the parties not having been finally determined, stage of the suit for drawing up of the decree by formal expression of an adjudication which so far as regards the Court expressing it conclusively determines the rights of the parties with regard to the matters in controversy in the suit has not been reached. Until the Court has performed that essential duty the decree can neither be drawn up in the office of the Court, nor can it be sealed and signed by the Court. In that event it is not possible to imagine even, far less to trace in any provision in the law, existence of any duty on the party in the suit.
13. In the present case by the order dated 24th December 1968 in the Commissioner's Report which was accepted by the Court by that order the value of each allotments of the properties given to the plaintiff and the 3 defendants were separately shown but the Court did not make any direction in the order for the purpose to furnish stamp paper of requisite value to be furnished by each party for drawing up of the Final Decree.
14. In the decree as drawn up and signed by the Court on 22nd September 1969 it has been mentioned that the defendant No. 3 having paid the entire stamp duty of Rs. 2,130/- the plaintiff and defendant Nos. 1 and 2 do each pay Rs. 532.50 P. to defendant No. 3. The defendants Nos. 1 and 2 having deposited the entire cost of commission amounting to Rs. 239.40 the plaintiff do pay Rs. 59.85 P. to the defendants Nos. 1 and 2 and the defendant No. 3 do pay Rs. 59 to the defendants Nos. 1 and 2. That only reveals that what the Court needed to do in the judgment was left undone when the judgment for the Final Decree was passed on 24th December 1968, and that has been incorporated in drawing up of the decree without any such directtion in the judgment. To that extent the judgment and the Final Decree are both irregular.
15. It is true that Rule 7 in Order 20 provides that decree shall bear the date of the judgment. That provision cannot mean that as soon as the judgment is pronounced the decree comes into existence, and it has always been understood in this High Court to mean when the decree is brought into existence by being drawn up sealed and signed by the Court then only the existing decree can bear the date of the judgment.
16. In this respect, even before the Explanation was added in Section 12 this High Court had laid down in the Full Bench decision reported in (1886) ILR 13 Cal 104, (Bani Madhub Mitter v. Matungini Dassi) that the interval between judgment and drawing up of the decree should be excluded as part of time requisite for obtaining copy of decree. Sir Coomar Petheram, C. J. in that case observed;
'The first question is, what is the date of the decree, and for the purpose of ascertaining that, it is necessary to look at Section 205 of the Code of Civil Procedure. By that section it is provided that a '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,' so that whatever may be the day, on which the actual signature is made, the date of the decree, for all purposes, is to be the date on which the judgment was pronounced.
Bearing that in mind, and also bearing in mind that under Section 541 of the Code of Civil Procedure, it is necessary that the Memorandum of Appeal shall be accompanied with a copy of the decree, it would be unfair to compute the period of limitation, in all cases, from the date on which the judgment was delivered because it is obvious that things may intervene so as to prevent the decree being signed until after the expiration of the whole period of 30 days allowed for preferring the appeal, and so the appeal may be rendered impossible without any fault of the parties; and therefore Section 12 of the Act provides that in computing this period of 30 days, the time requisite for obtaining a copy of the decree appealed against shall be excluded; and the question really in this case is, what is the meaning of these words. .....
But in our opinion the fact that the decree was not in existence, that is, signed by the particular Judge, and could not therefore be copied until 23rd July, that is, six days after date that it bears entitles the appellant to ask us to deduct those six days in addition to the eight days, and thus to hold that under Section 12 the appeal has been presented within the prescribed period,'
That has been consistently followed in this Court. In the case of Sarat Chandra v. Rati Kanta, reported in AIR 1939 Cal 711 that period was deducted even when the application for copy of decree was not made within the period of limitation calculated from date of judgment. That view was followed in Patna High Court in the ease reported in AIR 1939 Pat 135, (Kameshar Singh v. Kusheshwar Mahto).
17. With regard to the Full Bench decision reported in 36 Cal WN 469 = AIR 1932 Cal 331 and also recent decision : AIR1968Cal509 . (Gadadhar Ghosh v. Janki Nath Ghosh) we need point out that those were cases where under the Rules of the Original Side of this High Court the parties are required to take definite steps to have the decree drafted in the office of the Court for obtaining the copy of the decree. If there be laches in respect of that duty imposed by the Rules of the Court, the time that elapsed due to that laches were held to be outside the provisions of Sub-section (2) of Section 12.
18. Those cases do not however apply to cases like the present where the function of drawing up of the decree i9 entirely on Court and parties have no duty under the law or by any direction in the judgment to take any definite step.
19. Regarding the Court's duty to comply with the provisions in Section 29 Clause (g) of Stamp Act reference may be made to the judgment delivered by Gentle C. J. in the case reported in AIR 1948 Mad 172 (Nallendra v. Venkatachala) decided by a Division Bench of Madras High Court composed of Gentle C.J. and Patan-jali Sastri, J. It has been observed in that judgment:
'The postponement of the furnishing of the full amount of the Stamp paper is stated by him to be on account of the Court not directing the value of the stamp paper required from the applicant. In fact, the Court did not direct the proportions which the parties each had to bear out of the total amount for the stamp paper. It is clear from Section 29(g), Stamp Act, that it is the duty of the Court, in respect of a decree for partition, to direct the proportion of stamp to be borne by each party. That was not done in this case. It has been stated that it never is done. If that is so, it is time that the provisions of the statute should be commenced to be observed. There was no delay to be excused and the appeal has been filed within the statutory limitation period.'
20. We respectfully agree that the statutory duty should be performed by Court and unless that is done, the parties cannot be saddled with an imagined duty or penalised for the omission of the Court. Until the decree has been drawn up and sealed and signed by the Court there is not in existence any decree that will satisfy the definition of the decree in Section 2(2) of the Civil Procedure Code. It follows that limitation prescribed by the Limitation Act begins to run only when there is a decree existing against which an appeal under Section 96 of the Code of Civil Procedure can be preferred. In our view Mr. Hari Prasanna Mukherjee is not right in contending that as soon as the judgment is pronounced the decree conies into existence or that a period of limitation begins to run from the date of the judgment. In our view appeal can be preferred only against the decree that has come into existence and period of limitation will run when the decree has been drawn up, sealed and signed by the Court, though it will relate back to the date of judgment by effect of Order 20, Rule 7.
21. That however does not mean that the period of limitation is to be calculated from the date on which the decree was signed. In strict legal sense, the date of the decree is the date of the judgment by dint of the provision in Order 20, Rule 7 and in computing limitation that is the material date. For that reason Section 12 of the Limitation Act provides in its several sub-sections that for computing period of limitation (1) the day from which such period is to be reckoned shall be excluded. (2) 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, (3) the time requisite for obtaining a copy of the judgment on which the decree is founded shall be excluded, (4) time reciuisite foi obtaining copy of the Award shall be excluded. Then an Explanation has been added in the Limitation Act 1963 in these terms:
'In computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the Court to prepare the decree or order before an application for a copy thereof is made shall not be excluded.'
22. True effect of Section 12 is that the periods that come within each of the sub-sections in the Section have to be added to the period of limitation, that is 90 days, for ascertaining the last date for filing the appeal. Effect of the Explanation is that the period that comes within it has to be added also when period under Sub-section (2) is being added.
23. In the present case, Mr. Chandra Nath Mukherjee for the appellant-petitioner has contended that under Section 12, Sub-section (2) read with that Explanation, the entire period from 24th December, 1968 when judgment directing that the decree be made finally was pronounced upto 15th December 1969 the date when the certified copy of the Final Decree was ready for delivery should be excluded in computing the period of limitation. His reasons in short are that although in strict legal sense the period of limitation for filing the appeal will be 90 days from 24th December 1968, in computing that period of limitation the time requisite for obtaining a copy of the decree must be excluded. He relied on the Explanation for saying that time taken by the Court to prepare the decree before the application for copy was made shall not be excluded. In other words, he says that the entire period from 24-12-68 to 22-9-69 plus the period from 28-11-69 (when application for copy of the Final Decree was made) upto 15-12-69 (when the copy was ready for delivery) that is in the total a period of 291 days shall be excluded in computing the period of limitation from 24-12-68 by adding that entire period to 90 days allowed by Article 116. That will avail the position that last date of filing the appeal was 8-1-70, that being so, the appeal having been filed in the office of this Court on 24th December, 1969 was well within the period of limitation. Against those contentions and those arguments of Mr. Chandra Nath Mukherjee rejoinder was put up by Mr. Hari Prasanna Mukherjee for the opposite parties in several branches. First, he raised the Question whether the time that elapsed after 24th December, 1968 till 22nd September, 1969 when the decree was sealed and signed would come within the Explanation as 'any time taken by the Court to prepare the decree'. He says it would not, because by the nature of the decree which is the Final Decree in a Partition Suit, the Court was rendered unable to draw up the decree by the omission of the parties to furnish the requisite stamp paper on which the Final Decree would be drawn up in compliance with Section 29, Clause (g) and Article 45 of Stamp Act. He contends that it is not a case of time taken by the Court but it is a case of the appellant's omission to act. He pointed out that the present appellant did not furnish the stamp paper for drawing up of the decree even in proportion to the value of the allotments given to him. It was defendant No. 3 who had furnished the stamp paper of the entire value to enable the Court to draw up the decree. We have already held that Section 29 of the Stamp Act in Clause (g) speaks of direction by the Court. In the present case that direction was wanting in the order made by the Court on 24th December 1968. The second branch of Mr. Mukherjee's argument was that it is the duty of the party intending to prefer an appeal to take such steps as may be necessary for enabling the Court to draw up the decree within the period of limitation calculated from the date of the judgment. But we are unable to trace any provision in the law from which such a duty can be apelled out. In our view, where Court by omitting to give appropriate direction in the judgment leaves the judgment in the state of an incomplete and tentative judgment and difficulty created thereby is overcome only when one of the parties furnish the entire stamp duty, the time that elapsed for that reason is the time taken by the Court to prepare the decree and therefore would come within the Explanation under Section 12 of the Limitation Act. Mr. Hari Prasanna Mukherjee with some cogency pointed out that the view we are taking may lead to a result that when none of the parties furnish the stamp duty, the Final Decree in the Partition Suit will never be drawn up nor sealed and signed by the Court in which case the time within which an appeal can be preferred will remain uncertain for all times. The extreme case contemplated in raising that contention may occur in the realities of life only when all the parties are dissatisfied by the decree and none is willing to come forward to take any step for enabling the Court to bring into existence the decree which he himself is intending to challenge in appeal. Even then there is no escape from the position that against a decree an appeal is preferred and for computing a period of limitation, for such appeal decree must come into existence. Until then the right has not arisen, nor limitation for exercise of that right has begun to run. Whatever incongruities and unrealities that Mr. Hari Prasanna Mukherjee emphasised in support of his contention are completely met by the reality of the situation that there is no exception made in the Limitation Act in respect of appeals against Final Decree of Partition. The law as it stands has to be given effect to and we do not find any reason to think as Mr. Hari Prasanna Mukherjee seems to contend, that existing law as understood by us gives any result that is shockingly unfair. We, therefore, hold that there has not been any delay in filing the appeal on 24th December, 1969 and there is no question of condoning any delay. The appeal has been filed within the period of limitation as computed under Section 12 of the Limitation Act. The Stamp Reporter should have for such computation excluded 291 days under Explanation in Section 12.
24. The application, therefore, succeeds and the Rule is made absolute. Let the Memorandum of Appeal be registered and proceeded with in accordance with law. There will be no order as to costs.