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Tincowri Haldar Vs. Nanigopal Mondal and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberA.F.A.O. (S.M.A.) No. 40 of 1956
Judge
Reported inAIR1960Cal258,63CWN711
ActsLimitation Act, 1908 - Section 12 - Schedule - Article 152; ;Code of Civil Procedure (CPC) - Sections 151 and 152 - Order 41, Rule 1
AppellantTincowri Haldar
RespondentNanigopal Mondal and ors.
Appellant AdvocatePurushottam Chatterji and ;Pabitra K. Basu, Advs.
Respondent AdvocateBijan B. Das Gupta and ;Somendra Ch. Basu, Advs.
DispositionAppeal allowed
Cases ReferredJ.) and Soudamini Dasi v. Nabalak Mia
Excerpt:
- .....judge is, according to article 152 of the indian limitation act, 30 days from the date of the decree appealed from. under order xx, rule 7 of the code of civil procedure the decree shall bear the same date as the date on which the judgment was pronounced. mr. chatterji's contention is that in this case limitation began to run from the 5th of february, 1955, when the original decree was signed by the learned munsif and it is conceded by the respondent that if that is the date from which limitation runs the appeal filed by the defendant in the lower appellate court was out of time. the learned district judge, however, took the view that the starting point of limitation is not the date on which the original decree was signed but the date on which the amended decree was signed by the.....
Judgment:

Lahiri, J.

1. This appeal has been referred to tile Division Bench by Banerji J. on account of a conflict oil judicial opinion on the point that arises for consideration in this appeal. That point is whether the appeal filed by the respondent in the lower appellate court was barred by limitation. The plaintiff who is the appellant before us filed a suit for recovery of possession of 1.22 acres of land on declaration of his tenancy right under defendant No. 2. The disputed land was described in two schedules of the plaint, namely, schedules Ka and Chha. The prayer made by the plaintiff in the plaint was to the effect that the plaintiff's tenancy right might be declared under defendant No. 2 in respect of the land described in schedule Ka of the plaint. The second prayer in the plaint was that a permanent injunction might be passed against defendants Nos. 1 and 2 restraining them from exercising any act of possession in respect of the land described in schedule Ka or in the alternative if the Court comes to the conclusion that the plaintiff had been dispossessed by defendants Nos. 1 and 2 from the land described in schedule Ka a decree for khas possession might be made in favour of the plaintiff. Schedule Ka of the plaint is a part of schedule Chha. The suit was decreed by the trial court on the 31st of January, 1955, which was the date of the judgment. The decree that was drawn up in pursuance of the judgment was signed by the learned Munsif on the 5th of February, 1955. The decree, as originally drawn up, ran as follows:

'In respect of the disputed land the plaintiffs tenancy right under defendant No. 2 be declared and the plaintiff do 'get khas possession on eviction of the defendants.'

The disputed land was described in the decree in two schedules Schedule Ka consisted of 1.22 acres and schedule Chha consisted of 4.70 acres but as I have already said schedule Ka was a part of schedule Chha. There was, therefore, some ambiguity in the decree as originally drawn up. On the 1st of March, 1955, the defendants filed an application for amendment of the decree under Sections 151 and 152 of the Code of Civil Procedure by altering the description of the land in dispute. That application was allowed by the learned Munsif by an order dated the 4th of March, 1955, and it runs as follows:

'The relief sought by the plaintiff is in respect of the land described in schedule Ka of plaint which is only a part of the bigger Chha schedule. The plaintiffs title and possession have been decreed in respect of Ka schedule. The decree no doubt gives the impression that the plaintiff will get khas possession of Ka and Chha schedule lands. The decree should be appropriately amended in order to make it in conformity with the judgment. This is a mere clerical error. Hence ordered that the prayer be allowed. In the decree under the heading^^nkoh** let the words^^fuEu rilhy cM+uhrks** bedescribed as ^^fuEu^dk* rilhy cM+furks** and in theorder portion let the words ^^ukfy'kh tfers**be described as ^^^dk* rilhy cM+furks ukfy'kh tfersa**

The effect of the amendment, therefore, is to brine the decree in conformity with the judgment and the prayer made by the plaintiff in his plaint. In pursuance of the order made by the learned Munsif the decree was actually amended and the amendment was signed by the learned Munsif on the 7th of March, 1955. On the 4th April, 1955, the defendant filed an appeal in the court of the District Judge who registered the appeal and took up the question of limitation as a preliminary issue before admitting the appeal and giving his decision on the merits. On the 31st of May, 1955, the learned District Judge came to the conclusion that the appeal filed by the defendant was within time because, according to him, the starting point of limitation would be the date when the amended decree was signed by the learned Munsif. Thereafter the appeal was heard on the merits by the 9th Subordinate Judge at Alipur and as a result of the hearing the learned Subordinate Judge has set aside the judgment and decree made by the learned Munsif and remanded the suit to the trial court with certain directions. Against the order of remand the plaintiff has brought this appeal.

2. Mr. Purushottam Chatterji appearing in support of the appeal has argued that the learned District Judge erred in law in holding by his order dated the 31st of May, 1955, that the appeal presented by the defendant was within time. The period of limitation for filing an appeal in the court of a District Judge is, according to Article 152 of the Indian Limitation Act, 30 days from the date of the decree appealed from. Under Order XX, rule 7 of the Code of Civil Procedure the decree shall bear the same date as the date on which the judgment was pronounced. Mr. Chatterji's contention is that in this case limitation began to run from the 5th of February, 1955, when the original decree was signed by the learned Munsif and it is conceded by the respondent that if that is the date from which limitation runs the appeal filed by the defendant in the lower appellate court was out of time. The learned District Judge, however, took the view that the starting point of limitation is not the date on which the original decree was signed but the date on which the amended decree was signed by the trial Judge.

3. The first question is -- what is the date of the decree within the meaning of Article 152 of the Indian Limitation Act? It is now beyond question as a result of the decision of the Full Bench in Bani Madhub v. Matungini Dassi ILR 13 Cal 104 that the starting point of limitation is the date on which the judgment was signed by the learned Munsif, that is, the 31st of January, 1955, but since under Order XLI, rule 1 the memorandum of appeal is required to be accompanied by a copy of the judgment, the appellant is entitled to the exclusion of the time which elapses between the date of the judgment and the signing of the decree and also the time taken by the Office to prepare a copy of the decree. This is, as I understand, the effect of the decision of the Full Bench in Bani Madhub's case ILR 13 Cal 104.

4. The second question is, what happens when the decree is amended? The amendment may be the result of an application for review or it may be the result of an application under Section 151 or Section 152 of the Code of Civil Procedure. Authorities are unanimous on the question that if as a result of review the old decree is superseded and a new decree is brought into existence the starting point of limitation would be the date of the last decree. This was the view taken by Sir Lawrence Jenkins in the case of Shaw Vadilal v. Shaw Fulchand, ILR 30 Bom 56 and followed in several decisions of this Court amongst which I may mention the case of Aditya Kumar v. Abinash Chandra : AIR1931Cal323 , decided by Suhrawardy and Costello JJ. and this was also followed by R.C. Mitter J. in the case of Kedar Nath v. Golam Hossain, 40 Cal WN 83. As I have said, there is no difference of opinion on the point that if a new decree is drawn up after a successful application for review the starting point of limitation would be the date of the new decree.

5. There is however a considerable conflict as to the starting point of limitation in a case where the decree has been amended as a result of an application under sees. 151 and 152 of the Code of Civil Procedure. On the one hand it has been held in some cases that the starting point would be the date of the original judgment or the original decree (see the case of Brojolal Roy Choudhury v. Taraprasanna, 3 Cal LJ 188 (Rampini and Mukherjee IJ.) followed by R.C. Mitter J. in the case of Kedar Nath, 40 Cal WN S3, while the contrary view has been expressed in the cases of Amar Chandra V. Asad Ali ILR 32 Cal 908 (Chose and Pratt JJ.) and Soudamini Dasi v. Nabalak Mia : AIR1931Cal578 (Suhrawardy and Jack JJ.) where it has been held that the starting point of limitation would be the date of the amended decree. It is to be noticed, however, that in Amar Chandra's case ILR 32 Cal 908 there was no appearance on behalf of the respondent and the learned Judges merely stated as follows:--

'We think that the appeal ought to have been admitted, the date being reckoned from 22nd August when the corrected decree was passed.'

The amendment of the decree in that case, however, was in respect oF a vital matter and that was pointed out by the learned Judges who observed that the decree was wrong in very material particulars, namely, as to the amount claimed and allowed. In Aditya Kumar's case : AIR1931Cal323 Suhrawardy and Costello JJ held that

'If a decree is modified on a successful application for review, however slight the modification may be, the modified decree is the only decree against which an appeal could be filed.'

In Soudamini Dasi's case : AIR1931Cal576 Suhrawardy J. extended the principle to a case where a decree has been amended under Section 151 or Section 152 of the Code of Civil Procedure though Jack J. was not prepared to go so far. In Kedar Nath's case, 40 Cal WN 83 R. C. Mitter J. has followed the decision of Rampini and Mukherjee JJ. In Brojolal Roy Choudhury's case. 31 Cal LJ 188 and has refused to follow the Division Bench judgment in Amar Chandra's case, ILR 32 Cal 908 and the opinion of Suhrawardy, J. in Soudamini Dasi's case : AIR1931Cal578 . R.C. Mitter J. has commented on the opinion of Suhrawardy J. in Soudamini's case on the ground that it does not give effect to the principle Kid down by the Full Bench in Bani Madhub's case,, ILR 13 Cal 104. But what is the result if the principle in Bani Madhab's case is applied? It is to be noted that Bani Madhab's case does not deal with the effect of the amendment of a decree and if the principle of that case be applied it may very well be said that in the case of an amendment of a decree the starting point of limitation would be the date of the order by which the amendment has been allowed and as a matter of fact Mr. Das Gupta appearing for the respondent has contended before us that if we apply the principle of the Full Bench decision in Bani Madhab's case to this case, the result will be that the date of the amended decree would be 4-3-1955, on which date the learned Munsiff made the order of amendment though the order was carried into effect and the amended decree was signed by the learned Munsiff on 7-3-1955. In my view, no guidance can be obtained on this point by the observations made by the learned Judges in Bani Madhulb's case, ILR 13 Gal 104 (FB).

6. The real solution of the problem however is to be found in Section 96 of the Code of Civil Procedure which gives a right of appeal against every decree passed by a court of original jurisdiction and under Order XX, Rule 7 of the Code of Civil Procedure read with Bani Madhub's case, ILR 13 Cal 104, (FB) the date of the decree would be the date of the judgment. If the appeal is confined only to the decree in so far as it is amended, that is, against the amended portion of the decree, the starting point would be the date of the amended decree; but if the appeal is directed against a portion of the decree as it stood before the amendment the starting point would be the date of the original decree. With the utmost respect to the great Judges who decided Brojolal Roy Choudhury's case, 3 Cal. L.J. 188 I am unable to understand why an application under Section 5 of the Limitation Act would be necessary even if the appeal is confined to the amended portion of the decree which was the view taken by Mookerjee J. in Broiolal Roy Choudhury's case, 3 Cal. L.J. 188 and followed by R.C. Mitter J. in Kedar Nath's case 40 Cal WN 83. The amended portion of the decree comes into existence for the first time as a result of the amendment and under Section 96 of the Code of Civil Procedure an appeal would lie against that portion. The result is that I cannot agree with the extreme views expressed by Suhrawardy J. in Soudamini's case : AIR1931Cal578 and the views expressed in Brojolal Roy Choudhury's case, 3 Cal LJ 188 and Kedar Nath's case, 40 Cal WN 83. To my mind, the true view is that the starring point of limitation would be the date of the amended decree if the appeal is confined to the amended portion of the decree but the starting point would be the date of the unamended decree if the appeal is directed against the decree as it stood prior to the amendment.

7. In the case of a successful application for review the starting point would always be the date of the decree drawn up and signed after the rehearing and there is no conflict of authority on this point. The conclusion that I have reached on an examination of the relevant authorities on the point can be summarised by the following propositions:

(a) If the decree is amended on an application under Section 151 or Section 152 and the appeal is confined to the amended portion only, the starting point would be the date of the amendment;

(b) In such a case, if the appeal is directed against the decree as it stood prior to the amendment, the starting point would be the date of the original decree; and

(c) In the case of a re-hearing on a successful application for review, the starting point would always be the date of the new decree drawn up and signed after the review, whether the original decree is modified or reaffirmed.

8. The present case however comes under the second category because in this case the appeal by the defendant was directed against the decree in respect of Ka schedule property which was the decree as it stood prior to the amendment. The appeal filed by the defendant has no relation to the amendment and is not confined to the amended portion. It is directed against the decree as it stood before the amendment and consequently the starting point of limitation in the present case would be the date of the original decree and not the date of the amended decree as held by the learned District Judge. It is conceded by the learned Advocate for the respondent that if the starting point be the date of the original decree, the appeal filed, by his client in the lower appellate court was out of time. I would accordingly hold that the appeal filed by the respondent in the lower appellate court was barred by limitation and set aside the order No. 4 dated 31-5-1955, by which the learned District Judge held that the appeal was within time.

9. It appears however that while the learned District Judge was considering the question of limitation, the respondent was willing to file an application under Section 5 of the Limitation Act but he was prevented from so doing by the order of the District Judge. The concluding portion of the order dated 31-5-1956, runs thus:

'I am clearly of the opinion that the appeal is well within time ...... the question of condonation of limitation (?) (delay) under Section 5 of the Limitation Act does not arise at all and no application is necessary.'

As I have set aside the Order of the District Judge on the question of limitation, in fairness to the respondent I should also set aside that portion of the order which holds that no application for condonation of the delay under Section 5 of the Limitation Act was necessary. The result is that the respondent must now be given an opportunity to file an application under Section 5 of Limitation Act. In that application the respondent will have to explain the delay in filing the appeal on 4-4-1955, but he will not be required to give any explanation for the period between 4-4-1955. and the expiry of a period of two weeks from the date on which the notice of the arrival of the records is served upon the learned lawyer for the respondent, because during this period the order of the District Judge dated 31-5-1955, stood in the way of his filing an application under Section 5 of the Indian Limitation Act.

10. In the result, this appeal is allowed. The order of the District Judge dated 31-5-1955, and the order of the Subordinate Judge which is a consequential order dated 15-2-1956, are both set aside and the memorandum of appeal is sent back to the lower appellate court in order to give the respondent an opportunity to file an application under Section 5 Limitation Act for condonation of the delay in filing the appeal. If the respondent files such an application within a fortnight of the service of the notice of the arrival of the record upon the learned lawyer for, the respondent, the application will be considered on its merits by the court of appeal below. In default, however, the appeal filed by the respondent in the lower appellate court will stand dismissed. In the circumstances of the case, we direct the parties to bear their own costs.

11. No order is necessary on the application under Section 115 of the Code of Civil Procedure.

Bhattacharya, J.

12. I agree.


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