1. The instant appeal was filed on Feb. 7, 1979, Some of the defendants in a suit for partition are the appellants and the appeal is against the final decree. Objections against the Commissioner's report having been overruled, the learned Judge in the trial court by his judgment dated June 14, 1977, directed the preliminary decree for partition be made final. The plaintiffs delayed filing of the requisite stamp for drawing up the final decree which was so filed only on Sept. 12, 1978 and the final decree was then drawn up on Nov. 11, 1978.
2. The present appellants filed an application for certified copies of the judgment and decree on Sept. 8, 1977, but on an office report that the decree had not been drawn up, that application was not proceeded wit h. On a fresh application for such copies being filed on Dec. 1, 1978, the copies were obtained on Jan. 16, 1979, and the memorandum of appeal was presented in this Court on Feb. 7, 1979, as referred to hereinbefore,
3. Calculating limitation from the date of the final judgment, that is, June 14, 1977, the Addl. Stamp Reporter has made a report that the application for certified copies filed along with the memo of appeal not having been made before the drawing up of the decree, the last date for filing the appeal within the period of limitation expired on Sept. 12, 1977 and that the appeal as presented has been presented 1 year 4 months and 28 days beyond time. According to the Addl. Stamp Reporter, the appeal should have been filed within Sept. 12, 1977, notwithstanding the fact that no decree has been drawn up in view of Rule 6A of Order XX of the new Civil p. C.
4. Mr. Banerjee appearing on behalf of the appellants is disputing the correctness of the report made by the Additional Stamp Reporter. According to him, the limitation should be counted from the date when the decree was drawn up, that is, from Nov. 11, 1978, and on that calculation it should have been held that the appeal as filed was filed within the period of limitation.
5. In our view, the contention of Mr. Banerjee could be accepted if the limitation is calculated in accordance with Section 12(2) of the old Limitation Act of 1908. In interpreting that provision in the old Act the majority of the High Courts including this Court had held that the time requisite for obtaining a copy of the decree covers not only the time spent for having a copy hut the time spent in drawing up the decree as well. This majority view was approved by the Supreme Cocrt in the case of Bal Mukurd v. Lajwanti, : AIR1975SC1089 . The benefit arising out of such a construction of the old provision by the majority of the High Courts was, however expressly taken away by the Legislature in view of the Law Commission's recommendations by adding the Explanation to the said section in the Limitation Act of 1963. It is not in dispute that limitation, so far as the present appeal is concerned, has to be computed in terms of this new Act.
6. The effect of the statutory amendment was left open for consideration by the Supreme Court in the above decision. The Explanation added to Section 12 lays down that 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 be excluded. There arose some controversy as to the true import of this Explanation added by the new Act. Such controversy has, however, since been set at rest by the Supreme Court in the case of Udayan Chmubhai v. R. C. Bali, AIR 1977 SC 2319, when overruling the Bombay Full Bench decision in the case of Subbash Ganpatrao Buty v. Maroti Krishnaji Dorlikar, : AIR1975Bom244 , the Supreme Court approved the decision of the said court in the case of Sitaram Dada Sawant v. Ramu Dada Sawant, : AIR1968Bom204 . It must be held by necessary implication the decision of this Court in the case of Dungarmall Sarewall Jain v. Rukma Kumar Jalal, : AIR1970Cal443 , stands overruled. On the provisions of the new Act the Supreme Court has now clearly laid down that the appellant should be entitled to the exclusion of time between the date on which he applied for certified copies and the date on which those copies were ready for delivery and that the time between the date of the judgment and the date on which the decree was drawn up should not be excluded if the appellant had applied for certified copies of the decree after the decree was drawn up.
7. Mr. Banerjee, however, contended before us that even on the authority of the Supreme Court decision as above, which has approved the decision of the Bombay High Court reported in : AIR1968Bom204 , we should hold that, since the present appellants did file an application for certified copies on Sept. 8, 1977, that is, prior to the drawing up of the decree itself, he would be entitled to exclusion of the entire period between the date of the judgment and the date of the drawing up of the decree together with such further time as was necessary for the purpose of obtaining the copies. Mr. Banerjee has put forward such a contention being conscious of the position that, even if we exclude the entire period from Sept. 8, 1977 till Jan. 16, 1979, the appeal cannot be heldto have been filed in time. It has therefore, been the endeavour of Mr. Banerjee to impress upon us that, since an application for copy of the decree had been filed before the decree had been drawn up, the limitation should be counted from the date of the decree and no longer from the date of the judgment the entire period in between being totally excluded. We are, however, unable to sustain such a contention put forward by Mr, Banerjee. In our view, neither the Bombay High Court in its decision which was later approved by the Supreme Court nor the Supreme Court has laid down any proposition which can support such a contention. Such an issue did not arise for consideration in those cases in the manner now raised before us by Mr. Banerjee. We must go by the language of the Explanation. The Explanation lays down that any time taken by the court below to prepare the decree or order before an application for a copy thereof is made shall not be excluded so that what is to be excluded is the time spent in the matter of drawing Up of the decree which is covered by an application for a copy thereof. This Explanation cannot be interpreted to mean that once an application for copy is made the application would relate back to the date of judgment, or that the entire period between the judgment and drawing up of the decree should be excluded. In our view, on the explanation only such of the period spent for drawing up of the decree as is covered by application for copy thereof would be excluded in the matter of computing the limitation for the appeal. Both the contentions raised by Mr. Banerjee, therefore, must be overruled.
8. Though we overrule Mr. Banerjee on the points raised by him we arc unable to agree with the view expressed by the Additional Stamp Reporter. No doubt under the new provision incorporated in Rule 6A of Order XX of the Civil P. C. a party to a suit may prefer an appeal without the decree on a certificate being obtained in terms of Sub-rule (2). This is an enabling provision and does not override the right of a party to prefer an appeal as and when a decree is drawn up. Therefore, where the appeal is presented, as in the present case, after the decree is drawn up limitation has to be computed in accordance with the provision of the Limitation Act taking the appeal to be one filed as against the decree. Normally, on the provisions of the newAct, the Additional Stamp Reporter may be right in thinking that when the decree must bear the date on which the judgment was pronounced, that is the day from which the limitation is to be computed and in terms of the Explanation to Section 12 the period spent between the judgment and the drawing up of the decree would not be excluded, there being no application for a copy of the decree covering the said entire period and therefore the appeal must be held to be barred by limitation. But in our view the Stamp Reporter failed to appreciate that even under the new Act in a case like the present one where the appeal is being presented by the defendant and the drawing up of the decree has been held back by the plaintiff's failure to put in the requisite stamp, the time that was spent between the judgment and the date on which the stamp was so put in should be excluded. That has been the interpretation of Section 12(2) of the new Act made by the Supreme Court in the case of Udayan Chinubhai v. C. Bali reported in AIR 1977 SC 2319 referred to hereinbefore. It was therein observed:
'It is not possible to conceive how a person may obtain a copy of a decree if that decree, in view of the recitals in the judgment pronounced, cannot be prepared without some further action by a party. A judgment which is unconditioned by the requirement of any action by a party, stands on a different footing and in that event the date of the judgment will necessarily be the date of the decree. In such a case, a party cannot take advantage of any ministerial delay in preparing the decree prior to his application for a copy, that is to say, if there is no impediment in law to prepare a decree immediately after pronouncement of the judgment, no matter if, in fact, the decree is prepared after some time elapses. No party, in that event, can exclude that time taken by the court for preparing the decree as time requisite for obtaining a copy if an application for a copy of the decree has not been made prior to the preparation of the decree. It is only when there is a legal impediment to prepare a decree on account of certain directions in the judgment or for non-compliance with such direction or for other legally permissible reasons the party who is required to comply with such directions or provisions, cannot rely upon the time required by him, under those circumstances, as running against his opponent.'
The principle above laid down is clearly applicable to cases like the present one where the party appellant is not the person who was required under the law to put in the stamp for the drawing up of the decree. It was due to the plaintiff's fault that the court was not in a position to draw up the decree prior to Sept. 12, 1978. Though in the present case there was no specific direction in the judgment on the plaintiff to deposit the stamp yet such a direction is quite implied because in law the decree could not be drawn up without the stamp being furnished bv the plaintiff. Therefore, the plaintiff not being the appellant before this Court the defendant can rightly claim exclusion of the aforesaid period, namely, the period which expired between the pronouncement of the judgment and the filing of the stamp for drawing up of the decree in the matter of computing the period of limitation for presentation of the appeal.
9. Unfortunately for the appellant even calculating on the aforesaid basis the appeal had been presented nearly 20 days beyond time. It is so when we have calculated the limitation from September 12, 1978 and excluded the period taken for obtaining a copy of the decree. Such being the position, this appeal must be held to have been presented beyond time and as such barred by limitation though we do not agree with the calculation as made by the Additional Stamp Reporter. We, therefore, direct that Memorandum of Appeal be returned to the filing lawyer.