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Gadadhar Ghosh Vs. Janki Nath Ghosh and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberSuit No. 1569 of 1963
Judge
Reported inAIR1968Cal509,72CWN292
ActsLimitation Act, 1963 - Section 12; ;Calcutta High Court (Original Side) Rules - Rules 2 and 27
AppellantGadadhar Ghosh
RespondentJanki Nath Ghosh and ors.
Cases ReferredNagindas Motilal v. Nilaji Moroba Naik
Excerpt:
- .....filed on 1 june. on 18 may a requisition for the certified copy of the order was made and on 8 june certified copy of the order was delivered. on 9 june, a memorandum of appeal was presented. it was refused on the ground that it was presented after the expiry of 20 days from the date of the order. it was held that the appeal was presented within the time prescribed by the limitation act; because the appellant could claim to have the period upto 18 may as also that between 2 june and 9 june excluded in computing, the period of limitation. the reason given was that before 1 june the order was not in existence for the purpose of obtaining a copy. it was said that the order was signed on 20 may but no copy could be available until 1 june because it had not been filed the appellants who.....
Judgment:

Ray, J.

1. This is an application for an order that the delay in filing the appeal may be condoned On 15 June 1966 a preliminary decree was passed declaring the shares of the parties and directing the premises to be sold by auction. Thereafter the petitioner who is defendant No. 1 in this suit received an offer from an outsider for purchase of the premises. The petitioner made an application for an order for varying or modifying the decree dated 15 June, 1966 which provided that the premises be sold by public auction The application was made on 18 August, 1966 By a Judgment dated 27 February, 1967 the application was disposed of and the decree dated 15 June, 1966 was not disturbed

2. The petitioner on 3 April, 1967 filed an appeal against the judgment and order dated 27 February 1967.

3. On 3 April, 1967 the petitioner gave requisition for certified copy of the decree dated 15 June, 1966 The draft decree was settled and passed on 11 April, 1967. Thereafter the petitioner made this application for condonation of delay in filing the appeal against the decree dated 15 June, 1966. This application is dated 28 April 1967.

4. After the decree was passed on 15 June 1966 the plaintiff's solicitor on 17 June 1966 gave requisition for drawing up of the decree.

5. On 22 August, 1966 an application was made for variation of the decree. On 6 December 1966 there was an order for stay of the settlement of the draft decree. The stay order was vacated on 27 February, 1967.

6. Counsel for the petitioner submits that there should be condonation of delay because, first, there was a requisition given for drawing up of the decree; and secondly, the decree was not in fact drawn up until 11 April, 1967 and the decree was signedon 25 May, 1967. It is therefore said that the petitioner could not obtain copy of the decree. It is also said that the petitioner in the present case followed the practice of this court and was advised by his solicitor to believe that there was no necessity to apply for a certified copy of the decree earlier as the decree had not been settled or passed and requisition for drawing up of the decree had already been given. It is, therefore, said on behalf of the petitioner that the petitioner and the solicitor bona fide believed that under the existing practice time taken by the Court in drawing up and completing the decree should be excluded in computing the period of limitation for filing an appeal it is also said that the petitioner has been diligent in applying for a certified copy of the decree and the time for obtaining copy of such decree did not expire.

7. The petitioner relies on an affidavit affirmed by Shri Pashupati Nath Ghosh He is the senior partner of M/s Kar Mehta and Co. In his affidavit he state? that following the practice of this Court as laid down in the derision in Parijat Devi's case, reported in AIR 1932 Cal 331 (FB) and the decision of the Supreme Court reported in : [1961]2SCR918 and under the existing law, the solicitor bona fide believed and advised the appellant that there was no need to apply for a certified copy of the decree dated 15-6-1966 as the requisition for drawing up of the decree had already been given by the plaintiff's solicitor on 17th June, 1966 and the draft of the decree had not been settled or passed by the Registrar-in-Insolvency in view of the settlement thereof having beer, staved pursuant to an order made by Datta J in the suit.

8. It will appear from the decision in Secretary of State v. Smt. Parijat Devi, in : AIR1932Cal331 that the word 'requisite' occurring in Section 12 of the Limitation Act 1908 would mean properly required and it would have to be shown that no part of the delay beyond the prescribed period was due to default and but for the time which was taken up in drawing up a decree by the officials of the Court in preparing and issuing documents the party was not responsible for the delay. It was said in that case that in the case of an appeal from the Original ride the time requisite for obtaining a copy of the decree or order did not, begin to run until an application for a copy had been made. In that case an order was passed on 17 March, 1931. On 18 March requisition was given for drawing up of the order. The order was finally filed on 1 June. On 18 May a requisition for the certified copy of the order was made and on 8 June certified copy of the order was delivered. On 9 June, a memorandum of appeal was presented. It was refused on the ground that it was presented after the expiry of 20 days from the date of the order. It was held that the appeal was presented within the time prescribed by the Limitation Act; because the appellant could claim to have the period upto 18 May as also that between 2 June and 9 June excluded in computing, the period of limitation. The reason given was that before 1 June the order was not in existence for the purpose of obtaining a copy. It was said that the order was signed on 20 May but no copy could be available until 1 June because it had not been filed The appellants who had applied for a copy on 18 May would therefore be entitled to deduction of time which elapsed before the order was completed. The decision of the Judicial Comittee in Pramatha Nath Roy v. W. A. Lee. 49 Ind App 307= (AIR 1922 PC 352) was referred to in Parijat Devi's case in support of the proposition that the time which was required by reason of the copy not having been available was to be excluded.

9. The decision reported in : [1961]2SCR918 , Jagat Dhish Bhargava v. Jawaharlal Bhargava held that where a decree was not drawn up immediately or soon after the judgment was pronounced and a litigant feeling aggrieved by the decision applied for certified copy of the judgment and the decree before the decree was drawn up the time requisite for obtaining copies necessarily include not only time taken for the actual supply of the certified copy of the decree but also for the drawing up of the decree itself. It was therefore held that the time taken by the office or the Court in drawing up a decree after the litigant had applied for certified copy would be treated as part of the time taken for obtaining the certified copy of the said decree.

10. In view of the provisions in the Limitation Act 1963 that in computing the period of the limitation the time requisite for obtaining a copy of the decree or an order and time taken by the court to prepare a decree or order before an application for obtaining certified copy is made shall not be excluded, it is necessary in the present case to find as to what the practice is for an application for certified copy under Rule 27 in Chapter XVI of the Original Side Rules. It was said by counsel for the petitioner that under the rules of the Original Side unless and until requisition had been given for drawing up of the decree no effective application could be made for certified copy of the decree or order. Rule 27 in Chapter XVI states that application shall be made for the drawing up of every decree and order by requisition to the Registrar in writing by the party in whose favour the decree or order was made within three days from the date of the decree or the order, or. In default of his applying within such time, by any party within seven days from the date of the decree or order. In the present case the respondent gave requisition for drawing up of the decree. It is said that the appellant was, therefore. not called upon to give any further requisition. In Rule 2 of Chapter XVI it will appear that after judgment has been filed the parties shall be entitled to obtain office copies in the usual manner. The Rules of the Original Side do not specifically deal with applications for certified copies. But it if apparent that applications for certified copies have to be made.

11. In the present case counsel for the petitioner relied on the practice of this Court in regard to giving requisition for drawing up of the decree or order and the existing law that unless and until the order had been drawn up no certified copy could be available and in the facts and circumstances of the present case it was contended that the application for certified copy was made within proper time.

12. Counsel for the respondent relied on a recent decision of the Supreme Court in A. D. Partha Sarathy v. State of Andhra Pradesh : AIR1966SC38 . In that case an application was made for condonation of delay on the ground that the applicant thought that the time for obtaining certified copy of the order refusing leave to appeal to the Supreme Court would be counted for the purpose of calculating the period of limitation for filing the special leave petition. The Supreme Court observed that the Limitation Act, 1963 came into existence on 5 October, 1963 and it was more than a year since the Act was passed when the petition was filed in the Court and the vague allegation in the petitioner's affidavit that he was wrongly informed of the period of limitation could not be a ground for excusing the delay.

13. Counsel for the petitioner relied on the decisions reported in and AIR 1918 PC 135 in support of two propositions First, that if there was a bona fide mistake of law that would be a cogent and sufficient ground to be taken into consideration. Secondly, if there was any change of practice that should also be a ground to be taken into consideration as to whether the applicant was bona fide misled by that practice. The Bombay decision in Nagindas Motilal v. Nilaji Moroba Naik, AIR 1924 Bom 399 related to an order passed by a Division Bench rejecting an application to excuse the delay in presenting an application for leave to appeal to the Judicial Committee. It was stated there that the local legal adviser was not aware of the recent change in law curtailing the period of limitation for such application it was said at page 405 of the report that the applicant himself could not know what the practice of the law on the point was and the lawyers advised on the practice as it had existed upto within a few months prior to that date. At page 410 of the report it was said that the delay of the appellant was bona fide due to mistaken legal advice and that there was no failure of proper diligenceon his part. The other decisions of the Judicial Committee on which counsel for the petitioner relied also indicate that if there was any mistake in legal advice either by an appeal being presented in a wrong Court or by any rule of procedure there could be condonation of delay.

14. in the present case the affidavit of Pashupati Nath Qhosh shows that as the requisition for drawing up of the decree had already been given and the decree had not been settled or passed, the solicitor advised the appellant that there was no need to apply for a certified copy of the decree dated 15 June, 1966. In the Supreme Court decision reported in : AIR1966SC38 , the vague allegation of the appellant that he thought that the time for obtaining certified copy of the order refusing leave to appeal to the Supreme Court would be counted was rejected on the ground that the allegation was not supported by any other evidence. The Supreme Court decision is distinguishable from two points of view. First, the practice of this Court with regard to obtaining certified copies is different from the practice that was the subject of controversy before the Supreme Court. The rules contemplate that unless and until requisition is given the Court is not set in motion. The party in whose favour the order is made has a right to give requisition within three days and if he does not do so the other party has the right to do so. In the present case the requisition was given and, therefore, the Court was set in motion. Therefore this aspect of the case was totally absent in the Supreme Court decision. Secondly, the vague allegation of the appellant in the Supreme Court was uncorroborated and not supported by any evidence. In the present case the solicitor's affidavit show that a senior partner of M/s. Kar Mehta and Co. was under the impression that it was not necessary to apply for a certified copy of the decree as the requisition for drawing up of the decree had been given. In other words, the practice that the solicitor speaks of is that the giving of a requisition will set the Court in motion and that thereafter certified copy would be available. It is there that the mistake has crept in.

15. in the present case the appellant has given sufficient cogent reasons as to why the application for certified copy could not be made earlier Further even if an application had been made the appeal could not have been filed earlier than the time in which it was filed. Therefore the delay in making the application for certified copy has not occasioned any delay with regard to the filing of the appeal.

16. For all these reasons I am of opinion that in the facts and circumstances of this case and the special significant features evidenced by the affidavit of Shri Pashupati Nath Ghose, a senior partner of M/s. Kar Mehta and Co the appellant is entitled to an order as prayed for.

17. There will be an order in terras of prayers (a) and (b). The respondent will be entitled to costs of this application. Leave to file cyclostyled copies of the paper book within six weeks from date. Let the order be drawn up expeditiously All parties to act on a signed copy of the minutes.

S.K. Mukherjea, J.

18. I agree.


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