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Smt. Annada Sundari Saha Vs. Monoharan Saha and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberAppeal No. 250 of 1974
Judge
Reported inAIR1981Cal365
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rules 1, 3 and 29; ;Limitation Act, 1963 - Section 12(2)
AppellantSmt. Annada Sundari Saha
RespondentMonoharan Saha and ors.
Appellant AdvocateB.N. Sen, Adv.
Respondent AdvocateManoharan Saha and ;P.K. Das, Advs.
DispositionApplication dismissed
Cases ReferredLala Bal Mukand v. Lajwanti
Excerpt:
- ramendra mohan datta, j. 1. this application is made by the respondent in the above appeal for an order, inter alia, that the appeal herein be dismissed as being barred by limitation, there is an alternative prayer to the effect that the order granting leave to file the memorandum of appeal without the certified copy of the decree be cancelled or recalled or withdrawn and the leave granted be revoked and/or set aside and the appeal be dismissed on the ground of non-compliance by the appellant with the undertakings given at the time of the admission of the appeal.2. it is not necessary to go into the details of the facts except to mention thatthe hearing of the suit lasted for more than 32 days and, thereafter, the suit was dismissed with costs on or about april 11, 1974. on the very same.....
Judgment:

Ramendra Mohan Datta, J.

1. This application is made by the respondent in the above appeal for an order, inter alia, that the appeal herein be dismissed as being barred by limitation, There is an alternative prayer to the effect that the order granting leave to file the memorandum of appeal without the certified copy of the decree be cancelled or recalled or withdrawn and the leave granted be revoked and/or set aside and the appeal be dismissed on the ground of non-compliance by the appellant with the undertakings given at the time of the admission of the appeal.

2. It is not necessary to go into the details of the facts except to mention thatthe hearing of the suit lasted for more than 32 days and, thereafter, the suit was dismissed with costs on or about April 11, 1974. On the very same date the plaintiff appellant gave requisitions for drawing up of the decree and for a certified copy thereof. The plaintiff appellant was granted leave to file the memorandum of appeal on or about August 2, 1974 without the certified copy of the said decree on the undertakings given to court:

(a) To file the certified copy of the said decree within the period of limitation;

(b) To cause the order dated 2nd Aug., 1974 to be drawn up and included in the paper book to be filed herein; and

(c) To cause a list, of all dates relevant to the question of limitation to be prepared and to include the same in the said paper book.

3. After filing the said memorandum of appeal the appellant on the application of the respondent by way of security for costs, gave an undertaking to the Appeal Court that the appellant would not deal with or dispose of her remaining 6 1/2 annas share in the suit property which is alleged to have been purchased by the appellant in execution of the mortgage decree pending the final disposal of the appeal.

4. In compliance with the said third undertaking as enumerated above the appellant prepared and included a list of all dates relevant to the question of limitation in the paper book at page 2243 as follows :

Re: Decree dated 11th April, 19741. Date of furnishing requisition for drawing up ofthe decree...... 11-4-74,2. Date of furnishing requisition for certified copyof the decree...... 11-4-743. Draft decree received on 28-5-75.4. Decree settled on 4-7-75.5. Decree signed on 11-7-75.6. Decree filed on 25-2-76.7. Folios assessed on 1-3-76.8. Stamp furnished on 1-3-76.9. Certified copy of decreeready for delivery on 19-3-76.10. Certified copy of decree filed before Appeal Sectionon. 24-3-76.11. Memorandum of appealfiled in Court on. 2-8-74. We do hereby certify that the abovestatement is correct. D. P. Sarvadhikary& Co. Attorney for the appellant'.

5. On behalf of the respondent Monoharan Saha, Mr. P. K. Das learned Advocate contends that the decree was signed on July 11, 1975 but the same was not filed until February 25, 1976 i. e. after a lapse of more than 7 months in between the signing of the decree and the filing thereof. That being so, it is contended that the appellant has committed breach of the very first undertaking which was given to this Court on August 2, 1974 when the memorandum of appeal was allowed to be admitted without a certified copy of the said decree. In other words, the appellant had not filed the certified copy of the said decree within the period of limitation. In view of the fact that the appellant has committed breach of the undertaking or condition subject to which the above memorandum of appeal was admitted by the said order dated August 2, 1974, there is no competent appeal which can be entertained by this Court and, accordingly, it is submitted that on this ground the leave granted admitting the memorandum of appeal without a certified copy of the decree, should be cancelled or revoked and/or the appeal should be dismissed on such ground and/ or on the ground that the appeal is barred by limitation. It is contended that unless this question is decided first, there will be great delay in the disposal of the appeal and for the ends of justice it is fit and proper that the appeal be heard and disposed of on this preliminary point in favour of the petitioner.

6. Mr. B. N. Sen appearing on behalf Of the appellant contends that this is a case where the appeal has been filed with the leave of the Court within the period Of limitation. The High Court in giving such leave to file the memorandum of appeal without the certified copy of the decree acted in accordance with the rules of the Original Side of this Court whereby the Appeal Court allowed the appellant to file the memorandum of appeal by obtaining the undertaking set out herein-above. Hence, the filing of the memorandum of appeal cannot be held to be a nullity in case there is breach of such undertaking. The question of limitation does not strictly speaking arise because the appeal has been allowed to be filed with the leave of the Court. If there would be delay, under such circumstances, to file the decree on the basis of such undertaking the same would not give rise to a question of limitation although thesame might entail punishment for breach of the undertaking as given to Court. It is a procedural matter that is provided under Order XLI, Rule 1 of the Code. The said provision of the Code, being a provision in the first schedule to the Code, comes within the powers of every High Court to alter, add to or substitute or amend such provision by making necessary rules acting under the provisions of Sections 121 to 129 of the Code. The Rules of the Original Side of this Court have been framed on the basis of powers conferred by the Letters Patent of 1865 and, thereafter, by the said provisions of the Code. The rules of the Original Side of this Court, accordingly, shall override the provisions of the first schedule to the Code. On the basis thereof the Appeal Court makes the order under Rule 2 of Chapter XXXI of the Original Side Rules read with Rule 29 (b) thereof in giving leave to the appellant to file the memorandum of appeal without the certified copy of the decree or order, as the case may be on the basis of such undertakings as mentioned hereinabove. Such undertakings are not part of the rules of the Original Side but the same are obtained on the basis of the long standing practice of this Court which have the force of law. In any event, the filing of the decree being a matter of procedure, it is submitted that the order admitting the appeal cannot be a nullity when such undertakings are not fulfilled.

7. Mr. Das, on the other hand, contends that it is a condition on the fulfilment whereof only the filing of an appeal becomes valid and in default of performance thereof the filing of the appeal becomes a nullity. Mr. Das, however, concedes that for the breach of the other two undertakings as enumerated in (b) and (c) above, the appeal does not become a nullity.

8. To that Mr. Sen contends that there are cases where the appeals are settled even though the undertakings have not been performed and in most such cases the Court exempts the appellant from performing the undertakings. Even then the orders made in such appeals are valid orders, and do not become nullities on the ground that such undertakings have not been complied with by filing the certified copy of the decree or order.

9. This is the question which we have to consider and decide. To appreciate the arguments it is necessary in this connection to consider the relevant provisions of filing of appeals to the Division Bench on the Original side as provided in Chapter XXXI of the Original Side Rules. Rule 2 provides:

'Form of Memorandum.

2. Every memorandum of appeal from the Original Side shall be in Form No. 1 and shall be drawn up in the manner prescribed by Order XLI, Rule 1 of the Code, and shall be presented to the Registrar, accompanied by a copy of the Decree or Order appealed from.'

Rules 3, 4, 5 and 29 (a) and (b) provide :

'3. The Registrar shall accept and file a Memorandum of Appeal, if it is duly stamped and Rule 2 has been complied with, and if it appears to him to have been presented within the time allowed by the law of limitation. But such acceptance and filing shall not be a bar to any objection that may be taken in respect of any of such matters at the hearing of the appeal.'

'4. When the Memorandum of Appeal is not accepted by the Registrar he shall endorse thereon the date of its presentation and return it to the party or attorney by whom it was tendered. Such Memorandum of Appeal may then be presented to the Appellate Court for admission.'

'5. Application for the admission of a Memorandum of Appeal rejected by the Registrar shall be made to the Appellate Court at the earliest opportunity. The Appellate Court on hearing such application may admit or reject the same with or without notice to the respondent. Where it is admitted without notice to the respondent such admission shall not be a bar to any objection that may be taken at the hearing of the appeal in respect of its admissibility.'

'29. (a) The Appellate Court, or, if such Courts be not sitting, a judge sitting on the original side of the High Court may, upon application and upon sufficient cause being shown, enlarge the time prescribed by these rules for doing any act to be done under their provisions. An application for enlargement of time must ordinarily be made before the expiration of the prescribed time and must be supported by an affidavit, and also by a certificate of the Registrar; showing the dates on which any acts prescribed by these rules were done.'

(b) The Appellate Court, or the Judge as aforesaid, may also upon applicationand upon sufficient grounds verified by affidavit, exempt the parties or any of them from the operation of the whole or any part of these rules and may make such special order as shall appear desirable with regard to any matter with which these rules are concerned.'

Vis-a-vis these rules we have now to consider the provisions of Order XLI of the Code of Civil Procedure for filing of appeals from original decrees. The relevant part of Rule 1 (1) is set out as follows: --'1 (1). Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such Officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded'. If the effect of the orders in the First Schedule to the Code is considered it will appear that Part X of the Code contains Sections 121 to 131; and Section 123 thereof provides for formation of Rule Committee by the High Courts to make rules. Section 121 provides that the rules in the First Schedule shall have effect as if enacted in the body of this Code until annulled or altered in accordance with the provisions of the said Part X. Section 122 of the Code provides, inter alia, that the High Courts may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence, and may by such rules annul, alter or add to all or any of the rules in the First Schedule. It follows, therefore, that the power to make rules has been vested in the High Courts. When such rules are made by the High Court they become a part of the Code and are treated as such for all purposes. Such legislative policy has been made out with sufficient clarity and that being the position, the rules of the Original Side of this Court would have overriding effect over the rules as framed in the First Schedule. Regarding the exercise of its Original Civil Jurisdiction the rules relating to procedure in the Orignal Side are made in Section 129 of the Code. It provides, inter alia, that notwithstanding anything in the Code of Civil Procedure, the High Court may make such rules not inconsistent with the Letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its ori-ginal civil jurisdiction as it shall think fit, and nothing therein contained shall affect the validity of any such rules in force at the commencement of the Code. Under Section 131 it is provided that the rules made in accordance with Section 129 of the Code shall be published in the Official Gazette and shall from the date of publication or from such other date as may be specified have the force of law. Chapter XL, Rule 3 of the Rules of the Original Side provides for general rules as to procedure of this Court and the same provides :

'Where no other provision is made by the Code or by these rules the present procedure and practice shall remain in force.'

10. It very often happens that the certified copy of the decree is not available to the appellant until a considerable time is passed. The department concerned takes some time to make it ready and available to the appellant but the nature of the decree or order appealed from might be such that unless a stay of the operation thereof would be obtained from the Appeal Court the appellant might suffer real prejudice. For that purpose the appellant is required to file the appeal but the appellant cannot do so because Order 41, Rule 1 (1) provides that the memorandum shall be accompanied by a copy of the decree appealed from. From the aforesaid rules of this Court it will be noticed that Rule 2 of Chapter XXXI of the Original Side Rules requires that the memorandum of appeal must be in form No. 1 and must be drawn up in the manner prescribed by Order XLI, Rule 1 of the Code. That is a mandatory provision when it is presented before the Registrar of this Court. In other words, after the certified copy of the decree or order appealed from is obtained from the department the same would be presented for acceptance by the Registrar and in doing so both the memorandum and the certified copy of the decree or order appealed from must together be so presented. The Registrar will no doubt examine whether such memorandum of appeal was being presented before him within the period of limitation but even such acceptance and filing by the Registrar would not be final and objection might be taken in respect thereof at the hearing of the appeal; but we are not concerned with such type of presentation and filing.We are concerned with a case where the memorandum of appeal is presented before the Appeal Court directly at a time when the certified copy of such decree or order appealed from, has been applied for, but not obtained, from the department. Under such circumstances, the Appeal Court acting under Rule 29 (b), as set out above, grants exemption to the parties from the operation of the whole or any part of the rules provided therein. Under the said rule the appeal court has been given powers to make such special order as might appear desirable with regard to any matter with which the said rules are concerned. There is a long standing practice of this Court to grant such exemption but to a limited extent. It is granted conditionally upon the appellant's undertaking to court, inter alia, to file the certified copy of the decree or order appealed from, within the period of limitation. That time old practice has the force of law under Chapter 40, Rule 3 of the Original Side Rules as set out above. In other words, the appellant is allowed to file the memorandum of appeal without the certified copy of the decree or order appealed from but if ultimately it is found at the hearing of the appeal or earlier that he has allowed the time to expire and has failed to file such certified copy of the decree or order appealed from within the period of limitation, after excluding the time required by the department concerned to make it ready for filing thereof within the meaning of Section 12(2) of the Limitation Act, 1963, then the appeal would be incompetent. Under such circumstances, the question of limitation will arise, because it was allowed to be filed subject to the question of limitation.

11. Mr. Das contends that, under such circumstances, the entire proceedings before the Appeal Court will become null and void including the interim orders or interlocutory orders passed in such appeal. I do not think that the effect of the non-filing of the certified copy of the decree or order appealed from would have such a far-reaching effect. The reasons are first, that the memorandum of appeal was allowed to be filed with the leave of the Court; secondly, though it was made conditional subject to the question of limitation yet it was not made a condition precedent, and thirdly, whether the time taken for obtaining the certified copy wasthe time requisite within the meaning of Section 12(2) of the Limitation Act might be dependent on various questions of fact which might have to be gone into and decided in connection therewith. If after going into such facts the Appeal Court would come to the conclusion that such filing of the certified copy was beyond the period of limitation it could not be contended that any interlocutory orders made by it would at all be considered as non est. Under such circumstances, the appeal might be dismissed but the effect on the interim orders or interlocutory orders made therein would be the same as it happens when the appeal is dismissed on the ground of limitation or as not maintainable or after contested hearing.

12. The argument of Mr. Sen also in this connection does not appear to me to be correct. Mr. Sen contends that the question of limitation is no longer there after the Court grants leave to file the memorandum of appeal without the certified copy of the decree or order appealed from. Mr. Sen's contention, that it is a matter of punishment for breach of the undertaking, cannot be accepted either. The undertaking is to file the certified copy within the period of limitation and, accordingly, the question of limitation has expressly been kept open to be decided at a later point of time. The point of limitation was not given a go by completely at the time of making the order exempting the appellant from observing the formalities which he is otherwise required to observe hi accordance with the rules of procedure as laid down by the Code and by the rules herein. In my opinion, the decisions of this Court and of the Supreme Court which are to be presently discussed are not in any way contrary to what has been observed here-inabove.

13. The Supreme Court in the case of Lakshmiratan Engineering Works Ltd. v. Asst. Commr., Sales Tax, Kanpur, : [1968]1SCR505 draws a distinction between the expression 'appeal' and 'memorandum of appeal' which are provided under Order XLI of the Code. At page 492 it is observed:--

'In our opinion, making 'an appeal' the equivalent of the memorandum of appeal is not sound. Even under Order 41 of the Code of Civil Procedure, the expressions 'appeal' and 'memorandum of appeal' are used to demote two distinct things. InWharton's Law Lexicon, the word 'Appeal' is defined as the Judicial examination of the decision by a higher Court of the decision of an inferior Court. The appeal is the judicial examination; the memorandum of appeal contains the grounds on which the judicial examination is invited. For purposes of limitation and for purposes of the rules of the Court it is required that a written memorandum of appeal shall be filed.'

14. In that case the Assistant Commissioner, Sales Tax rejected as defective the memorandum of appeal filed by the appellant company against the assessment order on the ground that the memorandum of appeal which was admittedly filed within the time was not accompanied by the challan showing the deposit of admitted tax under Section 9 of the U. P. Sales Tax Act, 1948. The appellant appealed directly to the Supreme Court by special leave against the said order. Section 9 of the said Act, inter aha, required that no appeal against the assessment would be entertained unless it was accompanied by a satisfactory proof of the payment of the amount of tax admitted by the appellant to be due. Under the relevant rules as framed by the U. P. Sales Tax Rules 1948 it was, inter alia, provided that the memorandum of appeal was to be accompanied by a challan showing deposit in the Treasury of the tax admitted by the appellant to be due. The question arose whether the various rules which became part of the Act were complied with and for the non-compliance thereof the appeal could be considered to be incompetent and whether it was properly rejected. At page 491 the Supreme Court observed :

'The question, therefore is at what stage can the appeal be said to be entertained for the purpose of the application of the proviso? Is it 'entertained' when it is filed or is it 'entertained' when it is admitted and the date is fixed for hearing or is it finally 'entertained' when it is heard and disposed of?'

15. In this case we are not concerned with the word 'entertained;' but we are concerned with the words 'filed', 'presented' or 'accepted' as provided under the above rules of Chapter XXXI set out hereinabove and, accordingly, save and except the observations made in the said decision regarding the interpretation of the provision of Order XLI of the Code and the distinction made of the word'appeal' and the expression 'memorandum of appeal', the said decision cannot have any application in the facts of the case before us.

16. That being the position, when the written memorandum of appeal is filed and/or when the same is allowed to be filed with the leave of the court on the basis of the undertaking as recorded, the appeal is so filed but subject to the question of limitation and/or competency and/ or maintainability thereof which are to be decided at a subsequent point of time; when the condition would be fulfilled the appeal would be properly filed otherwise the appeal would become incomplete or incompetent.

17. To my mind, Mr. Sen's example, to the effect that an appeal might be settled before the certified copy of the order or decree appealed from, would be filed in terms of the undertaking, but still the same does not become a nullity and remains effective, can be explained. Under such circumstances, by consent of the parties the court discharges the appellant from its obligation to perform the undertaking which the Court has power to do acting under Rule 29 (b) of Chapter XXXI and the other connected rules provided in the Original Side Rules of this Court. In other words, by discharging the appellant of its undertaking the Court gives a total exemption from the filing of such certified copy and on that basis the order made remains a valid and enforceable order and the questions of incompetency or non-maintainability or being barred by limitation, do not come in the way. It follows, therefore, that the question of filing the certified copy of the decree or order appealed from, becomes material by virtue of the undertaking that is obtained from the appellant at the time the order is made giving leave to file the memorandum of appeal without the certified copy of the decree or order appealed from. Once the appellant is discharged of its obligation to perform the undertaking then the other questions, as aforesaid, cannot arise.

18. The question of the filing of appeal under the Original Side Rules of this Court has been considered directly by another Division Bench decision of this Court in Consolidated Appeals Nos. 393 of 1975, 25 of 1976 and 7 of 1976, (Mrs. Angur Bala Mallick v. Rathindra Nath Mitra) before A. N. Sen, J. (as he then was) and Basak J. the judgment whereof was delivered on April 13, 1978by Basak J. There it has been held that the appeal is deemed to have been filed on the date when the certified copy of the decree or order appealed from is filed. In Angur Bala's case it was argued that the breach of the undertakings could give rise to contempt proceedings but the appeal could not be dismissed as incompetent. It was observed by the Division Bench, 'irrespective of the date of filing of the memorandum of appeal, it is only when certified copy of the decree order is filed, that the appeal is treated to be filed and completed and for the purpose of limitation the date when the certified copy of the decree/order is filed is treated as the date of the filing of the appeal'. The Division Bench relied on the Supreme Court decision in the case of Jagat Dhish Bhargava v. Jawahar Lal Bhargava, : [1961]2SCR918 . There also the question arose whether the appeal preferred was competent in law or not. There also the appeal was filed without the certified copy of the decree. In that case at page 834 the Supreme Court observed:

'Therefore there is no doubt that the requirement that the decree should be filed along with the memorandum of appeal is mandatory, and in the absence of the decree the filing of the appeal would be incomplete, defective and incompetent.'

There the Supreme Court found that in failing to draw up a decree in that suit the office of the trial Court was negligent of its duties and the said negligence was not even noticed by the learned trial Judge himself. The defect in such procedure was not noticed even by the learned Judge who by an order admitted the appeal. It was only immediately before the hearing of the appeal the respondent gave notice to the appellant about his intention to raise preliminary objection that the appeal was not properly filed. In the facts of that case the High Court thought that in fairness to the appellant before it, the appellant should be allowed time to obtain the certified copy of the decree and to file the same before it and under such circumstances the High Court passed the order in appeal. The appellant before the Supreme Court challenged the said order as manifestly erroneous in law. The Supreme Court upheld the order passed by the High Court in the facts and circumstances of that case and at p. 838 observed:

'However, as we have indicated the question about the competence of the appeal has to be judged in each case on its own facts and appropriate orders must be passed at the initial stage soon after the appeal is presented in the appellate Court. If any disptued question of limitation arises it may have to go before the Court for judicial decision'.

The Division Bench in Angur Bala's case (supra) observed:

'Under chapter XXXI Rule 2, memorandum of appeal must be accompanied by the certified copy of the decree or order. This is similar to Order 41, Rule 1 of the Code. The provisions of our rules must also be treated as mandatory as in the case of Order 41, Rule 1 of the Code. So that an appellant may not suffer any serious prejudice in any case when a stay of the operation of the decree/order becomes urgent and immediately necessary, leave is granted by the Appeal Court to the appellant to file the memorandum of appeal without the certified copy of the decree/order on certain undertaking as recorded earlier. Such power of the Court is also recognised by Rule 29 (b) of Chapter XXXI of the O. S. Rules. Before the right of appeal conferred by Section 96 of the Code may be exercised it must comply with other provisions also, including all procedural aspects. Filing of certified copy of the decree/order is one of such requirements. If a certified copy of the decree/order is not filed along with the memorandum of appeal, the appeal is incomplete. It is not a question of deprivation of any statutory right. It must be pointed out that in spite of the conferment of the right of appeal, an appeal has to be dismissed if it is barred by limitation. If an order relating to the filing of an appeal, regarding compliance of the procedural aspects of the appeal, is not complied with and the same is one of the conditions of grant of such leave, then the position is that there is no competent and complete appeal before the Court'.

19. We are in respectful agreement with the above observation of the Division Bench in Angur Bala's case. We are also of the view that if the order relating to the filing of an appeal requiring compliance of the procedure provided for filing of an appeal, is not complied with even though an undertaking is given to Court to comply with the same, then there is no competent and complete appeal before the Court. From the trend ofthe decision of the Supreme Court in the case of Jagat Dhish Bhargava : [1961]2SCR918 (supra) it would seem that the Court has power in the facts and circumstances of a particular case to allow the appellant to cure the defect in procedure in the manner it was done in an exceptional case as in the case before the Supreme Court.

20. If it is carefully examined as to what was actually ordered in giving leave to file the memorandum of appeal without the certified copy of the decree then it would appear that initially the exemption was granted to the appellant to file the certified copy of the decree along with the memorandum of appeal on that date only upon the undertaking of the appellant that he would file the said certified copy of the decree appealed from within the period of limitation. Therefore, it was on that condition that leave was granted by the Appeal Court to file the said memorandum of appeal by granting the said exemption in the manner as provided in the said undertaking viz. that the appellant would file the same within the unexpired period left out on that date or within the extended period which might be available to her as the time requisite within the meaning of Section 12(2) of the Limitation Act for the purpose of obtaining the certified copy of the decree from the department and filing the same. It would follow, therefore, that the mandatory provision of Chapter XXXI Rule 2 was suitably relaxed so that the certified copy of the decree might be obtained from the department and then filed. Under those circumstances, it cannot be contended that if there is a breach of the undertaking then the Court might inflict punishment for such breach but there could be no question of limitation any further. In my opinion, the question of limitation was left open by the court to be decided at the time of the hearing of the appeal or earlier. The question of limitation was, accordingly, left open even though the court gave leave to the appellant to file memorandum of appeal and pursuant to such leave such memorandum of appeal only was so filed within the period of limitation. It was a conditional order touching the question of limitation. The appellant was made aware by such undertaking that she would be obliged to file the said certified copy of the decree within the period of 30 days which was to be calculated on the basis of exclusion oftime provided under Section 12(2) of the Limitation Act.

21. That being the position, Mr. Sen's contention that the filing of appeal within the time of limitation is complete by the filing of the memorandum of appeal with the leave of the Court, cannot be accepted.

22. Under the circumstances, the next point urged by Mr. Sen requires examination. From the above list of dates, as set out hereinabove, Mr. Sen contends that in between the date of the signing of the decree and the filing thereof although more than seven months have elapsed yet that time must be taken to be time requisite which was properly required by the department concerned in making ready the certified copy of the decree. In this case several witnesses were examined at the hearing of the suit which went on for about 32 days. A large amount was payable by way of deposition fees. Mr. Sen contends that such deposition fees would only be paid upon the stamps in connection therewith being assessed by the department and after receipt of the notice of filing of the deposition from the department requiring the appellant to put in the same to enable her to file the decree. Although no such rule exists in the Original Side Rules of this Court still the age old practice of this Court is that until such deposition fees are paid on the basis of the notice issued by the department in that respect requiring the appellant to pay the same, the steps in connection with the filing of the decree cannot be taken and, accordingly, such time has to be excluded in computing the period of limitation within the meaning of the expression 'time requisite' in Section 12(2) of the Limitation Act. Although affidavits in connection therewith have been filed on behalf of either party but they could not be regarded as a safe guide to ascertain the practice of this Court because far from being uniform as to the existing practice they give nothing but a conflicting and a confusing view in connection therewith. Accordingly a report was called for from the Registrar, Original Side of this Court by an order of the previous Bench (R. M. Dutta & Basak, JJ.) dated March 20, 1980 as follows:--

'The Court: In this matter the Registrar, Original Side is directed to make a report on the following points within three weeks from date hereof and submit the same to this Court:

1. Is it the departmental practice of this Court in its original Side that,

(a) the filing of the decree is dependent on the payment of outstanding deposition fees;

(b) the payment of the outstanding deposition fees is dependent on assessment of such fees by the department and issue of a notice by the department calling upon the appellant to make such payment?

2. If there be such a practice as in (1) (a) or 1 (b) or both, has the Registrar, Original Side any discretion in the matter of relaxing the same and allowing the decree to be filed without payment of such outstanding deposition fees, if an undertaking is given by the Advocate-on-record to pay it immediately upon receipt of notice for payment of such outstanding deposition fees issued by the department after assessment thereof?

3. If there be such a practice as in (1) (a) or 1 (b) or both, then is the same followed in cases where the memorandum of appeal is allowed to be filed without a certified copy of the decree?

In the matter of such report the Registrar, Original Side would be at liberty to consult such officers and records of the department as he might think proper in his discretion. The report be sent in a sealed cover.

The Court Officer do send this order forthwith to the Registrar, Original Side, for necessary action.

Both the appeal and the application are adjourned till 21st April, 1980'.

23. Pursuant thereto, the Registrar, Original Side made a report dated April 8, 1980 which read as follows:--

'Lay before their Lordships the Hon'ble Mr. Justice Ramendra Mohan Datta and the Hon'ble Mr. Justice Bimal Chandra Basak.

I beg to submit this report as directed by your Lordships on the 20th March, 1980. I am dealing with the points raised by your Lordships one by one as follows:--

(1) Re: Point No. 1 (a):-- The Current Records Department which deals with the filing of decrees has reported that under a long standing practice of that department, the filing fees of depositions are realised before the decrees are filed.

Re: Point No. 2 (b):-- The Current Records Department has confirmed in its said report that the payment of the outstanding deposition fees is dependent onassessment of such fees by the Department and also on issue of a notice by the department calling upon the party concerned to make such payment.

(2) Re: Point No. 2:-- The Current Records Department has also reported that the department in some cases filed the decrees with the leave of the Registrar. As observed by Your Lordships, the Registrar has allowed the filing of decrees on undertaking given by the parties concerned to pay the deposition fees. Such permission is sometimes required to be given on request from parties for the sake of expedition.

(3) Re: Point No. 3:-- Yes. As there is no rule compelling a party to file depositions before a decree is filed, the department can only request a party to pay the deposition fees after the issue of a notice requesting the party to pay the same.

The Registrar is sometimes requested by a party to help the party in the matter of filing of the decree expeditiously on its undertaking to pay the deposition fees on demand. On such occasions, the Registrar has permitted some parties to file the decree on such undertaking on their part to pay the deposition fee on demand. As there is no bar to the filing of a decree, before the deposition fee is paid, the Registrar has permitted decrees to be filed on such requests.

Submitted.'

24. From the said report it appears that under a long standing practice the filing fees of depositions are realised before the decrees are filed; that the payment of the outstanding deposition fees is dependent on assessment of such fees by the department and also on the issue of a notice by the department calling upon the party concerned to make such payment; that the Registrar has power to allow the filing of decrees on the undertaking given by the parties concerned to pay the deposition fees and such permission is sometimes given on request from parties for the sake of expedition. That being the position, it is to be examined as to when the appellant was intimated by the department by notice for filing deposition after fees had been assessed and whether any steps were taken by the appellant or her recorded advocates to get the permission from the Registrar to file the deposition even before the same was assessed and if the Registrar has granted or not granted such permission.

25. From the list of all dates relevant to the question of limitation as includedin the paper book at page 2243 and as setout hereinabove, it would appear that up to item 5 viz. that the signing of the decree was made on July 11, 1975 everything was done in the regular course but thereafter what happened, that has not been indicated in the list of dates. It appears from the correspondence which is annexed to the affidavit-in-opposition herein that the appellant's advocate-on-record had been asking the Registrar for his permission to file the decree without filing the deposition on the undertaking to furnish stamps immediately upon issue of deposition on notice but no reply was received from the Registrar's end. Such a letter was written on July 28, 1975 and the same read as follows:--

'Our clients have filed this appeal in which, however, Paper Book has not been completed. We have not been able to file the decree passed in this suit, inasmuch as the deposition has not been filed.

Please note that deposition has not been filed, and in the absence of such notice we could not file deposition.

The time for filing Paper Book is running against us. We, therefore, request you to kindly allow us to file the decree herein. We undertake to file the deposition immediately upon receipt of the deposition notice.

Thanking you,

Yours faithfully,

Sd./- D. P. S. & Co.'

26. There was no reply to this letter by the Registrar. We have been shown two more letters dated August 12, 1975 and December 19, 1975 to the same effect which were written by the appellant's advocates-on-record to the Deputy Registrar but those were not replied to on behalf of the Registrar.

27. Then came the notice for payment of deposition fees from the Registrar on January 28, 1976 and the same read as follows-

High Court

Original Side;

Registrar's Office,

The 28th day of Jan. 1976

Suit No. 1476 of 1960.

Smt. Annada Sundari Saha

v.

Monoharan Saha & Ors.

Dear Sir,

The sum of Rs. 1582.80 paise is due from the plaintiff for deposition and other fees in the above suit. Will youplease see that the necessary stamps areprovided as early as possible

Received Stamps.

Rs. 1582.80P.

Deposition Clerk

Dated 23-2-76.

Yours faithfully,

Sd. P. Roy Chowdhury,

Asst. Registrar,

28-1-76.

To M/s.D. P. Sarbadhikary & Co.

Particulars

Deposition

Rs. P.

Fees.

C. R.Saha.

136.00

P. C.Chatterjee

37.20

M. K.Saha

32.00

M. Saha

117.80

P. N.Mukherjee

50.20

K. P.Chatterjee

37.00

Moni LalSaha

234.80

S. K.Saha

500.00

R G. N.Chowdhury

52.80

A. S.Saha

180.20

S.Gupta.

32.80

55 Ex.

165.00

1582.80 '

28. The appellant's aforesaid letters and the letter of the Registrar dated January 28, 1976 read together would show that the appellant was all throughout diligent and active and was sincerely intending to file the appeal within the period of limitation. The absence of any reply from the Registrar's Side would indicate that the Registrar did not intend to exercise his discretion to allow the appellant to file the decree without the payment of the deposition fees. On the contrary, the Registrar must have intended that the large sum which had been found due and owing after assessment of folios would first be paid by the appellant and thereafter the decree should be filed by her. There is no default on the part of the appellant in this respect and whatever was to be done by the appellant was done through her recorded advocates. She expressed her intention to file the decree and asked for the permission of the Registrar in that regard. She was even prepared to give an undertaking to file the deposition immediately after she would get the deposition notice. That being so there could not be any question that up to January 28, 1976 she was entitled to get credit of the said period in her favour and possibly a day more thereafter for thepurpose of enabling her to deposit the said amount.

29. The next step the appellant was supposed to have taken for filing the decree was to deposit the said amount and to get the stamps so that the same could be filed with the department for filing the decree.

30. From the endorsement made in the aforesaid letter dated January 28, 1976 it appears that the deposition clerk of the department acknowledge receipt of the stamps for Rs. 1582.80 on February 23, 1976. Mr. Sen has drawn our attention to paragraph 9 of the affidavit affirmed by the appellant on July 31, 1971 (sic) where she stated on oath that she was informed by her advocate in the first week of February 1976 that he was required to pay the said sum on account of deposition fees. She informed her advocates that she was not in a position to secure the said sum of Rs. 1582.80 for payment as she had already spent more than Rs. 10,000/- towards costs for filing the appeal and for printing the voluminous paper books. She stated further on oath that she made all possible efforts to secure the said sum and ultimately got the said sum. On or about February 19, 1976 she made over Rs. 1582.80 to her advocates for necessary payment.

31. It is no doubt true that the aforesaid averments in her affidavit, showed her anxiety to file the appeal but she could not do so immediately for want of necessary funds. In spite of the aforesaid, in my opinion, she is not entitled to her credit the said time which she took for procuring the said sum for payment. She was entitled to credit to her account only such time which was properly taken by the department and not by her in making the certified copy of the decree ready which she undertook to file. That being so, on calculation it would appear that she allowed 24 days to pass-by between January 28, 1976 and February 21, 1976. There is no reason why she should get credit of this period from the period of limitation. Accordingly, out of the period of 30 days she lost 24 days from the date of notice for payment of deposition fees and up to the date when her recorded advocates deposited the said amount of Rs. 1582.80 with the Calcutta Collectorate for purchase of stamps for deposition. Her recorded advocates, however, got the stamps from the Calcutta Collectorate on February 23, 1976 which was a Monday and on that very date the said stampswere deposited in Court. Admittedly, stamps for such huge amounts are not available in the High Court and one has to purchase the same from the Calcutta Collectorate. That being so, the appellant is entitled to her credit the said period between February 21, 1976 and February 23, 1976 both days inclusive when her recorded alvocates actually received the stamps from the Calcutta Collectorate. February 21, 1976 was a Saturday and February 23, 1976 was a Monday. This period from February 21 to February 23, 1976 has to be excluded from the period of limitation as time properly taken by the Court in the matter of making ready the certified copy of the decree.

32. There is default of another day which has not been explained inasmuch as the decree could have been filed on February 24, 1976 but instead it was filed on February 25, 1976 which was a Wednesday. The result, therefore, is that the total number of days lost would come to 25 days up to the date of the filing of the decree.

33. The next period is between February 25, 1976 when the decree was filed and March 19, 1976 when the certified copy of the decree was made ready for delivery. In between the said period it appears that on March 1, 1976 folios for certified copy of the decree were assessed and on the very same day i. e. on March 1, 1976 stamps in respect thereto were furnished. Thereafter on March 11, 1976 the recorded advocates of the appellant gave a reminder to the Deputy Registrar by their letter about the non-receipt of the certified copy of the decree and, as stated hereinabove, on March 19, 1976 which was a Friday the certified copy of the decree was made ready for delivery. From this date till March 24, 1976 when the certified copy of the decree was filed the appellant lost another 4 days for which no explanation has been given. That being so, in addition to 25 days which she had already lost, she was to lose another 4 days to file the certified copy of the decree. That makes the total of 29 days (24 + 1 + 4 = 29 days).

34. On the basis of the aforesaid calculation it appears that she was within the period of limitation inasmuch as the undertaking given by her to file the certified copy of the decree within the period of limitation was duly performed. That being so, there is no breach of the undertaking given by the appellant to file thecertified copy of the decree within the period of limitation.

35. Mr. Das appearing on behalf of the respondent has contended that the calculation should take us to 31 days and not any shorter period as held by us. According to the learned advocate the appellant would not be entitled to any exclusion of time between the period from February 21, 1976 and February 25, 1976. Mr. Das in his submission has contended that the appellant is not entitled to the deduction even of the period between February 21, 1976 and February 23, 1976 inasmuch as such time could have been avoided if the appellant had taken steps earlier. In our opinion, that argument cannot stand inasmuch as the steps in that regard were so taken well within the period of limitation and in the facts and circumstances of this case considering both from the point of view of the deposition fees and the enormous cost of preparation of the paper book it must be held that such steps were taken without any laches or negligence on the part of the appellant in the matter of fulfilling her undertaking to Court. What is material to be considered in the matter of such calculation is whether there has been laches or negligence on the part of the appellant in obtaining such certified copy of the decree from the department and filing the same within the period of limitation. We have taken notice of the consistent view taken by the Supreme Court in this regard and have arrived at the conclusion keeping such principles in view.

36. Referring to Section 12(2) of the Limitation Act the Supreme Court in the case of State of U. P. v. Maharaja Narain : 1968CriLJ1132 observed:--

'It must be remembered that sub-section (2) of Section 12 enlarges the period of limitation prescribed under entry 157 of Schedule I. (Limitation Act, 1908). That section permits the appellant to deduct from the time taken for filing the appeal, the time required for obtaining the copy of the order appealed from and not any lesser period which might have been occupied if the application for copy had been filed at some other date. That section lays no obligation on the appellant to be prompt in his application for a copy of the order. A plain reading of Section 12(2) shows that in computing the period of limitation prescribed for an appeal, the day on which the judgment or order complained of was pronounced and the timetaken by the Court to make available the copy applied for, have to be excluded. There is no justification for restricting the scope of that provision'.

If the appellate Courts are required to find out in every appeal filed before them the minimum time required for obtaining a copy of the order appealed from it would be unworkable'.

The Supreme Court in that case at p. 962 approved the judicial opinion of the Full Bench of the Madras High Court in Panjam Thirumala v. Anavemareddy, JLR 57 Mad 560 : AIR 1934 Mad 306 wherein the said Court laid down that in Sec. 12 the words 'time requisite for obtaining a copy of the decree' meant the time beyond the party's control occupied in obtaining the copy which was filed with the memorandum of appeal and not an ideal lesser period which might have been occupied if the application for the copy had been filed on some other date

37. The meaning of the expression 'time requisite' in Section 12(2) of the Limitation Act was considered by the Supreme Court in the case of Lala Bal Mukand v. Laiwanti, : AIR1975SC1089 where the Supreme Court at page 1092 observed:--

'In our opinion the expression 'time requisite' as used in Section 12(2) in the phrase in question, means all the time counted from the date of the pronouncement of the judgment (the same being under Order 20, Rule 7, Civil P. C., the date of the decree) which would be properly required for getting a copy of the decree, including the time which must ex necessitas elapse in the circumstances of the particular case, before a decree is drawn up and signed. If any period of the delay in preparing the decree was attributable to the default or negligence of the appellant, the latter shall not be entitled to the exclusion of such period under Section 12(2) of the Limitation Act, 1908'.

It is true that the said observation of the Supreme Court was made in connection with Section 12 (2) of the Limitation Act, 1908 but considering the fact that very little in the language of Sub-section (2) of the said section as enacted in 1963 Act has undergone any change and is substantially the same (except with regard to a little change which does not concern us), we are of the view that the same applies on all fours in respect of the said provision of the new Act as well.That being so, what is material for our consideration is the time property required for getting a copy of the decree in the facts and circumstances of each particular case and in respect whereof there would be no default or negligence on the part of the appellant. Applying the said principles as enunciated by the Supreme Court to the facts of the case before us it cannot be said that the time taken for obtaining the certified copy of the decree herein was not properly required for getting the same or that there was any default or negligence of the appellant in getting the same within the said period

38. The position has also been made clear by the latest Supreme Court decision on this point in the case of the Commr. of Sales Tax U. P. v. Madanlal Dan and Sons, Bareilly, : [1977]1SCR683 . This decision interpreted Section 12(2) of the Limitation Act 1963 and following its earlier decision in the case of State of U. P. v. Maharaja Narain : 1968CriLJ1132 (supra) the Supreme Court observed that the expression 'time requisite' in Section 12(2) of the Limitation Act cannot be understood as the time absolutely necessary for obtaining the copy of the order.

39. Lastly we should refer to a passage in the said Supreme Court decision in Lala Bal Mukand v. Lajwanti : AIR1975SC1089 (supra) where at page 1092 the Supreme Court observed:

'The Limitation Act deprives or restricts the right of an aggrieved person to have recourse to legal remedy, and where its language is ambiguous, that construction should be preferred which preserves such remedy to the one which bars or defeats it'.

In this case we are satisfied that the recorded advocates of the appellant were all throughout conscious of the fact that their client was to file the certified copy of the decree within the time as undertaken by her viz., within the period of limitation and with that end in view from time to time, they have tried to get leave of the Registrar to obtain the same by filing the decree even before payment of deposition fees and the stamps payable to connection therewith but they did not obtain such leave from the Registrar. When they were intimated about the deposition fees it was no doubt a very heavy sum for which they prayed for time to file their client's paper book but at the same time they were aware of the fact that they were to file the deposition.as quickly as possible so that they could be in time to file the certified copy of the decree within the period of limitation, We are satisfied that the appellant cannot be said to be guilty of any laches or negligence in the matter of obtaining the certified copy of the decree and in filing the same in the facts and circumstances of this case.

40. Judging from that point of view, in our opinion, such certified copy of the decree in this case has been filed within the period of limitation and, accordingly, the undertaking has been complied with and it cannot be held that there was any breach of such undertaking. Accordingly, we are of the view that the appeal is not barred by limitation and the respondent applicant herein is not entitled to any relief in this application. We, accordingly, dismiss the application and make costs costs in the appeal.

41. In view of our decision as aforesaid, it is not necessary to make any order in the application made by the appellant under Section 5 of the Limitation Act. We, accordingly, make no order thereon except that costs thereof would also be costs in the appeal.

C.K. Banerji, J.

42. I agree.


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