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Golam Gaffar Mandal and ors. Vs. Goljan Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtKolkata
Decided On
Judge
Reported in(1898)ILR25Cal109
AppellantGolam Gaffar Mandal and ors.
RespondentGoljan Bibi and ors.
Cases ReferredBani Madhub Mitter v. Matungini Dassi
Excerpt:
limitation act (xv of 1877), schedule ii, article 179 - meaning of the words 'date of the decree'--execution of decree--code of civil procedure (act xiv of 1882), sections 205 and 235. - .....mitter v. matungini dassi (1886) i.l.r. 13 cal. 104 fully supports the view we take. there the learned judges had to construe the words 'the date of the decree' occurring in article 152 of the second schedule of the limitation act; and sir comer petheram in delivering the judgment of the court, after referring to section 205 of the code of civil procedure, observed: 'it is provided by that section that the decree shall bear date the day on which judgment was pronounced, and when the judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree, so that whatever may be the day on which the actual signature is made, the date of the decree for all purposes is to be the date on which the judgment-was pronounced.' if then the words.....
Judgment:

Maclean, C.J.

1. In my opinion these appeals are not susceptible of serious argument. It is clear that the period of limitation began to run from the date of the decree, and the date of the decree was the 14th September 1892. It is quite immaterial on what date the Judge signed it. The appeals must be dismissed but without costs, as the respondents have not appeared.

Banerjee, J.

2. I am of the same opinion. The question for decision in this case is what is the meaning of the words 'date of the decree' in Clause 1 of Article 179 of the second schedule of the Limitation Act. Do they mean the date that the decree is by Section 205, of the Code of Civil Procedure directed to bear, or do they mean the date on which the Judge actually puts his signature to the decree? I am of opinion that they must mean the date the decree is directed to bear under Section 205, and that is the date on which the judgment was pronounced: and if time runs from that date, this application was clearly out of time. It was argued by the learned Vakil for the appellant that the words in question should be construed to mean the date on which the Judge put his signature to the decree, and the only reason assigned in support of this contention was that otherwise the decree-holder would not have the full period of three years allowed him by law for making an application for execution, because it was paid that he was required by Section 235 of the Code of Civil Procedure to insert certain particulars in his application for execution, which particulars could be given only after the decree was drawn up. Granting that some of the particulars required by Section 235 could be given only after the decree was drawn up, that does not deprive the decree-holder of the benefit of the full period of three years, if the words in question mean the date that the decree is required by Section 205 to bear. He must have known the date on which judgment was pronounced in his favour, and he could have made all necessary preparations for making an application for execution from that date; and thus he can avail himself of the full period of three years. An extreme case might be put, where the decree is not actually prepared until after the expiry of three years from the date of the judgment. Practically that is an extremely unlikely case. But if such a case were to happen, there would be nothing to prevent the successful party in the suit from making the application for execution within three years, without such of the details required by Section 235 as could not be given by reason of the decree not being ready, representing to the Court that the application was made in that imperfect form to save it from being barred.

3. I may add that the decision of a Full Bench of this Court in the case of Bani Madhub Mitter v. Matungini Dassi (1886) I.L.R. 13 Cal. 104 fully supports the view we take. There the learned Judges had to construe the words 'the date of the decree' occurring in article 152 of the second schedule of the Limitation Act; and Sir Comer Petheram in delivering the judgment of the Court, after referring to Section 205 of the Code of Civil Procedure, observed: 'It is provided by that section that the decree shall bear date the day on which judgment was pronounced, and when the Judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree, so that whatever may be the day on which the actual signature is made, the date of the decree for all purposes is to be the date on which the judgment-was pronounced.' If then the words 'the date of the decree' in article 152 bear that meaning, there is no reason why those same words occurring in another article of the same schedule should not bear the same meaning.


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