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Bani Madhub Mitter Vs. Matungini Dassi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata
Decided On
Judge
Reported in(1886)ILR13Cal104
AppellantBani Madhub Mitter;kali Shunkar Dass
RespondentMatungini Dassi and ors.;gopal Chunder Dutt
Excerpt:
limitation act (xv of 1877), section 12, schedule ii, article 152--exclusion of time between delivery of judgment and signing decree--civil procedure code, (act xiv of 1882), section 205. - .....provides that in computing this period of 30 days, the time requisite for obtaining a copy of the decree appealed against shall be excluded; and the question really in this case is, what is the meaning of these words.,5. the facts are (taking special appeal no. 2065 first) that the judgment was pronounced on the 17th july 1883, and consequently that is to be taken as the date of the decree. the decree was not in fact signed until the 23rd july, so that until that day the appellant could not have obtained the necessary materials, the copy of the decree, to enable him to appeal. he applied for a copy on the 3rd august and obtained it on the 11th idem, so that he is under section 12 of the limitation act entitled to have these days excluded in computing the time taken in presenting his.....
Judgment:

W. Comer Petheram, C.J.

1. The reference in these two cases involves the question of the construction of Section 12 of the Limitation Act read along with article 152 of the second schedule of the same Act.

2. Article 152 limits the time for an appeal under the Code of Civil Procedure to the District Judge to 30 days from the date of the decree or order appealed against; and the question is, from what date is this period to be computed

3. The first question is, what is the date of the decree, and for the purpose of ascertaining that, it is necessary to look at Section 205 of the Code of Civil Procedure. By that section it is provided that a 'decree shall bear date the day on which the 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.

4. Bearing that in mind, and also bearing in mind that under Section 541 of the Code of Civil Procedure, it is necessary that the Memorandum of Appeal shall be accompanied with a copy of the decree, it would be unfair to compute the period of limitation, in all cases, from the date on which the judgment was delivered, because it is obvious that things may intervene so as to prevent the decree being signed until after the expiration of the whole period of 30 days allowed for preferring the appeal, and so the appeal may be rendered impossible without any fault of the parties; and therefore Section 12 of the Act provides that in computing this period of 30 days, the time requisite for obtaining a copy of the decree appealed against shall be excluded; and the question really in this case is, what is the meaning of these words.,

5. The facts are (taking Special Appeal No. 2065 first) that the judgment was pronounced on the 17th July 1883, and consequently that is to be taken as the date of the decree. The decree was not in fact signed until the 23rd July, so that until that day the appellant could not have obtained the necessary materials, the copy of the decree, to enable him to appeal. He applied for a copy on the 3rd August and obtained it on the 11th idem, so that he is under Section 12 of the Limitation Act entitled to have these days excluded in computing the time taken in presenting his appeal. The appeal was presented on 30th August, and the period of limitation prescribed-thirty days from the date of the decree-is exceeded, even after excluding eight days from the 3rd to 11th August (if it is calculated from the date of the decree itself). But in our opinion the fact that the decree was not in existence, that is, signed by the particular Judge, and could not therefore be copied until 23rd July, that is, six days after the date that it bears, entitles the appellant to ask us to deduct those six days in addition to the eight days, and thus to hold that under Section 12 the appeal has been presented within the prescribed period.

6. In this case, the appellant obtained a copy of the decree (having made his application earlier) on the 11th August 1883, and he filed the appeal on the 30th idem, and was therefore well within time.

7. As to the other case, the law of course is the same; and at first sight it looks as if the appeal were beyond time, but, on examining the facts, it appears that the last day of the period of limitation was a Sunday, and therefore the time was extended to Monday, the 7th of April; consequently in this case also the questions must be answered in the affirmative, and the appeal must be taken to have been filed in time.

Mitter, J.

8. The judgment, therefore, of the lower Appellate Court in these cases will be reversed, and the cases will be remanded to that Court to hear the appeals on the merits.


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