1. This is an application on behalf of Gobind Lal Dutt, who was the defendant in the suit, that the memorandum of appeal against the judgment and decree in the suit, dated the 6th of June, 1924, which was presented on behalf of Gobind Lal Dutt on the 18th of November, 1924, and which was not accepted by the Registrar, should be admitted.
2. The material dates are as follows: The decree was made on the 6th of June, 1924, as I have already mentioned, in favour of the Official Assignee against the present applicant.
3. On the 11th of June a requisition for an office copy of the decree was made by the attorney of the applicant Gobind Lal Dutt.
4. Nothing further was done until the 7th of August 1924, when a requisition for drawing the decree was made on behalf of the plaintiff.
5. This decree was drawn up, finally settled, and signed on the 16th of November, 1924. The stamps necessary for the office copy were furnished on the 12th of November and the memorandum of appeal was presented on the 18th of November on the 19th it was rejected by the Officiating Deputy Registrar on the following ground:-' As the requisition for drawing up the decree was not given within twenty days from the date of the decree, this memorandum cannot be accepted.'
6. The learned Counsel who appeared for the applicant stated that he was bound to admit that the memorandum was not presented within the time specified by the Limitation Act and that it was necessary for the applicant to obtain extension of time.
7. The ground upon which he based his application for extension of time was that ' before the 11th of June, 1924, one Surendra Narain Bhaduri, who is a clerk in the service of the applicant's attorney, was informed by one Benoy Krishna Mukerji, the Court Clerk of Messrs. Fox and Mandal, who were the attorneys for the plaintiff-that the requisition had been duly given for drawing up the said decree by the plaintiff's attorneys and that relying on the said information and as the said requisition for the office copy was accepted by the office, he (Surendra Narain Bhaduri) assumed that the requisition for the drawing up of the said decree bad been duly given by the said plaintiff's attorneys and that he did not make any further enquiry as to whether such requisition had been actually given.'
8. An affidavit has been filed on behalf of the plaintiff, sworn by Benoy Krishna Mukerji, the clerk in the employ of Messrs. Pox and Mandal, who is referred to in the petition verified by Surendra Narain Bhaduri, and, in para. 5, it is stated as follows:
With reference to the allegations made in para. 5 of the affidavit I emphatically deny that before the 11th June, 1924, or on any other day I informed the said Surendra Narain Bhaduri or any other person of the office of Mr. J. Kt. Dutt that requisition had been duly given for drawing up of the said decree by us. I say that the statement is an absolutely unfounded one and has been made to cover up laches. I further say that the said Surendra Narain Bhaduri did not even know my name and on or about the 18th of November, 1924, be asked me what my name was. This I now think was then done with a view to put in my name in the affidavit as his alleged informant.
9. There is therefore a direct conflict of testimony as to whether the information, upon which the applicant relies, was given by Benoy Krishna Mukerji to Surendra Narain Bhaduri.
10. In my judgment it is impossible for us upon the materials which are now before this Court to hold that that information was in. fact given. The result is that this application must be decided upon the basis that the allegation as to the information referred to in Surendra Narain Bhaduri's petition is excluded from consideration.
11. The question then arises whether there are any other circumstances connected with this application which would justify this Court in holding that the applicant has satisfied the Court that he bad sufficient cause for not preferring the appeal within the prescribed period as provided by Section 5 of the Limitation Act.
12. Now, it is well-known that by reason of Rule 27, Chapter XVI of the High Court Rules, if the party in whose favour a decree has been made does not apply to have the decree drawn up within four days from the date of the decree, any party to the suit may apply to have the decree drawn up within one month thereafter.
13. In my judgment, the applicant or his attorney ought to have taken proper steps to ascertain whether an application had been made by the plaintiffs to have the decree drawn up.
14. In this connection, I desire to draw attention to the decision of this Court in Kamruddin Hyder v. M.N. Mehta, which was given on the 13th August, 1924.
15. In that case reference was made to the judgment of the Judicial Committee of the Privy Council in Pramatka Nath Roy v. Lee A.I.R. 1922 P.C. 352 in which the following passage occurs:
In their Lordships' opinion no period can be regarded as requisite under the Act which need not have elapsed if the appellant had taken reasonable and proper steps to obtain a copy of the decree or order.
16. In this case, as I have already said, it is admitted that neither the applicant nor his attorneys made any application to the Registrar's Office to ascertain whether the plaintiff had in fact sent in a requisition to have the decree drawn up.
17. The applicant's attorney made a requisition to the Court's office on the 11th June (five days after the decree was made) for the purpose of obtaining an office copy of the decree. Neither the attorney nor his clerk made any enquiry at the Court's office as to whether a requisition for drawing the decree had been made by the plaintiff. If such an enquiry had been made, it would have been ascertained that no requisition for drawing the decree had been made by the plaintiff: such information having been obtained, if the applicant intended to appeal, it would have been his duty to make a requisition for the decree to be drawn up. In my judgment, time elapsed, which need not have elapsed if the applicant had taken reasonable and proper steps to get the order drawn up and to obtain an office copy.
18. If we were to hold that it was sufficient for the present applicant, desiring to appeal, to put in a requisition for an office copy without taking any steps whatever to have the decree drawn up in the event of the plaintiff not so doing, it seems to me that the provisions of the Limitation Act might be avoided.
19. I am therefore not satisfied that the applicant had sufficient cause for not preferring the appeal within the prescribed time.
20. For these reasons the application must be dismissed with costs.
21. I agree, and as this matter is being decided with reference to a point upon which, so far as I am at present aware, there has hitherto been no decision I desire to add a few words as to the principle involved.
22. Before an appeal can be filed, the decree or order must be drawn up and the would-be applicant must obtain a copy of the decree or order, which it is his duty to file with the memorandum of appeal. As stated, it is open to the party in whose favour the decree or order has been made, to furnish a requisition in writing for the order or decree to be drawn up. If he does not do so within four days from the date of the decree or order, the other party may do so within one month thereafter Consequently under the Rules of this Court, it is open to a would-be appellant to have the decree or order drawn up.
23. It has been decided in the case of Pramatha Nath Roy v. Lee A.I.R. 1922 P.C. 352 by the Judicial Committee of the Privy Council affirming the judgments of the learned Chief Justice and Mr. Justice Chitty that ' time which need not have elapsed if the appellant had taken reasonable and proper steps to obtain a copy of the decree or order could not be regarded as ' requisite' time within Sub-section (2) of Section 12 of the Indian Limitation Act (IX of 1908).' Consequently it is now not open to question that a party who desires to prefer an appeal against a decree or order must apply for a copy of such decree or order within twenty days-the period of limitation for preferring an appeal. The point is whether or not, even though he may have applied for such copy within time, he may be excused if he has not within the prescribed period filed a requisition for the decree or order to be drawn up. In my opinion, the principle applies equally to the filing of the requisition to draw up the decree or order.
24. The case to which I have referred relates to the copy of the order but it was held there by the learned Chief Justice that if the defendant desired to appeal from the order he should have applied to have the order drawn up and for a copy of the order in accordance with the Rules of this Court.
25. The principle, it appears to me, is incontestably equally applicable to the preparation of the decree or order. There cannot be one principle applicable to the decree or order and another applicable to the copy for which the would-be appellant has to apply. It would be illogical and inconsistent to insist on his applying within twenty days for a copy of a document which it is within his power to have prepared and then to excuse him on the ground that he is not equally bound within that time to take steps for the preparation of the original.