1. The defendants are the members of an undivided family who possessed a dwelling house in which they resided. The plaintiff, who is a stranger to the family, acquired a share in this dwelling house and then brought this suit for partition. A decree for partition was made. Defendant 1 appealed from that decree and although there were other grounds taken in the memorandum of appeal the only question canvassed related to the right which defendant 1 claimed by virtue of the provisions of Section 4, Partition Act. Defendant 1 pointed out that the dwelling house belonged to an undivided family and that the plaintiff who was not a member of the family had acquired a share in that dwelling house. He contended that he was entitled as a member of the family to buy the share of the plaintiff. The plaintiff resisted the appeal on certain grounds of which two only fall for consideration in this Court. He contended first that the appeal had been filed without a copy of the judgment of the trial Court and that therefore the appeal was incompetent. Secondly, he contended that the appeal was barred by limitation. The learned Additional District Judge held against the plaintiff-respondent on both the points and allowed the appeal. The case was remanded to the trial Court for taking action under Section 4, Partition Act. Against this decision the plaintiff appeals. The same two points are taken in this Court. I shall take up for consideration first the question whether the appeal before the Additional District Judge was incompetent by reason of the fact that no copy of the judgment of the trial Court had been filed with the memorandum of appeal. The judgment undoubtedly has not been filed. The point for consideration is whether this renders the appeal incompetent. Order 41, Rule 1, Civil P.C., is as follows:
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.
2. It is clear from the provisions of this rule that an appellant must file with his memorandum of appeal the decree and ordinarily also the judgment on which the decree is founded. As regards the judgment, the Court may, in a fit case, dispense with the filing of it, but with respect to the filing of the decree the Court has no such power. It is argued on behalf of the appellant that as there has been no dispensation given by the Court in this case, the failure to file the judgment with the memorandum of appeal renders the appeal incompetent. It would be better to determine first the facts and then consider the application of the law on the point. Did the Court dispense with the filing of the judgment and if so when was this dispensation given? There is no written order dispensing with the judgment, nor is there a very definite finding of the lower Appellate Court on this point. The learned Judge dealing with the provisions of Order 41, Rule 1, Civil P.C., says this:
There is a provision then that the Appellate Court can dispense with the filing of the copy, and, though no specific order was passed on the subject it may be deemed in the circumstances to have so dispensed with the filing.
3. The appellant contends that this is not a finding that dispensation had been granted. On behalf of the respondent the argument is that it should be presumed that the Court acted legally and that it dispensed with the filing of the judgment. The principle 'omnia prasumuntur rite esse acta' is relied upon. In my opinion in the circumstances of this case I think that I would be right in presuming that dispensation was given at the time the appeal was filed. There can be no doubt that a reference of the judgment of the trial Court was entirely unnecessary for the determination of the question involved under Section 4, Partition Act. The appellant wanted merely to exercise his right of purchasing the share acquired by a stranger to the family. This right was not asserted or refused in the Court of first instance and the judgment of the trial Court which did not deal with this question was not required for consideration by the Appellate Court. No Court in these circumstances would refuse to dispense with the [filing of the judgment. Order 41, Rule 1 does not say that the Court must record an order dispensing with the judgment. The absence) of a recorded order does not therefore necessarily show that no order was passed. In view of the principle 'omnia prasumuntur rite esse acta' and in view of the fact that dispensation would most certainly be granted in a case of this description, I hold that the Court did grant dispensation at the time of admitting the appeal. In this view it is unnecessary for me to deal with the different cases which were placed before me by either side on this point. The appeal in the Court below was not incompetent by reason of the fact that the judgment did not accompany the memorandum of appeal.
4. The next point taken by the appellant is that the appeal in the Court below was barred by limitation. The judgment was-signed on 5th June 1936; the decree was-signed on 8th August 1936; application for a copy of the decree was made on 10th August 1936; the copy was supplied on 17th August 1936 and the appeal was filed on. 3rd September 1936. Now, unquestionably, the appellant will be allowed the period between 10th August 1936 and 17th August 1936 as being requisite for obtaining a copy of the decree. The question is whether he should be allowed the period between 5th June 1936 when the judgment was signed and 8th August 1936 when the decree was signed as being a period requisite for obtaining a copy of the decree. If he is not allowed this period the appeal is undoubtedly barred by limitation; if he is allowed this period the appeal is within time. Now so far as this Court is concerned, the Full Bench in Bani Madhub Mitter v. Kali Sunkar Das (1886) 13 Cal. 104 (F.B.) has decided that a suitor is entitled under Section 12, Limitation Act, to deduct the time between the delivery of the judgment and the signing of the decree in computing the time taken in presenting his appeal. On behalf of the appellant, the present case is sought to be distinguished from the case which was the subject of the decision of the Full Bench in the following way. In the Full Bench case the application for a copy of the decree-was made within 30 days of the passing of the judgment, i.e., within the period of limitation fixed for the appeal, whereas in the present case the application for a copy of the decree was made about two months-after the signing of the judgment. It is argued by learned advocate for the appellant that the appeal being already barred by limitation before a copy was applied for the appeal could not be revived by an application for a copy. In my opinion this argument is unsound. The Full Bench decided that a person cannot be expected to apply for a copy of the decree until the decree had been signed inasmuch as there was no decree in existence till it was signed. It also pointed out that any other interpretation of Section 12, Limitation Act, would result in grave injustice. It will be useful to quote the observations of the learned Judges regarding this aspect of the question. This is what they say:
Bearing that in mind and also bearing in mind that under Section 641, Civil P.C., 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 0 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. This is exactly what has happened here. The decree was not signed till about two months after the signing of the judgment. I think it would be absurd to expect the appellant to apply for a copy of the decree before it came into existence. Learned advocate for the appellant referred me to the case in Harish Chandra v. Chandpur Co. Ltd. (1912) 39 Cal. 766, when the time between the signing of the judgment and the signing of the decree was not allowed. The reason for not allowing this time is given in the judgment. This was a case of an appeal from the decision of this Court to the Judicial Committee of the Privy Council; at that time in this Court it was not possible to calculate the period between the signing of the judgment and the signing of the decree as the date of signing the decree used not to be put on the decree. In the muffassil Courts it was and is obligatory for the Court to state both in the order sheet and on the decree itself the date on which it was signed so that the period between the signing of the judgment and the signing of the decree is definitely ascertain-able. In this Court it was not always possible to ascertain this period. For this reason the learned Judges in Harish Chandra v. Chandpur Co. Ltd. (1912) 39 Cal. 766 held that the Full Bench decision was not applicable to appeals to His Maiesty in Council. It is true that there is an observation of Bret, J. to the effect that the Full Bench decision was also distinguishable on the ground that in the Fall Bench case the application for copy was made within the period of limitation reckoned from the date of the judgment whereas in the case under decision the application was made after the expiry of that period. This is an 'obiter dictum' and it finds no place in the reasons given by the other learned Judge, Carnduff, J. Both the Judges, in holding that the rule laid down by the; Full Bench regarding the exclusion of the period between the signing of the judgment and the decree was not applicable, based their decision on the ground that it was not; possible to ascertain this period in the case of judgments and decrees passed by the High Court.
6. In this connexion I would refer to the case in Rajani nath v. kali Mohan (1917) 4 A.I.R. Cal. 619. In this case the application for a copy of the decree was made after the expiry of the period of 30 days from the signing of the judgment. The-learned Judges decided however that the period between the signing of the judgment and the signing of the decree should be ex-eluded. A distinction was sought to be made by learned advocate for the appellant because in that case an application for a copy of the judgment had been made within the period of 30 days. I do not think that this distinction makes any difference in principle. I would also refer to the case in Sudhansu Bhusan Pandey v. Majho Bibi : AIR1937Cal732 in which this very point was considered and decided. It was held that an appellant; was entitled to get the benefit of this period between the signing of the judgment and the signing of the decree even though he made no application for a copy of the judgment within 30 days of the signing thereof. The uniform practice of this Court since the Full Bench decision has been to deduct this period and I see no valid reason to depart from this practice. 'Gursus curios est lex curia' I hold that the appeal is not barred by limitation. In view of the findings arrived at, the decree of the Court below must be upheld and this appeal must be dismissed with costs.