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Kedar Nath Moyra Vs. Gollam HossaIn Mollah and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in165Ind.Cas.53
AppellantKedar Nath Moyra
RespondentGollam HossaIn Mollah and ors.
Cases ReferredBani Madhub Mitter v. Kali Sankar Dass
Excerpt:
limitation act (ix of 1903), sections 5, 12, schedule i, article 152 - 'thirty days from date of decree' in article 152, meaning of--limitation for appeal--time, when can br ex ended, under section 5--no mistake in operative part of decree--amendment after expiry of time for appeal--time, if can be extended under section 5. - .....on his behalf that where a decree is amended under section 152 of the civil procedure code, the amended decree is in the eye of law the only decree in existence, it having superseded the incorrect decree. mrs. alice mamud 'hossain v. j.c. galstaun : air1927cal114 , and, therefore, the period of limitation runs from the date of the amended decree and not of the original decree. to support his contention the learned advocate for the appellant relies; upon the cases of aditya kumar bhattacharjya v. abinas chandra mukherjee : air1931cal323 , and soudamini dassi v. nabalak mia bhuiya : air1931cal578 . a further point has been taken that in any case the time for filing the appeal ought to have been extended under section 5 of the limitation act.5. in my judgment the first contention.....
Judgment:

R.C. Mitter, J.

1. The plaintiff Motiullah Mollah, whose legal representatives are the respondents in this appeal, sued the defendant-appellant for arrears of rent and cesses due from Magh 1334 to Chait 1337 at the rate of Rs. 73-2 per year. He also claimed additional rent for excess area for the same period. The suit was based on a registered lease, dated Falgoon 18, 1309, by winch 30 bighas of land was let out at the rate of Rs. 27 per bigha. By the terms of the lease the tenant has to pay additional rent for lands in excess of 30 bighas at the rate of Rs. 2-7 per bigha. At the time of cadastral survey under Chapter X of the Bengal Tenancy Act the area in the possession of the defendant was found to be 35 bighas 19 eottahs 8 chittaks. The plaintiff accordingly claimed as additional rent the sum of Rs. 13-15-5-1/2 gandas for the 5 bighas 19 cottahs 8 chittaks of land of which the defendant was in possession in excess of the 30 bighas of land menticned in the said lease.

2. The defence that he was not in possession of the area mentioned in the Record of Rights failed, and the learned Munsif by his judgment dated August 28, 1931, held that the plaintiff was entitled to Rs. 13-15-3 as additional rent. The plaintiffs' claim for arrears from Magh 1331 to Chait 1337 was accordingly decreed at the rate of Rs. 87-1-3 pies per year with cesses and damages. The decree was drawn up and signed on September 12, 1931. In the decree so drawn up the total amount decreed to the plaintiff was correctly stated and was in accordance with the judgment, but a few clerical mistakes were committed. In reciting in that portion of the decree, which recited the claim of the plaintiff, a mistake was in the original rent of the tenancy, the rate of rent being stated to be Rs. 18-4-6 instead of Rs. 73-2 per year. In the recital of the claim also it was stated that arrears were claimed from 1334 to Chait of 1337, and not from Magh 1334 to Chait 1337. In the decretal portion it was stated that the plaintiff was entitled to additional rent, but the amount thereof was not mentioned; but the total amount which the defendant was directed to pay to the plaintiff was correctly stated.

3. The Civil Court closed for the Puja vacation on October 11, 1931, and re-opened on November 12, 1931. The last date for filing the appeal against the said decree would have been the re-opening date that is the November 12, 1931. The defendant did not file an appeal on that date. On November 22, 1931, the plaintiff, however, made an application for correction of the aforesaid clerical errors which did not at all affect the operative portion of the decrees. The said application was allowed on January 15, 1932. The amendment of the decree did not in any way alter any part of the operative or material portion of the decree. On February 13, 1932, the defendant filed ah appeal to the learned District Judge. That appeal has been dismissed by the learned Subordinate Judge, he holding that, it was filed out of time, and no case for extension of time under Section 5 of the Limitation Act had been made out. The defendant has accordingly preferred this appeal.

4. It is contended on his behalf that where a decree is amended under Section 152 of the Civil Procedure Code, the amended decree is in the eye of law the only decree in existence, it having superseded the incorrect decree. Mrs. Alice Mamud 'Hossain v. J.C. Galstaun : AIR1927Cal114 , and, therefore, the period of limitation runs from the date of the amended decree and not of the original decree. To support his contention the learned Advocate for the appellant relies; upon the cases of Aditya Kumar Bhattacharjya v. Abinas Chandra Mukherjee : AIR1931Cal323 , and Soudamini Dassi v. Nabalak Mia Bhuiya : AIR1931Cal578 . A further point has been taken that in any case the time for filing the appeal ought to have been extended under Section 5 of the Limitation Act.

5. In my judgment the first contention proceeds upon a misconception of Article 152 of the Limitation Act. The period for preferring an appeal against a decree to the Court of the District Judge is thirty days from the date of the decree. The last mentioned words do not mean the date when the decree is prepared or signed. It means the date when the judgment is delivered in accordance with the provisions of Order XX, Rule 7 of the Code of Civil Procedure. This has been settled by the Full Bench in the case of Bani Madhab Mitter v. Kali Sankar Dass 13 C. 104. Limitation for an appeal runs from the date of the judgment, but as the law requires the memorandum of appeal to be, accompanied by a copy of the decree, an appellant is entitled to take into account under Section 12 of the Limitation Act the time taken for obtaining copy of the decree, which would necessarily include the period between the date of the judgment and the date of the signing of the decree plus some time taken in the copying department of the Court. Where, thsrefore, the judgment itself stands the starting point of limitation would be date of the judgment. Cases where a review of judgment is granted wholly or in part, and thereafter the original decree is amended in conformity with the final judgment passed after review stand in my opinion on a different footing. The original judgment in the eve of law in that case is superseded by the judgment after review. Even where after the review is granted, the original judgment is not altered with the consequence that the original decree is not altered the original judgment in the eye of law is gone and the only judgment is the judgment passed after review; which in that case is a mere repetition of the original judgment. In these cases there is a fresh decree. This principle has been laid down by Sir Lawrence Jenkins in the case of Vadilal Hakamchand v. Sha Fulchand Umedram 30 B. 56 : 7 Bom. L.R. 664. This was the principle which was adopted by Suhrawardy and Costello, J.T. in Aditya Kumar Bhattacharya's case : AIR1931Cal323 , where the decree was modified on an application for review of judgment. In the case, however, where the decree or the judgment and the decree are amended on an application under Section 152 of the Code of Civil Procedure, the judgment or decree is not superseded in the eye of law and if the operative portion of the decree is modified by the correction, the amendment taken with the terms of the original decree constitute the final adjudication of the rights of the parties within the meaning of Section (2), Sub-section (2) of the Code of Civil Procedure. The time for filing the appeal runs from the date when the original judgment was pronounced and if it is filed beyond time, the time can only be extended on an application made under Section 5 of the Limitation Act. If the grounds of appeal taken, or any one of them, are intimately connected with the ground for amendment of the decree, or if the appeal is directed against the decree so far as it has been amended, the extension of time under Section 5 of the Limitation Act will be granted almost as a matter of course. If they are not so, the Court in considering the application for extention of time will have to exercise its discretion and time can be extended in a fit case. The view I am taking is amply supported, by the cases Brojalal Rai Chowdhury v. Tara Prosanna Bhattacharji 3 C.L.J. 188, Naamdra Nath Bannerjee v. Ambika Charan Chakraburty : AIR1929Cal676 and Gajadhar Singh v. Basant Lal 43 A. 380 : 61 Ind. Cas. 69 : 19 A.L.J. 152 : 3 U.P.L.R. (A) 7. In the case of Amar Chand Kundu v. Asad Ali Khan 32 C. 908 and Soudamini Disi v. Nabalak Mia Bhuiya : AIR1931Cal578 , the judgments proceeded upon two grounds, namely (1) that time for appeal would run from the date of the amended decree, and (2) that in any case time ought to have been extended under Section 5 of the Limitation Act, In the first case the decree seems to have been amended on an application under Section 203 of the Code of 1882 which corresponds to Section 152 of the present Code. No reason was given by the learned Judges for holding that time would run from the date of the amended decree. The Full Bench case of Bani Madhub Mitter v. Kali Sankar Dass : AIR1927Cal114 , was not even cited. In the second case it does not appear whether the correction was made on the basis of an application for review or on the basis of an application under Section 152 of the Code. Mr. Justice Suhrawardy in indicating that time would run from the date of the amended decree placed an amendment made as a result of an application for review and as an application made under Section 152 on the same footing, and followed Aditya Kumar Bhattacharjee's case : AIR1931Cal578 , where the amendment was made as the result of granting an application for review. In this state of the authorities I prefer to follow the principles laid down by Ashutosh Mukherjee' in Brojalal Rai Choudhury's case 3 C.L.J. 188, and by Sir George Rankin in Nagendra Nath Banerjee's case : AIR1929Cal676 ; Ind. Rul. (1930) Cal. 266 : 57 C. 549, and hold that time would run from the date when the judgment was delivered and extension of time can be got only by an application made under Section 5 of the Limitation Act. In this case from the dates. I have given and from the tact that there was no mistake in the operative part of the decree and the application for amendment, which was made after the time for appealing from the decree drawn up on September 12, 1931, had expired, did not touch the operative part, but was directed to the correction of the mistakes in the recital of the claim of the plaintiff as made in the said decree, I hold that the Court of Appeal below has rightly exercised its discretion in not extending the time under Section 5 of the Limitation Act. The result is that I uphold the judgment and decree passed by the Court of Appeal below and dismiss this appeal with costs.


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