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Mabarek Fakir Vs. Bhuban Mohan Ghose and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in97Ind.Cas.728
AppellantMabarek Fakir
RespondentBhuban Mohan Ghose and ors.
Cases ReferredPramatha Nath Roy v. William Arthur
Excerpt:
limitation act (ix of 1908), sections 4, 5 - 'time requisitet what is. - .....were closed on the 28th october, section 4 of the limitation act provides that ' where the period of limitation prescribed for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the court re-opens.' therefore, clearly the appeal should have been preferred on the 12th of november. it was not, however, within the power of the party to file the appeal then because he had not applied for a copy of the decree. under section 12 of the limitation act he was entitled to deduct from the period the time requisite for taking a copy of the decree, or in other words to tack it on to the period of limitation. now he applied for a copy of the decree on the 3rd december, and was supplied.....
Judgment:

Cuming, J.

1. In the suit out of which this appeal arises the plaintiffs sued for a declaration of their title to and recovery of possession of a certain property. The Subordinate Judge decreed the suit in favour of the plaintiffs with the exception of plot No. 2 of the settlement map. Against this decree the defendant appealed, and the learned District Judge who heard the appeal held that it had not been brought in time and, therefore, was time-barred He further held that the appellant had not shown sufficient cause for admitling the appeal under Section 5 of the Limitation Act. The appellant has appealed to this Court and he contends that the appeal was within time.

2. Now, it would appear that the judgment in the case was delivered on the 27th of September, 1923. The decree was not actually signed until the 8th October. On the 9th of October, the Civil Courts closed for the annual vacation and they re-opened on the 12th November. The appeal was actually filed on the 10th December. A few more dates are also necessary. On the 2nd October, the appellant applied for a copy of the judgment and on the 5th October it was notified to him what folios and stamps were required. He supplied these folios and stamps on the 12th and 13th November, a copy of the judgment was actually delivered on the 13ch November. With regard to the decree, no application for a copy of it was made until the 3rd December, and the copy was supplied on the 6th December. The limitation must be taken to run from the date of the decree and the date of the decree in accordance with the provisions of the C.P.C. is the date of the judgment; therefore, the due date for filing the appeal was the 28th October. The Courts, however, were closed on the 28th October, Section 4 of the Limitation Act provides that ' where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens.' Therefore, clearly the appeal should have been preferred on the 12th of November. It was not, however, within the power of the party to file the appeal then because he had not applied for a copy of the decree. Under Section 12 of the Limitation Act he was entitled to deduct from the period the time requisite for taking a copy of the decree, or in other words to tack it on to the period of limitation. Now he applied for a copy of the decree on the 3rd December, and was supplied with a copy of the decree on the 6th December. Therefore, the time requisite for obtaining a copy of the decree was four days. If he is allowed to tack that period to the 12th November, this would bring the last date for filing the appeal to the 16th November. Therefore, clearly the apneal filed on the 10th of December, would be time-barred. If, however, (without deciding so) he is further allowed to add on the period between the delivery of judgment and the signing of the decree by the Court he would be able to add on 11 days more which would bring him to the 27th November. Mr. Dass has further contended that he is entitled also to add on the time requisite for taking a copy of the judgment. Without deciding as to whether that period is to be counted separately from the period necessary for obtaining a copy of the decree even if he is allowed to add on this period he would still be out of time. He applied for a copy of the judgment on the 2nd October, and on the 5th of October, he was informed of the necessary folios and stamps to be supplied. He did not until, apparently, the 12th November, supply the necessary folios and stamps. The copy was actually delivered on the 13th November. If, therefore, he is allowed to add five days more it would still be seen that his appeal was preferred beyond the period of limitation.

3. It is, therefore, quite clear that the appeal was time-barred and the learned Judge was quite right in dismissing the appeal.

4. The appeal, therefore, fails and is dismissed with costs.

Page, J.

5. Having regard to Section 4 of the Limitation Act it must be held that on the 12th of November, the plaintiff's right of appeal was still subsisting, and if he had presented an appeal, or had applied for a copy of the decree on that day he would have been entitled therefrom to a further period that is the time requisite for obtaining a copy of the decree, within which to present his appeal. He did not apply for a copy of the decree, however, until the 3rd December, and by that time his right of appeal had ceased to exist, for inasmuch as he had not applied for a copy of the decree on the 12th November, thereafter his right of appeal had become barred by limitation.

6. Assuming for the purpose of argument, however, that the appellant was entitled after the 12th of November to appeal within a further period requisite for obtaining a copy of the decree, in my opinion, he would still have been out of time on the 10th December, because ' no period could 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.' Pramatha Nath Roy v. William Arthur 68 Ind Cas 900, 49 L.A. 307 : 31 M.L.T. 193 : A.I.R. 1922 P.C. 352 : 4 U.P.L.R (P.C.) 103 : 43 M.L.J. 765 : 27 C.W.N. 156, 21 A.L.J. 118 : 37 C.L.J. 86, 18 L.W. 56, (1923) M.W.N. 526 : 49 C. 999 (P.C) and with reasonable diligence he would have been so able to obtain a copy of the decree long before the 10th December.

7. I agree that the appeal to the lower Court was barred by limitation and that this appeal must be dismissed.


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