Skip to content


Kedar Lal and anr. Vs. Hari Lall - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberAppeal No. 46 of 1949
Judge
Reported inAIR1952Cal176
ActsLimitation Act, 1908 - Sections 5, 12 and 12(2)
AppellantKedar Lal and anr.
RespondentHari Lall
Appellant AdvocateH.N. Sanyal and ;G.P. Kar, Advs.
Respondent AdvocateS.C. Mitra and ;K. Basu, Advs.
DispositionApplication dismissed
Cases ReferredJijibhoy N. Surty v. T. S. Chettyar Firm
Excerpt:
- .....to at least 2-1-1950 must be excluded as it was a period spent in obtaining a copy of the decree appealed from. his argument is that until the decree was signed & was ready there could be no question of obtaining a copy of the same & therefore the period taken in getting the decree in order & signed must be regarded as part of the period spent in obtaining a copy of the decree. 5. there can be no doubt whatsoever that this court is notoriously slow in drawing up the decrees & having them signed. the fault is often the fault of the parties in not filing the requisitions or supplying the necessary stamps. but i feel that a good deal of the fault lies with the court itself. be that as it may, however, the decree was not ready & a copy of the same could not be given until certainly.....
Judgment:

Harries, C.J.

1. This is an application for leave to appeal from a decree made by an Appellate Bench of this Court in an appeal from a decree made by a single Judge sitting on the Original Side. The Appellate Bench differed from the learned single Judge & eventually made a decree in favour of the plff. for Rs. 40,253/11/10. The value of the suit & the value of the proposed appeal were well over Rs. 20,000/- & the judgment of the Appellate Bench was a judgment of variance. The deft-appellants would therefore have been entitled to appeal as of right to the Supreme Court, but for the fact that the proposed respt. contends that the application for leave to appeal was barred by time.

2. The only point which have to consider is whether the application for leave to appeal is within time. Admittedly, the time for filing the application was ninety days from the date of the decree & the date of the decree is the date upon which the judgment was pronounced. Judgment was pronounced on 20-9-1949 & the appellant filed a requisition for a certified copy of the judgment of the Court below on 23-9-1949. On that date the proposed respt. also put in stamps for completion of the decree. It is to be observed that on this date the proposed appellants made no application for a certified copy of the decree. The Courts then closed for the vacation & did not re-open until 2-11-1949. On November 2, the judgment of the Appellate Court was filed, but still there was no requisition for a certified copy of the decree. In fact no requisition for a certified copy of the decree was made until 19-1-1950. Additional stamps were furnished for the certified copy of the decree on 25-1-1950 & a certified copy was made ready on 31-1-1950. The petition for leave to appeal was not filed until 14-2-1950, long after the expiry of a period of ninety days from the date of the decree.

3. The proposed appellants however contend that if Section 12, Limitation Act, is applied to this case the application must be regarded as within time. The appropriate part of Section 12 of the Limitation Act is as follows:-

'In computing the period of limitation prescribed for an appeal, an application for leave to appeal & an application for a review of judgment, the day on which the judgment complained of was pronounced, & the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed shall be excluded.'

4. The proposed appellants point out that the decree in question was not signed by the learned Judge who composed the Appellate Bench until 22-12-1949. On December 23 the Court closed for the Christmas vacation & did not reopen until 2-1-1950. The decree was not actually filed until 12-1-1950. What Mr. Sanyal on behalf of the proposed appellants argues is that the period from 20-9-1949 to at least 2-1-1950 must be excluded as it was a period spent in obtaining a copy of the decree appealed from. His argument is that until the decree was signed & was ready there could be no question of obtaining a copy of the same & therefore the period taken in getting the decree in order & signed must be regarded as part of the period spent in obtaining a copy of the decree.

5. There can be no doubt whatsoever that this Court is notoriously slow in drawing up the decrees & having them signed. The fault is often the fault of the parties in not filing the requisitions or supplying the necessary stamps. But I feel that a good deal of the fault lies with the Court itself. Be that as it may, however, the decree was not ready & a copy of the same could not be given until certainly 2-1-1950. Application was made for a certified copy on 19-1-1950.

6. It is clear that when application was made for a copy of the decree the ninety days given for appeal had elapsed; and the question arises whether or not Section 12, Limitation Act can have any operation at all, if the period of limitation has been allowed to expire before an application for the copy of the decree appealed from has been made.

7. The matter has been considered by this Court on a number of occasions. In the case of 'Harish Chandra v. Chandpur Co. Ltd.', 39 Cal 766, the precise point which arises in this case was considered & a Bench held that where the appellant to His Majesty in Council had failed to apply for a copy of the judgment & decree within the period allowed for filing the appeal, he cannot be allowed to say that he was prevented from filing the application in time by reason of the decree not being signed; & he is not entitled to ask the Court under Section 12, Limitation Act, to deduct the period between the signing of the judgment & the signing of the decree in computing the period of limitation for appeal to His Majesty in council.

8. Mr. Sanyal on behalf of the proposed appellants has asked us to deduct from the period of ninety days the period between the signing of the judgment, that is, 20-9-1949, and the signing of the decree which was 22-12-1949. This Bench decision is a clear authority for the proposition that such cannot be done. A similar question was considered by another Bench of this Court in the case of 'Nibaran Chandra v. Martin & Co.', 32. Cal L J 127. In that case it was held that in computing the time to be excluded under Section 12, Limitation Act, from a period of limitation, the time requisite for obtaining a copy does not begin until an application for a copy has been made, & an appellant is not entitled to deduct the time requiste for obtaining a copy, if the application for copy was made after the expiry of the period prescribed for appealing in the first schedule to the Limitation Act.

9. The Bench in that case also considered whether they could extend the time under Section 5 of the Limitation Act & they held that time could be extended when a litigant had been misled by a change in the practice of the Court. There has been no change in the practice of this Court for very many years & the proposed appellants in this case cannot claim that they were misled in any way by any change in the practice.

10. The matter was again considered by another Bench of this Court in the case of 'Sarat Chandra v. Upendra Nath', 54 Cal 481. In that case which was an appeal to the Appellate Bench the head-note is somewhat misleading but the decision is clear. At page 483 Rankin C. J. who delivered the Judgment of the Bench observed:

'In my opinion the decisions show that the proper way for ascertaining whether the appellant is in time is to look first at the date on which he applied for a copy. By that date so many days out of the twenty given to him by Article 151 of Sch. 1, Limitation Act, had been exhausted, & he had so many left. The time requisite for obtaining the copy begins to run in his favour from that date. But it he could and should have applied to have the order drawn up before any such application was in fact made whether by himself or any other party or, if unnecessary delay was occasioned by his conduct at any of the other points at which time was within his control, he can get no credit for the time wasted.'

11. It is clear from these observations that the time requisite for obtaining a copy begins to run in favour of the proposed appellant from the date upon which he applies for a copy. If time has already run out against the appellant, then it appears to me that he cannot rely upon Section 12, Limitation Act.

12. In the present case the ninety days had expired before application was ever made for a certified copy of the decree, & that being so it appears to me that this appeal is out of time.

13. Mr. Sanyal has contended before us that the cases of this Court require consideration by reason of an observation of Lord Phillimore, who delivered the judgment of the Judicial Committee in the case of 'Jijibhoy N. Surty v. T. S. Chettyar Firm', 55 Ind App 161. At p. 170 Lord Phillimore observed:

'The word 'requisite' is a strong word; it may be regarded as meaning something more than the word 'required'. It means 'properly required', & it throws upon the pleader or counsel for the appellant the necessity of showing that no part of the delay beyond the prescribed period is due to his default.

But for that time which is taken up by his opponent in drawing up the decree, or by the Officials of the Court in preparing & issuing the two documents he is not responsible.'

14. In this case their Lordships were not considering the point which is now before this Court. What was argued before their Lordships was that even where by a rule of a High Court a memo of appeal need not be accompanied by a copy of the decree, nevertheless the time taken for obtaining a copy would be excluded- from the period of time for filing the appeal by reason of Section 12 (2), Limitation Act. Their Lordships had to consider what the word 'requisite' meant, and though the rules of a Court made it unnecessary to file a copy of the decree nevertheless their Lordships held that a copy of the decree was requisite & the time taken in obtaining it would be excluded from the period of limitation under Section 12 of the Limitation Act.

15. There was no question in, the case before their Lordships of the period of limitations expiring before an application was made to a Court for a copy of the decree. Until application is made for such a copy there can be no question of exclusion of time & when time has elapsed it seems to me clear that the appellant cannot claim then to exclude any period. If he allows time to run then he is barred before ever he makes an application for a copy of the decree. That was the position in this case.

16. The result may be unfortunate; but it appears to me that the eases are clear.

17. It was faintly suggested that we could interfere & extend the time under Section 5 of the Limitation Act. But as I have said earlier, there has been no change in the practice of this Court & the practice & the law are or ought to be well known. It has always been held in this Court that an application for a copy must be made with despatch & unless it is made within the period of limitation, then no period can be excluded from computation by reason of Section 12. This appears to be a case of slackness in the office of the attorneys concerned & it is not a case which we could hold that there was sufficient cause & extend the time under Section 5, Limitation Act.

18. In the result, therefore, this application fails & must be dismissed with costs.

Banerjee, J.

19. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //