1. The value of the property in the suit in respect of which this application is made for leave to appeal to His Majesty in Council is Rs. 21,206-10. The decisions of the two Courts are, however, concurrent and it will, therefore, be necessary for the application to satisfy us that his appeal raises a substantial question of law.
2. The question, however, which we have to determine first is whether the application has been made within the time limited by the law or whether it is barred by limitation.
3. The judgment, of this Court against which the applicant seeks to appeal, was delivered on the 7th July 1911, and the application was made on the 30th January 1912, that is to say, after an interval of six months and 23 days. The period fixed by Article 179, Schedule I of the Limitation Act (IX of 1908), within which such an application should be made, is six months from the date of the decree appealed against, and, unless the applicant is able to make out a case to avoid the bar of limitation, his application must necessarily be dismissed.
4. The case put forward by the appellant is as follows: Though the judgment of this Court was delivered on the 7th July 1911, he says that the decree, which, as required by Order XX, Rule 7, bears the same date as the judgment, was, in fact, not signed till about a month afterwards, and he has filed in support of his application an affidavit, the second paragraph of which runs as follows:
That the decree was prepared and signed by the Hon'ble Judges after about a month of the same (the date of the judgment, the 7th July 1911), and the decree, duly prepared and signed, was received by the Peshkar from the Bench Clerk on the 8th August 1911, and it was not till then that the decree was available for taking copies of the same.
5. The applicant relies on Section 12 of the Limitation Act (IX of 1908) and on the Full Bench decision of this Court, in the case of Bani Madhub Mitter v. Matungini Dasi 13 C. 104, to support the contention that the application, having been made within six months from the date when the decree was signed, was in time.
6. In dealing with the affidavit, we have to observe that it is not precise as to the date on which the decree was signed, nor does it explain the circumstances under which the decree was not available for the purpose of preparing a copy of it till the 8th August, nor what proof the applicant had that such was the fact.
7. Application for a copy of the judgment and decree was not made till the 26th January 1912, that is to say, till more than six months from the date of the judgment, and the copy was delivered the same day.
8. It cannot, therefore, be urged that in this case the applicant was prevented from obtaining a copy of the decree before the 8th August, for in fact he made no effort to obtain a copy till the 26th January following.
9. Only one day's delay having occurred in furnishing the copy of the decree, Section 12 of the Limitation Act by itself cannot assist the applicant to avoid the bar of limitation.
10. The Fall Bench decision of this Court on which the applicant relies, dealt with the question of limitation under Section 12 of the Act as affecting appeals from decrees passed by two Munsifs in 1836. In that year the corresponding provision in the old Limitation Act of 1877 did not apply to applications for leave to appeal otherwise than as a pauper, and, therefore, did not apply to applications for leave to appeal to His Majesty in Council, and the judgment of the Full Bench at the time of its delivery certainly did not, and could not be taken to, apply to such applications.
11. It must also be noticed, that before the delivery of that judgment, the date of the signing of the decree had to be entered by Judges of the lower Courts in the order-sheet in accordance with the rules of the High Court, and after that judgment had been delivered, in order to assist further the Appellate Court, instructions were issued by the High Court to the Subordinate Courts directing the Judges of those Courts to note on the decree itself the date when it was signed. In those Courts, therefore, there was and is a definite record of the date when the decree is signed.
12. In that judgment, the Full Bench held as follows:
In our opinion the fact that the decree was not in existence, that is, signed by the particular Judge, and could not, therefore, be copied until 23rd July, that, is six days after the date that it bears (i.e., the date of the judgment), entitles the appellant to ask us to deduct those six days in addition to the eight days' (delay which occurred in obtaining a copy of the decree), and thus to hold that under Section 12 (of the Limitation Act) the appeal has been presented within the prescribed period.
13. The contention advanced on behalf of the appellant is that, since Section 12 of the Limitation Act has been made applicable to applications for leave to appeal to His Majesty in Council, that decision must be taken to apply to such applications as well as to appeals against the decrees of the subordinate Civil Courts: and that it entitles the applicant, to claim a deduction of the days intervening between the delivery of judgment and the signing of the decree.' In the present case if such an allowance be made, the application would apparently be in time.
14. In the case of Bechi v. Ahsan ullah Khan 12 A. 261, a Full Bench of the Allahabad High Court, in dealing with the effect of Section 12 of the Limitation Act, held that in computing the time to be excluded under Section 12 of the Limitation Act from a period of limitation, the time requisite for obtaining a copy does not begin until an application for copies has been made. If, therefore, after judgment the decree remains unsigned, such interval is not to be excluded from the period of limitation unless, an application for copies having been made, the applicant is actually and necessarily delayed through the decree not having been signed.' Dissent was then expressed from the decision of the Fall Bench of this Court in the case of Bani Madhub Mitter v. Matungini Dasi 13 C. 104.
15. In this High Court, the practice before the passing of the new Limitation Act was in accordance with the law to apply strictly the rule of limitation and not to make any allowance for the time occupied even in obtaining copies of the decrees. Since the passing of the new Act allowance for that period must now be made, and this has been so held by this Court in Eastern Mortgage and Agency Co. Ltd. v. Purna Chandra Sarbagana 39 C. 510 : 16 Ind. Cas. 497 Infra.
16. But in this Court there is no rule providing that the dates of signing the decrees shall be noted by the Judges on them at the time of signing, so that there is in fact no definite record from which the date when a decree is signed can be accurately ' ascertained. To extend the application of the Full Bench ruling of this Court to applications for leave to appeal to His Majesty in Council, in existing circumstances, would have the result of indefinitely extending the period of limitation, for there would be no record by which its limit might be ascertained.
17. There is, too, a marked point of distinction between the facts of the case now before us and the facts of the cases which were before the Full Bench of this Court in 1886. In one of those cases, the application for copy had been made before the decree had been signed, and in both cases the applications for copies had been made before the period of appeal reckoned from the date of the judgments had expired. In the case now before us, the application for the copy of the judgment and decree was not made till after the expiry of six months from the date of the judgment, that is to say, till after the period of limitation, if reckoned from the date of the judgment, had expired.
18. The Full Bench of the Court, in dealing with the question of limitation in 1886, considered what would be the effect if the decree were not signed till after the period of limitation had expired, but did not consider what would be the effect if the appellant had taken no steps to obtain copies of the decree within the period of limitation.
19. This point was considered by the Full Bench of the Allahabad Court and appears to be of considerable importance in the appeal before us.
20. In dealing with that point, the Allahabad Court held that the appellant was only entitled to be excused under Section 12 of the Limitation Act for delay for which he was not himself responsible, and that appears to be the principle underlying that section.
21. We are not prepared to hold that the judgment of the Full Bench relied on by the appellant is a binding authority on us in the present case.
22. We are of opinion that in the present case, the applicant is not entitled to ask us under Section 12 of the Limitation Act to deduct the period which expired between the signing of the judgment and the signing of the decree because he, having failed to apply for a copy of the judgment and decree within the period of limitation, cannot be allowed to say that he was prevented from filing the application in time by reason of the fact that the decree was not signed.
23. The applicant further asks us to admit the appeal under the provisions of Section 5 of the Limitation Act. His case is that he was misled by the judgment of the Full Bench of this Court into the belief that he would be allowed, under Section l2 of the Act, to ask for a deduction of the period which elapsed between the date when the judgment was delivered and the date when the decree was signed. As this is the first occasion on which that point has been raised and there are grounds to support the contention that he was so misled, we think that, in the circumstances, we may accept this contention and under Section 5 of the Act allow an extension of the period of limitation to cover the time between the date of the judgment and the date of signing the decree. At the same time, we desire to say that we grant this concession with considerable hesitation.
24. I agree. The Fall Bench decision of the Court on the construction of Section 12 of the Limitation Act, must, I think, be distinguished on the ground that the rule which it lays down in respect of appeals from the decrees of the Subordinate Courts, is a rule which, regard being had to the circumstances and the practice here, cannot be applied to, and would surely not have been laid down by the Full Bench in connection with appeals from the decrees of this Court. For what we have to deal with under Section 12 is a matter of exact computation and the material for making the deduction prescribed by the Full Bench for the Mofussil is altogether wanting' in this Court. But the applicant may, I. think, be excused for having failed to perceive this distinction and acted on the assumption that the recent alteration in the law would have the result of giving him the benefit of the deduction. And I find that, so far as can be ascertained, to statement that the signed decree was not received from the Judges before the 8th August is correct. No doubt, it is possible that it had, nevertheless, been signed before the 30th July, in which event the time limited by law, even if calculated from the date of signing, would have expired before the present application was filed. But it is highly improbable that there was such delay and, on the whole, the case seems to me to be one in which relief may, pro hac vice, properly be given under Section 5 of the Act. The value of the subject-matter of the suit in respect of which the present application is made is over Rs. 10,000, but as the judgments of both the Courts below are concurrent, it is necessary for us to determine whether the appeal raises any substantial question of law. The learned Pleader for the opposite party has admitted that he cannot contest the assertion made by the petitioner that the proposed appeal to England involves substantial question of law.
25. We have read through the judgment of this Court and we think that there is no doubt that the proposed appeal raises an important question of law as to limitation. We find that the Judges of this Court before whom the appeal came were not of the same opinion on this point.
26. In the circumstances, we are of opinion that the case is one in which a certificate ought to be granted for leave to appeal to His Majesty in Council.