CHANABASAPPA Vs. NARASING RAO GUNDE RAO

JUDGEMENT

(1.) This second appeal raises a small but very important point of law. It relates to the interpretation of the expression 'time requisite for obtaining a copy of the decree' as mentioned in Sub-section 2 of Section 12 of the Limitation Act. The suit in this case was No. 121/1 of 1951-52 on the file of the Subordinate Judge, Gulbarga. The Judgment in that suit was delivered on 30-9-54 but the decree was actually signed as late as on 21-12-54. The appeal No. 37/4/56 was filed in the District Court of Gulbarga on .23-12-54. A preliminary objection having been raised that the appeal was barred under Art, 152 of the Limitation Act, the same was upheld by the learned District Judge and it was dismissed on 28-3-57. It is against this that the present appeal has been filed.

(2.) According to the learned District Judge, tho period of 30 days under Article 152 of the Limitation Act has to be counted from the date of the decree which means the date of the judgment ) i.e., 80-9-54. That is how the appeal is barred by time. It is urged by the learned Advocate for the appellant that, in pursuance of Rule 7 of Order XX, C. P, C. the decree has to bear the same date as the judgment. The date of signing the decree will be different. It will invariably take some time for the office of the Court to draw up a decree in terms of the judgment and to get it signed by the Judge. Order 41 rule 1 of the Civil Procedure Code requires that a copy of the decree and also of the judgment appealed from must accompany the memorandum of appeal. According to him, time required for the Court to prepare the decree and to get the signature of the Judge should be considered as part of the lime requisite for obtaining a copy of the decree under the terms of Section 12(2) of the Limitation Act. If this period is excluded, he contends the appeal is quite in time. On the other hand, the contention of the learned Advocate for the respondent is that the said term is intended to include, merely the period of time between the date of application for a copy of the decree and the date when the copy is ready for delivery. According to him, if the party wants to take the benefit under Section 12 of the Limitation Act, he must apply soon after the delivery of the judgment so that whatever time is occupied for drawing up of the decree and for getting it signed, will be covered by the period required for preparing a copy of the decree. If he fails to apply, he cannot claim the benefit of exemption under Section 12 merely by putting forth the ground that Court also took some time for preparing the decree since the latter period is not intended to be covered by Section 12.

(3.) One preliminary objection was raised by the learned Advocate for the respondent. He urges that according to Hyderabad High Court Act, an appeal like the one under consideration has to be heard by a Bench of two Judges and that a single Judge has no jurisdiction. Section 4(ii) of that Act enumerates the cases which can be heard by a single Judge, and Section 6 lays down that all other cases should be heard by a Bench. It cannot, therefore, he disputed that if the present case was heard by the Hyderabad High Court (which is now defunct), if ought to have been heard by a Bench of two Judges. It is also not disputed that, according to the Rules of practice of the High Court of Mysore, an appeal like the one under coasideration can be heard by a single Judge. What the learned Advocate for the respondent urges is that the hearing of the appeal in this High Court also must be according to the rules of Hyderabad. In support of this proposition, he relies on the provisions of Section 52 of the States Re-organisation Act 37 of 1956. This section says that the High Court of a new State shall have in respect of any part of the territory included in that new State all such original, appellate and other jurisdiction as under the law in force immediately before the appointed day is exercisable in respect of that part by any High Court in an existing State. This section merely clothes this High Court with all the powers originally enjoyed by the Hyderabad High Court. I cannot understand how it can he interpreted to mean that an appeal from that area when it is being heard by this High Court ought to be governed by the rules of procedure of that High Court. So far as the practice and procedure is concerned, there is the specific Section 54 of the States Reorganisation Act. It lays down that the practice and procedure of the corresponding State (old Mysore State) shall, with necessary modifications, apply in relation to the High Court of the New Stale of Mysore. In hearing the present appeal, the rules of practice and procedure that will apply will be those of the High Court of Mysore and not those of Hyderbad.