JUGGAN Vs. GARIB

JUDGEMENT

(1.) AGAINST the decree of the trial court dated 19th March, 1980 dismissing his suit the Plaintiff Respondent filed Civil Appeal No. 117 of 1980 before the District Judge, Azamgarh. His appeal was allowed by the IV Additional District Judge, Azamgarh, by judgment dated 21st November, 1980. Aggrieved the Defendants have preferred this second appeal.

(2.) THE Stamp Reporter has made a report that the appeal was in time upto 13th of April, 1981, i. e. was beyond time by 17 days when presented on 29th April, 1981. Counsel for the Appellants has raised an oral objection against the report of the Stamp Reporter and has urged that if the limitation was calculated properly the appeal was within time. In this connection it has been pointed out that even though the judgment was delivered by the lower appellate court on 21st November, 1980, the decree bears the date 28th November, 1980, and was actually signed on 16th December, 1980. Application for the certified copy of the decree was made on 26th November, 1980, and the copy was notified to be ready on 9th January, 1981. According to counsel since the application for copy of the decree had been filed on 26th November, 1980, i. e. before the date on which it was signed, 16th December, 1980 namely the date on which the decree was signed should have been treated by the Stamp Reporter as the starting point of limitation and not 28th November, 1980 as done by him, namely, the date of the decree as shown in the copy. In support of this submission reliance has been placed by counsel for the Appellants on Section 12 of the Limitation Act and the decision of the Supreme Court in Udayan, Chinubhai v. R.C. Bali, AIR 1977 SC 2319. According to counsel for the Appellants it has been held by the Supreme Court in Udayan Chinubhai's case (supra) that if an application for copy of the decree has been made before the preparation of the decree the period that lapsed between the pronouncement of the judgment and the signing of the decree has to be excluded in computing the limitation for an appeal.

(3.) THE Supreme Court has also held in Udayan Chinubhai's case (supra) in paragraph 24 of the report that the date of the decree is the date of the judgment under Order XX Rule 7 Code of Civil Procedure. Constructing the Explanation contained in Section 12 of the Limitation Act and after considering the legislative history and the difference of judicial opinion in regard to the interpretation of Sub -section (2) of Section 12 before the Explanation was added there to it was held in paragraph 25 of the report as follows: