KANJI DEVSI SHET Vs. VELJI HARIDAS

JUDGEMENT

(1.) THE question that we have to consider on this application is whether an appeal preferred to this Court is in time. THE material dates are these. THE Court pronounced judgment on 29th September 1948. Copies were applied for of the judgment and of decree on the 11th October 1948. Copies of the judgment were furnished on 21st October 1948. THE decree was signed on 22nd October 1948, and the copy of the decree was furnished on 26th October 1948. THE appeal was preferred on 27th January 1949. Limitation would begin to run from 29th September 1948, and the last day on which the appeal could be filed would be 28th December 1948. In fact the appeal was preferred on 27th January 1949, and the question, that we have to consider is whether the appeal was in time.

(2.) NOW, under S. 12, Limitation Act, in computing the period of limitation, the time requisite for obtaining a copy of the decree is to be excluded under sub-s. (2 ). Also under sub-s. (3) the time requisite for obtaining a copy of the judgment is to be excluded. The Privy Council has construed the expression "requisite" in Jijibhoy N. Surty v. J. S. Chettyar Firm, 55 I. A. 161 : (A. I. R. (15) 1928 P. C. 103), and their Lordships have pointed out that "requisite" means something much more than required. The proper connotation of that expression is that the time indicated in these two sub-sections must be properly required before it could be excluded. It is perfectly true that the right given to the appellant to exclude these two periods contemplated by sub-ss. (2) and (3) is absolute. It is also correct that time must be excluded both for obtaining a copy of the decree and also time requisite for obtaining a copy of the judgment. But in order that an appellant should get the time excluded which falls under sub-ss. (2) and (3) the time taken for obtaining a copy of the decree ; and the time taken for obtaining a copy of the judgment must be distinct. If the time taken for obtaining a copy of the decree and the time required for obtaining a copy of the judgment is identical, then these two sub-sections do not provide that the time should be computed over again although the time is overlapping. Apart from authority - and I shall presently deal with the cases referred at the bar - this seems to be the clear construction of these two clauses of S.12. Therefore, applying that test, we have first the position that the decree was not signed till 22nd October 1948, and therefore no copy of the decree could have been supplied and the time taken between 29th September 1948, when the judgment was pronounced and 22nd October 1948, when the decree was signed must be excluded. If authority was required for the proposition, see Balappa Tammanna v. Dyamappa Bhusappa, 42 Bom. L. R. 872 : (A. I. R. (27) 1940 Bom. 415 ). The further time which has to be excluded is the four days that expired after 22nd October 1948, on which date the appellant obtained a copy of the decree. Therefore, on that basis the appeal should have been preferred by 24th January 1949, and inasmuch as it has been preferred on 27th January 1949, it is out of time by three days.

(3.) AS a matter of fact, our attention has not been drawn by Mr. Gokhale to any decision of this Court except the judgment of Dixit J. , where the question of overlapping time was considered and it was held that although the periods overlapped the appellant was entitled to the benefit of the overlapping periods. In fact, Mr. Gokhale has very fairly drawn our attention to two judgments which clearly indicate that the correct view of the law is that overlapping periods cannot be availed of by the appellant. The first is Macmillan & Co. , v. Cooper, 25 Bom. L. R. 1309 : (A. I. R. (11) 1924 Bom. 185 ). In that case the appellant applied for a certified copy of the judgment on 12th June 1923, and of the decree on 30th June 1923. Certified copies were supplied respectively on 3rd July and 8th August 1923, and the party lodged the appeal on 22nd August 1923. Shah J. , took the view that the appellant was entitled to exclusion of time from 12th June 1923 to 8th August 1923. It was suggested that he would also be entitled to exclusion of time between 30th June and 3rd July, although that period overlapped, and Shah J. , rejected that contention pointing out that that particular period could not be excluded twice over. Although in this particular case the Court held that the appeal was in time, the question of overlapping periods was considered and the view expressed as I have just indicated. The other decision is Timappa v. Manjaya, 26 Bom. L. R. 362 : (A. I. R. (11) 1924 Bom. 425 ). That is the judgment of Sir Norman Macleod, C. J. , who sat with Shah J. There the judgment was delivered on 10th August 1922, the appellant applied for a certified copy of the decree on 28th August 1922, and the copy was supplied to him on 7th September 1922. He next applied for a certified copy of the judgment on 9th September, and the copy was supplied to him on 14th September 1922, and what the Court held was that the two periods which were sought to be excluded were quite distinct and they could be excluded under S. 12, cls. 92) and (3 ). Therefore, impliedly it follows that if the two periods had been overlapping, they could not have been excluded.