JAYASHANKAR MULSHANKAR Vs. MAYABHAI LALBHAI

JUDGEMENT

(1.) The question that we have to consider in this Full Bench is whether the time that elapses between the pronouncement of the judgment and the signing of the decree should be excluded under Section 12 (2), Limitation Act, and it it is to be excluded whether it should be excluded wholly or should be excluded under certain limitations. The facts that give rise to that Full Bench may be briefly stated. The trial Court delivered its judgment in Ahmedabad on 1.5.1918. The decree was signed on 29-6-1918. The plaintiffs filed the appeal to the District Court on 4.8.1948, and the question that arose was whether the appeal was in time. The learned District Judge took the view that the appeal wag out of time and the same view was taken by Dixit J. in second appeal. Dixit J. gave leave under the Letters Patent and the matter came before a Divisional Bench which referred the question to a Full Bench. A further fact may be stated which is also material that the plaintiffs applied in this case for certified copies of the judgment and the decree on 17.6. 1948. The certified copies were ready on 7.7.1948. The appeal would only be in time if the period between May 1 and 29-6-1948, a period of 59 days, is to be excluded. If that period is not to be excluded, then the appeal would be out of time.

(2.) Now, before considering the authorities which were cited at the bar, it would be perhaps better to look at this section itself and to see what is the true position under that section on an interpretation of that section in the light of the language used by the Legislature. Section 12 (2) provides that in computing the period of limitation prescribed for an appeal, (and I amusing the material words) the time requisite for obtaining a copy of the decree appealed from shall be excluded. It is well settled that the time requisite is not the time actually taken but it is the time properly required. The question that raises certain amount of difficulty is whether the time that is required for preparing a decree is a time of which it could be said that it is a time requisite for obtaining a copy of a decree. Two views are possible. One view is that the time taken for preparing the original, of which a copy is to be obtained, must necessarily be the time requisite for obtaining a copy of the original. This view puts greater emphasis on the expression "requisite" than on the expression "obtaining" used in this sub-section. The other view is that unless the appellant takes some step in order to obtain a copy of the decree, it could not be said that the time which expired before he took that step was a time requisite for obtaining a copy of the decree. In other words, although the decree was not ready, if the appellant did not apply for a copy, the time taken for preparing the decree could not be excluded, because the appellant had not taken any step for obtaining the decree. In our opinion, equal emphasis should be placed on both the expressions used in that sub-section. What has got to be excluded is the time which is properly required, and the time which has got to be so-excluded is the time which is necessary for obtaining a copy of the decree, It is difficult to understand why the action on the part of the appellant in applying for a copy of the decree should be a decisive factor in considering whether time should be excluded under that sub-section or not. It is also difficult to understand why an appellant should apply for a copy of a decree which is non-existent and which has not yet been prepared or signed by the Judge, It would seem that if the appellant had applied for a copy of a decree which was not ready, then the time taken up to prepare the decree would have been excluded, but merely because he did not apply for a copy that time should not be excluded. It seems to us that it is rather futile on the part of the appellant to apply for a copy when in fact the original is not ready and when in fact no copy of the original could be given to him. From this it does not follow that the whole of the time required for preparing the decree should necessarily be excluded in every case. We may have' a case where the preparation of the decree is entirely left to the Court, where the intervention of the parties is not at all necessary, and all the time spent for the preparation of the decree is the result of what the Court has got to do and the various steps that the Court has to take. In a case like this, it may be that the whole time would have to be excluded. But we may have ft case where the intervention of the party is necessary in order to prepare the decree. Various steps might have to be taken by the parties or their lawyers before a decree could be ready and before it could be signed. In a case like this, the Court would have to consider whether any of the time taken up for the preparation of the decree could be attributed to the fault or negligence of the appellant. It any of the time could be so attributed, then that time could not be excluded under Section 12 (2). A case like this frequently arises on the Original Side of that Court where decrees have got to be drawn up by solicitors, where drafts are considered, where various appointments are to be made with the Prothonotary and so on and so forth. Therefore, a question like that as to whether the whole of the time is to be excluded or not would become more material on the Original Side than perhaps on the Appellate Side where decrees are drawn up more by the Court than with the assistance of the parties or through the intervention of the parties. Even in the Districts, if it is established that by a rule or practice of the Court lawyers have to sign decrees before the draft of a decree is put up before the Judge for his signature, then if any time has been unduly taken up by the lawytra in signing thj decree, such time might have to be excluded. Therefore, apart from authorities, with which we shall presently deal, the view we take on a construction of this section is that the time properly taken for the preparation of the decree and the time which elapses between the pronouncement of the judgment and the signing of the decree should be excluded under Section 12 (2), Limitation Act. We advisedly use the word "properly" because it is not necessarily the whole of the time that must be excluded in every case. If it is established to the satisfaction of the Court that in any particular case the whole of the time was not properly required for the purpose of preparing the decree, then such time as was not properly required would not be excluded under Section 12 (2), Limitation Act.

(3.) Turning to the authorities, we have a decision of a Full Bench of this Court in Murlidhar v. Motilal, 39 Bom. L.R. 32. The question that strictly fell to be determined in that case was whether an application for a copy of a decree could be made after the period of limitation, and the Full Bench came to the conclusion that such an application could be made. Therefore, the Question that we have to consider in this Full Bench did not directly arise for decision. It will also be noticed that on a consideration of the dates mentioned the appeal in that particular case would have been in time, even if the period taken up for the preparation of the decree bad not been excluded. Therefore, this particular point was not been necessary for the determination of the question which that Full Bench actually considered and decided But there are weighty observations of the learned Chief Justice in that case to which it is necessary to refer. At p 43 the learned Chief Justice says: ''It is, no doubt, self-evident that a copy cannot be supplied of a decree which does not exist"; and later on he says (p. 43):