CHHOTELAL KESHORAM PARTNERSHIP FIRM Vs. UNION OF INDIA

JUDGEMENT

(1.) IN second appeal No. 433 of 1961 (Chhote Lal Keshoram v. Union of India) the learned Single Judge referred the following question for the opinion of a larger bench and the then Chief Justice was pleased to constitute a Full Bench for considering the same:

(2.) THIS reference arose on the following facts. The appellant-firm sued the respondent for damage to a consignment and a decree for Rs. 8333/6/- was claimed. After a full trial, the Court of the Civil Judge, Class I, Rajnandgaon, decreed the plaintiff's claim to the extent of Rs. 4103. 20 with corresponding costs. That judgment was delivered on 16-11-1960. A formal decree was drawn up on 30-11-1960. The Union of India, which was the appellant before the first appellate court viz. , the Additional District Judge, Rajnandgaon, had already applied for a certified copy of the judgment and decree on 29-11-1960. The certified copy was delivered on 10-12-1960 and the Union of India filed an appeal on 9-1-1961. An objection was taken that the period from 17-11-1960 to 30-11-1960 could not be computed in favour of the Union of India as it was not time requisite for obtaining a certified copy vide Section 12 (2) of the Indian Limitation Act, 1908. That objection was overruled by the learned appellate Judge mainly relying on bhagwant v. Liquidator, Co-operative Society, Sarphapur, ILR (1955) Ngp 791 (FB ). The learned appellate Judge, therefore, allowed the defendant's appeal and the plaintiff filed a second appeal in this Court which came up for hearing before the learned Single Judge who has made this reference.

(3.) IT is true that in Umda v. Rupchand, AIR 1927 Ngp 1 (FB) the learned Judges of the Judicial Commissioner's Court constituting the Full Bench held that under section 12 (2) of the Indian Limitation Act, 1908, a party who had applied for a certified copy before the signing of the decree was entitled to compute the period between the delivery of the judgment and the signing of the decree as time requisite under Section 12 (2) of the Act. However, the Full Bench said that if no such application be made by a party before the signing of the decree, the party will not be entitled to such period under the said provision. However, a Full Bench of the Bombay High Court in Jayashankar Mulshankar Mehta v. Shah Mayabhai lalbhai, ILR (1952) Bom 514 - (AIR 1952 Bom 122) (FB) accepted the first proposition laid down in AIR 1927 Ngp 1 (FB) (supra), but did not accept the second proposition and a contrary opinion was expressed. This Full Bench case of the Bombay High Court was relied upon by a Full Bench of the Nagpur High Court in ILR (1955) Ngp 791 (FB) (supra), which was a case of the second type, namely, where no application had been made by the party concerned for a certified copy before the decree was signed. An application was made after a revision was filed in the High Court which was dismissed with the remark that the remedy of the appellants was to apply to the Court to draw up the decree. In spite of that fact, the learned Judges constituting the Full Bench held that the party concerned was entitled to exclude the period between the delivery of judgment and the drawing up of the decree under Section 12 (2) of the Indian Limitation Act, 1908. As such, there was certainly a conflict of views between the Full Bench case of the Nagpur judicial Commissioner's Court on the one hand and the Full Bench cases of the bombay High Court and the Nagpur High Court as regards the second type of cases, on the other hand.