KAUSHAL PRASAD Vs. MOOLCHAND ALIAS MULA AGRAWAL

JUDGEMENT

(1.) THIS appeal under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 3.3.1989 passed by Second Additional Judge, Raigarh in Civil Appeal No. 2 -B of 1988 arising out of judgment and decree dated 15.4.88 passed by 3rd Civil Judge Class -II, Raigarh in Civil Suit No. 77 -B of 1987. The Court below has dismissed the appeal filed by Defendant on the ground that it is barred by time by three days, according to the following computation made by it. The trial Court passed the decree on 15th April, 1988, the application for certified copy of the decree was filed on 20th April, 1988 and the copy was received on 3 June, 1988. The appeal was filed on 30, June, 1988. The time requisite for filing the appeal was held to be the entire time consumed between 20 April 1988 to 3 June, 1988. The Lower Appellate Court computed this time as 44 days. The appellate was required to file appeal within 30 days. The Lower appellate Court found that after excluding 44 days as time requisite, the appeal should have been filed on 74th day (30+44). The 74th day was 27 June, 1988. Thus the appeal filed on 30th June, 1988 was held to be barred by three days. It was accordingly dismissed. This Court by order dated 30.6.89 admitted the appeal and framed the following substantial question of law.

(2.) THE learned Counsel for the Appellant, Shri A.D. Deoras, at out -set argued that even according to the view taken by the Court below, the appeal could not be held to be barred by three days. It was submitted that the Court below failed to excluce two days. The day the certified copy was applied for and the day on which the copy was received have to be excluded. It excluded only one day whereas both the aforesaid days were liable to be excluded. Further the Court below did not exclude the day on which the judgment was delivered. The copying time would be 45 days, and excluding the date of delivery of judgment, the appeal would be barred by only one day. In the opinion of this Court the contention of learned Counsel appears to be correct that the last day of filing the appeal was 29th June, 1988 and not June, 30, 1988. According to the Section 12 (1) of the Limitation Act, 1963 the date from which the limitation has to be reckoned should not be counted. Section 12 (2) of that Act, inter alia, provides that for calculating the time requisite for an appeal under the Code of Civil Procedure, the day on which the judgment was delivered together with time requisite in obtaining the certified copy of the decree shall be excluded. The period for obtaining certified copy would be excluded only if it amounts to time requisite within the meaning of the Section 12 (2) of the Limitation Act, 1963. It is well settled that the words 'time requisite' mean the time properly required. It would include only that time which the Court spent in preparing the certified copy without any fault on the part of person applying for certified copy. The rules for applying for and obtaining a certified copy applicble to the Court would come into play. In this particular case there is no default of the Appellant. He is, therefore, entitled to exclude entire period for obtaining the certified copy of the decree between 20 April to 3 June 1988 (both the days inclusive). This period would be 45 days. If we exclude the day on which the judgment was delivered, the appeal filed on 30 June, 1988 was on 77th day and not on 76 day. It should have been filed on 75th day i. e. 29 June, 1988. Thus the conclusion of the Lower Appellate Court, that the appeal is barred by three days on the mode adopted by itself wrong. On its own computation, the Court below should have held that appeal is barred by one day.

(3.) THE learned Counsel for the Appellant further contended the Court below should have given the Appellant the benefit of the explanation appended to Section 12 of the Limitation Act, 1963. It was contended that in terms of the explanation itself the Appellant was entitled to exclude the time taken in the preparation of the decree after the application for certified copy was applied for. This period was to be excluded in addition to the time taken in obtaining the certified copy. The Learned Counsel for the Appellant relied upon the decision in the case of Udayan Chinubhai v. R.C. Ball reported in, AIR 1977 SC 2319. It was argued that after filing of the application for certified copy on 20th of April the Court prepared the decree on 21st of April. Thus two days have to be further excluded. It was further arggued that the Appellant should have been given an opportunity to explain the delay. The Learned Counsel for the Respondent the argument that the explanation appended to the Section 12 (ibid) could not be read in the manner suggested by the Counsel for the Appellant. It was submitted that the Appellant had already excluded April 20 and April 21 as time requisite for obtaining the certified copy. There was no scope for excluding the two days again. It was further contended that the Appellant did not file any application for condonation of delay within the Court below or in this Court and therefore there is no question of giving the Appellant further opportunity.