TINCOWRI HALDAR Vs. NANIGOPAL MONDAL

JUDGEMENT

(1.) This appeal has been referred to tile Division Bench by Banerji J. on account of a conflict oil judicial opinion on the point that arises for consideration in this appeal. That point is whether the appeal filed by the respondent in the lower appellate court was barred by limitation. The plaintiff who is the appellant before us filed a suit for recovery of possession of 1.22 acres of land on declaration of his tenancy right under defendant No. 2. The disputed land was described in two schedules of the plaint, namely, schedules Ka and Chha. The prayer made by the plaintiff in the plaint was to the effect that the plaintiff's tenancy right might be declared under defendant No. 2 in respect of the land described in schedule Ka of the plaint. The second prayer in the plaint was that a permanent injunction might be passed against defendants Nos. 1 and 2 restraining them from exercising any act of possession in respect of the land described in schedule Ka or in the alternative if the Court comes to the conclusion that the plaintiff had been dispossessed by defendants Nos. 1 and 2 from the land described in schedule Ka a decree for khas possession might be made in favour of the plaintiff. Schedule Ka of the plaint is a part of schedule Chha. The suit was decreed by the trial court on the 31st of January, 1955, which was the date of the judgment. The decree that was drawn up in pursuance of the judgment was signed by the learned Munsif on the 5th of February, 1955. The decree, as originally drawn up, ran as follows: "In respect of the disputed land the plaintiffs tenancy right under defendant No. 2 be declared and the plaintiff do "get khas possession on eviction of the defendants." The disputed land was described in the decree in two schedules Schedule Ka consisted of 1.22 acres and schedule Chha consisted of 4.70 acres but as I have already said schedule Ka was a part of schedule Chha. There was, therefore, some ambiguity in the decree as originally drawn up. On the 1st of March, 1955, the defendants filed an application for amendment of the decree under Sections 151 and 152 of the Code of Civil Procedure by altering the description of the land in dispute. That application was allowed by the learned Munsif by an order dated the 4th of March, 1955, and it runs as follows: The relief sought by the plaintiff is in respect of the land described in schedule Ka of plaint which is only a part of the bigger Chha schedule. The plaintiffs title and possession have been decreed in respect of Ka schedule. The decree no doubt gives the impression that the plaintiff will get khas possession of Ka and Chha schedule lands. The decree should be appropriately amended in order to make it in conformity with the judgment. This is a mere clerical error. Hence ordered that the prayer be allowed. In the decree under the heading ^^nkoh** let the words ^^fuEu rilhy cM+uhrks** be described as ^^fuEu ^dk* rilhy cM+furks** and in the order portion let the words ^^ukfy'kh tfers** be described as ^^ ^dk* rilhy cM+furks ukfy'kh tfersa** The effect of the amendment, therefore, is to brine the decree in conformity with the judgment and the prayer made by the plaintiff in his plaint. In pursuance of the order made by the learned Munsif the decree was actually amended and the amendment was signed by the learned Munsif on the 7th of March, 1955. On the 4th April, 1955, the defendant filed an appeal in the court of the District Judge who registered the appeal and took up the question of limitation as a preliminary issue before admitting the appeal and giving his decision on the merits. On the 31st of May, 1955, the learned District Judge came to the conclusion that the appeal filed by the defendant was within time because, according to him, the starting point of limitation would be the date when the amended decree was signed by the learned Munsif. Thereafter the appeal was heard on the merits by the 9th Subordinate Judge at Alipur and as a result of the hearing the learned Subordinate Judge has set aside the judgment and decree made by the learned Munsif and remanded the suit to the trial court with certain directions. Against the order of remand the plaintiff has brought this appeal.

(2.) Mr. Purushottam Chatterji appearing in support of the appeal has argued that the learned District Judge erred in law in holding by his order dated the 31st of May, 1955, that the appeal presented by the defendant was within time. The period of limitation for filing an appeal in the court of a District Judge is, according to Article 152 of the Indian Limitation Act, 30 days from the date of the decree appealed from. Under Order XX, rule 7 of the Code of Civil Procedure the decree shall bear the same date as the date on which the judgment was pronounced. Mr. Chatterji's contention is that in this case limitation began to run from the 5th of February, 1955, when the original decree was signed by the learned Munsif and it is conceded by the respondent that if that is the date from which limitation runs the appeal filed by the defendant in the lower appellate court was out of time. The learned District Judge, however, took the view that the starting point of limitation is not the date on which the original decree was signed but the date on which the amended decree was signed by the trial Judge.

(3.) The first question is -- what is the date of the decree within the meaning of Article 152 of the Indian Limitation Act? It is now beyond question as a result of the decision of the Full Bench in Bani Madhub v. Matungini Dassi ILR 13 Cal 104 that the starting point of limitation is the date on which the judgment was signed by the learned Munsif, that is, the 31st of January, 1955, but since under Order XLI, rule 1 the memorandum of appeal is required to be accompanied by a copy of the judgment, the appellant is entitled to the exclusion of the time which elapses between the date of the judgment and the signing of the decree and also the time taken by the Office to prepare a copy of the decree. This is, as I understand, the effect of the decision of the Full Bench in Bani Madhub's case ILR 13 Cal 104.