BHAGIRATHI PADHAN Vs. ACHUTA PADHAN

JUDGEMENT

(1.) PLAINTIFF's suit for partition was decreed on 26-9-62 by the Munsif of Angul. Defendants appellants filed Title Appeal No. 8 of 1962 in the Court of the subordinate Judge, Dhenkanal, on 29-11-62. The learned Subordinate Judge held that the appeal was barred by limitation by three days. He rejected the application under Section 5 of the Limitation Act (hereinafter referred to as the Act) for condoning the delay. Ultimately the appeal was dismissed as being barred by limitation. Against the appellate decree, the second appeal and the Civil Revision have been filed. It has been held in Civil Revision No. 34 of 1963 that a Civil Revision is not maintainable against the order dismissing the appeal as being barred by limitation as it amounts to a decree. In that view of the matter, Civil Revision No. 251/63 is dismissed as not maintainable.

(2.) THE first question for consideration is whether there was delay in filing the appeal before the Subordinate Judge. To appreciate the contention, certain dates in chronological order may be noted-29-9-62 trial Court judgment was delivered. 17-10-62 an application was filed by the appellants for copies of the judgment and decree of the trial court, 20-10-62 the decree of the trial Court was signed, on the same day assessment was made by the copying Department and the appellants were called upon to supply requisites. 23-10-62 appellants filed the requisites. 29-10-62 copy was ready for delivery. 29-11-62 title appeal 8/62 was filed in the Court of the subordinate Judge, Dhenkanal. The appeal was admitted on the same-day. 15-1-63 respondent appeared after service of notice. 22-4-63 the appeal was finally heard on this date-when it was noticed in the course of argument that the appeal was barred by limitation. On the same day a petition. was filed with the affidavit of Sri Durga-Charan bhutia, advocate for the appel-lants praying for condoning the delay. Section 12 of the Act prescribes for exclusion of time in legal proceedings. Subsection (1) lays down that in computing the period of limitation prescribed for any appeal, the day from which such period is to be reckoned shall be excluded. Under article 152 of the Act, an appeal to the Court of a District Judge under the Code of civil Procedure, 1908, is to be filed within thirty days from the date of the decree or order appealed from. So 20-10-1962 must be excluded in computing the period of limitation under Section 12 (1 ). Under Section 12 (2) of the Act, in computing the period of limitation prescribed for an appeal, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree appealed from, shall be excluded. There was conflict of authorities as to the exact connotation of the expression "the time requisite for obtaining a copy of the decree. " In Jagat Dhish v. Jawahar Lal, AIR 1961 S C 832 the conflict has been resolved. The legal position, as it stands now, may be summarised. The time to be excluded is not the time actually taken but the time properly required for obtaining a copy of the decree. An appellant need not apply for a copy of the decree, which is nonexistent and has not been prepared or signed by the Judge. The whole of the time required for preparing a decree must necessarily be excluded in all cases where the intervention of the party is not at all necessary for preparation of the decree. In cases where the intervention of the party is essential in the matter of preparation of a decree, the Court would be required to consider whether the time taken up for preparation of the decree would be attributed to the fault or negligence of the appellant. If it could be so attributed, the party would not be entitled to the exclusion under Section 12 (2) of the Act. An instance of such cases may be in the matter of preparation of final decree in a partition suit where a party is called upon to furnish the requisite stamp on which the final decree is to be engrossed. But such a question would not at all arise in' the matter of preparation of a decree which entirely depends upon the activities of the office and the Judge. Under Section 12 (2), therefore, the time between the pronouncement of the judgment and the signing of the decree must be excluded in such cases. The appellants would thus be entitled to the exclusion of time for the entire period from 29-9-62 to 20-10-62. The appeal was to be filed within 30 days from 20-1062 after excluding that date under Section 12 (1 ). The appellants are therefore entitled to further exclusion of 7 days from 23-10-62 to 29-10-62. The appeal was filed after 40 days from the date o the decree. Thus there is delay of three days. From the affidavit filed by Sri D. C. Bhutia advocate for the appellants in the lower appellate Court, it appears that this delay of three days occurred as in computing the period of limitation, he excluded the period of 3 days from 17-10-62 to 19-1062 under the impression that as the appellants applied for copies on 17-10-62, three days must also be excluded. This mistaken impression was the result of misconception of law. There cannot be double exclusion. As this period of 3 days is already comprised in the period from the date of the pronouncement of the judgment to the date of signing of the decree, appellants are not entitled to double exclusion of the over-lapped period. In Manoo Rai v. Keshwar Rai, AIR 1948 Pat 260 this question was fully discussed and there was no room for commission of such a patent mistake.

(3.) SRI D. C. Bhutia in paragraph 4 of the affidavit to the application under Section 5 of the Act stated that the delay in filing the appeal was committed by him acting on a bona fide mistake of law even after taking due caution. Mr. Mohanty contended that the advice given by Sri Bhutia would not have been given by any senior lawyer in spite of due care and caution, and, as such, it does not come within the purview of "sufficient cause" under Section 5. In support of this contention he placed strong reliance on a Division Bench decision of this Court in raja Gopal v. Dolgovinda, 25 Cut L T 315 : (AIR 1959 Orissa 31 ). The passage relied upon may be quoted :