PRADIP KUMAR KALITA Vs. HIRAN PROVA KALITA

JUDGEMENT

(1.) For computing the period of limitation for filing an appeal, whether the same starts from the date of judgment or the date of the decree appealed against is the question that is required to be answered by the Full Bench.

(2.) The aforesaid question has arisen under the following circumstances. The appellant Sri Pradip Kumar Kalita (Husband) had filed a suit for divorce against the respondent Smt. Hiran Prova Kalita (Wife) in the Court of the District Judge, Nalbari. However, the suit was dismissed vide judgment dated 9-1-95. It may be observed here that the appellant had applied for the certified copy of the judgment on 13-3-95 which was ready for delivery on 1-4-95. The decree had been signed by the trial Court (District Judge, Nalbari) on 4-4-95. From the records we find that application for getting certified copy of the decree was made on 28-2-96 and the same was ready for delivery on 4-3-96. The husband filed the First Appeal No. 24/96 in this Court on 24-4-95 along with an application under Section 5 of the Limitation Act for condonation of delay in filing the appeal. Mr. Justice V. Dutta Gyani vide judgment and order dated 28-2-96 held that no case had been made out for condonation of delay in filing the appeal and consequently dismissed the application under Section 5 of the Limitation Act. Resultantly, the F.A. No. 24/96 was also dismissed as barred by time. Against the judgment dated 28-2-96 in F.A. No. 2/96 the appellant Pradip Kumar Kalita filed L.P.A. No. 2/96 which came up for hearing before a Division Bench on 27-11-2000. The Division Bench was of the view that it need not be gone into as to whether any case for condonation of delay in filing the appeal had been made out or not, inasmuch as, according to the Division Bench the appeal had been filed within limitation by computing the period of limitation from the date of the decree. The decree having been passed on 4/04/1995 and the First Appeal having been filed on 24-4-95 was held to be within time. The Division Bench observed as under-

(3.) Pursuant to the directions of the Division Bench in LPA No. 2 of 1996 the F.A. No. 24/96 was placed for hearing before a learned single Judge (J. N. Sarma, J). It was felt by J. N. Sarma J. that what had been held by the Division Bench as observed above, was against the observations made by the Apex Court in State of U.P. v. Maharaja Narain, reported in AIR 1968 SC 960 as also the provision of Order XX, Rule 7, Code of Civil Procedure. It was observed that the matter requires consideration by a larger Bench. That is how we are seized of the matter.