DEEP CHAND Vs. BHAGO

JUDGEMENT

(1.) THIS is an application under Article 133 (1) (a) of the Constitution of India read with sections 109 and 110 and Order 45, code of Civil Procedure for leave to appeal to the Supreme court from the judgment and decree of this Court in Civil regular Second Appeal No. 913 of 1962. A preliminary objection has been raised on behalf of the respondents that the application is barred by time.

(2.) IN order to appreciate the objection, it is necessary to note the relevant dates. The judgment and decree of this court are dated 24-7-1963, An application for a copy of the Judgment was made on 1-8-1963 and the same was attested on 1110-1963. The present petition was presented to this Court on 2-1-1964. It is submitted that under S. 12 (2) of the Indian Limitation Act (IX of 1908) prior to the enforcement of the Limitation Act ( N0. 36 of 1963), time requisite for obtaining a copy of the Judgment could not be excluded in computing the period of limitation for the present application for leave of appeal and it was only the time requisite for obtaining a copy of the decree, sentence or order appealed from which could be excluded. in the instant case a copy of the decree having never been applied for, there was no question of excluding any time for the purpose of computing the period of limitation for the present application for leave to appeal. On this reasoning it is submitted that the period of limitation for the present petition actually expired on the expired on the expiry of 90 days from 24-7-1963 as required by Article 179 of the First Schedule of the Indian Limitation Act (IX of 1908 ). In support of this contention, the counsel has relied on a Bench decision of this Court in Neki v. Rup Chand, 54 Pun LR 306: (AIR 1952 Punj 367) which lays down that under S. 12 (2) of the Limitation Act (IX of 1908) in the case of an application for leave to appeal to the Supreme Court, the time requisite for obtaining a copy of the decree alone is excluded and the time requisite for obtaining a copy of the Judgment is not excluded. Support for this view has been sought in reported case form number of reported decisions including one by the lahore High Court. The same view had been taken earlier by another Bench if this court in Tej Krishen v. Delhi Cloth and General Mills Co. Ltd. , AIR 1950 EP 195. This decision was followed by the Bombay High Court in Dharwar Bank Ltd v. Vasudeorao Madhavrao Deshpande, AIR 1954 Bom 525. These two Bench decisions are binding on us. Though the petitioner's learned counsel has questioned the correctness of these decisions no cogent ground has been advanced to persuade us to have the position re-examined by a larger Bench. The petitioner has contended that the term 'decree' in S. 12 (2) of the Limitation Act of 1908 should be construed to include judgment. I am unable to agree with this bald contention particularly in view of the two Bench decisions of this Court.

(3.) REFERENCE at the bar has also been made to the amended Limitation Act No. 36 of 1963 section 12 now clearly provides for excluding the time requisite for obtaining a copy of the judgment on which the decree sought to be appealed from is founded even in computing the period of limitation for an application for leave to appeal therefrom: section 12 (2) and (3 ). In this connection the responds' learned counsel has drawn our attention to Article 132 of the present Limitation Act which reduces the period of limitation application to the High Court for a certificate of fitness to appeal to the Supreme Court to 60 days. In the previous Act, it may be observed, the period for application for leave to appeal to the Supreme Court was 90 days under Article 179. Section 30 of the current Act provides, inter alia, that notwithstanding anything contained therein, any appeal or application for which the period of limitation is shorter than the period of limitation prescribed by the indian Limitation Act 1908 may be preferred or made within a period of 90 days next after the commencement of this Act or within the period prescribed for such appeal or application by the Indian Limitation Act,1908, whichever period expires earlier. The respondents' learned counsel has submitted that if the period prescribed by the Act of 1908 has already expired before the enforcement of the act of 1963 then the current Act cannot be utilised for reviving a dead claim. The petitioner's leaned counsel has on the contrary contended that S. 30 of the current act can be applied irrespective of the fact that the period for presenting the application for leave to appeal has expired under the earlier Act and, therefore, section 12, as in force on 2-1-1964 when this petition was prescribed tot his court, would cover the case. It may be pointed out that it is agreed that the act of 1963 was enforced on 1-1-1964.