STATE OF BIHAR Vs. ISMAIL

JUDGEMENT

(1.) This case has come before the Full Bench because of an order passed in it by R. K. Choudhary and G. N. Prasad, JJ., on the 8th April, 1965, to the effect that they were not in agreement with an order passed by another Division Bench of this Court on the 11th March, 1965, in First Appeal No. 325 of 1964 (Pat). The question for decision arises thus : This First Appeal (First Appeal No. 509 of 1964) was filed on the 9th November, 1964, along with First Appeal No. 510 of 1964 and was registered on the same day. The two appeals had been tiled along with one certified copy of the decree, but without any copy of the judgment, on a nominal court-fee. A certified copy of the judgment was filed on the 30th November, 1964. On the 11th December, 1964, a stamp report was made, stating that the judgment was filed on the 30th November, when the period of limitation for filing the appeal had expired. It also stated that the court-fee stamp was short by Rs. 1446.25 paise according to valuation. This slump report did not, in so many words, mention the date on which the limitation was taken to have expired, but it appears from a calculation made on the memorandum of appeal, that 12th November, 1984 was taken to be the date on which the limitation for filing the appeal had expired. Counsel for the parties in this case have proceeded on that interpretation of the stamp report. On the 17th December, 1944, the stamp report regarding shortage of court-fee stamp was listed before the Registrar of this Court, and, on the learned advocate's acceptance of the stamp report, one month's time was allowed to pay the deficit court-fee. The deficit court-fee not having been paid within the time granted by the Registrar, the matter was put up before the Court on the 25th January, 1965, when two weeks' peremptory time was granted. It appears that the deficit court-fee was deposited on the 27th January, 1965. Thereafter, the case was listed before the Registrar on the 8th February, 1965, upon an office note to the effect that the stamp report dated the 11th December, 1964 had mentioned that the appeal had become barred by limitation. On the same day, 14 days' time was allowed to the appellant to file an application for condoning the delay in filing the appeal. This application was filed on the llth February, 1965, under Section 5 of the Limitation Act, praying that the delay in filing the certified copy of the judgment with the prescribed period may be condoned by the Court. This application was admitted on the 16th February, 1965, and this is the matter which had gone before R. K. Choudhary and G. N. Prasad, JJ., on the 8th April, 1985, and which had come for final orders before us now.

(2.) It appears that the learned Additional Standing Counsel, appearing for the appellant, had argued before the Division Bench, that, in view of the order passed by a Division Bench of this Court in First Appeal No. 325 of 1964 on the 11th March, 1985, (Pat.), the limitation for filing this first appeal (First Appeal No. 509 of 1964) had not expired on the 12th November, 1964, and that the certified copy of the judgment required in this appeal had been filed within time, on the 30th November, 1964. The question that had fallen for decision in First Appeal No. 325 of 1964 (Pat.) was the interpretation of the Explanation added to Section 12 of the Limitation Act, 1963 (Act No. 38 of 1963). It is contended by the learned Standing Counsel before us that upon a correct interpretation of Section 12 of the Limitation Act, 1963 (to be referred to henceforth as the New Act), including the Explanation added to it, the limitation for filing this appeal expired sometime in December 1964, if the time requisite for obtaining a copy of the decree is rightly calculated.

(3.) Section 12 of the Indian Limitation Act, 1908 (Act 9 of 1908) and Section 12 of the New Act are quoted below for comparison:-- Old Act New Act.