MUKUNDA RAMKRISHNA Vs. BISANSA SAKHARAMSA

JUDGEMENT

(1.) 1. We have to deal with the preliminary objection that this appeal is barred by time. The judgment of the trial Court was delivered on 29th September 1931, but the preliminary decree for partition was not signed till 3rd November 1931. The order sheet indicates that signature was delayed because the parties were uncertain whether a commissioner should be appointed or the property should be divided by agreement : the form of preliminary decree contains a paragraph relating to the appointment of a commissioner. The appellant applied for copies on 2nd January 1932 and received these copies on 9th January 1932. The appellant urges that the period between the delivery of the judgment and signature of the decree should be deducted ; if the 35 days be deducted, the appeal was presented on the last day of limitation. Section 12(2) and (3). Lim. Act, 1908, states: (2) 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. (3) Where a decree is appealed from .... the time requisite for obtaining a copy of the judgment on which it is founded shall also be excluded.

(2.) IN Seth Jagannath v. Gangaram (1900)13 CPLR 78, Ismay, J. C., held that the interval between delivery of judgment and signature of decree could not be excluded from the period of limitation prescribed for an appeal unless the preparation of the copy was actually delayed. He followed the Full Bench decision of the Allahabad High Court in Bechi v. Asanullah Khan (1890) 12 All 461, and a decision of the Bombay High Court in Yamaji v. Antaji (1899) 23 Bom 442, and dissented from the view taken by a Full Bench of the Calcutta High Court in Bani Madhub Mitter v. Matungini Dassi (1886) 13 Cal 104 (FB). In Parashram v. Likhan (1911) 7 NLR 67, Drake-Brockman, J. C., assented to this view : he thought it clear that the time requisite for obtaining a copy did not ordinarily begin till application for the copy was made. In Raghu v. Madhgia AIR 1914 Nag 60, Stanyon, A. J. C., took a similar view (pp. 14.1 and 142). The facts considered in Pandu v. Rajeshwar AIR 1924 Nag 271, were these. The trial Court passed an order, bat apparently considering that it was not a judgment did not draw up a decree. This Court was moved in revision and held that the order was in effect a judgment and should have been followed by a decree. A decree was drawn up and was attacked in appeal. Kinkhede, A.J.C., held that although limitation might ordinarily run from the date on which the judgment was pronounced, it would victimize a litigant for a Judge's failure to hold that this was the case where the decree was drawn up after the period of limitation had expired. We remark that the application of Section 5, Lim. Act, would, in our opinion, have prevented injustice.

(3.) IN Bani Madhub Hitler v. Matungini Dassi (1886) 13 Cal 104 (FB), a Full Bench of the Calcutta High Court held that the period prior to the signature of the decree must be considered part of the time requisite for obtaining a copy of the decree, since during that period an appellant could not have obtained a copy of the decree. Their Lordships of the Privy Council in Pramatha Nath Boy v. Lee AIR 1922 PC 352, had not to consider the question whether or not this decision was correct in cases where the appellant was not responsible for the delay in signing the decree. In Secy. of State v. Parijat Debi, , this question was again considered by a Calcutta Full Bench. After full consideration they adhered to the view taken in Bani Madhub Hitter v. Matungini Dassi (1886) 13 Cal 104 (FB). It was considered that the period when a decree is not in existence and could not be copied, must be deducted, whether or not an application for copy was made at a time when this application was useless. The learned Judges relied on a dictum in J.N. Surty v. T. S. Chettyar Firm AIR 1928 PC 103. Their Lordships of the Privy Council stated at p. 314, that the appellant was not responsible for the time taken up by the officials of the Court in preparing and issuing the judgment and the decree; they had previously remarked that counsel for the appellant might well want to see the form of the decree before attacking it in his memorandum of appeal. Their Lordships however were considering whether the time taken for procuring a copy of the decree should be excluded in spite of the fact that a memorandum of appeal could be presented without a copy of the decree. The application for copy of the decree had been made on the day on which the judgment was delivered and the question whether the time taken to prepare the decree should be excluded if the applicant would not in any case have taken steps to obtain a copy did not arise.