GABRIEL CHRISTIAN Vs. CHANDRA MOHAN MISSIR

JUDGEMENT

(1.) This appeal has been dismissed as time barred and the question before us is one of limitation and whether the appellant is entitled to an allowance of time under Section 12, Lira. Act. The judgment of the trial Court was dated 6th December 1930; the decree was not signed until 13 December. Meanwhile on 10 December, the appellant applied for a copy of the judgment and decree. The copy was not ready for delivery until 15 December and the appeal was filed on 13 January. Under Art. 152 the time for lodging the appeal is 30 days from the date of the judgment. The last date for filing the appeal was the 11 January; the 12 January was a Sunday and the appeal was filed on the 13th. If the appellant is not entitled to the benefit of Art. 12 in respect of the period between judgment and his application for a copy thereof, his appeal is out of time by one day. The Subordinate Judge allowed the appellant six days from the 10th to the 15th, that is to say from the date of application for copies until the copies were delivered and declined to allow any period prior to the data of application.

(2.) The decision of the Subordinate Judge came on second appeal before one of us, Dhavle, J., and the appellant contended that a Full Bench decision of this Court in Jyotindranath Sarkar V/s. Lodna Colliery Co. Ltd. 1921 Pat 175 had virtually though not specifically, been overruled by subsequent decisions of the Privy Council. Dhavle, J., directed that the matter be heard before a larger Bench and came before the Chief Justice, Dhavle, J., and Agarwala, J. In view of the fact that the Full Bench decision referred to was decided by a Bench of five Judges, it was considered desirable that the case should be reheard before a full Court. We have heard the arguments at length and all the authorities have been cited to us. The difference of opinion has arisen over the construction of the words in Section 12, Sub-sections (2) and (3)--"the time requisite for obtaining copy of the decree appealed from" and the choice is between two alternative constructions depending upon whether (a) the proper emphasis is upon the word requisite so that the meaning is "the time which would have been necessary in any case" or (b) whether the emphasis should be upon the word obtaining with the result that the meaning is as though the words were "the time actually employed by the appellant" and hence that no time preceding the application for copies by the appellant can be considered. In our opinion the former of these alternatives is the correct construction and that it is correct is shown by the observations of their Lordships of the Judicial Committee in Jijibhoy N. Surty V/s. T.S. Chettyar Firm 1928 PC 103. The result is that no period which may be under the control of the appellant between the date upon which judgment is pronounced (which is the date of the decree under the Civil Procedure Code) and the date on which the appeal was filed can be considered as the time requisite within the meaning of Section 12. In most cases the decree of the trial Court follows upon the judgment without the parties being required to do anything in the interval; and in such cases the appellant will be entitled to the exclusion of the time between the judgment and the decree. In exceptional cases, such (for instance) as cases of partition and mesne profits, the drawing up of the final decree may depend upon the filing of the necessary stamp paper or court-fees; in such cases the execution of time in favour of the party who is to file the court-fees will depend upon the circumstances, but other parties to whom no responsibility attaches for the delay will be entitled to exclude the time.

(3.) In this case the period between the 6 December the date of delivery of the judgment and the 15 December, the date upon which the copy of the decree was delivered to the appellant was not under the control of the appellant and should be excluded in computing the period of limitation, and the appeal being filed on 13 January which was within the period of limitation thus computed was within time. To the extent that the Full Bench decision in Jyotindranath Sarkar v. Lodna Colliery Co. Ltd. 1921 Pat 175 decided that the period between the date of judgment and the application for copy of the decree can in no case be excluded it was wrongly decided. The case will be remitted to the lower Court to be dealt with on the merits. No order will be made as to costs incurred in the High Court.