GANGADHAR KARMAKAR Vs. SHEKHARBASINI DASYA

JUDGEMENT

(1.) The whole of this matter arises out of the fact that on the 21st of February 1916, when an application for a review of a certain judgment was made, the fee of Rs. 1-2-0 was paid instead of a fee of Re. 2-4-0. The first point with reference to that, which was made by the learned Vakil for the respondent, was that the Article in the Statute of Limitation says that the time is ninety days from the date of the decree, which must be taken, by reason of another provision, to be the same date as the pronouncement of the judgment. That would be so, but for the fact that Section 12 of the Limitation Act provides that in computing the period of limitation prescribed for an appeal, an application for leave to appeal as a pauper, and an application for a review of judgment (as in the case here) the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed against or sought to be reviewed shall be excluded." In my judgment, that is a specific direction which has reference not only to an appeal but to an application for a review of judgment and even though the rules do not prescribe that a copy of the decree should be attached to the application, there is this specific direction contained in the Statute that the time requisite for obtaining a copy of the decree shall be excluded; and inasmuch as the decree was not signed until the 6th of January 1916, in my opinion the period of limitation would not commence to run until at all events that day in January 1916. Consequently the payment, which was made on the 8th of March 1916, of the additional fee of Re. 1-2-0 would be within time. Therefore the first point which the learned Vakil for the respondent takes fails.

(2.) The second point is that under Chapter XI, Rule 4, of the High Court Rules, Appellate Side, the appellant, to whom was handed a certificate by the Deputy Registrar that his application was irregular ought to have moved the High Court within seven days from the date upon which the Deputy Registrar handed him the certificate. The words of the rule are, within seven days from the date of such certificate the applicant, either in person or by a Vakil or Advocate, shall present the application by way of motion in open Court to the Division Court of whose judgment a review is sought." The learned Vakil, when I asked him what was meant by the word application, agreed that that could only mean an application for review. I think that is the correct interpretation. It is clear to me that that rule was intended to apply to the case where the Deputy Registrar gives a certificate that all the proceedings were in order and not to cases where the certificate of the Deputy Registrar was to the effect that the proceedings were not in order. As was pointed out by Mr. Justice Mookerjee, if the appellant under these last mentioned circumstances came to the High Court on an application for review of judgment, he would at once be met with the answer that the High Court would not hear the application it not being in order, having regard to the certificate of the Deputy Registrar. Therefore, in my opinion, that point is not a good one. It was next argued the application should not be heard by this Court now, because the Chief Justice of this Court can only hear an application for review if it is impossible for the Court which passed the judgment to hear it, or at all events, if there is not one of the Judges who decided the appeal available for the purpose. It appears that the additional fee was not paid until the 8th of March of this year. Until then the Registrar was not in a position to certify that the proceedings were in order. Until that moment no application could be made for review of judgment and inasmuch as Mr. Justice Mullick retired from this Court on the 29th of February 1916 and Mr. Justice Holmwood went on furlough on the 10th of March, two days after this matter was put in order, there was no time to make the application to either of the Judges. I, therefore, think that the application may be made to this Court and for the reasons above mentioned it is not out of time. Asutosh Mookerjee, J.

(3.) I agree.