KAMESHAR SINGH BAHADUR Vs. KUSHESHWAR MAHTO

JUDGEMENT

(1.) This is an appeal against the decision of the District Judge of Darbhanga who decided that the appeal before him was barred by limitation. The judgment of the Munsif who tried the suit in the first instance was delivered on 6 November 1935 and the decree was signed by him on 15 November 1935. The appeal was preferred to the lower Appellate Court on 13 December 1935. In the meantime the appellant, of course, had applied for a copy of the decree on 9 December 1935 and obtained it on the 12th. It will be seen that from 6 November when the trial Judge delivered his judgment till 13 December when the appeal was presented before the lower Appellate Court a period of thirty-seven days had elapsed and the appellant was at least seven days out of time on those dates. Section 12, Limitation Act, excludes the first day which in this case was 6th November 1935 and that is why I have given the total period between the date of judgment and the date of filing the appeal as thirty-seven days. Under Sub-section (2), Section 12, the time requisite for obtaining a copy of the decree is to be excluded. In this case that time was four days including the date of the application, i. e. from 9 to 12 December. Taking that period as three days it is to be excluded from the period of limitation when that period comes to be computed.

(2.) The words in the Act are in computing the period of limitation and it seems to me quite clear therefore that when you take the thirty-seven days, you must deduct or exclude those days which were requisite for obtaining a copy of the decree. Three days thus being deducted the total period comes down to thirty-four days. But the Full Bench decision to which a reference has been made in the decision of the District Judge in Gabriel Christian V/s. Chandra Mohan A.I.R (1936) Pat. 45 has decided that the period between the date of the judgment and the date when the decree is prepared, that being the time not within the control of the appellant, is also to be excluded: in other words, that period I should be included in the period requisite for taking a copy of the decree. That makes the period at least ten or twelve days. Even if we take the first period alone (which is nine days) and subtract that from thirty-seven days, it will bring the appeal within time and the decision of the learned] District Judge is erroneous.

(3.) Mr. A.C. Roy on behalf of the respondents contends that the period between 6 November, when the judgment was delivered, and 15 November, when the decree was signed, cannot be excluded if the appellant did not apply for a copy of the decree within the period of limitation. That argument in my judgment has no foundation under the authority. The case relied upon is the Pull Bench decision in Jyotindra Nath V/s. Lodna Colliery Co. Ltd. A.I.R (1921) Pat. 175. But it is to be remembered that the Full Bench decision stated that in so far as the earlier Pull Bench decided that the period between the date of the judgment and the. date of the application for the copy of the decree can in no case be excluded, it was wrongly decided. But it must not be understood that the Pull Bench decision to which I was a party meant that the earlier Full Bench decision was otherwise correct or that it decided any other question. The words used by the learned Judges including myself in the Full Bench decision were guarded words to prevent the Pull Bench-decision from being held to decide anything other than the particular question that was before it. When we came to look at the earlier Full Bench decision we could see what the learned Judges in that case decided. The question which was connected with the point which was argued before us was in this form: Whether where the appellant does not apply for the copy of the decree necessary to be filed until the expiration of six months, the period between, the delivery of the judgment and the preparation and the signing of the decree is to be excluded?