Bhausaheb Jamburao Upadhye v. Sonubai Bhratar Jamburao Annappa Upadhye

Divatia, J.:—

This is an application by the appellant in First Appeal No. 66 of 1941 for leave to appeal to His Majesty in Council against the decree dismissing his appeal and confirming the decree of the trial Court. The opponents have taken a preliminary objection that the application is beyond time. Their contention is that the period of limitation for filing the application is 90 days under art. 179 of the First Schedule of the Limitation Act to which the petitioner is entitled to add the period requisite for obtaining copies of the judgment and decree under s. 12 of the Limitation Act. Even so, the application is beyond time. The material dates are as follows:—The judgment of this Court was given on the 12th of July 1943. The decree was drawn up by the office and signed by the Advocates on the 19th. After the bill of costs was prepared by the Registrar's office it was shown to the Advocates of both parties and signed by them on the 6th of September, and thereafter on the 8th of September the decree itself was signed by the Registrar. The petitioner applied for certified copies of the judgment and decree on the 2nd of October, i.e within the period of 90 days allowed under art. 179. The certified copy of the decree was ready on the 20th of October and the certified copy of the judgment was ready on the 4th of November. Thereafter this application was filed on the 26th of November. The Registrar's office, relying upon a recent decision of this Court in Balappa Tammanna Tammannavar v. Dyamappa Bhusappa Mallapur held that the application was in time, and thereafter it was regularly numbered and placed for admission before this Court. A rule was issued and the opponents in answer to the rule have taken this preliminary objection that the petitioner was not entitled to the benefit of the period between the passing of the decree and the signing of it, and that therefore, the application is time-barred even if he be entitled to the period between the date of his application for certified copies and the dates when they were ready. On behalf of the petitioner reliance was placed on the head-note of the decision in Balappa Tammanna Tammannavar v. Dyamappa Bhusappa Mallapur, which is as follows:—

“In presenting an appeal, the appellant is entitled to deduct from the period of limitation for filing his appeal not only the time requisite for obtaining a copy of the decree appealed against but also the time taken by the Court in signing the decree”.

We think the head-note is too wide and is not in accordance with the actual decision in the case. The appeal in that case was filed very shortly after the application for the copy of the decree. It was held that the applicant was entitled to a reasonable time to apply for a copy and that he must have known that the decree would not be drawn up for a few days and until it was drawn up, he could not get a copy of it. It was further held that the petitioner was entitled to consult his pleader as to whether a copy was necessary and whether in any event there was likely to be an appeal. It was then observed:—

“If we exclude the time between the date when the decree was pronounced and the date when it was signed, which is only fourteen days, the appeal is within time.”

This decision does not, in our opinion, lay down that in every case a party is entitled, as a matter of right, to the benefit of the interval between the passing of the decree and its being signed. All that was stated was that the party had applied for a copy within a reasonable time and that the period which elapsed between the passing of the decree and the signing of it was only 14 days, and that also being a reasonable period, that period should be included in it. For the expression “the time requisite” reliance was placed on the recent decision of the Privy Council in Jijibhoy v. Chettyar. It was held in that case that the word “requisite” in s. 12 of the Limitation Act means not only merely “required” but “properly required”, and that it throws upon the pleader or Counsel for the appellant the necessity of showing that no part of the delay beyond the prescribed period was due to his default, but he was not responsible for the time taken by the officials of the Court in preparing and issuing the two documents, viz., the copies of the decree and judgment. The expression “two documents” seems to have been construed by this Court in Balappa Tammanna v. Dyamappa Bhusapha as meaning not merely the preparation of the certified copies of the judgment and the decree but also the preparing and signing of the copy of the decree itself as also preparing a certified copy thereof. It was on that basis that it was held that the party would get the benefit of the time which was properly required for the preparation and issue of the copies. In the present case the decree was signed by the Advocate of the appellant on the 6th of September and the application for copies was not made before the 2nd of October. In our opinion this interval of time cannot be regarded as a reasonable one, and no explanation is given for the lapse of that period. But the appellant relies on an affidavit made by him in this Court to the effect that the appellant was advised by his Advocate that he was entitled as of right to the period between the drawing up of the decree and the signing of it, and that his application in that case would be in time. He says further in his affidavit that after the certified copy of the judgment was ready in November 1943, he saw his Advocate and he told him that although the Registrar's office was at one time saying that the petition was beyond time, he would show to the office that it was well within time, and in fact the learned Advocate seems to have persuaded the Registrar's office that it was within time on the strength of the decision in Balappa Tammanna v. Dyamappa Bhusapaa. It seems to us, however, that in holding that the application was within time, the Registrar's office merely relied upon the head-note in that case and not upon the actual decision. The head-note no doubt would give the idea that the parties would be entitled, as a matter of right, to the interval of time between the passing and the signing of the decree. That, however, is not the case. The Privy Council case of Jijibhoy v. Chettyar, has been construed by this Court in Balappa Tammanna's case and in our opinion the effect of the law as stated by our Court now is that having regard to the fact that some time is bound to be taken up between the passing and the signing of the decree, if the applicant waits for a reasonable time in applying for copies, he would be entitled to include that time in the period requisite under s. 12 of the Limitation Act. If, however, he waits for an unreasonable time in applying for copies, he will not be able to include that period within the requisite time. So that each case is to be decided on its own facts. In the present case, as I said, the period, between the passing of the decree and the application for the certified copies is, in our opinion, unreasonable, and therefore the petitioner would not be entitled to the benefit of that period as a matter of right.

However, treating the application as beyond time, we think that in this case there is sufficient ground for excusing delay. It seems that the delay in applying for the copies has been caused by the advice, erroneous though it was, received by the applicant from his Advocate in this Court. The learned Advocate thought that the head-note in Balappa Tammanna's case, sufficiently represented the actual decision in the case, and relying upon the head-note, he thought that he was, as a mater of right, entitled to that period. It has been laid down by the Privy Council in Sunderbai v. The Collector of Belgaum, that mistaken advice of the law by a pleader may be a sufficient cause for excusing delay, and to the same effect is another decision in Rajendra Bahadur v. Rajeshwar Bali, 276, where it is held that “mistaken advice given by a legal practitioner may in the circumstances of a particular case give rise to sufficient cause within the meaning of s. 5, Limitation Act, though there is certainly no general doctrine which saves parties from the results of wrong advice”. We think that on the facts of this case the learned Advocate on behalf of the appellant believed in good faith that on the head-note in Balappa Tammanna's case, his client was entitled to the period between the passing and the signing of the decree, and we, therefore, excuse the delay in making this application.

On the merits it is conceded on behalf of the opponents that the amount or value of the subject-matter of the suit in the Court of first instance is Rs. 10,000 and upwards and the decree from which an appeal is sought to His Majesty in Council also involves a claim or question respecting property of the amount or value of Rs. 10,000 and upwards. As there are concurrent judgments of the trial Court and this Court in appeal, there must be & substantial question of law, and in our opinion there is a substantial question of law in this case. The decision of this Court is given in accordance with the previous Full Bench decision in Balu Sakharam v. Lahoo Sambhaji, That decision, however, has been recently overruled by their Lordships of the Privy Council in Anant Bhikappa Patil v. Shankar Ramchandra Patil, and that is a substantial question of law.

Accordingly, we give to the petitioner the certificate as prayed for in terms of paragraph 8(a) of the petition. We make the rule absolute. In view of the fact that we have excused the delay, we direct that the petitioner should pay to the opponents the costs of this application.

Delay excused and certificates granted.

J.G.B