Governor-General In Council v. Jesraj Tilakchand Labhchand

1. In this appeal; a preliminary objection has been taken, namely, that the appeal is time-barred. The judgment in the first appeal was pronounced on 29th March 1946, and the appeal was preferred in the Calcutta High Court on 3rd August 1946. The decree was signed on 29th April 1946. The application for copies of the judgment and decree was made on 25th April 1946, and the copies were delivered to the appellant on 16th May 1946. On the establishment of the Assam High Court in April 1948 this appeal was transferred to this Court.

2. Under Article 156, Limitation Act, the appeal should have been preferred within 90 days of 29th March 1946, a period which expired on 28th June 1946.

3. If the time taken from the date of the application for copies of the judgment and decree, namely, 25th April 1946, to the delivery of the copies on 16th May 1946; is added to 23th June 1946, in accordance with Section 12 of the Limitation Act, the appeal should have been filed on 17th July; the appeal having been filed on 3rd August 1946, it was prima facie time-barred.

4. Mr. Medhi for the appellant has contended that the appellant is entitled not only to the period, at any rate 10 days of it, which elapsed between the date of the application for copies and their delivery, but also to the period from 29th March 1946 to 29th April 1946, during which time the decree was not signed by the first appellate Court; 90 days from 29th April 1946, would expire on 29th July 1946, and if the 10 days which he claims from 25th April 1946 to 16th May 1946, are added to the 90 days, the appeal would have been within time even if it had been filed on 8th August 1946; it was in fact filed on 3rd August 1946.

5. In support of his contention, Mr. Medhi has relied upon certain decisions of the Calcutta High Court reported in Mahoruddi Sheikh v. Safed Ali Khalifa, A.I.R (15) 1928 Cal. 103 : (105 I.C 779); Bani Madhub v. Matungini Dassi, 13 Cal. 104 (F.B); Ashutosh Roy v. Monomohan Roy, A.I.R (14) 1927 Cal. 65 : (97 I.C 539); Dwarka Das Kedar Bux v. Gajanan Jagannath, A.I.R (33) 1946 Cal. 10 : (222 I.C 475) and Sudhansu Bhusan v. Majho Bibi, 42 C.W.N 72 : (A.I.R (24) 1937 Cal. 732), in which the Calcutta High Court has consistently taken the view that the time which elapses between the pronouncement of the judgment and the signing of the decree can be properly excluded under the provisions of Section 12 of the Limitation Act as time requisite for obtaining a copy of the decree. This aspect of the case has been noticed in Chitaley's Limitation Act, Edn. 2, 1942, Vol. 3, at p. 2509, where the decisions of the various High Courts in India have been referred to. This Court had occasion to consider this question in Katimal Brahma v. Mohan Nath Nahata, A.I.R (36) 1949 Assam. 23, we took the view that the starting point for the purpose of the Limitation Act under Article 162, is the date of the pronouncement of the judgment, and not the date of the signing of the decree. Mr. Medhi has not disputed the correctness of that view, but his contention is that the Calcutta High Court has consistently taken the view that under Section 12 of the Limitation Act, the time which elapses between the date of the pronouncement of a judgment and the date of the signing of the decree, is to be excluded as time requisite for obtaining a copy of the decree.

6. With all respect to the decisions of the Calcutta High Court, to which we have referred, we are unable to persuade ourselves to agree with the view that under Section 12 of the Limitation Act, the time taken from the date of the pronouncement of the judgment to the date of the signing of the decree, can be properly excluded as time requisite for obtaining a copy of the decree. The earliest Full Bench decision of the Calcutta High Court reported in Beni Madhub v. Matungini Dassi, 13 Cal. 104, which apparently has been interpreted as authority for the proposition that the time which is taken from the date of the pronouncement of a judgment till the signing of the decree can be excluded as time requisite for obtaining a copy of the decree under Section 12 of the Limitation Act, was dissented from by a Full Bench decision of the Allahabad High Court reported in Bechi v. Ahsan Ullah Khan, 12 ALL. 461 : (1890 A.W.N 149 (F.B)). The Allahabad High Court did not accept the view that under Section 12 of the Limitation Act, the time which elapses between the date of the pronouncement of the judgment and the date of the signing of the decree, can be properly excluded as time requisite for obtaining a copy of the decree. At p. 469, Mahmood, J., delivering the judgment of the Full Bench, observed:

‘Now, in the first place, I entertain no doubt that it is necessary and indispensable for a litigant who intends to appeal from a decree which is the result of a judgment against him, and which decree mast, under the law, bear date the day on which the judgment Page: 85was pronounced to apply for a copy of the decree and, if necessary, of the judgment also, before the lapse of the period of limitation for the appeal which he intends to file, whatever that period may be. This view is amply supported by the ruling of Garth, C.J, in Ramey v. Broughton, 10 Cal. 652.’ In the case before Garth, C.J, the decree had remained unsigned for more than the period of limitation, and the appellant subsequently applied for and obtained a copy of the decree. It was contended before the learned Chief Justice on behalf of the appellant ‘that, where the decree was not drawn up and signed until after 20 days had expired from the delivery of the judgment, the 20 days ought to count from the time when the decree was made.’ In dealing with this contention Garth, C.J, said. ‘But this is directly contrary to the express language of the law. By Article 151 of the schedule to the Limitation Act, the 20 days are to be reckoned from the date of the decree; and by Section 205 of the CPC, the decree is to bear date the day on which the judgment is pronounced, so that the appeal must clearly be filed within 20 days from the day on which the judgment is pronounced.’ Garth, C.J, has also observed. ‘If the appellant had applied for a copy while the 20 days were running, he would not be barred.’”

7. In the case before us, the application for copies was made during the time when the period of limitation was running, and under S. 12, the time which the appellant was entitled to exclude was the time which elapsed between the date of the application for copies of the judgment and decree and their delivery, namely, from 25th April 1946 to 16th May 1916, and if this time is added to 28th June 1916, the appeal should have been filed on 17th July 1946.

8. But we think, having regard to tbs explanation to Section 5 of the Limitation Act, which says:

“The fact that the appellant or applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation, may be sufficient cause within the meaning of this section.”

9. The appellant must be regarded as having shown sufficient cause for not preferring the appeal within the period allowed by law. It is true the appellant had not filed a formal application under Section 5 of the Limitation Act, but we do not think that a formal application is necessary, in view of the practice of the Calcutta High Court in computing the period of limitation prescribed for appeals, in the manner indicated in a long line of decisions which lay down that the time taken between the date on which the judgment is pronounced and the date on which the decree is signed is to be excluded under Section 12 of the Limitation Act as time requisite for obtaining a copy of the decree. As this appeal was originally filed in the Calcutta High Court, the appellant was undoubtedly misled by the judgments and practice of that Court into believing that appeals filed in such circumstances as the present are within time. No formal application under Section 5 of the Limitation Act, is, therefore, necessary.

10. We accordingly decide the preliminary objection against the respondents and order that this appeal will be heard. The appeal will be set down for hearing in due course.

11. Objection disallowed.