Katimal Brahma v. Mohan Nath Nahata

Thadani, J.:— This is a second appeal from the judgment and decree of the learned District Judge, Assam Valley Districts, dated 22nd August 1946, who dismissed the appellant's appeal as time barred.

2. The facts material to the appeal are these: In Suit No. 2/45 for the recovery of a sum of money, the respondent obtained judgment against the appellant on 30th May 1946. With a view to filing an appeal against the judgment and decree of the trial Court, he made an application for copies of the judgment and decree on 15th June 1946. The decree was signed by the trial Judge on 1st July 1946 and the copies of the judgment and decree were made over to the appellant on 7th July 1946. The appellant filed the appeal on 14th August 1946. The appeal was set down for hearing under O. 41, R. 11 but apparently the respondents' advocate was permitted at the summary hearing to argue the question of limitation. The learned Judge after hearing the advocates dismissed the appeal as time barred.

3. Mr. Roy who appears for the appellant has contended that the appeal was instituted within time as he had applied for copies of judgment and decree on 15th June 1946 and the copies were made over to him on 7th July 1946; the time for filing an appeal began to run from the date of the signing of the decree, namely, 1st July 1946; excluding 1st July 1946, thirty days from 1st July 1946 would expire on 1st August 1946 and if the period from 15th June 1946 to 7th July 1946, namely, twenty one days is added to 1st August 1946, the date on which the appeal could have been filed was 22nd August 1946, whereas the appeal was filed on 14th August 1946.

4. The learned appellate Judge did not accept this computation of time and took the view that the time began to run from 30th May 1946 for the purpose of filing the appeal and that ordinarily the appeal should have been filed on 29th June 1946; but as the time taken for obtaining copies from 15th June 1946 to 7th July 1946—a period of some 22 days—has to be added the date on which the appeal had to be filed was in the last week of July 1946 and not 14th August 1946. In this view he dismissed the appeal as he was bound to do under the provisions of Section 3 of the Limitation Act.

5. We think the learned Judge has correctly computed the time for filing the appeal before him having regard to the provisions of Article 152, Limitation Act. Under Article 152 “an appeal to the Court of a District Judge has to be made within thirty days from the date of the decree or order appealed from.”

6. The learned Advocate for the appellant has argued that the date of the decree in this case was 1st July 1946, the date on which it was signed and sealed and that thirty days began to run from 1st July 1946 and not from 30th May 1946. This argument, we think, is based upon an erroneous interpretation of Article 152. The words “decree” in Article 152, Limitation Act has, in our view, the same meaning as in Section 2 of the CPC. A judgment in a civil suit consists of two parts (1) reasons for the decision and (2) the decision itself. Both are given on one and the same day by one document. It is true a formal decree is drawn up some time after but Article 152 does not prescribe thirty days from the date of the signing of the decree: it prescribes thirty days from the date of the decree which means the date on which the judgment is pronounced.

7. Mr. Roy has referred us to a decision of the Full Bench of the Calcutta High Court in Bani Madhub Mitter v. Matungini Dassi and Kali Shunhar Das v. Gopal Ghunder Dutt, 13 Cal. 104 as an authority for the proposition that time for filing an appeal to the District Judge begins to run from the date of the signing of the decree.

8. We have carefully read the judgment of the Full Bench but can find nothing in it to support Mr. Roys' contention. The head note to the decision reads.

“Where a suitor is unable to obtain a copy of a decree from which he desires to appeal, by reason of the decree being unsigned, he is entitled under Section 12 of the Limitation Act to deduct the time between the delivery of the judgment and that of the signing of the decree in the computing time taken in presenting his appeal”. The head note does not say or purport to say that the time for the purposes of Article 152 of the Limitation Act does not begin to run from the date of the delivery of the judgment. The decision read as a whole clearly deals with the question of exclusion of time under Section 12 of the Limitation Act. In the body of the judgment, Petheram C.J, observed.

“So that whatever may be the day on which the actual signature is made, the date of the decree, for all purposes is to be the date on which the judgment was pronounced”.

9. Mr. Roy has been unable to refer us to any decision of any other High Court which lays down that for the purposes of Article 152, Limitation Act, time begins to run from the date on which the decree is signed and not from the date on which the judgment is pronounced.

10. We agree with the decision of the appellate Court that the appeal filed before it was out of time.

11. It appears that after the learned Judge bad delivered judgment dismissing the appeal on the ground that it was time barred, an application was made to him under Section 5 of the Limitation Act. The learned Judge pointed out that the application although made on 22nd August 1916 was made after the appeal had been dismissed earlier on the same day. Mr. Roy apparently realised the difficulty in his way, but with his usual persistence argued that in the exercise of our inherent jurisdiction we should direct the lower appellate Court to admit the application made to it under Section 5 of the Limitation Act, and to give its decision on its merits.

12. In asking us to exercise our inherent powers in this amusing manner Mr. Roy apparently did not realise that he was asking us to do something which in its result would be wholly infructuous. Supposing the learned Judge allowed the application under Section 5 of the Limitation Act, on its merits, he would be confronted with his own order dismissing the appeal, an order which clearly fell within the terms of Section 3 of the Limitation Act. Obviously, he could not vacate his own order. Indeed that order is the subject-matter of the second appeal before us in which the only question we have to decide is whether the appeal filed before the learned Judge was time barred and we have already answered the question in the affirmative. The result is that the judgment and decree of the lower appellate Court is affirmed and this appeal is dismissed with costs.

Lodge, C.J:— I agree.

13. Appeal dismissed.