Manoorai v. Keshwarrai

Sinha, J.:— The question of our decision is whether the appeal was presented in time on the 14th of March, 1946.

The matter was first placed before the learned Registrar on the 27th of March last. He came to the conclusion that the appeal was time-barred on the date it was presented to the Court. As the learned Advocate for the appellants was not prepared to make an application for condonation of the delay under section 5 of the Limitation Act, the learned Registrar directed that the matter relaid before the Bench. Ultimately, the case came up before me sitting singly. Being of the opinion that the question raised involved important considerations, and the decision, whatever it might be, would affect the practice of the Court one way or the other, I directed that the matter be 1 referred to a Division Bench. It was placed before a Bench, consisting of Manohar Lall and Ray, JJ., on the 24th of July, 1946, and the Bench directed notice to issue

“to the respondents to show cause why the delay, if any, in filing the appeal should not be condoned”.

Ultimately, the matter has been placed before us, and the only question raised before us is whether the appeal was in time on the 14th of March, 1946, when the memorandum of appeal was presented to the learned Registrar. I do not find any application under section 5 of the Limitation Act containing any statement of facts which would entitle the appellants to get the delay condoned, if this Court took the view that the appeal was time-barred when presented.

It appears that the appellate judgment was pronounced on the 1st of September, 1945. The decree was not signed by the presiding officer of the Court until the 30th of November, 1945. It appears that an application for copy of the judgment and decree both was made on the 26th of September, 1945, and the copies were ready for delivery on the 6th of December, 1945, and were actually delivered to the applicant on the following day. It appears further that court-fee stamps for the memorandum of appeal and for the vakalatnama were purchased on the 14th of March, 1946, on which day the memorandum of appeal was presented to the Stamp Reporter who noted on the back of the memorandum that limitation expired on the 6th of March, 1946, as per calculation on the back of the vakalatnama. The calculation aforesaid would show that the Stamp Reporter gave ninety days to the appellants from the date of the judgment, expiring on the 30th of November, and added to that period ninety-six days for time requisite for obtaining copies, that is to say, 31 days in December, 31 days in January, 28 days in February, and 6 days in March. But it was contended before us by the learned Counsel for the appellants that, the appellants having applied on the 26th of September, 1945, for a copy each of the judgment and of the decree, which was delivered to them on the 7th of December, 1945, they should be entitled to add not only the 96 days calculated from the 1st of December, 1945, as done by the learned Stamp Reporter, but also the days between the 26th of September, 1945, and the 1st of December, 1945. If this contention is well-founded in law, then it must be held that the appeal is in time. But this contention involves the proposition that the same period, namely, between the 26th of September, 1945, and the 1st December, 1945, has to be added twice over as time requisite for obtaining the copies within the meaning of section 12 of the Limitation Act.

The question, therefore, is whether the litigant is entitled to credit for that period twice over in view of the provisions of section 12 of the Limitation Act. It has been contended on behalf of the appellants that under section 12(2) of the Act the time requisite for obtaining a copy of the decree appealed from has to be excluded, and that under sub-section (3) of that section the time requisite for obtaining a copy of the judgment has also to be similarly excluded. If the contention is well-founded, in this case the appellant would be entitled to exclude the same period twice over in calculating the time for filing the appeal. Reliance has been placed upon a decision of the Nagpur High Court in the case of Balkrishna Rajaram Modi v. Baijnath Girdharilal Tiwari in which, on a difference of opinion between the Chief Justice and another Judge constituting the Division Bench, Niyogi, J., to whom the case was referred, agreed with the Chief Justice that, if an application for copy of the judgment to be appealed from is made on the day the judgment was pronounced, that day has to be excluded twice over in competing the period of limitation for filing the appeal. In that case the learned Chief Justice observed that Limitation. Acts should be construed so as to save rather than bar a proceeding. Niyogi, J., in the course of his judgment made the following observations:—

“It may be that in an exceptional case, such as the present, one day happens to be excluded twice. However startling, fantastic or absurd it may appear to be, the Courts cannot refuse to give effect to the plain meaning of the words used by the Legislature, if it does not conflict with reason and justice. As I have indicated above, there is nothing fundamentally unjust or unreasonable in excluding the same day twice.”

That case was treated as an exceptional one in which the question of excluding one single day twice over was involved. But that argument once accepted may lead to absurdities and to results which, in my opinion, are not contemplated by section 12 of the Limitation Act, as will presently appear. It has been contended on behalf of the appellants that the period to be excluded as contemplated in the different sub-sections of section 12 is cumulative, even though some of those days may be the same days: in other words, it has been contended that the period requisite for obtaining a copy of the judgment and the period requisite for obtaining a copy of the decree appealed from should be separately calculated, and then added to the ninety days, the prescribed period for filing an appeal to this Court.

More than fifty years ago, a Full Bench of the Calcutta High Court laid it down in the case of Bani Madhub Miner v. Matingni Dasi that the period of limitation for filing an appeal should be calculated from the date on which the decree was actually signed, though under rule 7 of Order XX of the Code of Civil Procedure the decree shall bear the date on which the judgment was pronounced. That decision was not followed by the other High Courts in India. But a Full Bench of this Court in the very first year of its existence decided in the case of Ram Asray Singh v. Sheo Nandan Singh to follow the practice prevailing in the Calcutta High Court. It was laid down in that case that under section 12 of the Limitation Act an appellant is entitled to deduct the time between the delivery of judgment and the signing of the decree in computing the period of limitation prescribed for an appeal which in effect meant that the period of limitation will be calculated from the date when the decree was actually signed by the presiding officer of the Court, and not the day on which the judgment was pronounced. This practice continued until a larger Bench of this Court decided in the case of Jyotindranath Sarkar v. The Lodna Colliery Co., Ltd. that the ruling in Ram Asray Singh v. Sheo Nandan Singh did not correctly express the law. Since after that decision, the established practice of the Calcuta High Court and of this Court as recognised by the two Full Bench decisions, referred to above, was departed from, and the rule laid down that the time requisite for obtaining a copy of the decree within the meaning of section 12 of the Limitation Act does not begin until the actual application for a copy has been made. But there was a swing back to the obi practice when a Full Court (of seven Judges) decided in Gabriel Christian v. Chandra Mohan Missir that the ruling laid down by the Full Bench in Jyotindranath Sarkar v. The Lodna Colliery Co., Ltd. that the period between the date of judgment and the application for copy of the decree can in no case be excluded had been wrongly decided. In effect the Full Court restored the practice prevailing since after the decision of the Full Bench of the Calcutta High Court, referred to above, that the period between the delivery of the judgment and the signing of the decree shall be excluded in computing the period of limitation for filing an appeal from that judgment. Under Article 156 of the Limitation Act, the period of limitation for filing an appeal to the High Court except in certain specified cases is ninety days from “the date of the decree or order appealed from”. As under rule 7 of Order XX of the Code of Civil Procedure, the decree bears the date on which the judgment was pronounced, the starting point of limitation would naturally be the date the judgment was pronounced, and that was the view taken by some of the other High Courts. But this Court has ultimately come back to the old view prevailing in the Calcutta High Court that the time between the pronouncement of the judgment and the signing of the decree has to be excluded, that is to say, for all practical purposes the period of limitation has to be calculated from the date the decree is signed. This result has been arrived at by application of section 12 of the Limitation Act, read in the light of the observations of their Lordships of the Judicial Committee in the case of Surty v. Chettyar. The same case has been relied upon in this case by the learned Advocate for the appellants as supporting his contention that the same period may be given credit for twice over. That was not what was decided by their Lordships of the Judicial Committee in that case. The exact question which was before their Lordships was whether the time requisite for obtaining a copy of the decree should not be excluded even though by rule of the Court in which the matter arose the memorandum of appeal need not be accompanied by a copy of the decree. It is only by an extension of the rule laid down in section 12 of the Limitation Act that we have arrived at the conclusion reached by the Lull Court decision, referred to above, of this Court that the time requisite for obtaining a cope includes the time during which the decree had remained unsigned by the presiding officer of the Court who pronounced the judgment. We are in this case asked to extend the rule laid down in the Limitation Act further and to hold that the same period may be deducted twice over. If this contention were correct, litigants may find it easy to double the period of ninety days which the Legislature has prescribed as the maximum time during which an appeal should be presented to this Court. It is not difficult to imagine a case where, on account of a controversy as regards the true meaning of the judgment between the parties, the decree is not signed until several months after the judgment his been pronounced, and usually it takes several weeks for the presiding officer of the Court to find it feasible to sign the decree prepared by the office. The litigant may make his application for a copy of the judgment and the decree (to be signed thereafter) on the very day the judgment is pronounced, in that way the litigant may get as much as six months, or even more, for filing his appeal. Thus, virtually by accepting the appellants' contention we may give a handle to the litigants to extend the period of limitation at their own sweet will and pleasure. Hence in my opinion, unless the words of section 12, of the limitation Act are so coercive as to lead us to accept the appellants' contention, we should be very loath to come to any such conclusion. In my opinion, litigants have been given the fullest benefit of section 12 of the Limitation Act by the Full Court decision of this Court, referred to above, and we should not be a party to further extension of that rule by holding that the time spent in obtaining a copy of the judgment should be added to that extended period even if all this period overlapped the period already conceded to the litigants. If the arguments on behalf of the appellants in this case were to be accepted, the logical conclusion would be that in every case the litigant is entitled to exclude the entire period between the judgment and the signing of the decree as also the period of time spent in obtaining a copy of the judgment even though the latter period may be included in the former. Such a conclusion, in my opinion, is not warranted by the plain words of the statute.

In my opinion, there is no principle or precedent in support of such a contention. The only direct authority in support of the contention on behalf of the appellants is the decision of the Nagpur High Court, referred to above. But as against that single decision can be cited a number of other decisions which, in may opinion, have taken the more correct view of the legal position. A Division Bench of the Madras High Court in the case of Vellaiyammal Bibi v. Koolayanna Rowthan has clearly affirmed the proposition that in computing the period of limitation for filing an appeal the time taken in obtaining a copy of the judgment and the time taken in obtaining a copy of the decree must both be excluded under section 12 of the Limitation Act except where these two periods overlap each other, and that where they do overlap the common days should be excluded only once. They relied upon two previous decisions of the same Court in Raman Chetti v. Kadirvelu and Silamban Chetty v. Ramanadhan Chetty. A Division Bench of the Calcutta High Court, consisting of Mookerjee and Carnduff, JJ., has come to the same conclusion in the case of Sundar Koer v. Raghunath Sahai. The learned Judges in that case have ruled that, where the time occupied in obtaining a copy of a judgment is included in the period during, which the decree was not in existence, both the periods should not be deducted. In that case their Lordships further considered the question of whether it was a fit case in which the Court should exercise its judicial discretion in favour of condoning the delay under section 5 of the Limitation Act, and, after considering both English and Indian decisions, their Lordships held that in the circumstances of that case the delay should be condoned, inasmuch as the litigant had acted under erroneous advice given by his pleader—an advice which the Court thought, though erroneous, could have been given by an experienced practitioner. In the present case there is no application for condoning the delay nor the reasons disclosed therefor. A single Judge of the Lahore High Court has taken the same view in the case of Ata Muhammad v. Pir Khan. The facts of that case were similar to those in the case of Balkrishna Rajaram Modi v. Baijnath Girdharilal Tiwari.

In my opinion, the preponderance of authority is in favour of the view I have already indicated, namely, that the appellants are not entitled to deduct the period of time taken in obtaining a copy of the judgment appealed from in the circumstances of this case. It must, therefore, be held that the appeal is out of time.

Bennett, J.:— In my opinion, it is only because of the existence of a false method of computation, expressed by way of an addition of days, of the period of limitation fixed by section 12 of the Limitation Act, that any doubt can and has arisen as to the application of what appear to me to be the perfectly clear and straightforward provisions of that section. The question Under that section is always whether 90 days have expired from the date at which time began to run exclusive of any period or periods excluded by the provisions of the section. No question of adding days as such arises at all. It is quite immaterial whether we reckon that time begins to run at the date when judgment is delivered or at the date, when, which is necessarily a later date, the decree is signed because, although, to facilitate the business of litigants, the Courts may allow applications both for a copy of the decree and for a copy of the judgment to be put upon the file, no copy either of the decree or of the judgment can properly be demanded until the decree is signed. Were such a copy demanded before that date, the office would properly refuse on the ground that the decree had not yet been signed. The period in between the pronouncement of judgment and the signing of the decree is therefore, in any event, properly and necessarily excluded both as part of the time required for obtaining a copy of the decree and also as part of the time required for obtaining a copy of the judgment. For practical purposes, therefore, time always begins to run from the date that the decree is signed. Once time has begun to run it continues to run unless it is interrupted by an application for a copy of the decree or by an application for a copy of the judgment. Once time is interrupted by one or other or both of these applications it merely stands still and when it is standing still by reason of one such application, it continues to stand still and does not start to run backwards merely because the other application is also made. When the applications and consequent interruptions overlap, time does not begin, to run again until both of the interruptions have expired. section 12 of the Limitation Act excludes the actual periods of time which were in fact occupied by obtaining a copy of the decree and a copy of the judgment following an application therefor made in each case before the expiration of 90 uninterrupted days from the date of signature of the decree. It may well be that by making his applications consecutively within the period a party will obtain a longer delay within which to file his appeal than he would have obtained by making his applications concurrently or so that they overlap, but, that is no reason to allow a double interruption to cause time to run backwards, because the section is concerned with periods of time actually and not merely theoretically excluded.

Applying these considerations to the facts of this case, time began to run on the 30th November, 1945, but was immediately interrupted by the applications for copies of decree and judgment already allowed to be put upon the file, and began to run again when both the interruptions expired on the 6th December, 1945. The period of limitation excited 90 days thereafter on the 6th March, 1946. It follows that the appeal was out of time when it was filed on the 14th March, 1946.

K.D

Order accordingly.