Jyotindranath Sarkar And Others v. Lodna Colliery Co. Ld.

Dawson Miller, C.J:— This is an application for leave to appeal to His Majesty in Council from a decree of this court, dated the 21st June, 1920. The decree was not in fact drawn up and signed until the 18th August, 1920. The period of limitation for an application for leave to appeal to His Majesty in Council is six months from the date of the decree appealed from as provided by Article 179 of the first schedule of the Limitation Act, 1908. The six months expired on the 21st December, 1920. Up to that time no application was made by the appellant to the court to obtain a copy of the decree but on the 3rd January, 1921, he did make an application for a copy of the judgment and decree and obtained copies on the following day. His application for leave to appeal was subsequently filed on the 5th January, 1921. It is contended by the respondent that the application for leave to appeal is time-barred as the time expired on the 21st December, whereas the application was not made until the 5th January. The question depends upon whether the time between the date when the judgment was delivered and the date when the decree was actually drawn up and signed should be excluded in computing the limitation period. So far as this court is concerned the question was discussed before a Full Bench consisting of the late Chief Justice and two other Judges in the case of Ram Asray Singh v. Sheo Nandan Singh(1) and, following the case of Bani Madhub Mitter v. Matungini Dassi(2) a Full Bench ruling of the Calcutta High Court, the court decided that under section 12 of the Limitation Act, 1908, 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 presorted for appeals. The reasons given for arriving ab the decision in that case were that the matter had been decided by a Full Bench of the Calcutta High Court which previously exercised jurisdiction over the territories over which this court now has jurisdiction and the learned judges thought that decision ought therefore be followed.

2. None of the other High Courts in India have followed that decision and it has been questioned, and not uniformly followed, in the High Court of Calcutta itself. In the case of Haresh Chandra Tewary v. Chandpur Company Ld.(3) a different construction was placed upon section 12 of the Limitation Act of 1908 and the earlier Limitation Act. However that may be there seems to be some difference of opinion even in the High Court of Calcutta itself and in a recent case which came before this court on the question of leave to appeal to His Majesty in Council the Bench over which on that occasion I presided came to the conclusion that the later decision already mentioned of the Calcutta High Court ought to be followed as well as the decision of the other High Courts in India which were referred to in that judgment, and refused to extend the period of limitation by deducting the period between the delivery of judgment and the signing of the decree when the delay in signing the decree had not in fact prevented the appellant from obtaining copies. Unfortunately the Full Bench ruling of this court was not drawn to the attention of the court that gave that decision and consequently it was not referred to. I see no reason myself, dealing with the construction of section 12 of the Limitation Act, to alter the opinion that I expressed in the decision last mentioned, a decision which is not reported but was given in Privy Council Appeal No. 4 of 1920. The matter appears to me to be one of very considerable importance. It was dealt with somewhat shortly by the Full Bench decision of this Court and the decision which was there relied on has certainly not been followed by any of the other High Court in India. In the circumstances I think it is desirable that we should refer the matter to a fuller Bench in order that the question may be determined after argument in the presence of the Full Court. The questions submitted for decisions are:—

(1) Whether the ruling in Ram Asray Singh v. Sheo Nandan correctly expresses the law?

(2) Whether, where the appellant does not apply for a copy of the decree necessary to be filed with his petition for leave to appeal to His Majesty in Council until after the expiration of six months from the date of the decree appealed from as provided by Article 179 of the first schedule of the Limitation Act, 1908, the period between the delivery of judgment and the preparation and signing of the decree is to be excluded from the limitation period as being time requisite for obtaining a copy of the decree within the meaning of section 12 of the Limitation Act.

3. Opinion.—In our opinion both the questions submittal for determination to this Bench should be answered in the negative. We are agreed that 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; and further that, it the appellant does not apply for copies until after the expiration of the period prescribed by the article in the Limitation Act, provided copies were obtainable within that period, he is not entitled to deduct the time between the actual signing of the decree and the delivery of the judgment.

4. In the particular case before us, however, it appears that under the ruling of the Full Bench of this Court in Ram Asray Singh v. Sheo Nandan Singh it had been decided that the period of limitation should be calculated from the date on which the decree was actually signed. That practice has been followed until quite recently and therefore, the applicant asks us to exercise our powers under section 5 of the Limitation Act and to extend the period in the particular circumstances of the case.

5. He was in fact about a fortnight late in making his application for the copies and we think that he was misled by the practice followed in accordance with the judgment of the Full Bench of this Court and therefore that we ought to extend the period in the particular eleumstances of the case.

6. With regard to the coats of the application the applicant has lost on the main point but he has succeeded upon his application under section 5. We think in the circumstancas that the justice of the case would be met by saying that there will be no order as to cots, each party bearing his own casts of this application.

7. Reference answered in the negative.