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Sarat Chandra Nag v. Rati Kanta Polley
Factual and Procedural Background
The defendants were members of an undivided family who occupied a dwelling house. A stranger to the family (the plaintiff) acquired a share in that dwelling house and instituted a suit for partition, which resulted in a decree for partition. Defendant No. 1 appealed from that decree; although various grounds were mentioned, the only question argued related to the right claimed by Defendant No. 1 under section 4 of the Partition Act (the right of a coparcener to purchase a share acquired by a stranger).
The plaintiff resisted the appeal on two principal grounds: (1) that the appeal was incompetent because the memorandum of appeal was not accompanied by a copy of the trial Court's judgment; and (2) that the appeal was barred by limitation. The learned Additional District Judge rejected the plaintiff's points, allowed the appeal and remanded the case to the trial Court for action under section 4 of the Partition Act. The plaintiff appealed that decision to this Court, pressing the same two points.
Legal Issues Presented
- Whether the appeal before the Additional District Judge was incompetent because the memorandum of appeal was not accompanied by a copy of the judgment of the trial Court (in light of Order 41, Rule 1, Code of Civil Procedure).
- Whether the appeal in the Court below was barred by limitation — specifically, whether the period between the delivery/signing of the judgment and the subsequent signing of the decree may be excluded when computing the time for filing an appeal (reference to Section 12 of the Limitation Act and the effect of obtaining a copy of the decree).
Arguments of the Parties
Appellant's Arguments (the plaintiff who appealed to this Court)
- The appeal below was incompetent because the memorandum of appeal was not accompanied by a copy of the judgment of the trial Court, and there was no recorded dispensation by the Court under Order 41, Rule 1, C.P.C.
- The appeal was barred by limitation. The appellant argued that because the application for a copy of the decree was made after the period of limitation had already expired (the application was made about two months after the judgment was signed), the appeal could not be revived by subsequently applying for a copy of the decree.
Respondent's Arguments (parties defending the order of the Additional District Judge)
- The Court should presume that the Appellate Court dispensed with the filing of the judgment when admitting the appeal (relying on the presumption omnia presumuntur rite acta esse — all things are presumed to have been done rightly).
- The absence of a written order dispensing with the judgment does not necessarily show that no dispensation was granted; in the circumstances (a Sec. 4 Partition Act question) the judgment of the trial Court was unnecessary for the appellate determination, so dispensation would properly have been granted.
- On limitation, reliance was placed on the Full Bench decision in Bani Madhub Mitter v. Kali Sunkar Das and subsequent cases to the effect that the time between signature/delivery of judgment and subsequent signing of the decree can be excluded under Section 12 of the Limitation Act; the appellant should therefore be entitled to deduct that period, so the appeal is within time.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Bani Madhub Mitter v. Kali Sunkar Das (Full Bench) | The Full Bench decided that a suitor is entitled under Section 12 of the Limitation Act to deduct the time between the delivery/signing of the judgment and the signing of the decree when computing time for presenting an appeal. | The Court relied on this Full Bench principle and followed the uniform practice of deducting the period between judgment and decree, holding that the appeal was not barred by limitation. |
| Harish Chandra Tewary v. Chandpur Company, Ltd. | In that case the period between signing of judgment and signing of decree was not allowed to be excluded for appeals to the Privy Council, partly because the date of signing the decree was not consistently recorded in this Court at that time. | The Court distinguished that case on the ground that in the Mofussil Courts (unlike the High Court historical practice referred to in that case) the date of signing the decree is definitely ascertainable; therefore that decision did not apply to the present facts. |
| Rajani Kanta Kapali v. Kali Mohan Das Kapali | Decision that the period between signing of the judgment and signing of the decree should be excluded when computing limitation; the application for a copy of the decree may be made after signing of the decree and the exclusion is still appropriate. | The Court cited this case as supporting the exclusion of the period between judgment and decree and as authority inconsistent with the appellant's attempt to distinguish the Full Bench rule. |
| Sudhansu Bhuean Pandey v. Majho Bibi | Held that an appellant was entitled to the benefit of excluding the period between signing of the judgment and signing of the decree even though he made no application for a copy of the judgment within 30 days of signing thereof. | The Court relied on this decision as further support for the conclusion that the period between judgment and decree should be excluded and that doing so was consistent with established practice. |
Court's Reasoning and Analysis
The Court addressed the two issues in turn and applied statutory rules, procedural provisions and precedent to the facts as follows.
1. Competence of the appeal (absence of a copy of the judgment with the memorandum)
- The Court began with Order 41, Rule 1, Code of Civil Procedure, which requires that a memorandum of appeal be accompanied by a copy of the decree and, unless the Appellate Court dispenses therewith, a copy of the judgment on which it is founded.
- The Court distinguished between the requirement to file the decree (which is mandatory and cannot be dispensed with) and the filing of the judgment (which the Appellate Court may dispense with in a fit case).
- There was no written order expressly dispensing with the judgment in this case, and the lower Appellate Judge's notes did not contain a detailed finding. The lower Judge did, however, indicate that although no specific order was passed, dispensation might be deemed to have been given in the circumstances.
- Applying the presumption omnia presumuntur rite acta esse (that official acts are presumed to have been done rightly), and considering that reference to the trial judgment was unnecessary for deciding the Sec. 4 Partition Act question (the right of a coparcener to purchase a share acquired by a stranger), the Court inferred that dispensation was in fact granted when the appeal was admitted.
- Because the judgment was unnecessary for deciding the specific question the appeal raised, the Court concluded that no recorded order dispensing with the judgment was essential to validate the appeal; therefore the appeal in the Court below was not incompetent for want of the judgment copy.
2. Limitation
- The Court set out the relevant chronology: judgment signed 5-6-1936; decree signed 8-8-1936; application for a copy of the decree made 10-8-1936; copy supplied 17-8-1936; appeal filed 3-9-1936. The pivotal question was whether the period between 5-6-1936 and 8-8-1936 (between judgment and decree) should be excluded in computing the limitation period.
- The Court relied on the Full Bench decision in Bani Madhub Mitter v. Kali Sunkar Das, which held that Section 12 of the Limitation Act permits deduction of the time requisite for obtaining a copy of the decree, and that it would be unfair to compute limitation strictly from the date of judgment because no decree existed until signed.
- The appellant attempted to distinguish that Full Bench decision on the ground that, in the present case, the application for a copy of the decree was made after the lapse of the 30-day limitation period — i.e., that the appeal was already barred before the application. The Court rejected this argument as unsound, finding it would be absurd to expect application for a copy of a decree before it came into existence.
- The Court discussed Harish Chandra Tewary v. Chandpur Company, Ltd., noting that in that case exclusion was not allowed for appeals to the Privy Council because the date of signing the decree was not always ascertainable in this Court. The Court held that distinction did not apply to the present case because, in the Mofussil Courts, the date of signing the decree is recorded and ascertainable.
- The Court also cited Rajani Kanta Kapali and Sudhansu Bhuean Pandey as decisions supporting the exclusion of the period between judgment and decree, including situations where an application for copy was not made within 30 days. The Court noted the uniform practice of deducting this period since the Full Bench decision and saw no reason to depart from it ("Cursus curiae est lex curiae").
- Accordingly, the Court held that the period between the signing of the judgment and the signing of the decree should be excluded in computing limitation; on that basis, the appeal in the Court below was not barred by limitation.
Holding and Implications
Holding: The Court dismissed the plaintiff's appeal and upheld the decree of the Court below.
Implications:
- The lower Appellate Court's decision — which allowed Defendant No. 1's appeal and remanded the matter to the trial Court for action under section 4 of the Partition Act — stands. The plaintiff's challenge to that ruling (on grounds of incompetence of the appeal and bar by limitation) was rejected.
- The Court affirmed the application of the Full Bench principle that the period between the signing of the judgment and the signing of the decree may be excluded under Section 12 of the Limitation Act when computing the time for filing an appeal, and it followed the established practice in that respect.
- The appeal was dismissed with costs. The opinion applies existing authorities rather than announcing a novel legal doctrine; it follows prior Full Bench and subsequent decisions in declining to depart from the established approach to exclusion of the judgment-to-decree period.
End of summary based exclusively on the provided opinion.
The Judgment of the Court was as follows:—
The Defendants are the members of an undivided family who possessed a dwelling house in which they resided. The Plaintiff, who is a stranger to the family, acquired a share in this dwelling house and then brought this suit for partition. A decree for partition, was made. The Defendant No. 1 appealed from that decree and although there were other grounds taken in the memorandum of appeal, the only question canvassed related to the right which the Defendant No. 1 claimed by virtue of the provisions of sec. 4 of the Partition Act. The Defendant No. 1 pointed out that the dwelling house belonged to an undivided family and that the Plaintiff who was not a member of the family had acquired a share in that dwelling house. He contended that he was entitled as a member of the family to buy the share of the Plaintiff. The Plaintiff resisted the appeal on certain grounds of which two only fall for consideration in this Court. He contended first that the appeal had been filed without a copy of the judgment of the trial Court and that therefore the appeal was incompetent. Secondly, he contended that the appeal was barred by limitation. The learned Additional District Judge held against the Plaintiff Respondent on both the points and allowed the appeal. The case was remanded to the trial Court for taking action under sec. 4 of the Partition Act. Against this decision the Plaintiff appeals. The same two points are taken in this Court.
I shall take up for consideration first the question whether the appeal before the Additional District Judge, was incompetent by reason of the fact that no copy of the judgment of the trial Court had been filed with the memorandum of appeal. The judgment undoubtedly has not been filed. The point for consideration is whether this renders the appeal incompetent. Or. 41, r. 1 of the Code of Civil Procedure is as follows:—
“Every appeal shall be preferred in the form of a memorandum signed by the Appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded.”
It is clear from the provisions of this rule that an Appellant must file with his memorandum of appeal the decree and ordinarily also the judgment on which the decree is founded. As regards the judgment, the Court may, in a fit case, dispense with the filing of it, but with respect to the filing of the decree the Court has no such power.
It is argued on behalf of the Appellant that as there has been no dispensation given by the Court in this case, the failure to file the judgment with the memorandum of appeal renders the appeal incompetent. It would be better to determine first the facts and then consider the application of the law on the point. Did the Court dispense with the filing of the judgment and if so when was this dispensation given? There is no written order dispensing with the judgment, nor is there a very definite finding of the lower Appellate Court on this point. The learned Judge dealing with the provisions of Or. 41, r. 1 of the Code of Civil Procedure says this:
“There is a provision then that the Appellate Court can dispence with the filing of the copy, and, though no specific order was passed on the subject it may be deemed in the circumstances to have so dispensed with the filing.”
The Appellant contends that this is not a finding that dispensation had been granted. On behalf of the Respondent the argument is that it should be presumed that the Court acted legally and that it dispensed with the filing of the judgment. The principle “Omnia prsesumuntur rite acta esse” is relied upon. In my opinion, in the circumstances of this case, I think that I would be right in presuming that dispensation was given at the time the appeal was filed. There can be no doubt that a reference to the judgment of the trial Court was entirely unnecessary for the determination of the question involved under sec. 4 of the Partition Act. The Appellant wanted merely to exercise his right of purchasing the share acquired by a stranger to the family. This right was not asserted or refused in the Court of first instance and the judgment of the trial Court which did not deal with this question was not required for consideration by the Appellate Court. No Court in chese circumstances would refuse to dispense with the filing of the judgment. Or. 41, r. 1 does not say that the Court must record an order dispensing with the judgment. The absence of a recorded order does not therefore necessarily show that no order was passed. In view of the principle “omnia prxsumuntur rite, acta esse” and in view of the fact that dispensation would most certainly be granted in a case of this description, I hold that the Court did grant dispensation at the time of admitting the appeal. In this view it is unnecessary for me to deal with the different cases which were placed before me by either side on this point. The appeal in the Court below was not incompetent by reason of the fact that the judgment did not accompany the memorandum of appeal.
The next point taken by the Appellant is that the appeal in the Court below was barred by limitation. The judgment was signed on 5-6-’36, the decree was signed on 8-8-’36; application for a copy of the decree was made on 10-8-’36, the copy was supplied on 17-8-’36 and the appeal was filed on 3-9-’36. Now unquestionably the Appellant will be allowed the period between 10-8-’36 and 17-8-’36 as being requisite for obtaining a copy of the decree. The question is whether he should be allowed the period between 5-6-’36 when the judgment was signed and 8-8-’36 when the decree was signed as being a period requisite for obtaining a copy of the decree. If he is not allowed this period the appeal is undoubtedly barred by limitation, if he is allowed this period the appeal is within time.
Now so far as this Court is concerned, the Full Bench in the case of Bani Madhub Mitter v. Kali Sunkar Das has decided that a suitor is entitled under sec. 12 of the Limitation Act to deduct the time between the delivery of the judgment and the signing the decree in computing the time taken in presenting his appeal. On behalf of the Appellant, the present case is sought to be distinguished from the case which was the subject of the decision of the Full Bench in the following way. In the Full Bench case the application for a copy of the decree was made within 30 days of the passing of the judgment, i.e, within the period of limitation fixed for the appeal whereas in the present case the application for a copy of the decree was made about two months after the signing of the judgment. It is argued by learned Advocate for the Appellant that the appeal being already barred by limitation before a copy was applied for, the appeal could not be revived by an application for a copy. In my opinion, this argument is unsound. The Full Bench decided that a person cannot be expected to apply for a copy of the decree until the decree had been signed inasmuch as there was no decree in existence till it was signed. It also pointed out that any other interpretation of sec. 12 of the Limitation Act would result in grave injustice. It will be useful to quote the observations of the learned Judges regarding this aspect of the question. This is what they say:
“Bearing that in mind and also bearing in mind that under sec. 511 of the Code of Civil Procedure, it is necessary that the memorandum of appeal shall be accompanied with a copy of the decree, it would be unfair to compute the period of limitation, in all cases, from the date on which the judgment was delivered, because it is obvious that things may intervene so as to prevent the decree being signed until after the expiration of the whole period of 50 days allowed for preferring the appeal and so the appeal may be rendered impossible without any fault of the parties; and therefore sec. 12 of the Act provides that in computing this period of 30, days, the time requisite for obtaining a copy of the decree appealed against shall be excluded; and the question really in this case is, what is the meaning of these words.”
This is exactly what has happened here. The decree was not signed till about two months after the signing of the judgment. I think it would be absurd to expect the Appellant to apply for a copy of the decree before it came into existence. Learned Advocate for the Appellant referred me to the case of Harish Chandra Tewary v. Ckandpur Company, Ltd. , when the time between the signing of the judgment and the signing of the decree was not allowed. The reason for not allowing this time is given in the judgment. This was a case of an appeal from the decision of this Court to the Judicial Committee of the Privy Council. At that time in this Court it was not possible to calculate the period between the signing of the judgment and the signing of the decree as the date of signing the decree used not to be put on the decree. In the Mofussil Courts it was and is obligatory for the Court to state both in the order-sheet and on the decree itself the date on which it was signed, so that the period between the signing of the judgment and the signing of the decree is definitely ascertainable. In this Court, it was not always possible to ascertain this period. For this reason the learned Judges in the case of Harish Chandra Tewary v. Chamdpur Company, Ltd. held that the Full Bench decision was not applicable to appeals to His Majesty in Council. It is true that there is an observation of Brett, J., to the effect that the Full Bench decision was also distinguishable on the ground that in the Full Bench case the application for copy was made within the period of limitation reckoned from, the date of the judgment whereas in the case under decision the application was made after the expiry of that period. This is an “obiter dicta” and it finds no place in the reasons given by the other learned Judge Carnduft, J. Both the Judges in holding that the rule laid down by the Full Bench regarding the exclusion of the period between the signing of the judgment and the decree was not applicable based their decision on the ground that it was not possible to ascertain this period in the case of judgments and decree passed by the High Court. In this connection I would refer to the case of Rajani Kanta Kapali v. Kali Mohan Das Kapali . In this case the application for a copy of the decree was made after the expiry of the period of 30 days from the signing of the judgment. The learned Judges decided however that the period between the signing of the judgment and the signing of the decree should be excluded. A distinction was sought to be made by learned Advocate for the Appellant because in that case an application for a copy of the judgment had been made within the period of 30 days. I do not think that this distinction makes any difference in principle. I would also refer to the case of Sudhansu Bhuean Pandey v. Majho Bibi in which this very point was considered and decided. It was held that an Appellant was entitled to get the benefit of this period between the signing of the judgment and the signing of the decree even though he made no application for a copy of the judgment within 30 days of the signing thereof. The uniform practice of this Court since the Full Bench decision has been to deduct this period and I see no valid reason to depart from this practice. “Cursus curies est lex curiae.” I hold that the appeal is not, barred by limitation.
In view of the findings arrived at the decree of the Court below must be upheld and this appeal must be dismissed with costs.
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