Umda v. Rupchand

1. One of us referred this case for hearing by a Bench. The order of reference runs:

Counsel are now, under the authority of Pandu v. Rajeshwar A.I.R 1924 Nag. 271 , 20 N.L.R 131, in the habit of taking the date of the signing of the decree as the commencement of limitation for the period of appeal. It should be from the date of the decree which is the date of the judgment. Where injustice owing to delay in signing a decree would occur I am prepared to follow Pandu v. Rajeshwar A.I.R 1924 Nag. 271 , 20 N.L.R 131, but where appellant has had ample time after obtaining copies to file his appeal in time calculating from date of judgment do not think he can as a matter of right claim the period from date of judgment on signing of decree.

2. It has been argued for the appellant, that the law contemplates that the decree should be signed the same day as the judgment, but from the wording of O. 20, R. 7 and Section 33 of the CPC it is clear that this is not the case. Then it is said that as the amount of costs payable is not in the judgment, a litigant is bound to wait for the decree being signed before applying for copies.

3. We are not impressed by this argument, for the mode of calculation of costs is given in the judgment, and the decree itself, as regards costs, furnishes no separate ground for an appeal. The Limitation Act gives various periods within which appeals from decrees must be filed, and those all commence from the date of the decree, which is the date of the judgment; and it must be presumed that the Legislature was aware that some time must frequently elapse between the delivery of judgment and the signing of the decree, and that it made due allowance for a reasonable interval in fixing the various periods of limitation.

4. Mahu v. Kishan [1912] 8 N.L.R 92 , 15 I.C 935, which lays down that “no right of appeal under Section 96 of the CPC, arises until a decree has been drawn up,” is relied upon. That dictum is doubtless true, but we here are concerned with a different question; that is, whether a party can claim as a matter of right, for purposes of limitation, the period between the signing of the judgment and the signing of the decree; and the fact that a memorandum of appeal must be accompanied by a copy of a decree is again foreign to the question before us.

5. Section 12, Clause 2 of the Limitation Act lays down that in computing the period of limitation prescribed for an appeal, the day on which the judgment complained of was pronounced and the time required for obtaining a copy of the decree shall be excluded. But this does not prevent an application being made for a copy of the judgment and decree before the latter has been actually signed, especially in any case where there is serious delay; and these are the only cases wherein any difficulty arises. It is clear that the limitation for an appeal runs from the date of the decree, which is the date of the judgment. If delay in signing the decree actually prevents the applicant from obtaining a copy of it, he has only to apply for the copy of the decree before it is signed and an allowance will automatically be made under Section 12 of the Limitation Act for the period during which the decree remained unsigned. We think it clear that where application for a copy is made after the decree is signed no allowance whatever can be made for any part of the period during which it remained unsigned.

6. We think the head-note in Pandu v. Rajeshwar A.I.R 1924 Nag. 271 , 20 N.L.R 131 states the law too widely, and we agree with the reasoning of Hallifax, A.J.C, in Dindayal v. Anup Singh A.I.R 1926 Nag. 349 , 22 N.L.R 60. We hold that an applicant cannot claim the period between judgment and signing of the decree, when his application for a copy has not been filed until after the signing of the decree.

7. Let the records be returned.

8. Reference answered.