How to compute Limitation for filing appeal if applied for Certified Copy of the order

“However, the applicant is entitled to have the period of deduction computed from the date the application for a certified copy of the decree is made, till it is delivered, provided the application is filed within the period prescribed for filing the appeal, and no part of this period is due to any lapse on the part of the applicant, such as failure to supply copying sheets or deposit the cost of a certified copy within the time stipulated and failure to collect a copy on the date fixed for taken delivery of the same, irrespective of the fact whether on the date of filing of the application, the decree was signed or not”.

• The limitation commences from the date of the Judgment and not from the date the decree is signed.

(1991) ILR(Karnataka) 1565 : (1991) 1 KantLJ 44

KARNATAKA HIGH COURT

SINGLE BENCH

( Before : K.A. Swami, J )

BASAVARAJAPPA — Appellant

Vs.

M.S. CHANNABASAPPA — Respondent

Regular Second Appeal No. 894 of 1990

Decided on : 14-09-1990

Limitation Act, 1963 – Section 12

ORDER

K.A. Swami, J.—The Office has raised an objection that there is a delay of 16 days in filing the appeal, but the Office is not right in pointing out that there is a delay of 16 days. However, there is a delay of only four days,

2. The learned Counsel for the appellant has filed an affidavit of the appellant stating thus:

“2. The Judgment was pronounced on 16-11-1989. But the decree is signed on 22-11-1989, Certified copy was sought on 21-11-1989. Further, I was required to appear and receive copy on 7-12-1989 on which date I appeared and took copy. Therefore, the limitation started running only from 7-12-1989 and not 16-11-1989 or any other date.

3. I have filed the appeal on 7-3-1990 which was the 90th day. The calculation is as under:

From 7-12-1989 to 7-3-1990:

December 1989   . . . 24 days

January 1990  . . . . 31 days

February 1990  . . . . 28 days

March 1990  . . . . 7 days

——————————————————————————–
90 days
——————————————————————————–

There is therefore, no delay. The appeal may be registered and posted for admission.

Wherefore, I pray accordingly.”

3. The contention of Sri Shankar, learned Counsel for the appellant is that no doubt Judgment was pronounced on 16-11-1989; however, the decree was signed only on 22-11-1989, whereas the appellant made an application for a certified copy of the Judgment and decree on 21-11-1989 before the signing of the decree, therefore, according to the learned Counsel, the limitation commenced only from 22-11-1989 – the date on which the decree was signed. In support of this submission, learned Counsel has placed reliance on a decision of the Supreme Court in UDAYAN CHINUBHAI v. R.C. BALI. AIR 1977 SC 2319

4. In Udayan Chinubhai’s case, it has been held thus:

“22. We would not approve of reading the words in the Explanation “shall not be excluded” by mentally substituting them as “shall be included” for the purpose of construction. There is a scheme underlying the several clauses in Section 12 along with the Explanation which is the opening Section in Part-III of the Act under the title “Computation of period of Limitation”. Sub- Clauses (1), (2), (3) and (4) use the same expression “shall be excluded” for the purpose of computing the period of limitation. The period of limitation is defined in Section 2(j) and “means the period of limitation prescribed for any suit, appeal or application by the schedule and ‘prescribed period’ means the period of limitation computed in accordance with the provisions of this Act. Whenever, therefore, u/s 12 a prescribed period of limitation has to be computed, certain days are permitted to be excluded in order that a person who desires to appeal is not put to any inconvenience or hardship in the prescribed periodeing shortened by certain exigencies for no fault of his or for reasons beyond his control.

23. When in the several clauses of Section 12, as mentioned above, certain days shall have to be excluded, what is not to be excluded, therefore, has also to be clearly explained. That is the raison decree for the explanation newly introduced. In the entire scheme of Section 12 dealing with exclusion of time for the purpose of computing the prescribed period of limitation, it is not possible to substitute the words “shall not be excluded” by reading the same as “shall be included” which will introduce an alien concept which is different from that disclosed in the setting of all the provisions. It will not be enough to say that the meaning of the words “shall not be excluded” is the same as “shall be included”. The words “shall not be excluded” in the Explanation have to play an appropriate role in the setting and context of the expression “shall be excluded” used in all the preceding clauses in Section 12. It is only preserving the words intact in the explanation, its correct intent has to be ascertained.

24……..Having thus in the above three clauses excluded a number of days in computing the prescribed period of 90 days, it was absolutely necessary to make it clear in the Explanation that the time taken by the Court to prepare the decree before an application for a copy thereof is made shall not be excluded. If the Explanation were not in these terms, the old controversy would have persisted about the time claimed by a person before making an application for a copy whether it should be excluded or not, in view of the earlier conflict of decisions. It is because of this history of the judicial controversy that the Explanation was phrased in the way it has been done by Parliament namely, that the time taken by the Court to prepare the decree before the application thereof is made shall not be excluded. In other words, that period which may elapse in preparing the copy of the decree prior to making of an application for copy, shall not be excluded when excluding the time requisite for obtaining a copy while computing the period of limitation. But for this explanation it could have been again argued that, that time also should be excluded as the entire period of time requisite for obtaining a copy in view of one line of earlier judicial decisions under the old Act. We are, therefore, clearly of opinion that the Law Commission had made a very salutary recommendation in order to make the position absolutely clear and to avoid any further controversy in the matter.

xxx xxx xxx
32. The correct legal position, therefore, is that u/s 12 (2)read with the Explanation a person cannot get exclusion of the period that elapsed between pronouncement of the Judgment and the signing of the decree if he made the application for a copy only after preparation of the decree. We endorse the view on the line of the Bombay High Court in Sitaram Dada Sawant and Another Vs. Ramu Dada Sawant, With respect the Full Bench decision in Subhash Ganpatrao Buty and Another Vs. Maroti and Others, cannot be approved.

33. xxx xxx xxx

34. While the above is the true legal position that emerges from Section 12(2) read with the Explanation, there may be an exceptional case, as the instant one before us.

35. The time requisite for obtaining a copy u/s 12(2) must be that time which is “property required” for getting a copy of the decree [see Lala Balmukund (Dead) through Lrs. Vs. Lajwanti and Others, It is not possible to conceive how a person may obtain a copy of a decree if that decree, in view of the recitals in the Judgment pronounced, cannot be prepared without some further action by a party. A Judgment which is unconditioned by the requirement of any action by a party, stands on a different footing and in that event, the date of the Judgment will necessarily be the date of the decree. In such a case, a party cannot take advantage of any ministerial delay in preparing the decree prior to his application for a copy, that is to say, if there is no impediment in law to prepare a decree immediately after pronouncement of the Judgment, no matter if, in fact the decree is prepared after some time elapses. No party, in that event, can exclude that time taken by the Court for preparing the decree as time requisite for obtaining a copy if an application for a copy of the decree has not been made prior to the preparation of the decree. It is only when there is a legal impediment to prepare a decree on account of certain directions in the Judgment or for non-compliance with such direction or for other legally permissible reasons, the party who is required to comply with such directions or provisions, cannot rely upon the time required by him under those circumstances, as running against his opponent.”

Based on the above Ruling, it is contended that as the appellant had made an application for a certified copy of the decree before the decree was signed, he was entitled to exclusion of the time occupied for signing of the decree viz., from 16-11-1989 to 22-11-1989. It is not possible to read the Judgment of the Supreme Court in Udayan Chinubhai’s case in the manner the learned Counsel for the appellant reads it. Irrespective of the fact whether the decree is signed on the date of the Judgment or subsequent thereto, the date of the decree is the date of the Judgment under Order 20 Rule 7 of the C.P.C. Therefore, the time begins to run from the date of the Judgment and it has to be computed as per Section 12 of the Limitation Act, 1963. If the party makes an application before the decree is signed, he is entitled to compute the period occupied for obtaining a certified copy of the decree from the date of his application irrespective of the fact whether the decree is signed on the date of the application or not. The contention of the learned Counsel is that if the decree is signed subsequent to the filing of the application for a certified copy the entire period from the date of Judgment till the date of signing of the decree has to be excluded and the limitation will commence from the date of signing of the decree. The contention does not stand to scrutiny because the time occupied for obtaining a certified copy of the decree has to be computed from the date of filing of the application irrespective of the fact that on that date the decree is signed or not. If the time for exclusion is computed from the date of application till the date of delivery of a certified copy, it also covers the period of delay in signing the decree. On the contrary, if the contention of the learned Counsel for the appellant is accepted and the period from the date of Judgment till the date of signing of the decree in a case where an application of a certified copy of the decree is made before the signing of the decree is excluded, it would amount to giving double deduction; first deduction from the date of Judgment till the date of signing of the decree and second deduction from the date of application for a certified copy till the date of delivery. Thus there will be overlapping of the period. This is not what Section 12(2) of the Limitation Act, 1963 is intended to serve and the purport of the decision in Udayan Chinubhai’s case is also not this. Hence, in the light of the Judgment in Udayan Chinubhai’s case, the legal position is that irrespective of the fact whether the application is filed for a certified copy of the decree either before or after the signing of the decree, the time occupied from the date of the Judgment till the date of signing of the decree is not liable to be deducted. However, the applicant is entitled to have the period of deduction computed from the date the application for a certified copy of the decree is made, till it is delivered, provided the application is filed within the period prescribed for filing the appeal, and no part of this period is due to any lapse on the part of the applicant, such as failure to supply copying sheets or deposit the cost of a certified copy within the time stipulated and failure to collect a copy on the date fixed for taken delivery of the same, irrespective of the fact whether on the date of filing of the application, the decree was signed or not. The limitation commences from the date of the Judgment and not from the date the decree is signed. Therefore, the contention that the appeal is in time is not accepted. It is held that the appeal barred by time by four days.

Cases Referred

Lala Balmukund (Dead) through Lrs. Vs. Lajwanti and Others, AIR 1975 SC 1089 : (1975) 1 SCC 725 : (1975) SCR 44 Supp : (1975) 7 UJ 357
Sitaram Dada Sawant and Another Vs. Ramu Dada Sawant, AIR 1968 Bom 204 : (1967) 69 BOMLR 633 : (1967) MhLj 961
Subhash Ganpatrao Buty and Another Vs. Maroti and Others, AIR 1975 Bom 244 : (1975) 77 BOMLR 517 : (1975) MhLj 244