Dagduba and Another vs Abdul Gafoor Khan

Manohar Pershad, J.—These are two separate appeals filed on behalf of the Plaintiff against the judgment and decree of the Court below dated 13th Aban, 1356 P. dismissing the appeals. The facts which give rise to these appeals are:

Dagduba, the Plaintiff filed a suit on 1st Meher, 1354 P. against Abdul Gafoor Khan for a declaration of, and restitution of the patta of the lands bearing Survey Nos. 41 and 42, alleging inter alia that the Plaintiff through a registered sale-deed dated 10th Amardad, 1350 P. transferred the said lands; that though a sale-deed has, to fact, been executed, the intention of the parties was to treat it as a mortgage and accordingly the Defendant executed an ''Ekhrarnama'' (agreement) to the effect that the Plaintiff would be entitled to return of the lands after payment of the mortgage-money. On the basis of the sale-deed, the purchaser had filed a suit for a declaration of patta which was decreed on the admission of the Plaintiff. The Plaintiff, however, sub-sequently paid the entire amount as agreed to, and has got back possession of the lands. The Defendant has no right to retain the patta in his own name and the Plaintiff is entitled to a declaration that he is entitled to restitution of the same. The Plaintiff had filed a suit for a declaration and restitution of patta on 26th Ardibehisht 1352 F. which was dismissed for want of evidence and the Plaintiff is entitled to file a fresh suit.

The Defendant in his written statement, apart from other objections, raised the plea that a fresh suit is not tenable and that the previous Judgment operated as ''res judicata''. On these pleadings the Court of first instance framed four issues and after hearing the arguments of the parties on the legal issues dismissed the Plaintiff''s suit having held that the previous judgment operated as ''res judicata'' and that the present suit is not tenable. Aggrieved by this judgment, the Plaintiff filed an appeal to the District Court on 13th Farwardi 1356 F. Another appeal was also filed to the said Court on 29th Ardibehisht 1356 F. against the order of the Court below dated 6th Ardibehisht 1354 F. The District Court dismissed the appeals. The appeal which was directed against the judgment of the Court below dated the 6th Ardibehisht 1354 F. was dismissed as being time-barred while in the other appeal it was held confirming the lower Court''s judgment that the previous judgment operated as ''res judicata''. Hence these two separate appeals Nos. 614/4 of 1358 F. and 659/4 of 1358 F. have been preferred on behalf of the Plaintiff.

In appeal No. 614/4 of 1358 F. it is urged that the previous decision was not ''res judicata'' and'' the Courts have erred in holding it so. In the second appeal No. 659/4 of 1358 F., it is contended that till the Plaintiff had filed a petition for a copy of the decree, there was no decree in existence and it was only after a petition to that effect was filed and a decree prepared as such, no appeal could be filed and the period from the date of the judgment to the date of supplying the decree should be considered as ''time requisite'' for obtaining the copies, and if this period is taken into consideration, the appeal does not become time-barred. Reliance was placed on Section 12 of the Indian Limitation Act, Article 152 of the said Act and the cases of ''Beni Madhub v. Mutangini Dassi 13 Cal 104 (A); Province of Bengal Vs. Amulya Dhon Addy and Others, ; Gabriel Christian Vs. Chandra Mohan Missir and Another, ; Kameshar Singh Bahadur Vs. Kusheshwar Mahto and Others, and Manoo Rai and Others Vs. Keshwar Rai and Others, . Following up this contention it is urged that it is not necessary that the petition for the copy should be filed within time. Reliance is placed on Murlidhar v. Motilal AIR 1937 Bom 162 (F).

On behalf of the other side it is urged in reply that the Courts below have rightly held that the previous judgment has the effect of ''res judicata''. In the other appeal it is urged that the appeal before the first appellate Court was admittedly time-barred and the Appellant would not be entitled to the exclusion of any period spent in obtaining the copies as no application for the copies was filed within the prescribed period. It is also urged that the Appellant would not be entitled to the exclusion of the period from the date of the judgment to the date of the preparation of the decree u/s 12, Limitation Act. Reliance was placed on the cases of Keshar Sugar Works Vs. R.C. Sharma and Others, ; Jyotindra Nath Sarkar and Others Vs. The Lodna Colliery Co., ; Secy. of State and Another Vs. Sm. Parijat Debi and Another, ; AIR 1933 125 (Nagpur) ; Gokul Prasad v. Kumar Bahadur AIR 1935 Oudh 30 (K) and Pramathnath v. William A. Lee AIR 1922 PC 352 (L).

In order to appreciate the view points of the learned Advocates, a reference first to the provisions of Section 12 and Article 152, Limitation Act, Order 20, Rule 7 and Order 41, Rule 1, CPC is necessary. But before considering these provisions of law, we would like to mention some of the admitted facts.

It is admitted that on 6-6-1354 F. the Munsiff, Parbhani, dismissed the suit on the statement of the Pleader for the Plaintiff that he is neither appearing nor making any arrangements for adducing the evidence. It is further admitted that on 29th Isfandar-1356 F. that is, after a lapse of a period of one year and nine months, an application was filed on behalf of the Plaintiff for the copy of the decree; that till then, the decree was not prepared and that on 18th Ardibehisht 1356 F. the Court passed an order that decree be prepared. It is also admitted that on 24th Ardibehisht 1356 F. the decree was prepared and on 29th Ardibehisht 1356 F. that is, after a lapse of two years and 23 days an appeal was filed. Ordinarily an appeal to the District Court, Parbhani, has to be filed within 30 days-from the date of the decree of the Munsiff Court, under Article 138 of the Hyderabad Limitation Act (Article 152, Indian Limitation Act). The appeal to the District Court should, therefore, have been filed before 5th Khurdad, 1354 F. whereas it was filed on 29th Ardibehisht 1356 F. which is admittedly time-barred. The contention of the Appellant is that he is entitled to the exclusion of the period between the date of the judgment and; the dale of signing the decree u/s 12, Limitation Act. Section 12 lays down:

(1) In computing the period of limitation prescribed for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded;

(2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for review of the judgment, the day on which the judgment complained of was pronounced and the ''time requisite'' for obtaining a copy of the decree--appealed from or sought to be reviewed, shall be ''excluded'';

(3) Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining the copy of the judgment on which it is founded shall also be excluded; and

(4) In computing the period of limitation prescribed for an application to set aside an award the time requisite for obtaining a copy of the award shall be excluded.

Sub-section (1) provides that in computing the period of limitation prescribed for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded. Sub-sections (2) to (4) provide that the time requisite for obtaining the copies shall be excluded to computing the period of limitation. Some difference of opinion has arisen over the construction of the expression in Section 12, Sub-section (2) and (3) "the-time requisite for obtaining the copy of the decree appealed from". There are two alternative constructions which depend upon the meaning to be given to the words ''requisite'' and ''obtaining''. There is no definition of the expression ''time requisite'' used in this section. But it has been, held in the case of "Subramanyan v. Narasimham AIR 1920 Mad 359 (2) (M), to mean reasonably requisite. No hard and fast rule can be laid down to meet all cases that occur under this provision. In the case of Bechi v. Ahsan-ullah Khan and Ors. 12 All 461 (FB) (N), it has been laid down that the expression ''the time requisite for obtaining a copy'' cannot include anticipation of the Appellant asking for copies in The usual way.

In--''AIR 1922 PC 352 (L)'', their Lord-ships of the Privy Council observed that:

No period can be regarded as requisite under the Act which need not have lapsed if the Appellants had taken reasonable and proper steps to obtain the order.

And in--Jijibhoy N. Surty v. T.S. Chettiar Firm AIR 1928 PC 103 (O), Lord Phillimore in delivering the judgment of the Privy Council observed as follows:

The word ''requisite'' is a strong word; it may be regarded as meaning something more than the word ''required''. It means ''properly required'' and it throws upon the pleader or Counsel of the Appellant the necessity of showing that no part of the delay beyond the prescribed period is due to his default.

It follows from the above that the expression time requisite'' must be understood to mean time properly and reasonably required. It would also follow from this that the question what is the ''time requisite'' for obtaining copies in any particular case is one of fact and must be determined with reference to the facts and circumstances of that case. It also follows that the ''time requisite'' is not always the time actually spent in the securting the copies, as has been laid down in the case of ''Nur Mohd. v. Ramdas AIR 1919 Lah 103 (P).

In the cases of Parbati v. Bhola 12 All 79 (FB) (Q) it has been held that:

Delay caused by the Appellant''s carelessness or negligence cannot be considered ''time requisite''.

The point came up for consideration before the Calcutta High Court in the case of--''13 Cal 104 (FB) (A)''.

In that case there were two appeals before the Court and in one of them the judgment of the first Court was pronounced on 17-7-1883; the date on which the original decree was signed by the presiding officer was 23-7-1883; the date on which the application for copy was made was 3-8-1883, and the date on which the copy of the decree was ready for delivery was 11-8-1883. The appeal was, however, filed on 30-8-1883. In the other case the date of the first Court judgment was 27-2-1884, the date on which the application for copy was made was 29-2-1884, the decree was signed on 4th March, 1884, the copy was ready on 7th March 1884 and the appeal was filed on 7th April, 1884, 6th April being a Sunday. The period of limitation under Article 152, Limitation Act, from the judgment of the trial Court (Mun-siff''s Court), was thirty days from the date of the decree and the question was as to from what date this period was to be computed. u/s 205, CPC Act 14 of 1882 (which is now Order 20, Rule 7 of Act 5 of 1908), the decree has to bear the date on which the judgment was pronounced and the Judge has to sign the decree when he was satisfied that the decree was drawn up in accordance with the judgment. It was pointed out by the Pull Bench that whatever be the date of the judgment, the date of the decree for all purposes was to be the date on which the judgment was pronounced. The words ''time requisite for obtaining the copy of See AIR Commentaries on the Limitation Act, 3rd (1952) Edn. S. 12, Note 10. the decree appealed against, came up for consideration, and so far as we can see, the only ground, on which it was, held that the period taken for preparation of the decree must also be considered to be the ''time requisite'' for obtaining a copy, was that it would otherwise be unfair to the Appellant. This case came up for consideration before the Full Bench of the Allahabad: High Court in two cases: (1)--''12 All 79 (Q) and (2)--''12 All 461 (N).

(12) In--''12 All 79 (Q)'', it has been laid down that:

''the time requisite'' within the meaning of Section 12, Limitation Act does not mean requisite by reason of the carelessness or negligence of the Applicant. It means the time occupied by the Officer who has got to provide the copy, in, making the copy.

In--''12 All 461 (N)'', it was held that in computing the'' time to be excluded u/s 12, Limitation Act from a period of limitation, the ''time requisite for obtaining a copy'' does not begin, until an application for copies has been made. If, therefore, after judgment, the decree remains unsigned, such interval is not to be excluded from the period of limitation unless, an application for copies having been made, the Applicant is-actually and necessarily delayed, through the decree not having been signed. This view of the Allahabad High Court has been accepted and followed in the latest decision of that Court reported in-- Keshar Sugar Works Vs. R.C. Sharma and Others, ''.

There is considerable divergence of opinion in the other High Courts. In the Patna High-, Court in the case of--''Ram Asray Singh v. Sheonandan Singh AIR 1916 Pat 267 (F B) (R) ''13 Cal 104 (FB)(A)'' was followed. But that; Court later changed its view in Jyotindra Nath Sarkar and Others Vs. The Lodna Colliery Co., '' and followed the view of the Allahabad-High Court in '' 12 All 461 (FB) (N). In Gabriel Christian Vs. Chandra Mohan Missir and Another, '', it was thought that the decision of the Judicial Committee in Jijibhoy N. Surty v. J.S. Chettyar Firm AIR 1928 PC 103 (O) had approved of the decision of the Calcutta High Court in ''13 Cal 104 (A)'' and the Full Bench, therefore, accepted the law laid down in ''AIR 1916 Pat 267 (R)'' as correct.

In-- Kameshar Singh Bahadur Vs. Kusheshwar Mahto and Others, '', the view expressed in-- Gabriel Christian Vs. Chandra Mohan Missir and Another, '' was followed.

A similar view was expressed by Sinha and Bennett J J. in-- Manoo Rai and Others Vs. Keshwar Rai and Others, ''.

A similar question had arisen in the Bom-bay High Court in the Full Bench case: AIR 1937 Bom 162 (FB) (F), wherein it has been laid down:

The Court cannot impose upon the statutory right of an Appellant the restriction not warranted by the Act that no time should be allowed for obtaining a copy of the decree unless such copy was applied for within twenty days from the date of the decree. The usual method of computation in this Court is to calculate the total period from the date of the judgment to the date when the appeal was filed excluding the dates on which the Court might have been closed before the date of the filing of the appeal; and deduct therefrom the period fixed in Col. 2 in the appropriate Article of Schedule I to the Limitation Act, and also the time taken la obtaining a copy of the-decree even when no application for such copy was made till after the expiration of the time for appeal. The question whether the time was requisite is always one of fact to be decided in the circumstances of each case.

In another case of the same High Court, tamely-- Balappa Tammanna Tammannavar Vs. Dyamappa Bhusappa, , it has been held by Beaumont C.J. and Sen J. that:

The actual delay in applying for the copy of the decree was not very material as the appeal was filed very shortly after the application for the copy. The Applicant was entitled to a reasonable time to apply for a copy, since he must have known that the decree would not be drawn up for a few days. The party was entitled to some time to make up his mind whether a copy of the decree was required and the time between the date when the judgment was pronounced and the date when it was signed, must be deemed to be ''requisite'' or properly required for obtaining a copy of the decree.

In another case of the Bombay High Court viz., Bhausaheb Jamburao Vs. Sonabai, Divatia and Bavdekar JJ. have held that:

Having regard to the fact that some time is bound to be taken up between the passing and signing of the decree, if an Applicant, for leave to appeal to His Majesty in Council, waits for a reasonable time in applying for copies, he would be entitled to include that time in the period requisite u/s 12. If, however, he waits for an unreasonable time in applying for copies, he will not be able to include that period within the requisite time. It, therefore, follows that each case is to be decided on its own facts. (And the delay of 2G days was held to be unreasonable).

A similar question had come up before the Lahore High Court in the case of Abdul Salam v. Abdul Khaliq AIR 1945 Lah 233 (V) wherein it was observed by the learned Judges that:

Under Order 20, Rule 7, CPC the date of the decree was the date of the judgment and under Article 156, Limitation Act limitation must run for an appeal from the date of the judgment even though the decree was prepared and signed on a later date.

Section 12, Limitation Act also came up for consideration and there was an application u/s 5, Limitation Act to condone the delay. The learned Judges held that:

as the Appellant had been negligent he cannot claim the benefit of the period between the date of the judgment and the date on which the decree was prepared.

In AIR 1927 1 (Nagpur) , a Full Bench of the Judicial Commissioner''s Court held that:

An Applicant was not entitled to claim a deduction of the period between the date of the judgment and signing of the decree, when his application for a copy of the decree has -not been filed until after the signing of the decree.

The same view was taken in-- AIR 1933 125 (Nagpur) ; it was pointed out that in '' AIR 1922 PC 352 (1) that the Privy Council had not to consider the question, whether the decision in--''13 Cal 104 (PB)(A)'' would apply to Cases where the Appellant was not responsible for the delay in signing the decree. ; (17) The view in the Chief Court at Lucknow has not been consistent. In AIR 1930 369 (Oudh) , the Allahabad view was followed and it was held that: The period intervening between the date of the judgment and the date of the signing of the decree could not be regarded as ''time requisite for obtaining a copy of the decree'' within the meaning of Section 12(2), Limitation Act. A similar view was taken in '' AIR 1935 Oudh 30 (K) and it was pointed* out that:

The time requisite for obtaining a copy does not begin to run until the Appellant has done something and an application for a copy has been made by him.

This view, however, was changed in AIR 1944 154 (Oudh) , on the ground that the decision of the Privy Council in '' AIR 1922 PC 352 (L)'' had approved of the principle laid down in ''13 Cal 104 (FB) (A).

In the case of--Governor-General in Council v. Jesraj Tilockchand AIR 1950 Assam 83 (Z), it has been held that:

Under Section 12, the time taken from the date of the pronouncement of the judgment to the date of the signing of the decree, cannot be properly excluded as time requisite for obtaining the copy of the decree.

Thus, it is clear that there is considerable divergence of opinion. So far as this Court is concerned, it has taken a consistent view and it is supported by the view of the other High Courts of the Indian Union. In the case of Dandi Ramanna v. Ahmed Bin Sayeed 7 Nasaire Osmani 405 (Z1), which is a case of the Full Bench, the majority view is that only that period would be excluded u/s 12, Clause 3, Hyderabad Limitation Act corresponding to Section 12, Clause 2, Indian Limitation Act which was spent by the Applicant with due diligence for obtaining the copies. Their Lordships have considered what meaning should be given to the word ''requisite'' and have come to the conclusion that though the word ''requisite'' is not used in the Hyderabad Limitation Act, still the language, used is sufficient to connote that meaning. This Court has further held in the cases of Vithoba v. Han 17 Deccan LR 592 (Z2); Konda Bal v. Keshav 19 Deccan LR 189 (Z3); Kutha, Venkatia v. Nellakista Reddy 20 Deccan LR 395 (Z4) that the Applicant would not be entitled to claim a deduction of the period between the date of the judgment and signing of the decree unless he has filed a petition for the copies within the prescribed period.

It follows, therefore, that the question "what is the time requisite for obtaining copies" in any particular case is one of fact and must be determined with reference to the facts and circumstances of that case. We are supported in our view by the case of Ram Autar Shukul Vs. Bhagelu Sahai and Another, . It also follows that the ''time requisite'' is not always the time actually spent in securing the copies (vide AIR 1919 Lah 103 (P)). It has been held in ''12 All 79 (FB) (Q)'' and 12 All 461 (FB)(N)'' that:

delay caused by the Appellant''s carelessness or negligence cannot be considered ''time requisite and cannot be excluded.

In the light of these pronouncements, we shall consider the present appeals.

In appeal No. 659/4/58F, the suit in the original Court was dismissed on 6th Ardibehisht 1354F, and the petition for the copies was filed on 29th Isfandar 1356F. On 18th Ardibehisht 1356 F. the Court passed an order directing the decree to be prepared. The decree was accordingly prepared on 24th Ardibehisht 1356F. and the appeal was filed before the District Court on 29th Ardibehisht 1356F. The period of limitation under Article 152, Limitation Act from the judgment of the trial Court (Munsiff) was thirty days from the date of the decree and the question was from what date was this period to be computed: under Order 20, Rule 7, CPC the decree had to bear the date on which the judgment was pronounced. Under Article 152, Limitation Act, limitation must, therefore, run for an appeal from the date of the judgment even though the decree was prepared and signed on a later date. Section 12, Limitation Act provides that:

In computing the period of limitation prescribed for a suit...the date from which such application is to be reckoned shall be excluded and according to Clauses 2 and 3, the time requisite for obtaining the copies of the decree and the judgment shall be excluded.

The contention is that according to Order 41, Rule 1 the memorandum of appeal has to be accompanied by a copy of the decree and as no decree was prepared till the Petitioner filed a petition, the appeal could not be filed and that, therefore, the period from the date of the judgment to the date of the supply of the copy of the decree should be considered as time requisite for obtaining the copies and should be deducted u/s 12, Limitation Act.

It is true that according to Order 20, Rule 7, CPC the decree has to bear the date on which the judgment was pronounced and Order 41, Rule 1, CPC provides that the memorandum of appeal has to be accompanied by a copy of the decree and limitation for an appeal must run from the date of the decree under Article 152, Limitation Act and Section 12 of the Act enacts that in computing the period of limitation prescribed, the time requisite for obtaining the copies of the decree and judgment shall be excluded, but in our opinion time requisite does not begin until an application for copies has been made. The words ''requisite'' and ''obtaining'' mean that some definite step should be taken by the Applicant himself towards obtaining the copy and it cannot be said that the time was required for obtaining a copy if the Appellant had not even applied for a copy thereof. The ''time requisite for obtaining a copy of the decree'' cannot refer to any period antecedent to the Appellant''s asking for a copy by the usual mode of applying thereof, or to any period subsequent to its being ready for delivery.

If at the time when the application for a copy is made, the decree is not ready, he will, of course, be entitled to the allowance of such portion of time during which the decree remains unsigned along with the time which may be occupied in preparing the copy for delivery; the reason being obvious that the act of obtaining has already commenced and the delay in such a case could not be referred to by omission or neglect on his part. But when he has made no application to obtain a copy and the decree remains unsigned for a portion of, or the whole period of limitation, he cannot claim the benefit of a matter which in no sense and to no extent frustrated or retarded any endeavour on his part to obtain a copy of the decree, the endeavour itself not having yet commenced.

So far as this Court is concerned, it is well established that an application for copies of the judgment and decree should be filed within the prescribed period in order to get the deduction of the period u/s 12, Limitation Act. We do not see any sufficient reason to change a well established view. To allow the Appellant the deduction of the period even though no petition has been filed within the prescribed period would lead to anomalous results. We are, therefore, of the opinion that ''time requisite'' used u/s 12 Limitation Act would not mean time spent and if the Petitioner is negligent or careless and has not applied for the copies within the prescribed time that period would not be ''time requisite''s and cannot be deducted. Admittedly, in the pre-sent case the petition for the copy has been filed long after the expiration of the period prescribed for appeal, therefore, the Appellant would not be entitled to exclude any period, prior. to the date when he applied for a copy of the decree on the ground that it was a period requisite for obtaining a copy u/s 12, Limitation Act.

The next question that arises for consideration is whether the Appellant would get the benefit of Section 5, Indian Limitation Act. The Appellant has not put in a petition and it is not necessary, in our opinion that a petition should be filed but we are of the opinion that the Appellant cannot get the benefit of Section 5 also, for the simple reason that he has been negligent and careless. In the result, there does not remain any force in this appeal and it should fail. The appeal is, therefore, dismissed. No order is made as-to costs of this Court.

Now we turn to the other appeal. Both the courts have dismissed the appeal having come to the conclusion that the judgment in appeal No. 288 of 1356F, operates as ''res judicata''. From a perusal of the record it appears that the suit of''; the Plaintiff was dismissed on 6th Ardibehisht 1354 F. as the pleader for the Plaintiff was absent and no evidence was ready. The Plaintiff filed a separate suit on 1st Meher 1356 P. which was dismissed on 11th Isfandar 1356P, on the ground of ''res judicata''. Before the dismissal of this suit, on 29th Isfandar 1356P, the Plaintiff filed an appeal against the order of the Court dated 6th Ardibehisht 1354 F. The questions that arise for consideration are:

(i) What is the effect of the order dated 6th Ardibehisht 1354 F.;

(ii) Whether it is under Order 17,, Rule 2 or 3; and

(iii) What is the remedy provided for such an order.

In this regard also there is a considerable divergence of opinion in the Indian High Courts. So far as this Court is concerned, it has been held by a Full Bench in the case of ''Bilje Venkatappa v. Raila Subbadu'' 29 Deccan LR 225 (Z6) that:

for purposes of seeking a remedy the party has not to consider the effect of the order but has got to see what is the order passed by the Court.

It is urged on behalf of the Appellant that the Court below has dismissed the suit and it cannot be said from the order that it is an order under Order 17, Rule 3 because if it was an order under Order 17, Rule 3, the Court ought to have given a judgment on the merits, while in the present case no finding has been given on the merits of the case. It cannot, therefore, be said to be a judgment under Order 17, Rule 3.

There is sufficient force in this contention of the learned advocate for the Appellant and there are authorities also to support his view but in view of the decision of the Full Bench referred to above, this argument does not hold good. If the judgment is not according to the provisions of Order 17, Rule 3, it can be challenged in appeal. The Appellant did file an appeal but it has been dismissed as being time-barred and that judgment has the effect of ''res judicata.'' The result is that this appeal also would fall. The appeal is, therefore, dismissed. No order is made as to costs of this Court. This judgment shall govern the connected appeal.