Mithilesh Devi vs Ram Narayan Thakur and Others

S.N. Jha, J.—The Title Appeal preferred by the Petitioner against judgment and decree of the Sub-ordinate Judge, Samastipur in Title Suit No. 4/8 of 1978/82 has been dismissed by the District Judge, Samastipur on the ground of limitation. The relevant facts are as follows.

The suit in question was disposed of on 27.9.89. On 10.11.89 the Petitioner applied for certified copy of the judgment and decree. From the cage column of the certified copy, which was eventually supplied to him and presented alongwith the memorandum of appeal before the District Judge, It appears that the requisites were notified on 28.2.90. The Petitioner filed the requisites on 5.3.90. The copy was ultimately made ready on 21.3.90. He took the delivery on 26.3.90 and on the same day filed the appeal.

It would thus appear that the Petitioner is entitled to count the entire period spent in obtaining the certified copy between 10.11.89 and 21.3.90 in terms of Section 12(2) of the Limitation Act, 1963 minus the period of four days between 28.2.90 and 5.3.90. The court below has however taken the view that the application for certified copy itself having been made after expiry of the period of limitation for filing appeal, the Petitioner was not entitled to count the aforesaid period. The above finding of the court below is contrary to the law laid down by the Supreme Court in Udayan Chinubhai v. R.C. Bali AIR 1977 SC 2319.

In the aforementioned case it has been held that the date of judgment is deemed to be the date of decree under Order 20 Rule 7, Code of Civil Procedure, and where the judgment is unconditional, the limitation will run from the date of judgment itself. However, there may be case where the court takes a long time to prepare and sign the decree. Construing the Explanation appended to Section 12 of the Limitation Act which provides that "any time taken by the court to prepare the decree or order before an application for copy thereof is filed shall not be regarded as time requisite for obtaining the copy within the meaning of the Section" their Lordships held that if the copy of the decree had already been applied for along with the copy of judgment, before the decree had been prepared and signed, the person concerned is entitled to count the entire period and exclude the same while calculating the period of limitation.

In the present case, the decree was signed on 17.11.89. Prior to that the Petitioner had already filed application for its copy on 10.11.89. Since he could not have preferred appeal before the decree was prepared, there was no question of his filing appeal within 30 days from the date of judgment, i.e. by 27.10.89, extended to 6.11.89 when the courts opened after the Annual Vacation. The impugned order of the court below refusing to exclude the period spent in obtaining certified copy in the facts of the case cannot be said to be correct. The order is accordingly set aside. The court below is directed to entertain the appeal as if the same had been preferred within time and proceed in accordance with law.

This application accordingly stands allowed.