Raghbir Singh vs Shambu Datt and Others

D.K. Mahajan, J.—In this second appeal, the only question that requires determination is that of limitation. The lower appellate Court dismissed the appeal on the ground that it was barred by time. It is this decision of the lower appellate Court which is now being challenged in second appeal.

The Plaintiff-Respondent filed a suit for partition against the Defendants out of whom soma are Appellants and others are Respondents in the present appeal. This suit was decreed by the trial Court and a decree could only be framed after the requisite stamp had been filed by the Plaintiff or anyone or more of the Defendants. '' See in this Satyabhama De Vs. Jatindra Mohan Deb and Others, and Sardar Muhammad v. Zafai Din 107 Ind Case 624 (Lah.)

The Defendant-Appellant made an application to the trial Court for a copy of the judgment and the decree on the and January, 1961. A copy of the judgment was furnished to him on the 3rd February, 1962, and no copy of the decree was furnished because no decree had been drawn up by that date. The decree could not be drawn up because the requisite stamp had not been filed. It appears that the requisite stamp was filed later on and thereafter on the 20th May, 1961, an application was made by the Defendant-Appellant for a copy of the decree and on the basis of that application a copy of the decree was prepared on the 8th June, 1966 and was attested on the same date. It was received by the Appellant on the 13th June, 1961. The appeal was filed by him on the 19th June, 1961. When the appeal came up for hearing before the lower appellate Court, an objection was raised by the Plaintiff-Respondent that the appeal was barred by time. This objection prevailed with the lower appellate Court with the result that the appeal was dismissed.

The learned Counsel for the Defendant-Appellant contends before me that his client applied for a copy of the decree on the 2nd January, 1961, and, therefore, the time spent from 2-1-1961 to 8-6-1961 should be treated as the time requisite for obtaining the copy of the decree. If this is permissible the, appeal is within time. It is significant that there was no decree in existence when the application for the copy of the decree was made and there would be no decree in existence unless the requisite Court-fee stamp was filed. Therefore no benefit can be taken of the application dated the 2nd January, 1961. An application for a copy of the decree was made on the 20th May, 1961, and it was obviously made after the stamp had been paid and the only time which can be treated as time requisite for obtaining the decree is the time spent between 20th May, 1961 to the 8th June 1961. It is common ground that if this time is allowed to be deducted for the obtaining of the copy of the decree, the appeal is hopelessly barred by time.

The rule in partition cases seems to be well settled. A party who wants to appeal against the partition decree must file the requisite stamp within the period of limitation, for filing the appeal otherwise he cannot make a grievance that as the decree sheet was not ready the appeal could not be filed. This proposition seems to flow from the decision of the Supreme Court in Jagat Dhish Bhargaya v. Jawahar Lal Bhargava AIR 1961 SC 832 wherein their Lordships of the Supreme Court observed as follows:

Where a decree is not drawn up immediately or soon after a judgment is pronounced and a litigant feeling aggrieved by the decision applies for the certified copy of the judgment and the decree before the decree is drawn up, as he has done all that he could and has made a proper application for obtaining the necessary copies, the time requisite for obtaining the copies must necessarily include not only the time taken for the actual supply of the certified copy of the decree but also for drawing up of the decree itself. The time taken by the office or the Court in drawing up a decree after a litigant has applied for its certified copy on judgment being pronounced would be treated as a part of the time taken for obtaining the certified copy of the said decree.

These observations, to my mind, indicate that where the person applying for a copy of the decree has to do something in order that the decree comes into existence and has failed to take steps in that behalf he cannot claim that the time between the date of the application and the coming into being of the decree is the time requisite u/s 12(2) of the Limitation Act.

Moreover, in partition cases, the rule on the matter is stated in Abdul Salam v. Abdul Khaliq AIR 1945 Lah 233 a Division Bench decision in these terms:

as it was the Appellant who wished to have the decree quashed in appeal it was his duty to have paid the requisite stamp duty in time and got the decree prepared. The time between the date of the judgment and the date of the decree could not be allowed to be deducted u/s 12 as time requisite for obtaining copy of the decree as the delay was caused by As failure to pay the requisite stamp duty within the time fixed by the Court to enable the Court to prepare the decree sheet.

This decision was followed by a Bench decision at this Court in Tej Krishan v. The Delhi Cloth and General Mills Co. Ltd. AIR 1950 EP 195 and by a Full Bench of the Allahabad High Court in Keshar Sugar Works Vs. R.C. Sharma and Others, . No decision to the contrary in a partition case has been brought to my notice. In this view of the matter, no fault can be found with the, decision of the lower appellate Court.

The learned Counsel for the Appellant contended that the preparation of the decree was the duty of the Plaintiff. I have already stated that in a partition decree every Defendant is in the position of a Plaintiff and, therefore, it cannot be said that the Defendant was not equally obliged to maker good the Court-fee in case the Defendant wanted to appeal against the decree. That being so, this argument has no merit and must be re jested. I am fortified in my view by the decisions of the Calcutta and the Lahore "High Courts in Satyabhama De Vs. Jatindra Mohan Deb and Others,

For the reasons given above, this appeal fails and is dismissed with costs.