P L D 1960 (W (PLP)

10. The next case referred to by Mr. Patel is from Bombay, Murlidhar v. Motilal (A I R 1937 Bom. 16). This was a case from the original side of the Bombay High Court and the period of limitation for filing an appeal was twenty days. A question arose in this case whether the time taken in obtaining a copy of the decree could be excluded when the application for the copy had been made after the expiry of twenty days. The learned Chief Justice, Sir John Beaumont, who gave the leading judgment, pointed out that the Court could not impose upon the statutory right of an appellant a 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. He referred to the usual method of computation in the Bombay Courts to calculate the total period from the data of the judgment to the date when the appeal was filed excluding the dates on which the Courts might have been closed immediately before the date of the filing of the appeal and deduct therefrom the period fixed in column No. 2 in the appropriate article of Schedule 1 to the Limitation Act and also the time taken in obtaining a copy of the judgment and a copy of the decree adding the same but excluding such period as might overlap and then decide whether the appeal is or is not within time. Calculated in that way if the appeal is within time, then it does not matter whether an application for a c3py of the decree was filed after the expiry of the period mentioned in column No. 2 of Schedule

1. Computing the time on the same basis, their Lordships held that the appeal before them was within time. It is clear that Mr. Patel can seek no assistance from this case as the points decided by it and the method of calculation adopted by it are not at all germane to the question requiring determination in the reference before us.

11. The effect of these decisions, to my mind, is to point out that the "time requisite" used in section 12, Limitation Act is not the time actually consumed or required for obtaining copies of the judgment and the decree, but the time which is properly required, requiring promptitude on the part of the appellant and in any case not condoning his dilatoriness in the matter.

12. The other cases cited by Mr. Patel are from Patna, Oudh and Sind. It appears that in the Patna High Court the view held on the subject has not been consistent. Upto a stage, it followed the Full Bench Calcutta case of Bani Madhab v. Matungini Dassi, but later modified it in Jyotindranath Sarkar v. Lodna Colliery Company Limited (A I R 1921 Pat. 175) and followed the view very firmly laid down by the Allahabad High Court in Bechi v. Ahsan Ullah Khan (12 All. 461) stating that time between the pronouncement of the judgment and the signing of the decree cannot be considered to be "time requisite" as contemplated by section 12 (2) of the Limitation Act, unless an application for a copy is made before the expiry of the limitation for appeal. But after the Privy Council judgment in "J. N. Surty v. T. S. Chettyar", the Patna High Court seems to have reverted to its original view, on the ground that the Privy Council judgment in J. N. Surty's case had approved of the decision of the Calcutta High Court in Bahi Madhub's case. With all deference, this observation is correct only upto a degree.

13. The Chief Court of Oudh at Lucknow in Fakir Bakhsh v. Bilshar (A I R 1930 Oudh 309) followed the Allahabad view that the period interventing between the date of the judgment and the date of the signing of the decree was not "time requisite" for obtaining a copy of the decree. The same view was adopted in Gokul Prasad v. Kunwar Bahudur (A I R 1935 Oudh 30). But in the two subsequent rulings reported as Kunwar Yusuf Ali Khan and others v. Mohammad Kazim Ali Khan (A I R 1940 Oudh 173) and Thakur Jadubir Singh & etc. v. Thakur Sheo Narseh Singh and others (A I R 1944 Oudh 154) it switched on to the view expressed in Bani Madhub's case on the ground that the decision of the.Privy Council in Pramatha Nath v. W. A. Lee had approved of the principle laid down in Bani Madhub's case. These two cases from Oudh and in addition one from the Sind Chief Court and two from the Karachi Bench of the West Pakistan High Court cited below have been pre‑eminently relied on by Mr. Patel for the acceptance of his submissions. The Sind Chief Court case is the Division Bench judgment reported as Tulsidas Pohumal v. Parsram R. Thadani (A I R 1948 Sind 18) and the two cases from the Karachi Bench are ; one an unpublished decision in Ismail Abdul Sattar & Brothers v. Haji E. Dossa & Sons (First Appeal No. 50 of 1955) delivered by a Division Bench consisting of Mr. Justice R. B. Munshi and Sir George Constantine, JJ. and the second is a published judgment of Kaikaus and R. B. Munshi, JJ. reported as Dada Limited v. Pakistan (P L D 1959 Kar. 264). This last mentioned judgment will need a separate discussion, but there is no doubt that the Oudh Chief Court cases, the Sind Chief Court judgment and the unpublished judgment in First Appeal No. 50 of 1955 referred to above do categorically lay down the view in one form or another that where a decree or order is to be drawn without reference to the parties, the party appealing is entitled to the exclusion of the time between the date of the judgment and the date on which the decree is signed. In Tulsidas Pohumal v. Parsram R. Thadani, Davis, C. J. of the Sindh Chief Court, expressed himself as follows :‑ It is not necessary for an appellant to apply for a copy of the decree before the expiry of the period of limitation in order to have advantage of the time that elapsed between the pronouncement of the judgment and the signing of the decree. It would not be a matter of importance whether an application for copies was made within or after the period of limitation if it was made even a day before the decree was signed. In the unpublished judgment in First Appeal No. 50 of 1955, Munshi, J., who delivered the judgment with Sir George Constantine, J. concurring, adopted the view that the time taken in signing the decree is the time which was beyond the control of the appellant and hence it has to be treated as the time taken in preparing the copy and referred to the authorities favouring that view without making any reference to the authorities that hold the opposite view. In the later published judgment of the Karachi Bench (Dada Limited v. Pakistan), the judgment was delivered by Mr. Justice Kaikaus with Munshi, J. concurring and the question of limitation, which depended on the point whether time between the date of judgment and date of application for copy of the decree was to be excluded or not, was disposed of as follows :‑ As regards the preliminary objection that the appeals are barred by limitation, the contention of learned counsel for the appellants is that the appeals are within time if we excluded the whole of the time that was required for obtaining copies of the decrees. The orders under appeal, which amount to decrees, were passed on 29th June, and were signed on 1st February 1956. Learned counsel for the appellants claims that the time taken by the Court in preparing and signing the decree should be regarded as part of the time spent in obtaining copy of the decree because till the decree was signed copy of it could not be obtained. Prima facie this contention would not seem to have much force because it should be the duty of the party to apply to the Court for the preparation of the decree sheet, but it appears that in the Chief Court of Sind decrees were being prepared a long time after judgment was delivered and considering the special circumstances a rule was evolved that if the party applied for a copy of the decree at any time before the decree was prepared then the time between the date of judgment and the date of the decree was also to be regarded as time required for obtaining the copy of the decree. It would appear that this judgment on principle basically differs from the view expressed in First Appeal No. 50 of 1955 referred to above. As clearly stated in the judgment itself,‑ in excluding the time in 'the case before them, which had elapsed between the judgment and the signing of the decree, their Lordships were showing a measure of indulgence to the appellant, "because of a rule that had come to be evolved and followed in the Sind Chief Court for excluding such period". With all respect, evolution of a practice inconsistent with the law is no ground for departure from the law. Such a practice could have been a matter fort consideration for condonation of the period of delay in filing an appeal, under section 5 of the Limitation Act, but it can have no effect on the construction of section 12 (2) of the Limitation Act and the plain intention of the legislature derivable therefrom.

14. It seems to me, and I say this with the utmost respect, that the authorities, which allow deduction of time between the pronouncement of the judgment and the signing of the decree as "time requisite" for obtaining a copy under section 12 (2) of the Limitation Act, have either not taken note of or have not given full effect to certain basic factors which govern this issue. The first is, as very clearly enunciated in Order XX, rule 7 of the Civil Procedure Code, that the date of the decree is to bear the date of the judgment and as such the date of the decree, which furnishes the starting point of limitation for an appeal under Article 156 of B Schedule 1 to the Limitation Act, is to be the date of the judgment. It must be emphasized that the words used in Article 156 of the Limitation Act are "the date of the decree" and not the date of the signing of the decree. In fact, the latter expression would have been inconsistent with Order XX, rule 7 of the Civil Procedure Code. If the legislature had intended to allow the time spent in the preparation of the decree, nothing would have been easier than to express that intention by using the words "date of signing of the decree" instead of "date of the decree". The statute of limitation being a statute of repose extinguishing remedies requires awareness and vigilance in the pursuit of the actions on the part of the litigants and must, therefore, have a merit of certainty. The date of the decree synchronising with the date of the judgment as the starting point of limitation has a feature of certainty in point of time, being known to every one the moment the judgment is pronounced. The preparation of the decree, on the other hand, is a ministerial act depending on the rules which vary from Court to Court and the date of the signing of the decree is, therefore, an uncertain item depending on when the ministerial staff is able to prepare it for the signatures of the Judge and when does the latter sign it, of which ordinarily the litigant public has no notice.

15. The argument that a decree does not come into existence until it is signed and that there is no sense in applying for a D document which does not exist, to my mind, proceeds on a very fallacious premises. The word "decree" is defined in ,section 2, clause (2) of the Civil Procedure Code as follows :‑ `decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 47 or section 144, but shall not include‑ (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. This would show that a decree in its essence is not a thing separ able from the judgment, although a decree‑sheet as such, which has to follow the judgment and to be prepared in pursuit of it, may be so. In my humble view, a decree in a case in the legal g sense, and perhaps also in the physical sense apart from the decree‑sheet, comes immediately into existence the moment a judgment is pronounced in a case. Formal expression of an adjudication by the Court concerned determining the rights of the parties as described in section 2, clause (2) of the Civil Procedure Code is made by the judgment itself, putting the parties on notice, of their success or defeat. But even if judgment and decree are to be considered as separate entities it must be remembered that the preparation of a decree, or to be more exact of a decree‑sheet, is altogether a different thing from making an application for a copy of it. While the preparation of a decree is the task of a Court and its staff, the application to obtain a copy of it is a matter which rests in the hands of a person who needs a copy and even if a decree is considered not to be in existence unless it is signed, there is nothing to stop a person wanting to file an appeal against it, to bring the decree into existence or 4o expedite its existence and that is where the words "time requisite for obtaining a copy" assume their pointed significance. As observed by their Lordships of the Privy Council in Jijibhoy N. Surty v. T. S. Chettyar, the word "requisite" is a strong word meaning some thing more than the word "required". It means properly required. The words "requisite" and "obtaining" used in the context of section 12 (2) of the Limitation Act, in my humble judgment clearly point out the intention of the legislature that some definite step should be taken by the appellant himself for getting a copy of the decree and it cannot be said that the time was required for obtaining a copy where the appellant has not even cared to apply for it.

16. The point may be considered from yap, another angle. If once the period of limitation provided for a certain action ha started running, it has to run out unless it is stopped and a person wanting to hold it up to his own advantage has to take some step to do so. If the period of limitation provided for an appeal, as in this case, is to be extended beyond its normal term by the application of some other process, that process must be brought into action before the time actually runs out. A time once exhausted cannot be called back. Therefore, to keep alive the ordinary period of limitation provided for an appeal and toy avail of the further time provided by section 12 (2) of the Limita tion Act, it is essential that an application to obtain the requisite copy must be made before the ordinary period of limitation for the appeal comes to an end. And where an application is made by an appellant within time, his job is done and no amount of delay that may take place in the preparation of the documents thereafter can be debited to his account. The time then interven ing till the date of the delivery of the copies will be "time requisite within the clear contemplation of section 12 of the Limitation Act.

17. The view that I have ventured to express finds support from judgments of several High Courts some of which are directly in point. I have already referred above to the Allahabad view. This was led by Mr. Justice Mahmood in Bechi v. Ahsan Ullah Khan, where dealing with the point with his characteristic clarity, he expressed himself thus Now, in the first place, I entertain no doubt that it is necessary and indispensable for a litigant who intends to appeal from a decree which is the result of a judgment against him, and which decree must, under the law, bear date the day on which the judgment was pronounced, to apply for a copy of the decree and, if necessary, of the judgment also, before the lapse of the period of limitation for the appeal which he intends to file, whatever that period may be. It appears to me upon general principle that it would be defeating the object of limitation to allow the would‑be appellant to sleep over his right of appeal for more than the limitation period, and then by the accidental or unavoidable delay in the decree being prepared to claim extension of the period of limitation for appealing from a decree for obtaining a copy of which he had not taken even the first step, by filing .an application therefore. This construction is, in my opinion, supported ray the words of para 2 of section 12, Limitation Act, itself. The words referring to exclusion are "the time requisite for obtaining a copy of the decree." The words "requisite" and "obtaining" as they occur in the context seem to me to assume that some definite step ancillary to the "obtaining", i e. acquisition, is not only intended" to be taken but has already been taken. The first step for "obtaining" must be to take some step towards the obtainment, and the act of "obtaining" cannot be said to have even commenced before such step. Taking it to be a sound rule of interpretation to interpret the words of a statute in their ordinary and usual sense, unless the contrary is shown, I have consulted Webster's English Dictionary, and it explains the word "obtain" to mean "to get hold of by effort ; to gain possession of ; to acquire" as the ordinary sense of the word. In this sense, I interpret the word "obtaining" as it occurs in para. 2 of section 12, Limitation Act, and hold that "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 therefor, 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, people 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 any omission or neglect on his part. But when he has made no application to obtain a copy and the decree remains untimed for a portion of, or the whole period of limitation, he cannot claim the benefit of a matter which is no sense and to no extent frustrated or retai'ted any endeavour on his part to obtain a copy of the decree, the endeavour itself not having yet commenced." This view has been consistently followed in the Allahabad High Court and once came up for consideration before a Full Bench of that Court consisting of five Judges in the case of Keshar Sugar Works v. R. C. Sharma and others (A I R 1951 All. 122). The majority Full Bench judgment endorsed this view with Agarwala, J. dissenting. Agarwala, J. preferred what he considered to the more lenient view of the words "obtaining" and "requisite". The former, according to him, although it included a stage for the applicant to apply for a copy, placed a greater emphasis on the final acquisition of the copy and the latter, i.e. the word "requisite", which is an adjective and not a past participle like the word "taken", does not neces sarily in point of time refer to the activity of the appellant, but has a reference to the circumstances of the case. Agarwala, J., in his dissenting judgment, which proceeded primarily on his analysis and interpretation of the Privy Council judgments, has not, if I may say so with great respect, given effect to Order XX, rule 7, Civil Procedure Code, which in my humble opinion has a decisive bearing in such cases on the question of Limitation. On the interpretation of the words "time requisite" and the effect of the application for a copy made after the expiry of the limitation, Agarwala, J. summed up his view as follows :‑ "I am therefore of the opinion that (a) the "time requisite" for obtaining a copy of the decree or order within the meaning of section 12 (2), Limitation Act, is the time necessarily required and over which the appellant had no control, in the preparation of the decree or order appealed from, and the time necessarily taken, and which was beyond the control of the appellant, in the preparation of a copy of the decree or order appealed from, and (b) the time necessarily required in the preparation of the decree is to be excluded, even though an application for a copy of the decree was made after the preparation of the decree. But if the application for a copy is made after the expiry of the period of limitation fixed for an appeal or an application for leave to appeal or an application for review of judgment after excluding the "requisite time" consumed in the preparation of the decree, then the application for a copy will be of no avail and the time taken in the preparation of the copy will not be excluded." If I may point out, again with profound respect, an appellant can certainly be allowed the time which is beyond his control spent in preparation of a decree provided he takes the step, which is within his control, to obtain a copy of the decree by applying fort it, before the limitation runs out if an application is necessary for obtaining a copy, the time wasted in not applying for it cannot be considered as "time requisite for obtaining a copy."

18. In recent years, the point has come up for decision before the Assam High Court twice, first in 1949 in a case Katimal Brahma v. Mohan Nath Nahata and others (A I R 1949 Assam 23) and a gain in 1950 in Governor‑General in Council v. Jesraj Tilakchand Labchand and others (A I R 1950 Assam 83) Thadani, J. delivering the judgment of the Court in the first case observed as follows :‑ "The word "decree" in Article 152, Limitation Act, has the same meaning as in section 2, Civil Procedure Code. A judgment in civil suit consists of two parts, (1) reasons for the decision and (2) the decision itself. Both are given on one and the same day by one document. It is true a formal decree is drawn up some time later, but Article 152 does not prescribe thirty days from the date of the signing of the decree ; it prescribes thirty days from the date of the decree which means the date on which the judgment is pronounced. The contention, therefore, that the limitation for filing an appeal begins from the date of the decree which was signed after some days from the passing of the judgment is erroneous." In the second case, the point was emphasized with a greater force after discussion of the case law on the subject by a Division Bench of the same Court consisting of Thadani acting C. J. and Ram Labhaya, J. holding that under section 12, the time taken between the date of the pronouncement of the judgment and the date of the signing of the decree cannot be properly excluded as the "time requisite" for obtaining a copy of the decree.

19. A case from the Lahore High Court may also be referred to reported as Abdul Salam v. Abdul Khaliq (A I R 1945 Lah. 233) where the learned .fudges held that under Order XX, rule 7, Civil Procedure Code, the date of the decree is the date of the judgment and under Article 156, 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. The Dacca High Court had also an occasion to consider the matter in the case of Abdul v. Abdul Khaliq (P L D 1952 Dacca 400) and the relevant legal position was summed up as follows :‑ "No period can be regarded as requisite which is not subsequent to the presentation of an application for a copy and the application for a copy must be made before the period for appeal expires." In other words, such a period can be made available to the appellant only if he makes the application while his right to appeal still subsists. It is not necessary to refer to other authorities bearing on the matter as I feel that a plain construction of the relevant provisions bearing on this point, namely, section 12 (2)i and Article 156 of the Limitation Act and Order XX, rule 7 oft the Civil Procedure Code, read together, yields the result that the period between the date of the judgment and the date of, the signing of the decree, which elapses uncovered by any application by the appellant for a copy of the decree, was never intended by the legislature to be excluded in the computation of the period of limitation for an appeal.

20. In view of the above discussion, my answer to the question formulated for purposes of this reference is in the negative, and I dissent with the utmost respect from the authorities which lay down the contrary view. The case will go back to the Division Bench for decision according to law in the light of our answer, to the reference. Costs shall follow the event. INAMULLAH, J.‑I agree. A. S. FARUQUI, J.‑I agree. K. M. A. Reference answered.