P L D 1960 (W (PLP)

(2) Gabriel Christian v. Chandra Mohan Missir and another A I R 1936 Pat. 45 ; (3) Pandu and another v. Rajeshwar and others A I R 1524 Nag. 271. (4) Asutosh Roy Choudhury and others v. Mono Mohan Roy Chowdhury and others A I R 1927 Cal. 65. (5) Mohan Singh v. Murarilal A I R 1957 Madh‑B. 188. (6) Tulsidas Pohumal v. Parsram R. Thadani A I R 1948 Sind

18. Reference was also made to Kahn Chand v. Gurdit Singh (A I R 1936 Lah. 976), which, was, however, subsequently overruled in Abdul Salam v. Abdul Khaliq and another (A I R 1945 Lah. 233). The learned Judges comprising the Division Bench in this case observed that under Order XX, rule 7, C. P. C. the date of the decree is the date on which the judgment is pronounced ; hence limitation for appeal runs from the date of the judgment, even though the decree is actually prepared and signed later ; but in the body of the judgment the rule of exclusion of time elapsing between the date of the judgment and the signing of the decree or order was not disapproved, but was only made subject to the condition that this time could not be allowed to be deducted under section 12, Limitation Act, as the time requisite for obtaining a copy of the decree, if the delay in the preparation of the decree was caused by the appellant's failure to pay the requisite stamp duty within the time fixed by the Court, to enable the Court to prepare the decree sheet. In other words, where the preparation of the decree was solely the duty of the Court con cerned, and there was nothing to be done by the party, the period between the date of the judgment and the date of the signing of the decree could be excluded. I am in respectful agreement with the rule laid down in Abdul Salam v. Abdul Khaliq and another.

6. In the present case the decree had to be prepared by the Court and the appellant was not responsible for the decree remaining unsigned until 28‑8‑

58. The result therefore is that, on a consideration of the authorities, I agree with the learned counsel for the appellant that the period elapsing between 23rd July 1958 and 28th August 1958, should be excluded in the present case.

7. The next question is with regard to the period spent in obtaining copies of the judgment and decree. As already stated, the application was made on the 30th July 1958, while the copies were ready on 27th October 1958. Now, the period from the 30th July to the 28th August 1958, numbering 30 days, is included in, or overlaps, the period to be deducted from the date of the judgment to the signing of the decree. The learned counsel for the appellants contends that section 12 of the Limitation Act does not contain any bar to this double deduction. He has referred me to Jijibhoy N. Surty v. T. S. Chettyar (AIR 1928 P C 103) and Balkrishna Rajaram Modi v. Baijnath Girdharilal Tiwari and others (A I R 1939 Nag. 150). In the Privy Council case it was held that in reckoning the time for presenting an appeal, the time required for obtaining a copy of the decree and judgment must be excluded, even though by the rules of the Court it is not necessary to obtain such copies. In the Nagpur case an application for copies of the judgment and decree was made on the day on which the judgment was pronounced. It was held that that day should be included in the days requisite for obtaining copies, though that day is otherwise excluded by law in computing the prescribed period of limitation for appeal. It was further observed that however startling, fantastic or absurd it may appear to be, the Courts cannot refuse to give effect to the plain meaning of the words used by the legislature, if it does not conflict with reason and justice. There is nothing fundamentally unjust or unreasonable in excluding the same day twice.

8. A similar question was considered in Manoo Rai and others v. Keshwar Rai and others (A I R 1948 Pat. 260) and the answer given was that the same period could not be excluded twice. The precise question before the learned Judges comprising the Division Bench was worded as follows by Sinha, J. :‑ "It has been contended on behalf of the appellants that under section 12 (2) of the Act the time requisite for obtaining a copy of the decree appealed from has to be excluded, and that under subsection (3) of that section the time requisite for obtaining a copy of the judgment has also to be similarly excluded. The question is whether the litigant is entitled to get credit for that period twice over in view of the provisions of section 12, Limitation Act." In that case also reliance was placed on the Nagpur case and the Privy Council authority cited before me. The learned Judge rightly pointed out that the exact question before their Lordships of the Judicial Committee was not whether the same period should be counted twice over, but whether the time requisite for obtaining a copy of the decree should not be excluded, even though by rule of the Court in which the matter arose, the memorandum of appeal need not be accompanied by a copy of the decree, and therefore, the Privy Council case cannot be used to support the contention that the same period may be given credit for twice over.

9. The argument built with reference to the Nagpur case was repelled by pointing out the exceptional nature of that case in which the question of excluding one single day twice over was involved, and it was further observed that if such an argument is accepted, it may lead to absurdities and to results which are not contemplated by section 12, Limitation Act. Reference was then made to Vellaiyammal Bibi v. Koolayanna (41 M L J 273 : 66 I C 23) ; Raman Cheiti v. Kadirvelu Ramanadhan Chetty ; (8 M L J 148) and Silamban Chetty v. Ramanadhan Chetty (I L R 33 Mad. 256: 3 I C 301) as well as Sunder Koer v. Raghunath Sahai (12 I C 677) as authority for the view that where the time occupied in obtaining a copy of the judgment is included in the period during which the decree was not in existence, both the periods should not be deducted. It was further laid down that where these two periods overlap each other, the common days should be excluded only once. Bennett, J. elaborated the same rule in the following words :‑ "The period in between the pronouncement of judgment and the signing of the decree is, therefore, in any event properly and necessarily excluded both as part of the time required for obtaining a copy of the decree and also as part of the time required for obtaining a copy of the judgment. For practical purposes, therefore, time always begins to run from the date that the decree is signed. Once time has begun to run it continues to run unless it is interrupted by an application for a copy of the decree or by an application for a copy of the judgment. Once time is interrupted by one or other or both of these applications it merely stands still and when it is standing still by reason of one such application, it continues to stand still and does not start to run backwards merely because the other application is also made. When the applications and consequent inter ruptions overlap, time does not begin to run again until both of the interruptions have expired."

10. With respect, I am in agreement with the views ex pressed by the learned Judges of the Patna High Court. It is clear that what section 12 of the Limitation Act permits is the exclusion of the time requisite for obtaining a copy of the decree and a copy of the judgment. The period elapsing in between the date of the pronouncement of the judgment and the signing of the decree is excluded for the reason that it must necessarily elapse before a copy of the decree can be granted. If during the same period an application for obtaining a copy of the judgment has also been made, then the period which is common in both cases can only be deducted once for the reasons pointed out by Bennett, J., i.e., upto the signing of the decree the period of limitation is already standing still, and does not start to run again until the interruption is over. From the date of the judgment upto the date of the signing of the decree the time stands interrupted. If during this period there is another interruption due to the presentation of an application for a copy of the judgment or decree, such an interruption cannot have the effect of making the time run backward, so as to give the applicant the benefit of double deduction.

11. Applying this principle to the present case, the result would be as follows: From the 23rd July 1958 to 28th August 1958, the time was not running against the appellant but was standing still for the reason that the decree had not been signed. When the application for copies was made on the 30th of July 1958, a second interruption came into existence, but as the time was already standing still upto the 28th August 1958 there can be no question of deducting this period twice. Thus the period which should be deducted in this case on account of the preparation of copies of the judgment and decree is the period from the date of the signing of the decree to the date the copies were ready, i.e., from 28th August 1958 to 27th October 1958 ; i e , this is the period which should be deducted in addition to the period already allowed to be deducted upto the signing of the decree. In other words, the position which emerges is this (a) Period of limitation 30 days (b) Time upto the signing of the decree, i.e., from 23‑7‑58 to 28‑8‑58 37 days (c) Time for obtaining copies, from 29‑8‑58 to 27‑10‑58 60 days Total 127 days Therefore the appeal should have been filed within 127 days of the date of the judgment, or upto 26th November, 4958. The appeal having been filed on. 1st December ,1958, was therefore obviously beyond the period of limitation permissible in this case.

12. Finally, it remains to consider whether, this is a case where the defendants' application for condonation of the delay under section 5 of the Limitation Act should have been allowed. In refusing the application the learned, Additional District Judge Las been influenced by the fact that the copy of the decree was ready on the 30th September 1958 and thereafter the .Delay was on the part of the appellant in supplying the stamps late, which was done on 18th October 1958. The learned counsel for the parties, however, agreed before me that the responsibility for delay upto 27;b October 1958, cannot reasonably be fixed on the appellant and it is only beyond this date to the date of delivery, viz. 20th November 1958, that the delay is attributable to the appellant. In the calculations urged before me by both sides the relevant date taken is 27th October 1958, and not the date of the delivery of the copies, which is much later, that is, 20th November 1958. In other words, the delay which needs explanation is only of a few days from 2bth November 1958 to 1st December 1958. One of these days, 30th November 1958 was a Sunday, as stated earlier. Thus the delay amounts to only about five days. Learned counsel for the appellant has strenuously contended that the delay is due to a genuine misunderstanding about the legal position regarding limitation in this case and, therefore, it is a fit case where it should be condoned. Several authorities were cited to show that in an appropriate case a bona fide mistake on the part of a pleader afforded a sufficient ground for extension of time under section 5, Limitation Act. For example, in Ambika Ranjan Majumdar v. Manikganj Loan Office Limited (A I R 1928 Cal. 468), the appeal had been mistakenly filed before the District Judge, and by the time it was presented before the High Court, where it really lay, the limitation had expired. But it was held that it was a fit case for extension of time. A similar view was taken in Kantaswami Mudaliar and others v. P. Arunachala Chetti and others (A I R 1925 Mad. 462 (1)) and Baban v. Emperor (A I R 1926 Nag. 503). It seems to me that, in the present case the delay of a few days in filing the appeal is not without sufficient cause, in as much as the legal adviser of the appellant was under a genuine, although mistaken, impression that the entire period spent in obtaining copies could be excluded in addition to the period which elapsed between the date of the judgment and the date of the signing of the decree. There as no doubt that if the view contended for by Mr. A. Aziz, the learned counsel for the appellant, had been accepted by me, the appeal would be very much within time.

13. I consider, therefore, that this is a fit case where the delay in filing the appeal should be condoned under section 5 of the Limitation Act, and I order accordingly. The appeal is therefore, accepted with the direction that it should now be heard on merits by the learned District Judge himself, or by an Additional District Judge, to whom it may be entrusted. There will be no order as to costs. K. M. A. Appeal accepted.