LexUDAYAN CHINUBHAI versus R. C. BALI
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
UDAYAN CHINUBHAI
v.
R. C. BALI
September 22, 1977
547
[V. R. KRISHNA IYER, P. K. GOSWAMI AND s. MuRJ'.AZA FAZAL Au, JJ.}
Linu'tation Acl, 1963, Sections 5, 12, 12(2), Explanation to sec. 12-Whether
the tilue bf'tween the date of the judgn1e111 and the date of the preparation of
the decree is to be excluded for the purposes of lin1ilatio11, if application for
certified copy is made after the decree was prepared-If there was a legal impedi~
n1ent against preparation of the decree on account of certain directions ill
the
judg1nent wlu•ther position would be difjerent-Whe1i a litigant requeJts his
advocate to take all steps wjtf1out any laches and if there is indifference or
negligence 011 the part of the advo~ate, whether delay should be condoned.
The respondent filed a suit for rendition of accounts against the appel!ant.
The Trial Court delivered its judgment on 27-3-1976 and granted a final decree.
The respondent was directed to make up deficiency in court fees \vithin one
month.
On 14-4-1976, the appellant requested his advocate in the trial court
to take necess~ry steps to file an appeal in the High Court. On 17-4-1976 the
advocate in the Trial Court applied for a certified copy of the judgment. The
deficit court fees \Vas paid on 6-5-1976.
On the sa·me· day the decree \vas dra\vn
up.
The advocate who filed the appeal in the High Court applied for another
certified copy of the judgment and decree on 14-7-1976. The said copies were
ready on 17-9-1976. The appeal \Vas filed on 29-9-1976.
If ihe limitation is
counted from 6-5-1976 the appeal would be within period of limitation.
Ho\V-
ever, if the limitation \1i'as counted from 27-3-1976. the appeal \vould Oe time-
barred. The High Court on construction of s.12(2) of the Limitatiori Act. 1963,
read \Vith the explanation
held that the 1imita-tion would
con1mence from
27-3-1976, and. therefore, the appeal \Vas time-barred.
The High Court 'held
that the delay till 17-9-1976 was explained, however, since the appeal was filed
on 29-9-1976, the delay of 12 days was not explained and, therefore, dismissed
the appeal.
AJio,ving the appeal by special leave,
HELD :-(1) Jn the Limitation Act of 1908 there was no explanation tn
section 12 and there was a sharp cleveage of opinion in the High Courts with
regard to the expression "the time requisite for obta-ining a copy of the decree".
Ultimately this Court in the case of Lala Bal Mukund held approving the vie•N
of the n1ajority of the High Courts ,that the period taken in drawing up of the
decree \1i'Oti1d be part of the requisite period.
This Court, however, did not
express any opinion on the new section 12(2) of 1963 Act read with explanation.
[550 H, 553 C-EJ
Jagat Dhish Bhar{?a'Va v. Jawahar Lal B/Jarf,?ava & Ors. f1961] (2) SCR 918
and Lala Bal Mukand (Dead) by L.Rs v. Laiwanti and others A.I.R. 1975 SC
1089, referred to.
(2) The Court after referring to the object of the new section and the recom-
mendation of the Law Commission held that in computing the time requisite
for obtaining the copy of a decree the time tha-t elapsed between the pronoun.ce-
ment of the judgment and the signing of the decree is not to be excluded if the
application for copy was made after the preparation of the decree.
[553 F-GJ
Subhash Ganpatrao Buty and Another v. Maroti s/o Krishnaji Dorlikar ar.d
Others A.I.R. 1975 Bomba·y 244, overruled.
Sitaram Dada Sawant and Another v. Ramu Dada Sawant, AIR 1968 Bom-
B
c
D
E
F
G
bay 204. approved.
H
(3) The Court held that "shall not be excluded" does not mean "shall be
included".
[555 CJ
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A
B
c
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548
SUPREME COURT REPORTS
(1978] 1 S.C.B..
( 4) The position would be different if a decree ca-n.not be prepared in law
because of non-con1pliance with some directions in the judgment.
It is iiot
possible to conceive how a person may obtain a copy of a decree if that -decree
in vie\V of the recitals in the judgment pronounced cannot be prepared without
some further action by a party. A judgment which is unconditioned by the re-
quirerr1ent of any action by a party stands on a different footing and in that
event the date of the judgment would necessarily be the date of the decree.
In such a case a party .cannot take advantage of any ministerial delay in prepatf-
ing the decree prior to his application for a copy j,e., to say if there is any
impediment in law to prepare a decree immediately after the pronouncement
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