Abdul Gani Mia v. Abdul Gani Mia — 1960 DIGILAW 43 (GAU)

JUDGMENT :- The plaintiff in Title Suit No. 22 of 1954 is the appellant. He filed the suit for declaration of his title to the land bearing patta No. 15/80-L. On the strength of a sale deed dated 5-6-1945 executed by his father who was the first defendant in the suit. The 1st defendant is now dead and his legal representatives have been brought on record as Respondents 3(1) to 3(j). It would appear that subsequent to the said sale deed another sale deed in respect of a portion of the same land was executed by the first defendant in favour of the second defendant, who is the second respondent in this appeal on 15-11-1946. But the second defendant did not contest the suit and the decree passed as far as that portion of the land is concerned has become final. We are only concerned with the 3rd defendant in the suit who is the first respondent in this appeal. He claimed 3 lousels of land on the strength of an oral sale to him 20 years before suit by the appellants father. He also stated that the said land has been separately mutated in his name as patta No. 15/623. He also pointed cut that he had filed a suit against the appellant in T. S. No. 94 of 1950 in the Munsiffs Court for possession from the appellant and obtained a decree and that the appellants appeal from the said decree to the District Judge and further revision to the Judicial Commissioners Court had been dismissed and he pleaded that the appellants suit was barred by res judicata. 2. We are concerned in this appeal only with the land under patta No, 15/623. The judgment in the suit T. S. No. 94 of 1950 was produced as Ext. C/1. But the learned Subordinate Judge held that the decree in T. S. No. 94 of 1950 will not be res judicata and he went into the merits of the case and held that the 3rd defendant had no title to the land under patta No. 15/623 and gave a decree to the appellant. But in appeal the District Judge differed from the first Court and held the appellants suit in so far as it related to the land under patta No. 15/623 was concerned was barred by res judicata. But in appeal the District Judge differed from the first Court and held the appellants suit in so far as it related to the land under patta No. 15/623 was concerned was barred by res judicata. It is against that decision that this second appeal has been filed by the appellant. 3. In second appeal two points were urged. One was a question of limitation in the filing of the appeal before the District Judge and the second one was the question of res judicata. I shall deal with the question of limitation first. 4. The judgment of the first Court was dated 132-12-1955. The decree was. signed on 2-1-1956. The first respondent (who filed the appeal in the District Court) applied for copy of the decree on 3-1-1956 and obtained a copy on 15-2-1956. On the date when he obtained the said copy, the Manipur (Courts) Act, 1955 had not come into force and the appeal had to be filed before the Judicial Commissioner within 90 days from the date of the decree excluding, of course, the time taken for obtaining the copy of the decree. But on 1-3-1956, the Manipur (Courts) Act, 1955 came into force and under that Act, appeals are provided to the Court of the District Judge and the time for filing the appeal was only 30 days from the date of decree excluding, of course, the time taken for obtaining the copy. But the first respondent treated it as if he had the same period for filing the appeal to the District Court as if it was the Judicial Commissioners Court. When objection was taken by the Office of the District Court about the delay the first respondent filed an application under Sec. 5 of the Limitation Act for extending the period of limitation. I find from the order sheet of the District Court that the appellant did not object before the District Court to the extension of time, but wanted to argue the appeal only on merits. I find from the order sheet of the District Court that the appellant did not object before the District Court to the extension of time, but wanted to argue the appeal only on merits. However, the District Judge appears to have discussed the question of limitation and written a considered order holding that he was satisfied on the affidavit filed by the first respondent which was not challenged by the other side that there was no wilful laches on the part of the first respondent in filing the appeal and sufficient cause had been shown for the delay and he accordingly condoned the delay. It was after this that the appeal was heard on the merits and disposed of by the District Judge as stated above. 5. The question would therefore arise whether I can allow the first respondent to raise in second i appeal the question of limitation which he did not raise in the. appeal before the District Court. I am afraid, I cannot permit him to raise that question here when he did not challenge the appeal in the lower Court on the ground of limitation. However as the question has been argued and. as it would involve also a matter of procedure which is of general interest in all appeals filed in this Territory I shall give my finding on the merits of the question in this appeal itself, though I cannot allow the appeal to succeed on the ground of limitation alone. 6. Two points arise as far as limitation is concerned. One is whether the first respondent was entitled to file the appeal within 90 days of the decree. The second is whether in calculating the 90 days he can deduct the period between the date of the judgment, namely 22-12-1955 and the date of the signing of the decree which is 2-1-1958. If the latter period is not allowed to be deducted, the appeal would have been filed 97 days after the date of the decree if we take the date of the decree as the date of the judgment. Both these questions were pressed by the appellant before me. 7. If the latter period is not allowed to be deducted, the appeal would have been filed 97 days after the date of the decree if we take the date of the decree as the date of the judgment. Both these questions were pressed by the appellant before me. 7. With regard to the first question, the first respondent could have filed the appeal within 90 days from the date of the decree, when the judgment was pronounced on 22-12-1955, when the decree was drawn up on 2-1-1956 and also when he got the copy of the decree on 15-2-1956 and the appeal, of course, had to be filed before the Judicial Commissioner. Subsequently, however, by virtue of Sec. 32 of the Manipur (Courts) Act, 1955, the venue of the appeal was changed to the District Court after the passing of the decree and after the copy was obtained. Now, Art. 152 of the Limitation Act, provides only for a period of 30 days from the date of the decree for an appeal to the District Judge. The question which therefore really arises is whether by virtue of the Manipur (Courts) Act, 1955 changing the venue of the appeal to the District Court the period of limitation for filing the appeal would be curtailed from the original 90 days to the 30 days provided under Art. 152. 8. This matter has to be decided in the light of the effect of the repeal of the Manipur State (Courts) Act, 1947 by S. 43 of the Manipur (Courts) Act, 1955. Section 6 of the General Clauses Act, provides that such repeal shall not affect any legal proceeding and that any legal proceeding may be instituted, Continued or enforced as if the repealing. Act or Regulation had not been passed unless, of course, a different intention appeared from the new enactment repealing the old Act. We have Section 44(2) in the Manipur (Courts) Act, 1955, which lays down that any appeal from, a decree made by a Court and not appealed against before the commencement of the Act shall after such commencement lie to the Court exercising under the Act, jurisdiction which corresponds as far as may be to the jurisdiction of the Court to which such appeal would have lain if the Act had not been passed and had not come into force. 9. 9. But there is a proviso which says that the said clause of Section 44 shall not be construed as extending the period of limitation to which any appeal may be subject. This proviso was relied upon by the appellant to state that a different intention appeared from the Manipur (Courts) Act, 1955 and therefore Section 6 of the General Clauses. Act will not allow the first respondent to file the appeal within 90 days as allowed under the Manipur State (Courts) Act, 1947. But it was argued by the first respondents learned Advocate that the proviso to Section 44 of Manipur (Courts) Act, 1955 only meant that the period of limitation will not be extended and not that the existing period of limitation to which the first respondent was entitled when the decree was passed would be curtailed by virtue of the said Act coming into force. There is a lot of force in that argument. The proviso would only mean that in case the new enactment gave a greater period of limitation than the repealed enactment, the period of limitation will not be deemed to have been extended. But it certainly cannot mean that the existing period of limitation to which a party was entitled at the time of the decree would be curtailed by the enactment which came into force subsequently. We can envisage a case where the period of limitation prescribed under Article 152 had already passed from the date of the decree when the new enactment came into force, while under the old enactment the parties had still time to file the appeal. If the interpretation of the appellant is accepted, it will mean that the party will lose his right of appeal in view of the proviso to Section 44 of the Manipur (Courts) Act, 1955. Certainly, that cannot have been the intention of the Legislature. I may in this connection refer to the Full Bench decision Jethmal v. Ambsingh, reported in AIR 1955 Raj 97 . Certainly, that cannot have been the intention of the Legislature. I may in this connection refer to the Full Bench decision Jethmal v. Ambsingh, reported in AIR 1955 Raj 97 . It was held in that decision : "Although a law of limitation is primarily as law relating to procedure and as such comes into effect right from the moment it has been enacted and governs all proceedings instituted thereafter and thus has retrospective operation, there is overwhelming authority in favour of the principle that where a subsequent law curtails the period of limitation previously allowed, and such law comes into force at once, it should not be allowed to have retrospective effect which it would otherwise have, so as to destroy pre-existing vested rights of suit, because the giving of such retrospective effect amounts to not merely a change in procedure but a forfeiture of the very right to which the procedure relates." Again, the decision holds : "Where the language of a law relating to limitation is not precise and is of doubtful import, such law may be construed equitably, or reasonably, that is, such construction thereof may be adopted which favours the right to sue rather than which bars that right. Where two interpretations are found to be equally possible, the Court must impute a reasonable intention to the Legislature and hold the suit not to be falling within a shorter period of limitation". That decision deals with the entire case law on the point. I express my respectful agreement with that decision. 10. Here the first respondent had a vested right to file an appeal within 90 days when Manipur (Courts) Act, 1955 came into force. In my opinion, the said Act changed only the venue of the appeal and did not curtail the period of limitation for filing the appeal. 11. With regard to the next objection as to whether the period between the date of the judgment and the date of signing the decree could be excluded, there is a divergence of judicial opinion. Some of the High Courts, like Nagpur, Rangoon, Madras and Assam have taken the view that the said period cannot be excluded. 11. With regard to the next objection as to whether the period between the date of the judgment and the date of signing the decree could be excluded, there is a divergence of judicial opinion. Some of the High Courts, like Nagpur, Rangoon, Madras and Assam have taken the view that the said period cannot be excluded. But the Calcutta High Court as early as 1886 was definitely of the view as seen from the Full Bench decision of 5 Judges "Bani Madhob Mitter versus Matungini Dasi - Kali Shunjcar Das versus Gopal Chunder Dutt," ILR 13 Cal 104 that the said period can be excluded under S. 12 of the Limitation Act. This view of the Calcutta High Court has been approved in the Privy Council decision, Pramatha Nath Roy versus Lee, reported in 49 Ind App 307 : (AIR 1922 PC 352). It would appear that the practice in the Calcutta High Court throughout has been to exclude the said period. Another Full Bench decision of 7 Judges of the Patna High Court -Gabriel Christian v. Chandra Mohon Missir, AIR 1936 Pat 45 has also taken the same view and in doing so they have set aside an earlier Full Bench decision of the same Court of 5 Judges. The Bombay High Court in its Full Bench decision reported in Murlidhar Shrinivas v. Motilal Ramcoomar, AIR 1937 Bom 162 have again taken the same view. In the decisions of the ether High Courts, I do not find that these Full Bench decisions and the P.C. decision were cited. 12. It is not necessary for me to discuss the whole question over again with reference to the Articles of the Limitation Act and the Sections of the C. P. C. in the face of such overwhelming judicial opinion. 12. It is not necessary for me to discuss the whole question over again with reference to the Articles of the Limitation Act and the Sections of the C. P. C. in the face of such overwhelming judicial opinion. It is enough to say that the period between the date of the judgment and the date of singing of the decree is not under the control of (the party who wishes to file the appeal and hence it is necessary that the said period should be allowed to be excluded under Sec. 12 of the Limitation Act.The practice in this Union Territory has been to give notice to the parties of the date of signing of the decree and for the parties to apply for copy of the judgment on the date of pronouncement of judgment and for copy of the decree after the decree has been signed. In the case before us the decree was signed on 2-1-1956 and the first respondent applied for copy of the decree on 3-1-1956, after coming to know of the signing of the decree. Under the circumstances that period between 22-12-1955 and 2-1-1956 must be allowed to be deducted. If that period is allowed, then the appeal to the District Court has been presented within 90 days from the date of the decree excluding the time taken for obtaining the copy and the appeal was within time. 13. With regard to the plea of res judicata, I entirely agree with the District Judge in his view that the decree in T. S. No. 94 of 1950 certainly barred the appellants suit as far as the land under patta No. 15/623 was concerned. I find on a perusal of the judgment-Ext. C/1 that one of the Issues raised in the case was whether the first respondent had any ownership and possessory right over the land in dispute and a finding was given in favour of the first respondent. The said finding was also upheld in appeal. In that suit, the appellant had produced his title deed on which he is relying in the present case and it was considered. We are not now concerned with the question whether the said judgment was right, or wrong. In fact, we have no right to consider that question, as the learned Subordinate Judge appears to have done. In that suit, the appellant had produced his title deed on which he is relying in the present case and it was considered. We are not now concerned with the question whether the said judgment was right, or wrong. In fact, we have no right to consider that question, as the learned Subordinate Judge appears to have done. The matter has been concluded, once for all and the issues of title with regard to the land under patta No. 15/623 has been decided in favour of the first respondent. The appellant cannot urge the same matter again in the present suit. 14. The second appeal therefore fails and it is dismissed with the costs of the respondents. Appeal dismissed.