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1976 DIGILAW 272 (KER)

SUKUMARAN THANKAL v. JANAKI AMMA

1976-12-16

GOVINDAN NAIR, P.JANAKI AMMA

body1976
Judgment :- 1. The appeal is from the judgment in A. S. No. 115 of 1971 of the Sub Court of Mavelikara dated 13-12-74. In accordance with the provisions in R.7 of Order XX of the Code of Civil Procedure the date of judgment will be the date of decree. The decree in the case was admittedly prepared and got ready only on 7-6-75. There is not even any suggestion that the delay in preparing the decree was due to any fault on the part of the appellant. The appellant applied for copies of the judgment and decree on 4-6-75. The copies were ready on 9-9-75 and they were received by the appellant on 16-9-75. The appeal was filed on 30-9-75. 2. Though the petitioner has prayed for condonation of delay of 17 days in preferring the appeal before this court, at the time the case was heard it was urged that on a correct interpretation of S 12 of the Limitation Act, 1963, there was no delay at all in preferring the second appeal. That section is in these terms: "12. (1) In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded. (2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded. (3) Where a decree or order is appealed from or sought to be revised or reviewed, or where an application is made for leave to appeal from a decree or order, the time requisite for obtaining a copy of the judgment on which the decree or order is founded shall also be excluded (4) In computing the period of limitation for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded. Explanation. In computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the court to prepare the decree or order before an application for a copy thereof is made shall not be excluded". 3. Explanation. In computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the court to prepare the decree or order before an application for a copy thereof is made shall not be excluded". 3. Excepting for certain minor changes, which are not important for the purpose of disposing of this petition, the main difference between S.12 of the Indian Limitation Act, 1908, and the present section, is the addition of the explanation to the section. 4. Even before the Limitation Act 1963 was enacted, the High Courts of India were sharply divided on the question whether the period taken by the court in preparing the decree could be excluded under S.12(2) of the Limitation Act 1908. for the purpose of computing the period of limitation for an appeal. In dealing with the sub-section the courts seem to have considered whether the period taken in drawing up the decree would form part of the requisite period for obtaining a copy of the decree. The Bombay, Calcutta and Patna High Courts came to the conclusion that the period taken in drawing up of the decree would form part of the time requisite for obtaining a copy of the decree. The other High Courts however took a contrary view. The Law Commission considered this conflict of judicial opinion and in their Third Report they suggested as follows: "Some courts have taken the view that the delay in drafting the decree before an application for a copy is made should be deducted as 'time requisite'. But we think that a delay of the Office before the application for a copy is made should not count in favour of the party. A suitable provision should be added to make this clear." 5. The legislative change by the introduction of the explanation was explained officially in the following manner: "At the end of sub-section (4) a new Explanation has been added. The Explanation says that the time taken by the Court in preparing the decree or order from which appeal is to be filed shall not be excluded if the application for the copy thereof is made after the preparation of the decree or order in computing the time under this section " 6. The notes on Clause.12 of the Bill stated: "The existing S.12 is being amended ...................... The notes on Clause.12 of the Bill stated: "The existing S.12 is being amended ...................... (iii) to make it clear that any delay in the office of the Court in drawing up a decree or order before the application for a copy thereof is made, shall not be excluded." 7. The Supreme Court in agat Dhish Bhargava v. Jawahar Lal Bhargava and others AIR 1961 S. C. 832 has clearly laid down that if an application had been made even before the decree had been drawn up, 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 the drawing up of the decree itself. The Supreme Court in Lala Bal Mukand v. Lajwanti and others AIR 1975 S C. 1089 was dealing with S.12 (2) of the Indian Limitation Act 1908. It observed: "The expression 'time requisite as used in S.12 (2) means all the time counted from the date of the pronouncement of the judgment (the same being under Order. 20, R.7, Civil Procedure Code, the date of the decree) which would be properly required for getting a copy of the decree, including the time which must ex-necessitates elapse in the circumstances of the particular case, before a decree is drawn up and signed. If any period of the delay in preparing the decree is attributable to the default or negligence of the appellant, the latter shall not be entitled to the exclusion of such period under S.12 (2) of the Limitation Act, 1908." Thus the judicial controversy on the interpretation of S.12 (2) of the Indian Limitation Act, 1908 seems to have been settled by this decision of the Supreme Court. But the Supreme Court expressed no opinion in the case as to whether the law enunciated above will hold good in cases governed by S.12 of the Limitation Act 1963 read with the explanation thereto. Justice Krishna Iyer had to consider the question of delay in preferring the appeal Nos. 180,181 and 209 of 1965 of the Sub Court, Kozhikode. But the Supreme Court expressed no opinion in the case as to whether the law enunciated above will hold good in cases governed by S.12 of the Limitation Act 1963 read with the explanation thereto. Justice Krishna Iyer had to consider the question of delay in preferring the appeal Nos. 180,181 and 209 of 1965 of the Sub Court, Kozhikode. The learned judge referred to the English principle which we have been following in India that when the language of a section is clear it would not be permissible to interpret a section with reference to the statement of objects and reasons and with reference to the speeches made by members of the House of Parliament These were 'extrinsic aids to the interpretation of statutory provisions because a statute is the expression of the collective intension of the legislature as a whole and any statement made by an individual, albeit a Minister, of the intention and objects of the Act cannot be used to cut down the generality of the words used in the Statute". The learned judge added with reference to the decision (1962 (XIII) S.T.C. 180, AIR. 1953 S.C.113) that "a press note explaining the provision of an Act or the views expressed by the Select Committee when considering the draft bill have been similarly excluded." 9. Finally the learned judge relied on the Full Bench decision of the Patna High Court in The State of Bihar v. Md. Ismail and others AIR. 1966 Patna 1 and the decision of the Orissa High Court in Koutuki Sabatani v. Raghu Sethi AIR. 1970 Orissa 116, and after referring to the order on C.M.P. No. 14506 of 1970 in A S. No. 143 of 1964 of this court held that the time taken by the court in preparing the decree must also be taken into account in reckoning the time requisite for obtaining a copy of the decree under S.12(2) of the Act. It was not without reluctance that the learned judge came to that conclusion. The learned judge appears even not to have been certain whether the language of the explanation was clear and unambiguous. I may extract a passage from the judgment. It was not without reluctance that the learned judge came to that conclusion. The learned judge appears even not to have been certain whether the language of the explanation was clear and unambiguous. I may extract a passage from the judgment. "Not without qualms, I swim with the current and assent to the proposition upheld in these decisions for the additional reason that where two constructions of a limitation law are reasonably possible, that which upholds the right to sue should be preferred. Moreover, it imparts certainty to the law (may be at the expense of rightness), the alternative view being riddled with uncertainties as the previous case-law has demonstrated." 10. The Supreme Court in Lala Bal Mukand v. Lajwanti and others AIR. 1975 S.C.1089 stated: "The Limitation Act deprives or restricts the right of an aggrieved person to have recourse to legal remedy and where its language is ambiguous, that construction should be preferred which preserves such remedy to the one which bars or defeats it. A court ought to avoid an interpretation upon a statute of Limitation by implication or inference as may have a penalising effect unless it is driven to do so by the irresistable force of the language employed by the legislature." 11. This principle stated by the Supreme Court will apply only to cases where there is any ambiguity in the language of the explanation. We are unable to read any such ambiguity in the language of the explanation. If the wording of the explanation is read carefully, there can be little doubt that the time taken by the court to prepare the decree or order before an application for a copy thereof is made will have to be taken into account "in computing under this section the time requisite for obtaining a copy of a decree or an order. " The ambiguity, if we may say so with great respect, was felt by some of the learned judges because they read the first part of sub-section (2) of S.12 in understanding the explanation. The first part of sub-section (2) of S.12 speaks of "in computing the period of limitation for an appeal "This part of that sub-section is not referred to at all in the explanation. The explanation only refers to "in computing under this section the time requisite for obtaining a copy of a decree or an order,...". The first part of sub-section (2) of S.12 speaks of "in computing the period of limitation for an appeal "This part of that sub-section is not referred to at all in the explanation. The explanation only refers to "in computing under this section the time requisite for obtaining a copy of a decree or an order,...". The explanation must refer necessarily and exclusively only to the computation under this section of the time requisite for obtaining a copy and the explanation clearly says in so computing the time taken by the court to prepare the decree or order before an application for copy thereof is made shall not be excluded. Two things are clear. The explanation deals with the time taken by the court to prepare a decree or order before an application for a copy thereof is made and the double negative at the end "shall not be excluded" means, putting it in the positive "shall be included". This is the view that has been taken by the Patna High Court in The State of Bihar v. Md. Ismail and others AIR 1966 Patna 1 (FB.) and also the Orissa High Court in Koutuki Sebatani v. Reghu Sethi AIR. 1970 Orissa 16 (in C. M. P. No. 14506 of 1970 in A. S. No. 145 of 1964) and by the order of Krishna Iyer J. in dealing with the second appeal against A. S. Nos. 180,181 and 209 of 1965 which is the order dated 2nd November 1970. This is also the view taken by Justice Krishna moorthy Iyer in the decision in Kochappi Kunji & others v. Kali Kochu Pillai and others 1973 KLT. 389 The learned judge referred to C. M. P. 14506 of 1970 in A. S 145 of 1964 and the decision of Justice Krishna Iyer referred to above. My learned brother Justice Poti however has taken a different view in the decision in E. Mohammed v. Kunhummad Haji and others 1973 KLT. 666. The relevant part of the judgment is in Para.13 which I may extract in full. "S. 12, it must be understood at the outset, deals with periods of exclusion. Subsections 1, 2,3 and 4 specifically provide for exclusions of certain periods and all these subsections end with the words "shall be excluded." Either certain particular days or certain periods have to be so excluded. These are to be excluded from what? "S. 12, it must be understood at the outset, deals with periods of exclusion. Subsections 1, 2,3 and 4 specifically provide for exclusions of certain periods and all these subsections end with the words "shall be excluded." Either certain particular days or certain periods have to be so excluded. These are to be excluded from what? Of course, from the periods of limitation. Normally one would ask whether these are the only exclusions. Of course, that is so. The Parliament which incorporated an explanation in S.12 in the Limitation Act, 1963 would have certainly been aware of the conflict of decisions on the corresponding section of the Limitation Act of 1908 and would have intended to resolve the conflict. Though the period mentioned in the explanation is not a period to be separately provided for, it was incorporated only by way of an explanation indicating that the period mentioned in the explanation shall also be excluded. The explanation starts with the words "in computing under this section the time requisite for obtaining a copy of a decree or an order". That refers to the time mentioned in sub-sections 2 and 3 of S.12. Then it provides that any time taken by the court to prepare the decree or order before an application for a copy thereof is made shall not be excluded. That is, if any time is taken in the matter of preparation of decree prior to the date of application, a party cannot claim to include that period in the period of exclusion mentioned in sub-sections 2 and 3. Therefore "shall not be excluded" has to be read as meaning "shall not be excluded" from the period of limitation. The fact that the explanation starts with the words "in computing under this section the time requisite for obtaining a copy of a decree or an order" does not justify reading it as meaning that the non-exclusion is from the "time requisite for obtaining a copy of the decree", or in other words that such time should be "included" in computing the time requisite for obtaining copy of decree or order. The Explanation is necessarily to be read along with the rest of Section which deals with exclusion from the periods of limitation. The purpose of the Explanation is apparently to explain that a particular period shall not be excluded from the period of limitation. The Explanation is necessarily to be read along with the rest of Section which deals with exclusion from the periods of limitation. The purpose of the Explanation is apparently to explain that a particular period shall not be excluded from the period of limitation. It appears to me that the meaning is quite plain enough." 12. With the greatest respect the learned judge did not notice that the explanation specifically and exclusively deals only with the question of the manner of "computing the time requisite for obtaining a copy of the decree." The observations in the judgment in the paragraph extracted above which starts with the words "the explanation starts with the words in computing the time requisite for obtaining a copy of a decree or an order" refer to the time mentioned in subsections (2) and (3) of S.12. Then the learned judge proceeds to state that any time taken by the court to prepare the decree or order before an application for a copy thereof is made shall not be excluded, that is, if any time is taken in the matter of preparation of decree a party cannot claim to include that period in the period of exclusion mentioned in sub-sections (2) and (3) of S.12. With utmost respect we are not able to agree with this interpretation. The explanation clearly refers only to one part of sub-section (2) of S.12 and states in what manner that part must be understood. That part is contained in the words "the time requisite for obtaining a copy of the decree." The explanation says in computing the time requisite for obtaining a copy of the decree, any time taken by a court to prepare the decree or order before an application for a copy thereof is made shall not be excluded. It means that the time taken by the court to prepare the decree or order before an application for a copy thereof is made will have to be included in computing the time requisite for obtaining a copy of the decree. 13. From the above conclusion it is clear that the time taken for preparing the decree that is the period from 13-12-74, to 4-6-75 the date of the application, will have to be included in computing the time requisite for obtaining a copy of the decree. 13. From the above conclusion it is clear that the time taken for preparing the decree that is the period from 13-12-74, to 4-6-75 the date of the application, will have to be included in computing the time requisite for obtaining a copy of the decree. If computation is made in the above manner there is no delay in preferring the appeal and it is not contended that if this is the way of interpreting the explanation there is any delay in preferring this appeal. We therefore hold that there is no delay in preferring this appeal. (S. A. No. 840 of 1975 E)