Juggan v. Garib — 1982 DIGILAW 1032 (ALL)

JUDGMENT N.D. Ojha, J. - Against the decree of the trial court dated 19th March, 1980 dismissing his suit the Plaintiff Respondent filed Civil Appeal No. 117 of 1980 before the District Judge, Azamgarh. His appeal was allowed by the IV Additional District Judge, Azamgarh, by judgment dated 21st November, 1980. Aggrieved the Defendants have preferred this second appeal. 2. The Stamp Reporter has made a report that the appeal was in time upto 13th of April, 1981, i. e. was beyond time by 17 days when presented on 29th April, 1981. Counsel for the Appellants has raised an oral objection against the report of the Stamp Reporter and has urged that if the limitation was calculated properly the appeal was within time. In this connection it has been pointed out that even though the judgment was delivered by the lower appellate court on 21st November, 1980, the decree bears the date 28th November, 1980, and was actually signed on 16th December, 1980. Application for the certified copy of the decree was made on 26th November, 1980, and the copy was notified to be ready on 9th January, 1981. According to counsel since the application for copy of the decree had been filed on 26th November, 1980, i. e. before the date on which it was signed, 16th December, 1980 namely the date on which the decree was signed should have been treated by the Stamp Reporter as the starting point of limitation and not 28th November, 1980 as done by him, namely, the date of the decree as shown in the copy. In support of this submission reliance has been placed by counsel for the Appellants on Section 12 of the Limitation Act and the decision of the Supreme Court in Udayan, Chinubhai v. R.C. Bali AIR 1977 SC 2319 . According to counsel for the Appellants it has been held by the Supreme Court in Udayan Chinubhai's case (supra) that if an application for copy of the decree has been made before the preparation of the decree the period that lapsed between the pronouncement of the judgment and the signing of the decree has to be excluded in computing the limitation for an appeal. 3. Having heard counsel for the Appellants I am of opinion that the objection raised by counsel for the Appellants against the report of the Stamp Reporter is unsustainable. 3. Having heard counsel for the Appellants I am of opinion that the objection raised by counsel for the Appellants against the report of the Stamp Reporter is unsustainable. Section 12 of the Limitation Act, 1963, does not prescribe the starting point of limitation for filing an appeal. It only deals with exclusion of certain periods specified therein while computing the period of limitation inter alia for an appeal. The relevant provision in regard to the starting point of limitation for filing an appeal under the CPC is contained in Article 116 of the Limitation Act, 1963, and it is the date of the decree. The crucial question which arises for consideration is as to what date should be treated as the date of the decree. Order XX Rule 7 CPC provides that the decree shall bear date the day on which the judgment was pronounced. In Order XX CPC anew Rule being Rule 21 was added by this Court in exercise of the powers conferred on it u/s 122 Code of Civil Procedure, 1908. Rule 21 so added reads as follows: 21. (1) Every decree and order as defined in Section 2, other than a decree or order of a Court of Small Causes or of a Court in the exercise of the jurisdiction of a Court of Small Causes, shall be drawn up in the court vernacular, or in English, if the Court so orders. As soon as such decree or order has been drawn up, and before it is signed, the Munsarim shall cause a notice to be pasted on the notice board stating that the decree or order has been drawn up and that any party or the pleader of any party may, within six working days from the date of such notice, peruse the draft, decree or order and may sign it, or may file with the Munsarim an objection to it on the ground that there is in the judgment a verbal error or some accidental defect not affecting a material part of the case, or that such decree or order is at variance with the judgment or contains some clerical or arithmetical error. Such objection shall state clearly, what is the error, defect, or variance alleged, and shall be signed and dated by the person making it. Such objection shall state clearly, what is the error, defect, or variance alleged, and shall be signed and dated by the person making it. (2) If any such objection be filed on or before the date specified in the notice, the Munsarim shall enter the case in the earliest weekly list practicable, and shall, on the date fixed, put up the objection together with the record before the Judge who pronounced the judgment, or if such Judge has ceased to be the Judge of the Court, before the Judge then presiding. (3) If no objection has been filed on or before the date specified in the notice, or if an objection has been filed and disallowed, the Munsarim shall date the decree as of the day on which the judgment was pronounced and shall lay it before the Judge for signature in accordance with the provisions of Rules 7 and 3. (4) If an objection has been duly filed and has been allowed, the correction or alteration directed by the Judge shall be made. Every such correction or alteration in the judgment shall be made by the Judge in his own hand writing. A decree amended in accordance with the correction or alteration directed by the Judge shall be drawn up, and the Munsarim shall date the decree as of the day on which the judgment was pronounced and shall lay it before the Judge for signature in accordance with the provisions of Rules 7 and 8. (5) When the Judge signs the decree, he shall make an autograph note stating the date on which the decree was signed. Sub rule (1) of Rule 98 of the General Rules (Civil) is also relevant in this behalf. It reads: (1) The decree or formal order shall be drawn up by the decree-writer ordinarily within seven days of the date of judgment and shall bear that date. After the decree has been examined and the provisions of Order XX Rule 21 have been complied with, it shall be signed by the Judge and the date of such signature entered by him immediately beneath the signature. Gramatically and also because Sub-rule (1) of Rule 98 of General Rules (Civil) requires compliance of the provisions of Rule 21 of Order XX Code of Civil Procedure, the words "that date" occurring in the first sentence of the said sub-rule necessarily mean the date of judgment. Gramatically and also because Sub-rule (1) of Rule 98 of General Rules (Civil) requires compliance of the provisions of Rule 21 of Order XX Code of Civil Procedure, the words "that date" occurring in the first sentence of the said sub-rule necessarily mean the date of judgment. In view of Order XX Rule 7 Code of Civil Procedure, and Rule 21 of Order XX as added by this Court as also Sub-rule (1) of Rule 98 of General Rules (Civil) there seems to be no doubt that the date of the decree is to be the same as the date of the judgment. Appendix D to the CPC prescribes the various forms in which decrees are to be prepared. A perusal of these forms will indicate that the date of the decree is to be stated under the caption "Given under my hand and the seal of the court this day of 19 ." In the gaps aforesaid is to be filled the date of the decree which is to be the same date as the date of the judgment. In view of Sub-rule (5) of Rule 21 of Order XX CPC as added by this Court when the Judge signs the decree has to make an autograph note stating the date on which the decree was signed. 4. The Supreme Court has also held in Udayan Chinubhai's case (supra) in paragraph 24 of the report that the date of the decree is the date of the judgment under Order XX Rule 7 Code of Civil Procedure. Constructing the Explanation contained in Section 12 of the Limitation Act and after considering the legislative history and the difference of judicial opinion in regard to the interpretation of Sub-section (2) of Section 12 before the Explanation was added there to it was held in pargraph 25 of the report as follows: When the Explanation was added to Section 12, Parliament sought to put a quietus to the long standing judicial controversy with regard to "the time requisite for obtaining a copy" by clearly explaining that when time is excluded, as provided for in Sub-section (2) of Section 12, the time that has elapsed from pronouncement of the judgment to the point of time prior to application for a copy of the decree shall not be excluded in computation of the time requisite for obtaining the copy. This is in accord with reason and sound common sense since a person does nothing in court for obtaining a copy prior to his making an application for a copy when there is nothing, in his way, not to. This was the reason underlying the Explanation which prompted the legislature not to permit exclusion of such idle time of the applicant while computing the time requisite for obtaining a copy for the purpose of computing the period of limitation. We have to give effect to this Explanation with its avowed intent. Reiterating the legal position in paragraph 26 of the report it was held: In order to enable a correct computation of the period of limitation u/s 12(2) with certitude, when it is provided, therein, that certain time has to be excluded, it is then clearly provided, at the same time, in the Explanation that a particular period of time shall not be excluded. As if the section and the Explanation say : You are permitted to exclude the time requisite for obtaining a copy but in computing that time which is requisite and which is allowed for exclusion u/s 12(2), you shall not exclude, while computing the period of limitation, the time that had elapsed from the date of judgment to the date of your application for a copy. The object seems clearly to be not to give premium to unmerited idleness and indifference of litigants in making application for copy. 5. It was further pointed out by the Supreme Court in the aforesaid case that a judgment which is unconditioned by the requirement of any action by a party stands on a different footing and in that event the date of the judgment will necessarily be the date of the decree. In such a case a party cannot take advantage of any ministerial delay in preparing the decree prior to his application for a copy, that is to say that if there is no impediment in law to prepare a decree immediately after the pronouncement of the judgment, no matter if in fact the decree is prepared after some time elapses. No party in that event can exclude that time taken by the court in preparing the decree as time requisite for obtaining a copy if a application for copy of a decree has not been made prior to the preparation of the decree. No party in that event can exclude that time taken by the court in preparing the decree as time requisite for obtaining a copy if a application for copy of a decree has not been made prior to the preparation of the decree. An exception was carved out to this general rule by the Supreme Court in regard to those cases where there was a legal impediment to prepare a decree on account of certain directions in the judgment or for non compliance with such direction or any other legally permissible reason. In regard to cases coming under this category it was held that the party who is required to comply with such directions or provisions cannot rely upon the time required by him under those circumstances as running against his opponent. In Udayan Chinubhai's case (supra) there was a direction in the judgment requiring the Plaintiff to make up deficiency in court fees within one month. The Plaintiff after obtaining from the court an extension of time supplied the deficient court fees on May 6, 1976, on which date the decree was prepared and signed. On those facts it was held: The Respondent cannot take advantage of his own default to defeat the Appellant's appeal on the ground of limitation. The period of 90 days, in this case, will count from the date when the Plaintiff had deposited the court fees, as ordered, when only the court could take up the preparation of the decree. It is not a case of the court omitting or delaying to prepare the decree without any further action by a party. 6. Another exception was carved out by a Division Bench of this Court in Anant Ram Vs. Basdeo Sahai and Others, AIR 1957 All 114 . In that case order for preparation of the final decree was passed on 8-7-1937. The final decree which was prepared on 23rd July, 1937, mentioned at the end "It is issued today the 23rd July, 1937 under my signatures and seal of the court." Below this appeared the signatures of the Civil Judge with the same date, 23-7-1937 as the date of his signing this decree. An application for execution of the decree was made on 17th July, 1940. An application for execution of the decree was made on 17th July, 1940. The limitation for executing the said decree was three years and in view of Article 182 of the Ist Schedule of Limitation Act, 1908, the starting point of the limitation was the date of the decree. A question arose as to whether the application for execution on 17th July, 1940, was within limitation or not. It was held: The contention for the Appellant is that as Order 20, Rule 7, Code of Civil Procedure, provides that the decree shall bear the date on which the judgment was pronounced the date of decree should be taken to be the date of judgment and not the date which the decree happens to bear erroneously. Order 20 Rule 7 just provides that date be given to the decree. It does not provide that if a different date is given in the decree, then that date should be ignored and the parties or court should always go to the judgment to find out what the date of the decree should be and must be held to be. If the decree bears a wrong date, that date should be the date for purposes of construing Article 182 of the First Schedule, Limitation Act. 7. It is true that the case of Anant Ram (supra) was not dealing with the question of filing an appeal but in my opinion the principle enunciated therein can be applied even to a case of filing an appeal inasmuch as the starting point of limitation for filing an appeal in view of Article 116 of the Limitation Act, 1963, as indicated above is the date of the decree and the starting point of limitation for execution of a decree was also in view of Article 182 of the Limitation Act, 1908, the date of the decree. In both the cases what was to be found out is the date of the decree. 8. In view of the foregoing discussion it appears to me that the matter of preparing a decree and computing the period of limitation for filing an appeal the following guidelines have to be kept in mind: (1) The date of the decree is the date of the judgment under Order XX Rule 7 CPC which provides that the decree shall bear the date the day on which the judgment was pronounced. (2) If no objection to the draft decree has been filed as contemplated by Sub-rule (1) of Rule 21 of Order XX CPC as added by this Court, or if an objection has been filed and disallowed the Munsarim shall date the decree as of the day on which the judgment was pronounced and shall lay it before the Judge for signature in accordance with the provisions of Rules 7 and 8 of Order XX Code of Civil Procedure, as contemplated by Sub-rule (3) of Rule 21 of Order XX Code of Civil Procedure. (3) If an objection to the draft decree has been filed as contemplated by Sub-rule (1) of Rule 21 of Order XX CPC and has been allowed a decree amended in accordance with the correction or alteration directed by the Judge shall be drawn up and the Munsarim shall date the decree of the day on which the judgment was pronounced and shall lay it before the Judge for signature in accordance with the provisions of Rules 7 and 8 of Order XX CPC as contemplated by Sub-rule (4) of Rule 21 of Order XX Code of Civil Procedure. (4) When the Judge signs the decree he shall make an autograph note stating the date on which the decree was signed as contemplated by Sub-rule (5) of Rule 21 of Order XX Code of Civil Procedure. (5) Decrees are to be prepared in various forms prescribed in Appendix D to the Code of Civil Procedure. The date of the decree is to be stated under the caption "Given under my hand and the seal of the court this day of 19." (6) The date which has to be stated under the caption aforesaid will be the date on which the judgment was pronounced and not the date on which the decree is actually signed which date has to be stated by the Judge in the autograph note as contemplated by Sub-rule (5) of Rule 21 of Order XX Code of Civil Procedure. (7) The starting point of limitation to file an appeal under the CPC is the date of the decree or order vide Article 116 of the Limitation Act, 1963. (8) The position may be different if a decree in law cannot be prepared because of non compliance with some directions in the judgment. (7) The starting point of limitation to file an appeal under the CPC is the date of the decree or order vide Article 116 of the Limitation Act, 1963. (8) The position may be different if a decree in law cannot be prepared because of non compliance with some directions in the judgment. Take for example a case where the judgment requires the Plaintiff to take certain steps before the decree can be prepared, e.g. deposit of the deficient court fees. In such a case the decree cannot be prepared till the deficient court fees is deposited and in view of the decision of the Supreme Court in the case of Udayan Chinubhai v. R.C. Bali AIR 1977 SC 2319 the period of limitation "will count from the date when the Plaintiff had deposited the court fees as ordered, when only the court could take up the preparation of the decree." (9) If the decree prepared under Order XX Rule 7 CPC bears a wrong date, i. e., in place of stating the date on which judgment was pronounced some other date is stated under the caption * given under my hand and the seal of the court this day of 19" the date so stated even though wrongly "should be the date" for purposes of computing the period of limitation in view of the decision of a Division Bench of this Court in the case of Anant Ram Vs. Basdeo Sahai and Others, AIR 1957 All 114 . It is, however, emphasised that in view of the clear provisions of Order XX Rule 7 Code of Civil Procedure, Order XX Rule 21 CPC as added by this Court and Sub-rule (1) of Rule 98 of the General Rules (Civil) it is the duty of the Presiding Officers to ensure and verify while signing the decree that no wrong date but only the correct date as specified above is stated under the caption aforesaid. It is indeed a matter of concern that some Presiding Officers, as in the instant case, ignore the statutory duty of a salutory nature cast upon them in this behalf. It is indeed a matter of concern that some Presiding Officers, as in the instant case, ignore the statutory duty of a salutory nature cast upon them in this behalf. They should not be obvious of the possibility of a wrong date being mentioned at the relevant place pointed out above even deliberately in order to unscrupulously help a person in getting the period of limitation extended on the basis of the wrongly stated date of decree. The necessity of taking stern action for mentioning a wrong date as the date of the decree deliberately cannot be over-emphasised. (10) In computing the period of limitation the lime referred to in Sub-sections (1), (2) and (3) of Section 12 of the Limitation Act is to be excluded. (11) Barring those cases where decree cannot be prepared after the pronouncement of the judgment till some direction contained in the judgment has been carried out as specified in the case of Udayan Chinubhai (supra) the time that has elapsed from the date of the pronouncement of the judgment to the point of time prior to making of application for a copy of the decree shall not be excluded in as much as according to the decision of the Supreme Court in the case of Udayan Chinubhai (supra) the object of inserting the Explanation to Section 12 of the Limitation Act clearly was "not to give premium to unmerited idleness and indifference of the litigants in making application for copy." (12) In the case of Udayan Chinubhai (supra) the Supreme Court has not held that if application for copy of a decree, preparation of which is not dependent upon carrying on any direction contained in the judgment has been filed before the actual preparation or the signing of the decree the starting point of limitation will be the date of preparation or the signing of the decree nor has it held that the time which elapsed between the date of the pronouncement of the judgment and the making of the application for copy of the decree shall also be excluded over and above the time contemplated by Sub-sections (1), (2) and (3) of Section 12 of the Limitation Act in computing the period of limitation for filing an appeal. The reason is simple. The reason is simple. If application for copy has been made before the actual preparation or the signing of the decree the fact of the copy being ready will not be notified till the decree has actually been prepared and signed and the copy made ready and the time from the date of the application for the copy of the decree till the date on which the copy is notified to ready will automatically be excluded under hub-section (2) of Section 12 of the Limitation Act whatever may be its length. 9. In view of the foregoing discussion 1 am of opinion that no execution can be taken to the report of the Stamp Reporter that the appeal was beyond time by 17 days when presented and the oral objection raised against the said report is accordingly over-ruled. A copy of this order may be supplied to the Stamp Reporter for his guidance. 10. The IVth Additional District Judge, Azamgarh, may be required to submit a report within three months as to why notwithstanding the provisions contained in Order XX Rule 7 Code of Civil Procedure, Rule 21 of Order XX CPC as added by this Court and Sub-rule (1) of Rule 98 of the General Rules (Civil) the date of the decree was mentioned as 28th November, 1980, in place of 21st November, 1980, which was the date of the judgment. On the receipt of the report the same shall be placed before the Court for its perusal.