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Uttarakhand High Court · body

2008 DIGILAW 480 (UTT)

Shashi Bakshi v. Kamla Devi Jain

2008-11-05

V.K.GUPTA

body2008
ORDER :- With the consent of the learned counsel for the parties, this petition is taken up today for hearing and final disposal. 2. A very short question is involved for consideration in this case and the question is whether for computing the period of limitation for filing an appeal, the date of knowledge of the passing of the decree is relevant or the date of the decree is relevant. In other words, does the limitation start running, for filing an appeal against a decree in an appellate Court, from the date of the passing of the decree or the date when the appellant obtained the knowledge about the passing of the decree ? 3. The learned District Judge, in the impugned judgment, has taken a view that the limitation starts running from the date of the knowledge. The decree, impugned in the appeal, was passed on 7th August, 2007 and the appeal against the same was filed before the learned District Judge on 19th March, 2008 accompanied by an application for condonation of delay under Section 5 of the Limitation Act. In the Application, the appellant had pleaded that there was only 4 days' delay in filing of the appeal because, according to the appellant, she had obtained knowledge about the passing of the ex parte decree on 5th February, 2008. Even though the learned District Judge has held that the delay was only 4 days, as a matter of fact, even if the limitation is to be construed from the date of knowledge, the delay in filing the appeal was not 4 days, but much more than that, inasmuch as the knowledge, according to respondent No. 1/appellant, was acquired on 5th February, 2008 and the appeal admittedly was filed before the learned District Judge on 19th March, 2008. The District Judge, therefore, was wrong even on facts to say that the delay was of 4 days. 4. Article 116 of the Schedule to the Limitation Act reads thus : Description of appealPeriod of limitationTime from which period begins to run116Under the Code of Civil Procedure, 1908 (5 of 1908)(a) to a High Court from any decree or order,Ninety daysThe date of the decree or order (b) to any other court from any decree or order.Thirty daysThe date of the decree or order 5. Whether the appeal from a decree is to be filed in the High Court or in any other Court, the period of limitation of 90 days or 30 days, as the case may be, begins to run from the date of the decree. It is a very, very clear and unambiguous proposition of law. To say that the period of limitation for filing the appeal begins to run from the date of knowledge about the passing of the decree is a wholly incorrect proposition of law. The learned District Judge, therefore, was absolutely incorrect in his adopting the view that because the period of limitation begins to run from the date of the knowledge and not from the date of the decree, the delay of 4 days in filing the appeal deserved to be condoned. I have no hesitation in holding and observing that the learned District Judge, perhaps by his gross misunderstanding of the aforesaid legal aspect, wrongly held that the period of limitation begins to run from the date of the knowledge. 6. In the present case, the period of limitation had begun to run from 7th August, 2007, the date when the decree was passed by the learned trial Court. 7. For the foregoing reasons, this writ petition is allowed. The impugned judgment is set aside. 8. The setting aside of the impugned judgment should not prejudice respondent No. 1, inasmuch as either because of the non understanding of the correct legal position by respondent No. 1 or by the learned District Judge, respondent No. 1 should not be completely shutout and non-suited. Now being made aware about the correct legal position, it is in the interest of justice that respondent No. 1 should be permitted to file supplementary affidavit to the Delay Condonation Application accompanying the appeal before the learned District Judge, who, based thereupon, should be directed to reconsider, rehear and dispose of afresh the Delay Condonation Application on its merits and in accordance with law. 9. 9. In the ultimate analysis, therefore, even while setting aside the impugned judgment, I direct the learned District Judge to rehear, reconsider and dispose of afresh the Delay Condonation Application in the light of the observations contained in this judgment by permitting respondent No. 1 to file a supplementary affidavit, if she so likes, within four weeks from today wherein she can attempt to explain the delay and offer sufficient cause, if available. The petitioners herein shall have the opportunity of filing reply to the said supplementary affidavit. Petition allowed.