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Petitioner: BARADA PRASANNA LOD VS Respondent: KUBBAD MIA
P L D 1962 Dacca 381
P L D 1962 Dacca 381
Before Syed Mahbub Murshed, Muhammad Asir and Abdus Sattar, JJ
(On reference made by Khondkar Mohammad Hasan and Mujibur Rahman Khan, JJ)
BARADA PRASANNA LOD AND OTHERS‑Appellants
Versus
KUBBAD MIA‑Respondent
Full Bench Reference Case No. 2 of 1960, decided on 26th July 1961.
(a) Full Bench ‑ Reference ‑ Questions not formulated by referring Bench‑Full Bench itself may formulate questions.
(b) Limitation Act (IX of 1908), S. 12 read with Art. 152 "Date of decree" is date of' judgment which pronounced it though decree was prepared and signed on later date‑‑Civil Procedure Code (V of 1908), O. XX, r. 7: [Khan Chand v. Gurdit Singh A I R 1936 Lah. 976 and Pandu v. Rajeswar A I R 1924 Nag. 271 dissented from.]
Held, that "the date of the decree" is the date of the judgment, which pronounced it.
Brenhilda v. British India Steam Navigation Co. 8 I A 159; Abdul Salam v. Abdul Khaliq A I R 1945 Lah. 233 ; Bani Madhub Mitter v. Kali Shankar Dass I L R 13 Cal. 104 East and West Steam ship Company v. Queensland Insurance Co. Ltd. P L D 1960 Kar. 840; Umda v. Rupchand A I R 1927 Nag. 1; Ramey v. Broughton I L R 10 Cal. 652; Bechi v. Ahsan Ullah Khan I L R 12 All. 461; Rakhal Das Mazumdar v. Jogendra Narain Mazumdar 10 C L J 467 ; Golam Gaffar Mandal v. Goljan Bibi I L R 25 Cal. 109 ; Kamini Debi v. Promotho Nath 20 C L J 476 ; Naimuddin v. Imani Mondal A I R 1923 Cal. 308 and Punjaji v. Jairam A I R 1930 Nag. 122 ref.
Kahn Chand v. Gurdit Singh A I R 1936 Lah. 976 and Pandu v. Rajeswar A I R 1924 Nag. 271 dissented from.
Vamanacharya v. Govind A I R 1924 Born. 33 considered.
(c) Limitation Act (IX of 1908), S. 3‑Limitation‑"Statute of repose" ‑ "Quietens title" ‑ Must be strictly complied with ‑"Hardship " no ground for not applying bar of limitation.
The law of limitation, which is a statute of repose designed to quieten title and to bar stale and water‑logged disputes, must be strictly complied with and the Courts cannot refrain from applying the law whenever it is applicable on the ground that hardship would thereby be caused.
Maqbul Ahmad v. Onkar Pratap A I R 1935 P C 85 and Nagendra Nath Dey v. Suresh Chandra Dey 59 I A 283 ref.
(d) Limitation Act (IX of 1908), S. 12 read with Art. 152 ----"Time requisite for obtaining copies"‑Does not mean time "actually" but "properly" required‑Application for copies may be made not necessarily within period prescribed but during subsistence of right to appeal‑Right to appeal subsists during period of limitation prescribed plus days of allowances: [Abdul Wahed v. Abdul Khaleque P L D 1952 Dacca 399 and Bachi v. Ahsan Ullah Khan I L R 12 All. 461 dissented from.]
The time requisite, under section 12, Limitation Act, 1908, does not mean the time actually required, but the time properly required for obtaining copies of the decree and the judgment. If the time actually taken in obtaining the copies is due to any dilatoriness on the part of the appellant, then that time is not allowed to him. But he is allowed any time occasioned by his opponent, or by anything done in the offices of the Court. Section 12 confers a substantive right upon the appel lant to claim the time as excluded.
It would not be correct to say that the right to appeal subsists only during a period beginning from the date of the decree and ending with 30 days from that date. This period has to be calcu lated in accordance with the allowances made under section 12. It is only by adding the periods of exclusion to the period pres cribed by Article 152, as in the present case, that one can compute the period of limitation during which the right to appeal subsists. The right to appeal is not limited to the period prescribed in the Schedule to the Limitation Act.
Therefore under the terms of section 12 the appellant's right is not restricted by the condition that he must apply for a copy of the judgment or decree within thirty days from the date of the decree in order to avail himself of the benefit of sub sections (2) and (3) of section 12 of the Act.
The period of thirty days prescribed by Article 152 is the primary period ; but the total period of limitation itself has to be computed with reference to section 12 and other sections of a similar nature. If the primary period of thirty days prescribed by Article 152 plus the periods which are allowed under section 12 of the Act, show that the period of limitation has not expired, an appellant is entitled to the benefit of section 12 even though he has not applied for a copy of the judg ment or decree within thirty days from the date of the decree.
Murlidhar Shrinivas v. Motllal Ramcoomar A I R 1937 Bom. 162; Badshah Miayan v. Pandurang A I R 1930 Nag. 113; Ram zan Baksh v. Muhammad Ishaq I L R 47 All. 509; Sudhangsu Bhussan Pandey v. Majho Bibi 42 C W N 72; Sarat Chandra v. Bali Kanta 43 C W N 1139 and Abhiram Goswami v. Shlyama Charan Nandi 36 I A 148 ref.
Abdul Wahed v. Abdul Khalique P L D 1952 Dacca 399 and Bechi v. Ahsan Ullah Khan I L R 12 All. 461 dissented from.
(e) Limitation Act (IX of 1908), S. 12‑"Time requisite for obtaining copy"‑Time between pronouncement of judgment and signing of decree, "over which appellant has no control"‑‑To be excluded irrespective of whether application for copy has been made "before" or "after" signing of decree‑Copies of judgment and decree applied for on different dates‑Overlapping period can be excluded only, "once"‑[Abdul Wahed v. Abdul Khalique P L D 1952 Dacca 399 and Falan Chandra Saha's case 8 D L R 509 overruled.]
An appellant is entitled to claim exclusion of the period between the date of the judgment and the date of the signing of the decree, over which he has no control and which trust necessarily elapse, as "time requisite" for obtaining a copy thereof under section 12 (2) of the Limitation Act, 1908, irrespec tive of the question as to whether the appellant has applied for a copy thereof prior to or after the signing of the said decree. When he makes an application for a copy of the decree under subsection (2) and also one for a copy of the judgment under subsection (3) on different dates, he would not be entitled to claim twice the overlapping period in obtaining copies of the judgment and decree.
Abdul Wahed v. Abdul Khalique P L D 1952 Dacca 399 and Falan Chandra Saha v. Monmohan Saha 8 D L R 509 overruled.
J. N. Surty v. T. S. Chettyar 55 I A 161; Pramatha Nath Roy v. Lee 49 I A 307; Jayashankar Mulshankar v. Mayabhat Lalbhal A I R 1952 Bom. 122; Bant Madhub Mister v. Kali Shankar Das I L R 13 Cal. 104; Gabriel Christian v. Chandra Mohan Missir A I R 1936 Pat. 45 ; Secretary of State v. Sm. Parijat Debi A I R 1932 Cal. 331 ; Kahn Chand v. Gurdit Singh A I R 1936 Lah. 976; Federation of Pakistan v. Aspi P L D 1960 Kar. 562: Arun Chandra Swami v. Md. Majib Choudhurv A I R 1955 Assam 129 ; Thakur Jadubir Singh v. Thakur Sheo Naresh Singh A I R 1944 Oudh 154 and Yusuf Ali Khan v. Muhammad Kazim All Khan A I R 1940 Oudh 173 ref.
Bechi v. Ahsan Ullah Khan I L R 12 All. 461 ; East and West Steamship Company v. Queensland Insurance Co. Ltd. P L D 1960 Kar. 840 and Keshab Sugar Works v. R. C. Sharma A I R 1951 All. 122 (majority view) dissented from.
(f) Words and phrases ‑ "Requisite"‑"Obtain"‑Dictionary meaning.
(g) Interpretation of Statutes‑(Statutes of Limitation)‑"Plain meaning" (golden rule)‑"Hardship" no ground for refusing to give effect to "plain meaning" ‑ "Ambiguous" words or words capable of two interpretations‑Beneficial construction, which allows suit or appeal to proceed to be adopted. [Case‑law referred to].
(h) Limitation Act (IX of 1908), S. 3‑Period of limitation --How computed.
In computing the period of limitation one should take (as observed by Beaumont, C. J., in A I R 1937 Bom. 162) the date of the delivery of the judgment as the starting point and the date of the presentation of the appeal as the final point and then add to the period fixed by the relevant Article of the Limitation Act the allowance to which the appellant is entitled under the relevant section. This is how in actual practice the period of limitation may be computed.
(i) Limitation Act (IX of 1908), Ss. 3, 12 read with Art. 152 --"Decree" signed on date beyond 30 days prescribed by Art. 152 Copies applied for within 30 days of pronouncement of judgment--- Computation of period of allowances‑Method.
(j) Specific performance‑Contract of sale of land‑Specific performance of contract decreed‑Decree given effect to by execution and registration of sale deed‑Defendant's appeal no longer "of significance".
Moinul Huq for Appellants.
Azizul Islam for Respondent.
A. S. Chowdhury, A. G., with T. H. Khan. S. R. Pal with Ismailuddin Sarkar and D. C. Bhattacharjee with J. H. Khan Amicus Curiae.
JUDGMENT
MURSHED, J.‑This reference arises out of an appeal in respect of a suit instituted by the respondent‑plaintiff for specific per formance of a contract to sell certain plots of land. The suit was tried by a Munsif of Noakhali, who decreed the same. Thereafter the appellant‑defendants preferred an appeal, which was beard and disposed of by a Subordinate Judge of Noakhali, who dis missed the appeal on its merits and also on a preliminary point that the appeal was barred by the law of limitation on the basis of the following facts:
The judgment and the decree were pronounced by the learned Munsif on the 30th of April 1956. The appellants applied for a copy of the judgment on the 18th of May 1956, and the same was made ready for delivery on the 26th of May 1956. In the meantime, on the 21st of May 1956, the appellants applied for a copy of the decree. The decree was signed on the 11th of June 1956, and a copy thereof was made ready for delivery on the 13th of June 1956. The appeal was filed on the 13th July 1956. The learned Subordinate Judge held that the appeal was barred by the law of limitation, and, in doing so, he disallowed the appellants the benefit of an exclusion of the period of time between the delivery of the judgment and the signing of the decree, as claimed by the appellants under the provisions of sub section (2) of section 12 of the Limitation Act.
Article 152 of the first Schedule to the Limitation Act, which prescribes a period of thirty days from the "date of the decree or order appealed from", is applicable to the case before us. In computing the period of limitation, the learned Subordinate Judge made no allowance to the appellants with regard to the period that elapsed between the date of the pronouncement of the judgment and decree and the date of the signing of the decree, relying on a decision of a Division Bench of this Court in the case of Abdul Wahed v. Abdul Khalique (P L D 1 952 Dacca 399). In the said case one of the points, amongst others, which was decided was that no period which is antecedent to the presentation of the application for a copy of the decree would be considered as "time requisite" for obtaining a copy of the decree. Against the judgment and decree passed by the learned Subordinate Judge, the defendants preferred a second appeal to this Court. The w Division Bench of this Court, before which the hearing of the second appeal commenced, dissented from the views expressed by the previous Division Bench in Abdul Wahed's case and made a reference under Chapter VII of the Rules of this Court. Upon such reference this Full Bench was constituted.
In the order of reference to a Full Bench, the learned Judges of the Division Bench did not formulate the point or points upon which they differed from the decision of the former Division Bench which decided Abdul Wahed's case, nor have they expressly referred the whole appeal for its final decision by the Full Bench. Under Chapter VII of the Rules of this Court the relevant rules are as follows:
"(1) Whenever a Division Court shall differ from any other Division Court upon a point of law or usage having the force of law, the case shall be referred for decision by a Full Bench.
(2) If the question arise in an Appeal from an Appellate Decree or Order, the Court referring the case shall state the point or points upon which they differ from the decision of a former Division Court and shall refer the Appeal for final decision by a Full Bench."
Inasmuch as the order of reference did not specify the point or points of difference on which the reference was made, we have ourselves formulated the following questions which have to be A answered by this Full Bench
(1) What is the date of the decree, from which the period of limitation starts running ? Is the date of the decree the date when the judgment was delivered ?
(2) Is the appellant entitled to the benefit of subsections (2) and (3) of section 12 of the Limitation Act, if he has applied for a copy of the decree or the judgment after the period prescribed in the Schedule to the Limitation Act, which in this case is thirty days from the date of the decree ?
(3) Is the appellant entitled, in computing the period of limitation under section 12, subsection (2) of the Limitation Act, to the exclusion of the period which has elapsed between the date of the delivery of the judgment and the date of the signing of the decree, irrespective of the question whether he has applied for a copy thereof prior to the signing of the decree or after the same was signed ?
(4) Have the cases of Abdul Wahed v. Abdul Khalique and Falan Chandra Saba v. Manmohan Saba (8 D L R 597) been rightly decided ?
We have already noted that Article 152 of the First Schedule to the Limitation Act prescribes a period of limitation of thirty days from the date of the decree. The question is, what is the date of the decree ?
In this connection, we would refer to the provisions of Order XX, rule 7, Civil Procedure Code. Rule 7 reads as follows
"The decree shall bear date the day on which the judgment was pronounced, and, when the Judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree."
Section 2, subsection (2), of the Code defines 'decree' as follows:
" decree' means the formal expression of an adjudication which so far as regards the court expressing it, conclusively determines the rights of the parties in controversy in the suit and may be either, preliminary or final . . . . . . "
'Judgment' has been defined in subsection (9) of section 2 of the Code as follows:
" `Judgment' means the statement given by the Judge of the grounds of a decree or order."
Order XX, rule 6, of the Code provides as follows
"(1) The decree shall agree with the judgment.‑It shall contain the number of the suit, the names and descriptions of the parties, and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit.
(2) * * * * * * * * * *
And section 33 of the Code provides as follows:
"The Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow."
It is thus evident that the Civil Procedure Code expressly provides that the judgment must be followed by a decree, and Order XX, rule 7, of the Code enjoins that the decree shall bear date the day on which the judgment was pronounced. It, therefore, follows that the date of the decree is the date of the judgment, according to the provisions of the Code. In fact, according to the scheme of the Civil Procedure Code, the judgment that is pronounced is accompanied by a precise expression of an adjudication, which conclusively determines the rights of the parties with regard to all or the specific matters in controversy in the suit. The decree is formally pronounced with the judgment which is accompanied by "an adjudication" con clusively determining the rights and liabilities of the parties in the suit and thereafter, according to the provisions of Order XX, rule 6, of the Code, a decree, consonant to the judgment, is drawn up with the particulars specified In the said rule and is signed by the Court in accordance with Order XX, rule 7, bearing the date on which the judgment was pronounced.
From the above it is patent that the date of the decree is the date of the pronouncement of the judgment and the decree so pronounced and awarded is subsequently drawn up and signed. The said rule 6 also specifically provides that the decree should be drawn up according to the judgment which gives a conclusive adjudication of the rights of the parties In respect of all the issues raised in the suit. Thus the date of the decree, as men tioned in Art. 152 of the First Schedule to the Limitation Act, is the date when the judgment was pronounced.
In this connection, it will be useful to refer to a decision of the Judicial Committee of the Privy Council in the case of The Brenhilda v. British India Steam Navigation Company (8 I A 159). In that case the Board had to consider the 35th Rule ordained by the King‑in‑Council, which provided that all appeals from the Vice‑Admiralty Court were to be "asserted" within fifteen days after the date of the decree. It was held that the words after the date of the decree‑‑ meant after the date when the decree was pronounced, not the date when the decree was reduced to writing and signed, Although in that case the Board was not called upon to construe the provisions of the Limitation Act, but upon principles involved therein, it Is relevant to the questions before us and the following observations made in the judgment delivered by the Board may usefully be quoted here:
"It has been urged that the decree was not drawn up In writing and signed by the Court until some considerable time afterwards, and that the parties could not appeal without annexing a copy of the decree to their petition of appeal. But the rule of annexing a copy of the decree to the petition of appeal refers to appeals which are preferred under the Code of Civil Procedure, Act VIII of 1859; It does not apply to appeals preferred or asserted under the 35th section of the rules of William IV. The words "after the date of the decree", according to their Lordships' view of the rule, do not mean after the date when the decree is drawn up in writing, but after the date on which the decree or sentence is pronounced by the Vice Admiralty or Admiralty Court as the case may be. The words, which are constantly used In Acts, which refer to decrees in the Admiralty Court are "the pronouncing of the sentence or decree". Their Lordships, therefore, think that the date of the decree did not mean the date on which the decree was reduced to writing and signed by the Court, but the date on which the High Court delivered their judgment and expressed what the decree was."
From what we have stated above, the conclusion 1s Irresistible that the date of the decree is the date on which it is pronounced, namely, the date on which the judgment is passed. It cannot, therefore, mean the date on which the decree is drawn up and signed. The provision of Order XX, rule 7, of the Code to the effect that the decree as signed by the Court shall bear date the day on which the judgment was pronounced, Is not intended to be a mere decoration on the document upon which the decree is drawn up and signed. The requirement of that rule that it should bear the date of the judgment, In the afore‑said context, necessarily means that the decree as drawn up In a formal document and signed by the Court must bear the date of its birth, I.e., the date on which the judgment was pronounced.
The view that we have taken finds support from a decision of a Division Bench of the Lahore High Court in the case of Abdul salam v. Abdul Khaliq (A I R 1945 Lah. 233) which overruled a previous decision of the same Court in the case of Kahn Chand v. Gurdit Singh (A I R 1936 Lah. 976). We may quote here the following observations of the Division Bench in the aforesaid. Abdul Salam's case:
"Now Article 156 lays down that the terminus a quo for an appeal is the date of the decree or the order appealed from and Order XX, rule 7 provides that the decree shall bear the date on which the judgment is pronounced. Taking both these provisions together and In view of the fact that everybody is presumed to know the law, I am inclined to think that time for appeal starts from the date of the judgment."
The decision of the Full Bench of the Calcutta High Court in Bani Madhub Mitter v. Kali Shunkar Dass (I L R 13 Cal. 104), in fact, expressly decided that the date of the decree is the date on which the judgment was pronounced. Petheram, C. J., in delivering the judgment of the Full Bench, observed as follows:
"The first question is, what is the date of the decree, and for the purpose of ascertaining that it is necessary to look at section 205 of the Code of Civil Procedure. By that section it is provided that a "decree shall bear date the day on which the judgment was pronounced, and when the Judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree", so that whatever may be the day on which the actual signature is made, the date of the decree, for all purposes, is to be the date on which the judgment was pronounced."
It is apparent that In Bani Madhub Mitter's case the Full Bench decided that the date of the decree was the date of the judgment and It further held that, in computing the period of limitation under section 12 of the Limitation Act, the appellant would be entitled to have the period, which intervened between the date of the judgment and the date of signing the decree, excluded. The Full Bench in that case did not hold that the period of limitation would run from the date of signing the decree. It has specifically, stated that the date of the decree is the date of delivery of the judgment. If the date of the decree is taken to mean the date which it Is signed, then the question of exclusion of the period4 between the delivery of the judgment and the signing of the decree, in computing the period of limitation under section 12 of the Limitation Act, would not arise. In fact, all the cases,' which are discussed below In respect of the third question as formulated by us proceed on the footing that the date of the decree, is the date of the judgment. If the date of the decree, namely, the date from which the period of limitation begins to run is taken to be the date on which the decree is formally drawn up and signed, it would be futile and utterly useless to discuss whether the period which intervenes between the pronouncement of the judgment and the signing of the decree would be treated as "time requisite" for obtaining a copy of the decree in order to claim exclusion under subsection (2) of section 12 of the Limitation Act.
A Single Bench of the Lahore High Court In the case of Kahn Chand v. Gurdit Singh has held that the date of the decree is the date of the signing of the same; but this has been overruled by a Division Bench of the said High Court in Abdul Salam's case referred to above. A Full Bench of the West Pakistan High Court In the case of East and West Steamship Company v. Queensland Insurance Co. Ltd. (P L D 1960 Kar. 840), has held that the date of the decree is the date of the judgment and this settles the law for West Pakistan Courts. Similarly, a Single Bench decision of the Nagpur Judicial Commissioner's Court in the case of Pandu v. Rajeswar (A I R 1924 Nag. 271) was overruled in the Full Bench decision of that Court in the case of Umda v. Rupchand (A I R 1927 Nag. 1), where it was observed as follows;
"The Limitation Act gives various periods within which appeals from decrees must be filed, and those all commence from the date of the decree, which is the date of the judgment . . . . ."
Later in the judgment it has again been observed:
"It is clear that the limitation for an appeal runs from the date of the decree, which is the date of the judgment."
In the case of Ramey v. Broughton (I L R 10 Cal. 652), Garth, C. J., at pages 659‑50 has observed as follows;
"By the 151st Article of the schedule to the Limitation Act the twenty days are to be reckoned from the date of the decree; and by the 20th section of the Civil Procedure Code, the decree Is to bear date the day on which the judgment Is pronounced, so that the appeal must clearly be filed within twenty days from the day on which the judgment is pronounced."
After quoting the aforesaid observations of Garth, C. J., in Ramey's case, Mahmood, J., in delivering the judgment of the Full Bench in the case of Bechi v. Ahsan Ullah Khan (I L R 12 All. 461), has observed at page 474 of the report as follows:
"In the present case the decree bad already been signed on the 31st May 1887, and the defendant applied for a copy on that very day. It cannot be said that the fact of the decree having remained unsigned up to that date in any way delayed their obtaining a copy, and therefore no allowance should be made to them for the period…
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