Aapka Consultant Judgment Series- In this series, we are providing case analysis of Landmark Judgments of Hon’ble Supreme Court of India.
Udayan Chinubhai v. R.C. Bali
AIR 1977 SC 2319, 1977 SCC (4) 309
JUDGES: P.K. Goswami, V.R. Krishnaiyer and Syed Murtaza Fazalali
Date of Decision: 22-09-1977
FACTS:-
The appeal arises against the judgement and the order of the High Court of Delhi. The trial court decreed the suit by its judgment dated 27-03-1976 and directed the plaintiff-respondent to make up the deficiency in court fee within one month and the plaintiff after obtaining an extension of time from the court supplied the deficient court-fee on 06-05-1976. The decree was prepared and signed on 06-05-1976. Defendant-appellant applied for certified copies on 14-07-1976. Copies were ready on 17-09-1976 and received by defendant-appellant on the same day. The appeal was filed on 29-09-1976 but was dismissed on the ground that the limitation commences from 27-03-1976 and the explanation for delay till 17-09-1976 was explained but appellant failed to explain the delay of 12 days i.e. from 17-09-1976 to 29-09-1976 and thereby, held suit to be time barred.
ISSUE:-
Whether the appellant is entitled to exclude time taken from the date of judgement and preparation of decree for the purposes of limitation if application for certified copy is made after the decree was prepared?
JUDGMENT:-
Before coming to any conclusion, the Hon’ble Court critically referred to the object of the new S. 12. It noted that on reading S. 12(2) with the Explanation, it is not possible to accept the submission that in computing the time requisite for obtaining the copy of the decree by an application for the copy made after the preparation of the decree, the time elapsed between the pronouncement of the judgment and the signing of the decree should be excluded. Sub-clauses (1), (2), (3) and (4) use the expression “shall be excluded” for the purpose of computing the period of limitation. In the entire scheme of S.12 dealing with exclusion of time for the purpose of computing the prescribed period of limitation it is not possible to substitute the words “shall not be excluded” by reading the same as “shall be included” which will introduce an alien concept which is different from that disclosed in the setting of all the provisions.
The court laid the correct legal position of S. 12(2) read with Explanation that a person cannot get exclusion of the period that elapsed between the pronouncement of the judgment and the signing of the decree if he made the application for a copy only after the preparation of the decree. In the present case, without deposit of the deficient court-fee by the plaintiff the decree could not be instantly prepared under the law. On the special facts of this case, therefore, there was no default on the part of the appellant and the appeal was not barred by limitation. In the present case the period of 90 days would count from the date when the respondent had deposited the court fees.
HELD:-
It was held, that time between signing judgment and signing decree not to be excluded if application for copy of decree is made after it is signed. Thereby, allowed the appeal.
