Authored By : William Comer Petheram, Mitter

William Comer Petheram, C.J.

1. The reference in these two cases involves the question ofthe construction of Section 12 of the Limitation Act read along with article152 of the second schedule of the same Act.

2. Article 152 limits the time for an appeal under the Codeof Civil Procedure to the District Judge to 30 days from the date of the decreeor order appealed against; and the question is, from what date is this periodto be computed

3. The first question is, what is the date of the decree,and for the purpose of ascertaining that, it is necessary to look at Section205 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, andwhen the Judge has satisfied himself that the decree has been drawn up inaccordance with the judgment, he shall sign the decree," so that whatever maybe the day on which the actual signature is made, the date of the decree, forall purposes, is to be the date on which the judgment was pronounced.

4. Bearing that in mind, and also bearing in mind that underSection 541 of the Code of Civil Procedure, it is necessary that the Memorandumof Appeal shall be accompanied with a copy of the decree, it would be unfair tocompute the period of limitation, in all cases, from the date on which thejudgment was delivered, because it is obvious that things may intervene so asto prevent the decree being signed until after the expiration of the wholeperiod of 30 days allowed for preferring the appeal, and so the appeal may berendered impossible without any fault of the parties; and therefore Section 12of the Act provides that in computing this period of 30 days, the timerequisite for obtaining a copy of the decree appealed against shall beexcluded; and the question really in this case is, what is the meaning of thesewords.,

5. The facts are (taking Special Appeal No. 2065 first) thatthe judgment was pronounced on the 17th July 1883, and consequently that is tobe taken as the date of the decree. The decree was not in fact signed until the23rd July, so that until that day the appellant could not have obtained thenecessary materials, the copy of the decree, to enable him to appeal. Heapplied for a copy on the 3rd August and obtained it on the 11th idem, so thathe is under Section 12 of the Limitation Act entitled to have these daysexcluded in computing the time taken in presenting his appeal. The appeal waspresented on 30th August, and the period of limitation prescribed-thirty daysfrom the date of the decree-is exceeded, even after excluding eight days fromthe 3rd to 11th August (if it is calculated from the date of the decreeitself). But in our opinion the fact that the decree was not in existence, thatis, signed by the particular Judge, and could not therefore be copied until23rd July, that is, six days after the date that it bears, entitles the appellantto ask us to deduct those six days in addition to the eight days, and thus tohold that under Section 12 the appeal has been presented within the prescribedperiod.

6. In this case, the appellant obtained a copy of the decree(having made his application earlier) on the 11th August 1883, and he filed theappeal on the 30th idem, and was therefore well within time.

7. As to the other case, the law of course is the same; andat first sight it looks as if the appeal were beyond time, but, on examiningthe facts, it appears that the last day of the period of limitation was aSunday, and therefore the time was extended to Monday, the 7th of April;consequently in this case also the questions must be answered in theaffirmative, and the appeal must be taken to have been filed in time.

Mitter, J.

8. The judgment, therefore, of the lower Appellate Court inthese cases will be reversed, and the cases will be remanded to that Court tohear the appeals on the merits.

.

Bani Madhub Mitter and Ors.vs. Matungini Dassi and Ors.(05.05.1886 - CALHC)