Gauhati High Court
Pradip Kumar Kalita vs Smt. Hiran Prova Kalita on 25 January, 2002
Equivalent citations: AIR 2002 GAUHATI 60, 2002 A I H C 1142, (2002) 2 MARRILJ 12, (2003) 2 DMC 316, (2002) 3 RECCIVR 278
Author: A.K. Patnaik
Bench: A.K. Patnaik
JUDGMENT R.S. Mongia, C.J.
1. For computing the period of limitation for filing an appeal, whether the same starts from the date of Judgment or the date of the decree appealed against is the question that is required to be answered by the Full Bench.
2. The aforesaid question has arisen under the following circumstances. The appellant Sri Pradip Kumar Kalita (Husband) had filed a suit for divorce against the respondent Smt. Hiran Prova Kalita (Wife) in the Court of the District Judge, Nalbari. However, the suit was dismissed vide judgment dated 9-1 -95. It may be observed here that the appellant had applied for the certified copy of the judgment on 13-3-95 which was ready for delivery on 1-4-95. The decree had been signed by the trial Court (District Judge, Nalbari) on 4-4-95. From the records we find that application for getting certified copy of the decree was made on 28-2-96 and the same was ready for delivery on 4-3-96. The husband filed the First Appeal No. 24/96 in this Court on 24-4-95 along with an application under Section 5 of the Limitation Act for condonation of delay in filing the appeal. Mr. Justice V. Dutta Gyani vide judgment and order dated 28-2-96 held that no case had been made out for condonation of delay in filing the appeal and consequently dismissed the application under Section 5 of the Limitation Act. Resultantly, the F.A. No. 24/96 was also dismissed as barred by time. Against the judgment dated 28-2-96 in F.A. No. 2/96 the appellant Pradip Kumar Kalita filed L.P.A. No. 2/96 which came up for hearing before a Division Bench on 27-11 -2000. The Division Bench was of the view that it need not be gone into as to whether any case for condonation of delay in filing the appeal had been made out or not, inasmuch as, according to the Division Bench the appeal had been filed within limitation by computing the period of limitation from the date of the decree. The decree having been passed on 4th April, 1995 and the First Appeal having been filed on 24-4-95 was held to be within time. The Division Bench observed as under-
"Mr. N. Dhar. learned counsel for the appellant has drawn pointed attention of the Court to the decree passed in the instant case which is dated 4th of April, 1995. The appeal was admittedly filed on 24th of April, 1995 and therefore the same is within limitation period. The position might have been different if the Court of law has to calculate the limitation from the date of judgment, but this is not the position in law. The position in law is that an appeal is maintainable against the decree. It does happen several times that a Court of law delivers the judgment on a particular date and prepares the decree later on. This is what appears to have happened in the instant case."
3. Pursuant to the directions of the Division Bench in LPA No. 2 of 1996 the F.A. No. 24/96 was placed for hearing before a learned single Judge (J. N. Sarma, J). It was felt by J. N. Sarma J. that what had been held by the Division Bench as observed above, was against the observations made by the Apex Court in State of U.P. v. Maharaja Narain. reported in AIR 1968 SC 960 as also the provision of Order XX, Rule 7, Code of Civil Procedure. It was observed that the matter requires consideration by a larger Bench. That is how we are seized of the matter.
4. The First Appeal No. 24/96 was filed under Section 28 of the Hindu Marriage Act, which is in the following terms-
"28. Appeals from decrees and orders.--(1) All decrees made by the Court in any proceedings under this Act shall, subject to the provisions of Sub-section (3), be appealable as decrees of the Court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in the exercise of its original civil jurisdiction.
(2) Orders made by the Court in any proceeding under this Act under Section 25 or Section 26 shall, subject to the provisions of Sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decision of the Court given in exercise of its original civil jurisdiction.
(3) There shall be no appeal under this Section on the subject of costs only.
(4) Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order."
5. The learned counsel for the appellant argued that under Sub-section (4) of Section 28 of the Hindu Marriage Act (supra), the appeal is to be preferred within 30 days from the date of the decree and therefore the starting point for computing the period of limitation would be the date of the decree and not the date of the judgment. Accordingly, learned counsel submitted that the appeal having been filed within 30 days of the drawing up of the decree, the same was within prescribed limitations. He further submitted that the limitation cannot start running unless the decre is drawn up and signed which is to contain the formal expression of an adjudication, which, so far as regards the Court's expressing it, conclusively determines the rights of the parties with regard to all the matters in controversy in the suit. According to the counsel, apart from the fact that it is the decree which is to contain formal expression of the Court's determination of conclusive rights of the parties, the appeal under Section 28 of the Hindu Marriage Act is against the decree and, therefore, it will be reasonable to conclude that the period of limitation for filing an appeal is to be computed from the date of the decree and not from the date of the judgment. Learned counsel referred to the definition of 'decree" as provided under Section 2(2) of the Code of Civil Procedure as also the provisions of Order XX, Rule 6 of the Code as to what are to be the contents of a decree. The said provisions may be reproduced hereunder-
"2 (2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144. but shall not include-
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order or dismissal for default." "Order XX, Rule 6 : Contents of decree : (1) The decree shall agree with the Judgment; it shall contain the number of the suit, the (names and description of the parties, their registered addresses) and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit.
(2) The decree shall also state the amount of costs incurred in the suit, and by whom or out of what properly and in what proportions such costs are to be paid.
(3) The Court may direct the costs payable to one party by the other shall be set off against any sum which is admitted or found to be due from the former to the latter."
6. The learned counsel for the Respondent, however, argued that the limitation for filing the appeal would start from the date of the judgment and not from the date of the decree though the appellant filing the appeal would be entitled to exclude the time spent by him in obtaining certified copy of the decree, provided the application for obtaining the certified copy of the judgment and decree is made within the period of limitation. Referring to the provision of Section 12 of the Limitation Act he specifically drew our attention to Sub-section (2) of Section 12 of the Limitation Act. The entire Section 12 of the Limitation Act may be reproduced hereunder-
"12. Exclusion of time in legal proceedings.-- (1) In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded.
(2) In computing the period of limitation for an appeal or an application for leavy to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded.
(3) Where a decree or order is appealed from or sought to be revised or reviewed, or where an application is made for leave to appeal from a decree or order, the time requisite for obtaining a copy of the judgment on which the decree or order is founded shall also be excluded.
(4) In computing the period of limitation for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded."
7. Larned counsel for the respondent on the basis of the provisions of Order XX, Rule 7, CPC also submitted that the date of the decree is to be reckoned as the date of the judgment. Order XX. Rule 7, CPC is in the following terms :
"7. Date of decree : 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."
8. After hearing the learned counsel for the parties, we are of the view that there is no substance in the arguments of the learned counsel for the appellant. On the other hand, we find force in the submissions made by the learned counsel for the respondent. No doubt under Section 28 of the Hindu Marriage Act the appeal is against the decree under Sub-section (4) of Section 28. The provisions of Section 12(2) of the Limitation Act clearly indicate that the limitation for filing appeal is to be reckoned from the date of the Judgment, which date shall be excluded while computing the period of limitation and also the time spent for obtaining copy of the decree appealed against. Under Article 116 of the Limitation Act which provides for limitation for filing appeal to the High Court, it mentions, that the time for limitation starts running from the date of decree. However, as per the provisions of Order XX, Rule 7, CPC (supra), the date of the decree is to be same as date of judgment. As per provision of Section 12(2) of the Limitation Act read with explanation thereto, the limitation is to start running from the date of judgment, but the period spent in obtaining certified copy of the judgment and decree is to be excluded subject to the condition that application for obtaining certified copy of the Judgment and decree is filed within the period of limitation, irrespective of the fact whether decree has been drawn or not. If the copy of the decree is applied for after the period of limitation Is over, then the period required for obtaining copy of the decree or the time taken by the Court to prepare the decree would not be excluded (Ref. Explanation to Section 12).
9. As per provision of Section 33 of the Code of Civil Procedure it has been provided that the Court, after the case has been heard, shall pronounce the judgment, and on such Judgment a decree shall follow. Order XX, Rule 7. CPC (supra) provides that the decree shall bear the date or the day on which the judgment is pronounced. No doubt, as per the definition of the decree under Section 2(2), CPC the same contains the expression of an adjudication by the Court conclusively determining the rights of the parties with regard to the matters in controversy. The 'decree' as per the provision of Order XX, Rule 6, CPC is to contain the number of the suit, description of the parties, their registered addresses and specify clearly the relief granted. However, that does not mean the period of limitation would start running from the date of the decree as has been canvassed by the learned counsel for the appellant. If an application for obtaining a certified copy of the judgment and decree is made within limitation, the appellant can wait for the decree as drawn and certified copy thereof made available before filing the appeal. The period between date the application for certified copy of the decree and the date same is ready for delivery would be excluded under Section 12(2) of the Limitation Act.
10. We may refer here to the provision of Order XX. Rule 6-A, CPC. The same is in the following terms :
"6A. Last paragraph of Judgment to indi-
cate in precise terms the reliefs granted --(1) The last paragraph of the judgment shall state in precise terms the relief which has been granted by such Judgment.
(2) Every endeavour shall be made to ensure that the decree is drawn up expedi-tlously as possible, and, in any case, within fifteen days from the date on which the judgment is pronounced, but where the decree is not drawn up within the time aforesaid, the Court shall if requested so to do by a party desirous of appealing against the decree, certify that the decree has not been drawn up and indicate in the certificate the reasons for the delay, and thereupon-
(a) an appeal may be preferred against the decree without filing a copy of the decree and in such a case the last paragraph of the Judgment shall, for the purposes of Rule 1 of Order XLI, be treated as the decree: and
(b) so long as the decree is not drawn up, the last paragraph of the Judgment shall be deemed to be the decree for the purpose of execution and the party interested shall be entitled to apply for a copy of that paragraph only without being required to apply for a copy of the whole of the Judgment; but as soon as a decree is drawn up, the last paragraph of the judgment shall cease to have the effect for a decree for the purpose of execution or for any other purpose;
Provided that, where an application is made for obtaining a copy of only the last paragraph of the Judgment, such copy shall indicate the name and address of all the parties to the suit."
11. It will be seen from Order XX, Rule 6A (1) that the last paragraph of the Judgment shall state in precise terms the relief which has been granted by such Judgment. Sub-rule (2) of Rule 6A of Order XX further provides that an endeavour is to be made by the Court to ensure that the decree is drawn up as expeditiously as possible and in any case within fifteen days from the date on which the judgment is pronounced. The Court under Sub-rule (2) can be requested that the decree has not been drawn up under Order XX, Rule 6A (2) (a) and the appeal may be preferred against the decree without filing a copy of the decree and in such case the last paragraph of the judgment shall, for the purpose of Rule 1, Order XLI would be treated as decree and till the de-
cree is not drawn last paragraph of the Judgment would be treated as decree. From this it is also indicative that the starting point for computing limitation for filing an appeal is the date of the judgment and not the date of decree.
12. In view of our aforesaid discussion, our answer to the question posed in the opening paragraph of this judgment is that the limitation for filing an appeal would start running from the date of the judgment and not the date of the decree. The date of the decree would be deemed to be the date of the judgment. However, if an application is made for obtaining certified copy of the judgment and decree within the period of limitation, the period spent in drawing up the decree as well as the time spent in obtaining a copy of the decree would be excluded.
13. For the foregoing reasons the Reference In FA No. 24/96 stands disposed of in the above terms. Further, we set aside the judgment and order dated 29-11-2000 passed in L.P.A. No. 2/96 which held that the appeal was within time. The L.P.A. No. 2/96 is remanded back to Division Bench for decision in accordance with law.