TMI Blog1977 (9) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... It appears that the suit was filed with a court fee of ₹ 20/- only. The plaintiff after obtaining, from the court, an extension of time supplied the deficient court fees on May 6, 1976, on which date the decree was prepared and signed. 3. On April 14, 1976, the appellant, who stays in Ahmedabad, requested Shri Bharatinder Singh, his Advocate in Delhi, in the trial court, to take necessary steps to file an appeal in the High Court and the said Advocate made an application for certified copies of the judgment and the decree on April 17, 1976. Later on the appellant requested Shri P. H. Parekh, Advocate, to file the appeal in the High Court. Shri Parekh was informed by Shri Bharatinder Singh that he had made the application for certified copies in April 1976 and that he would hand over the certified copies as soon as these were received. 4. Since, however, for a long time the said certified copies were not received by him from Shri Bharatinder Singh, Shri Parekh filed another application for certified copies of the judgment and decree on July 14, 1976, after signing of the decree. The said copies were ready on September 17, 1976 and were received by Shri Parekh on that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for a copy thereof. According to the appellant the Explanation should be so read as to enable a party to obtain the benefit of the time prior to the signing of the decree in computing: the period of limitation. In that case the appeal will not be barred., says Mr. Tarkunde. 9. Before we proceed further, we may read Section 12 with the Ex-planation which was for the first time introduced in the new Act in 1963: 12. (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 leave 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 obtaining 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 exclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal by the defendant was held to be barred by the High Court without excluding the time that the plaintiffs had taken for depositing the court fee to enable the court to prepare the decree. In the above context this Court observed as follows: Applying the law as enunciated above to the acts of the case in hand, it will be seen that the drawing up or coming into existence of the original decree, of which the copy was sought, was conditional upon the payment of Court-fee by the plaintiffs within thirty days of the pronouncement of the judgment (30-10-1956). The plaintiffs did not comply with that direction within the time originally specified in the judgment. They deposited the Court fee only on 18-1-1957 within the extended time which was granted without notice to the defendant-appellant. Even after that, the decree was not signed till 30-1-1957. Under the judgment or any rules of the Court, the appellant was not required to take: any step towards the preparation of the decree. No period of the delay in drawing up the decree was attributable to the fault of the appellant. The delay was mainly due to the delayed deposit of the Court-fee by the plaintiffs and partly due to the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be excluded; (iii) to make it clear that any delay in the office of the court in drawing up a decree or order before the application for a copy thereof is made, shall not be excluded. 15. As noted earlier the Explanation was introduced in order to finally put the lid on the controversy with regard to the time requisite for obtaining a certified copy of the decree under Section 12(2). The majority of the High Courts under the old Section 12(2),. without the Explanation, took the view that in excluding the time requisite for obtaining a certified copy of the decree the entire time required for preparation of the decree by the office after pronouncement of the judgment and the signing of the decree was to be excluded irrespective of the fact whether the application for certified copy of the decree was made prior to the signing of the decree or after it. This Court in Lala Bal Mukand (supra), as stated earlier, approved of the view taken by the majority of the High Courts. It is worth repeating that while approving of that view under the old Act this Court made it clear that it expressed no opinion as to whether the law enunciated in Lala Bal Mukand (supra) would hold good i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In other words, the plain and grammatical meaning of the Explanation in our view, is that while computing the 'time requisite' for obtaining a copy of a decree, any time taken by the Court to prepare the decree or order before an application for a copy thereof is made shall be included. 21. The Full Bench overruled a decision of the same court in Sitaram Dada Sawant and Another v. Ramu Dada Sawant AIR1968Bom204 , wherein Chandrachud, J. (as he then was) had taken the view, on the new section, that the appellant therein should be entitled to the exclusion of time between the date on which he applied for certified copies and the date on which those copies were ready for delivery and that the time between the date of the judgment and the date on which the decree was drawn up should not be excluded if the appellant had applied for certified copy of the decree after the decree was drawn up. The Full Bench gave a good deal of importance to what it described as the aspect as to what topic is dealt with by the Explanation. . . . The Full Bench, inter alia, also referred to a decision of the Orissa High Court in Koutuki Sabatani v. Raghu Sethi AIR1970Ori116 where the said Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, under Section 12 a prescribed period of limitation has to be computed certain days are permitted to be excluded in order that a person who desires to appeal is not put to any inconvenience or hardship in the prescribed period being shortened by certain exigencies for no fault of his or for reasons beyond his control. 25. When in the several clauses of Section 12, as mentioned above, certain days shall have to be excluded, what is not to be excluded therefore, has also to be clearly explained. That is the raison d'etre for the Explanation newly introduced. In the entire scheme of Section 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. It will not be enough to say that the meaning of the words shall not be excluded is the same as shall be included . The words shall not be excluded in the Explanation have to play an appropriate role in the setting and context of the expression shall be exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... versy in the matter. 27. The Law Commission, in its wisdom, went to the extent of even suggesting the phraseology of the Explanation at page 76 of the Report. Parliament having taken note of the recommendations of the Law Commission made it clear in the Objects and Reasons while introducing the Bill that it was brought to implement the recommendation of the Law Commission. When the Explanation was added to Section 12, Parliament sought to put a quietus to the long-standing judicial controversy with regard to the time requisite for obtaining a copy by clearly explaining that when time is excluded, as provided for in Sub-section (2) of Section 12, the time that has elapsed from pronouncement of the judgment to the point of time prior to application for a copy of the decree shall not be excluded in computation of the time requisite for obtaining the copy. This is in accord with reason and sound common-sense since a person does nothing in court for obtaining a copy prior to his making an application for a copy when there is nothing, in his way, not to. This was the reason underlying the Explanation which prompted the legislature not to permit exclusion of such idle time of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion by including that excluded period for the benefit of a person prior to his making an application for copy. The interdict of the Explanation must be respected. 31. The subject-matter of Section 12(2) and the Explanation is identical and, with respect, we are unable to agree with the opinion of the Full Bench in Subhash Ganpatrao Buty (supra) that there is a dichotomy of topic in the said two provisions. We have seen that there may be scope for two views on the Explanation and that would inevitably forbid a mere grammatical construction of the same on the touchstone of the plain text divorced from the object of the provision. The real intent will have to be discovered from the scheme of the provisions. It is by following that rule of construction, we have gone into the history and background of the provision together with the recommendation of the Law Commission, as also the Objects and Reasons of the Bill in order to arrive at the proper intent of the Explanation. 32. In interpreting the provisions of a statute the courts have to give effect to the actual words used whether couched in the positive or in the negative. It is not permissible to alter the cohesive underlyi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decree is prepared after some time elapses. No party, in that event, can exclude that time taken by the court for preparing the decree as time requisite for obtaining a copy if an application for a copy of the decree has not been made prior to. the preparation of the decree. It is only when there is a legal impediment to prepare a decree on account of certain directions in the judgment or for non-compliance with such directions or for other legally permissible reasons, the party, who is required to comply with such directions or provisions, cannot rely upon the time required by him, under those Circumstances, as running against his opponent. 38. When a judgment is delivered in the presence of the parties clearly announcing certain steps to be taken by the plaintiff before the decree can be prepared, the matter stands on an entirely different footing. In the present case without deposit of the deficient court fees by the plaintiff the decree could not be instantly prepared under the law. Time was given to the plaintiff for that purpose and there could be no decree in existence in law until the plaintiff supplied the courts fees. Without the existence of the decree any applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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