Nande and Others vs Manga

Narendra Mohan Kasliwal, J.—Both these appeals are disposed of by one single order as the parties in both these cases are the same and they arise out of two identical orders passed by the learned Additional District Judge, dated 21-5-1987. There were two civil suits Nos. 106/74 and 214/74 pending between the parties in the court of Munsif and Judicial Magistrate First Class, Karauli. Both the above suits were decreed by the learned Munsif by judgment dated 22-101983. The defendants aggrieved against the judgment and decree passed against them in both the suits, filed two appeals in the court of Addl. District Judge, Karauli. The learned Additional District Judge, Karauli who heard these appeals took the view that both the appeals were time barred and as such dismissed the appeals holding the same to be time barred.

Aggrieved against the judgment and decree of the learned Additional District Judge, Karauli, the defendants have filed these two appeals. The admitted facts of the case are that the date of judgment and decree of the trial court is 22101983. The appellants had applied for copy of judgment on 22-10-1983 itself and the certified copy of the judgment was obtained on 15-12-1983. The defendants applied for certified copy of the decree on 16-12-1983 and the copy of the decree was obtained on 20-12-1983. The appeals were filed on 2-1-1984 and there was winter vacation from 24-12-1983 to 1-1-1984. The learned Additional District Judge took the view the application for obtaining the certified copy of the decree was itself filed long after 30 days and there was no bonafide mistake so as to condone the delay.

I have heard Mr. Goyal for the appellants and Mr. Dalip Singh for the plaintiff-respondent. It was contended by Mr. Goyal that the defendant-appellants had applied for certified copy of the decree within the extended period of limitation which they were entitled to obtain on the basis of the time taken in obtaining the certified copy of the judgment It was also submitted that u/s 12 of the Limitation Act the appellants were entitled for the exclusion of time in obtaining the certified copies of both judgments as well as decree. Reliance in support of the above contention is placed on Om Prakash and Another Vs. Sm. Sohan Devi and Others, and Murlidhar Shrinivas v. Motilal Ramcoomar AIR 1937 Bom 162, Mr. Dalip Singh learned Counsel for the plaintiff-respondent was unable to refute the contentions raised by Mr. Goyal on account of the above referred decisions of the Allahabad and Bombay High Courts.

It is admittedly proved on record that the judgment of the trial court was given on 22-10-1983. The defendants had applied for certified copy of the judgment on 22-10-1983 and the copy of the judgment was made available on 15-12-1983, The defendants had applied for certified copy of the decree on 16-12-1983 and the same was obtained on 20 12-1983. From the above facts it is abundantly clear that the application for copy of the decree had been applied on 16-12-1983 and till that date, the defendant-appellants had time to file appeal after excluding the time in obtaining the certified copy of the judgment. From 24-12-1983 to 1-1-1984 there was winter vacation and the first appeal in both the cases were filed on 2-1-1984. In view of these circumstances the learned Additional District Judge committed a clear error of law in holding the first appeals as time barred. The defendant-appellants were entitled to the exclusion of time u/s 12 of the Limitation Act in obtaining certified copies of judgment as well as decree and while excluding such time, the appeals were clearly within limitation on 2-1-1984.

In the result both these appeals are allowed, the judgment and decree passed by learned Additional District Judge, Karauli dated 21-5-1987 in both the above appeals are set aside and the case is remanded back to the learned Additional District Judge, Karauli to decide the appeals on merits according to law. There will be no order as to costs.