Sagarmal Marwari vs Lachmisaran Misir

Dawson Miller, C.J.—This is a question of limitation. The case was heard before the learned District Judge of Bhagalpur on the 6th January, 1922. On the 8th January after the hearing, the learned Judge left Bhagalpur for Dumka to hold sessions there. On the 17th January he appears to have written a judgment and signed it but this was not communicated to anybody and certainly not delivered in open Court as provided by Order XX, rule 1. On the 4th February he returned to Bhagalpur and on the 10th February a decree was prepared after the signatures of the pleaders on each side had been taken. Nobody apparently knew anything about the judgment having been written or signed by the learned Judge until the 10th February and in fact as the learned District Judge himself says there was no delivery of judgment in Bhagalpur before that date; nor does it appear that there was any delivery of judgment anywhere else. The appeal in this case was filed on the 18th May and the question arises whether that was within the 90 days prescribed by Article 153 of the Limitation Act for an appeal to the High Court. The rules provide in terms that judgment shall be pronounced in open Court either immediately after the case has been heard or on some future date of which due notice shall be given to the parties or their pleaders. It is contended by the respondents that the judgment having been written by the learned Judge and signed on the 17th January although it was not pronounced on that date the limitation period runs from that day. I am entirely unable to accept this view. There was in fact no judgment delivered until it was pronounced in open Court according to the rules. The decree was prepared on the 10th February and I understand it was dated the 17th January, the day upon which the judgment was written and signed by the learned Judge although not communicated to anybody. Under the Limitation Act the period of limitation begins from the date of the decree or order appealed from and under Order XX, rule 7, the decree shall bear date, the day on which the judgment was pronounced. Therefore, even if the decree was dated the 17th January that date in fact was altogether wrong because at that time no judgment had been pronounced at all and whatever the date may be upon the face of the decree it ought to be dated the 10th February when the judgment was pronounced. In these circumstanced it seems to (sic) quite clear that the period of limitation begins from the 10th February. The appeal in fact was filed more than 90 days after the 10th February but it appears from the report of the learned District Judge that an application for copies of the judgment and decree was made on the 30th January although at that time judgment had not been pronounced and no decree was drawn up, and on the 21st February, the copies were supplied. Therefore the time occupied in obtaining copies of the judgment and decree between the 30th January and the 21st February, ought to be deducted but as the limitation period did not begin to run until the 10th February the period between the 10th and 21st February may he deducted in this case. It would follow, therefore, deducting these days, that the appeal was entered in time. For the purposes of limitation it seems to me that it is impossible to hold, having regard to the Statutes to which I have referred, that the date of the judgment should be any other than that upon which judgment is pronounced in Court when the parties know the effect of that judgment whether it would be necessary for them to appeal or not. There may be cases, I can conceive, where the judgment has not been properly pronounced in open Court, when, for example, a Judge dies after having written and signed his judgment or there may be other cases in which the failure to pronounce judgment in open Court may be a mere irregularity which, under the provisions of the Code is not fatal to the validity of the judgment. In the present case, however, it seems to me impossible to hold that the period of limitation could begin before in fact the parties were aware by the pronouncement of judgment in open Court, what the judgment in fact was. We are told that in many cases it is not the practice to pronounce judgment in open Court. If that is so I can only say that it is a direct breach of the practice laid down in Order XX, rule 1, and in all cases in my opinion that rule ought to be complied with. The appellant is entitled to his costs of this application which has been (sic) opposed by the respondents.

Mullick, J.

I agree.