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TMI Blog1998 (3) TMI 714X X X X Extracts X X X X X X X X Extracts X X X X ..... ant are as follows:- Judgment under appeal was pronounced on 26.8.1995. Application for certified copy was filed on 29.8.1995, stamp paper was called on 25.10.1995 and it was produced on 28.10.1995. Certified copy was ready on 6.11.1995, it was notified on 9.11.1995 and the appellant took delivery of the copy on the same day. The appeal was filed on 5.2.1996. If the appellant is allowed to exclude 3 days granted under R. 242 of the Civil Rules of Practice, Kerala, the appeal is within time. 3. S. 12(2) of the Limitation Act, 1963 reads as follows:- 12. Exclusion of time in legal proceedings- 1) X X X 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. Rule 242 of the Civil Rules of Practice, Kerala reads as follows:- 242. Calling for stamp papers:- Every day between the hours of 3 and 5 p.m. a list showing the applications in which records have been received and the number of stamp papers require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Andhra Pradesh High Court in In re Javvaji Venkateshwarlu, AIR 1974 AP 319, and Muthulakshmi v. Swaminathan (1981) 2 MLJ 94, The learned Judge quoted with the approval a decision of the Orissa High Court, Smt. Aparajitha Dibya v. Binod Bohari Patra. 5. We will presently consider the Bench decision of this Court reported in 1961 KLT 321 (supra). The above case arose under R.234 of Civil Rules of Practice (1956, TC). The question considered by the Bench was whether the period allowed for deposition the printing charges on an application for copy of judgment should be excluded in the computation of the period of limitation for an appeal under S. 156 of the Limitation Act, 1908. Sub-s.(3) of S. 12 of the Limitation Act, 1908 provided that Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of the judgment on which it is founded shall also be excluded . R. 234 of the Civil Rules of Practice (T.C.) provided as follows:- Deposit of printing charges:- The applicant shall be informed by notice of the amount payable by him for printing charges..... He will also be directed to pay within a week of the notice that amount in Court, in default of whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time which is occupied by the officer who has got to provide that copy, in making the copy. 6. Thereafter the learned Judges have observed that it has been the consistent practice in this Court, as well as in the High Courts of Travancore-Cochin, Travancore, Cochin and Madras, not to exclude from computation the period availed of by the party in supplying the printing charges after due notification. We have gone through carefully the decisions relied on by the learned Judges. In AIR 1922 PC 352 (supra) their Lordships of the Privy Council on the facts of the case came to the conclusion that the appellant who was the defendant in the suit did not act diligently to obtain a copy of the decree or order. As per the relevant rules of the Calcutta High Court every memorandum of appeal shall be accompanied by copy of the decree or order appealed from. The appellant did not comply with this rule when he filed the memorandum of appeal on 30.8.1960. A decree had been passed in the suit against the appellant and in favour of the respondent on 14.2.1918. An application filed by the appellant to set aside the decree was refused on 26.7.1918. It is against that order he filed the appeal before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the benefit of the above section would be applied only to cases where Civil Procedure Code required that the memorandum of appeal should be accompanied by copies of the judgment and decree and, therefore, the appellant cannot claim the benefit of the section. Their Lordships found that there is no reference to a Civil Procedure Code or any other Code in S. 12 of the Limitation Act. But even then it was held that the time requisite for obtaining certified copy of the judgment is liable to be taken into consideration. The reasoning was that the decree may be complicated, and it may be open to draw it up in two different ways, and the practitioner may well want to see its form before attacking it by way of memorandum of appeal. As to the judgment no doubt when the case does not come from up country the petitioner will have heard it delivered, but he may not carry all the points of a long judgment in his memory. After referring to the observation made by the High Court that the elimination of the requirement to obtain copies of the documents was part of an effort to combat the dilatoriness of some Indian practitioners. Their Lordships held that it could be achieved by the High Court be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order would have been deducted in calculating the period of limitation in filing the appeal. The expression time requisite cannot be understood as the time absolutely necessary for obtaining the copy of the order. What is deductible under S. 12(2) is not the minimum time within which a copy of the order appealed against could have been obtained. Sub-s. (2) of S. 12 enlarges the period of limitation prescribed under entry 157 of Schedule I. That section permits the appellant to deduct from the time taken for filing the appeal, the time required for obtaining the copy of the order appealed from and not any lesser period which might have been occupied if the application for copy had been filed at some other date. That section lays no obligation on the appellant to be prompt in his application for a copy of the order. Reference was made by the Supreme Court to AIR 1922 PC 352 (supra) and AIR 1928 PC 103 (supra) and it was observed that the observations in those decisions would be relevant only when the appellant was in default. It was further observed that there can be no question of any default, if the steps taken by the appellant are in accordance with law. If we examine the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egarding the consistent practice followed by this Court as well as the High Court of Travancore-Cochin, Travancore, Cochin and Madras. If we examine the provisions contained in the Civil Rules of Practice of the former States it can be seen that there was marked difference in the terms of the relevant rule. The provision parallel to R.242 of the Civil Rules of Practice, Kerala where contained in R.541 of the Rules of Civil Courts Guide which came into force on 1.1.1120(ME) in State of Travancore. The relevant portion of R.541 reads as follows:- 541.Every day between the hours of 3 and 5 p.m., a list showing the applications in which the records have been received and the number of stamp papers required shall be prepared by the examiner and affixed to the Court's notice board. Such lists shall remain suspended for seven days, or if the last day is a holiday, till the next Court day. (It is open to the applicant to furnish the necessary impressed sheets as soon as the quantity required is known. The seven days are allowed to give him reasonable time, but all delay must count against him.). If the required stamp papers have not been deposited by 3 p.m. on the 8th day counting that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted. Therefore, the consistent practice referred to by the teamed Judges was in accordance with the rules themselves. It is tree that in R. 214 which was the relevant Rule under the Civil Rules of Practice, T.C. (1956) the words 'all delay must count against him' were not there. But it is not seen that any argument was put forward before the Bench on the basis of the difference in the wording of the T.C. Rules. The amendment which was brought to the Kerala Rules in 1985 by substituting the words 'three clear working days', according to us, would show that the intention is to give full benefit of the period granted under the rule. It that be so, it cannot be the effect of the rule that the applicant is disabled from excluding the period even if he has complied into the terms of the rules. Since the present Rule do not contain the provision that 'all delay must count against him' we are of the view that the decision of the Supreme Court AIR 1968 SC 960 (supra) would be directly applicable to this case. S. 12(2) of the Limitation Act does not lay an obligation on the applicant to be prompt in producing the stamp paper. It can not be held that the applicant was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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