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TMI Blog1953 (9) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... asis of the sale-deed, the purchaser had filed a suit for a declaration of patta which was decreed on the admission of the Plaintiff. The Plaintiff, however, sub-sequently paid the entire amount as agreed to, and has got back possession of the lands. The Defendant has no right to retain the patta in his own name and the Plaintiff is entitled to a declaration that he is entitled to restitution of the same. The Plaintiff had filed a suit for a declaration and restitution of patta on 26th Ardibehisht 1352 F. which was dismissed for want of evidence and the Plaintiff is entitled to file a fresh suit. 3. The Defendant in his written statement, apart from other objections, raised the plea that a fresh suit is not tenable and that the previous Judgment operated as 'res judicata'. On these pleadings the Court of first instance framed four issues and after hearing the arguments of the parties on the legal issues dismissed the Plaintiff's suit having held that the previous judgment operated as 'res judicata' and that the present suit is not tenable. Aggrieved by this judgment, the Plaintiff filed an appeal to the District Court on 13th Farwardi 1356 F. Another appeal was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he date of the preparation of the decree under Section 12, Limitation Act. Reliance was placed on the cases of Keshar Sugar Works, Bombay v. R.C. Sharma AIR 1951 All 122 (G); Jyotindranath v. Lodna Colliery Co. Ltd. AIR 1921 Pat 175 (H); 'Secy of State v. Sm. Parijat Debi AIR 1932 Cal 331 (I); Mukunda Ramkrishna v. Bisansa Sakharamsa AIR 1933 Nag 125 (J); Gokul Prasad v. Kumar Bahadur AIR 1935 Oudh 30 (K) and Pramathnath v. William A. Lee AIR 1922 PC 352 (L). 6. In order to appreciate the view points of the learned Advocates, a reference first to the provisions of Section 12 and Article 152, Limitation Act, Order 20, Rule 7 and Order 41, Rule 1, Code of Civil Procedure is necessary. But before considering these provisions of law, we would like to mention some of the admitted facts. 7. It is admitted that on 6-6-1354 F. the Munsiff, Parbhani, dismissed the suit on the statement of the Pleader for the Plaintiff that he is neither appearing nor making any arrangements for adducing the evidence. It is further admitted that on 29th Isfandar-1356 F. that is, after a lapse of a period of one year and nine months, an application was filed on behalf of the Plaintiff for the copy of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 'obtaining'. There is no definition of the expression 'time requisite' used in this section. But it has been, held in the case of Subramanyan v. Narasimham AIR 1920 Mad 359 (2) (M), to mean reasonably requisite. No hard and fast rule can be laid down to meet all cases that occur under this provision. In the case of Bechi v. Ahsanullah Khan and Ors. 12 All 461 (FB) (N), it has been laid down that the expression 'the time requisite for obtaining a copy' cannot include anticipation of the Appellant asking for copies in The usual way. 9. In ' AIR 1922 PC 352 (L)', their Lord-ships of the Privy Council observed that: No period can be regarded as requisite under the Act which need not have lapsed if the Appellants had taken reasonable and proper steps to obtain the order. And in--Jijibhoy N. Surty v. T.S. Chettyar Firm AIR 1928 PC 103 (O), Lord Phillimore in delivering the judgment of the Privy Council observed as follows: The word 'requisite' is a strong word; it may be regarded as meaning something more than the word 'required'. It means 'properly required' and it throws upon the pleader or Counsel of the Appellant the necessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uisite for obtaining the copy of See A.I.R. Commentaries on the Limitation Act, 3rd (1952) Edn. S. 12, Note 10. the decree appealed against, came up for consideration, and so far as we can see, the only ground, on which it was, held that the period taken for preparation of the decree must also be considered to be the 'time requisite' for obtaining a copy, was that it would otherwise be unfair to the Appellant. This case came up for consideration before the Full Bench of the Allahabad: High Court in two cases: (1)--'12 All 79 (Q) and (2)--'12 All 461 (N). (12) In--'12 All 79 (Q)', it has been laid down that: 'the time requisite' within the meaning of Section 12, Limitation Act does not mean requisite by reason of the carelessness or negligence of the Applicant. It means the time occupied by the Officer who has got to provide the copy, in, making the copy. In--'12 All 461 (N)', it was held that in computing the' time to be excluded under Section 12, Limitation Act from a period of limitation, the 'time requisite for obtaining a copy' does not begin, until an application for copies has been made. If, therefore, after judgment, the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmanna v. Dyamappa Bhusappa AIR 1940 Bom 415 (S T), it has been held by Beaumont C.J. and Sen J. that: The actual delay in applying for the copy of the decree was not very material as the appeal was filed very shortly after the application for the copy. The Applicant was entitled to a reasonable time to apply for a copy, since he must have known that the decree would not be drawn up for a few days. The party was entitled to some time to make up his mind whether a copy of the decree was required and the time between the date when the judgment was pronounced and the date when it was signed, must be deemed to be 'requisite' or properly required for obtaining a copy of the decree. In another case of the Bombay High Court viz., 'Bhausaheb Jamburao v. Samabai AIR 1946 Bom 437 (U) Divatia and Bavdekar JJ. have held that: Having regard to the fact that some time is bound to be taken up between the passing and signing of the decree, if an Applicant, for leave to appeal to His Majesty in Council, waits for a reasonable time in applying for copies, he would be entitled to include that time in the period requisite under Section 12. If, however, he waits for an unreasonable time in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the decision of the Privy Council in AIR 1922 PC 352 (L)' had approved of the principle laid down in '13 Cal 104 (FB) (A). 18. In the case of--Governor-General in Council v. Jesraj Tilockchand AIR 1950 Assam 83 (Z), it has been held that: Under Section 12, the time taken from the date of the pronouncement of the judgment to the date of the signing of the decree, cannot be properly excluded as time requisite for obtaining the copy of the decree. 19. Thus, it is clear that there is considerable divergence of opinion. So far as this Court is concerned, it has taken a consistent view and it is supported by the view of the other High Courts of the Indian Union. In the case of Dandi Ramanna v. Ahmed Bin Sayeed 7 Nasaire Osmani 405 (Z1), which is a case of the Full Bench, the majority view is that only that period would be excluded under Section 12, Clause 3, Hyderabad Limitation Act corresponding to Section 12, Clause 2, Indian Limitation Act which was spent by the Applicant with due diligence for obtaining the copies. Their Lordships have considered what meaning should be given to the word 'requisite' and have come to the conclusion that though the word 'requisite& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the copies of the decree and the judgment shall be excluded. 23. The contention is that according to Order 41, Rule 1 the memorandum of appeal has to be accompanied by a copy of the decree and as no decree was prepared till the Petitioner filed a petition, the appeal could not be filed and that, therefore, the period from the date of the judgment to the date of the supply of the copy of the decree should be considered as time requisite for obtaining the copies and should be deducted under Section 12, Limitation Act. 24. It is true that according to Order 20, Rule 7, Code of Civil Procedure the decree has to bear the date on which the judgment was pronounced and Order 41, Rule 1, Code of Civil Procedure provides that the memorandum of appeal has to be accompanied by a copy of the decree and limitation for an appeal must run from the date of the decree under Article 152, Limitation Act and Section 12 of the Act enacts that in computing the period of limitation prescribed, the time requisite for obtaining the copies of the decree and judgment shall be excluded, but in our opinion time requisite does not begin until an application for copies has been made. The words 'requisite' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, Limitation Act. 27. The next question that arises for consideration is whether the Appellant would get the benefit of Section 5, Indian Limitation Act. The Appellant has not put in a petition and it is not necessary, in our opinion that a petition should be filed but we are of the opinion that the Appellant cannot get the benefit of Section 5 also, for the simple reason that he has been negligent and careless. In the result, there does not remain any force in this appeal and it should fail. The appeal is, therefore, dismissed. No order is made as-to costs of this Court. 28. Now we turn to the other appeal. Both the courts have dismissed the appeal having come to the conclusion that the judgment in appeal No. 288 of 1356F, operates as 'res judicata'. From a perusal of the record it appears that the suit of'; the Plaintiff was dismissed on 6th Ardibehisht 1354 F. as the pleader for the Plaintiff was absent and no evidence was ready. The Plaintiff filed a separate suit on 1st Meher 1356 P. which was dismissed on 11th Isfandar 1356P, on the ground of 'res judicata'. Before the dismissal of this suit, on 29th Isfandar 1356P, the Plaintiff filed an appeal against t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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