Judgment:
A.M. Sapre, J.
1. It is a second appeal filed by the plaintiff under Section 100 of CPC against the judgment and decree, dated 30-8-1983, passed by learned IInd Additional District Judge, Shajapur in C. A. No. 279 of 1982, which in turn arise out of Civil Suit No. 157-A of 1979, decided on 7-74982, by Civil Judge, Class II, Susner, District Shajapur. It came to be admitted for final hearing on following three substantial questions of law :--
'(1) Whether the Appellate Court committed an error of law in holding the appeal within limitation ?
(2) Whether the Appellate Court committed an error of law in dismissing the suit because of non-service of notice under Section 80, CPC when the Trial Court had dispensed with the said notice on the application of the plaintiffs ?
(3) Whether the Appellate Court committed an error of law in holding that the plaintiffs did not acquire the rights of a Bhumiswami of the suit land ?'
2. At the outset learned Counsel for the appellant submitted that in case if the question No. 1 is answered in affirmative, i.e., in favour of appellant, then in that event, it may not be necessary for this Court to answer question Nos. 2 and 3. In other words, once the question No. 1 is decided holding first appeal to be barred by limitation, the impugned judgment and decree is liable to be set aside, resulting in restoration of judgment and decree passed by the Trial Court. Let us see the facts.
3. Plaintiff (appellant) filed a suit against the Slate (defendant) respondent seeking inter alia a declaration that he is the Bhumiswami of the land in suit. It is this suit, which on contest came to be decreed in favour of plaintiff giving rise to filing of the first appeal by the defendant under Section 96 of CPC. It was the case of plaintiff (who was respondent before the First Appellate Court) that the appeal filed by the defendant was barred by limitation and hence, it should be dismissed as barred by time. Whereas the case of defendant (appellant before the Lower Appellate Court) was that appeal is in time and hence, it be treated to have been filed in time. So, one of the question that arose before the First Appellate Court was, whether appeal filed by the defendant is within limitation or not As held supra, the First Appellate Court held the appeal to be in limitation and accordingly proceeded to decide the same on merits thereby reversing the decree of the Trial Court and dismissed the suit.
4. In order to decide the question of limitation, certain dates need to be taken note of. The judgment of the Trial Court was delivered on 7-7-1982 whereas decree was drawn up on 12-7-1982. The defendant (i.e., appellant before the First Appellate Court) applied for certified copy of the judgment and decree on 13-7-1982 whereas it was made available to defendant on 31-7-1982. The appeal was accordingly filed on 26-8-1982.
5. The question arose as to from what date the limitation in the facts of this case for finding out, whether appeal is filed in time or not should be counted This issue assumed significance because the date of judgment was 7-7-1982 whereas the date of decree was 12-7-1982 and secondly, the application for obtaining certified copy was made on 13-7-1982, i.e., subsequent to the date of decree. So the question arose as to whether appellant (i.e., defendant) was entitled to compute the period from 7-7-1982 to 13-7-1982, i.e., the period prior to filing of an application for certified copy or in other words, the question arose, whether limitation should be counted from 7-7-1982 or from 13-7-1982. If the contention of the respondent in the appeal was that limitation should, be computed from the date of application, i.e., 13-7-1982, the contention of appellant was that it should be computed from 7-7-1982.
6. The question where there is an interval of some days between the pronouncement of the judgment and the signing of the decree, can such interval be excluded irrespective of the date of application for copies of judgment and decree had been a matter of debate frequently before several High Courts. It is to resolve such conflicts and debate the Legislature stepped in and added one explanation to Section 12 of the Limitation Act. Section 12 which deals with exclusion of time on legal proceedings carves out one explanation which reads as under :--
'Explanation :-- In computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the Court to prepare the decree or order before an application for a copy thereof is made shall not be excluded.'
7. The aforesaid explanation fell for interpretation before the Supreme Court in the case reported in Udayan v. R.C. Bali (AIR 1977 SC 2319). Explaining the real import of Section 12(2) read with Explanation, Their Lordships held as follows :--
'The correct legal position therefore is that under Section 12(2) read with Explanation, a person can not get exclusion of the period that elapsed between the pronouncement of the judgment and the signing of the decree if he made the application for a copy only after preparation of the decree.'
8. Applying the aforesaid principle to the facts of this case, it is not in dispute that respondent, i.e., (appellant in first appeal) had applied for obtaining the certified copy of decree after it was signed, i.e., on 13-7-1982 and hence, he was not entitled to seek exclusion of period from 7-7-1982 to 13-7-1982, i.e., period prior between the date of judgment and signing of the decree. It is because of this reason that no application was made for obtaining the certified copy of the decree on 7-7-1982, i.e., even before the decree was signed on 12-7-1982. In other words, if an application for obtaining certified copy had been made on 7-7-1982 itself then notwithstanding the fact, that decree was signed on 12-7-1982, the appellant of the first appeal would have got the benefit of period between the date of judgment and decree. Such is not the case here.
9. In view of this legal position emerging from the record of the case, the appeal filed by defendant before the First Appellate Court has to be held barred by limitation by one day. Indeed, this position was not disputed by the learned Counsel for the respondent.
10. It is not in dispute that no application was made by the respondent under Section 5 of Limitation Act before the First Appellate Court seeking condonation of delay in filing appeal. As a consequence no orders on the said application could be passed, nor any occasion arose to decide whether there is a sufficient cause for condoning delay in filing appeal. In view of this, neither the First Appellate Court, nor this Court is called upon to decide the sufficiency of cause for condonation of delay.
11. In view of aforesaid discussion, I am inclined to answer the question No. 1 in affirmative and in favour of appellant by holding that the first appeal filed by the respondent before the First Appellate Court was barred by limitation by one day and hence, in terms of Section 3 of Limitation Act read with Order 41 Rule 3-A of CPC a time barred appeal had to be dismissed only on the ground of limitation and was not competent for being heard on merits. As observed supra, since no application was made to condone the delay, explaining the sufficient cause in not filing the appeal in time, the First Appellate Court had to dismiss the appeal only on the ground of limitation.
12. Instead, it entertained the appeal on merits and proceeded to allow it by setting aside of the decree by the Trial Court. This the learned First Appellate Court could not have done. In view of the finding which this Court has arrived at, it is not considered necessary to answer other two questions on merits.
13. As a result of aforesaid discussion, the appeal succeeds and is allowed. Impugned judgment and decree is set aside and that of Trial Court is restored.
No costs.