Judgment:
N.K. Jain, J.
1. The appellant-defendant No. 1 filed an appeal on 5.9.88 against the judgment and decree dt. 11.8.86 passed by the Dist. Judge, Bikaner. The appeal was admitted on 9.9.88 subject to the objection of limitation. On 1.5.89 on the application seeking review/clarification of the order dt. 15.12.88, it was ordered that it is open to Mr. Chacha to argue the preliminary objection regarding limitation at the time when the appeals are listed for hearing. It was also ordered that the case be listed alongwith S.B. Civil First Appeal No. 87/86 arising out of the judgment and final decree passed by the District Judge, Bikaner on 11.8.86 filed by the defendant who is respondent No. 4 in this appeal. Both the cases have come up before me on 19.8.92.
2. Before proceeding with the case Mr. B.L. Purohit, respondent No. 3 moved an application dt. 19.8.92 that on earlier occasion when the case was heard by Hon'ble Mr. Justice A.K. Mathur, there were some suggestions for compromise and the case was adjourned.
3. Mr. Maheshwari and Mr. Jain, learned Counsel have submitted that there are no chances of compromise.
4. In view of the above submission, Mr. Purohit respondent No. 3 does not want to press his application. Accordingly, the application dt. 19.8.92 is dismissed as not pressed.
5. Now, I proceed to hear that case first on preliminary points regarding limitation without touching the merits of the case.
6. Mr. Chacha, learned Counsel for the respondent No. 5 while raising preliminary objection has urged that in view of Section 33 CPC and Order 20, Rule 7 CPC decree will be deemed to have come into existence from the date of the judgment even though it is not framed and according to Section 12 of the Limitation Act, time spent between passing of the decree and signing of it cannot be excluded because no application for copy of decree was filed within the period of limitation. He further submits that the appellant cannot take advantage of the judgment of this Court rendered in first appeal No. 113/87 and 114/87 whereby the present appellant and Badri Narain were granted three weeks time to deposit stamp duty as it is time barred and not filed within 30 days. In alternative he submits that time taken for signing the decree cannot be excluded without there being any application for copy even if the period of limitation is counted from 26.2.88. He has relied on Rajeshwar Roy and Ors. v. Shanker Roy : AIR1962Pat392 Harish Kumar v. Chamanlal : AIR1966Guj281 Arjun Charan v. Purannand : AIR1968Ori207 Bihari Das v. Jagdish Shrimali Lal Kasliwal v. Advocate General AIR 1955 Raj. 165. Smt. Preeti Parihar v. Kailash Singh Parihar 1977 WLN 462, Sita Ram Dada v. Ramu Dada : AIR1968Bom204 and J.K. Kapoor v. Vachha and Co. : AIR1979Bom33 and Udayan Chinubhai v. R.C. Bali AIR 1977 SC 2319. Mr. Babulal Purohit, respondent No. 3 and Vijay Kumar appearing for other respondents have also supported the contention of Mr. Chacha.
7. Mr. Dinesh Maheshwari, learned Counsel for the appellant submits that the appellant had no notice of the decision of the judgment of 11.8.86 and submits that in a suit for partition unless stamps are filed decree cannot be prepared and period of limitation will start when the decree is signed. He also submits that Section 12 of the Limitation Act will not be applicable as the appellant has not prayed for condonation. Mr. H.C. Jain, learned Counsel for the respondent No. 4 has adopted the argument of Mr. Maheshwari and submits that the operative part of the judgment dt. 11.8.86 itself shows that the decree was to be prepared only after furnishing stamps which were to be supplied within a month. He further submits that this appeal is within time as decree was actually drawn up on 30.7.88.
8. I have heard learned Counsel for the parties at length and perused the record as well as the case law.
9. The questions for determination are A. whether the appeal is barred by time B. whether in a partition suit computation of limitation period will be done from the date of judgment or from the date when the decree was actually drawn up? C. whether time spent between passing of the decree and signing of the decree can be excluded even if no application for copy has been filed in time.
10. In order to decide these questions certain dates are very material in appeal which are not in dispute. The date of judgment and decree i.e. 11.8.86. An application for copy of judgment was filed on 26.7.88 though decree was signed on 30.7.88 and application for copy of decree was filed on 1.8.88. Both the judgment and decree were ready and taken on 2.8.88. The present appeal was filed on 5.9.88.
11. According to Order 20, Rule 7 CPC, the date of decree will be the date of pronouncement of judgment and decree must be in confirmity with judgment. Generally in most of the cases when the judgment is pronounced, the decree is not prepared then and there, but it is prepared by the office later on. Notwithstanding, the date of decree always coincides with the date of judgment even though the decree is prepared and signed by the Presiding Officer at a later date. A party who is aggrieved from the judgment must apply for the copy of judgment and decree within the period of limitation prescribed for the appeal. A party who wants to file an appeal but decree has not been prepared, then he can apply under Order 20 Rule 6(A) CPC to the concerned court which passed the decree for a certificate that decree has not been drawn up. This application for certificate must also be filed before the expiry of the period of limitation. Reading all the provisions together, I am of the opinion that the decree as defined in Section 2(2) CPC comes into existence as soon as the judgment is pronounced. It does not necessarily mean the formal decree which is prepared in accordance with Section 33 and Order 20 Rule 6 of C.P.C. and that is the reason that by a legal fiction it has been provided in Rule 7 of Order 20 C.P.C. that the date which is to be mentioned in the decree shall be the date of judgment. According to law the appeal must accompany the formal and written decree which is prepared Under Section 33 C.P.C. therefore, for filing an appeal the starting point of limitation is the date of decree i.e. the date of judgment.
12. According to Section 12 of the Limitation Act, 1963, where a party desireous of filing an 'appeal' applies for copy of judgment and decree within the period of limitation provided for the appeal then the whole period taken for copy of judgment and decree shall be excluded in computing the period of limitation for appeal. But where a party desireous of filing an appeal or revision, files an application for copy of judgment and decree or order appealed from beyond the period of limitation prescribed for the appeal or revision then that period taken for preparation of judgment, decree or order shall not be excluded in computing the period of limitation for appeal or revision, because the period provided for an appeal or revision has already been expired before an application for copy is made.
13. Now, I may discuss the case law cited at bar by the learned Counsel for the respondent.
14. In Rajeshwar Roy and Ors. v. Shanker Roy (supra), there was an execution application in which the decree was not filed by the decree-holder alongwith execution application. But on the direction of the Executing Court, the respondent decree-holder filed a certified copy of the judgment. Impliedly the executing court dispensed with the filing of certified copy of decree. In such circumstances, the court held that the execution application was maintainable but the facts of this case are not relevant to the facts of present case in hand.
15. In Harish Kumar v. Chamanlal (supra) it has been observed that a decree of a court becomes effective from the moment the judgment in the matter is pronounced by the court concerned and that is the date which the decree must bear. The decree is drawn up by the court is a formal expression of the decision of the court and it must bear the date on which the judgment is pronounced though the Judge signed the decree after satisfying himself that the decree is in accordance with judgment of the court and some time must lapse between the date when the judgment was pronounced and date when the Judge signed the decree. The proceedings in the suit comes to an end when the judgment is pronounced and signing of decree is purely a consequential administrative function cannot be said to be further proceeding in the suit.
16. In Arjuna Charan v. Puranand (supra), suit was decreed exparte on 19.12.1964 and the decree was signed on 5.1.65 and on 30.1.65 an application for setting aside exparte decree was filed under Order 9 Rule 13 C.P.C. The question arose whether the application under Order 9 Rule 13 C.P.C. was within time or barred by time as it was filed beyond 30 days from 19.12.64, the date on which the exparte decree was passed. The applicant pleaded that application under Order Rule 13 C.P.C. is within limitation 30 days from 5.1.64, the date of signing of decree. In such circumstances, the court held the date of decree is the date when the suit was decreed exparte and not the date when the decree was signed by the Judge. The dale of decree under Order 20 Rule 7 C.P.C. is the date of judgment and not the signing of the decree.
17. In Biharidas v. Jagdish (supra), the Division Bench of this Court in dealing with the question of exclusion of lime Under Section 12 of the Limitation Act, 1908 held that the time requisite for obtaining copy of decree cannot refer to any period antecedent to the appellant asking for a copy or to any period subsequent to its being ready for delivery. An application is not entitled to claim deduction of the period between the date of judgment and signing of decree, when his application for copy has not been filed until after signing of the decree nor can claim deduction for the period between the date on which the copy was ready for delivery and the date on which it was delivered.
18. In Shrimali Lal Kasliwal v. Advocate General (supra), this Court while considering the period of limitation for appeal came to the conclusion that the period of 90 days for appeal to the High Court is to be computed from the date of decree which under law is to be date of judgment and not from the date when decree is actually prepared.
19. In Smt. Preeti Parihar v. Kailash Singh Parihar (supra), this Court held that under Section 12 of the Limitation Act, 1963, the time taken in preparation of a decree before an application for a copy thereof is made cannot be excluded from the time requisite for obtaining copy of the decree. The Court has also held that this time cannot form part of the time spent for obtaining copy of the decree.
20. In Sita Ram Dada v. Ram Dada (supra), the Court while computing the period of limitation for appeal held that time began to run from the date of decree or order. The time taken by the court to prepare the decree before an application for a copy made shall not be excluded.
21. In J.K. Kapoor v. Vachha and Co. (supra), while considering the interpretation of Section 12(2) of the Limitation Act, 1963 the court held that a party must apply for a copy of judgment and decree within the period of limitation prescribed for the appeal and if he does not do so but wants to wait beyond the prescribed period of limitation on the excuse that the court had not prepared the decree, his application for copy beyond limitation and his appeal that will be filed subsequently on such copy can never be in time.
22. In Udayan Chinubhai v. R.C. Bali (supra), their Lordships of the Supreme Court have also expressed the same view to the effect that Under Section 12(2) of the Limitation Act read with explanation, a person cannot get exclusion of the period of limitation that elapsed between pronouncement of judgment and the signing of decree if he made the application for a copy of the decree only after preparation of decree, cannot be interpreted to mean that if the appellant applies before the decree is prepared, he is entitled to entire period of time taken by the Court in preparation of the decree. The Supreme Court also pointed out that if the appellant applied for the copy before the decree was actually signed and if that point of time was within the period of limitation for filing appeal, the period (hereafter was available not as period taken by the court in preparation of the decree but as a time requisite for him to obtain copies.
23. In this view of the legal position, in the matter in hand in the absence of filing of any application within time and only making application on 26.7.88, the appeal is time barred.
24. So far as the alternative submission is concerned, it is not in dispute that the final decree for partition was passed on 11.8.86 and the parties were directed to submit the stamps in respect of their shares for preparation of the final decree within one month but Dhanraj and Badrinarain did not comply with the order so vide order dt. 11.9.86 the learned court below dismissed their claims. They preferred two separate first appeals No. 113/87 and 114/87 against the order of Dist. Judge, Bikaner dismissing their claims, which were allowed by this Court on 5.2.88 holding that it was wrong and illegal on the part of the learned Dist. Judge to dismiss the claims of Dhanraj and Badrinarain on non filing of stamp duty. It was further ordered that objections against the final decree where specific shares have been allotted cannot be gone into in these appeals. If the parties have any objections against the final decree they will have to proceed in accordance with law for removal of their grievance. The appellants were granted three weeks time and it was further ordered that the appellants shall not be dispossessed from the property which is in their possession for three weeks. In compliance of the said order the appellants preferred stamp duty on 26.2.88 but never applied for copy. The decree was drawn, framed and signed on 30.7.88. The appellant applied for a copy of final decree on 26.7.88 and received the same on 2.8.88 and filed this appeal on 5.9.88. Thus, the time of three weeks granted by this Court vide its judgment dt. 5.2.88 does not extend the period of limitations, which also expired on 26.2.88, for the simple reason that the appellant did not apply for copy of decree within the period of limitation for filing the appeal within 90 days from the date of judgment and decree. As discussed above, the appellant cannot take advantage of the said case.
25. Since it is a partition suit, it is necessary instrument to emboss the decree on the stamp papers but nevertheless it does not make any difference. The decree has come into existence from the date of judgment and limitation will start from the date of judgment and not from signing of the decree. Further the time spent in preparation of decree cannot be excluded in the absence of there being any application in time. Therefore, the appeal is time barred as no application was filed within limitation. In view of the above discussion the questions are answered in negative.
26. Accordingly, the appeal filed by the appellant is barred by time and preliminary objection regarding limitation is sustained. Thus appeal is hereby dismissed as barred by limitation. No order as to costs.