Tulzapurkar, J. - (1.) Two questions have been referred to this Full Bench by e learned Single Judge for our determination which run as follows:- (1) What is the true and correct interpretation of the Explanation appended to Section 12 of the Limitation Act, 1963 and whether by that Explanation a litigant applying after the decree is made can exclude the time taken by the Court to prepare the decree and treat it as the time requisite for obtaining a copy of decree under Section 12 (2) of the Act? (2) Whether after the passing of the 1963 Act under Article 116 the starting point for limitation is the date on which actually the decree is made; or is the date of the judgment still the starting point for limitation?
(2.) Principally the first question centers round the true and proper interpretation of sub-section (2) of Section 12 of the Limitation Act 1963 and the Explanation thereto and the question arises under these circumstances: The above two Second Appeals were file din this k Court on 1st march, 1971, and the question is whether the appellant in each of the Appeals is entitled to get the benefit of Section 12 (2) read with Explanation thereto and can contend that the appeals are filed within the time prescribed for filing appeals. To understand the claim made by the appellants it will be necessary to set out certain dates. The judgment against which the appeals have been preferred was delivered on 26th October, 1970 . Application for certified copies of the decree were made by the appellants on 6th February, 1971; the copies became ready for delivery on 19th February, 1971, and they were also received by the appellants on the same day and thereafter the appeals were filed by the appellants in this Court on 1st March 1971. The question principally is whether the time taken by the Court for drawing up of its decree is to be included within the concept of 'time requisite' for obtaining the certified copy of the decree and it was not disputed before us that if this time, namely the time between the date of the pronouncement of the judgment (26th October, 1970) and the date when the decrees were prepared and signed (9th December, 1970), was included within the time requisite for obtaining a copy of the decree the appeals would be within the proscribed period of limitation, but if this period was not so included the appeals would be barred by 22 days . It may incidentally be mentioned that the appellant in each of these cases had applied for condonation of delay under Section 5 (vide Civil Application No. 353/73 and Civil Application No. 354/ 73) but the learned Single Judge was not satisfied that the appellants were prevented by sufficient cause from preferring their appeals within the prescribed period of limitation. In other words, the applications for condonation of delay were rejected by him and therefore the claim of the appellants that there has been no delay in presenting the appeal sand the same have been filed within the prescribed period of limitation arises for our consideration. Before the above question is considered under the provisions of the 1963 Act, it would be desirable to indicate what was the position of law on the aspect under consideration under the prior enactment and it would be convenient at this stage to set out the old Section 12 of the 1908 Act; sub-section (2) of that section , which would be relevant, ran as follows:- "In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of 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 reviewed, shall be excluded". There was no Explanation whatsoever appended to this provision and the phrase 'time requisite for obtaining a copy of the decree' came up for consideration in several cases before the Courts and the two words 'requisite' and 'obtaining' occurring in the said phrase were considered in a particular manner. The view consistently taken by all the courts was that the word 'requisite' did not mean merely required but it meant 'properly required' and similarly the word 'obtaining; indicated an effort on the part of the applicant to get a copy of the decree. laying equal emphasis on both the aforesaid words and interpreting them in this manner a Full Bench of this Court in the case of Jayashankar Mulshankar v. mayabhai Lalbhjai, reported in AIR 1952 Bom 122 (FB) took the view that what has got to be excluded is the time which is properly required and the time which has got to be so excluded is the time which is necessary for obtaining a copy of the decree. It also took the view that the action on the part of the appellant in applying for a copy of the decree was not a decisive factor in considering whether time should be excluded under this sub-section or not, so it felt that it was futile on the part of the appellant to apply for a copy when in fact the original was not ready and when in fact no copy of the original could be given to him. But from this it did not follow that the whole of the time required for preparing the decree should necessarily be excluded in every case. The Court further took the view that there may be a case where the preparation of the decree was entirely left to the Court, where the intervention of the parties was not at necessary and all the time spent for the preparation of the decree was the result of what the Court had got to do and the various steps that the Court had to take, and in a case like this, it might be that the whole time would have to be excluded. But there may also be a case where the intervention of the party was necessary in order to prepare the decree; various steps mights have to be taken by the parties or the lawyers before a decree could be ready and before it could be signed in such a case the Court would have to consider whether any of the time taken up for the preparation of the decree could be attributed to the fault or negligence of the appellant and if any of the time could be attributed then that time could not be excluded under Section 12 (2) . Now ordinarily the distinction that has been pointed by this Court in the above decision principally relates to the position which obtains on the Original Side of this Court where the appellants or their attorneys are required to take steps for drawing up of the decree and the position which obtains in the mofussil where the parties or their advocates are not required to take such steps except by way of paying stamp duty necessary for drawing up of the decree or handing over of the folios for the purpose of drawing up of the decree and the view which this Court took was that the time properly taken for the preparation of the decree and the time which lapsed between the pronouncement of the judgment and signing of the decree should be excluded under Section 12 (2). If it is established to the satisfaction of the Court that in any particular case the whole of the time was not properly required for the purpose of preparing the decree, then such time as was not properly required would k not be excluded under Section 12(2) . In other words, under the old provision of Section 12(2) of the Limitation Act, 1908 the time requisite for obtaining a copy of the decree was regarded as having been made up of two periods, (a) period requisite for bringing the original decree into existence and (b) period requisite for preparing a copy after the decree had come into existence and that both these periods would have to be excluded if in the process of bringing into existence the original decree any steps as such were not required to be taken by the appellant.
(3.) The question as to what time could be legitimately deemed to be taken for obtaining a copy of the decree under the old Section 12 (2) came up of reconsideration before the Supreme Court in the case of Jagat Dhish Bhargava v. Jawahar Lal Bhargava, reported in AIR 1961 SC 832 and the Court pointed out that there was a sharp difference of opinion between different High Courts on the question as to how the concept of 'time requisite for obtaining a copy' was to be understood. The Court pointed out that on the question of computation of time requisite for obtaining a copy of the decree, the Full Bench of High Court of Bombay (AIR 1952 Bom 122) (FB) ) and Patna (AIR 1936 Pat 45 (FB) had taken the view that the entire period taken by the Court for preparing the decree after pronouncement of the judgment should be included in computing the time requisite for a copy of the decree, irrespective of whether an application for such a copy was made either before or after the decree had been prepared but on the other hand the Full Bench of Nagpur High Court (AIR 1927 Nag 1 (FB) had taken a different view that if an application for a copy was not made before the decree was prepared by the Court, the period between the date of the judgment and the date of preparation of the decree could not be taken as time requisite for obtaining a copy of the decree and as such should not be excluded in computing the period of limitation. Paragraphs 9 and 10 of that judgment which are material run as follows:- "9. The answer other question as to whether the presentation of the appeal on December 23, 1959, is in time or not would depend upon the construction of Section 12, sub-section (2) of the Limitation Act. We have already noticed that the period prescribed for filing the present appeal is 90 days from the date of the decree. Section 12, sub-section (2), provides, inter alia that in computing the period of limitation "the time requisite for obtaining a copy of the decree shall be excluded". What then is the time which can be legitimately deemed to have been taken for obtaining the copy of the decree in the present case? Where a decree is not drawn up immediately or soon after a judgment is pronounced, two types of cases may arise. A litigant feeling aggrieved by the decision may apply for the certified copy of the judgment and decree before the decree is drawn up or he may apply for the said decree after it is drawn up. In the former case, where the litigant, has done all that the could and has made a proper application for obtaining the necessary copies, the time requisite for obtaining the copies must necessarily include not only the time taken for the actual supply of the certified copy of the decree but also for the drawing up of the decree itself. In other words, the time taken by the office or the Court in drawing up a decree after a litigant has applied for its certified copy on judgment being pronounced, would be treated as a part of the time taken for obtaining the certified copy of the said decree. Mr. Pathak has fairly conceded that on this point there is a consensus of judicial opinion, and in view of the formidable and imposing array of authorities against him he did not arise any contention about the validity of the view taken in all these cases". (The Court referred to the Full Bench decision of the Bombay, Calcutta and Patna High Courts mentioned above and other decisions). "10. There is, however, a sharp difference of opinion in regard to cases where an application for a certified copy of the decree is made after the said decree is drawn up. In dealing with such cases Courts have differed as to what would be the period requisite for obtaining the certified copy of the decree. The Bombay, Calcutta and Patna High Courts appear to have held that the period taken in drawing up of the decree would be part of the requisite period while other High Courts have taken a contrary view. It is significant that though the High Courts have thus differed on this point, in every case an attempt is judicially made to do justice between the parties. With that aspect of the problem, however, we are not concerned in the present appeal". It must, however, be stated that the case that had arisen before the Supreme Court fell within the former category mentioned in para 9 of its judgment. It was a case where an application for a certified copy of the decree had been made by the appellant before the decree had been prepared and signed by the Judg. Obviously, therefore, the question or resolving the difference of opinion which obtained between different High Courts in a case where an application for a copy of the decree was made after the decree had been signed did not arise and in view of the Full bench decisions referred to at the end of para 9, the Court held that the appeal in that particular case was preferred within limitation. Though an unduly long period of five years was taken by the lower Court to draw up its decree the same was held as time requisite for obtaining the copy and was counted infavour of the appellant.;