Sinha, J. - (1.) This is an application for leave to appeal to the Supreme Court under Article 133(1)(a) of the Constitution. The facts are shortly as follows: Testamentary suit No. 4 of 1954 was filed by Sm. Gopi Devi Memani, praying for Letters of Administration to the Estate of Meghraj Kothari, deceased, ]and that a right be reserved for her mother Mussamat Gohar Bai to apply to grant in her favour in the event of her gaming sanity, and for other reliefs. The application was opposed and on the 14th of May, 1962 Mallick, J. passed a decree granting Letters of Administration to the Estate of Meghraj Kothari to one Gangadas Binani. The petitioners Chunilal Kothari, Hiralal Kothari, Kanhaiyalal Kothari and Sm. Mathura Bai appealed against the said order, the appeal being numbered as appeal No. 163 of 1962. On the 24th of February, 1964 the appeal came up for hearing before Bachawat, J. and my learned brother A.K. Mukherjea, J. The appeal was allowed in part and the learned Judges directed that the grant issued to Gangadas Binani be recalled and in lieu thereof Letters of Administration to the Estate of Meghraj Kothari, deceased, be granted to Gopi Devi Memani subject to her furnishing security to the extent of Rs. 2,75,500 etc. Save as aforesaid, the order appealed from was affirmed. The appellate decree was filed on the 14th April, 1964. The notice of motion for a certificate for appeal to the Supreme Court was taken out on 13th of May 1964. It has now come up for hearing. Mr. Roy appearing on behalf of the respondent admits that this is a judgment of variance and therefore, it would be sufficient to show that the amount or value of the subject-matter to the dispute in the court of first instance and in appeal is not less than 20,000 rupees. If is not disputed that the value exceeds that amount. The only point that he has taken is that this application for a certificate is barred by limitation. He has made his argument thus: Under the Indian Limitation Act, 1908 the relevant article was Article 179 which ran as follows: -------------------------------------------------------------------------------- "179. By a person desiring to appeal under the same Code to His Majesty in Council, for leave to appeal. Ninety days The date of the decree appealed from."-------------------------------------------------------------------------------- The Code referred to is the Civil Procedure Code.
(2.) In computing the time, Section 12 of the said Act permitted a certain time to be excluded. The relevant provisions are Sub-sections (2) and (3) which ran as follows: "(2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal, and an application for 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. (3) 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." The Limitation Act 1908 was amended and the new Act No. 36 of 1963 came into operation from the 1st of January, 1964. The relevant article in the new Act is Article 132 which runs as follows: -------------------------------------------------------------------------------- "182 To the High Court for a certificate of fitness to appeal to the Supreme Court under clause (1) of Article 132. Article 133 or sub-clause (c) of clause (1) of Article 134of the Constitution or under any other law for the time being in force. Sixty days The date of the decree, order or sentence."-------------------------------------------------------------------------------- (3) But although there has been a substantial alteration in the language of the article abovementioned, the wordings of Section 12 virtually remain the same. Sub-sections (2) and (3) of present Section 12 run as follows: "(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.
(3.) Where a decree or order is appealed from or sought to be revised or reviewed, or where an application is made for leave to appeal from a decree or order, the time requisite for obtaining a copy of the judgment on which the decree or order is founded shall also be excluded." Mr. Roy argues that in the Limitation Act of 1908, both article 179 and Section 12 talked about "leave to appeal", but under the amended Act of 1963 the relevant article, namely, 182 speaks about certificates, that is to say an application for a certificate to apply to the Supreme Court under Clause (1) of Article 132, Article 133 or Sub-clause (c) of Clause (1) of Article 134, of the Constitution, or under any other law for the time being in force. Words which would enable any period to be excluded under Section 12 of the Limitation Act however remain the same as before. In other words, under the present Section 12, the exclusion of time relates to an application for leave to appeal and not to an application for a certificate. If Section 12 does not apply, then from the dates set out above it cannot be disputed that a period of more than sixty days has elapsed between the passing of the decree and the taking out of a notice of motion praying for a certificate. That is why Mr. Roy argues that the application is barred by limitation. He has referred to a decision of the Supreme Court, Sidheswar Ganguly v. State of West Bengal. The facts in that case were as follows: An order was made by the learned Second Additional Sessions Judge of Alipore on January 22, 1955 accepting the unanimous verdict of guilty returned by the jury, holding the appellant guilty under Section 376 of the Indian Penal Code and sentencing the accused to rigorous imprisonment for five years. Against this order an appeal was taken to the High Court. The Division Bench which heard the matter dismissed the appeal summarily. An application was then made before a Bench consisting of Chakravartti, C. J. and Lahiri, J. for a certificate under Article 134(1)(c) of the Constitution for appeal to the Supreme Court. The learned Judges called for the records from the court of first instance and having heard the matter in extenso delivered a full judgment giving the facts and the history of the case and discussed the evidence adduced on behalf of the prosecution at length. The learned Chief Justice held that there were arguable points and the accused had not had the satisfaction of feeling that he has been fully heard by the court of appeal. Therefore, leave was reluctantly given because justice appeared not to have been done and the evidence ought to have received a fuller consideration by the appellate court, although the result might be to confirm the conviction. Sinha, J. (as he then was) stated as follows: "We have set out the findings of the learned Chief Justice while granting 'leave to appeal' to this Court in his own words, to appreciate the reasons for granting 'leave to appeal'. It appears that the learned Chief Justice and his other judge, contrary to the legal position that one Bench of the High Court has no jurisdiction to sit in judgment on the decision of another Division Bench, have, in fact, done so. But in the instant case, the learned Chief Justice has gone further and observed that the summary dismissal of the appeal by the criminal Bench, has not given satisfaction to the appellant that he had been fully heard, and that it did not appear to him that justice had been done. Such observations are not conducive to the maintenance of healthy atmosphere for the administration of justice in the highest Court in the State. Furthermore, the observation almost amounts to a condemnation of the practice of summary dismissal of appeals, especially against orders passed in a case tried by a jury where the appellant has to make out clear grounds of law. Such practice prevails, so far as we know, in almost all the High Courts in India, and has the sanction of the statute law as contained in the Code of Criminal Procedure. This Court has repeatedly called the attention of the High Courts to the legal position that under Article 134(1)(c) of the Constitution, it is not a case of 'granting leave' but of 'certifying' that the case is a fit one for appeal to this Court. 'Certifying' is a strong word and therefore, it has been repeatedly pointed out that a High Court is in error in granting a certificate on a mere question of fact, and that the High Court is not justified in passing on an appeal for determination by this Court when there are no complexities of law involved in the case, requiring an authoritative interpretation by this Court.";