- (1.) THESE are seven appeals by the State against order dated 21-11-66 by the Colonization Commissioner exercising powers of Revenue Appellate Authority. By this order, the Colonization Commissioner rejected seven appeals by the State against a judgment of the S. D. O. (North) Bikaner dated 23-12-64 as being barred by limitation.
(2.) THE appeals in question were presented in the court of the Colonization Commissioner on 24-2-65. Applications were submitted by the respondents on 5-5-65 stating that no applications to obtain copies of the decrees by the S. D O. had been submitted by the State. THE appeals which were without copies of decrees had thus not been properly presented and had become time barred. It was found that the decrees had in fact not been prepared by the trial court itself. After hearing the parties, the Colonization Commissioner passed orders on 27-11-65 to the effect (1) that the trial court's files be sent back to that court with direction to prepare the decrees and return the files, (2) that the Government Advocate be directed to present certified copies of decrees and (3) that proceedings on the appeals be adjourned. Decrees were prepared and signed on 24 12 65. Certified copies thereof were registered in the office of the Colonization Commissioner on 4-3-66 although they bear the initials of the Colonization Commissioner dated 3-3-66. Regarding time taken between applying for copies and receipt of copies, learned counsel on both sides agree that in the case of the judgment, copies were applied for on 12 2 65 and received on 16-2-65 and time taken was thus 5 days; and in the case of the decrees, copies were applied for on 17-2-66 and received on 23 2 66 and time taken was thus 7 days. Learned counsel for the State argued that there is no statutory provision requiring a party to ask a court to draw up a decree in pursuance of the judgment and the party cannot be penalised if the court fails to perform the duty of preparing the decree. He cited the Board's judgment in Jhaman vs. Mangal (1961 RRD 38.) He also argued that when it was the duty of the court to prepare the decree and the party had no duty to perform before the decree could be prepared, the entire period that elapsed before the preparation of the decree had to be excluded. He cited the following rulings in support - (i) Jagat Dinesh Bhargava vs. Jawaharlal Bhargava and others. Supreme Court. AIR 1961 S. C. 832, (ii) Jaya Shanker vs. Mayakhan. Bombay High Court. AIR 1952 Bombay 122. (iii) Province of Bengal vs. Amulya Dhon. Calcutta High Court AIR 1950 Calcutta 356. (iv) Jadubir Singh vs. Sheonaresh Singh-Oudh High Court. AIR 1944 Oudh 154. In so far as the argument by the learned counsel is concerned it may be stated that all the rulings cited by him pertain to sec. 12 of the Limitation Act of 1908. In the Limitation Act of 1963 however, the following explanation was added to sec. 12. "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. Chitaley in his commentary on the Limitation Act (sec. 12 No. 25) has referred to 'seth Jagannath vs. Gangaram in which the Judicial Commissioner's Court Nagpur observed as follows: - "but it could never have been intended that a would be appellant should be allowed to sleep over his right of appeal and then to claim extension of the period of limitation by taking advantage of a delay with which he had no direct concern. " The commentary goes on to state as follows: "a contrary view that the interval should be excluded as a part of the time requisite for obtaining copies was taken in some other decisions. . . . . . . . . In view of the express provision in the Explanation to the present section, the contrary view is no longer good law. " In view of this, it is difficult to hold that the time taken to the preparation of the decree before an application for obtaining its copy was submitted could be excluded in this case. Learned counsel for the State, however, further argued that the first appellate court having already decided the question by order dated 27-11-65, by which the appeal was kept pending and time was allowed to the State to present a certified copy of the decree after it had been prepared by the trial court in accordance with the directions of the first appellate court, the question was now res judicata between the parties. He cited in this regard Satyadhyan Ghoshal vs. Deorajni Debi Supreme Court AIR 1960 S. C. 941. He also said that, in any case, application for condonation of delay under sec 5 of Limitation Act had been submitted before this court, and condonation may be allowed. Learned counsel for the respondents, Shri S. N. Pareek, argued that so far as the condonation application was concerned, it neither specified the period desired to be condoned, nor gave specific grounds on which condonation was sought. It was a vague stereotyped application which hardly served any purpose. Regarding the rest of the arguments by learned counsel for the State, he said that even if the time taken by the trial court in preparing the decree is excluded, time against the State would run from the date the decree was signed, that is, the 4th December, 1965. Even if time between applying for copy of decree the delivery of the copy (7 days) is excluded, the 60 days' limitation had expired, and the appeal was barred even on that basis. He also argued that under sec. 223 of the Rajasthan Tenancy Act, appeal lies against the decree. The date of the decree is the same as the date of the judgment. It is not to be confused with the date of signature of the decree. He referred in this connection to O. 20, R. 7 N-2 (relating to 'date of decree) in Chitaley's commentary on the C. P. C. (Page 2680 Vol. II 7th Ed.) Arguing on behalf of the respondents, Shri Jyoti Swarup said that there is no reason why the State should have waived for the preparation of the decrees by the trial court. It was their duty to have done all that was necessary for them to go in appeal. They should have applied for copies of the decrees irrespective of whether they were ready or not. Failure to do so amounts to laches on their part, and they cannot claim any indulgence on that account. Learned counsel for the State said in rejoinder that he was entitled to exclusion of all the periods admissible, namely (i) period between date of judgment and date when decree was signed (ii) period requisite for obtaining copy of judgment and (iii) period requisite lor obtaining copy of the decree. He said that, as observed in Chitaley's commentary on the Limitation Act (sec. 12 No. 13), the appellant is entitled to the exclusion of the time taken for copies of both the judgment and the decree and that it is open to him to make his application for copies of the judgment and the decree on different dates. The condition was that the second application must be within the period of limitation as extended by the first. If the periods overlap each other, then of course, only one of the overlapping periods can be excluded. He argued that after excluding the period between the judgment and the preparation of the decree, the State was entitled in addition to 60 days, to exclusion of 5 days taken in obtaining copy of the judgment and 7 days taken in obtaining copies of the decrees. Counting these, the deficiency in the appeal (regarding submission of copies of decrees) was completed within limitation. We feel, there is a snag in the argument of learned counsel for the State. If the time taken in the preparation of the decrees excluded, then the time relating to the obtaining of the copies of the judgment would overlap it and cannot be separately excluded over again. There is no warrant for the proposition that this time should be taken out of the first and tagged on to the subsequent time pertaining to the obtaining of the copies of the decrees. Even if, therefore, the time taken in the preparation of the decrees, before applications for their copies were made, were to be excluded (for which there is no warrant in the face of the express provision in the Explanation to sec. 12 of the Limitation Act), after the preparation of the decrees all that could be allowed was 60 days plus time between applying for the copies of the decrees and getting them, i e. 7 days, or 67 days in all. Admittedly, the copies were not presented even within this time. Even one day's delay will have to be satisfactorily explained. This has not been done. There is force in the argument on behalf of respondents that the State should have applied for the copies of the decrees in the very first instance along with copies of the judgment, and in any case within the period of limitation, as extended by the first application i e. the one for the copies of the judgments* They should have applied, at least, immediately on the lacuna being pointed out in the proceedings before the Colonization Commissioner. However, even after the decrees had been drawn up they took 55 days to apply for copies and another week, after getting the copies, to present them in the first appellate court. Having fully considered the matter, we do not see adequate reason to interfere with the judgment of the learned Colonization Commissioner, The appeals are therefore, rejected. . ;