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 Distt. 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 tiled 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. Mr. Maheshwari and Mr. Jain, learned counsel have submitted that there are no chance of compromise. 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. Now, I proceed to hear the case first on preliminary points regarding limitation without touching the merits of the case. Mr. Chacha, learned counsel for the respondent no. 5 while raising preliminary objections has urged that in view of S. 33 C. P. C. and O. 20 R. 7 C. P. C. decree will be deemed to have come into existence from the date of the judgment even though it is not framed and according to S. 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 appeals 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 Vs. Shanker Roy (1), Harish Kumar Vs. Chamanlal (2), Arjun Charan Vs. Purnanand (3), Bihari Das Vs. Jagdish (4), Shrimali Lal Kasliwal Vs. Advocate General (5), Smt. Preeti Parihar Vs. Kailash Singh Parihar (6), Sita Ram Dada Vs. Ramu Dada (7) J. K. Kapoor Vs. Vachha & Co. (8) and Udayan Chinubhai Vs. R. C. Bali Mr. Babulal Purohit respondent no. 3 and Vijay Kumar appearing for other respondents have also supported the contention of Mr. Chacha.
(3.) MR. Dinesh Maheshwari, learned counsel for the appellant submits that the appellant had no notice of the decision of the judgement 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 S. 12 of the Limitation Act will not 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. Maheswari 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. I have heard learned counsel for the parties at length and perused the record as well as the case law. 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 tiled in time. ;