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1973 Supreme(Del) 254
High Court Of Delhi
SETH GIRDHARI LAL - Appellant
Versus
SETH GAJA NAND - Respondent
REGULAR FIRST APPEAL 20 of 1973
Decided On : 11/15/1973
ARUN SHARMA, R.DAYAL, R.L.AGARWAL, Sharda Aggarwal
The Explanation to Section 12(2) of the Limitation Act, 1963 requires the appellant to apply for a copy of the decree even though the decree is not ready.
Headnote:
LIMITATION ACT, 1963 - SECTION 12(2) - EXPLANATION - APPLICABILITY - TIME REQUISITE FOR OBTAINING COPY OF DECREE - APPLICATION FOR COPY BEFORE DECREE IS DRAWN UP - NECESSITY - APPEAL FILED AFTER EXPIRY OF LIMITATION PERIOD - MAINTAINABILITY.
Fact of the Case:
Plaintiffs filed a suit for partition and rendition of accounts of certain immovable properties and businesses in 1952. The suit was dismissed by the trial court in 1956. Plaintiffs and defendants 2 to 4 filed separate appeals to the High Court, which set aside the dismissal and passed a preliminary decree for partition in 1961. Defendants 1 to 4 filed two appeals in the Supreme Court, which were dismissed in 1966 except for slight modification. In the meantime, the final decree proceedings were allowed to go on, pending appeals in the Supreme Court; the passing of final decree alone had been stayed. A Commissioner was appointed by the trial court who submitted his report in 1965. On 31st July 1968, plaintiffs and defendant No. 9 filed a compromise in the High Court, which was recorded by the court and a decree was passed in terms of the compromise against defendants 5 to 8 who were then ex parte. Defendant No. 1 died on 30th December 1968; no application for addition of L. Rs was made. On 29th May 1969, defendants 5 to 8 filed an application for setting aside the ex parte decree passed against them on 14th August 1968. The said application was dismissed by the trial court on 23rd December 1971. Defendant No. 5 filed an appeal against the said order, which was dismissed by the High Court in limine on 22nd March 1973. The Deputy Registrar passed an order on 27th April 1973 accepting the draft of the final decree, to be typed on stamp papers. On 15th May 1973, defendants 2 to 8 applied for certified copies of the final decree, copies having been got ready on 28th May 1973. Defendants 2 to 4 and defendants 5 to 8 filed two separate appeals against the order dated 19th January 1973 of the High Court, which were dismissed by the High Court in limine on 22nd March 1973 holding that though the appeal may lie against the final decree as drawn up none could be filed against the directions given by the High Court. Petitions for condonation of delay, if any, in filing these appeals were also filed.
Finding of the Court:
The High Court held that the appeals filed by the defendants were barred by time, as the appellants were not entitled to the benefit of any exclusion of time under Section 12 of the Limitation Act, 1963. The court observed that the Explanation to Section 12(2) of the Act requires the appellant to apply for a copy of the decree even though the decree is not ready. The court further held that the final decree, as drafted by the Registry in pursuance of the directions given by the High Court, was not at variance with the directions given by the Supreme Court at the time of modifying the preliminary decree passed by the Punjab High Court and those given in the judgment of the High Court.
Issues: 1. Whether the appeals filed by the defendants were barred by time? 2. Whether the final decree, as drafted by the Registry, was at variance with the directions given by the Supreme Court and the High Court?
Ratio Decidendi: 1. The court held that the appeals filed by the defendants were barred by time, as the appellants were not entitled to the benefit of any exclusion of time under Section 12 of the Limitation Act, 1963. The court observed that the Explanation to Section 12(2) of the Act requires the appellant to apply for a copy of the decree even though the decree is not ready. 2. The court held that the final decree, as drafted by the Registry in pursuance of the directions given by the High Court, was not at variance with the directions given by the Supreme Court at the time of modifying the preliminary decree passed by the Punjab High Court and those given in the judgment of the High Court.
Final Decision: The appeals filed by the defendants were dismissed.
( 1 ) THE above appeal has been preferred TO by defendants 5 to 7 (hereinafter called the appellants ). This judgment will also dispose of R. F. A. (O. S.) 19 of 1973 which has been filed by defendants 2 to 4.
( 2 ) THE facts of the case and the events leading to the present appeals have to be briefly stated. The first defendent (who is the brother of Bhairon Prasad) died in 1968. Bhairon Prasad had a son Sardar Mal; both of them died in the year 1942. Gindori Devi (defendant No. 9) is the widow of Sardar Mal. Gaja Nand (first plaintiff) and Girdhari Lal (defendant No. 5) are the sons of Sardar Mal. Defendants 6 to 8 are the sons of defendant 5; plaintiffs 2 to 4 are the sons of the first plaintiff. The second defendant is the son of the first defendant and defendants 3 and 4 are the sons of the second defendant.
( 3 ) GAJA Nand and his sons (plaintiffs I to 4) filed on 18-3-1952, a suit for partition and rendition of accounts of certain immovable properties and businesses which was dismissed by the learned Sub Judge 1st Class, Delhi, on 4-1-1956. There were two separate appeals, one of them by plaintiffs I to 4 and the other by defendants 5 to 8, to the High Court of Punjab which set aside the dismissal and passed a preliminary decree for partition on 10-2-1961, as prayed for in the plaint. Against the said decision defendants 1 to 4 filed two appeals in the Supreme Court of India both of which were dismissed on 2-12-1966 except for slight modification. In the meantime the final decree proceedings were allowed to go on, pending appeals in the Supreme Court; the passing of final decree alone had been stayed. A Commissioner was appointed by the trial court who submitted his report on 8-1-1965 ; it was accepted on 8-2-1965.
( 4 ) ON 31-7-1968 plaintiffs 1 to 4 (defendants 1 to 4) and the defendant 9 together filed a compromise in this Court (the suit which was pending in the lower court having been withdrawn to this Court on the creation of this High Court and conferring on it of original jurisdiction ). S. N. Andley, J. (as his Lordship then was) recorded, on 14-8-1968, the said compromise and passed a decree in terms of the compromise between the plaintiffs, defendants I to 4 and 9 and according to the report of the Commissioner against defendants 5 to 8 who were then ex parte.
( 5 ) ON 30-12-1968 defendant No I died; no application for addition of L. Rs was made obviously because no proceeding was then pending. On 29-5-1969 defendants 5 to 8 filed an application for setting aside the ex parte decree passed against them on 14-8-1968. The said application was dismissed by P. N. Khanna, J. on 23-12- 1971. Defendant No. 5 filed F. A. O. (0. 5) 13 of 1972 against the said order of P. N. Khanna, J. which was heard by us on 27-4-1972. Certain directions, which will be REFERRED TO to later, were given by us though the appeal was dismissed. The matter came up further before Dalip Kapur, J. who directed a final decree to be prepared in the light of the directions given in his order dated 19-1-1973. On 31-1-1973 the plaintiffs and defendant No. 9 filed necessary stamp papers for the preparation of the final decree; the plaintiffs filed stamps on behalf of defendants 5 to 8 also on 2-3-1973 since without such stamps being filed on their behalf the final decree could not be drawn up.
( 6 ) IT is mentioned to us, and there is no dispute about it, that the draft of the final decree was put up before the Deputy Registrar for approval on 7-3-1973; it was listed for hearing before him, the counsel for the parties appearing and adjourned to various dates.
( 7 ) ON 14-3-1973 defendants 2 to 4 and defendants 5 to 8 filed two separate appeals against the order dated 19-1-1973 of Dalip Kapur, J, which were dismissed by Prakash Narain and R. N. Aggarwal, JJ. in limine on 22-3-1973 holding that though the appeal may lie against the final decree as drawn up none could be filed against the directions given by Dalip Kapur, J.
( 8 ) THE
