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Report No. 3

Section 12

36. It is not possible to prefer an application for leave to appeal unless the appellant or the applicant has a copy of the judgment on which the decree is based. As a matter of practice some courts are allowing the time taken for obtaining a copy of the judgment in such cases to be excluded under section 12 as "time requisite". This practice may be legalised by introducing suitable additions to section 12.

37. Some courts have taken the view that the delay in drafting the decree before an application for a copy is made should be deducted as "time requisite". But we think that a delay of the office before the application for a copy is made should not count in favour of the party. A suitable provision should be added to make this clear.

38. In this connection our attention has been drawn to a practice obtaining on the Original Side of the Calcutta High Court relating to the drafting of decrees and orders. The decree is not drawn up by the officer of the court as a matter of course; the party has to make an application for a 'completing order' and after an elaborate procedure the decree is drawn up and only thereafter can a party apply for a copy of it. It has been suggested to us that to avoid hardship to the litigants in such cases, the time taken for drafting a decree should also be excluded in computing the period of limitation. We have given careful consideration to this suggestion and we are not convinced of the need to make any special provision in this respect. The difficulty being due to rules peculiar to the. Original Side of the Calcutta High Court, the appropriate course would be to alter the relevant rules.

We refer in this connection to the recommendation made in the Report of the Judicial Reforms Committee for the State of West Bengal presided over by Harries, C.J. of the Calcutta High Court. It states: "there are serious defects in the present procedure of the Original Side. England has largely remedied these defects, but here they still remain. For example, the procedure for settling decrees and orders followed on the Original Side is cumbersome to a degree and frequently the cause of large delay and unnecessary expense." We endorse this view and we do not know why this recommendation has not been implemented. "We hope that the necessary changes would be made in the Original Side rules of the Calcutta High Court, to save the litigants from the hardship pointed out.

39. As we have provided a period of limitation for revision applications also, sub-section (1) should be amended suitably.



Limitation Act, 1908 Back




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