Section 12 of the Limitation Act, 1963 provides that:
(1) In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded.
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ADVERTISEMENTS:
(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.
(4) In computing the period of limitation for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded.
ADVERTISEMENTS:
As per explanation given under Section 10, 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.
The Limitation Act, 1963 prescribes periods of limitation for suits, appeals or applications. The rules as to computation of period of limitation (Sections 12 to 24) not intended to apply only to periods of limitation prescribed by the Schedule but apply also to periods of limitation provided for by other enactments.
Section 12 of the Limitation Act is first of the sections providing for exclusion of time in computing the period of limitation. The Section 12 of the Act excludes from reckoning the day from which the period is to be reckoned and time requisite for obtaining copies of documents referred to in sub-sections (2) to (4). The true effect of Section 12 is that the periods referred to in the various sub-sections have to be added to the period of limitation.
There need not be any prayer or application by a party for the time to be excluded under Section 12 of the Limitation Act. This Section 12 confers a substantive right upon a party and it is the duty of the Court to exclude the time when the case comes under the purview of any of the sub-sections of Section 12.
ADVERTISEMENTS:
According to sub-section (1) of Section 12 of the Limitation Act, the first day i.e. the day from which a period of limitation is to be computed, must be excluded. And the last day i.e. the day on which the suit is instituted must be included in the calculation. This rule is applicable whenever time has to be computed from a day specified whenever such time is fixed performance of contract or is prescribed by law for the doing of an act or for the institution of the proceedings in a Court of Law.
In Webb v. Fairmaner, [(1838) 3 M&W 473], when goods were sold on 5th October to be paid for in two months from the date of sale it was held that in computing the period of two months 5th day of October shall be excluded and action for price of goods cannot be started until and after expiration of 5th December.
In Krishna Bilas v. Sonadhan, (AIR 1961 Tripura 16), it is held that in a suit of recovery of possession under Section 9 of the Specific Relief Act, the day of dispossession is to be excluded.
In Sita Ram v. State, (AIR 1961 All. 151), it has been held that for an offence under Section 106 of the Factories Act the date on which the offence came to the notice of the Inspector is to be excluded. In Ram Nandan v. Ramadhar, [AIR 1966 Pt. 297 (FB)], it has been held that in computing the limitation for filing appeal against the Panchayat election, the date of declaration of the result of the election is to be excluded.
In R. Hamira v. Bani Mani, [(1976) 17 Guj. L.R. 729], it is held that the day on which the judgment is pronounced should be excluded in computing the period of limitation for an appeal. The limitation for filing an appeal commences from the date of the judgment and not from the date of decree is signed.
In State of Bihar v. Rameshwar Prasad, (AIR 1994 SC 501), the Supreme Court has held that in the matter of setting aside the award the date on which the filing of the award was made known to the advocate of the applicant has to be excluded under Section 12(1) of the Limitation Act.
In Saketh India Ltd. v. India Securities Lt., (AIR 1999 SC 1090), the notice of returning of the cheque as unpaid was served on the drawer on 29th September, 1995. The period of 15 days for making payment by the drawer under the proviso (c) to Section 138 of the Negotiable Instruments Act is expired on 14th October, 1995. Therefore, the cause of action to file a complaint under Section 138 of the Negotiable Instruments Act arose on 15th October, 1995. In computing the one month limitation period under Section 142(b) for filing a complaint against the drawer the date of 15th October, 1995 is to be excluded. The Court has held that the complaint filed on 15th November, 1995 is within time as it has been filed on the 30th day excluding 15th October, 1995. This rule has been consistently followed and has been adopted in General Clauses Act and in the Limitation Act.
Sub-section (2) of Section 12 of the Limitation Act applies to appeals, an application for leave to appeal, an application for the review of judgment and also to an application or a petition for revision. Section 12(2) is not of general application but only applies to specific categories mentioned therein.
In India House v. Kishan N. Lalwani, (AIR 2003 SC 2084), the Supreme Court has held that no application seeking benefit of Section 12(2) is required and Court is bound by statute to extend the benefit where applicable and no formal application is required to be made.
In Commissioner of Sales Tax v. Madanlal, (AIR 1977 SC 523), it has been held that it would be impermissible to read in Section 12(2) a proviso that the time for obtaining the copy shall be excluded only if such copy has to be filed along with the memorandum of appeal or application for leave to appeal or for revision or for review of judgment.
In Punni v. State, (AIR 1971 All. 387), it has been held, following the decision of the Supreme Court in S.A. Gaffore v. Ayesha Begum, (1970 UJ (SC) 784), that exclusion of time is allowed even when copy is not required to be filed along with the memorandum.
In Krishnji v. N.R. Malti, (AIR 1972 Mys. 274), it is held that when the appeal against the date of signing the decree has to be excluded.
In Jagiri v. Doulat, (AIR 1928 Lah. 755), it has been held that an appellant is entitled to deduct the time spent in obtaining a copy of the first judgment of the trial Court as well as of the judgment passed on review.
In Udayan Chinubhai v. R.C. Bali, (AIR 1977 SC 2319), it has been held by the Supreme Court that under Section 12(2) of the Limitation Act read with the Explanation, the appellant is not entitled to exclude the time that had elapsed from the date of the judgment till signing of the decree prior to his application for a copy thereof in computing the period of limitation prescribed for filing the appeal.
In India Home v. Kishan N. Lalwani, (AIR 2003 SC 2084), the Supreme Court has modified earlier stand and has overruled all the contrary decisions of different High Courts and has held that Section 12(2) of the Limitation Act says that it is time requisite for obtaining the copy being excluded from computing the period of limitation or the time requisite for obtaining the copy being added to the prescribed period of limitation and treating the result of addition as the period prescribed and that in adopting methodology it does not make any difference whether the application for certified copy was made within prescribed period of limitation or beyond it. The Supreme Court upheld the decision of the Madras High Court which has held that though the application for certified copy of judgment and decree was made after the prescribed period of limitation the period was liable to be excluded in all cases and not depending on whether there is sufficient cause or not.
In State of U.P. v. Maharaja Narain, (AIR 1968 SC 960), it has been held that the expression “time requisite” in sub-section (2) of Section 12 cannot be understood as the time absolutely necessary for obtaining the copy of the order and that what is deductible under sub-section (2) of Section 12 is not the minimum time within which a copy of the order appealed against could have been obtained. The section does not permit the exclusion of the period required for obtaining a certified copy of the decree for the purpose of exclusion.
The question whether the appeal preferred was in time or not should be considered on the basis of information available from the copy of the judgment and decree filed along with the Memorandum of Appeal and not from the other copies which the party might have got and used for other purposes with which the Court has nothing to do.
The time spent in obtaining a copy of the judgment also will be excluded under sub-section (3) of Section 12, because it is generally necessary that the judgment on which the decree of the High Court is based should be obtained in order that the parties may ascertain what its terms are, and further filed with the application for leave to appeal.
In computing the period of limitation for an application for leave to appeal the time requisite for obtaining a copy of the judgment complained of must be excluded. (Baldeo Pershad v. Dwarika, AIR 1957 All. 334). In applying for leave to appeal to the Supreme Court the applicant was not entitled to get any time spent in obtaining a copy of the judgment deducted in computing the period of limitation. (Deep Chand v. Bhago, AIR 1965 Punj. 115).
In Biswapati v. Kenington Store, (AIR 1972 Cal. 172), it has been held that Section 12(3) of the Limitation Act does not apply to an application for execution of a decree. The period of limitation for an execution application therefore runs under Article 136 (old 182) from the date of the judgment and not from the date on which the decree is signed.
According to sub-section (4) of Section 12 of the Limitation Act, the period for obtaining copy of the award to be excluded in computing the period of limitation for an application to set aside an award.
An appeal for execution does not fall in any of the categories of legal proceedings mentioned in Section 12 of the Limitation Act. It, therefore, follows that this section is not applicable to an application for execution.
In Shahjahan Begum v. Zahirul Hasan, (AIR 1972 All. 511), the Allahabad High Court has held that the Explanation in Section 12 implies that the time requisite for obtaining copy is the time taken by the Court in preparing the decree or order before the application for copy is made as also the time taken in preparing the copy after the application therefore has been made.
In Udayam Chinubhai v. R.C. Bali, (AIR 1977 SC 2319), the Supreme Court has held that under Section 12(2) read with the Explanation a person cannot get exclusion of the period that elapsed between the pronouncement of the judgment and the signing of the decree if he made the application for copy only the preparation of the decree. The Supreme Court has pointed out that the time requisite for obtaining a copy under Section 12(2) must be that time which is required for getting a copy of the decree.
In State of Assam v. Govinda Chandra Patel, (AIR 1991 Gau. 104), the Gauhati High Court has held that in view of Section 12(2) read with the Explanation the appellant is not entitled to exclude the time that had elapsed from the date of judgment till the signing of the decree prior to the application for a copy thereof in computing the period of limitation prescribed for filing the appeal.