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The New Piece Goods Bazaar Co., Ltd. Vs. Jivabhai Vadilal - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 55 of 1912
Judge
Reported in(1913)15BOMLR681; 20Ind.Cas.537
AppellantThe New Piece Goods Bazaar Co., Ltd.
RespondentJivabhai Vadilal
DispositionAppeal dismissed
Excerpt:
.....act (ix of 1908), section is, article 151 - appeal, filing of, beyond time - exclusion of time - time required for obtaining certified copy of the decree application for copy not filed within the period.;on 9th september 1912 a decree was passed on the original side of the high court. 'the memorandum of appeal against the decree was presented on the 7th october 1912. a certified copy of the decree was applied for on the same day but was not ready till december 1912. in the appeal court the respondent contended that the appeal was out of time, the appellant urged that the appeal was filed in time inasmuch as the time occupied in obtaining copy of the decree should be deducted under section 12 of the limitation act :-;that the appeal was presented beyond the prescribed period,..........favour of the plaintiffs. under article 151 of the limitation act, the party-aggrieved had twenty days to appeal from the date of that decree, the date of the decree being the date of the pronouncement of the judgment. the memorandum of appeal was, however, filed on the 7th of october, 1912, and it is contended that the appeal is out of time. on the other hand it is argued on behalf of the appellant that the appeal is not out of time, because a period from the 7th of october to some date in december should be deducted under section 12 of the limitation act as the period requisite for obtaining a copy of the decree.2. the bombay cases, yamaji v. antaji i.l.r (1898) bom. 442 and tukaram gopal v. pandurang sadaram i.l.r (1901) bom. 584, proceed upon the principle that an extension of time.....
Judgment:

Basil Scott, Kt., C.J.

1. Judgment was pronounced in this case on the 9th of September 1912 and a decree passed in favour of the plaintiffs. Under Article 151 of the Limitation Act, the party-aggrieved had twenty days to appeal from the date of that decree, the date of the decree being the date of the pronouncement of the judgment. The memorandum of appeal was, however, filed on the 7th of October, 1912, and it is contended that the appeal is out of time. On the other hand it is argued on behalf of the appellant that the appeal is not out of time, because a period from the 7th of October to some date in December should be deducted under Section 12 of the Limitation Act as the period requisite for obtaining a copy of the decree.

2. The Bombay cases, Yamaji v. Antaji I.L.R (1898) Bom. 442 and Tukaram Gopal v. Pandurang Sadaram I.L.R (1901) Bom. 584, proceed upon the principle that an extension of time for filing a memorandum of cannot be claimed unless some application is made to the Court for a copy of the decree or judgment indicating the intention of the aggrieved party to appeal within twenty days provided by the Schedule to the Limitation Act. It is a principle the application of which can work no hardship upon an appellant. All he has to do is to show by his application that he intends to appeal, and to make his application within the time limited for appeal. Then, any difficulties and delays that there may be, owing to his having to obtain copies of the decree and the judgment before filing his memorandum of appeal, are taken into consideration and he is not debarred from presenting the memorandum of appeal by having to wait to draw it up until he has obtained copies of the decree and the judgment.

3. It is contended that there is a belief prevailing in the profession as to a practice on the Original Side contrary to what I have stated. I have never heard of any such practice and I have always understood that a party must make up his mind within twenty days if he intends to appeal against a judgment delivered on the Original Side. There can be no doubt I think, from the Bombay judgments in Yamaji v. Antaji I.L.R (1898) Bom. 442 and Tukaram Gopal v. Pandurang Sadaram I.L.R. (1901) Bom. 584, that that mutatis mutandis is the practice on the Appellate Side. No hardship will result to the parties if that practice is also adher ed to on the Original Side.

4. We, therefore, think that the appeal is out of time, and must be dismissed with costs.


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