1. This is a Letters Patent Appeal against the decision of Mr. Justice Barlee by which the learned Judge held that the appeal was out of time when it was filed in the District Court against the decree made by the Joint Subordinate Judge of Nasik. The material dates are as follows : On November 11, 1932, the appellant obtained a decree on a mortgage-bond in his favour, but part of his claim was rejected by the Subordinate Judge. He appealed from that part of the decision on December 23, 1932. It is clear, therefore, on the face of it that the appeal was barred. The period of thirty days allowed under Article 152 of the Indian Limitation Act for filing an appeal expired on December 11, 1932. That day, however, was a Sunday and on the next day, that is on December 12, the appellant applied for copies. The copies were ready on December 22, and he filed his appeal on. December 23. The District Judge held that the time had expired and dismissed the appeal. This decision was confirmed by Mr. Justice Barlee. It is said by the respondent that there was one day's delay.
2. We think that the case comes, within the principle laid down in Murlidhar v. Motilal (1936) 39 Bom. L.R. 32. and the appeal was filed in time. But even supposing that is not a correct view to take of this matter, this is preeminently a case in which the lower Court ought to have excused the one day's delay.
3. We allow the appeal, set aside the order of Mr. Justice Barlee and remand the case to the District Court with a direction that the appeal should be taken on file and disposed of on merits. In the circumstances of the case there will be no order as to costs of the appeal in the District Court and of the appeals in the High Court.
N.J. Wadia, J.
4 I agree.