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C. Raghavendra Rao and ors. Vs. Vasavamba - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 89 of 1958
Judge
Reported inAIR1960Kant216; AIR1960Mys216
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rule 90; ;Limitation Act - Sections 12(2)
AppellantC. Raghavendra Rao and ors.
RespondentVasavamba
Excerpt:
.....findings of proceeding under section 33 having not been challenged, attained finality. same can neither be ignored nor be tried in a subsequent proceeding under section 10. principle of res judicata attracted. section 11 r/w explanation 8: [s.r. bannurmath & a.n. venugopala gowda, jj] res judicata held, section 11 is not exhaustive of res judicata. application of doctrine is not restricted to c.p.c., but extends to all litigations including industrial cases. section 11 is to be read in harmony with explanation 8. doctrine is founded on consideration of high public policy and said doctrine applies also between two stages in same litigation. - but those decisions cannot be considered as laying down good law, in view of the privy council decision above referred to......the time requisite for obtaining a copy of the order appealed from shall be excluded:but if the time prescribed had already expired even before an application under s. 12(2) was made, then the same cannot be received by applying for a copy for the purpose of appeal. in maqbul ahmad v. onkar pratap narain singh, air 1935 pc 85, lord tomlin speaking for the judicial committee observed :'the language employed in s. 4 indicates that it has nothing to do with computing the prescribed period. what the section provides is that, where the period prescribed expires on a day when the period prescribed expires on a day when the court is closed, notwithstanding that fact, the application may be made on the day that the court reopens; so that there is nothing in the section which alters the length.....
Judgment:
ORDER

(1) The only point that arises for consideration is the one relating to limitation.

(2) The facts relevant for the purpose of deciding the point in controversy are these: The petitioner's application (I. A. NO. III) Under R. 90 of O. XXI C.P.C. was dismissed on 21-3-1957; thereafter he filed an application for copy of the order on 22-4-1957 under Section 12(2) of the Limitation Act (which shall be hereinafter called the 'Act'); 21-4-1957 was a Sunday and 20-4-1957 was a penultimate Saturday. According to him, he got the copy applied for by him on 5-6-1957; the appeal was filed on 5-6-1957. The Court below rejected the appeal as being barred by time on two grounds: i.e. (1) the petitioner cannot combine the benefit of S. 4 with the extension of time provided under sub-ss. (2) and (3) of S. 12 of the Act'; and (2) the copy in question was really made really on 3-6-1957 which date had been fraudulently altered to 5-6-1957 and consequently the appeal is barred by time.'

(3) In view of the finding of the Court below that the copy in question was ready on 3-6-1957, i.e., the date on which the Court re-opened after summer recess, which finding being a finding of fact, it is unnecessary to consider the other point. But as the point has been argued at length, I shall proceed to examine the same. Section 4 of the 'Act' does not extend the period of limitation. It merely provides an application made, after the period of limitation prescribed therefor by the first schedule shall be dismissed.' Section 12(2) of the 'Act' lays down that in computing the period of limitation prescribed for an appeal, the time requisite for obtaining a copy of the order appealed from shall be excluded:

But if the time prescribed had already expired even before an application under S. 12(2) was made, then the same cannot be received by applying for a copy for the purpose of appeal. In Maqbul Ahmad v. Onkar Pratap Narain Singh, AIR 1935 PC 85, Lord Tomlin speaking for the Judicial Committee observed :

'The language employed in S. 4 indicates that it has nothing to do with computing the prescribed period. What the section provides is that, where the period prescribed expires on a day when the period prescribed expires on a day when the Court is closed, notwithstanding that fact, the application may be made on the day that the Court reopens; so that there is nothing in the section which alters the length of the prescribed period ; whereas in S. 14 and other sections of a similar nature in the Act (Section 12 is one such), the direction begins with the words : 'In computing the period of limitation prescribed for any application', certain period shall be excluded. It therefore seems to their Lord ships that, where there is ground for excluding certain period under S. 14(in the present case under S. 12) in order to ascertain what is the date of the expiration of the prescribed period, the days excluded from operating by way of limitation have to be added to what is primarily the prescribed period;..........'

The ratio of the decision in the above case applies to the facts of the present case. This is also that view taken by Kind J. in Kamaraju Pantulu v. Balla Saramma, AIR 1942 Mad 604. The learned Counsel appearing for the petitioner has invited my attention to some decisions rendered prior to the decision of the Privy Council. But those decisions cannot be considered as laying down good law, in view of the Privy Council decision above referred to.

(4) In the result, this petition fails and the same is dismissed with costs.

(5) Petition dismissed.


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