1. The sole question for determination in this appeal is whether the appeal presented before the lower Appellate Court was within time. That Court dismissed the appeal on the ground that it was time-barred.
2. The facts briefly are these : The decree sought to be appealed against was passed on the 22nd of September, 1922. The appeal was filed on the 27th of November, 1922. A copy of the judgment was applied for on the 23rd of September, 1922, and a notice was given of the copy being ready on the 23rd of October of the same year. The decree was for partition and had to be engrossed on a stamped paper. The successful plaintiff did not provide the stamp paper till a very late date. On the 15bh of November, 1922, an application was made for a copy of the decree to be appealed against. As a matter of fact, the decree was not signed by the learned Subordinate Judge who passed it till 25th of November, 1922. A copy was made of the decree on the same date and was handed over to the appellant. Twenty-sixth of November was a Sunday. As we have already stated, the appeal was filed on the 27th of November, 1922.
3. The learned Judge, in dismissing the appeal as time-barred, has not given his reasons very clearly. As we take it, it appears that he was of opinion that an application for a copy of the decree ought to have been made while the period of limitation, initially granted by the First Schedule of the Limitation Act, was yet unexpired.
4. To find out whether the appeal before the lower Appellate Court was within time or not, we have to look for guidance to Section 12 of the Limitation Act. Under that Act we have got three periods for computation of limitation.
5. The first period is the initial period granted by the several articles of Schedule 1; the second period is granted by paragraph 2 of Section 12 which says that the time requisite for obtaining a copy of the decree will be excluded; then the third period is granted by paragraph 3 of the same section; the time requisite for obtaining a copy of the judgment on which the decree is founded shall also be excluded. Giving the language its general and ordinary meaning, it would appear that an appellant would be within time, if his appeal is filed within the total amount of periods granted to him, namely, the initial period granted by Schedule 1, plug the time requisite for obtaining a copy of the decree plug the time requisite for obtaining a copy of the judgment. Of course, if any of the two periods requisite for obtaining copies over-lap each other, one of the over-lapping periods will have to be left out of account.
6. The authorities on the point do not seem to be quite agreed. In Din Dayal v. Bameshwar (1914) 15 O.C. 74, it was held by Mr. Kanhaiya Lal (as Mr. Justice Kanhaiya Lal, then was) that it was open to an appellant to make his application for the second copy within the period of limitation as extended by his obtaining the first copy. The same view was taken in Rajani Kanta Kapali v. Kali Mohan Das Kapali (1916) 21 C.W.N. 217. Coming to our High Court, in Mulraj v. Niadar Mail (1920) 42 All. 260, it was remarked that an appellant was bound to apply for a copy of the decree and a copy of the judgment at one and the same time at any rate, within the initial period of limitation. So far as we have been able to examine actual dates involved in the case, the appeal was entirely time barred at the date it was presented. In these circumstances, it was not necessary for their Lordships to say that it was incumbent on an appellant to apply for copies at one and the same time and within the period provided by the first schedule. Indeed there is no clear provision of law to that effect to be found in Section 12 of the Limitation Act. There can be no doubt that on the merits, the decision of this Court was perfectly right.
7. Coming back to the facts of the case before us, the appellant had 30 days, plus 31. days, plus 11 days; total 72 days from 22nd of September, 1922, within which to appeal. The appeal, filed on the 27th of November, 1922, wag wall within these 72 days. The appeal was, therefore, presented within the period of limitation.
8. We allow the appeal, sat aside the decree of the Court below and remand the appeal to the lower Appellate Court for disposal according to law. The costs in this Court will be paid, at all events, by the respondents. The coats in the Court below will be within its discretion.