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Sheo Prasad Vs. Narsingh Sahai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1918)ILR40All1
AppellantSheo Prasad
RespondentNarsingh Sahai
Excerpt:
.....of court of the 18th january, 1898, chapter iii, rule 2--appeal--limitation--act no. ix of 1908 (indian limitation act), section 12. - - 1. the question that has been referred to this full bench for decision is whether the appeal, out of which the question' arises, is barred by limitation or not 2. in order to decide this point it is necessary to consider first the date on which the judgement of the lower appellate court was passed and the days that it took the appellant to obtain copies of the judgement and decree complained of. the judgement was pronounced on the 3rd of december, 1915. we find from the record that an application for the copy both of the judgement and decree was made on the 7th of december, 1915, and that that copy could have been obtained on the 18th of december,..........in this court on the 15th of march, 1916, and was thus one day beyond the time allowed by the indian limitation act. prima facie, therefore, it appears that the appeal at the time when it was presented to this court was barred. but the appellant seeks to call to his aid a period of another eleven days, more or less, and the ground on which he seeks the addition of this period is that under rule 2, chapter iii, this court has made a rule that 'no memorandum of appeal from an appellate decree or from any order shall be presented unless accompanied by a copy of the decree or order appealed against and, where it exists, a copy of the judgement of the court of first instance.' his contention is that, as he could not present his memorandum of appeal unless it was accompanied by the copy.....
Judgment:

Knox, A. C.J., Pramada Charan Banerji and Tudball, JJ.

1. The question that has been referred to this Full Bench for decision is whether the appeal, out of which the question' arises, is barred by limitation or not

2. In order to decide this point it is necessary to consider first the date on which the judgement of the lower appellate court was passed and the days that it took the appellant to obtain copies of the judgement and decree complained of. The judgement was pronounced on the 3rd of December, 1915. We find from the record that an application for the copy both of the judgement and decree was made on the 7th of December, 1915, and that that copy could have been obtained on the 18th of December, 1915. The appellant therefore had at his disposal the ninety days prescribed for the appeal plus a period of twelve days, the time requisite to obtain copies of the judgement and decree complained of. The appeal was filed in this Court on the 15th of March, 1916, and was thus one day beyond the time allowed by the Indian Limitation Act. Prima facie, therefore, it appears that the appeal at the time when it was presented to this Court was barred. But the appellant seeks to call to his aid a period of another eleven days, more or less, and the ground on which he seeks the addition of this period is that under Rule 2, chapter III, this Court has made a rule that 'no memorandum of appeal from an appellate decree or from any order shall be presented unless accompanied by a copy of the decree or order appealed against and, where it exists, a copy of the judgement of the court of first instance.' His contention is that, as he could not present his memorandum of appeal unless it was accompanied by the copy of the judgement of the court of first instance, he can claim the additional period which was requisite for the obtaining of the copy of the said judgement. In the present case that period was a period of eleven days. When the memorandum of appeal was presented to this Court it was as a matter of fact accompanied by the documents which the Code of Civil Procedure and the rule of this Court required should accompany it. But, as we have already stated above, the date of presentation was one day beyond the period of time allowed by the Indian Limitation Act. Now Section 12 of the Indian Limitation Act is perfectly clear and its language in no way ambiguous. It lays down in Clause (3) of Section 12 of the Act that 'where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of the judgement on which it is founded shall also be excluded.' Nothing further is said, and we are unanimous in holding that this Court has no power by any rule that it may make to alter the period of limitation prescribed by the Indian Limitation Act. We would further say that the rule as it stands was never intended to and can in no way be construed as altering in any way the Indian Limitation Act. This Court has power to alter, amend and add to rules of procedure laid down by the Code of Civil Procedure, vide Section 122, but nowhere has any power been given to it to touch the Limitation Act. Our answer then to the question which has been sent to us is that the present appeal is barred by limitation.

3. We have not got to determine whether this is a case in which the provisions of Section 5 of the Limitation Act are to be applied. That is a matter for the Bench hearing the appeal.


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