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Jaswant Rai and ors. Vs. Ram Sarup and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Judge
Reported in(1916)ILR39All82
AppellantJaswant Rai and ors.
RespondentRam Sarup and ors.
Excerpt:
act no. ix of 1908 (indian limitaion act), section 12; schedule i, article 179 - limitation--application for leave to appeal to his majesty in council--exclusion of time requisite for obtaining a copy of the decree. - - section 12, clause 2, of the limitation act now in force provides that in computing the period of limitation prescribed for an application 'for leave to appeal' the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree shall be excluded.henry richards, c.j. and muhammad rafiq, j.1. this is an application for leave to appeal to his majesty in council. a point has been taken on behalf of the respondent that the application was not presented within time. article 179 of the limitation act prescribes a period of limitation of was months from the date of the decree. section 12, clause 2, of the limitation act now in force provides that in computing the period of limitation prescribed for an application 'for leave to appeal' the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree shall be excluded. it is admitted that if this provision applies to an application for leave to appeal to his majesty in council the application is within time. prior to the passing of the.....
Judgment:

Henry Richards, C.J. and Muhammad Rafiq, J.

1. This is an application for leave to appeal to His Majesty in Council. A point has been taken on behalf of the respondent that the application was not presented within time. Article 179 of the Limitation Act prescribes a period of limitation of was months from the date of the decree. Section 12, Clause 2, of the Limitation Act now in force provides that in computing the period of limitation prescribed for an application 'for leave to appeal' the day on which the Judgment complained of was pronounced and the time requisite for obtaining a copy of the decree shall be excluded. It is admitted that if this provision applies to an application for leave to appeal to His Majesty in Council the application is within time. Prior to the passing of the present Limitation Act, appeals to His Majesty had to be brought within six mouths from the date of the decree and the applicant was not at liberty to exclude any time for the purpose of obtaining a copy of the decree. Under the old Act this time was only allowed to applications for leave to appeal as a pauper; but the clause of the section, as it now stands, is general and appears to apply to all applications for leave to appeal. It is highly probable that the words 'leave to appeal as pauper' were omitted so as to include applications for leave to appeal in insolvency matters. But in construing the section we must deal with the section as it now stands. On the plain words of the section an applicant for leave to appeal is entitled to exclude the period referred to. In our opinion the application is within time.

2. The value of the subject matter of the suit in the court below and of the proposed appeal to His Majesty in Council is upwards of Rs. 10,000. This Court did not affirm the decision of the court of first instance. The case accordingly fulfils the requirements of Section 110 of the Code of Civil Procedure and we so certify. We make no order as to costs.


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