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Puttu Lal Vs. Bhagwan Dass and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Reported inAIR1938All106
AppellantPuttu Lal
RespondentBhagwan Dass and ors.
Excerpt:
- - in computing the period of limitation, prescribed for an appeal an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed shall be excluded......of the judgment and decree and these were received on 11th july and the appeal was filed on 18th july. the period of limitation is 30 days for an appeal to the district court. two points were urged before the lower court and have been urged in revision. one point was that under the provisions of section 12, sub-section (2), lim. act, this appeal should be held to have been filed within time, and the second argument was that even if this be not so, there are facts existing in the present case on account of which the court should have extended time under section 5, lim. act. as regards the application under section 5, the court below held that there were two affidavits one by each party and that as the case was one of oath against oath the court could not hold that the appellant had.....
Judgment:

Bennet, J.

1. This is a civil revision from an order of the learned District Judge of Cawnpore holding that an appeal filed in his Court was filed beyond time and dismissing it on that ground and also dismissing an application to apply Section 5, Lim. Act. The trial Court delivered judgment on 2nd June, the last working day before vacation, and the Courts re-opened on 4th July which was a Saturday after vacation. No application for copy was made on that date by the appellant and it was not until 7th July that he made an application for copies of the judgment and decree and these were received on 11th July and the appeal was filed on 18th July. The period of limitation is 30 days for an appeal to the District Court. Two points were urged before the lower Court and have been urged in revision. One point was that under the provisions of Section 12, Sub-section (2), Lim. Act, this appeal should be held to have been filed within time, and the second argument was that even if this be not so, there are facts existing in the present case on account of which the Court should have extended time under Section 5, Lim. Act. As regards the application under Section 5, the Court below held that there were two affidavits one by each party and that as the case was one of oath against oath the Court could not hold that the appellant had proved any facts which would warrant the application of Section 5 of the Act. As this is a civil revision we consider that we cannot interfere with this conclusion of fact of the learned Judge of the Court below and therefore it is not a case where we should pass any order under Section 5 extending the period for filing the appeal. The question for our consideration which has been argued in this Court is the interpretation to be placed on Section 12(2) which states as follows:

In computing the period of limitation, prescribed for an appeal an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed shall be excluded.

2. Now for the applicant in revision, it is contended that the time requisite for obtaining a copy of the decree is not to be computed from the date on which the application for copy was made up to the time when the copy was granted. In the present case the application for copy was made on 7th July and the period of limitation had already expired on 4th July and therefore as the application was made after the limitation period had expired, the period of limitation could not be extended; but learned Counsel contended that the words 'time requisite' should bear in the circumstances of the present case a different meaning than the period between an application and the granting of the application. He contended that because the judgment was pronounced on the day on which the Courts closed, a copy could not have been obtained during vacation even if an application had been made on the closing day as the copying department does not work during the vacation and therefore he contended that the whole period of the vacation should be excluded. The result of granting of such an argument would be that a fresh start for limitation would begin from the opening day and the period within which an application for a copy could be made would apparently be 30 days from that date. We do not think that the Limitation Act intended that any such provision should apply.

3. There are certain cases in which an application for a copy has been made on the opening day after vacation and it has been held that under those circumstances under Section 12(2) the period of limitation may be extended by the period requisite for obtaining a copy, i.e. the period between the date of the application and the period of granting the copy. It was held in Saminatha Ayyar v. Venkata Subba Ayyar (1904) 27 Mad 21 that an application for copy made on the opening day did extend the period of limitation under Section 12(2). A later ruling in Subramanyan v. Narasimham (1920) 7 A.I.R. Mad. 359 held that it was only in case an application for copy was made on the opening day that Section 12(2) could be applied. It is true that in certain rulings of the Patna High Court a wider view has been taken, i.e. in Debi Charan Lal v. Mehdi Husain (1916) 3 A.I.R. Pat. 317 (Patna 1916) and in Munshi Mahton v. Lachman Lal (1929) 16 A.I.R. Pat. 615. On the other hand it is pointed out that this Court has not taken that view and that in 12 All 4615 at pp. 470, 471 and 472 there are observations contrary to this view by the late Mahmood J. We consider that we should not follow the view which has been held on two occasions by the Patna High Court because that view would lead to a very considerable extension of the period of limitation and that view has not been followed in any ruling of this High Court and the ruling quoted of this High Court and the Madras rulings take a contrary view. Accordingly we dismiss this application for revision with costs.


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