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Mukat Beharilal Agarwal Vakil Vs. Additional District Magistrate (Executive), Bareilly and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Appln. No. 8993 of 1958 in Special Appeal No. 422 of 1958
Judge
Reported inAIR1959All699
ActsLimitation Act, 1908 - Sections 4 and 12
AppellantMukat Beharilal Agarwal Vakil
RespondentAdditional District Magistrate (Executive), Bareilly and ors.
Appellant AdvocateBrijlal Gupta, Adv.
Respondent AdvocateS.N. Misra and ;Standing Counsel
DispositionApplication dismissed
Excerpt:
limitation - sections 12 and 4 of limitation act, 1908 - expiry of limitation for filing appeal during vacation - application for copy of decree against the judgment of which appeal has to be filed - time taken in obtaining copies of the judgment and decree cannot be excluded notwithstanding the fact that right to file the appeal still subsists in view of the provision of section 4 of limitation act, 1908. - .....nothing to do with computing the prescribed period. what the section provides is that, where 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 t'hat there is nothing in the section which alters the length of the prescribed period; ......'the consequence, in our opinion, is that a litigant is not entitled, in computing the period of limitation for the filing of an appeal, to take into account the time taken in obtaining copies of the judgment and decree appealed from if the application for those conies is made after the expiry of the period of limitation notwithstanding the fact that the right to file the appeal still subsists in view of the provisions of section 4. this is the.....
Judgment:

O.H. Mootham, C.J.

1. This is an application under Section 5 of the Indian Limitation Act. The applicant, who is a pleader, desires to appeal to this Court from a judgment and decree passed by Mr. Justice Oak dated the 28th April, 1958. The period of limitation for the filing of the appeal was 60 days, and that period expired on the 27th June, 1958. The Court however was then closed for the vacation, and under Section 4 of the Limitation Act the memorandum of appeal could have been presented on the day on which the Court reopened which was the 12th July.

The applicant applied for a copy of the decree against which he desired to appeal on the 30th June and for a copy of the judgment on the 4th July, that is to say after the expiry of the period of 60 days but before the end of the vacation. The copy of the judgment was ready on the 4th August, that of the decree on the 21st August. The memorandum of appeal was presented on the 11th September.

2. Prima facie, the memorandum of appeal was presented 76 days after the expiry of the periodof limitation. It is however contended on behalf of the applicant that in computing the period of limitation he is entitled to exclude the time taken in obtaining copies of the decree and judgment; that is to say, he is entitled to exclude 52 days. With regard to the remaining period of 24 days, his explanation is that he did not file the memorandum of appeal earlier as he was under the impression that the prescribed period of limitation was 93 days and not 60 days.

3. In our opinion the applicant is not en-titled to exclude the time spent in obtaining copies of the judgment & decree. It is not in dispute that for the purposes of Section 12 of the Limitation Act the time taken in obtaining copies of the judgment and decree can be excluded only if the application for such copies is made before the expiration of the relevant period of limitation. The question is, therefore, when that period expired. It has been urged on behalf of the applicant that the effect of Section 4 of the Act is to extend the period of limitation, which would otherwise have expired during the vacation, until the 12th of July, 1958, the day on which the Court reopened, and that as the applications for copies were made before that date the applicant was entitled to exclude in computing the period of limitation the time taken in obtaining such copies. This seems to have been the view which was taken by this Court in Siyadat-un-Nissa v. Muhammad Mahmud. ILR 19 All 342 and by the Bombay High Court in Tukaram Gopal v. Pandurang Sadaram, ILR 25 Bom 584, and in Pan-dharinath Sakharam v. Shankar Narayan, ILR 25 Bom 586. We are however of opinion, with respect, that that view of the law must now be regarded as mistaken. In Maqbul Ahmad v. Onkar Pi-atap Narain Singh, the Privy Council pointed out that Section 4 of the Limitation Act merely provides that if the prescribed time in a civil proceeding expires when the court is closed, the proceeding can be instituted on the day when the Court reopens and that the section does not alter or extend the period of limitation prescribed for that proceeding. Lord Tomlim in delivering the judgment of the Judicial Committee said:--

'The second period is the period of the long vacation. In regard to that matter, the appellants seem to their Lordships to be in a position which is in the nature of a dilemma. It is to be noted that there is a marked distinction in form between Section 4 and Section 14. The language employed in Section 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 Court is closed, notwithstanding that fact, the application may be made on the day that the Court reopens; so t'hat there is nothing in the section which alters the length of the prescribed period; ......'

The consequence, in our opinion, is that a litigant is not entitled, in computing the period of limitation for the filing of an appeal, to take into account the time taken in obtaining copies of the judgment and decree appealed from if the application for those conies is made after the expiry of the period of limitation notwithstanding the fact that the right to file the appeal still subsists in view of the provisions of Section 4. This is the view which has been taken in Kamaraju Pantulu v Balla Saramma AIR 1942 Mad 604 and Bhawani Cloth Mills Ltd. v. Parmeshari Doss, AIR 1947 Lah 168 and, with respect, we think it to be correct.

4. In the case before us no explanation has been given as to why no application for the requisite copies was made before the 27th of June, 1958;and the only explanation which is given why, afterthe copies nave been obtained on the 21st Augustthe appeal was not presented upto the 11th September, is, as we have said, that the applicant wasunder the impression that the period of limitationis 90 days. In the circumstances we are not satisfiedthat the applicant had sufficient cause for notpresenting nig appeal within the prescribed period.This application accordingly fails and is dismissedwith costs.


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