1. This is a plaintiff's appeal arising out of a suit which was dismissed by the Court of first instance on the 4th of August 1923. It is stated in an affidavit filed in the lower Court that an application for a copy was made on the 11th of August, but for some reason or another it was rejected on the 15th of August. This matter, however, may be ignored. The thirty days allowed for filing the appeal before the District Judge expired on the 3rd September 1923, but the 2nd, 3rd and 4th happened to be holidays. Thus if the memorandum of appeal had been ready to be filed it would have been in time if it had been filed on the 5th September. The plaintiff, however, had not previously applied for fresh copies but made his application on the 5th September, the last day on which his appeal would have been within time owing to the holidays. The copies were granted to him on the 7th September and he took care to file the appeal on the very day, namely the 7th September.
2. The learned Judge of the Court below came to the conclusion that the appeal was filed one day beyond time, He thought that there was no good ground for extending the time and he accordingly dismissed the appeal as being barred by time.
3. In second appeal it is contended on behalf of the plaintiff-appellant that, as a matter of fact, the appeal to the District Judge was not barred by limitation at all; and secondly that even if it was barred by limitation he should have extended the time.
4. As to the second contention it might perhaps have been difficult to interfere with an exercise of discretion by the District Judge. The case of Ahmad Hussain v. Muhammad Fasihullah AIR 1923 All 455 is against any such interference.
5. As regards the first point: if one were to look to the provisions of Sections 4 and 12 of the Limitation Act which are relevant it would be seen that under Section 12 the time requisite for obtaining copies of the decree and the judgment are to be excluded, and under Section 4, if the period of limitation prescribed for an appeal expires on the day when the Court is closed, the appeal may be preferred on the day that the Court reopens. It would appear that Section 4 does not say that the period of the holidays should be excluded. Had the expression occurred in Rule 4 then the holidays would have to be added to the time requisite for obtaining copies and the time prescribed for filing appeal. All that Rule 4 says is that if the last day happens to be a holiday the appeal may be preferred on the next day that the Court reopens. It is, therefore, strongly contended before me that Section 4 cannot come into operation at all unless the time requisite for obtaining copies had first been calculated, and it is only when the day happens to be a holiday that Section 4 can be applicable. But that if even after adding the time requisite for obtaining the copies the last day for filing the appeal does not happen to be a holiday the period occupied by the holiday should not be included. In support of this contention strong reliance has been placed on the Pull Bench case of Bechi v. Ahsan-Ullah Khan (1890) 12 All 461 and particularly on the observations of Mr. Justice Mahmood at pages 471 and 472. On the other hand the learned vakil for the appellant contends that the time requisite for obtaining the copies of the decree and the judgment would include the time during which the appellant had to wait on account of the holidays intervening and that time should be added to the three days which were spent in actually obtaining the copies. He has relied on the case of Siyadat un nissa v. Muhammad Mahmud (1897) 19 All 342. In this latter case the learned Judges distinguished the Full Bench case pointing out that the remarks made by Mahmood, J., were obiter and that although they agreed with him that no period of time could be regarded as time requisite for obtaining a copy which was not subsequent to the presentation of the application for a copy they thought that the question which arose in such cases was different. In the opinion of the learned Judges if on the date when the copies were applied for, the limitation for filing the appeal had not expired in consequence of holidays then the appellant was entitled to file the appeal on the day when he obtained copies. On fact that case is directly in point and cannot be distinguished. Under the circumstances it is not for me to express any opinion on the language of the two sections. The view of the Bench is binding upon me. I further find that case has been followed by the Bombay High Court in the case of Pandharinath Sakharam v. Shanker Narayan Joshi (1901) 25 Bom 586 and by the Patna High Court in the case of Farzand Ali v. Abdul Hamid (1921) 60 IC 493. Under the circumstances I must hold that the appeal filed before the District Judge was within time. [Rest of the judgment is not material to this report.