1. A preliminary objection is taken to this application for leave to appeal to His Majesty in Council that it is barred by time. Judgment in this case was pronounced by the High Court on 23rd January 1934, and a decree was prepared later on. An application for a copy of the decree was filed on 28th April 1934, and the copy was ready for delivery on 16th May 1934. This application for leave to appeal was filed on 21st July 1934. It is therefore obvious that if the time required for obtaining of the decree be not excluded from the period of limitation prescribed for such applications, the application is beyond time. Indeed the time expired before the long vacation commenced, and therefore the applicant is not entitled to add to that period the period of the long vacation.
2. The learned advocate for the applicants contends before us that under Section 12(3), Limitation Act, he is entitled to exclude the time requisite for obtaining a copy of the judgment also in addition to the time requisite for obtaining a copy of the decree. He has to concede that there is a ruling of this Court in Wilayati Begam v. Jhandu Mal-Muhu La 1926 All. 286, which is directly against him. But he urges before us that the Patna High Court and the Madras High Court have taken a contrary view and that therefore the matter may be referred to a higher Bench.
3. In Mahabir Prasad Tiwari v. Jamuna Singh 1922 Pat. 255, Dawson Miller, C.J., of the Patna High Court in delivering he judgment of the Court in which Ross, J., concurred undoubtedly held that Sub-section (3) of Section 12 was applicable. But the learned Chief Justice also referred to the practice of his Court under which it was necessary that a copy of the judgment from which it is sought to appeal should always be filed with the petition applying for leave. This view appears to have been adopted by the Madras High Court in In re Secy. of State 1925 Mad 1241. The learned Judges remarked:
But we think that though Sub-section 3 does not in terms apply, the language used in it really covers the present case.
and put an interpretation on Sub-section (3) so as to give it a wider scope and make it applicable to all the categories mentioned in Sub-section 2. The main basis of the decision was that a proper application for leave to appeal cannot be drawn up unless a copy of the judgment has been obtained. On the other hand in Wilayati Begam v. Jhandu Mal-Muhu La 1926 All. 286, it was distinctly held by this Court that the language of Sub-section (3) when contrasted with Sub-section (2) clearly contemplates the exclusion from the scope of Sub-section (3) of the case of an application for leave to appeal and that in this Court it is not at all necessary that the applicant should at the time of filing his application for leave file also a copy of the judgment on which the decree is founded. A similar view was in the same year expressed by a Division Bench of the Sind Judicial Commissioner's Court in Nur Muhammad v. Hassomal 1925 Sind 60.
4. It seems to us that the point becomes clear when it is borne in mind that the position was prior to the Limitation Act of 1908. As laid down in Lakshmanan v. Peryasami (1887) 10 Mad 373 and Anderson v. Periasami (1892) 15 Mad 169 and pointed out in Ram Sarup v. Jaswant Rai 1915 All. 335, under the old Act, appeals to His Majesty had to be brought within the prescribed time 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 of judgment. Thus there was no exclusion either of the time for obtaining a copy of the decree or of the time required for obtaining a copy of the judgment. Sub-section (3) of Section 12 was held not to be applicable to an application for leave to appeal to His Majesty in Council although there was in one sense an appeal preferred from a decree of the High Court. In 1908 the Legislature on the one hand reduced the period prescribed for an application for leave to appeal from six months to ninety days and on the other deleted certain words from Sub-section (2) so as to make it applicable to all applications for leave to appeal including an application for leave to appeal to His Majesty in Council. The Legislature did not think it fit to amend Sub-section (3) at all. It is a significant fact that as the section now stands there are three categories of cases to which Sub-section (2) applies : (i) an appeal; (ii) an application for leave to appeal and (iii) an application for review of judgment. Two of these categories are practically reproduced in Sub-section (3), but there is a deliberate omission of an application for leave to appeal in Sub-section (3). The Legislature has therefore clearly intended that Sub-section (3) should not apply to an application for leave to appeal, but should apply only to appeals.
5. The matter that is before us at this stage is an application for leave to appeal only and it is only when the leave is granted that the appeal would be admitted. There is a specific article, Article 179, Limitation Act, which applies to an application for leave to appeal to His Majesty in Council. To such an application Sub-section (3) does not apply. It seems to us therefore that we cannot stretch the meaning of Sub-section (3) in order to make it applicable to an application for leave to appeal, also when the Legislature has expressly omitted such cases from Sub-section (3).
6. We are not at all impressed by the contention that in order to draw up grounds of appeal it is essential to obtain a copy of the judgment and that therefore the section should be liberally interpreted so as to obviate this difficulty. Ordinarily, a judgment is ready on the date when it is pronounced and a copy can be applied for at once, whereas the decree is not ready on that date and has to be prepared subsequently. It happens ordinarily that the time taken for obtaining a copy of the decree is longer than that taken in obtaining a copy of the judgment. The Legislature therefore might well have thought it necessary when reducing the period of limitation to allow the time requisite for obtaining a copy of the decree to be excluded, but not the time requisite for obtaining a copy of the judgment in addition thereto.
7. Inasmuch as we agree with the view expressed previously in Wilayati Begam v. Jhandu Mal-Muhu La 1926 All. 286, we hold that the application would prima facie be barred by time unless the applicant can show good cause for extension of time under Section 5, Limitation Act. As we are informed that such an application has been filed let this be put up with that application.