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Narsingh Sahai Vs. Sheo Prasad - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1918All389; 42Ind.Cas.855
AppellantNarsingh Sahai
RespondentSheo Prasad
Excerpt:
.....code (act v of 1908), section 122, order xli, rule, 1 - allahabad high, court rules, ch. iii, rule 2--limitation. act (ix of 1908), section 12--high court, power of, to frame rules, scope of--memorandum of appeal to be accompanied by copy of judgment of court of first instance--period spent in obtaining copy, whether to be excluded. - - 2. in order to decide this point it is necessary to consider first the date on which the judgment of the lower appellate court was passed and the days that it took the appellant to obtain copies of the judgment and decree complained of. the judgment was pronounced on the 3rd december 1915. we find from the record that an application for the copy both of the judgment and decree was made on the 7th december 1915, and that that copy could have been..........filed in this court on the 15th march 1916, and was thus one day beyond the time allowed by the indian limitation act. prima facie, therefore, it appears that the appeal at the time when it was presented to the court was barred. bat the appellant seeks to call to his aid a period of another eleven days, more or less, and the ground on which he seeks the addition of this period is that under rule 2, chapter iii, this court has made a rule that 'no memorandum of appeal from an appellate decree or from any order shall be presented unless accompanied by a copy of the decree or order appealed against and, where it exists, a copy of the judgment of the court of first instance.' his contention is that as he could not present his memorandum of appeal unless it was accompanied by the copy of.....
Judgment:

1. The question that has been referred to this Full Bench for decision is---Whether this appeal, out of which the question arises, is barred by limitation or not?

2. In order to decide this point it is necessary to consider first the date on which the judgment of the lower Appellate Court was passed and the days that it took the appellant to obtain copies of the judgment and decree complained of. The judgment was pronounced on the 3rd December 1915. We find from the record that an application for the copy both of the judgment and decree was made on the 7th December 1915, and that that copy could have been obtained on the 18th December 1915. The appellant, therefore, had at his disposal the ninety days prescribed for the appeal plus a period of twelve days, the time requisite to obtain copies of the judgment and decree complained of. The appeal was filed in this Court on the 15th March 1916, and was thus one day beyond the time allowed by the Indian Limitation Act. Prima facie, therefore, it appears that the appeal at the time when it was presented to the Court was barred. Bat the appellant seeks to call to his aid a period of another eleven days, more or less, and the ground on which he seeks the addition of this period is that under Rule 2, Chapter III, this Court has made a rule that 'no memorandum of appeal from an appellate decree or from any order shall be presented unless accompanied by a copy of the decree or order appealed against and, where it exists, a copy of the judgment of the Court of First Instance.' His contention is that as he could not present his memorandum of appeal unless it was accompanied by the copy of the judgment of the Court of First Instance, he can claim the additional period which was requisite for the obtaining of the copy of the said judgment. In the present case that period was a period of eleven days. When the memorandum of appeal was presented to this Court, it was as a matter of fact accompanied by the documents which the Code of Civil Procedure and the rule of this Court required should accompany it. But as we have already stated above, the date of presentation was one day beyond the period of time allowed by the Indian Limitation Act. Now Section 12 of the Indian Limitation Act is perfectly clear and its language in no way ambiguous. It lays down in Clause 3 of Section 12 of the Act that 'where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of the judgment on which it is founded shall also be excluded.' Nothing further is said, and we are unanimous in holding that this Court has no power by any rule that it may make to alter the period of limitation prescribed by the Indian Limitation Act. We would further say that the rule as it stands was never intended to and can in no way be construed as altering in any way the Indian Limitation Act. This Court has power to alter, amend and add to rules of procedure laid down by the Code of Civil Procedure, vide Section 122, but nowhere has any power been given to it to touch the Limitation Act.

3. Our answer then to the question which has been sent to us is that the present appeal is tarred by limitation.

4. We have not got to determine whether this is a case in which the provisions of Section 5 of the Limitation Act are to be applied. That is a matter for the Bench hearing the appeal.


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