V.R. Newaskar, J.
1. This appeal is directed against the order of remand passed by the IVth Additional District Judge, Ujjain under Order 41, Rule 23, C. P. C., and the only question raised in this appeal is that the appeal in the Court below should not have been entertained as the same was barred by limitation.
2. Facts material for consideration of the question thus raised are as follows :
3. Appellant Kanhaiyalal filed Civil Suit No. 44 of 1937 and obtained a decree declaring his right to certain properties and also granting injunction against Madanlal and his son Ramchandra which was ultimately confirmed by the Indore High Court in Civil Second Appeal No. 116 of 1939. This decree was put into execution. In the course of the execution of that decree the judgment-debtors Madanlal and his son Ramchandra raised the contention that the decree did not include the land which is the subject-matter of the present suit. This contention was ultimately rejected in Civil Second Appeal No. 291 of 1950. Thereupon another son of Madanlal namely Ramkrishan filed the present suit claiming a declaration that the decisions in Civil Second Appeal No, 116/1939 and Second Appeal No. 291/1950 are not binding upon him inasmuch as he was not a party to that suit, the land was ancestral and the appellant decree-holder had obtained the decree by misrepresentation and fraud. It was also pleaded that his father and brother were grosslv negligent in defending the suit. Claim on the basis of partition and allotment of suit land to him therein was also put forward. The present appellant who was the decree-holder in the earlier litigation contested suit on various grounds including that of res judicata.
4. The trial Court heard arguments of parties on the question of res judicata treating it as preliminary. It upheld the contention of the appellant decree-holder on that point and dismissed the suit by his judgment dated 18-4-1957. After the judgment was pronounced vacation intervened. It lasted from 6-5-1957 to 16-6-1957. On the day on which the Court reopened i.e., on 17-6-1957 the plaintiff respondent No. 1 applied for copies of judgment and decree. He received them on 24-6-1957 and filed the appeal in the Court below on the same day.
5. The lower appellate Court entertained it and after setting aside the decree passed by the trial Court remanded the case for further trial on the ground that the issue of res judicata could not have been determined as a preliminary issue as the same involved questions of fact covered by other issues in the case.
6. The appellant-decree-holder has now come up in appeal against the said order of remand.
7. Mr. Pande for the appellant contended that it was not competent for the lower appellate Court to entertain the appeal as that appeal was barred by limitation by reason of the fact that the plaintiff who had filed the appeal there had applied for copy of the trial Court's judgment and decree on 17-6-1957 i.e., after the period of limitation for the appeal in the Court below, which is 30 days, had expired. Reliance in this connection was placed upon the decisions of the Privy Council in Maqbul Ahmad v. Onkar Pratap, AIR 1935 PC 85 and of the Nagpur High Court in Umedsingh v. Shankerlal, AIR 1948 Nag 63.
8. In order to appreciate this contention it will be useful to refer to Sections 4 and 12(2) of the Limitation Act. Section 4,
' Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted preferred or made on the day that the Court reopens.'
' In computing the period of limitation prescribed for an appeal, and 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. '
9. It is clear from the terms of Section 4 that it can be invoked, only in those cases where a period of limitation is prescribed for any suit appeal or application under the Limitation Act, Where such prescribed period expires on a day on which the Court is closed then the proceeding may be launched on the day that the Court reopens. Now no period of limitation is prescribed for submitting an application for a copy under the Limitation Act. Section 4 therefore is inapplicable to an application for a copy of the judgment and decree.
10. Under Section 12 in computing the period of limitation prescribed for an appeal the day on which the judgment was pronounced and the lime requisite for obtaining a copy of the judgment and decree has to be excluded. Since the time requisite for obtaining copies of the judgment and decree ar liable to bo excluded in making the computation it is clear thai for so doing the copies of judgment and decree must be applied for while the prescribed period has not elapsed.
11. In 62 Ind, App 80: AIR 1935 PC 85, it is held by their Lordships of the Privy Council that whereas Section 4 merely provides for launching of a proceeding on the day on which the Court first reopens, if the Court was closed on the day on which the period for starting the proceeding expired. Section 14 and similar sections provide for exclusion of certain period while computing the prescribed period. The effect in the latter case is that the days thus liable to be excluded have to be added to what is primarily the prescribed period. Such addition cannot be made in the first case. In that case the plaintiff obtained a preliminary mortgage decree on June 7, 1920. The period of limitation for applying for final decree was three years. The plaintiff applied for final decree on June 20, 1923 as the Court was closed for vacation, till that date the period of limitation having expired on 7th June 1923. He however, applied in a wrong Court though bona fide. It was prosecuted in that Court for forty-eight days and thereafter he withdrew that and submitted in the right Court on August 6, 1923. Their Lordships held that the application was barred as the period of three years and forty-eight days expired on July 25, 1923 and the plaintiff-appellant was not entitled under Section 4 to exclude the period of the vacation. Lord Tomlin, who delivered the judgment off the Board observed at page 86 :
' The second period is the period of the long vacation. In regard to that matter, She appellants seem to their Lordships to be in a position which is in the nature of a dilemms. 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 that there is nothing in the section which alters the length of the prescribed period; whereas in Section 14, and other sections of a similar nature in the Act, the direction begins with the words : ' In computing the period of limitation prescribed for any application', certain periods shall be excluded. It therefore, seems to their Lordships that, where there is ground for excluding certain persons under S. 14, in order to ascertain what is the date of the expiration of the prescribed period, the days excluded from operating by way of limitation have to be added to what is primarily the prescribed period; that is to say, if the prescribed period is three years, and twenty days ought to be excluded in order to determine when the prescribed period expires, twenty days have to be added to the three years, and the date of the expiration of the prescribed period is thus ascertained.
That being so, the appellants appear fee be in this difficulty. They have been allowed.and (as their Lordships think) properly allowed, the period from June 20, 1923, to August 8, 1923. This passage appears in the judgment of the High Court: ' Even, therefore, if the three years and forty-eight days are counted from that date, the time expired some time about July 25, 1923. That did not fall within the long vacation. It therefore, follows that the plaintiffs are not entitled to the benefit of Section 4'.'
12. Applying the principle of this case it is clear that the total period which the appellant can claim for computing the period of limitation is 30 days plus 8 days for copies i.e., 38 days and these 38 days did not expire on the day, the Court reopened on 17-6-1957. They expired on 24-5-1957. In order that the appeal preferred by the plaintiff in the Court below might be within time it would he necessary to add to the prescribed period the period of the vacation which cannot be done under Section 4. Thus the benefit of Section 4 cannot be claimed bv the plaintiff in this case. The decision in Kamaraju v. Saramma, AIR 1942 Mad 604, is in accord with this line of reasoning.
13. In AIR 1948 Nag 63, it has held by Hidayatullah, J., that:
' Where the period of limitation prescribed for an application under Order 21, Rule 89, Civil P. C., expires on a day when the Court is away on casual leave, it is imperative on the applicant to file his application and make the necessary deposit on the very next day on which the Court is opened. II is not entitled to add the days on which the Courts closed to the statutory period. '
14. The decision reported in Md. Zaman v. Hans Raj, AIR 1938 Lah 707, seems to support the contention of the respondent. The learned Judge Abdul Rashid J., in that case held that even if Section 4 of the Limitation Act can-not be applied if the application for copy of the decree is filed after the period of limitation for the appeal has expired even if it was filed immediately after the Court reopens still Section 10 of the General Clauses Act can be applied in such 4 case. This decision in the first place does not take into account the decision of the Privy Counsil in 62 Ind App 80: AIR 1935 PC 85 (supra), and in the second place it does not indicate what act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period by any Central Act.
15. In Trimbak v. Narain, AIR 1935 Nag 264, it is held that Section 10 of the General Clauses Act has no application to review applications as no time limit is prescribed for such applications.
16. The decision in AIR 1938 Lah 707 though has apparent cogency and it relieves a party of apparent hardship caused to him because of the accidental circumstance of closure of the Court for vacation or otherwise in view of the decision of the Privy Council which does not. refer to Section 10 of the General Clauses Act in its discussion on the matter and the decision in AIR 1935 Nag 164 I would not venture to take a different view.
17. I would therefore hold that the appeal in the Court below was barred by limitation. There had been no petition in the Court below under Section 5 of the Limitation Act. Nor can I hold that failure to apply for copy before the commencement of the vacation will in all cases be considered to be sufficient ground to excuse the delay in applying closely following the vacation.
18. The appeal is therefore allowed and the order of remand passed by the lower appellate Court is set aside and the decree dismissing the plaintiff's suit passed by the Trial Court is restored with costs throughout.