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Neki Kishen Sahai and ors. Vs. Rup Chand and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Misc. No. 494/C of 1951
Judge
Reported inAIR1952P& H367
ActsLimitation Act, 1908 - Sections 12(2) and 12(3)
AppellantNeki Kishen Sahai and ors.
RespondentRup Chand and anr.
Appellant Advocate D.K. Mahajan, Adv.
Respondent Advocate Shamair Chand, Adv.
DispositionApplications dismissed
Cases ReferredJhamandas v. Bibi Adishan
Excerpt:
.....was pronounced on 27-7-1951. the application for a copy of the decree was made on 12-10-1951 and was ready on 26-10-1951. the present application was not put in until 5-12-1951. the application having been filed more than ninety days after the judgment was pronounced is clearly barred by time. in computing the period of limitation prescribed for an appeal, an 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. ' 4. application for leave to appeal are expressly dealt with by sub-section (2) and it is clearly provided that the only time which can be excluded is the time.....order1. these are six applications for leave to appeal to the supreme court against a decision of this bench disposing of six appeals filed under clause 10 of the letters patent. the appeals were connected and were disposed of by one judgment. 2. a preliminary objection is raised by mr. shamair chand on the score of limitation. he contends that under section 12 (2) of the limitation act an applicant for leave to appeal is entitled to exclude the time taken in obtaining a copy of the decree only. he is not entitled to any concession on account of the time spent in obtaining a copy of the judgment. it is conceded by mr. daya krishan mahajan that the applications are barred by time if the time taken in obtaining the copy of the judgment is not to be excluded. the judgment sought to be.....
Judgment:
ORDER

1. These are six applications for leave to appeal to the Supreme Court against a decision of this Bench disposing of six appeals filed under Clause 10 of the Letters Patent. The appeals were connected and were disposed of by one judgment.

2. A preliminary objection is raised by Mr. Shamair Chand on the score of limitation. He contends that under Section 12 (2) of the Limitation Act an applicant for leave to appeal is entitled to exclude the time taken in obtaining a copy of the decree only. He is not entitled to any concession on account of the time spent in obtaining a copy of the judgment. It is conceded by Mr. Daya Krishan Mahajan that the applications are barred by time if the time taken in obtaining the copy of the judgment is not to be excluded. The judgment sought to be appealed against was pronounced on 27-7-1951. The application for a copy of the decree was made on 12-10-1951 and was ready on 26-10-1951. The present application was not put in until 5-12-1951. The application having been filed more than ninety days after the judgment was pronounced is clearly barred by time. Mr. Daya Krishan Mahajan, however, contends that he is entitled to exclude the time taken in obtaining a copy of the judgment and on this computation his application is within time.

3. Section 12 (2) of the Limitation Act is inthe following terms:

'In computing the period of limitation prescribed for an appeal, an 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.'

Sub-section (3) reads as follows:

'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.'

4. Application for leave to appeal are expressly dealt with by Sub-section (2) and it is clearly provided that the only time which can be excluded is the time taken in obtaining a copy of the decree. Sub-section (3) makes no mention of an application for leave to appeal. It is. however, contended that whenever a decree is appealed from the time taken in obtaining a copy of the judgment should also be excluded. But, in the present case, unless leave is granted the decree cannot be appealed from and a careful reading of Sub-sections (2) and (3) shows that Sub-section (3) has nothing to do with applications for leave to appeal which are expressly dealt with in Sub-section (2).

This was the view taken by this Court in two recent unreported decisions 'Civil Misc. No. 127 of 19-17' and 'Civil Misc. No. 90/C of 1948, and this view finds support in a number of reported cases of the Lahore and Allahabad High Courts and of the Sind Chief Court. A reference may be made to 'Punjab Co-operative Bank Amritsar v. Punjab National Bank Ltd., Amritsar', ILR (1939) Lah 156; 'Wilayati Begam v. Jhandu Mal Mithu Lal', AIR 1926 All 286; 'Gulab Chand v. Peary Lal', 57 All 455; 'Gaekwar, Baroda State Rly., Baroda v. Mohammad Habibullah', 57 All 751; 'Nur Mahomed v. Hassomal', AIR 1925 Sind 60 and 'Jhamandas v. Bibi Adishan', AIR 1929 Sind 206. There are no doubt some decisions to the contrary but with great respect I am constrained to say that they proceed on what appears to me an incorrect interpretation of Section 12 (3) of the Limitation Act. In my opinion, the matter admits of no doubt, and in computing the period of limitation prescribed for an application for leave to appeal the time taken in obtaining a copy of the judgment cannot be excluded. All the six applications are therefore barred by time and must be dismissed. I accordingly dismiss them with costs.

Falshaw, J.

5. I agree.


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