M. Madhavan Nair, J.
1. This is an application to condone the delay in the filing of the Second Appeal.
2. The Superintendent of the Filing Section of this court has made a note that appeal would be within time only if the day on which the copy of the decree was notified to be taken by the party is excluded in computing the period of limitation for the appeal, but not otherwise. In view of this note, the learned counsel for the appellant has filed this application by way of abundant caution with prayer to condone the delay, if any, in the institution of this Second Appeal.
3. I am of the view that the day notified for appearance of the party to take delivery of the copy of the decree has to be excluded in computing the period of limitation for his filing the appeal from that decree. It must, be counted as part of the time requisite for his obtaining the copy of the decree within the meaning of Section 12(2) of the Limitation Act.
4. The matter is also covered by several precedents. In Raman Chetty v. Kadirvelu, 8 Mad LJ 148, where a copy of judgment was applied for on the 27th October and that of the decree on the 28th October and the former copy was ready on the 31st October and the latter on the 2nd November, it was held by a Bench of the Madaras High Court that the time in obtaining both the copies had to' be reckoned from the 27th October to the 2nd November, and that was counted as 7 days inclusive of both the date of application and the date of delivery of the copy. Ramseshayya v. Venkatarathnam, AIR 1938 Mad 823, observed that it was only 'consonant to reason that the day on which the copy is notified to be ready should be excluded.'
5. The matter was dealt with elaborately by Vivian Bose, J., (as he then was) in Ramkrisnna v. Shrawan, AIR 1944 Nag 358, where the learned Judge held :
'The day on which the copies are applied for and the day On which they are delivered are both to be excluded. Why? Because the law takes no account of the fractions of a day. In some cases a copy is delivered the moment the office opens at 10 or 11 in the morning and the appeal is filed the same day. But in other cases, instead of the copy being delivered the first thing it is delivered the last and that gives the appellants no chance of filing the appeal on the same day however diligent he may be. The law ignores all these possibilities. It does not compel the appellant to file the appeal on the same day nor does it require the Courts to determine the exact moment the copy is delivered. Instead it takes no account of the fractions of a day and gives the appellant the benefit of both days, the day on which he applies and the day on which he receives the copy.
6. It follows from these precedents, that the day which was notified for appearance of the party to receive the copy has to be excluded in computingthe period of limitation for the appeal. Admittedly,if that day is excluded the appeal is within time.
7. I hold that there is no delay in the institution of this appeal. The petition is thereforerecorded.