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Komuru Appalaswami and ors. Vs. Palli Narayanaswamy, Minor by Guardian, Alla Narayanamma and Alla Yerakamma and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported in(1919)36MLJ62
AppellantKomuru Appalaswami and ors.
RespondentPalli Narayanaswamy, Minor by Guardian, Alla Narayanamma and Alla Yerakamma and ors.
Excerpt:
- .....is issued with regard to the christmas holidays, it is then contended that the delay should be excused under section 5 of the limitation act, but as appellant had his copy on 25th june 1917 and did not file his appeal until 29th august 1917 we cannot say that he had sufficient cause for not preferring the appeal in time. the reason given by him that he thought the period from 21st may 1917 to 25th june 1917 would be excluded from calculation is quite inadequate to account for the subsequent period of nearly seven weeks during which no action was taken.3. the second appeal is out of time and is dismissed with costs.
Judgment:

1. This second appeal was filed 108 days, (excluding the time required for getting copies), after the date of the Lower Appellate Court's decree, and the delay of 18 days in presentation is explained by the intervention of the annual vacation. The copy was ready on the 21st day of May 1917 during the vacation, but delivery was not taken until the 25th day of June 1917, the re-opening day. The question is whether the period from 21st May 1917 to 25th June 1917 can be considered as part of the period requisite for obtaining a copy within the meaning of Section 12 of the Limitation Act.

2. Chapter XV, Rule 12 of Rules and Orders for Civil Courts lays down that arrangements shall be made by Courts for granting copies of judgments, decrees, etc., during the vacation provided that applications for such copies shall have been made' before the adjournment and the attention of the Courts was drawn to this rule by a Circular of this Court, Dis. No. 1081, dated 2nd December 1902. In accordance with this rule a notification to the above effect was published in the Gazette. The appellant had therefore notice that arrangements would be made for granting the copy he had applied for. Had he exercised due diligence he could have obtained the copy on the 21st May 1917, and we are therefore of opinion that the time from 21st May 1917 to 25th June 1917 cannot be included in the period requisite for obtaining a copy. We are supported in this view by the Full Bench ruling in Nachiyappa Mudali Aiyaswami Aiyar I.L.R. (1882) Mad. 189 which held that when an appeal was presented on the re-opening day after the vacation it was out of time because it could have been presented on a previous day on which the offices of the Court were open, but on which the Judge was not sitting, notice of which had been given in the Gazette. We have been referred to some decisions which deal with the exclusion of the Christmas holidays, but they are not applicable to the present case, for no notification is issued with regard to the Christmas holidays, It is then contended that the delay should be excused under Section 5 of the Limitation Act, but as appellant had his copy on 25th June 1917 and did not file his appeal until 29th August 1917 we cannot say that he had sufficient cause for not preferring the appeal in time. The reason given by him that he thought the period from 21st May 1917 to 25th June 1917 would be excluded from calculation is quite inadequate to account for the subsequent period of nearly seven weeks during which no action was taken.

3. The second appeal is out of time and is dismissed with costs.


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