Madhavan Nair, J.
1. I entirely agree with the judgment which ray learned brother, Jackson, J., will presently deliver and I have nothing useful to add to it.
2. The 9th respondent takes a preliminary objection that this appeal is out of time. The date of the decree and judgment of the Lower Court is 24th February, 1927. On 1st March, 1927, the plaintiff applied for copy and obtained it after 34 days had been occupied by the copying department. He has since died, and it is not known what he did with that copy.
3. He applied again for copy on 20th April, 1927, and since the recess intervened, the time occupied by the department was 82 days. The appeal was filed on 13th August, and if this 82 days be reckoned as the time requisite for obtaining copy, the appeal is within time. But on behalf of 9th respondent it is argued that the appellant himself has demonstrated the time requisite to be only 34 days, and if that figure be taken the appeal is time-barred.
4. The time requisite for obtaining a copy of the decree mentioned in Section 12 of the Indian Limitation Act is the time beyond the applicant's control occupied by the copyist department after an application for copy has been duly made. It is no concern of the Courts to ask when the application was made. A party may apply immediately the suit is decreed, or if he cares to take the risk he may wait till the 90 days period allowed him by statute is almost exhausted. Then the time requisite for obtaining a copy of the decree will be deducted, and so long as he is within his 90 days the appeal will be in time. But the respondent would have it that the applicant must discover within these 90 days at what time the copyist department can most expeditiously produce a copy, and the time requisite for obtaining a copy is this minimum period, and nothing more. Such a system would be intolerable to the parties, unworkable by the Courts, and is certainly not derived from our statutory law. For example, suppose that a suit is decreed on the 15th December, and the intending appellant applies for copy at once. He will be involved in the Christmas holidays and it may take 40 days before his copy is ready. He then takes full advantage of the 90 days allowed him by statute, and files his appeal just within 130 days, 90 plus 40. Meanwhile the other party has applied for copy for his own purposes after Christmas, and has obtained a copy in 30 days. Is he to be allowed triumphantly to exhibit this copy and plead that 'the time requisite for obtaining a copy' in Section 12 of the Indian Limitation Act is 30 days, and his opponent's appeal is time-barred. Obviously not: but that is precisely the argument advanced by the present respondent. It makes no difference whether the minimum time for obtaining copy has been demonstrated as in this appeal by the appellant himself, or, as in the above example, by the respondent. In neither case, is the Court concerned with the ideal minimum. The only concern of the Court is the time occupied in obtaining the copy which is filed with the appeal, not the time which might have been occupied in obtaining some other copy which is not filed with the appeal.
5. There is no case directly in point. The respondent relies strongly upon an observation of the Privy Council in J.N. Surty v. T.S. Chettyar, A Firm (1928) L.R. 55 IndAp 161 : I.L.R. 6 Rang. 302 : 54 M.L.J. 696 (P.C).
The word 'requisite' is, a strong word ... it means ' properly-required' and it throws upon the pleader for the appellant the necessity of showing that no part of the delay beyond the prescribed period is due to his default.
6. This affirms the rigid practice of our Courts, which insists that the only period to be deducted is that occupied by the official department: of Donepudi Subrahmanyam v. Narasimham : (1920)38MLJ465 . No excuses will be heard about inability to apply, or to furnish papers, earlier than has been done. It could never be the 'default' of the party in the example given above that he applied before instead of after Christmas, and there is nothing to the contrary in this ruling.
7. The argument advanced before us that the time ideally requisite had already been demonstrated by the appellant is not directly met by the ruling in Aminuddin Sahib v. Pyari Bi I.L.R. (1920) Mad. 633 : : (1920)38MLJ340 , although no doubt that ruling assists the present appellant by affirming that the copy actually filed with the appeal is the copy with which the Court is concerned when assessing the time that has run. When the essentials of this question have been clearly grasped, Pranmtha Nath Roy v. Lee : I.L.R. 49 Cal. 999 : 43 M.L.J. 765 (P.C), upon which the respondent also relies is really of more assistance to the appellant. On page 1003 a distinction is drawn between periods which were and periods which were not within the appellant's control. 'No period can be regarded as requisite under the Act which need not have elapsed if the appellant had taken reasonable and proper steps to obtain a copy of the decree.' In our present case the second application on April 20th was a reasonable and proper step, and the period of 82 days then occupied by the department was beyond the appellant's, control. Can it be said (yet this is the argument before us) that the only reasonable course was to have applied in time to avoid the recess, or that the fact of his applying abortively before the recess instead of sitting still and doing nothing at all, has made the appellant's application of 20th April irrational and improper There is nothing in Pramatha Nath Roy v. Lee (1922) L.R. 49 I.A. 307 to support such an argument: there the facts are that the appellant had needlessly dallied before filing his application for copy. Kamruddin Hyder v. M.N. Mitter I.L.R. (1924) Cal. 342 is on all lines similar to the case in Pramatha Nath Roy v. Lee : I.L.R. 49 Cal. 999 : 43 M.L.J. 765 (P.C).
8. It must be held that the time requisite in Section 12 of the Act is the time beyond the appellant's control occupied in obtaining the copy which accompanies the memorandum of appeal, and not an ideal lesser period which might have been occupied if the application for copy had been filed at some other date.
9. The appeal therefore is not barred by limitation. C. M. P. No. 3479 of 1933 is dismissed with costs.
Krishnan Pandalai, J.
10. I agree that the preliminary objection fails, but wish to briefly add my reasons, as I was first inclined to take the opposite view. The date of the decree is 24th February, 1927. The appellant obtained two copies of the decree, both statedly for filing an appeal, by applications respectively dated 1st March, 1927 and 20th April, 1927. He did not file the appeal using the copy which he got on the former application, and there is nothing on record to show what happened to it. If he had used it for appealing, the last day for filing the appeal after making the usual allowance for the period taken by the copying department would have been 30th June, 1927, which date being within the vacation of this Court, the appeal should have been filed on the re-opening on the 18th July, 1927. The appeal was filed on the 13th August, 1927, using the copy obtained on the second application according to which after making the corresponding allowance the last date for filing the appeal would be the 18th August, 1927. The appeal would thus be out of time if the computation be made on the first copy but would be in time on the second copy.
11. The objection is that the appellant having in his possession a copy of the decree granted on his first application, no more time was in fact requisite for him to get a copy for filing the appeal and the allowance given by Section 12 of the Limitation Act must in this case be only that which was attributable to getting the first copy and therefore that the appeal should have been filed on 18th July, 1927 and is barred as it was only filed on 13th August, 1927. The time requisite for obtaining a copy mentioned in Section 12 of the Limitation Act is not the time requisite for obtaining the copy actually used but the time requisite for obtaining an earlier copy, at least in cases where the appellant has obtained one.
12. The objection is really an attempt to use certain observations of the Privy Council in J. N. Surty v. T.S. Chettyar, A Firm (1928) L.R. 55 IndAp 161 : I.L.R. 6 Rang. 302 : 54 M.L.J. 696 (P.C.) in a manner not intended by the Board. The real point decided in that case was merely that the allowance of the time requisite for getting copies of judgment and decree given by Section 12 of the Limitation Act was not confined to appeals under Order 41, Rule 1, Civil Procedure Code, under which it is necessary to produce such copies, but applied also to appeals from the Original Jurisdiction of High Courts by whose rules copies of judgments and decrees are not required to be produced with the appeal memorandum. After deciding this point as above, their Lordships proceeded to refer to an observation of the High Court of Rangoon, which had upheld the contrary view, that 'the elimination of the requirement to obtain copies of the documents was part of an effort to combat the dilatoriness of some Indian practitioners.'
13. Their Lordships observe with respect to this that they would be unwilling to discourage any such effort, but point out that all that can be done, as the law stands, is for the High Courts to be strict in applying the provision of exclusion. They further observe that the period to be excluded is that which is 'requisite' and explain that word as meaning 'properly required' and throwing upon the pleader or counsel for the appellant the necessity of showing that no part of the delay beyond the prescribed period is due to his default. These observations were made in a case in which the application for copies was made on the very day on which the judgment was pronounced and therefore apply only to dilatoriness of an applicant for copy after his application and in doing things necessary for obtaining them. What the Privy Council meant was that if such dilatoriness be alleged, the applicant (appellant) must show that in promoting his application and getting copies he did everything that the rules of the Court require to enable him to do so. The Board was clearly referring to the time taken for obtaining the copy on which the appeal was actually filed and not to any default such as the present 9th respondent is now urging against the appellant consisting of having another copy in his possession, on which also the appeal might have been filed but was not. This case therefore does not furnish any support to the objection.
14. No decision supporting the objection has been cited. In Pramatha Nath Roy v. Lee the appeal was from a decree on the Original Side of the Calcutta High Court. The time for appealing was 20 days from the date of the decree or order which was 26th July, 1918. No application for a copy was made within the 20 days, nor did the appellant (defendant) promptly take the necessary steps to have the order drawn up, which were necessary according to the practice of the Court, When subsequently the draft order was drawn up on the application of the plaintiff, the appellant (defendant) retained the draft in his hands for several days before returning it. Finally on the 30th August he filed the appeal without a copy of the judgment or decree which were required to be produced with every memorandum of appeal by the rules of that Court. At the hearing the appellant urged that the excess over 20 days which had elapsed before he filed the appeal must be allowed as requisite for obtaining copies of the judgment and order under Section 12 of the Limitation Act. The High Court held that the delay was due to the appellant's laches in not taking the steps necessary to have the order drawn up and signed without which no copy could be granted. It is to be noted also that the copy application in that case was made long after the appeal was itself filed, namely, 9th September, 1918. All that this case decided was 'that where before a copy can be given, certain steps are to be taken by the appellant for preparing the original, if he does not take the necessary steps to have the original prepared and signed according to the practice of the Court, the time consumed by his laches cannot be allowed as being requisite for obtaining the copy. This opinion was affirmed by the Privy Council. It does not touch the present case which is from the mofussil where the parties are not required to take any such steps. The decision in Kamruddin Hyder v. M.N. Mitter I.L.R. (1924) Cal. 342 follows Pramatha Nath Roy v. Lee the only difference is that in the case of Kamruddin Hyder v. M.N. Mitter I.L.R. (1920) Mad. 633 : : (1920)38MLJ340 a copy application had been made 3 days after the judgment but the default occurred afterwards by the appellants not taking the necessary steps to have the order drawn up and signed before a copy could be prepared. It was held that the time during which this default occurred could not be allowed as requisite for obtaining the copy. In Aminuddin Sahib v. Pyari Bis it was held by a Bench of this Court that where an appellant had filed within the prescribed period for appealing an application for copy of the decree but allowed the application to be dismissed for non-payment of copying charges, he could subsequently file the appeal with a copy of the decree obtained by another party and claim a deduction under Section 12 of the Limitation Act for the time taken in obtaining that copy. It was also held that reading Order 41, Rule 1, Civil Procedure Code with Section 12 of the Limitation Act, allowance for time for getting the copy mentioned in Section 12 of the Limitation Act is the time required for getting the copy which actually accompanied the memorandum of appeal. In the case of appeals under the Civil Procedure Code governed by Order 41, Rule 1, that rule requires copies of the judgment and decree to accompany the memorandum of appeal. In appeals not so governed and for which according to the rules of certain High Courts such copies are not required to accompany the memorandum of appeal, it is now decided by the Privy Council that the time for obtaining copies of judgments and orders is, where they are obtained, to be likewise allowed. It stands to reason that in both classes of cases the time requisite means the time requisite for obtaining the copies actually accompanying the memorandum of appeal and not some other copy which the appellant might or might not have got.
15. The respondent's argument, if allowed, would lead to great confusion and enquiries into alleged laches or dilatormess of the appellant in respect not of copies produced with the memorandum of appeal but about other copies which he may have got and used for purposes proper or improper with which the Court has nothing' to do, or not got by reason of neglect, such as non-payment of copying fees with which also the Court has no concern, provided the appellant is able to show that in respect of the copies actually produced by him, he is within time according to law, i.e., the time for appealing together with all the time requisite for obtaining the copy of judgment and decree. It is not denied that the appellant's omission to apply for a copy till the period fixed for appealing has nearly run out, cannot be used against him as a ground for not allowing him the full period requisite for obtaining the copy after he has applied. If so, why should the fact that he has in fact obtained another copy be so used? I see no reason either in the letter of the law or in any of the decisions or in convenience to adopt such a rule. We have no power to restrict the time granted by the Statute by adding to it a limitation that, where an appellant has got more than one copy of judgment and decree, he ought, if he seeks exclusion of time for obtaining the copy, to use the first copy obtained by him. That is what the objection amounts to. As I understand it, all that the law requires and the decisions have laid down is, that, if an appellant invokes the aid of Section 12 of the Limitation Act, he will get only so much time allowed in excess of the proper time for appealing as is requisite, i.e., properly required, for obtaining the copies which he actually uses for the appeal. In this case no allegation is made that more than the requisite time for obtaining the copies on which the appeal has been filed has to be allowed to sustain the appeal. I therefore agree with the judgment just delivered.