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Adepalli Venkata Gurunadha Ramaseshayya Vs. Vissamsetti Venkatarathnam Being Minor by Mother and Guardian Sesharathamma and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1938Mad823; (1938)2MLJ283
AppellantAdepalli Venkata Gurunadha Ramaseshayya
RespondentVissamsetti Venkatarathnam Being Minor by Mother and Guardian Sesharathamma and ors.
Cases ReferredBani Madhub Mitter v. Matungini Dassi I.L.R.
Excerpt:
- - 3. section 12 of the limitation act says that in competing the period of limitation prescribed for an appeal, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree appealed therefrom shall be excluded. 2740, dated 9th october, 1885). it is unnecessary to enquire whether this rule is ultra vires or not, as i do not propose to rest my judgment upon it, for, i am satisfied that this is a rule which accords with the reason of the thing. although the word 'requisite' is a strong word and may be regarded as meaning something more than the word 'required',the idea of reasonableness is inherent in the words. ramanathan chetty (1913)25mlj354 .i fail to see how bani madhub mitter v......1932, when copy applied for and the 12th october when the copy was ready should be excluded, as time requisite for obtaining the copy.3. section 12 of the limitation act says that in competing the period of limitation prescribed for an appeal, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree appealed therefrom shall be excluded. the simple question is, what is meant by 'the time requisite for obtaining a copy of the decree'? is the day on which the copy was notified to be ready, to be excluded or not. there is a rule promulgated by the high court to which my attention has been drawn, which says in terms that not only the day on which the copy is applied for but also that on which it is ready for delivery, should be.....
Judgment:

Venkatasubba Rao, J.

1. I am surprised that the lower Court has been able to persuade itself that the appeal was out of time. The following statement of facts brings out the point to be decided.

2. In the present case application for copy was made on 26th August, 1932. Copy was ready on 12th October, 1932. The interval between 26th August, 1932, and 12th October, 1932, is 47 days. He is entitled to deduct that. Balance is 31 days. Appeal was therefore filed one day too late. Learned Counsel for appellant contends that both days, the26th August, 1932, when copy applied for and the 12th October when the copy was ready should be excluded, as time requisite for obtaining the copy.

3. Section 12 of the Limitation Act says that in competing the period of limitation prescribed for an appeal, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree appealed therefrom shall be excluded. The simple question is, what is meant by 'the time requisite for obtaining a copy of the decree'? Is the day on which the copy was notified to be ready, to be excluded or not. There is a rule promulgated by the High Court to which my attention has been drawn, which says in terms that not only the day on which the copy is applied for but also that on which it is ready for delivery, should be excluded in the appellant's favour. (H.O.C. No. 2740, dated 9th October, 1885). It is unnecessary to enquire whether this rule is ultra vires or not, as I do not propose to rest my judgment upon it, for, I am satisfied that this is a rule which accords with the reason of the thing. In the absence of such a rule, the Court would have to embark upon an enquiry, at what hour of the day that the fact that the copy was ready notified? What is 'the time requisite' would depend upon what in the circumstances is reasonably requisite. Although the word 'requisite' is a strong word and may be regarded as meaning something more than the word 'required', the idea of reasonableness is inherent in the words. It means nothing more than 'properly required' as has been held by the Judicial Committee in J.N. Surty v. T.S. Chettiar, a firm (1928) 54 M.L.J. 696 : 1928 L.R. 55 IndAp 161 : 1928 I.L.R. 6 Rang. 302 (P.C.). It therefore follows that it is consonant to reason that the day on which the copy is notified to be ready, should be excluded. There are two cases of our Court directly in point, which supports the view I have taken - Raman Chetti v. Kadirvelu : (1898)8MLJ148 and Ramaswami Chetty v. Ramanathan Chetty : (1913)25MLJ354 . I fail to see how Bani Madhub Mitter v. Matungini Dassi I.L.R.(1886) Cal. 104 (F.B.) on which the lower Court professes to act is in the least applicable. In the first place what was decided there is entirely different from the one that now arises; secondly, a close perusal of the judgment will show that it mattered little whether the period excluded was reckoned as eight days or nine days - in either event the appeal would have been in time. If the appeal were in time, it is common ground that the lower Court was bound, to hear the memorandum of objection also.

4. In the result, the decision appealed against is set aside and the lower Court is directed to hear both the appeals and the memorandum of objection on their merits. In my opinion the Court was to blame and not either of the parties; 1 therefore make no order as to costs. The Court-fee on the memo-randum of appeal will be refunded.


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