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Donopudi Subramanyan Vs. Nune Narasimham and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in56Ind.Cas.67
AppellantDonopudi Subramanyan
RespondentNune Narasimham and ors.
Cases ReferredTukaram Gopal v. Pandurang Sadaram
Excerpt:
limitation act (ix of 1908), section 12 - time requisite for obtaining copy--judgment pronounced on first day of vacation--copy applied for several days after re-opening of court--period of vacation, whether can be excluded from time for appealing. - - in these circumstances i fail to see how the christmas vacation can be included in the time reasonably requisite for obtaining them, unless we are prepared to go so far as to say that all days on which the court was closed during the prescribed period before the appellant applied for the 'copies must be included in the time requisite for obtaining copies, on the ground that the appellant could not have applied for copies on those days even if be had desired to do......the days when the court was closed for the christmas vacation and to treat them as a part of the time requisite for obtaining copies of the decree and judgment within the meaning of section 12. it has been held by sankaran nair and ayling, jj,, in tanjore palace estate v. andi ramiah chetty 11 ind. cas. 339 that he is not entitled to do this, and we entirely agree with that decision. it was no doubt held in saminatha ayyar v. venkatasubba ayyar 27 m. 21, where the judgment under appeal was delivered later on the day before the christmas vacation and an, application was made for copies on the 17th january, the day the court re opened, that the appellant was entitled to exclude, not only the time actually taken in obtaining the copies, but also the whole of christmas vacation during.....
Judgment:

John Wallis, C.J.

1. The judgment of the lower Appellate Court in this case was pronounced on 21st December 1918, the 1st day of the Christmas Vacation, and under Section 12 (2) of the Limitation Act time began to run from the following day. The fact that the judgment was pronounced in the vacation made no difference in this respect as the only provision with regard to the vacation is that under Section 4; if the prescribed period expires on a day when the Court is closed, the appeal may be preferred on the day when the Court re opens;

2. The appellant applied for copies of the decree and judgment on the 7th January 1919, which be duly obtained, but even excluding the time taken in obtaining them, he is admittedly out of time, unless he is entitled to add the days when the Court was closed for the Christmas Vacation and to treat them as a part of the time requisite for obtaining copies of the decree and judgment within the meaning of Section 12. It has been held by Sankaran Nair and Ayling, JJ,, in Tanjore Palace Estate v. Andi Ramiah Chetty 11 Ind. Cas. 339 that he is not entitled to do this, and we entirely agree with that decision. It was no doubt held in Saminatha Ayyar v. Venkatasubba Ayyar 27 M. 21, where the judgment under appeal was delivered later on the day before the Christmas Vacation and an, application was made for copies on the 17th January, the day the Court re opened, that the appellant was entitled to exclude, not only the time actually taken in obtaining the copies, but also the whole of Christmas Vacation during which the Court was closed, when be could not have applied for copies even if he had wished to do so. That case may be distinguished on the ground that there the copies were applied for on the re opening day, in this case not until some days later, otherwise we should have to consider whether we ought to follow it. What we have to see in all these cases is what was the time requisite for obtaining copies within the meaning of the section, and by 'requisite' I understand reasonably requisite. It was observed by Wilson and Beverley, JJ., in Gunga Dass Dey v. Ramjoy Dey 12 C. 30 that no hard and fast rule can be laid down to meet all cases that occur under this pro vision, but I think it may be said that generally if not invariably, as held in Bechi v. Ashanullah Khan 26 M.L.J. 47 , the time requisite for obtaining copies cannot include any period antecedent to the appellant's asking for copies in the usual way. The appellant is under no duty to make an early application, he may apply at any time, even on the last day of the prescribed period if he so chooses; and even if the period expires on a day when the Court is closed, he may apply for copies on the re-opening day and still be within time, as held in Siyadat-un-nissa v. Muhammad Mahmud 19 A. 342, Tukaram Gopal v. Pandurang Sadaram 3 Bom.L.R. 143 and Pandhari nath v. Shankar 25 B. 586 . In the present case the appellant had some eighty days between the re-opening of the Court and the expiry of the prescribed period in which he could have applied for copies and he did in fact apply for them a few days after the re-opening. In these circumstances I fail to see how the Christmas Vacation can be included in the time reasonably requisite for obtaining them, unless we are prepared to go so far as to say that all days on which the Court was closed during the prescribed period before the appellant applied for the 'copies must be included in the time requisite for obtaining copies, on the ground that the appellant could not have applied for copies on those days even if be had desired to do. This would defeat the intention of the Legislature that time should run on days when the Court is closed and would be a very strained interpretation of the words 'time requisite,' as used in the section which, in my opinion, mean time reasonably requisite on the facts of the case.

3. The appeal is barred and is dismissed with costs.

Krishnan, J.

4. I agree and have nothing to add.


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