Wilson and Beverley, JJ.
1. This is an appeal against a decision of the District Judge of Tipperah, rejecting an appeal as having been presented out of time.
2. A preliminary objection has been raised that no appeal will lie in such a case to this Court. The question is, whether an order dismissing an appeal under Section 4 of the Limitation Act is a ' decree passed in appeal,' from which a second appeal is allowed under Section 584 of the Code. We think that it is such a decree. By Section 2 of the Code an order rejecting a plaint is within the definition of 'decree,' and by Section 582 the provisions hereinbefore contained are made to apply to appeals sp' far as such provisions are applicable. We think then that an order rejecting or dismissing an appeal is a decree of the Appellate Court under the terms of the definition.
3. The decree against which the appeal was preferred was prepared on September 22nd, 1883, and the application for a copy was made on September 29th. Prom September 30th to November 1st the Court was closed for the Dusserah vacation. On the following day (November 2nd) the appellant filed some extra sheets of blank paper which he had not been able to procure on September 29th. The copy was ready and delivered on November 6th, and the appeal was filed on November 14th.
4. The appeal was this presented 53 days after the date of the decree; but under Section 12 of the Limitation Act the appellant is entitled to exclude the time requisite for obtaining a copy of the judgment. This time he would calculate as 39 days, that is to say, from the 29th September to 6th November, and if this calculation be allowed, the appeal is clearly within time. But the District Judge appears to consider that as the requisite number of folios or sheets of blank paper were not filed with the application, that application must be held to have been made on the date on which the deficient folios were supplied, viz., November 2nd. According to this calculation, the appellant would be entitled to exclude five days only instead of 39 days, and the appeal would be barred.
5. We are asked in second appeal to say that the District Judge is wrong in the interpretation he has put on the words 'the time requisite for obtaining a copy' in Section 12 of the Limitation Act.
6. We think that no hard and fast rule can be laid down to meet all cases that occur under that section. Ordinarily, no doubt the application for copies of the judgment and decree should be accompanied with a sufficient number of sheets of stamped paper for the copies; and parties should not be allowed to extend the period prescribed for appeal by any unnecessary delay in putting in the requisite papers. But, on the other hand, it would be grossly unfair to disallow the application if the requisite papers were not procurable, or if a mistake were made in calculating the number of sheets required. Bach case, we think, must be decided on its own merits. In the present case it is said that the paper was not procurable on September 29th, and it was put in on the next Court day (November 2nd). But it does not appear how many sheets were wanting on September 29th, and whether the inability to procure them was noted on the application of that date. These facts, however, would be before the Judge, who was in a better position than this Court can be to say whether the omission to file the paper on September 29th was unavoidable or intentional. The contention before the Judge apparently was, not that the paper could not be procured, but that the appellant Was entitled to a deduction of the time requisite for ascertaining the number of folios required. We think the Judge took a right view on this point, and we are not disposed to interfere.
The appeal is dismissed with costs.