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Nanda Rani Dassi Vs. Badi Bala Debi - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberS.A. No. 850 of 1962
Judge
Reported inAIR1964Cal438,68CWN585
ActsLimitation Act, 1908 - Section 12
AppellantNanda Rani Dassi
RespondentBadi Bala Debi
Appellant AdvocateA.D. Mukherji and ;Bimal Bhusan Banerjee, Advs.
Respondent AdvocateMadan Mohan Ghose, Adv.
DispositionApplication allowed
Cases ReferredSurty v. T. S. Chettyar (a
Excerpt:
- .....to be exact, seventy-six days, after the judgment sought to be appealed against. but the time requisite for obtaining the copy of the judgment as i find from the certified copy is sixty days. so it has to be excluded even though the memorandum of appeal from my judgment need not be accompanied under the rules of the court by a copy thereof --a point mr. ghose, the learned advocate opposing the prayer for leave, emphasizes. it must be remembered, however, that such an application for leave to appeal does come under section 12 of the limitation act, 9 of 1908, which makes no reference to the code of civil procedure or any other act.when dealing with a matter like this the privy council decision in jijibhoy n, surty v. t. s. chettyar (a firm), 55 ind app 161 : 47 cal lj 510 : air.....
Judgment:
ORDER

Bijayesh Mukherji, J.

1. Here is an application dated February 20, 1964 for leave to appeal under Clause 15 of the Letters Patent from a judgment rendered by me on December 6, 1963. The application is, therefore far more than sixty days, the prescribed period of limitation, to be exact, seventy-six days, after the judgment sought to be appealed against. But the time requisite for obtaining the copy of the judgment as I find from the certified copy is sixty days. So it has to be excluded even though the memorandum of appeal from my judgment need not be accompanied under the rules of the Court by a copy thereof --a point Mr. Ghose, the learned advocate opposing the prayer for leave, emphasizes. It must be remembered, however, that such an application for leave to appeal does come under Section 12 of the Limitation Act, 9 of 1908, which makes no reference to the Code of Civil Procedure or any other Act.

When dealing with a matter like this the Privy Council decision in Jijibhoy N, Surty v. T. S. Chettyar (a firm), 55 Ind App 161 : 47 Cal LJ 510 : AIR 1928 PC 103, naturally comes to one's mind. And this is the very case Mr. Mukherjee applying for leave refers me to. The principle this decision lays down I must necessarily govern myself by. Under the rules of the Rangoon High Court, an appeal from its judgment in exercise of its ordinary original civil jurisdiction need not be accompanied by a copy of the decree appealed against, just as under the rules of this Court an appeal under Clause 15 of the Letters Patent from my judgment need not be accompanied by a copy thereof. Still, in that Rangoon case, the time taken for a copy each of the judgment and the decree is excluded in computing limitation. Let me now translate the reason of this Privy Council decision to the facts I see before me here. Mr. Mukherjee, the learned advocate for the appellant was not present in Court when I delivar-ed the judgment. His learned junior was. I do not expect him to carry all the points in his memory and to post his leader with them. So, Mr. Mukherjee did properly require a copy of the judgment with a view to making a decision if he would advise filing an application for leave to appeal. Hence the time taken for obtaining a copy, as here, is time taken for obtaining something requisite within the meaning of Section 12.

2. I am, therefore, bound by the positive direction this section enacts : the time requisite for obtaining the copy of the judgment shall be excluded from computation. And I hold, overruling Mr. Ghose's objection, that this application for leave to appeal is not time barred.

3. On merits, I confess, I have a reasonable; doubt in my mind about the correctness of my own decision. Even if I am right, I feel that the point I have decided requires a far more authoritative decision than is possible in the hands of a single judge. On this consideration, I shall grant the leave prayed for, though 1 cannot recall at this distance of time if the matter mentioned ;n the ground No. 5 was mooted before me at the time the appeal was heard. Had it been raised, certainly I would have noticed it in my judgment. But I am not infallible. I need say no more.

4. In the result, the application is allowed.The leave prayed for is granted.


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