1. This is an appeal from what must be construed to be a decree of the District Judge with regard to an appeal which was presented to him from a decree of the Munsif of Gauhati. The order of the learned Judge runs thus: 'The appeal being time-barred is not admitted.' The learned advocate Mr. Gunada Charan Sen, for the respondent takes a preliminary objection that there is no appeal from this order as it is an order of the District Judge refusing to admit an appeal. But Mr. Sen has not been able to point out any rule or order in the Civil Procedure Code under which a Judge on appeal may pass suck an order that an appeal should not be admitted. Obviously the meaning of the order of the learned Judge is that the appeal is dismissed as there is no doubt that the appeal was filed with all the necessary preliminaries required under Order 44, Rule 1 of the Code of Civil Procedure. The judgment, therefore, amounts to a dismissal of the appeal and it is a decree, There being thus a second appeal we have to see whether the decision of the learned Judge is right with regard to the question of limitation.
2. In this case the judgment of the trial Court was pronounced on the 6th of October 1923. On that very day the appellant before us, who was also appellant before the lower appellate Court, applied for a copy of the judgment and the decree of the trial Court and the appellant also put in a certain number of folios and requisite stamps for copies. The decree had not then been signed by the learned Munsif so that it was not in existence and the requisite stamps must have been filed on the 6th October 1923 by guess by the appellant. The decree was signed on the 8th October 1923, and on that date it appears that it was notified to the appellant's pleader as to the number of stamps and folios necessary for preparing copies of both the judgment and the decree. As we have already stated, certain number of stamps and folios were delivered on the 6th October. The remaining number of stamps and folios were filed on the 14th November 1923. It appears that the Court was closed after the 8th October and reopened on the 12th of November 1923. The copy of the decree was ready for delivery on the 16th November 1923, and the appeal was filed on the 19th November. It appears that the copy of the decree covered only three folios. It is quite probable that when the folios were filed with the application for copy on behalf of the appellant on the 6th of October, at least three folios were filed along with the application. If that was so, then the appellant was entitled to deduct the period from the 6th October to the 16th November 1923, when the copy of the decree was ready for delivery under Section 12 of the Limitation Act. The learned Judge does not seem to have adverted to that question.
3. What apparently was done on the 8th was that the appellant was notified as regards the requisite number of folios to be filed for completing the copy of the judgment and the decree. The judgment appears to have required something like 27 folios. Assuming that the actual number of folios for the copy of the judgment was not filed in proper time that does not debar the appellant from deducting the period required for the preparation of a copy of the decree for which he must have filed the requisite number of folios on the 6th of October. The appeal, therefore, in the lower appellate Court appears to have been filed in proper time, as, deducting the period between the 6th October and the 16th of November, it was filed quite within the period of limitation.
4. The judgment and decree of the District Judge must, therefore, be set aside and the case is remanded to him to be heard on the merits. It is also necessary to observe that the learned Judge did not record his opinion as regards the application which was apparently made on behalf of the appellant for extension of the period of time for presenting the appeal under Section 5 of the Limitation Act. It is desirable that when such an application is made, the lower appellate Court should record its opinion as regards that application, even when it is rejected.
5. Costs of this appeal will abide the final result.
6. I agree.