Patna High Court
Jadu Nandan Sahay vs Hanuman Sahay on 12 February, 1923
Equivalent citations: 77IND. CAS.401, AIR 1924 PATNA 113
JUDGMENT
1. This appeal is reported to have been filed out of time by one day.
2. The term of 90 days for filing an appeal against the decree expired on 29th January 1923 but before the time expired the appellant applied for a copy of the judgment on the 17th November 1922 and obtained a copy on the 23 rd November 1922. Under Section 12, Clause (3) the time for filing the appeal was extended from the 29th January 1923 to the 5th of February 1923; but before the expiry of this extended time, the appellant made an application for a copy of the decree on 31st January 1923 and obtained a copy on the same date. Under Clause (2) of Section 12 he was entitled to add one day more to the time within which he was required to file his appeal. Adding this one day to the 5th of February within which he could file the appeal by reason of the extension allowed to him under Clause (3) of Section 12, he was entitled to file the appeal on the 6th February 19231 and he did file the appeal on that day. Therefore, the appeal was filed within time.
3. No doubt, an application for copies of the judgment and the decree must be made before the expiry of the time for filing an appeal. There is, however, no obligation imposed upon an appellant to file applications for copies of judgment and decree at one and the same time and, therefore, he can make his applications for copies at different times. It seen to be settled by authorities that the applications made at different times will entitle the appellant to take advantage of the time occupied in obtaining copies of both judgment and decree. Now, if the time requisite for obtaining copy of one of these documents extends the time of limitation, then the application made for obtaining copy of the other document after the time originally fixed for filing an appeal under the Law of Limitation but before tie extension of time allowed by reason of the time required for obtaining copy of one of these documents, expires will entitle the appellant to extension of time required for obtaining copy of the other document. The Madras and the Bombay High Courts so far as the rulings have been placed before us, appear to be unanimous upon, the point: vide Selamban Chetty v. Ramanadhan Chetty 4 Ind. Cas. 301 : 33 M. 256 : 7 M.L.T. 29 : (1910) M.W.N. 141 : 21 M.L.J. 152, Pandharinath Sukharam v. Shankar Narayan Joshi 25 B. 586 : 3 Bom. L.R. 244 and Raman Chetty v. Kadirvalu 8 M.L.J. 148. The Oudh Court in Din Dayal v. Rameshar 28 Ind. Cas. 366 : 18 O.C. 74 : 2 C.L.J. seems also to be of the same view. There was a difference of opinion in the Punjab High Court. That Court in Sher Singh v. Pem Raj 48 Ind. Cas. 31 : 100 P.R. 1918 : 185 P.W.R. 1918 took a contrary view based apparently upon the view that applications for copies of judgment and decree must be simultaneously made and not at different times. The Court however, changed its view laterly in Ali Muhammad v. Nathu 54 Ind. Cas. 879 : 163 P.R. 1919 : 78 L.W.R. 1919 : 1 L.L.J. 106. This Court in the case of Debi Char an Lal v. Sheikh Mehdi Hussam 35 Ind. Cas. 888 : 20 C.W.N. 1303 : 1 P.L.J. 485 : 1 P.L.W. 209 took the view that it is not essential that applications for copies of judgment and decree should be made simultaneously and the time taken in obtaining copies of both the documents, though applications for each were made at different times, was allowed to be excluded in computing the period of limitation. It seems that in that case the decree was passed on 27th September 1913 by the Munsif, it was prepared" and signed on that very day. The annual vacation began on the following morning and the Court re-opened on November 1st. Ordinarily the appeal should have been filed before the District Judge after the re-opening of the Court, or an application for copies of the judgment and decree should have been made on that day in order to enable the appellant to file his appeal after obtaining copies of the judgment and the decree, but the application for copy of the judgment was ma de on the 3rd of November and for copy of the decree on the 13th November. The applications were made after the expiry of the time for filing the appeal yet the appeal was held to have been filed. "Within time and the appellant was entitled to take advantage ox the vacation as well as of the time required in obtaining the copies of the judgment and the decree. The point in question in tie present case was not directly decided in that case, but tie dates given above will show that the decision of the case helps the contention of the appellant.
4. Apart from both the decisions we are of opinion that under true construction of Clauses (2) and (3) of Section 12, the contention of the appellant must succeed and the appeal filed must be held to be within time.