B. Mahalakshmamma vs C.K. Thirunavukkarasu Mudaliar and Another

Kuppuswami Ayyar, J.—This is a petition to excuse the delay in presenting the appeal against the decree in O.S. No. 44 of 1942 on the file

of the City Civil Court, Madras. The judgment was pronounced on 17th March 1943. The very next day a copy application was made. Stamp and

printing charges were called for on 3rd April 1943, and the stamp papers were filed on 5th April 1943. The printing charges had to be deposited

on 10th April. 11th April was a Sunday and therefore on 12th April a petition had to be filed for extending the time because the office insisted on

such a petition. Notice had to go and the petition was finally ordered on 15th July 1943. The charges were paid on the same day and copy

obtained on 5th August 1943. This appeal was filed on 14th August 1943.

If the time taken for obtaining copy of judgment is taken into consideration the appeal is in time. It is contended for the respondents that u/s 12

(2), Limitation Act, it is only the time taken for obtaining copy of the decree that could be excluded in the case of applications for leave to appeal,

and therefore the time taken for obtaining copy of judgment ought not to be excluded from the calculation. But then, in 48 Mad. 9391 it was

pointed out that the language of Section 12 (3) is clear that in the case of an application for leave to appeal to the Privy Council the time taken for

obtaining copy of the judgment should be excluded in calculating the period of limitation. Applications for leave to appeal to the Privy Council

come u/s 12 (2) as also applications for leave to file an appeal in forma pauperis. The decision in that case will apply to the facts in this case also,

and the time taken for obtaining copy of the judgment will be excluded. If it is not to be excluded I think it is a fit case for exercising the discretion

of the Court and excusing the delay. There was a delay of only one day in depositing the printing charges and the party had to file a petition for

extension of time, which was contested, and it was only the contest that kept the petition pending till 15th July. There has been no other laches on

the part of the petitioner. With an application for leave to file an appeal the appeal memorandum has to be filed, and that could not be prepared

without a copy of the judgment.

In these circumstances, if the appeal is not in time, the delay is excused.