Mahabir Prasad Tewari vs Jamuna Singh and another

Dawson Miller, C.J.—This is an application for leave to appeal to His Majesty in Council from a decision of this Court, dated the 12th April 1921. The judgment, which it is sought to appeal from, is a judgment of reversal and the value of the matter in dispute is over Rs. 10,000 but the Respondents contend that the application for leave to appeal was out of time. The period of limitation under S. 179 of the Lim. Act as now amended is 90 days for a person desiring to appeal under the CPC to His Majesty in Council. The judgment of this Court was dated the 12th April 1921 and the 90 days allowed would expire on the 11th July. The petitioner applied for a copy of the judgment appealed from on the 9th July and did not obtain that until the 25th and two days later, on the 27th the application for leave to appeal was filed. It is quite obvious that if the period occupied in obtaining a copy or the judgment is excluded the application is in time. Even if one only excludes the two days of that period from the 9th to the 11th July, still as the application was filed two days after the copy was obtained, I think that the application was clearly in time. It has been contended, however, by the learned Vakil who appears for the Respondent that we ought not to exclude the period which was occupied in obtaining a copy of the Judgment and that S. 12 of the Lim. Act does not apply to cases of appeals to His Majesty in Council. In my opinion this contention is not well founded. The question of whether S. 12 applies to applications for leave to appeal to His Majesty in Council has no doubt been the subject of somewhat conflicting decisions in the different High Courts in India but the matter was considered by the Chief Justice and Mr. Justice Rafique in the Allahabad High Court in the case of Ram Sarup v. Jaswani Rai (1915) 38 All. 83=13 A. L. J. 1114=31 I.C. 906 and the learned Judges in that case came to the conclusion that in computing the period of limitation under Art. 179 of the Lim. Act, the applicant was entitled under S. 12, cl. 2 of the Lim. Act to exclude the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree. They arrived at this conclusion on the ground that S. 12, sub-S. 2, of the Lim Act is general in its terms and applied to all applications for leave to appeal, including an application for leave to appeal to His Majesty in Council, whereas formerly under the previous Act it had been restricted to application for leave to appeal as a pauper. In my opinion that decision expresses properly the interpretation of S. 12, sub-Cl. 2, however, of S. 12 only deals with obtaining copies of the decree, sentence or order appealed from and therefore does not in terms cover the present case where the time sought to be deducted is the time occupied in obtaining a copy of the judgment. A copy of the decree was applied for sometime between the 9th July and the 25th July and it does not appear that any further time was occupied in applying for a copy of the decree. I think, however, that sub-S. 3 of S. 12 of the Limitation Act applies to the present case and that the time requisite for obtaining a copy of the judgment ought also to be deducted in cases of application for leave to appeal to His Majesty in Council. I think that the provision of sub-S. 3 are meant to apply generally to cases covered by sub-S. 2 and the reason seems to me to be this that if the appeal in question is from a decree then it is generally necessary that the judgment on which that decree is based should also be obtained in order that the parties may satisfy themselves by reference to it exactly what its terms are and further in order that they may as is provided in the Civil Procedure and under the rules of most High Courts file a copy of the judgment with the application for leave to appeal. Under the practice in this Court it is necessary that a copy of the judgment from which it is sought to appeal should always be filed with the petition applying for leave. The court insists upon that because in some cases it is absolutely necessary that the judgment itself should be considered notably in cases where the question is whether a substantial question of law arises for consideration by their Lordships of the Judicial Committee. In my opinion, therefore, the time occupied in obtaining a copy of the judgment ought to be deducted in this case. If that is done then the application for leave to appeal was in time and I think a certificate should issue that the case complies with the provisions of S. 110 of the Civil Procedure Code. As this application has been opposed by the Respondents I think the petitioner is entitled to his costs of the application. Hearing fee, 5 gold mohurs.

Ross, J.

I agree.