Mohinder Singh vs Avtar Singh and Others

J.V. Gupta, J.—This revision petition is directed against the order of the Additional District Judge, Ferozepur, dated March 12, 1987, whereby the appeal filed by Mohinder Singh, Petitioner, was dismissed as barred by time.

The Plaintiff Avtar Singh, obtained an ex Parte decree, against Mohinder Singh on December 6, 1983. Application under Order IX Rule 13, Code of Civil Procedure, to set aside the same was filed on January 3, 1984, which was rejected by the trial Court vide order dated April 15, 1986. On that very day, i.e., April 15, 1986, an application for obtaining certified copy was filed. The Certified copy was ready on May 5, 1986, but the same was received by the Petitioner on May 15, 1986. The appeal was filed on June 6, 1986. Though the appeal was filed within time, yet the Petitioner moved an application u/s 5 of the Limitation Act, for condonation of delay, if any. The said application was opposed on behalf of the Respondents. The learned District Judge took the view that the appeal was barred by time by one day and consequently, dismissed the appeal as such

The learned Counsel for the Petitioner submitted that the calculations made by the Court below were wrong. The appeal was filed within time because two days were to be deducted in computing the period of limitation, i.e., the day on which the application for obtaining the certified copy was filed and the day when it was prepared. In support of this contention, the learned Counsel relied upon Kashmir Singh v. Municipality, Karnal 1983 P.L.J. 22.

After hearing the learned Counsel for the parties, I do find merit in this contention. It was held by this Court in Kashmir Singh''s case (supra) inter alia that when the application for copy was filed on the very day on which the judgment was pronounced, the benefit of the day on which the judgment was pronounced can be given twice over. The day of pronouncement of judgment is excluded under Sub-section (1) of Section 12, and the time requisite for obtaining a copy is computed according to Sub-section (2) of Section 12 of the Limitation Act. In these circumstances, the appeal could not be held to be barred by time. Even if in any case, it was barred by one day only, the delay in filing the same should have been condoned.

Consequently, this revision petition succeeds and is allowed. The impugned order is set aside. The appeal is held to be filed within time. The parties are directed to appear before the District Judge, Ferozepur on April 11, 1989, for further proceedings. The appeal be now decided in accordance with law expeditiously as it was originally filed in June, 1986.