Pikhesar Nath Tewari and Others vs Janakdeo Nath Tewari and Others

Agarwala, J.—The stamp-reporter has reported that the present appeal is barred by limitation. The facts were as follows Judgment was delivered on 28th September 1932, Ordinarily the period of limitation would expire on 27th December 1932. The appeal was filed on 8th February 1933. There is no doubt that the appellant was entitled to exclude the period from 19th November 1932. when he applied for copies and supplied the folios, to 29th November 1932, when the copies of the judgment and decree were received. This however does not bring the appellant within time.

The appellant contends that he is also entitled to exclude the period from 29th September until 1st November 1932 when the civil Courts were closed on account of the annual vacation. The appellant relies for this on the decisions in Debi Charan Lal v. Mehdi Hussain AIR 1916 Pat 317 and Munshi Mahton v. Lachman Lal AIR 1929 Pat 615. The stamp-reporter distinguishes these cases on the ground that they were cases in which the appeals were preferable to the Court below and the whole period of limitation, viz. 30 days, expired during the vacation. The present appeal, being to the High Court, the period of limitation is 90 days and the whole of this period was not occupied by the annual vacation of the civil Courts.

I do not think that the decision in Debi Charan Lal v. Mehdi Hussain AIR 1916 Pat 317 can be distinguished on that ground. In that case the plaintiff had obtained a decree on 27th September 1913, and the decree was signed on the same day. The Courts were closed from 28th September till 31st October, both days inclusive. Application for copy of the judgment was made on 3rd November, and for a copy of the decree on 13th November. Both the copies were delivered on the 21st. The appeal was filed on 28th November.

The question was, whether the appellant was entitled to exclude the period occupied by the annual vacation of the civil Court. Sir Edward Chamier, C.J., at

p. 489 of the report observed:

I therefore ask myself the question what was the time requisite for obtaining the copy of the decree in this case? The day on which the judgment was pronounced and the decree sighed in this case must admittedly be excluded. So far as I know it is the universal practice to exclude the day on which the case was decided for all purposes connected with the calculation of limitation for an appeal. It is common ground that from 28th September to 31st October (both days included) the appellants could not have even applied for a copy either of the judgment or of the decree. That being so it appears to me to follow that the whole of the time which elapsed between the delivery of the judgment and the reopening of the Court on 1st November 1913, was part of the time requisite for obtaining copies of the judgment and decree, and that this must be so whether the appellant applied for copies on the day on which the Court reopened or on some later date.

The stamp-reporter relies on the decision in Sham Lal Marwari v. Sonabati Kumari 3 MJC No. 80 of 1931 in which however the facts were entirely different; for in that case the entire period of limitation for an appeal to the High Court had expired before any application for copies was made. Khaja Mohamad Noor and Scroope, JJ., observed:

It is settled law that in order to enable the appellant to deduct the period required for obtaining the necessary copies, the application for copies must be made within the period of limitation and not after the appeal had already become time-barred.

A question also arose as to whether the appellant was entitled to exclude the day after the delivery of the judgment which was a Sunday.

With reference to that their Lordships observed that the decisions in Debi Charan Lal v. Mehdi Hussain AIR 1916 Pat 317 and Munsi Mahton v. Lachman Lal AIR 1929 Pat 615 had no bearing on the facts of (she case, as in those cases the appeals could not have been filed within 30/ days allowed for an appeal to the District Judge, as the Court of the District Judge was closed for the whole of that period. As I have already observed, the decision in Debi Charan Lal v. Mehdi Hussain AIR 1916 Pat 317 is not distinguishable on the ground on which it is sought to be distinguished by the stamp-reporter. The appeal is within time.