KOCHAPPI KUNJI Vs. KALI KOCHU PILLAI

JUDGEMENT

(1.) The appeal before the lower appellate court was filed with a petition to excuse delay. The petition to excuse delay was dismissed and the order is the subject matter of the revision petition. In consequence of the refusal to excuse the delay the appeal was dismissed on the ground that it is barred. The second appeal is directed against the decision of the lower appellate court.

(2.) Counsel for the revision petitioners and the appellants contended that in view of Explanation to S.12 of the Limitation Act, 1963 there is no delay in filing the appeal. To appreciate this contention, it is necessary to state some facts. The appeal was filed in the lower appellate court against the final judgment and decree in a suit for partition. The judgment was pronounced on 6-6-1966 and the appeal before the lower appellate court was filed on 15-12-1966. The application for copy of the judgment and decree was made on 26-11-1966. On the date of the filing of this application the time for filing the appeal has expired. Along with the appeal the appellants bad filed a petition to accept the appeal without a copy of the decree. In Para.5 therein they had stated that on the application for copy of the decree filed in the Trial Court it has been noted that the decree has not been prepared. This shows that on the date when the application was filed on 26-11-1966 for copies of the judgment and decree, the decree had not been prepared. Counsel for the appellant contended that in computing the time requisite for obtaining a copy of the decree for the purpose of production in the lower appellate court he is entitled to exclude the period from 6-6-1966 to 26-11-1966 In calculating the period for limitation. This aspect was not considered by the learned appellate Judge. The position canvassed for by the appellants' counsel is very vehemently contested by counsel for the respondents.

(3.) The decisions of this court in S. A. 974, 975 and 976 of 1970 and C. M. P. 14506 of 1970 in A. S. 145 of 1964 support the appellants' contention.