KESAVAN Vs. PHILIP

JUDGEMENT

(1.) Plaintiff - 1st respondent in the court below is the revision petitioner. The suit which is one for redemption of a mortgage was decreed on 8-2-1951. On the application of the 1st defendant for copies of the judgment and decree for the purpose of filing an appeal from the decree the copy of the decree was given to him on 14-3-1951 and the printed copy of the judgment was given on 20-6-1951. He had applied for an urgent copy of the judgment on 17-2-1951, and he got the same on 19-3-1951. He filed the appeal on 26-6-1951, producing the printed copy of the judgment obtained on 20-6-1951 and the copy of the decree. If the period of limitation for filing the appeal is calculated on the basis of the copy of the judgment produced along with the appeal the appeal would be within time. But if time is calculated on the basis of the copy of the judgment obtained by the first defendant on 19-3-1951 the appeal would be out of time. Plaintiff first respondent contended in the court below that the period of limitation should be calculated on the basis of the copy of the judgment obtained by the first defendant on 19-3-1951 and that, therefore, the appeal was barred by limitation. He also contended that the Vakkalath filed on behalf of the first defendant appellant in the court below was defective. The court below repelled both these contentions by its order dated 25-6-1952. The revision petition is from that order.

(2.) The contention regarding the defects in the vakkalath was not pressed before me. The point that was urged was that the Court below went wrong in holding that the appeal was not barred by limitation. Relying on a decision of the Lahore High Court in Mathela v. Sher Mohammad (AIR 1935 Lahore 682) learned counsel for the revision petitioner contended that the time requisite for obtaining a copy of the judgment mentioned in S.12 of the Limitation Act is not necessarily the time requisite for obtaining the copy of the judgment produced along with the appeal and that it is the shortest time during which a copy of judgment could have been obtained. In that case Dalip Singh, J. dissented from the Full Bench ruling of the Madras High Court in Thirumala Reddi v. Anavema Reddi ( AIR 1934 Mad. 306 ) and held that the time requisite for obtaining a copy is the shortest time during which a copy could have been obtained and that it has nothing to do with the time taken by the appellant in obtaining the copy which he chooses to produce along with the memorandum of appeal. The learned Judge observed thus:

(3.) Learned Counsel for the Revision Petitioner referred also to the decision in Babu Singh v. Mangat Rai (1927 Lahore 192), Narsingh Sahai v. Sheo Prasad (40 Allahabad 1) and Chunilal Jethabhai V. Dahyabhai Amulakh (32 Bombay 14). Those cases do not deal with this question. The question considered in those cases was whether, when under the Code of Civil Procedure the appellant is bound to produce along with the memorandum of second appeal not only the copies of the judgment and decree of the first appellate court but also a copy of the judgment of the court of first instance, the appellant is entitled to exclusion of the time taken in obtaining the copy of the judgment of the court of first instance over and above the time taken for obtaining the copies of the judgment and decree of the first appellate court. It was held in those cases that since S.12 of the Limitation Act provides for the exclusion of only the obtaining a copy of the judgment on which the decree appealed from is founded the appellant would not be entitled to the exclusion of the time taken for obtaining a copy of the judgment of the court of first instance also. That has nothing to do with the question to be decided in this case.