SEHAT ALI KHAN Vs. ABDUL QAVI KHAN

JUDGEMENT

(1.) This case has been referred to this Bench for a decision of the question whether in a Letters Patent appeal the time requisite for obtaining copies of the judgment and decree should be excluded in computing the period of limitation fixed by the Rules of this Court for preferring a Letters Patent Appeal. A Full Bench of four Judges of the Allahabad High Court in 'Fazal Muhammad v. Phul Kuar', 2 All 192 (A) has to be considered and, if found to lay down incorrect law, has to be overruled. We think in these circumstances it would be advisable that a Bench of five Judgea be constituted in order to decide the case.

(2.) We, therefore, direct that the papers of this case be laid before the Hon'ble the Chief Justice for constituting a larger Bench. Mootham, C.J.

(3.) The question which has been referred to this Bench is whether the time required for obtaining copies of the judgment and. decree appealed from should be excluded in computing the period .of limitation for preferring an appeal fixed by the Rules of this Court under the Letters Patent. The relevant facts are that judgment in two connected second appeals was delivered by Brij Mohan Lall J. on 3-10-1950, the learned Judge granting leave to the present appellants to file a further appeal under the Letters Patent. The Letters Patent ceased to have effect from the date upon which the U.P. High Courts (Amalgamation) Order, 1948 came into force, but by virtue of Clause 9 of that Order and Article 225 of the Constitution rules with respect to the practice and procedure of the former High Court are applicable to the present Court, and, although not strictly accurate, it is convenient to refer to the Rules which we have to consider as made under the Letters Patent. On 11-10-1950, an application was made for a certified copy of the judgment and decree. The copy of the judgment was ready on 22-1-1951, and delivery was taken on the following day. The copy of the decree was not, however, ready until the 5th March and delivery was taken on the 7th March. In the meantime on 21-2-1951, the appeal was presented but was not accompanied by a copy of the Judgment. Paras 2 and 3 of Rule 7 of Chap III of the Rules of Court as then in force, read as follows: