BANSILAL Vs. BADRINARAYAN AND OTHERS

JUDGEMENT

(1.) This is a revision petition questioning the order of the Chief Judge, City Civil Court whereunder he declined to condone the delay in the presentation of the appeal. Before the learned Judge and also before me the contention that is pressed by the learned counsel for the petitioner is that in fact there is no delay at all in the presentation of the appeal. He has accordingly submitted that on a proper or a correct view of the facts no question of condonation of delay would arise. In order to appreciate the contention of the learned counsel, it is necessary to set out a few relevant dates.

(2.) The order which was sought to be appealed from was passed by the court of the first instance on the 22nd December 1967. On the very next day an application for a copy of the order was made. Folios were called for on 18th January 1968 and they were deposited on 20th January 1968. The certified copy was made ready on 6th February and it was delivered to the petitioner on 7th February, 1968. Thereafter the petitioner made a further application for a certified copy of the decretal order, on the 16th February 1968. The copy was made ready the very next day. 18th February 1968 happened to be a Sunday. The petitioner obtained delivery of the certified copy of the decretal order on the 19th and presented the appeal to the Principal judge on the 19th February 1968 itself.

(3.) The question is whether the appeal was presented within time allowed by law. The position will depend upon whether after allowing deduction of the time requisite for obtaining copies the presentation of the appeal was done within the time allowed by law. The contention of the petitioner is that he was under no obligation to make an application concurrently for the certified copies of the decree and judgment and that though he makes applications for them not simultaneously but on different dates the time respectively taken for obtaining the certified copies of the decrees and order would ensure to his benefit and is deductable for computing the period of limitation. I should have thought that this question has been settled as long ago as 1898. In Raman Chetti v. Kadirvolu 8 M.L.J. 148 , a Division bench of the Madras High Court consisting of Subrahmania Aiyar and Daviss J.J held that under section 12 of the Limitation Act, in computing the period of limitation prescribed for an appeal, the time taken to obtain a copy of the decree and the time taken to obtain a copy of the judgment must both be excluded except where two periods overlap each other; and, where they do overlap, the time over-lapped shall be excluded only once. This decision has been consistently followed by the Madras High Court; another division bench of the same High court affirmed the correctness of the earlier decision in Sillamban Chetty v. Ramanshan Chatty I.L.R. 33 Mad. 256 . In the latter decision it was pointed out that though the procedure adopted by a litigant in making separate applications might result in enlargement of the period available for the filing of an appeal, it could not be held that the time taken by different and successive applications was not time requisite for the obtaining of the certified copies. THere are several other pronouncements of other High Courts to which it is unnecessary to refer. It is indeed surprising that this well established rule was not adopted by the lower court.