KOLIKIPUDI ATCHAMMA Vs. KOLIKIPUDI KETI

JUDGEMENT

(1.) This revision petition arise out of the suit O. S. No. 1148 of 1971 on the file of the court of the District Munsif, Guntur. Defendants 1 to 5 are the petitioners. The plaintiff is the first respondent. Judgement was delivered in the suit by the learned District Munisif on 22/10/1975. The petitioners applied for a certified copy of the decree on 6-11- 1975. The copy of the decree was supplied on 28- 11 -1975, but the printed copies were not ready for a long time . Meanwhile, the first respondent began to take steps for execution of the decree. Since printed copies of the decree and judgement and field an appeal before the District Judge on 20th of September, 1977. The office took an objection that the appeal was time- barred. Therefore, an application I. A. 1998 of 1977 was field under section 5 of the Limitation Act, hereinafter referred to as the Act , to condone the delay in presentation of the appeal. It was contended in the application that since the application for printed copies of the decree and judgement field on 1- 12- 1975 was still pending and since they had lost by then 14 days in filing the application for the copy of the decree and 3 days after obtaining the copy of the decree on 28-11- 1975, the appeal was in time. The learned District Judge rejected the contention holding that the application for printed copies of the judgement and decree was itself field beyond the time fixed for preferring an appeal under Article 116 of the Schedule to the Act and dismissed the application observing that there was no satisfactory explanation given by the petitioner for the enormous delay in preferring an appeal. It is against the said order that this revision petition is field.

(2.) The only question that arise in this case is; what is the proper method for compilation of the period of limitation under section 12 (2 ) of the Act. This question is obviously one that relates to the rule of practice. Under section 12 (3) time requisite on which the decree is founded shall also be excluded. Therefore, when an appeal is preferred against a decree, the time taken for obtaining a copy of the decree as well as the judgement should be excluded in computing the period of limitation for preferring an appeal. The mere fact that one of the copy applications was field beyond the period of limitation prescribed under the schedule to the Act cannot by itself be fatal to the maintainability of the appeal, if the appeal preferred is in time after excluding the time taken for obtaining copies of the judgement and decree. This was the view taken by the Division Bench of the Madras High court as long back as in 1897 in Raman Cheti v. Kadirvelu (1908 ) 8 Mad Lj 148 ). The learned Judges in that case held that in computing the period of limitation prescribed for an appeal under section 12 of the Limitation Act, the time taken to obtain a copy of the judgement must both be excluded except where these two periods overlap except where these two periods overlap, the time overlapped shall be excluded. In that case, copy of the judgement was applied for on 27th October and that of the decree on 28th October. The former copy was ready on 31st October and the latter on 2nd November. The learned Judges said that time occupied in obtaining both copies was from occupied in obtaining to 2nd November, that is seven days that the appeal presented on the 97 the day from the date of the decree was in time. This case was followed in Silamban Chetty v. Ramanadhan Chetty ((1910) ILR 33 Mad 256). In that case, the leaned judges noticed that it was true that the said decision would enable a party to apply for the copy of the other record and then to apply for the copy of the other record and thus extend the time while if he had applied for both the copies at the same time, the time requisite for obtaining the copies would have been less. Their Lordships however expressed that they were not prepared to differ from the decision in Raman Chetti v. Kadirvelu (1908) 8 Mad Lj 148) especially as it is a view taken in Ramzan v. Mahammad Ishag (AIR 1925 All 436) (FB).

(3.) The learned counsel for the respondent however relying on the decision of the supreme court in state of U.P. Maharaja Narain (AIR1968 SC960) submits that the question whether the appeal preferred was in time or not should be considered on the basis of information available from the copy of the judgement and decree fold along with the Memorandum of appeal and not from other copies which the party might have got and used for other purpose with which the court has nothing to do. In that case, the supreme court observed:-