CHUNILAL KOTHARI Vs. GOPI DEVI MIMANI

JUDGEMENT

(1.) This is an application for leave to appeal to the Supreme Court under Article 133(1)(a) of the Constitution. The facts are shortly as follows: Testamentary suit No. 4 of 1954 was filed by Sm. Gopi Devi Memani, praying for Letters of Administration to the Estate of Meghraj Kothari, deceased, ]and that a right be reserved for her mother Mussamat Gohar Bai to apply to grant in her favour in the event of her gaming sanity, and for other reliefs. The application was opposed and on the 14th of May, 1962 Mallick, J. passed a decree granting Letters of Administration to the Estate of Meghraj Kothari to one Gangadas Binani. The petitioners Chunilal Kothari, Hiralal Kothari, Kanhaiyalal Kothari and Sm. Mathura Bai appealed against the said order, the appeal being numbered as appeal No. 163 of 1962. On the 24th of February, 1964 the appeal came up for hearing before Bachawat, J. and my learned brother A.K. Mukherjea, J. The appeal was allowed in part and the learned Judges directed that the grant issued to Gangadas Binani be recalled and in lieu thereof Letters of Administration to the Estate of Meghraj Kothari, deceased, be granted to Gopi Devi Memani subject to her furnishing security to the extent of Rs. 2,75,500 etc. Save as aforesaid, the order appealed from was affirmed. The appellate decree was filed on the 14th April, 1964. The notice of motion for a certificate for appeal to the Supreme Court was taken out on 13th of May 1964. It has now come up for hearing. Mr. Roy appearing on behalf of the respondent admits that this is a judgment of variance and therefore, it would be sufficient to show that the amount or value of the subject-matter to the dispute in the court of first instance and in appeal is not less than 20,000 rupees. If is not disputed that the value exceeds that amount. The only point that he has taken is that this application for a certificate is barred by limitation. He has made his argument thus: Under the Indian Limitation Act, 1908 the relevant article was Article 179 which ran as follows: --------------------------------------------------------------------------------

(2.) In computing the time, Section 12 of the said Act permitted a certain time to be excluded. The relevant provisions are Sub-sections (2) and (3) which ran as follows:

(3.) Where a decree or order is appealed from or sought to be revised or reviewed, or where an application is made for leave to appeal from a decree or order, the time requisite for obtaining a copy of the judgment on which the decree or order is founded shall also be excluded." Mr. Roy argues that in the Limitation Act of 1908, both article 179 and Section 12 talked about