BRAHMANAND Vs. SHIV KUMAR

JUDGEMENT

(1.) This order will dispose of Civil Miscellaneous No. 182-C of 1967 in Regular Second Appeal No. 64 of 1967.

(2.) This application is made under section 5 of the Limitation Act, praying that the appeal, which has been filed out of limitation, may be treated within limitation by condoning the delay in filing the same.

(3.) In order to appreciate the question of limitation, it is necessary to set out a few salient facts. The decree appealed against was passed on the 3rd of June, 1966. The appeal was actually presented to this Court on the 14th of December, 1966. The application for obtaining a copy of the judgment and decree of the lower appellate Court was made on the 1st of July, 1966; and the same appears to have been delivered on the 31st of August, 1966, because the copy was completed and attested on that date. Therefore, the appellant was entitled to another period of sixty-two days under section 12 of the Limitation Act, besides the period prescribed by law for filing a second, appeal, that is ninety days. In all, the appeal could be filed on the 152nd day of the decree appealed against. This period ends on 2nd November, 1966. The appeal was not filed by the 2nd of November, 1966. The reason for this is stated to be that an application for trial Court's judgment had been made and the appeal was filed after it was obtained. The period spent for this copy is sought to be added to the period of 152 days referred to above. An application under section 5 of the Limitation Act has been filed, wherein a prayer has been made for condoning the delay in filing the appeal. It is stated that the limitation for filing the present appeal was subsisting on 25th of October, 1966, when an application for the copy of judgment of the trial Court was made. This judgment was ready on the 7th of December, 1966 and was ultimately delivered to the appellant on 8th of December, 1966. Under the High Court Rules, it is necessary to file a copy of the judgment of the trial Court along with the memorandum appeal, and, therefore, the appellant is entitled to add the time spent in obtaining that copy to the period of limitation for filing the appeal.