JUNG BAHADUR THAKUR Vs. DURGA PRASAD THAKUR

JUDGEMENT

(1.) This application has been filed under Order 47, Rule 1 of the Code of Civil Procedure by the appellants in First Appeal No. 571 of 1964, praying that the first appeal may be restored in the following circumstances.

(2.) The first appeal in question arose out of a final decree passed in a partition suit. The final judgment was given on the 6th June, 1964, and the final decree was signed on the 29th September, 1964, after it was drawn up. The appeal was filed in this Court on the 23rd December, 1964, with a certified copy of the decree, but without the certified copy of the final judgment. By order dated the 23rd December, 1964, time till the 15th January, 1965, was granted by a Bench of this Court to the appellants to file a certified copy of the judgment. The certified copy of judgment was filed on the 5th January, 1965. The original stamp report made on the memorandum of appeal in January, 1965, was that when the certified copy of the judgment was filed on the 5th January, 1965, the period of limitation for filing the appeal had run out. Therefore, the matter had been listed before the Registrar of this Court on the 3rd February, 1965, and fourteen days' time was granted to file a petition under Section 5 of the Limitation Act for condoning the delay in filing the appeal. That order not having been complied with, the matter was listed before the Bench on the 24th February, 1965, and one week's peremptory time was granted for the same matter. It appears that by non-compliance of the last peremptory order passed by a Bench of this Court the appeal was taken to have been dismissed as having been filed beyond the period of limitation. In these circumstances the prayer is for recalling the order dated the 24th February, 1965, on the ground that the limitation for filing the appeal had expired on the 18th January, 1965, and so the certified copy of the judgment had been filed within time. In the civil review application the stamp report was made in April, 1966, to the effect that in view of the decision of this Court in the State of Bihar v. Md. Ismail, AIB 1966 Pat 1, (Full Bench), the time for filing the appeal in question was up to the 18th January, 1965.

(3.) Learned counsel for the petitioners has argued that as the appellants were entitled to the time taken for preparing the copy of the final decree, the limitation for filing the first appeal was up to the 18th January, 1965, and, therefore, by mistake, time had been asked for in February, 1965, in the first appeal for filing an application for condoning the delay. Reliance is placed on the aforesaid Full Bench decision of this Court for the purpose that the appellants were entitled to the time taken for preparing the certified copy of the final decree, which had been filed in this case.