TARSEM CHAND Vs. PADMA RANI

JUDGEMENT

(1.) :- The matter comes up for orders on application under Section 5 of the Limitation Act. The office has objected that the appeal is barred by time by one day. This was so as per the endorsement made on the back of the decree-sheet where the date of presentation of the application as well as delivery of the copy of the decree was mentioned as 18-7-92. However, on each page of the judgment as well as on the front of the decree-sheet, the date of presentation of the application was stated to be 17-7-92. In these circumstances, the counsel presenting the appeal, counted 2 days for obtaining the certified copy of the judgment and decree and presented the appeal treating it to be within time. It may be noticed that in the endorsement at the back of the certified copy of the judgement, the date of presentation of the application was mentioned to be 19-7-92, which obviously appears to be wrong, inasmuch as the copy of the judgment as well as decree was delivered on 18-7-92, about which there is no dispute. Apparently entered in endorsement over certified copy of judgment is readable as 19-7-92 as noticed by this court on 15-12-92. On a close look, the date of presentation could be read as 18-7-92 also. However, the fact remains that on each page of the judgment as well as on the front page of the decree, the date of presentation of the application, which is required to be entered as per rules, has been stated to be 17-7-92. Accordingly, taking the date of presentation of the application and date of delivery, as the time requisite for obtaining the certified copies of the judgment and decree, the appellant filed this appeal within 92 days, considering it to be within limitation. In these circumstances no occasion arose for the appellant to move any application under Section 5 of Limitation Act. It was only when the office raised objection about limitation the counsel for the appellant obtained the certified photocopy of the application filed for obtaining certified copies of judgment and decree under appeal and finding the true date of making such application, moved the application under Section 5 of Limitation Act.

(2.) From certified photocopy of the application for obtaining the copy of judgment and decree, it transpires that the application in fact was made on 18-7-92. The date fixed for delivery of the application was 20-7-92.

(3.) In these circumstances, in my opinion, no negligence or malafide can be attributed to appellant and the appellant had sufficient cause for not filing the appeal within time.