KHUB CHAND Vs. HARMUKH RAI

JUDGEMENT

(1.) THIS is a defendant s appeal, and the only point for determination is whether the lower appellate, court was justified in dismissing the appeal presented before it by the same defendant on the ground that it was barred by limitation. The decision of the first court in the case was dated the 30th of September, 1909. THIS defendant applied for a copy of the judgment and decree on the 13th of October, 1909. On that same date the courts below closed for the annual vacation, and did not re-open until the 17th of November, 1909. It appears that under the special orders of the District Judge the copying department continued working during the earlier days of the vacation, presumably in order to make up arrears. Under these circumstances a notice to the effect that the copy required by the defendant, Khub Chand, was ready, was posted on the notice-board of the court on the 18th of October, 1909. The copy was actually received by Khub Chand on the 29th of November, 1909 and his petition of appeal was presented to the lower appellate court on the 1st of December, 1909. The question we have to determine is what is to be considered the period requisite for obtaining necessary copies in this case. We have it on the affidavit of the appellant, which was not controverted, that he did not actually receive notice that his copy was ready before the date on which the copy was made over to him, namely, the 29th of November, 1909. "We have only to consider, therefore, whether he was bound to have taken cognizance of the notice posted on the notice-board of the court on the 18th of October, 1909, at a time when the court was closed on account of the annual vacation. We are of opinion that the appellant should not be considered bound to have taken cognizance of that notice until the date the courts re-opened after the vacation, that is, until the 17th of November, 1909. We hold, therefore, that the period requisite for obtaining the copy in this case extended from the 13th of October to the 17th of November, 1909, and if this period be excluded under the provisions of Section 12 of the Limitation Act, the appeal was within time when presented to the lower appellate court on the 1st of December, 1909. We, accordingly, allow this appeal, set aside the order and decree of the lower appellate court and remand the case to that court with directions to re-admit the appeal under its original number in the register and to dispose of it according to law. Costs here and hitherto will abide the event.