AVASARALA KAMARAJU PANTULU Vs. BALLA SARAMMA

JUDGEMENT

(1.) This is an appeal by two would-be appellants in the Court of the learned District Judge of Bast Godavari, They attempted on the 21 of July, 1939 to obtain a favourable order from the learned District Judge under Section 5 of the Limitation Act for excusing a delay of 19 days in presenting their appeal. The learned District Judge refused to excuse that delay and dismissed the petition and as a natural consequence of that order the appeal was, rejected.

(2.) The argument put forward before me is that the application made by the appellants before the District Judge was really unnecessary, that there was no delay to be excused at all, and that when they first presented their appeal on the 7 of July it was in Pact presented in time.

(3.) The facts and dates are as follows: The decree of the first Court against which the appellants desired to appeal was passed. on the 2nd May, 1939. A few days later the Court rose for the summner vacation, and both it and the District Court re-assembled after the summer vacation on the 19th. June. The period of limitation for appeal is thirty days, and thirty days of course expired before the 19 of June, but under the provisions of Section 4 of the Limitation Act. the appeal could undoubtedly have been presented on the 19 of June. On that date, however, the appellants did not present, their appeal, but presented instead a copy application in the Court of first instance. They now maintain that inasmuch as they had a right of presenting the appeal on the 19 of June they had also a right of applying for a copy on that day, and then, availing themselves of the provisions of Section 12 of the Limitation Act. of adding to the period of limitation the time taken by them from the 19 of June to obtain the copy. In support of this position the appellants rely upon Pandharinath V/s. Shankar (1901) 25 Bom. 586 and Siyadut-un-nissa V/s. Muhammad Mahmmd (1897) 19 All. 342 and also upon a case in Saminatha Iyer V/s. Venkatasubba Iyer . It seems 1o me that Saminatha Iyer v. Venkatasubba Iyer is distinguishable from this case on the facts for, in that case the judgment against which the appeal was sought to be filed was pronounced on the very last day the Court was sitting, so that it was physically impossible for any application for a copy to have been made on the same day. I have also been referred to other decisions in Madras by the learned Counsel for the appellants, Subramanyam V/s. Narasimham and Ummathu v. Pathumma . In Subramanyam V/s. Narasimham , there is a brief reference to the Allahabad and Bombay decisions but on the facts of that case it was unnecessary to express any agreement with those decisions. In Ummathu V/s. Pathumma , one of the learned Judges appears to approve of the Allahabad and Bombay decisions but the other learned Judge doubts whether they are correct. In Masilamani V/s. Aruunga Mudali (1920) 12 L.W. 460, which has been cited by the learned Counsel for the respondent, another Bench of this Court refused to follow Saminatha Iyer V/s. Venkatasubba Iyer unless the facts of that case were in all respects reproduced. It seems to me that in these circumstances there is no direct authority in Madras which is binding upon me and with respect I am in agreement with Ramesam, J., in Ummathu V/s. Pathumma , in holding that the Allahabad and Bombay decisions referred to by the learned Counsel for the appellants in support of this appeal are wrong.