KEDAR NATH Vs. NANAK

JUDGEMENT

(1.) THE question for consideration in this appeal is, whether the appeal filed in the Court below was filed within time. THE order appealed against was passed on the 7 January 1921 but by a mistake of the office, no formal order was prepared. On the same day the plaintiff applied for a copy of the judgment and that copy became ready for delivery and was delivered to him on the 14 January 1921. He filed an appeal on the 4 February 1921 accompanied by a copy of the judgment, but without any copy of the decree, for no decree was then in existence. THE Appellate Court brought to his notice that a copy of the decree should also have been filed. On the 10 February 1921, he applied for a copy of the decree. On 15 February 1921, the formal order was drawn up and a copy of that formal order became ready on the 17 February 1921 and was delivered to him two days later. THE reason for the delay in delivery is not ascertainable. On the 23rd February 1921 he filed the copy of the formal order in the appeals but the Court below held that it was filed too late and the appeal was barred by time. Under Section 12 of the Indian limitation Act (IX of 1908), the appellant is entitled to have excluded the time spent in obtaining a copy of the decree and also that of the judgment. Deducting the time spent in obtaining the copy of the judgment, the limitation for filing the appeal did not expire till the 4 February 1921. Before that date he had applied for a copy of the formal order. He could not have applied earlier with any benefit because the formal order was prepared while the application for a copy of it was pending. And adding the time spent in obtaining the copy of the formal order the appeal was clearly within time, As pointed out in Kamala Dasi V/s. Tarapada Mukherji 14 Ind. Cas. 1006 : 15 C.L.J. 498, in cases in which an order is not drawn up, it is sufficient for the appellant to attach to his memorandum of appeal a copy of the judgment alone and time can run from the date of the judgment; but were a separate order is drawn up, copies of both the judgment and the formal order ought to be attached to the memorandum of appeal and the appellant is entitled to a deduction of the time spent in obtaining copies thereof. In Mangal Singh V/s. Hirda Ram 49 Ind. Cas. 673 : 19 P.R. 1919 it was held that, where no format order has been prepared, the Appellate Court should adjourn the appeal until the copy of the decree is forthcoming. THE decision in Moot Raj V/s. Niadar Mal 55 Ind. Cas. 315 : 18 A.L.J. 208 : 2 U.P.L.R. (A.) 54 : 42 A. 260 does not apply because there the period of limitation for filing the appeal had run out and there is nothing to show whether a copy of the decree was or was not obtainable. THE appeal must, therefore, be allowed and the case is remanded to the lower Appellate Court with a direction to reinstate it to its original number and to dispose of it according to law. THE costs of this appeal will abide the result.