GULAB CHAND Vs. PEARY LAL

JUDGEMENT

(1.) A preliminary objection is taken to this application for leave to appeal to His Majesty in Council that it is barred by time. Judgment in this case was pronounced by the High Court on 23 January 1934, and a decree was prepared later on. An application for a copy of the decree was filed on 28 April 1934, and the copy was ready for delivery on 16 May 1934. This application for leave to appeal was filed on 21 July 1934. It is therefore obvious that if the time required for obtaining of the decree be not excluded from the period of limitation prescribed for such applications, the application is beyond time. Indeed the time expired before the long vacation commenced, and therefore the applicant is not entitled to add to that period the period of the long vacation.

(2.) The learned advocate for the applicants contends before us that under Section 12(3), Limitation Act, he is entitled to exclude the time requisite for obtaining a copy of the judgment also in addition to the time requisite for obtaining a copy of the decree. He has to concede that there is a ruling of this Court in Wilayati Begam V/s. Jhandu Mal-Muhu La 1926 All. 286, which is directly against him. But he urges before us that the Patna High Court and the Madras High Court have taken a contrary view and that therefore the matter may be referred to a higher Bench.

(3.) In Mahabir Prasad Tiwari V/s. Jamuna Singh 1922 Pat. 255, Dawson Miller, C.J., of the Patna High Court in delivering he judgment of the Court in which Ross, J., concurred undoubtedly held that Sub-section (3) of Section 12 was applicable. But the learned Chief Justice also referred to the practice of his Court under which it was necessary that a copy of the judgment from which it is sought to appeal should always be filed with the petition applying for leave. This view appears to have been adopted by the Madras High Court in In re Secy. of State 1925 Mad 1241. The learned Judges remarked: But we think that though Sub-section 3 does not in terms apply, the language used in it really covers the present case. and put an interpretation on Sub-section (3) so as to give it a wider scope and make it applicable to all the categories mentioned in Sub- section 2. The main basis of the decision was that a proper application for leave to appeal cannot be drawn up unless a copy of the judgment has been obtained. On the other hand in Wilayati Begam V/s. Jhandu Mal- Muhu La 1926 All. 286, it was distinctly held by this Court that the language of Sub-section (3) when contrasted with Sub-section (2) clearly contemplates the exclusion from the scope of Sub-section (3) of the case of an application for leave to appeal and that in this Court it is not at all necessary that the applicant should at the time of filing his application for leave file also a copy of the judgment on which the decree is founded. A similar view was in the same year expressed by a Division Bench of the Sind Judicial Commissioner's Court in Nur Muhammad V/s. Hassomal 1925 Sind 60.