GAEKWAR, BARODA STATE RAILWAY BARODA Vs. MOHAMMAD HABIBULLAH

JUDGEMENT

(1.) This is an application for leave to appeal to His Majesty in Council, which has been opposed on the ground that it is barred by limitation. The decree against which the appeal has been made was dated 22 December, 1933, and the present application is dated 6 April 1934. The report of the office on it is that it is fifteen days beyond time. Mr. P.L. Banerji, for the appellant, relies on the provisions of Sub-section (2), Section 12, Limitation Act, and points to the fact that the period between 22 January, 1934, when he applied for a copy of the decree, until 20th April 1934 when the copy of the decree was ready would be excluded in computing the period of limitation. Under Sub-section (2), Section 12, Limitation Act: in computing the period of limitation prescribed for an appeal for leave to appeal and an application for a review of judgment, the day on which the, judgment complained of was pronounced end the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed shall be excluded and their Lordships of the Privy Council in Jijibhoy N. Surety V/s. T.S. Chettyar 1928 P.C. 103 have remarked Section 12 makes no reference to the Civil P. C. or to any other Act. It does not say why the time is to be excluded but simply enacts it as a positive direction.

(2.) The application is opposed on the ground that this period cannot be excluded because the time was not re quisite for obtaining a copy of the decree. The reason given for this argument is that in this case a copy of the decree was not requisite, and that this is shown by the fact that the application for leave to appeal was filed on 6 April, whereas the copy of the decree was not obtained until 20 April. It is pointed out that in the Privy Council judgment to which we have referred their Lordships have remarked: If indeed it could be shown that in soma-particular class of cases there could be no object in obtaining the two documents, an argument might be offered that no time could be requisite for obtaining something not requisite.

(3.) As the dates given above show that the application for leave to appeal was filed before the copy was supplied it is argued that the copy of the decree was not requisite, and that the time cannot be excluded.