MUKUND MAHTO Vs. NIRANJAN CHAKRAVARTY

JUDGEMENT

(1.) The petitioners in this case were the defendants in the suit. The suit was for ejectment. The suit was dismissed in part by the trial Court. The appeals were filed before the lower Appellate Court one by the plaintiffs and the other by the defendants. The plaintiffs appeal was dismissed and the defendants appeal was allowed and in that way the whole of the suit was dismissed. The plaintiffs- appellants filed two appeals before this Hon ble Court. The respondents did not appear. On October 24, 1933, the appeals were allowed and the suit was decreed in full. On November 16, 1933, the present petitioners applied for a copy of the judgment a November, 25, 1933, they obtained a copy of the judgment. On November 29, 1933, the respondents filed a petition for certificate of fitness of the case for appeal with a memorandum of appeal under c]. 10, of the Letters Patent of the Patna High Court. Under Rule 2, Chap. VII, of the Patna High Court Rules, the period of limitation fixed is 30 days. If the period which elapsed between the application for the copy of the judgment and the receipt of the copy of the same be allowed to the applicants, then the appeal is in time. The question is whether Section 12, cl. 2, of the Limitation Act applies to a case of this nature.

(2.) Section 12, Clause 2, of the Limitation Act, runs as follows: In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded.

(3.) Along with it we have to see Section 5 and Section 29 of the Limitation Act as it stands at present. The amended Section 29, makes Section 12, applicable to all special and local laws. If the High Court Rules comes under the category of special and local laws, Section 29, will apply. In order to come to a decision on this point we must refer to the various schools of thought on this subject. Clause 10 of the Letters Patent makes a declaration by the Judge who passed the judgment that the case is a fit one for appeal, a condition precedent to the filing of an appeal. In plain language, if there is no such declaration, an appeal does not lie. I do not think that this declaration, by the Judge stands on the same footing as "leave to appeal" which is necessary under other provisions of the Civil Procedure Code, for example, leave to appeal to the Privy Council or leave to appeal as a pauper. Then again under the High Court Rules, a copy of the judgment or decree is not necessary for the filing of a Letters Patent Appeal and it may well be argued that if a copy of the judgment or decree is not necessary then the time spent in obtaining those copies should not be excluded from the period of limitation. On the other hand it has been held in some cases that under the rules it may or may not be necessary to file a copy of the judgment or a decree along with the memorandum of the appeal; out as it is not expected that the parties would remember all that is said in the judgment simply by listening to it at the time of delivery, it is necessary that they must get an opportunity of looking at the judgment before they make up their minds to file an appeal, And therefore, the time required for the copy of the judgment should be excluded from the period of limitation. In the present case a copy of the judgment was not necessary. The rules of the High Court do not come under the category of special or local laws. By "special or local laws" is meant, I consider special or local legislative enactment for special or local circumstances. In the case of Section Abdul Ganny V/s. I. M. Russet 127 Ind. Cas 161 : AIR 1930 Rang 228 : Ind. Rul. (1930) : Rang. 337 : 8 R 380., Cunliffe, J. while discussing a similar question held that the rules made by a High Court under its Letters Patent and by virtue of the Civil P. C. do not come under the expression " special of local law." The period of 30 days allowed for filing the appeal seems to be an absolute period of limitation and, therefore, this appeal is time-barred. The respondent will get a gold mohur from the appellants by way of costs. Courtney Terrell, C.J.