B MAHALAKSHMAMMA Vs. CKTHIRUNAVUKKARASU MUDALIAR

JUDGEMENT

(1.) This is a petition to excuse the delay in presenting the appeal against the decree in O.S. No. 44 of 1942 on the file of the City Civil Court, Madras. The judgment was pronounced on 17 March 1943. The very next day a copy application was made. Stamp and printing charges were called for on 3 April 1943, and the stamp papers were filed on 5 April 1943. The printing charges had to be deposited on 10 April. 11 April was a Sunday and therefore on 12 April a petition had to be filed for extending the time because the office insisted on such a petition. Notice had to go and the petition was finally ordered on 15 July 1943. The charges were paid on the same day and copy obtained on 5 August 1943. This appeal was filed on 14 August 1943.

(2.) If the time taken for obtaining copy of judgment is taken into consideration the appeal is in time. It is contended for the respondents that under Section 12 (2), Limitation Act, it is only the time taken for obtaining copy of the decree that could be excluded in the case of applications for leave to appeal, and therefore the time taken for obtaining copy of judgment ought not to be excluded from the calculation. But then, in 48 Mad. 9391 it was pointed out that the language of Section 12 (3) is clear that in the case of an application for leave to appeal to thePrivy Council the time taken for obtaining copy of the judgment should be excluded in calculating the period of limitation. Applications for leave to appeal to the Privy Council come under Sec. 12 (2) as also applications for leave to file an appeal in forma pauperis. The decision in that case will apply to the facts in this case also, and the time taken for obtaining copy of the judgment will be excluded. If it is not to be excluded I think it is a fit case for exercising the discretion of the Court and excusing the delay. There was a delay of only one day in depositing the printing charges and the party had to file a petition for extension of time, which was contested, and it was only the contest that kept the petition pending till 15th July. There has been no other laches on the part of the petitioner. With an application for leave to file an appeal the appeal memorandum has to be filed, and that could not be prepared without a copy of the judgment.

(3.) In these circumstances, if the appeal is not in time, the delay is excused.