MABAREK FAKIR Vs. BHUBAN MOHAN GHOSE

JUDGEMENT

(1.) In the suit out of which this appeal arises the plaintiffs sued for a declaration of their title to and recovery of possession of a certain property. The Subordinate Judge decreed the suit in favour of the plaintiffs with the exception of plot No. 2 of the settlement map. Against this decree the defendant appealed, and the learned District Judge who heard the appeal held that it had not been brought in time and, therefore, was time-barred He further held that the appellant had not shown sufficient cause for admitling the appeal under Section 5 of the Limitation Act. The appellant has appealed to this Court and he contends that the appeal was within time.

(2.) Now, it would appear that the judgment in the case was delivered on the 27 of September, 1923. The decree was not actually signed until the 8 October. On the 9 of October, the Civil Courts closed for the annual vacation and they re-opened on the 12th November. The appeal was actually filed on the 10 December. A few more dates are also necessary. On the 2nd October, the appellant applied for a copy of the judgment and on the 5 October it was notified to him what folios and stamps were required. He supplied these folios and stamps on the 12 and 13 November, a copy of the judgment was actually delivered on the 13ch November. With regard to the decree, no application for a copy of it was made until the 3 December, and the copy was supplied on the 6 December. The limitation must be taken to run from the date of the decree and the date of the decree in accordance with the provisions of the C.P.C. is the date of the judgment; therefore, the due date for filing the appeal was the 28 October. The Courts, however, were closed on the 28 October, Section 4 of the Limitation Act provides that " where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens." Therefore, clearly the appeal should have been preferred on the 12 of November. It was not, however, within the power of the party to file the appeal then because he had not applied for a copy of the decree. Under Section 12 of the Limitation Act he was entitled to deduct from the period the time requisite for taking a copy of the decree, or in other words to tack it on to the period of limitation. Now he applied for a copy of the decree on the 3 December, and was supplied with a copy of the decree on the 6 December. Therefore, the time requisite for obtaining a copy of the decree was four days. If he is allowed to tack that period to the 12th November, this would bring the last date for filing the appeal to the 16 November. Therefore, clearly the apneal filed on the 10 of December, would be time-barred. If, however, (without deciding so) he is further allowed to add on the period between the delivery of judgment and the signing of the decree by the Court he would be able to add on 11 days more which would bring him to the 27 November. Mr. Dass has further contended that he is entitled also to add on the time requisite for taking a copy of the judgment. Without deciding as to whether that period is to be counted separately from the period necessary for obtaining a copy of the decree even if he is allowed to add on this period he would still be out of time. He applied for a copy of the judgment on the 2nd October, and on the 5 of October, he was informed of the necessary folios and stamps to be supplied. He did not until, apparently, the 12 November, supply the necessary folios and stamps. The copy was actually delivered on the 13 November. If, therefore, he is allowed to add five days more it would still be seen that his appeal was preferred beyond the period of limitation.

(3.) It is, therefore, quite clear that the appeal was time-barred and the learned Judge was quite right in dismissing the appeal.