RAMCHANDRARAO Vs. MAYARAM

JUDGEMENT

(1.) THIS revision raises an interesting question of law. The non-applicant, Mayaram, filed Suit No. 62 of 1925, in the Court of the Subordinate Judge, Balaghat, against the applicants. That suit was dismissed on 24th August 1926. Plaintiff applied for a copy of the judgment on 8th September 1926, and obtained the same on 30th September 1926. Thereafter a copy of the decree was applied for on 7th October 1926, and obtained, on 12th October 1926, and the appeal was filed on that day in the Court of the District Judge, Bhandara. The applicants took a preliminary objection that the appeal was barred by time, but the same was overruled and the case was set down for hearing on the merits. It is against this interlocutory order overruling the objection as to limitation that this revision has been preferred.

(2.) THE non-applicant raises objection to the maintainability of the present revision on the ground that it is not the practice of this Court to entertain any revision against an interlocutory order. Suffice it to say that, although this Court does not ordinarily interfere, still, where matters of principle or jurisdiction are involved, this Court does not necessarily decline to entertain it. I, therefore, think that the present revision can lie.

(3.) THE prescribed term of 30 days for filing an appeal against the decree expired on 23rd September 1926; but before such expiry the non-applicant applied for copy of the judgment on 8th September 1926, i.e., on 15th day of the delivery of judgment, when he had still to his credit 15 days out of the prescribed period of limitation (Article 152, Lim. Act). When, however, he obtained the copy of the judgment on 30th September 1926 the 15 days to his credit had expired, and out of the period of 23 days, which he was entitled to exclude as time requisite for obtaining the copy of the judgment, under Clause 3, Section 12, Lim. Act, he had still to his credit a period of 16 days. Before the expiry of this period, i.e., when only six days out of it had expired, he, on 7th October 1926, applied for a copy of the decree and obtained it on 12th October 1926, i.e. when he had still four days to his credit out of the aforesaid period. The appeal was filed on the very day. It will thus be seen that the appeal was instituted, on the 49th day from the date of judgment or, excluding the 23 days time required for obtaining the copy of the judgment only, on the 26th day of the period of limitation prescribed by law. If the period of six days which was required for obtaining the copy of the decree were excluded as he is entitled to exclude it, under Clause 2, Section 12, his appeal would be still within time by six more days. In spite of this state of things, the applicants contended that the appeal was barred by limitation, by reason of the fact that, instead of applying for copy of the decree and of the judgment, simultaneously or at different times within the period of 30 days prescribed by law for appealing, the non-applicant applied first for copy of judgment before the expiry, and then for copy of the decree after the expiry of the said period. It is argued that the non-applicant was not entitled to exclude the time taken up in obtaining a copy of the judgment as he had not first applied for obtaining a copy of the decree. I think this contention is unsound in view of the clear provisions of Section 12, Lim. Act, which entitled him to deduct both the periods of time. As pointed out by Drake Brockman, J.C., in Bagmal v. Firm of Jamnadas Potdar second appeal No. 434 of 1915 it is a well recognized practice for an unsuccessful litigant to obtain copy of judgment first so that he may consider whether he will appeal or accept failure; it is undoubtedly open to a litigant to postpone applying for copy of judgment and decree till the very last day of the scheduled period. Similarly Mittra. A.J.C., in Sheoram v. Chintu second Appeal No. 253-B of 1927 held that the law does not prescribe any particular time for the making of applications for copies or require that copies of both decree and judgment must be applied for simultaneously. Accordingly in both those cases the aggregate period taken in obtaining copies of judgment and decree was excluded even though applications for those copies were made on different dates, they were made before the expiry of the period of limitation prescribed for filing the appeal.