SARAT CHANDRA KHAN Vs. UPENDRA NATH BOSE

JUDGEMENT

(1.) The first question is whether this appeal was brought out of time. The order appealed from was pronounced on the 26 June 1926 and the memorandum of appeal was filed on the 6 November 1926, the last day of the long vacation. The law gives to an appellant twenty days excluding the time requisite for obtaining a copy of the order appealed from. Oases which show how this rule is to be applied to the rules and practice of this Court on the Original Side are Nibaran V/s. Martin & Co. [1920] 32 C.L.J. 127, Pramatha 8 Lee [1919] 23 C.W.N. 563, Gobind V/s. Official Assignee , Kamrudin V/s. Mitter .

(2.) These decisions show (i) that a copy of the order must be applied for within twenty days of its being pronounced and (ii) that it will be of no avail to apply for such copy unless within the twenty days a requisition to draw up the order has been given either by the appellant or by some other party to the cause. Even if these conditions are complied with the time to be excluded will not necessarily be the whole of the time which in fact elapsed between the date of the application for a copy and the date on which the copy was furnished. Under the Original Side rules, there are certain points at which the time to be occupied by the process of obtaining a copy of the order is in the control of the appellant to some extent : (a) the draft of the order has to be approved or amended, (b) The fees for the copy order have to be paid in stamps; (c) the order when ready has to be taken up. Any failure in reasonable diligence which produces unnecessary delay at one or more of these stages will disentitle an appellant to claim the whole of the time actually occupied in obtaining the copy of the order. The time unnecessarily occupied is not time "requisite" within the meaning of Section 12 of the Limitation Act, 1908.

(3.) There is, however, another matter as to which time is within the control of the appellant. This appears by Section 27 of Ch. 16 which gives to any party a right to apply to have the order drawn up if the party in whose favour it was made, does not do so within four days. The present case requires us to consider this. Application for a copy was made on the 29 June, but a requisition to draw up the order was not given till 15 July. Meanwhile, of course the application for a copy was entirely ineffective.