LAWS(PVC)-1927-8-114

GULABCHANDJI Vs. RAO GULABSINGH

Decided On August 12, 1927
Gulabchandji Appellant
V/S
Rao Gulabsingh Respondents

JUDGEMENT

(1.) THE amount or value of the subject-matter of the suit out of which this application for leave to appeal to His Majesty in Council arises is over ten thousand rupees and the amount or value of the subject-matter in dispute in appeal to His Majesty in Council is also over ten thousand rupees. This Court did not affirm the decision of the Court of first instance. The case, therefore, fulfils the requirements of Section 110, Civil P.C.

(2.) BUT the non-applicant raises a question of limitation. Only two dates are material to understand the relevancy of this objection. The judgment of this Court was delivered on 16th December 1926. The present petition for leave to appeal was filed on 28th March 1927, i.e., on the 102nd day. As Article 179, Schedule 2, Lim. Act prescribes a period of 90 days for such a petition, it is contended that the petition is barred by time by 12 days. The applicants explain that the provisions of Article 179 must be read subject to the provisions-of Section 12(2), Lim. Act, which directs that the time requisite for obtaining a copy of the decree appealed from shall be excluded. The applicants have filed a copy of the decree in support of this claim for exclusion of 12 days in the computation of the prescribed period of limitation. It is clear from the copy of the decree filed with the petition that 12 days were required for obtaining it. The sole question, therefore, is whether the provisions of Article 179 should be read as divorced from or controlled by the provisions of Section 12(2), Lim. Act. It is argued on behalf of the non-applicant that as the Civil Procedure Code does not lay down that a petition for leave to appeal to the Privy Council to be valid should be accompanied by a copy of the decree or judgment, as in the case of a memorandum of first or second appeal, the applicants are not entitled to any deduction on account of copying time.

(3.) THERE is no substance in the argument of the learned Counsel for the non-applicant whereas Rule 45, Rules 2 and 3, Civil P.C., contemplate a petition for leave to appeal Section 12(2), Lim. Act speaks of an application for leave to appeal, and that, consequently, Section 12(2), Lim. Act does not help the applicant. If this argument were to prevail, the position would be that the limitation prescribed by Article 179, Lim. Act, would not govern the petition for leave to appeal to Privy Council prescribed by Order 45, Rules 2 and 3, therefore there would be no bar of time. This is nothing but a quibble in words. We, therefore, overrule the non-applicant's objection on the point of limitation and direct that the certificate applied for shall issue. The non-applicant will pay Rs. 50 as costs of this petition to the applicants.