BADSHAH MIYAN Vs. PANDURANG

JUDGEMENT

(1.) MACNAIR , Offg. J.C. 1. The lower appellate Court rejected the appeal on the ground that it was barred by time. The decree of the lower Court was passed on. 20th July 1928. The appellant applied for a copy of the judgment alone on 24th July and obtained the copy on 1st September. On 3rd September 1928 he applied for a copy of the decree which he obtained on 12th October 1928. The appeal was filed on 17th October 1928. The appeal was then in time if the time required for obtaining a copy of the judgment only plus the time required for obtaining a copy of the decree can be-allowed to the appellant. It is, however, not contested that the time required for obtaining copies of both documents is approximately the same as the time required for obtaining a copy of the judgment, and if the time allowed to the appellant is restricted to the time required for obtaining copies of the necessary documents, the appeal must be rejected as barred by time unless the appellant can show that there was sufficient cause for the delay.

(2.) IN Parashram v. Likhan [1911] 7 N.L.R. 67 it was held that if a copy of the judgment alone is first applied for it will be necessary for the appellant to explain to the satisfaction of the Court why a copy of the decree was not applied for at the same time: in the absence of a satisfactory explanation, the time taken to obtain a copy of the decree will not be excluded in computing the period of limitation prescribed for the appeal. Drake Brockman, J.C., who decided this case, subsequently held in an unreported case Bagmal v. Firm of Jamnadas Potdar Second Appeal No. 434 of 1915 decided on 16th October 1916, that in such a case the time taken to obtain a copy of decree might also be excluded if both applications were filed within the period prescribed by law for appealing.

(3.) THE question is one on which there should be an authoritative ruling. An appellant should not be left in doubt regarding the time by which his appeal must be filed. The practice of this Court is opposed to the view taken in a published judgment and the Judge who delivered that judgment has subsequently taken a view which I find it difficult to reconcile with it. I consider, therefore, that the question should be considered by a Bench of three Judges. I therefore refer for the decision of that Bench the following question: