Judgement

Appeal (No. 56 of 1927) by special leave from two decrees of the High Court in its appellate jurisdiction (June 8, 1925, and February 26, 1926), the first dismissing an appeal from a decree of the High Court in its original jurisdiction, and the second refusing an application for review.

9 Law Rep. 55 Ind. App. 161 ( 1927- 1928)

J. N. Surty V. T. S. C hettyar, Firm 20

The only question in the present appeal was whether an appeal by the present appellant from a decree of the High Court in its original jurisdiction dated January 8, 1925, was barred by limitation.

By the Indian Limitation Act, 1908, Sch. I., art. 151, the period allowed was twenty days. Sect. 12, sub-s. 2, provided that in computing the period the " time requisite for obtaining a copy of the decree " should be excluded. By Order xli., r. 1, of the Code of Civil Procedure, 1908, a memorandum of appeal had to be accompanied by a copy of the decree as well as of the judgment; but a rule of the High Court, made under s. 122 of the Code, provided that a memorandum of appeal against a decree of the High Court might be presented without a copy of the decree. The terms of s. 12 and of the rule of the High Court are set out in the judgment of the Judicial Committee.

Affidavits filed by the appellants legal advisers, with a petition for an extension of time, stated that an application for copies of both the judgment and the decree was made on January 8, 1925, the date on which the judgment was delivered ; that on March 25 a copy of the judgment was ready for delivery, but that a copy of the decree was not ready until April 27, when it was obtained on payment of an urgent fee. The affidavits alleged ignorance of the rule of the High Court.

The petition was heard by Robinson C.J. and Brown J. They doubted the alleged ignorance of the rule, and were of opinion that in any case no ground for indulgence had been shown; the appeal was accordingly dismissed. The effect of s, 12, subs. 2, of the Indian Limitation Act was not argued upon the application.

The appellant petitioned for review of judgment on the ground that he was entitled under s. 12, sub-s. 2, to the time requisite for obtaining the copy of the decree, and that consequently the appeal was in time. The Court admitted a review, being of opinion that having regard to the affidavits the alleged error could be regarded as one apparent on the face of the record.

The hearing on review took place before Rutledge C.J. and Chari J., who held that the appeal was. barred. The learned judges were of opinion, shortly stated, that as the rule made it unnecessary to file a copy of the decree, the time occupied in obtaining it could not be regarded as " requisite" within the meaning of s. 12, sub-s. 2. The proceedings are reported at I. L. R. 4 R. 265.

The High Court granted a certificate that the matter was one fit for appeal to the Privy Council, but the appellant having failed to give security within the time requisite, the certificate was revoked.

The Judicial Committee granted special leave to appeal.

1928. Jan. 23, 24. Kenworthy Brown and Parikh for the appellant. Under s. 12, sub-s. 2, of the Indian Limitation Act, 1908, the time occupied in obtaining a copy of the decree was to be excluded, it not being suggested that there was any delay or default by the appellant whereby that time exceeded the "time requisite/ Rule 5 of the High Court rules gave the appellant the privilege of filing a memorandum without a copy of the decree, but did not affect the plain and uncon ditional provision in s. 12, sub-s. 2. That provision would operate even if it was to be assumed that the copy could be required only for the purpose of filing, for the " time requisite " to do an act does not depend upon whether in any particular case the act is required to be done. But, as was pointed out by the Full Bench of the Allahabad High Court in Wajid Ali Shah v. Nawal Kishore (( 1893) I. L. R. 17 A. 213, 216 (F.B).), an appellant may well requi