Judgement

Appeal (No. 131 of 1920) from a judgment and decree (January 29, 1919) of the High Court in its appellate jurisdiction affirming an order made by Greaves J. (July 26, 1918).

The respondent sued the appellant in the High Court at Calcutta to recover a sum of Rs.27,443, and on February 14, 1918, obtained ex parte a decree for that sum, the appellants defence having been struck out for default in complying with an order to give inspection of documents. On March 23, 1918, on the application of the appellant, it was ordered that on his furnishing security for Rs.27,000 to the satisfaction of the registrar on or before April 10, 1918, and paying certain costs, the decree should be set aside and the suit restored for hearing. The time was subsequently extended, but the appellant failed to satisfy the registrar that security which he proposed was sufficient.

On July 1, 1918, the appellant applied to the High Court for an order directing the registrar to accept

Law Rep. 49 Ind. App. 307 ( 1921- 1922)

Pramatha Nath Roy V. Lee 130

Rs.27,000 as security from him, and directing the ex parte decree to be set aside. On July 26 the application was heard by Greaves J. and was dismissed.

On August 30, 1918, the appellant filed a memorandum of appeal against the order of July 26 ; leave being granted to him to file it without a copy of that order (as required by the Rules of the High Court), but subject to any objection.

By the Indian Limitation Act, 1908, Sch. I., art. 151, the time for appealing from any decree or order of the High Court in its original jurisdiction is twenty days from the date of the decree or order. By s. 12, sub-s. 2, of that Act the time requisite for obtaining a copy of the decree or order is to be excluded in computing the time for appealing.

The respondent (plaintiff) had applied on August 6 to have the order drawn up ; the draft order was served on the appellant on August 7, approved by him on August 16, signed by the master on August 28, and filed on September 3. The appellant made no application for a copy of the order until September 9.

At the hearing of the appeal the respondent objected that it was barred by art. 151 of the Limitation Act. The learned judges gave effect to that objection, rejecting a contention that the appeal was in time having regard to s. 12, sub-s. 2. They also declined to extend the time under s. 5.

1922. May 12. Dunne K.C. and Macaskie for the appellant. Having regard to s. 12, sub-s. 2, the appeal was not barred by art. 151. The respondent having applied to have the order drawn up, the appellant was under no obligation to apply independently ; in any event he was entitled to the benefit of the delay of one month provided by r. 27 of ch. IV. of the High Court Rules. It is the settled practice of the High Court in applying s. 12, sub-s. 2, to have regard solely to the time when the copy of the decree or order was actually obtained. That practice was based upon the Full Bench decision in Bani Madhub Mitter v. Matungini Dassi.(( 1886) I. L. R. 13 C. 104) [Reference was also made to the Rules of the Calcutta High Court, ch. IV., r. 9; ch. XVI., rr. 22, 24 ; and ch.

XXXII. r. 3.]

E. B. Raikes for the respondent was not called upon.

May 12. The judgment of their Lordships was delivered by

Lord Buckmaster. The appellant in this case is the defendant in a suit which the respondent instituted by a plaint filed on June 24, 1916. The various stages in the litigation are set out in detail in the judgment of the Chief Justice in the Appellate Court at Calcutta, and it is unnecessary that they should be repeated. Among these there was a decree made on February 14, 1918, decreeing in favour of the respondent and against the appellant the sum of Rs.27,443. Application made by the appellant to Greaves J. to set that decree aside was refused on July 26, 1918. The appellant desired to appeal from that refusal, and he produced his memorandum of appeal before the Court on August 30 of that year, on the e