SALIL KUMAR DUTTA, J.

( 1 ) THIS rule arises out of an application under Section 5 of the Limitation Act, 1963, (Act XXXVI of 1963), for condoning the delay in filing the appeal. The appeal was filed on January 6, 1969, and according to the Stamp Reporter, the appeal would be in time if filed on January 3, 1969, but was out of time for 3 days. The memorandum of appeal was returned to the learned Advocate for the appellants on February 20, 1969, and the application on which this rule has been issued was filed on February 21, 1969.

( 2 ) THE plaintiffs appellants' explanation for this delay is that the judgment under appeal was delivered on November 15, 1968, and the decree was prepared on November 26, 1968. The appellant No. 2 who was in charge of the suit, on receipt of the news of death of his brother-in-law left Calcutta in the third week of November 1968 and returned to Calcutta on December 10, 1968. The application for copy was made by him on December 12, 1968, through Deonandan Ojha, the clerk of their Advocate. The clerk received the certified copy on December 24, 1968, but unfortunately misplaced the same. The Court was closed for the Christmas holidays during December 25, 1968 to January 1, 1969 both days inclusive. "after the reopening of the Court on January 2, 1969, the said Ojha came to know from another Advocate's clerk that he found one certified copy lying on the Advocates' clerks room of the Court on December 24, 1969, and at his request the said clerk brought and handed over the said copy to Deonandan Ojha on the following day on January 3, 1969. The appellant No. 2 received the copy on January 3, 1969, and immediately handed it over to his Advocate, who prepared the memorandum of appeal on the evening January 4, 1969, and the appeal was filed on January 6, 1969, the intervening January 5, 1969, being a Sunday. The allegations are also supported by the affidavit of the said clerk Deonandan Ojha.

( 3 ) THE rule is opposed by the defendant opposite party, who denied the material allegations made in the petition filed by the appellant. It was further contended that the time for filing the appeal expired on December 23, 1968, and as such in absence of any explanation for delay from December 24, 1968, the application for condonation of the alleged delay should be dismissed and this rule should be discharged.

( 4 ) TO appreciate the argument of the parties it is necessary to consider the relevant dates which are as follows: 1. 15-11-68 Date of fragment.

2. 26-11-68 Date of drawing up of the decree

3. 12-12-68 Date of application for copy.

4. 13-12-68 Date of notification for stamps and folios

5. 16-12-68 Date of delivery of stamps and folios.

6. 21-12-68 Date on which copy was made ready for delivery.

7. 24-12-68 Date when copy made over to the applicant.

It will appear therefrom that the time for filing appeal is December 15, 1968 under Section 8 (2) (A) of the City Civil Court Act, 1953 (W. B. Act XXI of 1953) and to this will be added the time for certified copy. According to the appellants, they are entitled to-- (a) 2 days for 12th and 13th December, 1968; (b) 6 days from 16th to 21st December, 1968; (c) 11 days from 15th to 25th November, 1968, the period between the pronouncement of judgment and drawing up of the decree. The limitation on above calculation would expire on January 3, 1969.

( 5 ) THE opposite party has seriously disputed the right of the appellants petitioners to have the period (c) above. It was submitted that on an interpretation of the Explanation to Section 12 of the Limitation Act, 1963, it would appear that the petitioners are not entitled to have the benefit of the period (c) above.

( 6 ) THE appellants have relied on the decision of the Full Bench of the Patna High Court in the State of Bihar v. Md. Ismail, in which case Mahapatra, A. B. N. Sinha JJ. , U. N. Sinha J. , dissenting, held that the time between the pronouncement of the judgment and the drawing up of

Click Here to Read the rest of this document