Wanchoo, C.J.—This is an application by the State of Rajasthan for leave to appeal to the Supreme Court under Arts. 132 and 133 of the Constitution of India.

2. The application has been opposed on behalf of the opposite party on two technical grounds, namely—

(1) that it is barred by limitation, and (2) that it has not been properly presented.

Learned counsel for the opposite party agrees that but for these two technical matters, the case is a fit one for granting leave under Arts. 132 (1) and 133 (1) (c) of the Constitution.

3. The case arose on an application under Art. 226 of the Constitution by Nathmal and Mithalal. That application was allowed on the 19th October, 1951. The present application was filed on the 30th of January, 1952. It is contended on behalf of the opposite party that the application is barred by limitation for two reasons

(1) that the applicant is not entitled to any deduction of time taken in obtaining a copy of the judgment to be appealed from under sec. 12 of the Limitation Act, and

(2) that, in any case, Mithalal having been brought on the record on an application, dated 5th March, 1952, the application was burred against him.

4. Arts. 132 and 133 of the Constitution provide for appeal to the Supreme Court from any judgment, decree or final order of a High Court. The relevant provisions of sec. 12 of the Limitation Act in this connection are these: —

"(2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of Judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded.

(3) Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of the judgment on which it is founded shall also be excluded."

5. The contention on behalf of the opposite party is that this case is covered by sec. 12 (2), and the time taken in obtaining a copy of the judgment cannot be excluded. We have already pointed out that the judgment was delivered on the 19th October, 1951. Application for copy was made on the 15th January, 1952, and copy was delivered; on the 30th January, 1952. The application for leave to appeal was presented on the same day, namely, the 30th of January, 1952. Now if the period spent in obtaining the copy is excluded, the application would be within time on the 30th of January. The question is whether this period can be excluded under sec. 12 (2) or 12 (3) of the Limitation Act.

6. There is difference of opinion among the various High Courts as to whether the time taken in obtaining copy of the judgment can be excluded in cases of application for leave to appeal. Some High Courts, as for example Allahabad, have held that as sub-sec. (2) expressly contains the words application for leave to appeal, while sub-sec. (3) does not, the time spent in obtaining copy of the judgment cannot be allowed in cases of applications for leave Vide Gulabchand and others vs. Peary L I (A.I.R. 1935 Alld., 99). Other High Courts have held that time taken in obtaining a copy of the judgment can be allowed under sub-sec. (3) (Vide A.I.R. 1925 Madras, 1941). We do not think it necessary to decide in the present case whether time for obtaining a copy of the judgment can be excluded in a case where there is a judgment as well as a decree following it. The present is a case, in our opinion, where there is no decree following the judgment of this Court. The application of the opposite party was under Art. 226 of the Constitution of India, and was disposed of by the judgment dated the 19th October, 1951. Both Arts. 132 and 133 allowed appeals from a judgment, decree or final order of a High Court. It may be mentioned that in sec. 109 of the Code of Civil Procedure, the words used were decree or final order, and the word judgment has been added by Arts. 132 and 133 of the Constitution. It se

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