BRIJ MOHAN LALL, J.

( 1 ) THIS is a special appeal by the State Government and the Director of Elections against a decision of a learned single Judge of this Court quashing under Article 226 of the Constitution the election of the Chairman and members of the Town Area of Kerakat. The judgment appealed against was delivered on 22-4-1955. A decree was prepared by the office. An application for a copy of the decree was made on 13-5-1955. The copy was ready for de-livery on 22-8-1955. The delivery was actually taken by the appellant on 24-8-1955. The memorandum of appeal was presented on 23-9-1955. The question that has arisen before us is whether the memorandum of appeal wag presented with-in time. The period prescribed for preferring a special appeal by Rule 10 of Chapter IX of the Rules of Court Vol. I is 60 days.

( 2 ) IT may be pointed out at this stage that the appellants have, by way of precaution, made an application for condonation of delay also under Section 5, Limitation Act but that application is not before us today. The learned counsel contends that the appeal is within time and seeks a decision on that issue.

( 3 ) ON 25-1-1956 also this case was listed before us, and after hearing the learned counsel for the appellants only we held that it was within time. It now appears that the learned counsel for the respondents had put in appearance before that day but his name was not printed in the list. The result was that he did not notice the case and the hearing was ex parte. He made a grievance of the fact that the order was passed without hearing him. We, therefore, set aside the order and gave him an opportunity of being heard. We have now heard both sides and we have to determine the question mentioned above.

( 4 ) IT is common ground between the parties that if the time between the making of the application for the copy of the decree and preparation of the said copy be excluded from computation the appeal is within time. But if that period cannot for any reason be excluded it is beyond time.

( 5 ) THE learned counsel for the appellant relies on Section 12 (2), Limitation Act which says that:

"in computing the period of limitation prescribed for an appeal. . . . . the time requisite for obtaining a copy of the decree, sentence or order appealed from. . . . . shall be excluded. "

and cites the recent decision in Sehat All Khan v. Abdul Qavi Khan, 195c All 273 ( (S) AIR v43) (PB) (A ). In this Full Bench a special appeal had been preferred against the judgment of a single Judge of this Court delivered in a second appeal. A decree had been prepared in second appeal but the appeal had been filed under Chapter VIII Rule 5 which permits appeals against judgments only. The full Bench held that the time taken in obtaining the copy of the decree could be excluded from computation.

( 6 ) THE arguments advanced by the learned counsel for the respondents is that under Section 12 (2) the time requisite for obtaining a copy of the decree "appealed from" can be excluded. He maintains that since the special appeal under Rule 5 of Chapter VIII was not against the decree but against the judgment the benefit of Section 12 (2) cannot be claimed by the appellants. If this argument is correct the view of the Full Bench should have been different. Before the Full Bench also the appeal was a special appeal under Chapter VIII Rule 5 and was an appeal against a judgment. The time required for obtaining a copy of the decree was excluded. In the circumstances we find no force in the contention that since the appeal is against the judgment as distinguished from the decree the time spent in obtaining a copy of the decree cannot be excluded. We are bound by the view taken by the Full Bench and have to follow it.

( 7 ) THE next contention put forward by the learned counsel for the respondent is that under the rules of Court no decree is required to be prepared in a writ matter and that if the office unnecessarily prepared a decree it could not, by doi

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