V. R. NEWASKAR, J.

( 1 ) THIS appeal is directed against the order of remand passed by the IVth additional District Judge, Ujjain under Order 41, Rule 23, C. P. C. , and the only question raised in this appeal is that the appeal in the Court below should not have been entertained as the same was barred by limitation.

( 2 ) FACTS material for consideration of the question thus raised are as follows :

( 3 ) APPELLANT Kanhaiyalal filed Civil Suit No. 44 of 1937 and obtained a decree declaring his right to certain properties and also granting injunction against madanlal and his son Ramchandra which was ultimately confirmed by the Indore high Court in Civil Second Appeal No. 116 of 1939. This decree was put into execution. In the course of the execution of that decree the judgment-debtors madanlal and his son Ramchandra raised the contention that the decree did not include the land which is the subject-matter of the present suit. This contention was ultimately rejected in Civil Second Appeal No. 291 of 1950. Thereupon another son of Madanlal namely Ramkrishan filed the present suit claiming a declaration that the decisions in Civil Second Appeal No, 116/1939 and Second appeal No. 291/1950 are not binding upon him inasmuch as he was not a party to that suit, the land was ancestral and the appellant decree-holder had obtained the decree by misrepresentation and fraud. It was also pleaded that his father and brother were grosslv negligent in defending the suit. Claim on the basis of partition and allotment of suit land to him therein was also put forward. The present appellant who was the decree-holder in the earlier litigation contested suit on various grounds including that of res judicata.

( 4 ) THE trial Court heard arguments of parties on the question of res judicata treating it as preliminary. It upheld the contention of the appellant decree-holder on that point and dismissed the suit by his judgment dated 18-4-1957. After the judgment was pronounced vacation intervened. It lasted from 6-5-1957 to 16-61957. On the day on which the Court reopened i. e. , on 17-6-1957 the plaintiff respondent No. 1 applied for copies of judgment and decree. He received them on 24-6-1957 and filed the appeal in the Court below on the same day.

( 5 ) THE lower appellate Court entertained it and after setting aside the decree passed by the trial Court remanded the case for further trial on the ground that the issue of res judicata could not have been determined as a preliminary issue as the same involved questions of fact covered by other issues in the case.

( 6 ) THE appellant-decree-holder has now come up in appeal against the said order of remand.

( 7 ) MR. Pande for the appellant contended that it was not competent for the lower appellate Court to entertain the appeal as that appeal was barred by limitation by reason of the fact that the plaintiff who had filed the appeal there had applied for copy of the trial Court's judgment and decree on 17-6-1957 i. e. , after the period of limitation for the appeal in the Court below, which is 30 days, had expired. Reliance in this connection was placed upon the decisions of the Privy Council in maqbul Ahmad v. Onkar Pratap, AIR 1935 PC 85 and of the Nagpur High Court in umedsingh v. Shankerlal, AIR 1948 Nag 63.

( 8 ) IN order to appreciate this contention it will be useful to refer to Sections 4 and 12 (2) of the Limitation Act. Section 4,

" Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted preferred or made on the day that the court reopens. "

Section 12 (2 ). " In computing the period of limitation prescribed for an appeal, and 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 ex

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