JUDGMENT

Simpson, A J C - Judgment.-This is a second appeal. For the purposes of my present decision it is not material what the suit was. As a matter of fact it was a suit for partition, and I believe the substance of the first appeal was an objection to the actual partition by metes and bounds, which had been suggested by a Commissioner appointed by the Court. The appeal came before the learned District Judge of Fyzabad and he passed judgment in these words. "I have examined the record and find that the appeal is clearly beyond time, and I therefore reject this appeal summarily as being time-barred."

2. This order was passed without fixing any date for hearing the appellant, and without hearing the appellant. The date of this judgment is 30th August 1923. The appellant applied in review on the 1st of December 1923. That application was dismissed on 19th January 1924 on two grounds. The first ground was that no such application lay, because the conditions laid down in Order 47, Rule 1 had not been complied with. The second reason was that the District Judge came to the conclusion, after hearing applicant's pleader, that the applicant had been beyond time. The present appeal was filed on the 19th January 1924.

3. The first objection taken against the present appeal is that it is beyond time. On this point 1 hold that it is within time. The application for review was, in my opinion, a proper application. The learned Judge has not specified in what respect the provisions of Order 47, Rule 1 were cot complied with. The applicant considered himself aggrieved by a decree from which no appeal had been preferred. The decree he complained of was made, in my opinion, in contravention of the law, seeing that under Order 41, Rule 11, a Court is bound to fix a date for bearing the appellant, and to hear him if he appears on that date, I do not think the judgment could be supported as having been made under Order 41, Rule 3, because the memorandum of appeal was in order, and at least purported to be within time. I therefore proceed to hear this appeal.

4. It might be open to me to proceed merely on the ground that the learned District Judge was wrong in his procedure, and ought to be directed now to fix a date for hearing the appellant or his pleader and then to pass orders according to law. But the learned Judge, in hearing the application for review, pronounced a decision with regard to limitation, and the question of limitation has been argued before me. I prefer, therefore, to decide the question of limitation now.

5. The date of the judgment of the first Court was 30th May 1923. The period of limitation is thirty days, which period would end on the 29th of June 1923. The appeal was in fact presented on the 27th of August 1923 (the date of the 26th in the affidavit is a slip). The period spent in obtaining a copy is to be computed from the 2nd July 1923, when the application for copy was made, to the 14th of August 1923, when the copies were posted to the appellant. The appeal is therefore beyond time according to the rules of computation laid down in Section 12 of the Limitation Act. But these rules operate very harshly against the appellant in the present case. The case is one for extension of time under Section 5 of the Limitation Act. Judgment was delivered on the 30th of May. The 31st was the last working day before the vacation. If the law is applied strictly, the appellant had to read and consider the judgment to come to a decision whether he would or would not appeal and file an application for copy of the judgment and decree all in one day. It is unreasonable to expect him to get so much down in the time. Ordinarily the legislature allows a month for this purpose. This period may be out down to any reasonable limit, but it is not reasonable to cut it down to twenty-four hours. Accordingly, I accept the application for copy made on the 2nd of July, which was the very day on which the Courts opened after the vacation, as equival