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Judgment
Mukerji, J.—This is an application asking to extend the period of limitation u/s 5, Lim. Act, in the case of a second appeal.
The appeal itself was filed just within time, but there was no copy of the first Court judgment attached to the memorandum of appeal. This copy was filed on 23rd April 1928.
The applicant made his application for a copy of the first Court''s judgment on 23rd February 1928 and the copy was not ready till 16th April 1928, i.e., it took nearly two months to prepare the copy. If we exclude this period the appeal would be amply within time.
It is, however, contended on behalf of the respondent, under the authority of Narsingh Sahai v. Sheo Prasad [1917] 40 All. 1, that u/s 12, Lim. Act, the period occupied in obtaining a copy of the judgment of the first Court cannot be excluded. This may be perfectly good law but the fact does remain that the High Court insists on a copy of the first Court''s judgment being filed, and it is therefore necessary to allow time to obtain that copy. If that allowance of time cannot be given u/s 12, Lim. Act, it must be given u/s 5 of the same Act.
The fact of the matter is that the legislature does not contemplate the filing of a copy of the first Court''s judgment. If it did so contemplate, it would surely have allowed the time occupied in obtaining a copy, to be added to the period of limitation.
I have no hesitation in holding that the time should be granted and the appeal should be admitted u/s 5, Lim. Act. I order accordingly.