Chavithianathan Nadar Singarajan Nadar vs Mayhavadiyan Nadar Chandanamariyan Nadar

-Rajamannar, C.J.—This is an application to excuse the delay in filing a second appeal. Actually the question which falls for decision is

whether the second appeal has not been filed in time. Learned counsel for the petitioner contended that it must he deemed to be filed in time

because of the following facts. The appeal was disposed of by the lower appellate. Court on 7-5-1124 M. E. On 20-5-1124 the petitioner made

an application for certified copies of decree and judgment. On 22-11-1124 stamp papers were called for and on the 25th the stamp papers were

furnished by the petitioner. 7-12-1124 was the date fixed for the petitioner to take delivery of the certified Copies. Meanwhile on 1-8-1124, the

petitioner had filed a review application. That was pending for nearly seven years and it was disposed of finally on 28-6-1956. On 9th July 1956

the second appeal was filed.

Under Sub-section (5) of Section 12 of the Travancore Limitation Regulation, VL of 1100, in computing the period of limitation prescribed for

an appeal, the time during which an application for review of judgment presented before the expiration of the time allowed for appeal was pending

shall also be excluded. In this Case the review application was filed on 11-8-1124 M. E., admittedly before the expiration of the time allowed for

appeal. That review application was pending, and if the period occupied by the pendency of the review application is excluded, then it is common

ground that the appeal is filed in time on 9th July 1956, But it is pointed out on behalf of the respondent that by reason of Act III of 1951, called

the Part B States (Laws) Act, 1951, which came into force on 1st April 1951, the Limitation Regulation in force in the Part B State of Travancore

and Cochin stood repealed u/s 6 of that Act and thereafter the Indian Limitation Act applied to that State, and as the Indian Limitation Act does

not contain any provision similar to Section 12(S) of the Travancore Limitation Regulation, the petitioner will not be entitled to exclude the period

for which the review petition was pending in computing the time for the presentation of the second appeal. Undoubtedly on and from 1st April

1951, the Indian Limitation Act must be deemed to have come into force in the Travancore-Cochin State and as limitation pertains to procedural

''law generally speaking, any proceeding instituted after the coming into force of the Indian Limitation Act would be governed by the provisions of

that Act. But we have certain saving provisions in Act III of 1951. There is a proviso to Section 8 which inter alia says that the repeal shall not

affect

(a) The previous operation of any law so repealed or anything duly done or suffered thereunder; or

(b) any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed or

(d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as

aforesaid, and any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or

punishment may be imposed as if this Act had not been passed."" The petitioner''s contention is that when Act III of 1951 came into force, the

petitioner had acquired a right to exclude the period occupied by the review petition in computing the period for filing a second appeal and that

right would not be affected by Act

III of 1951. The petitioner''s advocate also relied on Clause (d) which must be read along with Clause (b). Learned counsel for the respondent

was really unable to-meet the point. In the absence of any specific provision in Act III of 1951 in the schedule relating to the Indian Limitation Act

prescribing any time within which an appeal should be filed after the coming into force of Act III of 1951, we are of opinion that the petitioner

cannot be deprived of the right which he undoubtedly had on the date of the coming into force of Act III of 1951, of waiting till the disposal of the

review petition, to file the second appeal. That right has not been expressly or impliedly taken away. It remains. We therefore hold that the second

appeal filed on 9th July 1956 was in time.

If for any reason this view of ours is not right, we have no hesitation to say that in the special circumstances of this case, even if there be delay,

the delay ought to be, and is hereby excused.