Chavithianathan Nadar Singarajan Nadar vs Mayhavadiyan Nadar Chandanmariyan Nadar

P.V. 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 be deemed to be filed in time

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

made an application for certified copies of decree and Judgment. On 22nd November, 1924 stamp papers were called for and on the 25th the

stamp papers were furnished by the petitioner. 7th December, 1124 was the date fixed for the petitioner to take delivery of the certified copies.

Meanwhile on 1st August, 1124, the petitioner had filed a review application. That was pending for nearly seven years and it was disposed of

finally on 28th June, 1956. On 9th July, 1956 the second appeal was filed.

Under Sub-section (5) of Section 12 of the Travancore Limitation Regulation, VI 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 1st August, 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Travancore and Cochin stood repealed u/s 6 of that Act and thereafter the Indian Limitation Act applied to that State, and as the Indian Limitation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(5) 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 6 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.