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Judgment
The question is one of limitation. The appeal is against the decree for partition. The judgment of the lower Court was delivered on the 18th November 1920. An application for copy of the judgment was made on the 4th February 1921, the 5th February 1921 was fixed for notifying the requisite number of stamps and folios which were supplied on the 8th February 1921. The copy was ready for delivery on 10th February and was delivered on the 11th February 1921.
An application for copy of the decree according to the note in the tabular statement on the back of the decree was made on 17th January 1923, the requisite stamps and folios were supplied on the 18th, 24th, 29th and 31st January, the copy was ready for delivery on 3rd February, and was delivered on the 6th February Computing the time taken in obtaining copies of the judgment and the decree from the aforesaid dates the Stamp Reporter reports that the limitation expired on 27th February 1923. The appellant filed an application on the 12th March praying that the period between the delivery of judgment and the preparation and signing of the decree be excluded from the period of limitation prescribed for filing the appeal stating that if this be done, the appeal will be well within time.
Now the question is whether the aforesaid prayer can be granted.
It appears from the certified copies of the previous applications filed by the appellant for obtaining copy of the decree that an application for copy of the decree was made made by him on the 9th March 1922, but the copy was not granted with a note on the application that the Commissioner''s fee was not deposited and therefore no decree was prepared. Similar applications were made on the 5th September and 6th December 1922, with similar orders. Therefore the appellant tried to obtain copy of the decree but he could not get it inasmuch as no decree was prepared and signed by the Court. The decree was prepared and signed on 12th December 1922. The appellant relies upon a Full Bench decision of this Court in Ram Asray Singh v. Sheo Nandan Singh [1916] 1 P.L.J. 573: 1 P.L.W. 35: 35 I.C. 868 (F.B.) where it was held that u/s 12 of the Limitation Act, 1908, an appellant is entitled to deduct the time between the delivery of judgment and the signing of the decree in computing the period of limitation prescribed for an appeal. This decision was dissented from in a subsequent Full Bench case; Jyotindra Nath Sarkar v. The Lodna Colliery Co. Limited [1921] 6 P.L.J. 350: 2 P.L.T. 361: 62 I.C. 649 (F.B.) and the learned Vakil on behalf of the respondent relies upon this case. In that case it was held that (1) the time requisite for obtaining a copy of the decree within the meaning of Section 12 of the Limitation Act, 1908 does not begin until the actual application for a copy has been made, and further that (2) if the appellant does not apply for a copy until after the expiration of the period prescribed by the Limitation Act, provided copies were obtainable within that period he is not entitled to deduct the time between the actual signing of the decree and the delivery of judgment. This ruling obviously does not apply to the present case, inasmuch as copy of the decree was not obtainable until after the 12th December 1922 when the decree was signed and the application for copy was made long before the decree was ready and signed. In the aforesaid Full Bench case the decree was drawn up and signed on the 18th August 1920 and the application for copy was not made until the 3rd January 1921. Therefore on both grounds: that the copy of the decree was not obtainable before the 12th December 1922 and that the application for copy of decree in this case was made long before the aforesaid date of preparation and signing of the decree, the decision is not applicable to the present case.
The appellant is therefore entitled to computation of the period of limitation from the date of the signing of the decree In any view of the case he is entitled to enlargement of the time for filing the appeal.
The appeal is therefore Sled within time.
The application is allowed. In the circumstances of the case we make no order as to the costs of this application.