1. This is an appeal similar to Regular S.A No. 535 of 1947 & is directed against a judgment & decree of the same learned Senior Subordinate Judge of Ludhiana who in this case also dismissed the appeal of the applt. before him as being barred by time.
2. In this case the judgment of the trial Ct. was delivered on 3-8-1946 & the appeal was filed on 8-10-1946 in the Ct. of the Senior Subordinate Judge Ludhiana. As the original judgment was of the Subordinate Judge, Samrala, an appln. for copies was made on 5-8-1946 at Samrala.
3. This appln. was returned on 21-8-1946 & was re-filed in Ludhiana on 22-8-1946 & the copies were ready on 17-9-1946 in this case also there is the affidavit & the statement of the Copying Clerk that an appln. for copies was made to the Copying Agency at Samrala, & for reasons that I have given in Regular S.A No. 535 of 1947 the time which was spent in trying to obtain copies at Samrala must be allowed to the applt.
4. Another complication has arisen in this case because the copies were applied for not by the applt. herself but another person & the learned Judge has held that the time spent in obtaining such copies cannot be allowed under Section 12 of the Limitation Act. This finding of the learned Judge in my opinion appears to be erroneous. In Section 12(2) of the Limitation Act it is provided:
“In computing the period of limitation prescribed for an appeal… the time requisite for obtaining a copy of the decree appealed from or sought to be reviewed, shall be excluded.”
5. There is nothing in S. 12 which limits the period to that time alone which is taken by the applt. himself in obtaining such a copy. The time which can be excluded is the time taken for the copy which is filed. As a matter of fact, when I was at the Bar I used to notice that copies were always applied for by our clerks. The applns. were neither signed by the advocates or pleaders or the clients, & to my knowledge such an objection was never raised that the copy has not been applied for by the client himself or his authorised agent. In Chandu v. Mast Ram, A.I.R(21) 1934 Lah. 135 : (149 I.C 1127), Bhide, J., held that the appln. for copies need not be made by the applts. in person, & the same was held in Ram Kishun v. Kashi Bai, 29 All. 264 : (4 A.L.J 152) and Aminuddin Sahib v. Pyari Bi, 43 Mad. 633 : (A.I.R(7) 1920 Mad. 159). In the latter case a Division Bench of the Madras H.C held that Page: 389an applt. who is required to file with his memorandum of appeal a copy of the decree appealed from, may file a copy obtained by another party; & under Section 12(2) of the Limitation Act, he is entitled to a deduction of time taken to obtain that copy. I am in respectful agreement with the rule laid down in these various cases & I am of the opinion that a copy which has been obtained by a person other than the applt. & is then used by the applt. for the purposes of filing an appeal does give to the applt. the right under Section 12(2) of the Limitation Act, to deduct the time taken in obtaining that copy.
6. In the result, this appeal is allowed. The applt. will have her costs in this Ct. The appeal must, therefore, be remanded under O. 41, R. 23 of the CPC to the learned Senior Subordinate Judge for disposal in acoordance with law. The parties have been directed to appear before the learned Senior Subordinate Judge, Ludhiana, on 11-12-1950. Court-fee on appeal be refunded to the applt.
K.S
7. Appeal allowed.
Comments