Chamier, C.J:— The question for decision in this appeal is, whether the appellants' appeal to the lower appellate Court was within limitation. On 27th September, 1913, the respondents obtained a decree in the Court of a Munsif. Strongely enough, the decree of the Court was prepared and signed on the same day. The annual vacation began on the following morning and the Court re-opened on 1st November. The appellants applied for a copy of the judgment on 3rd November and for a copy of the decree on 13th November. Both copies were ready and were delivered on 21st November. An appeal was filed by the appellants on 28th November. The Sub-ordinate Judge to whom the appeal was transferred for disposal, dismissed it on the ground that it had been filed beyond time, and that the appellants had failed to show sufficient cause within the meaning of Section 5 of the Lim. Act, for not preferring the appeal within time. The appellants filed a second appeal in this Court. A learned Judge of this Court dismissed the appeal, holding that as the Sub-ordinate Judge had considered all the circumstances of the case and had in the exercise of his discretion come to the conclusion that the appellants had not established sufficient cause within the meaning of Section 5 of the Lim. Act, this Court could not interfere. It is now settled by a long string of authorities that where a Court after considering all the circumstances of the case has come to the conclusion that sufficient cause has or has not been established for not filing an appeal within time, the High Court in second appeal will not interfere. In my opinion, the learned Judge was right in following those authorities.
2. But it is contended before us that the time during which the Court was closed should be treated as part of the time requisite for obtaining a copy of the decree within the meaning of Section 12 of the Lim. Act. This point was not taken either before the Sub-ordinate Judge or before the learned Judge of this Court, but I think that we ought to consider it. The appellants rely upon the decision of the Madras High Court in Saminath Ayyar v. Venkatasubba Ayyar(1). In that case facts were practically the same as in the present case, except that the appellant applied for a copy of the decree on the day on which the Court re-opened after the vacation. It was held that the time during which the Court was closed was part of the time requisite for obtaining a copy of the judgment. The respondents rely upon the case of Tanjore Palace Estate v. Andi Ramiah Chetty(2), in which two other Judges of the same Court declined to hold that vacation was part of the time requiste for obtaining a copy of the judgment delivered five days after the Court closed for the vacation as the appellant had not applied for a copy till 17 days after the re-opening of the Court. They referred to the case of Saminatha Ayyar v. Venkatasubba Ayyar with approval as I read the judgment, but distinguished it from the case before them on the ground that the appellant had not applied for the copy till 17 days after the re-opening of the Court. They concluded their judgment with the observation that they could see no reason for excluding the period during which the Court was closed, except upon grounds which would entitle an appellant to demand the exclusion of every holiday which occurred during the period allowed for the presentation of his appeal.
3. Different High Courts have laid down different general rules for determining the amount of time requisite for obtaining copies. For example, a Full Bench of the Calcutta High Court held in Bani Madhab Mitter v. Matungini Dassi(3) that the time which elapses between the delivery of the judgment and the signing of the decree is part of the time requisite for obtaining a copy of the decree, whether or not the appellant applies for the copy before the decree is signed; while a Full Bench of the Allahabad High Court held in Bechi v. Ahsanulluh Khan(4) that the time requisite for obtaining a copy does not begin till an application for the copy is made. These and a few other decisions of general application have settled the practice on important points for the provinces subject to those Courts and they suffice for the great majority of cases. But so far as I am aware, no High Court has attempted to lay down any hard and fast rule which shall determine exactly for all classes of cases the amount of time requisite for obtaining a copy.
4. Subject to any general rules which may have been laid down, it appears to me that the question in each case is, what was in fact the time requisite for obtaining the copy? The decision in Saminatha Ayyar v. Venkatasubba Ayyar rests avowedly on the special circumstances of the case. So also does that in Khub Chand v. Harmukh Rai(5). I therefore ask myself the question, what was the time requisite for obtaining the copy of the decree in this case? The day on which the judgment was pronounced and the decree signed in this case must admittedly be excluded. So far as I know, it is the universal practice to exclude the day on which the case was decided for all purposes connected with the calculation of limitation for an appeal. It is common ground that from 28th September to 31st October (both days included) the appellants could not have applied for a copy either of the judgment or of the decree. That being so, it appears to me to follow that the whole of the time which elapsed from the delivery of the judgment to the re-opening of the Court on 1st November 1913, was part of the time requisite for obtaining copies of the judgment and decree, and that this must be so whether the appellant applied for copies on the day on which the Court re-opened or on some later date. In fact it appears to me that the date on which the application for copies was made, has in this case no bearing on the question whether or not the period of the vacation should be deducted. In this respect I am unable to accept the decision in Tanjore Palace Estate v. Andi Ramiah Chetty. It was suggested that the time requisite for obtaining a copy must be continuous. But the words of the section do not appear to lay down any such rule. In the United Provinces it is the practice to disallow the days which the applicant has wrongly allowed to elapse between the notification of the number of stamped sheets required and the deposit of those sheets. The effect of this is to allow two different periods as time requisite for obtaining the copy.
5. On the facts of this case I am of opinion that the period of the vacation was part of the time requisite for obtaining the necessary copies. I would therefore, allow this appeal and setting aside the judgment of the learned Judge of this Court and that of the Sub-ordinate Judge, I would remand this case to the Court of the Sub-ordinate Judge to redisposed of according to law. I agree with the learned Judge of this Court in thinking that the decision of the Sub-ordinate Judge with reference to Section 5 of the Lim. Act, was clearly wrong. As observed above, the point on which this appeal has been allowed was not taken before the Single Judge of this Court. In this connection I take this opportunity of pointing out that the conduct of a case before a Single Judge of this Court must not be regarded as a preliminary canter in which the parties and their legal advisers are not called upon to exert themselves. Ordinarily I would not allow a point to be taken in appeal under Cl. 10 of the Letters Patent which had not been taken before the Single Judge. In the present case I felt bound to allow a new point to be taken in order to remedy what appeared to me to be a serious failure of justice.
6. I would make the costs of the hearing before the Single Judge costs in the cause, but would leave the parties to pay their own costs of this appeal.
7. Sharfuddin, J.:— I agree.
V.S/R.K
8. Appeal accepted.