Manohar Lall, J.:— The question referred to the Special Bench is the re-consideration of the view expressed in Makund Mahton v. Niranjan Chakranaty that the provisions of section 12 of the Limitation Act are not, applicable to Letters Patent Appeal under clause 10 of the Letters Patent of this Court.

The facts are these. The judgment under appeal was passed by a learned Single Judge of this Court on the 9th of October, 1945, in the exercise of his original civil jurisdiction. The appeal was presented to the Registrar on the 26th of November, 1945. The Stamp Reporter in his clear report of the 12th of December, 1945, states that the appeal was barred by limitation inasmuch as it should have been filed within 30 days of the date of the judgment under rule 2(1), Chapter VII of the Patna High Court Rules. The appellant on the other hand contended that his appeal was not barred by limitation as he was entitled to a deduction of time for obtaining a copy of the judgment and of the decree. It is not disputed that if the time in obtaining these two documents is deducted, the appeal is with in time. But relying upon the decision of this Court in Makund Mahton's case, the Stamp Reporter has suggested that the appellant is not entitled to a deduction of this time as no copy of the judgment or decree is required to be filed along with the memorandum of appeal under rule 2(1), Chapter VII of the Rules of this Court.

Although the question is not free from difficulty, having considered the learned arguments which have been advanced before us and in particular the decision of their Lordships of the Judicial Committee in the case of, J.N Surly v. T.S Chettyar Firm, I am of opinion that the contention of the appellant is sound and the case of Makund Mahton was wrongly decided.

A large number of cases were cited before us in the course of the argument but most of those cases were reviewed by their Lordships of the Judicial Committee in Surty's case, and it will serve no useful purpose by reviewing those authorities once again.

The case most strongly relied upon by the respondent was the case of Fazal Muhammad…(Plaintiff); v. Phul Kuar…(Defendant)., decided in the year 1879 by the Full Bench of the Allahabad High Court. At page 192 of the report the argument is given in these words: “The appellant contended that the time requisite for obtaining a copy of the judgment appealed from should be deducted in computing the period of limitation, but the respondent opposed this contention on the ground that the Rules of Practice adopted by the High Court on the 21st May, 1873, regarding the admission of appeals under Clause 10 of the Letters Patent, did not require a copy of the judgment appealed from to be presented with the memorandum of appeal.” The judgment of the Full Bench was that the appeal was beyond time and not entitled to be admitted.

The Rules of Practice adopted by the High Court at Allahabad were framed when the Limitation Act (Act IX) of 1871 was in force. Section 6 of that Act specifically stated that nothing therein contained shall affect the period of limitation prescribed for appeals from, or applications for review in, decree or order or judgment of a High Court in the exercise of its original jurisdiction. The provision of section 13 of the Limitation Act were, therefore, inapplicable and it was not, and could not be, argued that the appellant was entitled to a deduction of time requisite for obtaining a copy of the judgment. By that time Limitation Act (Act XV) of 1877 had come into operation, but no argument was advanced before the Full Bench based upon section 12 of the then Limitation Act. In Surty's case their Lordships referred to this case observing that after closer examination it was discovered that this case was not a decision on the Limitation Act, but upon what is known as a letters-patent appeal, that is an appeal under the clause in the charter constituting the Court; a rule which fixed the period for appeal and there was no provision like that in the Limitation Act for excluding the period of time required for getting copies of the judgment and decree.

After reviewing a large number of cases their Lordships observed at page 169: “Their Lordships have now to return to the grammatical construction of the Act, and they find plain words directing that the time requisite for obtaining the two documents is to be excluded from computation. Section 12 makes no reference to the Code of Civil Procedure or to any other Act. It does not say why the time is to be excluded, but simply enacts it as a positive direction.” In my opinion after these weighty observations, it is impossible to hold that section 12 of the Limitation Act (hereinafter to be referred to as the Act) cannot apply to appeals under the Letters Patent of the High Court. Section 12 does not make any reference to the Code of Civil Procedure or to any other Act. This is a general pension inserted in the Act which applies to the whole of British India.

But it was argued on behalf of the respondents that under the provision of rule 2(1), Chapter VII of our Rules, the appellant was not required to file any copy of the judgment and he could file it after it has been admitted, if so required. But this argument has been answered by their Lordships in Surty's case. In dealing with a similar rule of the Rangoon High Court, they observed at page 166: “It is therefore not necessary on an appeal to the appellate side that the memorandum of appeal should have both documents annexed to it. And if the only reason for excluding the time for procuring these documents was that they were necessary to the presentation of the appeal, it might be said that the provisions of section 12 could not have been meant to apply to such a case. Even so, however, there would be a difficulty in dealing with the grammatical construction of the words” and again at page 170 they drew attention to the fact that the practitioner may well want to see the form of the decree and the copy of the judgment before he could make up his mind on behalf of his client to file an appeal and they concluded at page 170 that for the time which is taken up by his opponent in drawing up the decree or by the officials of the Court in preparing and issuing the documents, the appellant is not responsible.

The learned Advocate for the respondent relied strongly upon the provision of section 29(2) of the Act and argued that the Letters Patent of this Court being neither a special nor a local law but a charter constituting the Court, the provisions of section 29(2)(a) are of no assistance to the appellant. I think the learned Advocate is right that the Letters Patent of this Court is neither a special nor a local law and this is supported by the observations of Cunliffe, J., in S.A Ganny v. I.M Russell. But in my opinion the appellant is entitled to the benefit of section 12 of the Act because it is a general provision in the Act as stated already in the words of their Lordships of the Judicial Committee and does not refer to any particular enactments, be it a charter or an Act of the legislature. Section 29(2) of the Act was enacted to meet the situation where a special or a local law did not expressly refer to or abrogate or negative the application of the general requirements of section 12.

Mr. B.N Rai appearing for the respondents also argued that section 12 of the Act could have no application as there is no period of limitation prescribed under Article 151 of the Act as it now stands for preferring an appeal under the Letters Patent of this Court and he sought to distinguish the Privy Council case of Surty upon the ground that in that case their Lordships were considering the applicability of section 12 of the Act to an appeal from the original side of the Rangoon High Court, which Court was specially mentioned in Article 151. Their Lordships of the Judicial Committee did not say so, and as I have stated above, they clearly stated that they did not find any limitation under section 12 of the Act as it did not refer to the Civil Procedure Code or any other Act. Again section 12 of the Act does not say that it will apply in computing the period of limitation prescribed for an appeal under this Act. The word ‘prescribed’ has not been so limited, or defined in the definition section. The word ‘prescribed’, therefore, in my opinion must be taken to apply to any Act which may be the subject of consideration in a particular case.

I desire to lay stress once more upon the observations of their Lordships in Surty's case where they observe that section 12 of the Act does not say why the time is to be excluded but simply enacts it as a positive direction. It is, therefore, irrelevant to argue that as the memorandum of appeal does not require any judgment or decree to be attached to it, there is no reason why the time spent in obtaining the copy of these two documents should be excluded. Upon the plain grammatical construction of the provision of section 12, I am of opinion that the positive direction of the statute which applies to the whole of British India must be complied with and we have no discretion in the matter.

The case of Jog Dhian follows the Patna decision of Makund Mahto's case and holds that the rules under the Letters Patent do not amount to a special or local law. None of these cases have considered the effect of the decision of the Privy Council in Surty's case.

For these reasons I am of opinion that the case of Makund Mahto v. Niranjan Chakravarty was wrongly decided in to far as it held that the provisions of section 12 of the Limitation Act are not applicable to Letters Patent Appeal under clause 10 of the Letters Patent to this Court.

Meredith, J.:— I agree that the word “prescribed” in section 12 of the Limitation Act should be given the wide connotation suggested by Mukharji, J., otherwise there would be an inconsistency between sub-section (3) and the rest of the section. Sub-section (3) says:

“Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of the judgment on which it is founded shall also be excluded.”

The word “prescribed” is not found here. On its plain wording, the sub-section applies in every case where a decree is appealed from or sought to be reviewed. Therefore, in every case irrespective of the period of limitation prescribed, the time requisite for obtaining a copy of the judgment is to be excluded. If then in sub-section (2) we limit the word “prescribed” to “prescribed under this Act”, the time for obtaining copy of decree would only be excluded in cases where the period of limitation is prescribed under the Limitation Act, a much narrower field. It would be inconsistent that time for obtaining copy of judgment should be excluded in every case, but time for obtaining copy of decree in only a limited class of cases, and the only way of avoiding this inconsistency is to attach the wider meaning to the word “prescribed”, that is to regard it as meaning “prescribed by any law.”

This interpretation has the merit of explaining why section 29(2) in terms is made to relate only to cases where the special or local law prescribes a period of limitation different from the period prescribed therefor by the first Schedule, for no question can arise unless two different periods of limitation are prescribed and a choice has to be made between them.

In this view section 12 and section 9 are meant between them to cover all possible cases, and I think this was the intention of the legislature.

If I am right, it becomes unnecessary to decide whether a rule made by the High Court under the Letters Patent is “special or local law”, and I prefer to express no opinion on that point.

Mukharji, J.:— This matter comes up before us in view of certain observations made by Fazl Ali, C.J and Reuben, J. in Letters Patent Appeal no. 25 of 1945—Mosst. Mt. Lalitkuari v. Mahaprasad N. Singh*, respondent. In Makund Mahto v. ??? Chakravarty a Division Bench of our High Court has held that section 12 of the Limitation Act (Act IX of 1908) does not apply to an appeal under clause 10 of the Letters Patent, Reference to a larger Bench has been made to reconsider the decision. Before proceeding further. I may state a few relevant facts of the present case which has given rise to this reference. The judgment under appeal was passed by a single Judge on 9th October, 1945. The appeal which was at first filed before the Deputy Registrar was preferred on 24th November, 1945. As it should have been filed before the Registrar, the Deputy Registrar returned it, and eventually it was filed before the Registrar on 26th November, 1945, 25th November, 1945 being a Sunday. The Stamp Reporter submitted his report on 12th December, 1945, pointing out that there was a question of limitation involved, as under rule 2 of Chapter VII of the High Court Rules an appeal is to be filed within 30 days from the date of judgment.

It has been argued before us that section 29(2) of the Limitation Act makes section 12 of the same Act applicable to an appeal under clause 10 of the Letters Patent. Section 29(2) as it stands after the amendment of 1922 is as follows:—

“Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law—

(a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as and to the extent to which, they are not expressly excluded by such special or local law; and

(b) the remaining provisions of this Act shall not apply.”

Varma, J., who delivered the judgment of the Division Bench reported in 15 P.L.T 301, observed that the Letters Patent and the Civil Procedure Code under which the High Court Rules have been framed are neither special law nor local law. Cunliffe, J., made certain observations on this point in S.A Ganny v. I.M Russel. The remarks of his Lordship are to be found at pages 395 and 396. It is said that the High Court Rules approximate very closely to bye-laws. It is further observed that they can be altered at will, and that they can be canvassed. Cunliffe, J., next went on to observe that the Rules are subordinate and domestic enactments. On behalf of the present appellant it has been argued that the High Court Rules which are framed after due publication, and which have to obtain the sanction of either the Central or of the Provincial Government cannot be regarded as something having less force than a statute. In this connection attention has also been called to the fact that by prescribing a period of limitation the Rules really assume the importance of substantive law. The argument is certainly a plausible one, but even if I agree with it the real difficulty in the way of the appellant is not solved. I have already quoted the section above. In order to make it applicable to any particular case not only it has to be shown that there is a special or local law which prescribes a certain period of limitation, but also that this period of limitation is different from that prescribed therefor by the first schedule of the Limitation Act. So far as the period of limitation in the case of a Letters Patent appeal is concerned, the schedule is silent, except with regard to the High Courts of Judicature at Fort William, Madras, Bombay and Lahore. This is what one finds in Article 151 of the Limitation Act. In the 1918 Edition of Starling's Limitation Act one finds the names of the Chief Court of the Punjab and the Chief Court of Lower Burma, besides those of the three High Courts at Fort William, Madras and Bombay. In Rustomji's Edition of the Limitation Act of 1927 the name of Patna also finds mention. It appears that Patna was deleted afterwards with the result that in the 1938 Edition of Rustomji's Limitation Act one does not find its name in the said Article. Therefore, even if it is held that the High Court Rules have the force of special law although strictly speaking they cannot be classed as such, the provisions of section 29(2) of the Limitation Act cannot be said to apply to an appeal under clause 10 of the Letters Patent of the Patna High Court.

Mr. Sarjoo Prasad arguing for the appellant also contended that if the High Court Rules are not special or local law then they should be deemed to come within the category of law of general application deriving as they derive their authority from the Code of Civil Procedure. It is said that in section 12 of the Limitation Act there is nothing which should prevent its application to appeals filed under the Letters Patent. This section is made up of four sub-sections. The first of these sub-sections lays down that in computing the period of limitation prescribed for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded. The next sub-section of section 12 provides that in computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded. The third sub-section excludes the time requisite for obtaining a copy of the judgment on which the decree is based. The last sub-section applies where an award is to be set aside. If the words “period of limitation prescribed for an appeal” are not construed to mean “prescribed by the Limitation Act”, then there is no reason to suppose that section 12 does not apply to a Letters Patent appeal. Reading sections 12 and 29 one gets the impression that section 12 applies to all cases except those which come under special or local law. One further finds that section 12 also applies to Cases coming under special or local laws, if as provided in sub-section (2) of section 29 the applicability of section 12 has not been expressly excluded.

There is still one apparent difficulty in the way of the appellant in such a case, and it is this. Under rule 2 of Chapter VII of the High Court Rules a Letters Patent appeal need not be accompanied by a copy of the judgment appealed against. The rule further says that if the appeal is admitted, the appellant shall within ten days from the admission of the appeal file a typed copy of the judgment for the use of the Court. There is no mention of decree at all. We may, therefore, take it that like copy of judgment copy of decree is also not necessary for an appeal under the Letters Patent. Whether section 12 of the Limitation Act will apply to a case where a copy of judgment or a copy of decree need not be filed along with the memorandum of appeal has been the subject of discussion in a number of rulings. In, J.N Surty v. T.S Chattyar their Lordships of the Privy Council have referred to these rulings. One of these is reported in Haji Hassum v. Nur Muhammad. There a Division Bench of the Bombay High Court held that in reckoning the time for presenting an appeal, the time required for obtaining a copy of a judgment must be excluded, even though by the rules of the Court it was not necessary to obtain a copy of the judgment to be filed with the memorandum of appeal. The same view was adopted in a case of the Lahore High Court reported in Kirpa Ram v. Rakhi. Sanderson, C.J, and Mookerjee, J., also took the same view in Kalipada v. Shekhar Basini. The same point also arose for consideration in Wajid Ali Shah…(Petitioner); v. Nawal Kishore…(Opposite Party).*. The Chief Justice who presided over the Full Bench in this case observed that the Legislature might intend to give possible appellants time to consider the terms of the decree before hurrying into an appeal from it. The Full Bench held that section 12 of the Limitation Act applied to such a case. A contrary view appears to have been taken in Jadhoji Raghoji v. Rajoo Babaji, Kumar Akkappa Nayanim v. Sithala Naidu and Abu Backer Sahib v. Secretary of State for India. In L.R 55 Ind. App. 161 their Lordships of the Privy Council considered all these cases. Their Lordships also took into consideration some unreported cases on the subject. In the opinion of their Lordships of the Privy Council the preponderance of practice against whom a judgment has been passed may, as is in favour of the appellant which means that in majority of cases the Court was disposed to exclude the time taken in obtaining a copy of the judgment and the decree. As I have already pointed out under the High Court Rules, above referred to, a memorandum of appeal under clause 10 of the Letters Patent need not be accompanied by a copy of the judgment. I have also pointed out that the rule is silent as to whether a decree is necessary or not. As there is no mention of decree and as section 12 uses the word “requisite” which means properly required, it may, at first sight appear that the time taken for obtaining a copy of the decree should not be excluded. So far, as a copy of the judgment is concerned, although the rule says that the memorandum of appeal need not be accompanied by a copy of the judgment, a litigant against whom a judgment has been passed may, as pointed out by Sir John Edge, C.J, in 17 All. 213, very well like to look into it before he makes up his mind as to whether he should file an appeal. Dilatoriness on the part of litigants should not be encouraged by courts, but, at the same time, all Courts should allow reasonable time to litigants to enable them to make up their minds as to whether they should accept a decree passed by a Court of justice or they should challenge it by an appeal. Dealing with the word “requisite” used in section 12, their Lordships of the Privy Council in I.L.R 6 Rangoon 302 have observed as follows:—“The word ‘requisite’ is a strong word, it may be regarded as meaning something more than the word ‘required’. It means ‘properly required’, and it throws upon the pleader or counsel for the appellant the necessity of showing that no part of the delay bevond the prescribed period is due to his default.” This, in my opinion, means that while applying the provisions of section 12 of the Limitation Act a court should be careful that no indulgence is given to the party which invokes the aid of this section in his favour. The question for serious consideration is whether no deduction is to be allowed in terms of, section 12 of the Limitation Act for the preparation of decree, because the High Court Rules above referred to only speak of judgment and is altogether silent so far as decree is concerned. In my opinion, if time is to be given for judgment, it should also be allowed for decree. A decree may be so complicated that the appellant and his Counsel may very well like to see it before any appeal is filed. If time is to be allowed for judgment it should also be allowed for decree for the two really go together, one being based on the other.

In my opinion, section 12 of the Limitation Act applies in its entirety to an appeal filed under clause 10 of the Letters Patent of the Patna High Court.

By Court:— The provisions of section 12 of the Limitation Act are applicable to letters patent appeals under clause 10 of the Letters Patent of this Court, and the case of Makund Mahton v. Niranjan Chakravarty was wrongly decided to that extent.

S.H

Reference answered.