BHANUMATHI AMMA RUGMINI AMMA Vs. NANI AMMA KAMALAMMA
LAWS(KER)-1963-8-19
HIGH COURT OF KERALA
Decided on August 30,1963

BHANUMATHI AMMA RUGMINI AMMA Appellant
VERSUS
NANI AMMA KAMALAMMA Respondents


Referred Judgements :-

RAM SARUP V. JASWANT RAI [REFERRED TO]
MAHABIR PRASAD TEWARI V. JAMUNA SINGH [REFERRED TO]
R. K. BANERJEE V. ALAGAMMAI ACHI [REFERRED TO]
HUNTER V. EHSAN HUSAIN [REFERRED TO]
PUNJAB CO-OPERATIVE BANK LTD,AMRITSAR V. PUNJAB NATIONAL BANK LTD,AMRITSAR [REFERRED TO]
JIJIBHOY N. SURTY V. T.S. CHETTYAR FIRM [REFERRED TO]
BALDEO PERSHAD VS. DWARIKA PD [REFERRED TO]
DHARWAR BANK LTD VS. VASUDEORAO MADHAVRAO DESHPANDE [REFERRED TO]
NEKI KISHEN SAHAI VS. RUP CHAND [REFERRED TO]
RAJAMMAL VS. GSPARTHASARATHI AYYENGAR [REFERRED TO]


JUDGEMENT

- (1.)The question referred to this Bench for decision is whether, in computing the period of limitation for an application for leave to file an appeal in forma panperis, the time requisite for obtaining copy of the judgment can be excluded. The relevant provisions of the Limitation Act are sub-s.2 and 3 of S.12, and they read:
"S.12(2). 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.

(3) 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."

There is a divergence of opinion among the various High Courts as to whether the provisions of sub-s.(3) apply in the case of an application for leave to appeal.

(2.)Sub-s.(2) refers to three classes or categories of cases, an appeal, an application for leave to appeal, and an application for review of judgment; and it provides that not only shall the day on which the judgment complained of was pronounced be excluded in computing the period of limitation, but also the time required for obtaining a copy of the decree appealed from shall be excluded. Sub-s.(3) provides that the time requisite for obtaining a copy of the judgment complained of shall be excluded where a decree is appealed from.
(3.)Although sub-s.(2) speaks of three classes or categories of cases, it provides for exclusion of the time requisite for obtaining a copy of the decree only, in cases where the decree is appealed from or sought to be reviewed. Prima facie an application for leave to appeal in forma pauperis is not an appeal from the decree, but only a step anterior to an appeal. But it would be a strange omission on the part of the legislature if the words 'decree ... appealed from' in sub-s.(2) are held not to include an application for leave to appeal. We are not aware of any case in which it has been held that a copy of the decree need not accompany an application for leave to appeal in forma pauperis, or that the time requisite for obtaining a copy of the decree should not be excluded in the case of an application for leave to appeal. On the other hand it has been held that, in computing the period of limitation for an application for leave to appeal, the time requisite for obtaining a copy of the decree may be excluded. (See Bam Sarup v. Jaswant Bai (AIR 1915 Allahabad 335 (2), and Mahabir Prasad Tewari v. Jamuna Singh (AIR 1922 Patna 255). In In Be. Secy. of State [ AIR 1925 Mad. 1241 ] Devadoss and Wallace JJ. have held that:
"Under Sub-s.(2) when an application for leave to appeal is put in, the time requisite for obtaining 'a copy of the decree sought to be a appealed from' may be deducted".

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