RUGMINI AMMA & OTHERS Vs. KAMALAMMA & OTHERS
LAWS(KER)-1963-8-56
HIGH COURT OF KERALA
Decided on August 30,1963

Rugmini Amma And Others Appellant
VERSUS
Kamalamma And Others Respondents


Referred Judgements :-

PUNJAB CO -OP. BANK V. PUNJAB NATIONAL BANK [REFERRED TO]
BALDEO PERSHAD VS. DWARIKA PD [REFERRED TO]
RAJAMMAL VS. GSPARTHASARATHI AYYENGAR [REFERRED TO]


JUDGEMENT

Mathew, J. - (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 pauperis, the time requisite for obtaining copy of the judgment can be excluded. The relevant provisions of the Limitation Act are sub -sections 2 and 3 of Section 12, and they read :
Sec. 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 -section (3) apply in the case of an application for leave to appeal. Sub -section (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 -section (3) provides that the time requisite for obtaining a copy of the judgment complained of shall be excluded where a decree is appealed from.

(2.)ALTHOUGH sub -section (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 -section (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 Ram Sarup v. Jaswant Rai (A.I.R. 1915 All 335(2)), and Mahabir Prasad Tewari v. Jamuna Singh ( : A. I. R. 1922 Pat 255). In In Re. Secy. of State (A. I. R. 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 appealed from' may be deducted.

Order XLIV, Rule 1, sub -rule (2) of the Code of Civil Procedure reads:

R. (1) (2). The appellate Court, after fixing a day for hearing the applicant or his pleader and hearing him accordingly if he appears on that day, and upon a perusal of the application and of the judgment and decree appealed from, shall reject the application, unless it sees reason to think that the decree is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust.

The sub -rule would indicate that the court is to peruse the application, the judgment and the decree appealed from, indicating thereby that the decree itself is being appealed from when an application for leave to file the appeal in forma pauperis is made. We think that the words 'decree, sentence or order appealed from' in sub -section (2) of Section 12 would include an application for leave to appeal. If that be so, then the only question is whether the words 'the decree appealed from' in sub -section (3) would include an application for leave to appeal. We see no reason why these words should have a more restricted meaning in sub -section (3) than they have in sub -section (2).

(3.)THIS question came up for consideration in Baldeo Pershad v. Dwarika Pd. : (A. I. R. 1957 Allahabad 334) where a Full Bench of that Court, after a review of the authorities, has come to the conclusion that the time requisite for obtaining a copy of the judgment should be excluded in the case of an application for leave to appeal to the Supreme Court. Mootham C. J., who spoke for the Full Bench observes as follows at page 335:
In our opinion the answer to the question which has been referred turns on the meaning which must be given to the words 'decree appealed from' in sub -s. (2) and (3), and we think that these words must bear the same meaning in sub -s. (3) as they do in sub -s. (2). Prima facie the words 'decree appealed from' would not apply in the case of an application for leave to appeal, for such an application is a step anterior to an appeal proper; but there are considerations which have led us to the conclusion that these words are intended to cover the case of such an application.

The same view has been taken in, A. I. R. 1925 Mad 1241, R. K. Banerjee v. Alagammi Achi (A. I. R. 1936 Ran. 82) and Hunter v. Ehsan Husain, (A. I. R. 1941 Oudh 247).

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