Decided on June 08,1960

Provendra Mohan Sen Appellant
Gouri Ranjan Sarkar Respondents


- (1.) This is a short appeal, arising out of a suit for enhancement of rent and recovery of arrears of rent, including the said enhancement. The appeal is against an order of the court of appeal below, rejecting the memorandum of appeal, filed in that court, on behalf of the Plaintiff Appellant, on the ground that the said appeal was time-barred. The Defendant Respondent has not appeared in this Court to contest or to oppose this appeal.
(2.) The judgment of the trial court was pronounced on April 38, 1955, dismissing the Plaintiff's suit. The decree was actually signed on May 18, 1955. The Plaintiff applied for copies of the judgment and decree on June 6. 1955, and the same were ready for delivery on June 18, 1955 the requisite folios and stamps having been supplied in due time, without any break or delay whatsoever. The appeal to the lower appellate court was filed on July 1, 1955. and, on the 6th following, the same was rejected on the ground that it was time-barred. From this order of rejection, which, in law, is a decree [vide Section 2(2) read with inter alia Section 107(2) of the Code of Civil Procedure and having regard, particularly, to the nature of the order of rejection in the instant case Forzand Ali v. Abdul Hamid,1920 AIR(Pab) 818 the present second appeal was filed on November 21, 1955.
(3.) The only point in this appeal is whether the lower appellate court was right in its view that the appeal before it was filed beyond time. The learned District Judge, in making the aforesaid order of rejection, apparently took the view that the time between the delivery of the judgment and the signing of the decree, could not be excluded in computing limitation for the filing of the appeal. There was no dispute and no doubt also that, if the said time was liable to be excluded, the appeal, in the instant case, before the lower appellate court, was filed quite within time. This is clear from the dates, which have been mentioned above, as, the Appellant was, obviously, entitled, in any view of the case, to a deduction of the period between, June 6, 1955, and Jun 18, 1955, in the matter of computation if the period of limitation for his appeal, under Section 12(2) of the Indian Limitation Act, as time requisite for obtaining copy, as mentioned in the said section. If, however, he was not entitled to a deduction also of the period between April 28, 1955, the date of delivery of the judgment, and May 18, 1955, the date on which the decree was signed, the appeal would beyond time, as the starting point of limitation {vide Article 152 of the Indian Limitation Act) would have, undoubtedly, to be taken as April 28, 1950, which was the date of the judgment and which under Order XX, Rule 7 of the Code of Civil Procedure, will also he the date of the decree. The period of 30 days, which is the period of limitation provided under the relevant article (Article 152 of the Indian Limitation Act, referred to above) would then expire in the first instance on May 28, 1955, and if, to this, be added the period between June 6, 1955. and June 18, 1955, winch, in any view of the case would be time requisite for obtaining copy of judgment and decree, the last date for filing the appeal would be Tune 10, 1955. If, however the period between April 28, 1955, the date of delivery of the judgment that is, the date of the decree, as aforesaid, and May 18. 1955, the date of the signing of the decree, be liable to be excluded in the matter of the above computation the Appellant would get a further period of 20 days, which would bring the last date for filing of appeal to June 30, 1955. which having been, admittedly, a holiday on account of the half-yearly closing of banks, the appeal would be quite within time, it (Sic)Ad on the next day, that is, July 1, 1955, on which date, it (Sic) actually filed in the lower appellate court.;

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