MOTI RAM Vs. NIRANDER KUMAR

JUDGEMENT

(1.) IN this revision petition the admitted facts are that the plaintiff obtained a decree from the trial court on 14 -6 -1973. The decree was appealable before the Sub -Judge (CJM) Jammu, in view of the valuation of the suit. An appeal seems to have been filed before the Sub Judge on 6 -9 -1973 by the defendant. Any decree against which an appeal is to be taken to a Sub Judge, the limitation prescribed under the J&K Limitation Act is sixty days only. On 6 -9 -1973 admittedly the appeal had become barred by limitation as it was filed beyond the requisite period of sixty days. An application u/s 5 of the Limitation Act for condonation of delay was moved by the defendant on 6 -9 -1973 and the defendant sought condonation of delay on two grounds: firstly, it was urged by the defendant in the application that he had no knowledge of the decree till

(2.) C -7 -1973, and secondly he urged that he was entitled to get the benefit of sec. 12 of the Limitation Act. According to him the time spend by the defendant in obtaining the copy of the decree sheet was liable to be excluded for purposes of limitation and his contention was that the decree sheet was signed on 20 -7 -1973 Therefore, the delay in filing the appeal be condoned in terms of sec. 12 of the Limitation Act. This application was supported by an affidavit. Objections to this application were also invited by the first appellate court, To his objections the plaintiff controverted the contention raised by the defendant and he urged that the appeal was hopelessly barred by time and therefore, Sec. 5 of the Limitation Act cannot be invoked. 2. Another important factor which needs mention is that the defendant had applied for the copy of the decree on 5 -9 -1973 and the same was delivered to him on 6 -9 -1973 by the Copying Branch. On that date also the period of limitation for filing the appeal had already expired.

(3.) ON the basis of these admitted facts it is to be seen whether Sec. 12 of the Limitation Act will be of any help to the defendants or not. The first appellate court has in his judgment rejected the first contention of the defendant about his having acquired the knowledge of the decree on 20 -7 -1973 but in his detailed judgment he has given benefit of Sec, 12 of the Limitation Act to the defendant and has treated the appeal within time.