Mootham, C.J. - (1.) The question referred to this Bench is "Whether in computing the period of limitation prescribed for an application for leave to appeal to the Supreme Court the applicant is entitled to exclude the time taken in obtaining a copy of the judgment appealed from." The reference has been made because of a difference of opinion between the former Allahabad High Court and the Oudh Chief Court.
(2.) The relevant provisions of the Indian Limitation Act are Sub-sections (2) and (3) of Section 12 which read as follows : "(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 the 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 has been a divergence of opinion among the High Courts as to whether the provisions of Sub-section (3) apply in the case of an application for leave to appeal, and , the true interpretation of these provisions presents some difficulty.
(3.) One view is that whereas Sub-section (2) refers to three categories of cases, an appeal, an application for leave to appeal and an application for a review of judgment, the second of these categories has been deliberately omitted from Sub-section (3) the provisions of which in consequence do not apply to applications for leave to appeal. This is the view taken by the former Allahabad High Court in Gulab Chand v. Peary Lal, AIR 1935 All 99 (A), approving the earlier decision to the same effect of WJlayati Begam v. Firm Jhandu Mal Mithu Lal, AIR 1926 All 286 (B), and which has been adopted by the Bombay and East Punjab High Courts in Dharwar Bank Ltd. v. V.M. Deshpande AIR 1954 Bom 525 (C), and Ghulam Haider v. Abdul Ghani, AIR 1950 Lah 76 (D). A second view is that the words 'decree appealed from' in Sub-section (3) include a decree sought to be appealed from, and that therefore the provisions of this sub-section apply to applications for leave to appeal. Such is the view taken in in re, Secretary of State, AIR 1925 Mad 1241 (E), and it is the basis of the decision of the Oudh Chief Court in Hunter v. Ehsan Husain, AIR 1941 Oudh 247 (P). A third view, exemplified by Raj Kishore Das v. Ram Ghulam Sahu, AIR 1922 Pat 256 (G), and R. K. Banerjee v. Alagammai Achi, AIR 1936 Rang 82 (H), is that the provisions of Sub-section (3) apply generally to cases covered by Sub-section (2) on the broad ground that it is necessary that the party who contemplated making an application for leave to appeal should be able to obtain a copy of the judgment complained of in order that he may see exactly what are its terms. The Calcutta High Court in Commissioner of Income Tax, Bengal v. Shaw Wallace & Co., AIR 1932 Cal 587 (I), and Dwarka Das Kedar Bux v. Gajanan Jaganath, AIR 1946 Cal 10 (J), has also held that Sub-section (3) applies to application for leave to appeal, but the question was not discussed and no reasons were given for the view taken.;