D.K. Mahajan, J. - (1.) IN this second appeal, the only question that requires determination is that of limitation. The lower appellate Court dismissed the appeal on the ground that it was barred by time. It is this decision of the lower appellate Court which is now being challenged in second appeal.
(2.) THE Plaintiff -Respondent filed a suit for partition against the Defendants out of whom soma are Appellants and others are Respondents in the present appeal. This suit was decreed by the trial Court and a decree could only be framed after the requisite stamp had been filed by the Plaintiff or anyone or more of the Defendants. ' See in this connection, Satyabhama De v. Jatindra Mohan Deb : AIR 1929 Cal 269 and Sardar Muhammad v. Zafai Din 107 Ind Case 624 (Lah.) The Defendant -Appellant made an application to the trial Court for a copy of the judgment and the decree on the and January, 1961. A copy of the judgment was furnished to him on the 3rd February, 1962, and no copy of the decree was furnished because no decree had been drawn up by that date. The decree could not be drawn up because the requisite stamp had not been filed. It appears that the requisite stamp was filed later on and thereafter on the 20th May, 1961, an application was made by the Defendant -Appellant for a copy of the decree and on the basis of that application a copy of the decree was prepared on the 8th June, 1966 and was attested on the same date. It was received by the Appellant on the 13th June, 1961. The appeal was filed by him on the 19th June, 1961. When the appeal came up for hearing before the lower appellate Court, an objection was raised by the Plaintiff -Respondent that the appeal was barred by time. This objection prevailed with the lower appellate Court with the result that the appeal was dismissed.
(3.) THE learned Counsel for the Defendant -Appellant contends before me that his client applied for a copy of the decree on the 2nd January, 1961, and, therefore, the time spent from 2 -1 -1961 to 8 -6 -1961 should be treated as the time requisite for obtaining the copy of the decree. If this is permissible the, appeal is within time. It is significant that there was no decree in existence when the application for the copy of the decree was made and there would be no decree in existence unless the requisite Court -fee stamp was filed. Therefore no benefit can be taken of the application dated the 2nd January, 1961. An application for a copy of the decree was made on the 20th May, 1961, and it was obviously made after the stamp had been paid and the only time which can be treated as time requisite for obtaining the decree is the time spent between 20th May, 1961 to the 8th June 1961. It is common ground that if this time is allowed to be deducted for the obtaining of the copy of the decree, the appeal is hopelessly barred by time.;