- (1.) THIS is a Civil Second Appeal against the judgment and decree of the Civil Judge, Merta City whereby he dismissed the appeal filed on behalf of the appellants as time barred. The judgment and decree against which the appeal was filed before the Civil Judge, Merta City are of the Munsiff, Nagaur and are dated the 31st of May, 1952. That was the last working day before the vacation and the Civil Courts re-opened on the 3rd of July, 1952. On the 29th of July, 1952, the appellants applied for the copies of the judgment and decree of the Munsiff's court. The copies were delivered to them on the 4th of August, 1952, and the appeal was filed on the 6th of August, 1952, in the court of the Civil Judge, Merta City. Two points were urged before the learned Civil Judge for treating the appeal within limitation ; first was that the period during which the courts remained closed on account of vacations i. e. from the 1st of June, 1952 to the 2nd of July, 1952, should be regarded as time requisite for obtaining copies under sec. 12 of the Indian Limitation Act, and the other was that the appellants remained seriously ill from the 2nd of July, 1952 to the 29th of July, 1952. The learned Civil Judge decided both these points against the appellants. He held that there was preponderance of authority in favour of the view that the holidays cannot be regarded as time requisite for obtaining the copies within the meaning of sec. 12 of the Limitation Act. He further held that as the appellants had failed to file any affidavit in support of their allegation that they remained ill between the 2nd of July, 1952 and the 29th of July, 1952, they have no case for granting the benefit of sec. 5 of the Limitation Act.
(2.) IN this appeal, it has been argued that the appellants were entitled to take advantage of the period of vacations as the Munsiff announced the judgment on the 31st of July, 1952 and the holidays commenced from the next day and they had no time to apply for the copies of the judgment and decree on the day of the pronouncement of the judgment and they applied for them on the 29th of July, 1952. It is clear that the Civil Courts re-opened on the 3rd of July, 1952, and no application for obtaining the copy was made even on the day when the courts re-opened [and was made considerably after that on the 29th of July, 1952. It has been held by a Division Bench of this Court in Behari Dass Vs. Jagdish (1), that under sec. 12 (2) of the Limitation Act, time requisite for obtaining a copy cannot refer to any period antecedent to the appellant's filing an application for copy. This Division Bench authority is binding on me. Had the appellants applied on the day when the Civil Courts reopened for the copies of the judgment and decree, there was some thing to be said in their favour, but they failed to do so. Learned counsel for the appellants has placed reliance on several authorities two of which may be selected for the consideration of this appeal. In Saminatha Ayyar Vs. Venkatasubba Ayyar (2), the judgment was delivered on the afternoon of the last day before the commencement of the Christmas vacation, when it was too late to apply for a copy of the judgment. Application for a copy was made on the day upon which the Court re-opened. It was held that the period of the vacation must also be included in computing the time requisite for obtaining a copy of the judgment. It was contended before their Lordships that the words "requisite for obtaining a copy of the judgment" presupposes an application for the copy and the period anterior to the date- when such application is made cannot be excluded. Their Lordships held that it was not impossible to conceive of cases where time may properly be deducted, though the commencement of the period from which time is deducted precedes the actual application for a copy of the judgment. This view is contrary to the view taken by this Court in Behari Dass Vs. Jagdish (1 ). It may, however, be pointed out that in Behari Dass's case, the application for the copy of the judgment was made on the very day when the court re-opened. In Debi Charanlal Vs. Mehdi Hussain (3), the judgment was pronounced on the 27th of September, 1913, which was the last day of the annual vacation. The Court re-opened on the 1st of November but the appellants applied for a copy of the judgment on the 3rd of November and for copy of the decree on the 13th of November which were delivered on the 21st of November and appeal was filed on the 28th of November. It was held that the whole of the time which elapsed from the delivery of the judgment to the re-opening of the court on the 1st of November, 1913, was part of the time requisite for obtaining the copies of the judgment and decree and this must be so whether the appellant applied for a copy on the day on which the court re-opened or on some later date. This view was taken on the ground that it was usual practice to exclude the day on which the case was decided for all purposes connected with the calculation of limitation for an appeal. In my humble opinion, this proposition is too widely stated. Under sec. 12 (1) of the Limitation Act, the day on which the judgment is pronounced is excluded for the purpose of computing the period of limitation prescribed but not for making any application for obtaining a copy of the judgment and decree. If an application for the cop) is made on the opening day and the appeal has by that time not become barred by limitation, then by virtue of sec. 4 of the Limitation Act, the appeal may be treated within limitation if appeal is presented within the time prescribed excluding the time for obtaining a copy of the judgment and decree as provided under sec. 12 (2 ). In such cases, it is section 4 which saves limitation and not sec. 12 (1 ). In my humble opinion, the correct principle for the application of sec. 12 (1) and 4 may be laid down thus. In computing the period of limitation for appeal or application, first exclude the day on which the judgment against which the appeal is to be filed is pronounced as laid down in sec. 12 (1 ). Then start counting the period of limitation which is prescribed under Schdl. 3, and in this process, the days taken in obtaining a copy of the judgment or a copy of the decree are to be excluded. If the days for obtaining the copy of the judgment and decree over-lap one another in this manner of computation, they are excluded only once. It may happen that the prescribed period expires during the holidays and no application has been made till then for obtaining a copy of a decree or order. In such a case till the date of the re-opening of the Court, the appeal will be within limitation by virtue of sec. 4 of the Limitation Act, as the period of limitation prescribed has expired on a day when the Court is closed and the appeal can be filed on the day the Court reopens. Now on the day when the Court re-opens, an application may be made for obtaining the copy of a judgment or decree, then that period also is to be excluded because sec. 12 (5) provides for such exclusion in computing the period of limitation, and the appeal may be within time if the period taken in obtaining the copies of the judgment and or decree is continuous and the appeal is presented on the next day of the date when the copies of the judgment and/or decree are/is ready for delivery whichever is later. It may further happen that such a day is a holiday, then again sec. 4 may apply and it may be presented when the Court re-opens next. The other cases of hardship may be dealt under sec. 5 of the Limitation Act.) It is conceded before me that the appellants have no case for grant of benefit of sec. 5 of the Limitation Act. If sec. 5 of the Act is not to be applied to the appeal of the appellants before the lower appellate Court, then on the principles enunciated above and following the authority of this Court in Behari Dass Vs. Jagdish (1), I hold that appeal was rightly held to be time barred. The appeal has, therefore, got no force and is dismissed with costs. . ;