P L D 1963 (W (PLP)

MUHAMMAD YAQUB ALI, J.‑On the 19th of September 1961 we accepted Writ Petition No. 993 of 1960 instituted by the respondent and directed that the orders impugned in it be quash ed. On the 10th of March 1962, the present application was filed by one of the respondents in the writ petition for leave to appeal to the Supreme Court of Pakistan.

2. A preliminary objection is taken by the respondent that the petition is out of time by 82 (eighty‑two) days. In reply, the learned counsel for the petitioner maintains that the time spent in obtaining copy of our order to be appealed from is to be deducted under section 12 (2) of the Limitation Act, which brings the application within time. We are unable to agree with the learned counsel because under the rules, copy of the order was not filed along with the application under Order XLV, rule 2 of the Code of Civil Procedure. In Hari Ram v. Prem Nath (A I R 1925 Lah. 341), Jai Lal and Monroe, JJ. held that section 12 (2) of the Limitation Act did not apply to an application for leave to appeal to His Majesty in Council (now Supreme Court of Pakistan), it being unnecessary for the applicant to file a copy of the decree or judg ment with the application. In a subsequent case, Ghulam Haider v. Abdul Ghani (A I R 1950 Lah. 76), Muhammad Munir, C. J. and Muhammad Khurshid Zaman, J., held as under‑ "section 12(3) does not apply to an application for leave to appeal to His Majesty in Council and, therefore, the time requisite for obtaining a copy of the judgment cannot be excluded in computing the period of limitation for such an application." The learned Judges however did not give a considered opinion on the question whether section 12(2) was applicable to such an application or not as the applicant conceded in that case that he had never applied for a copy of the decree to be appealed from.

2. Under Order XLI, rule 1 of the Code of Civil Procedure only a copy of the judgment and decree appealed from are to be filed along with the memorandum of appeal. Under the rule, framed by this Court, it is further required to file a copy of the judgment of the trial Court as well. There are numerous autho rities that the time spent in obtaining a copy of the judgment of the trial Court cannot be deducted under section 12 (2) of the Limitation Act, in computing the period for filing a second appeal, because the subsection provides for deduction of time spent in obtaining copies to be filed along with an appeal or application and not otherwise. It is significant in this behalf that there is no provision under Order XLV for filing of a copy of the decree, sentence or order along with an application for leave to appeal to the Supreme Court, unlike the provisions of Order XLI, rule 1 and Order XLVII, rule 3, C. P. C.

4. For the foregoing reasons, we find that the present appli cation is out of time by 82 days and, dismiss it, as such but in the circumstances of case, refrain from making any order as to costs. A. H. Application dismissed.