P L D 1961 (W (PLP)

5. Sher Ahmad went in appeal to the District Judge who upheld the judgment of the first Court, except in regard to the direction made by the first Court respecting the house on plot No. 5 as mentioned above. The claim of the plaintiff‑appellants relating to this house was disallowed. Before the District Judge, an objection was made by the plaintiff‑appellants (respondents before him) that the appeal of Sher Ahmad was barred by time, but this was overruled.

6. The plaintiffs have come up in second appeal to this Court and a legal point urged by the learned counsel on the behalf is that Sher Ahmad's appeal before the District Judge, being barred by time, should not have been entertained by him.

7. To appreciate this contention the following dates are relevant. The judgment of the first Court was delivered on the 13th of March 1954. The defendant, Sher Ahmad, applied for a copy of this judgment on the 16th of March 1954, which was delivered to him on the 24th of March 1954. He made an appli cation on the 15th of April 1954 for a copy of the decree‑sheet prepared in the case, which was supplied to him on the 19th of April 1954. His appeal before the District Judge was filed on the 22nd of April 1954.

8. Under Article 152 of the Limitation Schedule, the period of limitation provided for an appeal to the District Judge is thirty days, commencing from the date of the decree or order appealed from. Section 12 of the Limitation Act entitles an appellant to exclude the time requisite for obtaining the copies of the‑ judgment and decree. The relevant portion of the section is 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 a 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 quisite for obtaining a copy of the judgment on which it is founded shall also be excluded." Under, these provisions an appellant can, for purposes of his appear take advantage, as a matter of right, of the time spent in obtaining the copies of the judgment and the decree passed against him. It is open to him to make separate applications to get these copies on different dates. This is, however, subject to the rule that while the appellant can wait to apply for the copies till last date of limitation, he is not permitted‑to do so after it has expired. If the time prescribed for any action has already run out, no subsequent action will bring it back to life. The legal requirement, therefore is that to interrupt the running of the time, action must be taken before the prescribed time has run out. The question, however, remains. When does the prescribed time end ? Does it end with the expiry of the original period or can it have an extended life by operation of any of the provisions of section 12 of the Limitation Act ; In our view, section 12 aforesaid gives the right to an appellant to exclude the requisite period occupied for obtaining a copy of the decree under subsection (2) and for obtaining a copy of the judgment under subsection (3), and the time is extended when either of these steps is taken. If one step is taken, the time is extended for the taking of the other step also. In. other words if the time requisite for obtaining a copy of the judgment extends the time of limitation, then the application made for obtaining a copy of the decree, after the time fixed for filing an appeal, but before the extension of time allowed by reason of time required for obtaining a copy of the judgment expires, will entitle the appellants to further extension of time for obtaining the copy of the decree Where some portions of these two periods overlap each other, the overlapping period will be excluded only once. In the present case, Sher Ahmad respondent could file his appeal before the District Judge within thirty days of the 13th of March 1954 when the judgment was pronounced and under the law he could exclude this date also from computation. His appeal should have been filed on or before the 12th of April, 1954, But long before the expiry of the date he had, on the t6th of March 1954, applied for a copy of the judgment which was made available to him on the 24th of March 1954. The eight days occupied in obtaining the requisite copy of the judgment extended his period of limitation for appeal to the 21st of April 1954, but before the expiry of that time he applied for a copy of the decree on the ; 5th of April 1954, obtaining a copy of it on the 19th of April 1954, which gave him four more days to add on to his extended period, giving him a right to file his appeal on or before the 26th of April 1954. In filing his appeal on the 22nd of April 1~ 54, he was four days ahead of his time under Article 152 of the Limitation Schedule read with section 12 of the Limitation Act. It would be seen that subsec tion (2) and subsection (3), respectively, of section 12 of the Limitation Act independently provide for exclusion of time in calculating the period of limitation, the first for obtaining a copy of the decree and the second for obtaining a copy of the judgment. An appellant is under no obligation to make the application for both simultaneously. As a matter of fact, it is a common practice, containing a lot of merit and practical utility, that a litigant first obtains a copy of the judgment to ascertain the chances of the success of his appeal and he applies for a copy of the decree after he decides on filing an appeal. This view is supported by two decisions cited at the bar, one from Nagpur, Ramchandarao and others v. Mayaram (106 I C 57) and the other from Lahore, Raja Ram v. The Firm Nathe Mal‑Lala Mal (95 I C 303), where the facts involved were more or less akin to the case in hand. The opposite view expressed in Parashram v. Likhan (10 I C 866) and Nibaran Chandra Dutt v. Martin & Co. (58 I C 408), relied on by the learned counsel for the appellants ignores the efficiency of subsection (3) of section 12 in extending the period of limitation by the time requisite for obtaining a copy of the judgment, restricting it only to subsection (2) pertaining to the copies of the decree, although the statute does not make any difference between the two. Learned counsel for the respondents has brought. to our notice that Parashram v. Likhan, which is a case from Nagpur Judicial Commissioners Court has been over ruled by the same Court in Badshah Miyan v. Pandurang (A I R 1930 Nag. 113), wherein the legal position was summed up as follows :‑ "Where a party applies for a copy of the judgment alone and sometimes later applies for a copy of the decree, the time required for obtaining the copy of the judgment plus the time requisite for obtaining the copy of the decree should be excluded, provided that days on which both copies were being prepared cannot be doubly excluded from the computation of the period of limitation. It is immaterial whether the period of limitation prescribed in Schedule 1 to the Limitation Act had expired when a copy of the decree was applied for."

9. The learned counsel for the appellants argued, by refer ence to Order XLI, rule 1, Civil Procedure Code, that the annexure of the decree‑sheet with the memorandum of appeal is an indis pensible necessity and an appeal is not competent without it while on the other hand a copy of the judgment is an optional document which may or may not be filed along with the appeal. According to the learned counsel, as the copy of the decree‑sheet has to be filed with the memorandum of appeal as an indispensible necessity, it must be applied for before the main period of limi tation prescribed for the appeal runs out. The argument of the learned counsel that the copy of a judgment, for purposes of an appeal, is an optional document is not correct, because under the provisions cited by him, viz. Order XLI, rule 1, Civil Procedure Code, it is not a matter of option for the appellant to dispense with that copy, but is subject to the order of a Court, that is to say, the Court can dispense with it but not the appellant. But this contention has no relevancy to the point at issue, because the competency of appeal from the point of view of limitation has to be considered under Article 152 of the Limitation Schedule read with section 12 of the Limitation Act. The memorandum of appeal was filed in this case along with the copy of the decree sheet and so was a copy of the judgment, and the point is whether it was filed within time. The application made for a copy of the judg ment extended the period of limitation by virtue of subsection (3) of section l2 of the Limitation Act and, therefore, when the copy of the decree‑sheet was applied for the period of limitation was still alive and very much so again when, after obtaining copies of the judgment and decree‑sheet, the appeal was filed on the 22nd of April 1954.

10. On facts, the only point urged is that the finding of the learned lower Appellate Court reversing that of the first Court regarding the exclusive claim of the appellants to the house stand ing on plot No. 5 or in the alternative their lien on that house for the sum of Rs.,1,400 is erroneous. In the first place this is a finding of fact which is not open to challenge in second appeal. The learned counsel for the appellants, however, took us through the pleadings and the evidence in the case to prove his contention that the deceased had admittedly left only three louses and three ihatcas and the fourth house, which bears Municipal No. L/193‑D was constructed by the appellants on Plot No.

5. Even if we were to hold, which is not free from doubt, that the appellants had constructed the house bearing this number at their own expense, we are unable to hold further from any reliable evidence on the record that the same house exists on plot No.

5. No effort was made during the trial to establish the identity of this house with reference to the site on which it is situated.

11. We see no force in this appeal which is dismissed with costs. KAYANI, C. J.-- I, had written a separate note on the question of limitation before reading the judgment of my brother Sajjad Ahmad Jan, with whom I agree in the result.

2. The trial Judge pronounced judgment on the 13th of March 1954, and the one month's limitation would normally expire on the 12th April 1954. ' An application for obtaining a copy of the judgment was made on the 16th of March and delivered to the applicant on the 24th of March, thus giving nine s days by which he could extend limitation under section 12, sub section (3), Limitation Act. In other words, an appeal could have been filed by the 21st of April 19‑)

4. Next, an application was made for the copy of the decree‑sheet on the 15th of April 1954, that is to say, after the expiry of one month's limitation but before the expiry of the added period of nine days. The appeal itself was filed on the 22nd of April 1954 and it would be within time if the second period which was taken in obtaining a copy of the decree were excluded. This exclusion is permissible under subsection (2) of section 12, Limitation Act.

3. What subsection (2) of section 12 says is merely that in computing the period of limitation prescribed for an appeal, the time requisite for obtaining a copy of the decree shall be excluded, and subsection (3) says that where the appeal is from a decree .the time requisite for obtaining a copy of the judgment on which it is founded shall also be excluded. It is obvious that an application for a copy, if the period taken in its preparation into be availed of, must be made before time has run out. It must be made within thirty days in the present case. The question to decide is whether both applications, namely, the application for a copy of the judg ment and the application for a copy of the decree, should be made within thirty days, or if one of them. has been made within thirty days and time has become extended thereby, then the other appli cation can be made within the extended period.

4. Something can be said for both views. For the first view it can be said that because the normal period of limitation is thirty days, the time taken in the preparation of both copies can be excluded only if an application was made for both these copies before time had run out. In other words, an extension under subsection (2) cannot avail of an extension under subsection (3). For the second view it can be said that if an application has been made for a copy of the judgment within thirty days and by reason of that application nine more days have become available under subsection (3), then the appellant can argue to himself that he will be within the time limit if he lodges an appeal before the expiry of the thirty‑ninth day. And while he is within time, he can apply for a copy of the decree and avail of the period taken in the preparation of the copy under subsection (2).

5. We are of the opinion that from the practical point of view the second viewpoint, which grants a further extension., ought to be supported. 1t is a common and useful practice that a copy of the judgment is first obtained with a view to deciding whether an appeal should be filed. If the preparation of this copy takes three months and meanwhile within thirty days the person aggrieved has not applied for a copy of the decree, then he has no remedy left. It is, therefore, useful to allow him to apply for a copy of the decree within the period extended by the time taken in the preparation of a copy of the judgment.

6. Should we regard it as the appellants' duty to apply for both copies at the same time ? Since section 1?. gives them a separate right in respect of each copy‑to exclude the time taken in its preparation‑we would be reluctant to interpret the law relating to extension so as to compel a person to apply for both copies together. In some cases it would he impracticable, because the decree itself nay not be prepared and signed until a long time after the judgment has been pronounced. If we require a person to apply for a copy of the decree, even though to his knowledge the decree does not exist, it would amount to carrying formality too far.

7. The view that we are taking was taken in Rainrhandrarao v. Mayaram and Raja Rain v. Nanhe Mal‑ Lala Mal, while a contrary view was taken in Parashram v. Likhan and Abdul Wahed v. Abdul Khaligue (P L D 1952 Dacca 399). No express reasons are given in support of either view and the question has been examined merely as it presents itself in section 12, Limitation Act. Parashram v. Likhan, which is case of the Nagpur Judicial Commissioners' Court, has been overruled by a Full Bench of the same Court in Badshah Miyan v. Pandurang.

8. We hold that the appeal before the District Judge was, within time. A. H. Appeal dismissed.