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Civil Miscellaneous Petition No. 44/c of 1949, decided on 4th November 1949.

, S. 12 (3)‑Application for leave to appeal to His Majesty in Council‑Time requisite for obtaining copy of judgment cannot be excluded.

The time requisite for obtaining a copy of the judgment cannot be excluded in computing the period of limitation for an application for leave to appeal to His Majesty in Council.

Reading subsections (2) and (3) of section 12, Limitation Act, it is clear that the Legislature has deliberately omitted applications for leave to appeal from subsection (3).

I L R 57 All. 455; 24 A L J 349; 78 I C 953 and 158 I C 120 referred to. I L R 1 Pat. 429 distinguished.

48‑Mad 939 dissented from.

S. A. Kareem, for Petitioners.

Muhammad Amin Khan for Respondents.

‑This is an application for leave to appeal to His Majesty in Council against a decision of this Court. A preliminary objection was raised that the application was barred by time. The judgment sought to be appealed from was delivered on the 7th December 1948. A copy of the judgment was applied for on the 5th March 1949. It was completed on the same day but was delivered on the 7th March 1949, 6th being a Sunday. The present application was filed on the 9th March 1949. Article 179 of the Limitation Act prescribes the period of limitation for filing applications for leave to appeal to His Majesty in Council. It is 90 days from the date of the decree appealed from. It is, therefore, obvious that if the time spent in obtaining the copy is not excluded the application is beyond time.

The learned counsel for the respondents contends that section 12 of the Limitation Act does not apply to an application for leave to appeal to His Majesty in Council and, therefore, the petitioner is not entitled to the exclusion of time which was spent in obtaining a copy of the judgment. In our opinion, this contention is well founded.

Subsection (2) of section 12 which provides for the exclusion of time for obtaining a copy of decree, applies to (i) appeals, (ii) applications for leave to appeal, and (iii) applications for a review. Sub section (3) enacts that 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. It will be observed that categories (i) and (iii) of subsection (2) are reproduced in subsection (3) but category (ii) is omitted. That the omission is deliberate is shown by the fact that when in 1908 the Legislature amended clause 2 of section 12 of the Indian Limitation Act, 1877, and omitted the words "as paupers" occurring in that clause, making it applicable to all applications for leave to appeal, it did not think fit to extend the scope of clause 3, so as to bring applications for leave to appeal within its ambit.

The language of subsection (2), as it now stands, when contrasted with subsection (3) clearly contemplates the exclusion from the scope of subsection (3) of the case of an application for leave to appeal. We are, therefore, of opinion that the time requisite for obtaining a copy of the judgment cannot be excluded in computing the period of limitation for an application for leave to appeal to His Majesty in Council. A similar view was taken in (1) Gulab Chand v. Pearey Lal (I L R 57 All. 455) (2) Wilaiti Begum v. Jhandu Mal Mithu Lal (24 A L J 349) and (3) Nur Muhammad and others v. Hassomal and another (78 I C 953), In Hari Ram v. Prem Nath (158 I C 120), Jai Lal J. in delivering judgment in which Monroe J. concurred, held that section 12 of the Act did not apply to an application for leave to appeal to His Majesty in Council, it being unnecessary for the applicant to file a copy of the decree or judgment with the application.

In this case the learned judges have gone a step further in holding that even subsection (2) of section 12 does not apply to an application fox leave to appeal to His Majesty in Council. But the question is not before us as it is conceded that the applicant never applied for a copy of the decree sought to be appealed from. It is, therefore, unnecessary for us to express any opinion on this aspect of the question.

The learned counsel for the petitioner relies on Mahabir Prasad Tewari v. clamuna Singh (I L R 1 Pat, 429) and In re : The Secretary of State for India in Council (48 Mad. 939). It was undoubtedly held in these cases that subsection (3) of section 12, Limitation Act, was applicable to applications for leave to appeal to His Majesty in Council. But in the Patna case this view was based mainly on the practice of that Court requiring the applicant to file a copy of the judgment with the application. No such practice obtains in this Court. Moreover, the practice referred to may be a relevant consideration for extending the time under section 5 of the Limitation Act, but it does not, in our opinion, justify the extension of the scope of subsection (3), which does not in terms apply to applications for leave to appeal. In the Madras case, it was conceded that subsection (3) in terms did not apply. Yet the learned Judges who decided that case put an interpretation on subsection (3) so as to give it a wider scope and make it applicable to all categories mentioned in subsection (2). With all respect, we are' unable to accept this interpretation. Reading subsections (2) and (3) of, section 12, it is clear that the Legislature has deliberately omitted applications for leave to appeal from subsection (3).

For the above reasons, we hold that the petition is barred by time and we accordingly dismiss it with costs.

A. H. Application dismissed

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