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2025 DIGILAW 219 (PAT)

Jitendra Kumar Jha v. 108 Shyamjee

2025-02-25

KHATIM REZA

body2025
ORDER These cases have come today under the heading “To Be Mentioned” at the instance of the appellant. Re:- I.A. No. 8238 of 2016 in S.A. No. 345 of 2016 2. This limitation application has been filed in compliance of order dated 16.09.2016 passed by Lawazima Board regarding delay of 9 days in filing the present appeal and consequently praying for condonation of said delay, if any, as factually and legally there is no delay and the appeal has been filed well within the statutory period of limitation. Learned counsel further submitted that impugned judgment was passed on 22.04.2016 and decree was prepared and signed on 04.05.2016, the requisition for certified copy of decree under appeal was filed on 23.04.2016 and the same was made ready for supply on 27.05.2016. 3. Learned counsel for the appellant further submitted that the requisition for certified copy of decree under appeal was filed on next date of the judgment passed in this case i.e. 23.04.2016, which was supplied on 27.05.2016. The period consumed for supplying the certified copy of decree was 35 days which has not been excluded by the Stamp Reporter. 4. In the instant appeal against impugned judgment, the limitation has expired on 25.07.2016 as per the report of Stamp Reporter excluding the time consumed in supplying the certified copy of decree i.e. 35 days. Learned counsel for the appellant submitted that the present Second Appeal has been filed on 03.08.2016 i.e. well within the statutory period of limitation. The appeal is not time barred from the decree. He has placed reliance on Section 12(2) of the Limitation Act, which reads as under: – “In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for 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 revised or reviewed shall be excluded.” 5. Learned counsel for the appellant has further placed reliance in the case of Addl. Collector of Customs vs. M/s. Best & Co. Learned counsel for the appellant has further placed reliance in the case of Addl. Collector of Customs vs. M/s. Best & Co. and others reported in AIR 1966 SC 1713 wherein it has been held that the provision of Section 12(2) and (3) are a positive direction excluding the time taken in obtaining a copy of the judgment and decree or order as the case may be and those provisions are irrespective of the Code of Civil Procedure or the rules made by a Court under Section 122 of the Code. Such rules if they permit a memorandum of appeal to be filed without annexing thereto a copy of the judgment or decree or order confer a privilege on a would be appellant but do not govern the positive direction contained in Section 12. 6. Learned counsel for the appellant has further placed reliance in the case of The Commissioner of Sales Tax, U.P. vs. M/s. Madanlal Dan & Sons, Bareilly reported in AIR 1977 SC 523 wherein, the Hon’ble Supreme Court has held that “the provisions of Section 12 (2) of the Limitation Act would apply even though the copy mentioned in that sub-section is not required to be filed along with the memorandum of appeal. The same position should hold good in case of revision petitions ever since Limitation Act of 1963 came into force.” 7. Considering the aforesaid provisions of the limitation Act as well as judgments relied by learned counsel for the appellant, the time taken in obtaining the certified copy of decree under appeal is also excluded from the period consumed. There is no limitation as per the aforesaid decisions or Section 12 (2) of the Limitation Act. 8. Accordingly, I.A. No. 8238 of 2016 stands disposed of holding that there is no delay in filing the memo of appeal.