1. ' The only material point for consideration in the petition under section 115 Civil Procedure Code is whether the appeal filed before the lower appellate Court was jime-barred as held by it. The judgment of the trial Court is dated 11-5-1987. Petitioner applied for copy of the judgment on the same date and the copy was ready on 12-5-1987. On 21-5-1987, he applied for a copy of the decree following the judgment. On 7-6-1987, Copying Agency reported that decree was not prepared and was non-existent and returned the application bearing the above endorsement to the petitioner.
2. On 18-6-1987, petitioner applied to the trial Court for preparation of the decree-sheet. It was prepared on 24-9-1987. Thereafter, on 6-10-1987, petitioner applied for a copy of the decree prepared for the first time on 24-9-1987. It was ready for delivery on 29-10-1987 and was also received on the same date. Consequently, appeal accompained by the certified copy of the judgment and decree was filed before the lower appellate Court on 1841-1987. When it came up for hearing, respondents objected to its maintainability on the ground that it was barred by limitation.
3. Objection was upheld and the appeal was dismissed on 19-3-1989 by the learned Judge below holding it as barred by limitation. In taking this view, lower appellate Court referred to and relied upon the cases reported in AIR 1927 Nagpur 1, AIR 1928 Nagpur 131, AIR 1929 Rangoon 116, PLD 1964 Peshawar 187 and 1987 CLC 664.
4. ' Upon hearing the learned counsel for the parties and examination of the decided cases, view taken by learned Judge below cannot be upheld. There is no disptue as to the material dates noted above. It is common ground that the decree was not in existence and was prepared on the application of the petitioner on 24-9-1987. Upon the above dates and facts it is to be seen whether the appeal was hit by limitation. Article 152 of the Limitation Act provides thirty days for filing of an appeal to the Court of District Judge. Limitation commences from the date of the decree or order appealed from. Section 12 of the Limitation Act which deals with computation of period of limitation separately provides that time requisite for obtaining a copy of the decree and judgment on which it is founded shall be excluded. Subsection (2) reads:-- "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."
5. ' Subsection (3) provides:-- "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."
6. From the conjoint reading of the above two subsections, it is evident that it is not the requirement of law that only one of the two, that is, either the time for obtaining a copy of the decree or the time taken in obtaining a copy of the judgment would be excluded and that both the periods except the overlapping period cannot be excluded. Leaving aside sharp cleavage of judicial opinion on the point as to whether a party was entitled to the benefit of subsection (2) of section 12'in the, absence of an application for a copy of the decree even if it was not in existence and was prepared and signed subsequently, the Supreme Court in The Government of West Pakistan and others v. Niaz Muhammad PLD 1967 SC 271 clearly held that in such circumstances, time ran from the date of signing of the decree. That put a lid on the existing controversy. Earlier to it, similar views were expressed by a Full Bench of High Court of East Pakistan in Barada Prasanna Lod and others v.
7. Kubbad Mia PLD 1962 Dacca 381. In Abdul Ghafoor and another v. Sher Ahmad and others PLD 1961 (W.P.) Lahore 366 (at page 371) Hon'ble M.R. Kayani, C.J.,referring to this aspect of the question observed, "Should we regard it as the appellants' duty to apply for both copies at the same time?
8. Since section 12 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 be impracticable, because the decree itself may 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". Observations in Rajeshwar Rai and others v. Shankar Rai and others AIR 1962 Patna 398 are also in point. Upon proper calculation of allowable exclusions of the periods requisite for obtaining a copy of judgment and decree added to the statutory period prescribed for an appeal, under the Code of Civil Procedure, to the Court of a District Judge under Article 152 of the Limitation Act, 1908, it is clear that the appeal was in time and was wrongly held to be barred by limitation. Subsection (3) of section 12 of the Limitation Act expressly states that the time requisite for obtaining a copy of the judgment shall also be excluded. How can then the petitioner be denied the benefit of the time taken by him in obtaining the copy of the judgment which was applied on 11-5-1987 and delivered on 12-5-1987.
9. Therefore, impugned judgment and decree passed by the learned Judge below are not sustainable and view of law taken by him in view of aforenoticed decision of the Supreme Court cannot be upheld. As the learned Judge did not enter upon merits of the case and decided the appeal on point of limitation only, learned counsel are agreed that an opportunity be afforded to the parties to first have the opinion of lower appellate Court on merits of the case. They say that this course shall not impair their further right of appeal. I agree.
10. In view of the aforesaid, revision petition is allowed, impugned judgment and decree of the learned Judge below are set aside and the case is remanded to D his Court for deciding of it afresh in accordance with law. Costs incurred in this Court shall be borne by the parties.
11. Records be returned.