Sir Edward Maynerd Des Champs Chamier, Kt. C.J.

1. The first question for decision is whether this appeal was filed within time. The judgment of the lower Appellate Court was pronounced on January 4th, 1916. The decree was signed on January 8th. An application for copies of the judgment and decree was presented on February 17th and on the same day notice was given to the applicant of the number of folios required for the copies. The folios were filed on February 22nd and a note was then made on the back of the counterfoil of the application that the copies would be ready on February 24th. The applicant received the copies on the last mentioned date and filed his appeal in this Court on April 14th. The appeal was filed within time if limitation is calculated from January 8th, the day on which the decree was signed, and the appellant is allowed to deduct all the time that elapsed between the date of the filing of the application for the copies and the delivery of the same. It was held by a Bench of five Judges of the Calcutta High Court, as long ago as May 1886, that in cases of this kind the period of limitation should be calculated from the date on which the decree was actually signed [see Hani Madhub Mitter v. Matungini Dassi 13 C. 104 (F.B.)]. That decision has not been followed by all the other High Courts, but the practice is so well established in the territories over which this Court has jurisdiction that we think we ought to follow it; Limitation must, therefore, be calculated in the present case from January 8th.

2. The question whether an appellant is entitled under section 12 of the Limitation Act to deduct all the time that elapsed between the date of his application for a copy and the date on which it was delivered to him, even if delivery of the copy was delayed, as in this case, by reason of his own neglect to file the folios as soon as the required number was notified to him, has not, so far as we are aware, been the subject of any reported decision of the Calcutta High Court. But we are informed that for some time past it has been the practice on the appellate side of that Court to allow the appellant to deduct all the time that elapsed between the presentation of his application for a copy and the delivery of the copy, although the preparation of the copy was delayed by his own neglect to file the folios. We are not prepared to follow this practice, which seems to us to be contrary to law. It appears that in some cases litigants have taken advantage of it to give themselves a longer period of limitation than the law intended to give them. We understand that it has been held generally in the Subordinate Courts that an applicant for a copy should deposit the required number of folios not later than the first day on which the office of the Court is open after that on which the number of folios was notified to him and that in calculating the time required for obtaining a copy the applicant is not entitled to deduct the days during which the preparation of the copy was delayed by his own neglect to furnish the folios. This appears to us to be a reasonable rule and we propose to enforce it for the future in all cases to which section 12 of the Limitation Act applies both with reference to appeals and applications filed in this Court and with reference to appeals and applications filed in Subordinate Courts. It appears to us that the length of time requisite for obtaining a copy within the meaning of section 12 of the Limitation Act ought not to vary with the dilatoriness of the applicant in supplying the required number of folios.. The present appeal was in our view of the law filed beyond time, but there can be little doubt that the appellants relied upon the practice which prevailed in the Calcutta High Court and under the circumstances we hold that they have, within the meaning of the explanation to section 5 of the Limitation Act, established sufficient cause for not filing their appeal within time.

3. The appeal arises out of a suit brought by the appellants for a declaration that respondents Nos. 1 to 4 were in possession of a certain quantity of zerait land in excess of their proper shares. The appellants claimed to be entitled to a share in the profits of the excess lands. The Subordinate Judge dismissed the suit, because the appellants did not procure the formal appointment of a guardian ad litem for two of the respondents and also because the appellants failed to implead as defendants two persons who held shares in the village. On appeal the Additional District Judge agreed with the Subordinate Judge that the suit must fail because a guardian ad litem had not been appointed for two of the minor respondents, and expressed the opinion that persons in the position of the present appellants were not entitled to make a claim of this kind against co-sharers who were found to be in possession of zerait lands in excess of their shares. We should have found it difficult to sustain the dismissal of this suit on the ground that a guardian ad litem was not appointed for the two minor respondents, for it appears that the appellants put in a formal application for the appointment of a guardian ad litem of these respondents. They also mentioned the proposed guardian in the plaint and the proposed guardian, who was the elder brother of the two minors, was allowed to represent the respondents at the trial. In these circumstances it would be difficult to hold that the suit should be dismissed merely because there was no formal order appointing a guardian ad litem. It seems to us that the learned Additional' Judge has overlooked the 18th paragraph of the written statement, which appears to admit the existence of a practice among co-sharers in this village whereby any co-sharer, who cultivates land in excess of his share, takes one half of the produce as if he were the raiyat of the land and distributes the remaining half to co-sharers in the village. But it seems to us that the appellants' suit was rightly dismissed in consequence of their failure to implead two of the co-sharers in the village. The principal question of fact in dispute between the parties is the extent of the zerait land held by the respondents or some of them in excess of their shares. This cannot he finally determined in the absence of some of the co-sharers in the village, nor can the profits or any. portion of the profits of the excess land be distributed amongst the parties behind the backs of some of the co-sharers in the village. For these reasons we are of opinion that the suit was rightly dismissed and we dismiss this appeal with costs.