Skip to content


Bhimrao Ramrao Vs. Ayyappa Yellappa - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 171 of 1906
Judge
Reported in(1906)8BOMLR858
AppellantBhimrao Ramrao
RespondentAyyappa Yellappa
DispositionAppeal dismissed
Excerpt:
.....filed a suit on the 24th february 1900, in which it was decided on the 30th september 1903, by the district judge in first appeal that the suit was barred by section 244 of the civil procedure code. it was not till the 4th january 1904 that an appeal from the order of 25th february 1899 was preferred. the district judge decided that there was no sufficient reason for not presenting the appeal in time and dismissed the appeal:; that having regard to the delay which occurred in presenting this appeal between the 30th september, 1903 to the 4th january 1904, it was not open to the appellant to contend that the district court exercised its discretion in a capricious or arbitrary manner. - - the proper remedy of the party not satisfied with that order was to appeal to the district court:..........1900, and on the 30th september, 1903, it was decided, in the first appeal in that suit, by the district judge that the suit was barred by section 244, civil procedure code, i.e., it was pointed out to the appellant, in this very litigation, that he had gone to a wrong court and taken wrong proceedings.2. nevertheless the appellant, instead of taking the right course and appealing at once from the order of 25th february 1899, waited until the 4th january 1904, when he filed in the district judge's court his appeal against that order. he also appealed to the high court against the appellate decree of 30th september 1903 in his suit. the district judge decided that there was no sufficient reason for not presenting, the appeal in time, and dismissed the appeal with costs as being barred.....
Judgment:

Aston, J.

1. The order under appeal was passed on the 25th February, 1899, in execution proceedings. The proper remedy of the party not satisfied with that order was to appeal to the District Court: Gowri v.Vigheahvar I L R (1982) 17 Bom. 49. The period of limitation for such an appeal, as provided by the Limitation Act, is thirty days. The proceeding actually taken by the present appellant was however a suit filed on the 24th February, 1900, and on the 30th September, 1903, it was decided, in the first appeal in that suit, by the District Judge that the suit was barred by Section 244, Civil Procedure Code, i.e., it was pointed out to the appellant, in this very litigation, that he had gone to a wrong Court and taken wrong proceedings.

2. Nevertheless the appellant, instead of taking the right course and appealing at once from the order of 25th February 1899, waited until the 4th January 1904, when he filed in the District Judge's Court his appeal against that order. He also appealed to the High Court against the appellate decree of 30th September 1903 in his suit. The District Judge decided that there was no sufficient reason for not presenting, the appeal in time, and dismissed the appeal with costs as being barred by limitation. Against this decision the present appeal is brought.

3. Mr. Branson has relied on Section 5 of the Limitation Act, which provides, that any appeal or application for review of judgment may be admitted after the period of. limitation provided therefor, when the appellant satisfies the Court that he had sufficient cause for not presenting the appeal within the period prescribed. Mr. Branson's main contention was that although wrong proceedings were taken in the wrong Court through mistake of law, still those proceedings were prosecuted bona fide. The ground, however, upon which the District Judge has held that sufficient cause was not shown for not bringing the appeal within the proper period of limitation, is stated in the concluding portion of the judgment as follows :-

Assuming that ignorance of the law could be in these cricumstances a sufficient excuse, was it not the duty of the appellants to file their appeal within the time allowed by law from the date of the decision of this Court, for, after that decision, they must have known that there was considerable doubt as to the correctness of the course which they were following. I do not think that sufficient cause is shown.

4. There has been a delay from the 30th September 1903 to 4th January 1904 in presenting the appeal. After the decision of the 30th September 1903 the appellants must have known that there was considerable doubt about the correctness of the course they were following.

5. The present appeal being an appeal against the exercise of discretion it is for the appellant to show that the lower. Court has exercised its discretion capriciously or arbitrarily or without proper material to support its decision. [Vide the case of Parvati v. Ganpati ILR (1898) 23 Bom. 513. In Ranchodji v. Lallu ILR (1882) Bom. 304 it was held, that ' where the law leaves a matter within the discretion of a Court, and the Court, after proper enquiry and due consideration, has exercised the discretion in a sound and reasonable manner, the High Court will not interfere with the conclusion arrived at, even though it would itself have arrived at a different conclusion.'

6. And in the case of Karsondas v. Gungabai (1905) 7 Bom. L. R. 965 it has been held that ' when the time for appealing is once passed, a very valuable right is secured to the successful litigant : and the Court must, therefore, be fully satisfied of the justice of the grounds on which it is sought to obtain an extension of the time for attacking the decree, and thus perhaps depriving the successful litigant of the advantages which he has obtained.'

7. Having regard to the delay which occurred in presenting this appeal between 30th September 1903 to 4th January 1904, we do not think that it is open to the appellant to contend that the District Court has exercised its discretion under Section 5, Limitation Act, in a capricious or arbitrary manner. We, accordingly, confirm the decree of the lower appellate Court with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //