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Brijnandan Saran Vs. Gadre - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtAllahabad
Decided On
Judge
Reported in(1923)ILR45All332
AppellantBrijnandan Saran
RespondentGadre
Excerpt:
.....mah.lj 74; 1993 lab ic 1858 overruled]. - section 5 of the limitation act clearly does not apply to a case of this kind, nor can the period during which the application lay pending in the court of the judge of the small cause court be excluded. 15. there is no illegality in the order which is now complained of......ex parte on the 28th of june, 1922.5. the second subordinate judge of cawnpore on this date was babu aghore nath mukerji.6. on the 28th of july, 1922, the defendant filed an application lo have the ex parte decree, which had been passed against him, set aside. this application was admittedly presented-to babu aghore nath mukerji, who on this date had become judge of the small cause court at cawnpore.7. in accordance with the provisions of section 17 of the provincial small cause court act, the defendant along with his application made an offer to furnish security, and there can be no doubt that babu aghore nath mukerji, by his order of the 28th of july, 1922, accepted the security which was tendered by the defendant.8. no order regarding the application to set aside the ex parte.....
Judgment:

Lindsay, J.

1. This is an application for revision of an order passed by the Second Subordinate Judge of Cawnpore in exercise of Small Cause Court powers.

2. On the facts stated the case is a hard one on the applicant for revision, but I have come to the conclusion, after hearing the learned Counsel, that it is not possible for me to interfere.

3. The facts are as follows: The applicant here was the defendant in a suit which was brought for the recovery of arrears of rent. That case was instituted in the court of the Judge, Small Cause Court of Cawnpore.

4. Under an order of the learned District Judge the case was transferred for disposal to the court of the Second Subordinate Judge of Cawnpore and it was decided ex parte on the 28th of June, 1922.

5. The Second Subordinate Judge of Cawnpore on this date was Babu Aghore Nath Mukerji.

6. On the 28th of July, 1922, the defendant filed an application lo have the ex parte decree, which had been passed against him, set aside. This application was admittedly presented-to Babu Aghore Nath Mukerji, who on this date had become Judge of the Small Cause Court at Cawnpore.

7. In accordance with the provisions of Section 17 of the Provincial Small Cause Court Act, the defendant along with his application made an offer to furnish security, and there can be no doubt that Babu Aghore Nath Mukerji, by his order of the 28th of July, 1922, accepted the security which was tendered by the defendant.

8. No order regarding the application to set aside the ex parte decree seems to have been passed by Babu Aghore Nath Mukerji until the 11th of August, 1922, when, on the strength of an office report, he passed an order directing the application to be returned for presentation in the proper court, that is to say, the court of the Second Subordinate Judge of Cawn-pore.

9. The application was taken to the Second Subordinate Judge and was received by him on the 12th of August, 1922.

10. By thai time more than thirty days had lapsed since the date on which the ex parte decree had been passed and the ' Second Subordinate Judge, Mr. Said-ud-din, rejected the application on the ground that it had been presented after time.

11. It is argued here in support of the application that the application was not time-barred, and it is claimed that the period during which the application lay in the court of the Small Cause Court Judge at Cawnpore ought to be excluded.

12. I am unable to accept these arguments. There can be no doubt that the limitation for an application of this nature was thirty days, and, in my opinion, the court below was correct in saying that there is no authority in the Limitation Act for extending the period for presentation. Section 5 of the Limitation Act clearly does not apply to a case of this kind, nor can the period during which the application lay pending in the court of the Judge of the Small Cause Court be excluded. The only section which deals with the exclusion of the period during which such a case is pending in another court is Section 14 of the Limitation Act, but that section does not apply to applications.

13. It is, therefore, quite clear that there is no error of law in the order which is passed by Mr. Said-ud-din and of which revision is here sought. It is a most unfortunate thing that Babu Aghore Nath Mukerji thought fit to hold up this application in his Court from the 28th of July to the 11th of August without passing any order upon it. The result of the negligence of the Judge has been to put the present applicant out of court; by the time the application was ordered to be returned to him for presentation in the proper court, the period of limitation had expired.

14. Further, it is to be noticed that Babu Aghore Nath Mukerji acted improperly on the 28th of July, 1922, in accepting the security which was, offered by the applicant. The Judge had no right to accept security if he had no jurisdiction to deal with the application, as he afterwards found. The case is a most unfortunate one, but, under the law, I am unable to give the applicant any relief.

15. There is no illegality in the order which is now complained of. I cannot, therefore, interfere with it under the provisions of Section 25 of the Small Cause Court Act. The application, therefore, fails and is dismissed. I make no order as to costs.


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