1. This appeal arises out of a suit instituted by the appellant for a declaration that a motor lorry which had been: attached in pursuance of their decree by respondents 1, 5 (now dead and represented by respondent 1) and 6 did not belong to her husband, Thakur Sat Parsan Singh taluqdar of Resi, respondent 2, but that it belonged to her. She had filed objections under Order 21, Rule 58, Civil P. C., but they were dismissed and consequently a suit for declaration was brought. The learned Munsif, in whose Court the case was instituted, dismissed the suit. The learned Civil Judge of Sultanpur held the appeal filed in his Court to be time barred and dismissed it, This appeal is from the decree of the learned Civil Judge dismissing the appeal as times barred.
2. The circumstances relating to the filing of the appeal in the Court of the District Judge of Sultanpur are that limitation was expiring on 5th September 1942. The appeal was not filed in, Court on that date but at 9 p. m. the appellant proceeded to the house of Mr. Srimal, Civil Judge Sultanpur, in whose Court the appeal was to be filed and requested him to accept it. Mr. Srimal directed the appellant to present himself in Court on Monday 7th September 1942, Accordingly the appellant appeared in Court on Monday the 7th September and on that day the' learned Civil Judge took the memorandum of appeal and made the following endorsement upon it:
'This was persented to me at my kothi on 5th September 1942 at about 9 p. m. and I directed the appellant's pleader to see me in Court today and present it then as I was doubtful if it could be presented at home.'
'Order : Let the Munsarim take it and make the necessary report.'
When the appeal came up for hearing, it was contended that it was time barred, Reliance was, placed for this view upon the decision of the Madras High Court reported in Sinappa Naidu v. Sinnamma Naicken, : AIR1925Mad201 , as well as upon other decisions. On the other hand, the appellant's learned advocate relied principally upon Din Ram v. Hari Das, 34 : ALL. 482 : (14 I. C. 744) and Sattayya Padayachi v. Soundarathachi, A. I. R. (11) 1924 Mad. 448 : (47 Mad. 312 F. B.).
3. The learned Civil Judge held that it was settled law that presentation of the plaint or memorandum of appeal after the usual court hours is a valid presentation and the Judge has jurisdiction to receive the same at his residence though he is not obliged to do so. In spite of this, however, he held that the matter was one of discretion with the Court and since the Judge to whom the memorandum was presented on 5th September did not in fact accept it on that date, the appeal could not be said to be filed within limitation.
4. The sole point in appeal is that the appeal should be deemed to have been accepted by the Judge on 5th September. I cannot agree with this contention, In Din Ram v. Hari Das, 34 ALL. 482 : (14 I. C 744), it has been laid down by the Full Bench that it is at the discretion of the Judge to accept the memorandum or not to accept it as be pleases and that if he accepts it he has not acted beyond his jurisdiction. In the present case, whatever the reasons might be, the learned Civil Judge did not exercise his discretion in accepting the memorandum of appeal on 5th September. Thus on 5th September that is on the last day of limitation, the memorandum of appeal did not become a part of the records of the Court. The fact that the learned Civil Judge says that he returned the memorandum directing the counsel or the pleader to present the memorandum in Court because he was doubtful of his powers clearly indicates that it was not his intention to accept the memorandum on 5th September but be desired to clarify the position as to his power to accept it, when the Court opened. This means that he did not even by implication accept the memorandum. That being so, the principle laid down in Din Ram v. Hari Das, 34 ALL. 482 : (14 I. C. 744), does not assist the appellant. In the present case the decision of the Civil Judge that the memorandum of appeal was not presented within the time allowed by law must, therefore, be accepted.
5. This appeal fails; no one appeared for the respondent and I pass no order as to costs.