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Bhagwati Prasad and anr. Vs. Ram Roop Tewari and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 862 of 1958
Judge
Reported inAIR1962All622
ActsLimitation Act, 1908 - Article 168; Code of Civil Procedure (CPC) - Order 41, Rules 17 and 19
AppellantBhagwati Prasad and anr.
RespondentRam Roop Tewari and ors.
Appellant AdvocateMukhtar Ahmad, Adv.
Respondent AdvocateVishwanath Sahai and ;R.S. Prasad, Advs.
Excerpt:
limitation - article 168 of limitation act, 1908 and order 41 rules 17 and 19 of code of civil procedure, 1908 -final hearing - parties ignorant about dates - dismissed - restoration application after limitation period - held, the application can be allowed invoking inherent jurisdiction. - .....below neither the parties to the appeal nor their counsel had knowledge of this date. on this date the appeal was dismissed for default and then an application for restoration was made on 3rd september, 1957. the appeal has been restored and the contention of the learned counsel for the applicants is that the application for restoration having been filed more than 30 days after the date of the dismissal of the appeal the application was barred by article 168 of the limitation act.2. this contention cannot be accepted because unless the dismissal of the appeal is under order 41 rule 17 neither rule 19 will apply nor article 168. in such a case the error can be corrected by the court in its inherent jurisdiction and for the exercise of such inherent jurisdiction under section 151.....
Judgment:
ORDER

Mithan Lal, J.

1. I have heard learned counsel for the parties. It appears that on 6th May, 1957, the appeal was fixed for final hearing for 17th July, 1957, but according to the finding of the Court below neither the parties to the appeal nor their counsel had knowledge of this date. On this date the appeal was dismissed for default and then an application for restoration was made on 3rd September, 1957. The appeal has been restored and the contention of the learned counsel for the applicants is that the application for restoration having been filed more than 30 days after the date of the dismissal of the appeal the application was barred by Article 168 of the Limitation Act.

2. This contention cannot be accepted because unless the dismissal of the appeal is under Order 41 Rule 17 neither Rule 19 will apply nor Article 168. In such a case the error can be corrected by the Court in its inherent jurisdiction and for the exercise of such inherent jurisdiction under Section 151 Article 168 will not stand in the way of the Court. There being a finding of fact in this case that the parties or their counsel had no knowledge of the date, the dismissal order of the appeal could not be under Rule 17 and consequently it cannot be said that the Court below exercised the jurisdiction not yested in it by restoring the appeal. The revision, therefore, fails.

3. The revision is accordingly dismissed withcosts. The order passed by the Court below ismaintained. Record of the case shall be sent back to the Court below forthwith.


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