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Nathu Ram Vs. Ganga Bux - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1930All815
AppellantNathu Ram
RespondentGanga Bux
Excerpt:
- - ..7. where an appeal had been preferred after the expiry of the period of limitation and was admitted by the court 'subject to any objections which might be taken at the hearing' their lordships condemned this procedure in the following terms:.....9, rule 13, civil p.c., but should be considered as one for review of judgment under order 47, rule 1, civil p.c.3. the court accepted this petition. it may be noticed here that the period of limitation for the review of a judgment by a provincial court of small causes is fifteen days from the date of the decree or order under article 161, lim. act.4. on 21st december 1929 a formal application was put in for extending the period of limitation upon the ground of fraud. it was stated therein that the plaintiff in consideration of the receipt of rs. 50 paid to him by the defendant had agreed to exempt him from the action and that he had been assuring the defendant from time to time that he had exempted him from the claim and that there was no outstanding decree against him. the.....
Judgment:

Sen, J.

1. Nathu Ram sued Sunder Lal, Ganga Bakhsh and Ramadheen in the Court of Small Causes at Cawnpore for recovery of Rs. 267. Notice of the claim could not be served upon Ramadheen and he was exempted. Sunder Lal and Ganga Bakhsh in spite of service of summons did not contest the claim and an ex parte decree was passed against them on 6th January 1928.

2. On 5th December 1929, Ganga Bakhsh applied to the Court for setting aside the ex parte decree under Order 9, Rule 13, Civil P.C. Notice of this application was given to the plaintiff and 21st December 1929 was fixed for its disposal. On that date Ganga Bakhsh applied to the Court that as there were technical defects in his application, the same should not be treated as one under Order 9, Rule 13, Civil P.C., but should be considered as one for review of judgment under Order 47, Rule 1, Civil P.C.

3. The Court accepted this petition. It may be noticed here that the period of limitation for the review of a judgment by a provincial Court of Small Causes is fifteen days from the date of the decree or order under Article 161, Lim. Act.

4. On 21st December 1929 a formal application was put in for extending the period of limitation upon the ground of fraud. It was stated therein that the plaintiff in consideration of the receipt of Rs. 50 paid to him by the defendant had agreed to exempt him from the action and that he had been assuring the defendant from time to time that he had exempted him from the claim and that there was no outstanding decree against him. The defendant averred that it was not till 2nd January 1920 when the amin appeared with a writ of attachment that he came to know that the decree had been obtained by the plaintiff against him for the entire amount on 6th January 1928. Upon these grounds the defendant prayed that the period for the application for review of judgment be extended.

5. The original application under Order 9, Rule 13, Civil P.C., made on 5th December 1929, was accompanied by an affidavit but not the application dated 21st December 1929. No notice of this application appears to have been given to the plaintiff. The learned Judge of the Court of Small Causes did not initially or even at a subsequent stage of the case determine the question of limitation which was a vital question in the case, It has accepted the review and dismissed the suit against Ganga Bakhsh.

6. In Krishna Swami Pani Kondar v. Rama Swami Chettiar A.I.R. 1917 P.C. 179 the Judicial Committee observed

that the admission of an appeal after the period of limitation has expired, deprives the respondent of a valuable right by putting in peril the finality of the order in his favour....

7. Where an appeal had been preferred after the expiry of the period of limitation and was admitted by the Court 'subject to any objections which might be taken at the hearing' their Lordships condemned this procedure in the following terms:

Their Lordships therefore desire to impress on the Courts of India the urgent expediency of adopting in place of this practice a procedure which will secure at the stage of admission the final determination (after due notice to all parties) of any question of limitation affecting the competence of the appeal,

8. These observations should apply with equal force where an application for review of judgment has been made beyond the statutory period of limitation.

9. The period of limitation prescribed in the second schedule must necessarily be arbitrary. The reason for providing a shorter period of limitation for review of judgment in Small Cause Court suits may be two fold: (1) The expediency that the cloud of uncertainty as to the legality or enforcibility of the claim in petty cases ought not to be allowed to continue for a very long time and (2) in cases before the Courts of Small Causes where the record of the pleadings and of the evidence is more or less imperfect the Judge may have greater difficulty in remembering the facts and circumstances of the case after fifteen days than within fifteen days.

10. Ex facie the application for review of judgment was made beyond time. A legal duty was cast upon the Judge to determine the question in the first instance as to whether there was sufficient cause for extending the period of limitation under Section 5, Lim. Act. Where the Court below in an application for review which is prima facie time barred without determining the question of limitation proceeds to admit the application for review, the order passed by the Court is not only irregular but possibly without jurisdiction. If a review as apparently time barred is admitted without cause being shown for the delay the entire proceedings consequent on such review must be set aside as of no legal effect. This view was taken by this Court in Janki Prasad v. Parmeswar Din Pande [1915] 29 I.C. 975 the facts of which bear a close resemblance to the present case.

11. Where sufficient cause had been shown for enlarging the time, the application for review ought to have been admitted as such. But the Court ought to have addressed itself to the next question namely whether any grounds of review had been made out under Order 47, Rule 1, Civil P.C., Review is not sought in this case on the ground of discovery of new and important matter or evidence which after the exercise of due diligence was not available to the applicant when the decree was passed nor on account of any mistake or error apparent on the face of the record. The applicant pleads fraud. It was for the Court below to determine as to whether the alleged fraud was established and constituted 'other sufficient reason' within the meaning of Order 47, Rule 1, Civil P.C. The Court has not determined the vital issues either in their order of sequence or in any order at all. The points have been left undecided and yet a review has been granted.

12. If the applicant succeeded in getting over the bar of limitation and also in establishing a case under Order 47, Rule 1, Civil P.C., the Court was bound under Order 47, Rule 8, Civil P.C., to make a note in the register that the application for review had been granted. The Court then could either at once rehear the case or make an order in regard to the hearing as it thought fit. There are no materials before this Court to determine as to whether the requisition contained in Order 47, Rule 8, Civil P.C., had or had not been complied with. The order sheet is silent on this point.

13. The procedure adopted by the Court below is open to serious criticism on the grounds indicated above. The initial issue as to limitation remains untried. No attempt is made to determine whether any grounds for review have been made out and whether the grounds alleged and proved fulfil the requirements of Order 47, Rule 1, Civil P.C. It is manifest therefore that there has been no proper trial and the case must go back.

14. I allow the application for revision, set aside the order of the Court below and remand the case to the Court of Small Causes at Cawnpore with direction to re-admit it tinder its original number and dispose it of according to law. Costs here and heretofore shall abide the event. Costs in this Court will include fees on the higher scale.


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