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Bohra Gajadhar Singh Vs. Basant Lal and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in61Ind.Cas.69
AppellantBohra Gajadhar Singh
RespondentBasant Lal and ors.
Cases ReferredKalu v. Latu
Excerpt:
limitation - decree amended--appeal against original decree--limitation, torminus a quo. - - any other view might lead to a failure of justice in many cases, because, as painted out in the case of kalu v......judgment is given for holding that, in certain cases, when an appeal is preferred from an amended decree time will be allowed under section 5 of the limitation act. mr. justice mookerji has explained the law on the point thus: 'we desire, however, to make it clear that every amendment made in a decree under section 206, civil procedure code, does not necessarily entitle a party who prefers an appeal against the decree to claim an extension of time under the second paragraph of section 5 of the limitation act; whether there is sufficient cause for such extension must depend upon the circumstances of each individual case; for instance, if the amendment has no reactor to the grounds upon which the validity on the decree is sought to be challenged it appeal, it is difficult to see how an.....
Judgment:

1. This appeal arises out of a suit brought by the plaintiff appellant as Lambardar for the recovery of arrears of rent or revenue against the defendant-respondent, a co-sharer. The claim was laid at Rs. 456, for three years immediately preceding the institution of the suit. The claim was resisted on various pleas. The Assistant collector decreed the claim for Rs. 125-12-2 on the 30th of May 1917. On the 8th of August 1917, the plaintiff made an application to the Court of the Assistant Collector for amendment of the decree on the ground that the evidence of the Patwari showed that the money due to the plaintiff from the defendant for revenue for the years in suit was Rs. 374 2 5. The Assistant Collector, without issuing notice to the opposite party, amended the decree then and there on the 11th of September 1917, the plaintiff preferred an appeal to the Court of the District Judge complaining of the disallowance of interest to his in the decree of this first dart. The appeal was re jested by the learned Judge on the ground of limitation. The plaintiff come up in second appeal in that Court and the appeal was heard by a lowered Judge of this Court who has referred the case to a Bench of two Judges as be was of opinion that the point raised was one that was not covered by any authority of this Court The learned Vakil for the appellant relies in support of his argument on two Case', namely, Amar Chitidra Kunin v. Asad Ali Khan 32 C. 908 and Brojo Lal Rai Chowdhury v. Tara Prasnnna Bhattacharji 3 C.L.J. 183, ln the former case no reason is given for the view enunciated therein. In the latter case a reasoned judgment is given for holding that, in certain cases, when an appeal is preferred from an amended decree time will be allowed under Section 5 of the Limitation Act. Mr. Justice Mookerji has explained the law on the point thus: 'We desire, however, to make it clear that every amendment made in a decree under Section 206, Civil Procedure Code, does not necessarily entitle a party who prefers an appeal against the decree to claim an extension of time under the second paragraph of Section 5 of the Limitation Act; whether there is sufficient cause for such extension must depend upon the circumstances of each individual case; for instance, if the amendment has no reactor to the grounds upon which the validity on the decree is sought to be challenged it appeal, it is difficult to see how an admission of the appeal out of time may be reasonably claimed merely on the ground that an amendment has been made in the decree On the other hand, if the grounds on which the appeal is based are intimately connected with the amendment of the decree or if, a! in the case before UP, the grounds an directed against the decree only in so far as ii has been amended, an appellant may lagitimately ask the Court to exercise in his favour the discretion vested in it by paragraph 2 of Section 5 of the Limitation Act. Any other view might lead to a failure of justice in many cases, because, as painted out in the case of Kalu v. Latu 21 C. 259 : 10 Dec. (N.S.) 805, there is no limitation for an application under Section 205 Civil Procedure Code, whereas a short period of time is prescribed within which an appeal must be filed; if, therefore, an amendment obtained on erroneous grounds after the period for appealing has expired, the part; affected by sash erroneous order would be without remedy unless he was allowed to present an appeal against the amended decree, and the Court, in the exercise of its powers under Section 5 of the Limitation Act, admitted the appeals though presented out of time.' Applying the principle laid down by the learned Judge to the present case, we find that the appeal of the plaintiff-appellant was rightly dismissed by the learned District Judge. The appeal to the learned District Judge did not attack the amended decree or raise any question connected with the amended decree. The question of interest could have been raised on the original decree and was connected with the original decree. Another argument on behalf of the plaintiff-appellant is that his application to the Court below for amendment of the decree was really one for review of the decree. This is a new ground which was not taken in the Court below, nor in the grounds of appeal before us, nor can we say after examining the language of the application of the plaintiff and the procedure of the first Court that the application of the plaintiff was for review. The appeal, therefore, fails and is dismissed with costs including in this Court-fees on the higher scale.


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