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Mohan Prasad Singh Deo Vs. Ganesh Prasad Bhagat and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberM.A. No. 72 of 1949
Judge
Reported inAIR1952Ori168; 17(1951)CLT278
ActsLimitation Act, 1908 - Sections 5; Code of Civil Procedure (CPC) , 1908 - Sections 153
AppellantMohan Prasad Singh Deo
RespondentGanesh Prasad Bhagat and ors.
Appellant AdvocateP.C. Chatterjee and ;M.S. Rao, Advs.
Respondent AdvocateS. Misra and ;R.K. Das, Advs.
DispositionPetition allowed
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....jagannadhadas, j.1. this is an interlocutory application in misc. appeal no. 72/49, which is pending in this court. the application is to amend the cause-title or the appeal memorandum by impleading the two persons; (1) rajendra prasad bhagat and (2) kamala devi as party-respondents in the appeal and for condoning the delay. the appeal was filed on 11-10-1949, and this application was made on 25-9-1950. in order ho appreciate the circumstances under which the application has been made, it is necessary to set out a few facts. m.a. 72/49 is against the order of the learned subordinate judge of berhampur on m.j.c. no. 92/48 before him. that was an application under section 47 civil p. c., in the course of proceedings for execution of a mortgage-decree obtained against the father of the.....
Judgment:

Jagannadhadas, J.

1. This is an interlocutory application in Misc. Appeal No. 72/49, which is pending in this Court. The application is to amend the cause-title or the appeal memorandum by impleading the two persons; (1) Rajendra Prasad Bhagat and (2) Kamala Devi as party-respondents in the appeal and for condoning the delay. The appeal was filed on 11-10-1949, and this application was made on 25-9-1950. In order Ho appreciate the circumstances under which the application has been made, it is necessary to set out a few facts. M.A. 72/49 is against the order of the learned Subordinate Judge of Berhampur on M.J.C. No. 92/48 before him. That was an application under Section 47 Civil P. C., in the course of proceedings for execution of a mortgage-decree obtained against the father of the present appellant by the decree-holders therein. By that petition, a question was raised by the judgment-debtor that the decree obtained against his father was not execuable against him, without determination of the question whether the mortgage on which the decree was based was for legal necessity. The learned Subordinate Judge decided that the present appellant was not entitled to raise the question in the course of the execution proceedings, but could do so only by a separate suit. It is against this order that the judgment-debtor has brought up the appeal pending in this Court against the decree-holders. They are 13 in number and at the date of the decree appear to have been members of a joint family. The two persons now sought to be impleaded as party-respondents were on the record of the Executing Court as joint-decree-holders by the date when the order appealed against, was passed by the learned Subordinate Judge. Out of them, the first Rajendra Prasad Bhagat was the original 4th decree-holder. The second Kamala Devi is the daughter of the original 5th decree-holder, Laxmi prasad Bhagat. Consequent on his death on 11-4-1947, she was substituted in his place in the execution proceedings by the order of the learned Subordinate Judge dated 30-9-1947.

2. The affidavit in support of the present application states that the non-inclusion of the above two names in the case title of the appeal memorandum, when filed, was due to the bona fide mistake of the petitioners' Advocate and explains how the mistake is said to have arisen. According to that affidavit, the papers for filing the appeal were received by post by the learned Advocate. The certified copies of the judgment and the decretal order against which the appeal was to be filed did not contain the names of the respondents excepting that of the first with the addition of 'and others.' Along with the papers, a copy of the execution petition was also received which shows the names of the decree-holders and in preparing the appeal memorandum the names as given in this copy were followed. It is further stated in the affidavit that the appeal on examination by the Stamp Reporter was found to be in proper order and that it was only during the course of the service of notice and the return thereof, that the mistake came to the knowledge of the learned Advocate and that thereafter after the necessary inquiries the correct facts became known. The learned Advocate Mr. Chatterjee has also filed an affidavit couching for the correctness of these statements. No counter-affidavit has been filed on behalf of either of the two persons sought to be impleaded controverting these statements. It must be noticed however that the present application was preceded by another application dated 15-3-1950 in which the substitution of Kamala Devi alone as a respondent was asked for in the place of the deceased Laxmi Prasad Bhagat. That was presumably on the footing that the said Laxmi Prasad died since the filing of appeal, and that the same came to the knowledge of the appellant on account of the service return on the said Laxmi Prasad Bhagat. His name was in fact shown in the cause title of the appeal memorandum, as originally filed. To that application, a counter-affidavit was filed on behalf of Kamala Devi stating that her father had died much earlier in the year 1947 and that her name had already been substituted in the rank of decree-holders. It would appear that it was only after that counter-affidavit was filed, that the correct position came to the notice of the learned Advocate for the appellant, and the mistake as regards not im-pleading Rajendra Prasad Bhagat also was discovered. The present application for amendment of the cause-title has accordingly been filed both as regards Kamala Devi and Rajendra prasad Bhagat.

3. The application is opposed on behalf of both the parties sought to be impleaded. It is strenuously urged that so far as the Advocate who has filed the appeal and who has also filed the affidavit swearing to this position is concerned, he may have done, what he did bona fide, but that does not absolve the judgment-debtor himself, nor entitle him to bring on record, by way of an amendment these two persons as respondents at a time when a fresh appeal, if filed, against them, would be time-barred. It has been strenuously urged that the discretion of the Court in such matters must be exercised with the same strictness which governs an application under Section 5 of the Limitation Act.

4. The mistake in not impleading the two persons in the original appeal memorandum appears to have arisen on account of two circumstances : (1) The certified copy of the order appealed against does not show the names of all the decree-holders in full, but, mentions only the names of the first decree-holder and merely notes 'and others' as the remaining decree-holders; (2) The copy of the execution petition on which the learned counsel for the appellant acted when filing tile appeal was itself incorrect in so far as it omitted to show Rajendra prasad Bhagat as a decree-holder at all, and continued to show the deceased Laxmi Prasad Bhagat as a decree-holder without showing the substituted name of Kamala Devi. This copy is only a private copy and it was not clear from the affidavit filed, who had the responsibility for this copy. On a question from us to the petitioner's Advocate, it has been expressly stated by him on instructions that it was the office copy which was kept by the lawyer of the judgment-debtor in the lower Court. It was further stated that it was sent by that lawyer along with the certified copy of the order appealed against, and other records connected herewith, to the judgment-debtor who sent the same to the lawyer at Cuttack for the filing of the appeal. All these records appeal to have been sent by post to Mr. Chatterjee.

5. The main argument before us has been that the judgment-debtor or his law agent must have been aware of the death of Laxmi Prasad Bhagat and of the substitution of Kamala Devi in his place, since the order for substitution by the subordinate Judge in the lower Court, dated 30-9-1947 was on contest by the judgment-debtor himself as well as by the remaining decree-holders. It is said that this fact should have been specifically brought to the notice of the Advocate at Cuttack by the judgment-debtor or his agent, when instructions were sent for filing of the appeal. It is also said that, if the private copy of the execution petition was scrutinised, it would have shown that there was an obvious error by way of omission of the 4th decree-holder's name which is now found to be that of Rajendra Prasad Bhagat. Whether the litigant or his law-agent must be presumed to have direct personal knowledge of such matters, having regard to the nature of the proceedings and the course that the particular proceedings have taken in Court, must depend upon the facts and circumstances of each case. In the present case the affidavit in support of the application has been filed by the private secretary of the judgment-debtor. He has sworn in his affidavit dated 15-3-1950 that the judgment-debtor had no knowledge of the death of respondent No. 4, until information was received from his Advocate at Cuttack for taking steps for substitution in the place of Laxmi Prasad Bhagat. He virtually reiterates the same in his present affidavit. His competence to depose in his affidavit to the fact that the judgment-debtor was not aware of the death of Laxmi prasad Bhagat has not been controverted by any counter-affidavit on this application. In the prior counter-affidavits what all is alleged amounts to saying that the judgment-debtor must have been aware in view of the substitution proceedings. Where, as in the present case the substitution proceedings are in respect of one of the many junior members of a family which has been probably dealing with the judgment-debtor through its managing member the 1st decree-holder, and where the litigation onbehalf of the judgment-debtor appears to have been attended to by a law-agent, it cannot be assumed as a matter of course, that the judgment-debtor in person must have been necessarily aware of the death of such junior member, especially, where as in this case, there is an affidavit stating that he was not aware. All that can be assumed is that the law-agent at the time was aware and that his knowledge must certainly be imputed to the judgment-debtor. If the mistake is clearly and directly attributable to the absence of diligence on the part of the agent, the judgment-debtor must take the consequences. But in the present case there is nothing to show that the same agent who was attending to the substitution proceedings was connected with the sending of instructions for filing the present appeal. It has been pointed out that the private secretary in para. 7 of his affidavit dated 25-6-1950 says that 'he could not recollect.' But that para only purports to give an explanation as to why the first petition was filed only for substitution and not for amendment and there is nothing to show that this private secretary was the law-agent connected with the substitution proceedings or the sending of instructions for filing the appeal. It is also to be remembered in this connection that the substitution order was made on 30-9-1947 and the present appeal was filed two years later on 11-10-1949. I am therefore not prepared to infer that the mistake now complained of had its origin either in the deliberate omission or the gross negligence of the judgment-debtor or his law-agent in spite of knowledge of the facts of the death of Laxmi Prasad Bhagat. However this may be, there is the further fact, in favour of the judgment-debtor that the records sent by him to Cuttack Advocate contained a certified copy of the order appealed against, which in the normal course may have been expected by him or his agent to contain the names of all the parties and that there was also in the records an office copy of the execution petition kept by his Advocate, which may have been not unreasonably assumed to be a correct copy.

6. I am therefore of the opinion that the mistake in this case cannot be held to have been caused by any gross negligence or want of reasonable diligence, attributable to the judgment-debtor or his agent, having regard to the facts and circumstances of this case.

7. To my mind the mistake in this case seems to be due at least to some extent to the lack of adequate personal scrutiny on the part of the lawyer or lawyers in this matter, and is also partly due to the fact that having regard to the present practice of Court, the certified copy of the cause-title of the order appealed against does not show the full names of all the parties. So far as the omission of the name of Rajendra Prasad Bhagat is concerned, a close and careful scrutiny of the private copy of the execution application which appears to have been taken as the basis for the cause-title of the appeal memorandum would have disclosed that the 4th decree-holder's name has been omitted to be typed. This mistake could have been avoided if Mr. Chatterjee had given his personal attention to the same. But, I am not pre-pared to say, having regard to the standards of personal scrutiny that may be reasonably expected and obtains as a fact : amongst lawyers of the standing of Mr. Chatterjee, this omission might not have bona fide escaped his notice. I am unable therefore to impute to him unreasonable negligence in this respect. As regards the non-mention of Kamala Devi as a party respondent in the original appeal, the responsibility for it cannot be laidat the door of Mr. Chatterjee since the copy of the execution petition acted upon continued to show Laxmi Prasad Bhagat as one of the decree-holders. Both the mistakes would have been avoided if the office copy maintained by the judgment-debtor's lawyer in the Court below had been correctly maintained up-to-date. If that lawyer had been also entrusted with the responsibility of sending instructions for the filing of [he appeal, I would have felt called upon to consider whether it was not negligence on his part that he having appeared in the substitution proceedings, should not have specifically brought to the notice of Mr. Chatterjee, who were the proper parties to be made respondents and whether the judgment-debtor should not suffer the consequence of that negligence. But there is nothing to show that the judgment-debtor entrusted the lawyers of the Court below with the job of sending instructions. The fact that the records were received by post and that have been received direct from the judgment-debtor as stated to us by learned, counsel for the petitioner, implies the contrary.

8. There can be no doubt in matters of this kind the question is ultimately one depending on the discretion of the Court having regard to the facts and circumstances. It is difficult to lay down any stereo-typed rules to govern all cases. But decided cases have indicated certain broad principles for the exercise of that discretion. Where the mistake which occasioned the delay is clearly and definitely attributable to the litigant himself or to his servant, or agent, what is required to be proved is that the mistake has occurred in spite of due diligence on their part. But in considering what is the standard of due diligence to be expected, one must necessarily have regard to various circumstances including the prevalent conditions. But where the mistake is attributable to the lawyer to whom he has entrusted his work, the Courts have generally thought it proper to condone the delay unless the mistake of the lawyer is due to unreasonable negligence. See 'RAM RAVJI v. PRALHADAS', 20 Bom 133; 'SHIB DAYAL v. JAGANNATH', 44 All 636; 'SURENDRA MOHAN v. MOHENDRA NATH', 59 Cal 781; 'DATTATRAYA v. SECY. OF STATE', 45 Bom 607. This view also derives support from the Privy Council case in 'RAJENDRA BAHADUR v. RAJESHWAR BALI', AIR (24) 1937 PC 276, in which the delay arising from lawyer's mistake was excused, the finding being that there was 'no gross negligence.' All these cases have been elaborately considered and followed by Justices Dhavle and Manohar Lall in 'NRISINGHA CHARAN V. TRIGUNAND JHA'. AIR (25) 1938 Pat 413. These are all no doubt cases where the mistake which caused the delay resulted from the legal advice given by the lawyer on which the litigant acted, but there is no reason to make any distinction, between lawyer's mistake of one kind and another, in the course of the discharge of his duties, except that on the facts of a case a mistaken legal advice may be less due to unreasonable negligence, than any other kind of mistake. The principle of these cases is that the litigant having placed the matter in the hands of a competent lawyer should not ordinarily suffer for any mistake which arose out of the normal and reasonable discharge of the lawyer's duties. In applying this principle Courts have viewed the mistake of a lawyer with certain latitude not because of any partiality or professional bias, but in order that the litigant should not be unduly penalised for the mistake of the lawyer who in one sense is an officer of the Court itself. This is not necessarily to say that as a matter of law the mistake of lawyer will be always excused, unless it positively amounts togross or culpable negligence. But a certain differentiation in standard is inevitable in the larger interests of justice where the exercise of discretion of the Court is called for according as the mistake is directly attributable to the negligence of the litigant or to that of the lawyer to whom he has entrusted his work. I am not to be understood as suggesting any lowering of the standard of care that is to be expected in such cases from a lawyer entrusted with the job. But there are other ways of insisting on a high standard of care on the part of the lawyer than that of penalising the litigant and giving the litigant the cold comfort that he can file a suit against the lawyer for damages for the loss occasioned by his negligence. Where the delay is occasioned by the mistake of the lawyer, and yet the circumstances justify its being excused, I would in an appropriate case, penalise the lawyer for his mistake by directing him to pay the costs personally or consider the feasibility of some other course, by way of penalty.

9. In the present case, I must also mention what I have already noticed that the mistake might have been obviated if the certified copy of the cause-title of the order appealed against showed the names of all the parties, or if the Stamp He-porter before certifying the appeal to be in proper order, had insisted, on the production of a certified voucher for the verification of the names and ranks of the parties. There appears to be certain amount of laxity in the practice of the Court in furnishing certified copies for appeal and in checking whether an appeal filed is in proper form in all respects. The advisability of measures to obviate this laxity may require to be considered.

10. So far as the present case is concerned, having regard to all the circumstances staged above, I do not think that the mistake on the part of the lawyer, Mr. Chatterjee is such as to disentitle the judgment-debtor from getting the delay excused in seeking the amendment of the cause-title pray-ed for by adding the two names proposed as party-respondents.

11. A question has been raised whether on such an application the strict standard of deligence that is necessary to be made out under Section 5 of the Limitation Act applies, when the application is for an amendment of the cause-title. It has been held in 'GOPALA KRISTNAYYA v. A. LAKSHMANA RAO', AIR 1925 Mad 1210 followed in 'ALABHAI VAJSURBHAI v. BHURA BHAYA', AIR 1937 Bom 401, that such an application for amendment is under Section 153 of the Civil P. C. It is true that in theory the appeal can be taken as having been filed against the person whose name has been brought on the amendment only on the date of the amendment. In that sense, therefore, considerations germane to Section 5 of the Limitation Act are not altogether out of place, on an application for amendment under Section 153 when it is beyond time. But it is to be remembered that in a case where the appeal has, in fact, been filed in time, but there has been a mistake in the array of parties, particularly as regards respondents, there can be no doubt that the appeal itself must have been intended to be filed as against all the necessary parties and the mistake is more often bona fide than not. In that respect it stands on a different footing, from an appeal not filed at all against any person until after limitation. In the latter cases it has been laid down that every day of delay has to be adequately explained. But it is not necessary to express any final opinion on this matter, because in the present case no question of prejudice to substantive vested rights of the parties sought to be impleaded is involved aS stated at the outset, the only question that has been decided by the order under appeal is that a particular objection raised by the judgment-debtor is one that has to be put forward if at all, by a separate suit and not in the execution proceedings. The decision therefore related to the appropriate procedure by which the objection is to be ventilated and does not decide any substantive right against the judgment-debtor or in favour of the decree-holders. The result of declining to excuse the delay in the present case can only be that the judgment-debtor will be driven to file a suit immediately against the two persons now sought to be impleaded, while he is still litigaing the question of procedure in the present appeal. This cannot but lead to certain degree of embarrassment and is not conducive to advancement of substantial justice.

12. Having regard to all the above facts and: circumstances of the case, I think the discretion of the Court ought to be exercised in favour of allowing the prayer of the petitioner. In the circumstances, however, it must be subject to the condition that the petitioner pays to each of the persons sought to be brought on the record by this amendment, fifty rupees only towards costs, on or before 1st May 1951.

13. The petition is accordingly allowed on the above terms.

14. In default of payment of costs, as above, the application will stand dismissed.

Narasimham, J.

15. The main question for consideration is whether the Court in exercise of its discretionary powers under Section 5 of the Indian Limitation Act read with Section 153 of the Civil P. C. should condone a delay of more than eleven months and permit : (i) the substitution of Kamala Devi in place of her father Laxmi Prasad Bhagat (respondent No. 4); and (ii) the addition of one Rajendra Prasad Bhagat as a respondent in the memorandum of appeal.

16. The petitioner's father was a mortgagor against whom a mortgage-decree was passed on the 23rd November, 1936 by the then Subordinate Judge of Berhampur in O. S. No. 11 of 1935. The decree-holders in due course put the decree into execution in E. P. No. 238 of 1948. In 1947 one of the decree-holders, namely, Laxmi Prasad Bhagat died and his daughter Kamala Devi applied for substitution in his place. Her application was hotly contested not only by the remaining decree-holders but also by the judgment-debtor. But the executing Court on 30-9-47 passed an order directing the substitution of her name in place of that of her father. The judgment-debtor subsequently died and was succeeded by his son, the petitioner. An objection under Section 47 of the Civil P. C. was filed by him against the execution of the decree and this was disposed of by the executing Court on 18-7-49. The petitioner then filed an appeal against that order on 11-10-49 but strangely enough omitted in his memorandum of appeal to implead Kamala Devi as one of the respondent-decree-holders though she had been substituted in place of her father Laxmi Prasad Bhagat as early as 1947. He also omitted to implead one Rajendra Prasad Bhagat who was admittedly decree-holder No. 4. He then filed a petition under Section 5 of the Limitation Act read, with Sections 151 and 153, Civil P. C., on 25-9-50; more than eleven months after the filing of the appeal.

17. The principles to be observed in exercising discretion under Section 5 of the Limitation Act are well settled. Where the applicant has acted in good faith with reasonable diligence in prosecution of the proceeding there may be a good ground for exercising the discretion in his favour. Butwhere either he or his agent or lawyer is guilty of negligence such discretion will not ordinarily be exercised. Moreover, a bona fide mistake of fact may be a sufficient cause but where a mistake arises from negligence and could have been averted by proper enquiry, such a mistake will not be a sufficient cause for exercise of the discretionary relief (see Chitaley's limitation Act, Second Edition, pages 285, 287 and 298 to 302). In considering whether the mistake is bona fide or not the Court should bear in mind the following definition of 'good faith' as given in Section 2(7) of the Indian Limitation Act,

' 'good faith' -- nothing shall be deemed to be done in good faith which is not done with due care and attention.'

It will be noticed that this definition of 'good faith' is identical with that given in the Indian Penal Code (Section 52) and is at variance with the following definition of the same expression given in Section 3(20) of the General Clauses Act, 1897 :

'A thing shall be deemed to be done in good faith where it is in fact done honestly whether it is done negligently or not.'

The definition given in the General Clauses Act would apply in construing other statutes and where an act was done negligently but honestly good faith may be inferred. But the special definition given in the Limitation Act makes it absolutely clear that no party can plead good faith for the purpose of Section 5 of the Limitation Act unless he can show that he acted with due care and attention, that is to say, that he did not act negligently. This fundamental difference between the definition of 'good faith' in the Limitation Act and in the General Clauses Act should be borne in mind in considering how far the petitioner can claim to have acted in good faith in the present case.

18. The case in respect of each of the two opposite-parties may be considered separately. Kamala Devi -- The petitioner has nut given clear reasons why Kamala Devi was not impleaded as a party in the memorandum of appeal though she was substituted in place of her lather in the execution proceeding alter contest in 1947. His Secretary in his first affidavit sworn on 15-3-50 stated that he was residing in the interior of Ganjam district, far away from the place of residence of the deceased (Laxmi Frasad Bhagat) and that he came to know about the death of the latter only on receipt of information from his Advocate. In his subsequent affidavit dated 25-9-50 the secretary has slightly changed his version and stated that he could not recollect that the respondent referred to in the process-server's return was the decree-holder about whose legal representatiyeship there was an enquiry and order in the lower Court'. This passage in the affidavit indicates clearly that the petitioner's Secretary was fully aware of the enquiry and the order passed by the lower Court in 1947 substituting the name of Kamala Devi in place of Laxmi Prasad Bhagat. As already pointed out the judgment-debtor contested her substitution and it will be fantastic to say that he or his agent was not aware of the death of Laxmi Prasad Bhagat'. My learned brother while realising the force of this argument has however pointed out that 'there is nothing- to show that the same agent who was attending to the substitution proceedings was connected with the sending of Instructions for filing the present appeal'. Section 5 of the Limitation Act casts on the party who wants the Court to exercise its discretion under that section the burden of satisfying the Court that he had, sufficient cause. It was therefore the duty of the petitioner to satisfy the Court byaffidavit or otherwise that the agent who conducted his litigation at the time or the substitution proceedings in 1947 was still not in service and that he was not the same person who gave instructions for filing the appeal. The affidavit of the petitioner's Secretary is entirely silent on this point and the use of the words 'he could not re-correct' in his affidavit dated 25-9-50 leads to the inference that the mistake was not due to different agents working for the petitioner on the two occasions but to the lapse of memory on behalf of the petitioner's Secretary, Forgetfulness by the petitioner's Secretary cannot be good ground for excusing the delay. If the substitution of one of the decree-holders had taken place without contest there may be some room for argument. But when the judgment-debtor contested the substitution of Kamala Devi and the Court passed a fairly lengthy order substituting her name on 30-9-47 I cannot understand how the judgment-debtor can be permitted to plead that he was unaware of her substitution. If he engages a negligent or forgetful Secretary to look alter his litigation he must suffer the consequences. Had the petitioner's agent exercised due care and attention as required by Section 2(7) of the Limitation Act he would have surely been aware of the substitution of Kamala Devi's name in the execution proceedings and would not have omitted it in the memorandum of appeal.

19. 'Rajendra Prasad Bhagat' : The circumstances under which the name of Rajendra Prasad Bhagat was omitted from the memorandum of appeal appear to be as follows : The petitioner's Counsel Mr. P. C. Chatterji had before him an uncertified copy of the decree in which the name of Rajendra Prasad Bhagat was not mentioned as one of the decree-holders but it was clearly mentioned that decree-holder No. 2 Babu Krushana Prasad Bhagat was dead and that his wife Sikuari Devi was substituted in his place and that his other heirs were already on record as decree-holders No. 3 and No. 4. Therefore even in that certified copy though the name of decree-holder No. 4 was not mentioned it was expressly stated that there was a decree-holder No. 4. While preparing the memorandum of appeal the existence of decree-holder No. 4 was completely overlooked and this was obviously due to the negligence of the clerk of Mr. P. C. Chatterji who did not carefully compare the uncertified copy of the decree with the memorandum of appeal before submitting it to Mr. Chatterji for his signature. Mr. Chatterji as a busy practitioner may not be expected personally to make such a comparison of a purely clerical nature. But as he has signed the memorandum of appeal he must take the responsibility for any error or omission in it, though it might primarily be due to the negligence of his clerk. The circumstances under which the mistake of a Counsel may be a sufficient cause for the purpose of Section 5 of the Limitation Act have been fully discussed in 'NRI-SINGHA CHARAN V. TRIGUNAND JHA', AIR 1938 Pat 413, referred to by my learned brother. That decision however dealt with mistakes on questions of law which, in my opinion, stand on a fundamentally different footing from mistakes of facts. It is well known that on many difficult questions of law there is a conflict of decisions and it is difficult for any Counsel to anticipate what view a Judge would take. No amount of care or diligence on his part would therefore suffice and in such circumstances there may be a good case for condoning the delay. Similarly mistake of fact if it is committed while acting in good faith may be a sufficient cause. But a mistake of fact arising out of negligence cannot be said to be committed in good faith.

20. In 'AMBIKA RANJAN v. MANIKGANJ LOAN OFFICE', 55 Cal 798 and 'SURENDRAMO-HAN v. MAHENDRANATH', 59 Cal 781 the question as to how far a party would suffer for the negligence of his legal adviser was considered and reliance was placed on the following observations of Brett M. R. in 'HIGHTON v. TREHERNE', (1879) 48 L J Ex 167.

'In cases where a suitor has suffered from the negligence or ignorance or gross want of legal skill of his legal adviser he has his remedy against that legal adviser, and meantime the suitor must suffer. But where there has been a bona fide mistake, not through misconduct nor through negligence nor through want of reasonable skill but such as a skilled person might make, I very much dislike the idea that the rights of the client should be thereby forfeited.'

In the present case I cannot hold that the legal adviser of the petitioner was not guilty of negligence bearing in mind the definition of 'good faith' given in the Limitation Act. I may in this connection refer to 'MT. UMMAKULSUM v. GHULAM RASUL', AIR 1929 Sind 32, where it was held that the failure on the part of a lawyer to amend the plaint by adding the name of one Fatma as defendant though her name was found in a certified copy of the compromise petition sent to him by his client amounted to carelessness. In the present case though the copy of the decree which was before Mr. Chatterji was not a certified copy yet he was acting on the basis of that document and if he would not care to notice the existence of decree-holder No. 4 mentioned in that document and ascertain his name he cannot ask the Court to exercise the discretion under Section 5 of of the Limitation Act.

21. My learned brother has taken the view that the failure to implead the two decree-holders was partly due to the laxity of practice in the Courts due to which the certified copy of the cause-title of the order appealed against did not show the full names of all the parties. He thinks that in the normal course the petitioner could expect the names of all the parties to be mentioned in the certified copy of the order appealed against. With great respect, I am unable to agree with these observations. The order appealed against was an order under Section 47, Civil P. C. It is true that the definition of the expression 'decree' as given in Section 2(2) of the Civil P. C. includes the determination of any question within Section 47, C. P. C. But Rule 6 of Order XX which requires the names of all parties to be shown in the decree in terms applies to decrees in suits. As far as I am aware there is no provision in the Civil P. C. which requires that a decree showing the names of all the parties should be drawn up when the executing Court passes an order on a petition under Section 47, Civil P. C. The General Rules and Circular Orders (Civil) of the Orissa High Court do not require the subordinate Courts to prepare decrees in such cases (see Rule 11(1) of Chap. V Part I). Therefore the certified copy of the order appealed against was prepared in the subordinate Court in accordance with the rules in force in this State and it cannot be said that there was any laxity of practice in that Court.

22. For the aforesaid reasons, left to myself, I would have rejected the petition. But my learned brother seems inclined to exercise the discretion in favour of the petitioner and the case is not of such importance as to justify reference to a third Judge. Consequently I do not think it necessaryto express disagreement with the order proposedby him. But with great respect I have to differ fromthe reasons given in his judgment.


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