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Thurai Rajah Vs. Jainilabdeen Rowthan - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtChennai
Decided On
Judge
Reported in(1895)ILR18Mad484
AppellantThurai Rajah
RespondentJainilabdeen Rowthan
Cases ReferredVeeramma v. Abbiah I.L.R.
Excerpt:
.....has any discretion, provided that the requirements of the law are satisfied. 5. all that the high court has to do is to see that the requirements of section 596 are satisfied. the application for a certificate that these requirements are satisfied is merely preliminary and ancillary to the admission of the..........for the admission of an appeal to six months . the date of the decree appealed her majesty in council. against.____________________________________________________________________________________________2. section 595: subject to such rules as may, from time to time, be when appeals lie to made by her majesty in council regarding appeals from the courts queen in council. of british india, and to the provisions hereinafter contained, an appeal shall lie to her majesty in council- (a) from any final decree passed on appeal by a high court or any other court of final appellate jurisdiction; (b) from any final decree passed by a high court in the exeroise of original civil jurisdiction; and (c) from any decree, when the case, as hereinafter provided, is.....
Judgment:

1. This is an application to admit an appeal to Her Majesty in Council from the decree of this Court in Appeal No. 23 of 1884. The decree was passed on January 20th, 1885. The appellant was at that time a minor under the Court of Wards. No appeal was preferred by the Court of Wards or by any other person on the minor's behalf, but this appeal is presented within six months of the minor's attaining majority. It is objected that the application to admit the appeal is barred, though not denied that in other respects the requirements of Section 596, Civil Procedure Code, would be satisfied.

2. Article 1771, Schedule II of the Limitation Act prescribes a period of six months for the admission of such an appeal, and the contention of the appellant's pleader is that he is entitled to the benefit of Section 7 of the Limitation Act, since in January 1885 the appellant was under a legal disability to make the application in consequence of his minority. To the argument that Section 7 grants no indulgence to a minor entitled to prefer an appeal, but only grants the indulgence in the case of suits or applications, he urges that the present is an application, and is classed as such in the third division to schedule II of the Limitation Act. We were referred to the decisions in In the matter of petition of Sita Ram Kesho I.L.R. 15 All. 14 and Moro Sadashiv v. Visaji Raghunath I.L.R. 16 Bom. 536 in support of the contention that the petition should be regarded, not as an appeal, but as an application for leave to appeal, and that the general principle that time does not run against a minor should be held to apply.

3. We are unable to accede to these arguments. The present application is not for leave to appeal, but to declare an appeal admitted.

4. The admission of the appeal is not a matter as to which the High Court has any discretion, provided that the requirements of the law are satisfied.

5. All that the High Court has to do is to see that the requirements of Section 596 are satisfied. If they are, an appeal lies under Section 5952 as a matter of right. The application for a certificate that these requirements are satisfied is merely preliminary and ancillary to the admission of the appeal.

6. It was held in Anderson v. Periasami I.L.R. 15 Mad. 169 that the provisions of Section 12 of the Limitation Act did not apply to an application under Article 177 to admit an appeal to Her Majesty in Council, and the same arguments would exclude the applicability of Section 7. The same view as to Sections 12 and 5 was apparently taken by the Allahabad High Court in In the matter of petition of Sita Ram Kesho I.L.R. 15 All. 14 though apparently the learned Judges would have taken a different view as to the applicability of Section 7, We can see no reason, however, why the Legislature should have intended to allow a minor on attaining majority to appeal to the Privy Council but not to any other appellate tribunal. The omission of appeals in Section 7 can hardly have been unintentional.

7. There is, however, another technical ground on which we must hold the application to be barred. By the old Procedure Code, X of 1877, Section 599, it was enacted that an application to appeal to Her Majesty in Council must ordinarily be made within six months from the date of the decree. This section was repealed by the Limitation Act, XV of 1877, in which Article 177 was enacted. But the present Code, XIV of 1882, re-enacted the old Section 599, but without expressly repealing Article 177. This may probably have been a mistake, since the Legislature again repealed Section 599 by Act VII of 1888, Section 57. At the date of this decree, however, January 20th, 1885, and for more than six months afterwards Section 599 was in force and we must take it that the later enactment superseded Article 177. It follows from this that in 1885 appeals to the Queen in Council were governed by the special rules laid down in chapter XLV of the Civil Procedure Code and were not affected by the general provision of the Limitation Act; hence Section 7 could not apply to them--Vide the decision of the Full Bench in Veeramma v. Abbiah I.L.R. 18 Mad. 99

8. For the reasons above given we must dismiss the application with costs.

1.

__________________________________________________________________________________________

Article 177:

__________________________________________________________________________________________

Period of

Description of Suit limitation. Time from which period begins to run.

___________________________________________________________________________________________

For the admission of an appeal to Six months . The date of the decree appealed

Her Majesty in Council. against.

____________________________________________________________________________________________

2.

Section 595: Subject to such rules as may, from time to time, be

When appeals lie to made by Her Majesty in Council regarding appeals from the Courts

Queen in Council. of British India, and to the provisions hereinafter contained,

an appeal shall lie to Her Majesty in Council-

(a) from any final decree passed on appeal by a High Court or any other Court of final

appellate jurisdiction;

(b) from any final decree passed by a High Court in the exeroise of original Civil

jurisdiction; and

(c) from any decree, when the case, as hereinafter provided, is certified to be a fit

one for appeal to Her Majesty in Council.


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