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Malli Reddi and anr. Vs. Peddakka and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1915Mad534(1); (1914)27MLJ147
AppellantMalli Reddi and anr.
RespondentPeddakka and ors.
Cases ReferredJhotee Sahoo v. Omesh Chander Sircar I.L.R.
Excerpt:
- .....of this court on this particular question of the effect of an order of a court admitting an appeal (excusing the delay in its filing without giving notice to the other side), i hold that the district judge had jurisdiction to consider, at the final hearing of the appeal after notice, the question whether the delay in the filing of the appeal had been adequately explained notwithstanding the ex parte order of his predecessor excusing the delay and admitting the appeal.2. this being the only point argued in this second appeal and it being decided against the appellant as above, the second appeal is dismissed with costs. tyabji, j.3. the decisions referred to by my learned brother (venkatrayudu v. nagadu i.l.r. (1886) m. 450, krishna bhatta v. subwaya i.l.r. (1897) m. 228, sarat.....
Judgment:

Sadasiva Aiyar, J.

1. Following Venkatrayudu v. Nagadu I.L.R. (1886) M. 450 Krishna Bhatta v. Subraya I.L.R. (1897) M. 228 Sarat Chandar Bose v. Saraswati Debi I.L.R. (1907) C. 216 and the very recent case, A.A.O. No. 71 of 1911 on the file of the High Court, Madras, decided by Ayling and Napier JJ., two days ago and also the uniform practice of this Court on this particular question of the effect of an order of a court admitting an appeal (excusing the delay in its filing without giving notice to the other side), I hold that the District Judge had jurisdiction to consider, at the final hearing of the appeal after notice, the question whether the delay in the filing of the appeal had been adequately explained notwithstanding the ex parte order of his predecessor excusing the delay and admitting the appeal.

2. This being the only point argued in this second appeal and it being decided against the appellant as above, the second appeal is dismissed with costs.

Tyabji, J.

3. The decisions referred to by my learned brother (Venkatrayudu v. Nagadu I.L.R. (1886) M. 450, Krishna Bhatta v. Subwaya I.L.R. (1897) M. 228, Sarat Chandar Bose v. Saraswati Debi I.L.R. (1907) C. 216 and A.A.O. No. 71 of 1911 on the file of the High Court, Madras, recently decided by Aylingand Napier JJ.) and also, in so far as the circumstances of the present case are concerned, the case reported in Jhotee Sahoo v. Omesh Chander Sircar I.L.R. (1879) C. 1 lay down in express terms that 'an order made ex parte under Section 5 of the Limitation Act (Act IX of 1871) may on proper cause shown be set aside by the Court which made it.' These decisions leave no room for the expression of any opinion on my part on the question involved. The decision in Appeals Nos. 128 and 210 of 1911 on the file of this Court in which Mr. Justice Miller and I took part, supports the same view. Second Appeal No. 1045 of 1907 (decided by Justice Ayling and me) was not cited to us in this appeal, nor were the decisions above referred to cited to us in second Appeal No. 1045 of 1907. It is therefore unnecessary for me to express any opinion on the point whether Second Appeal No. 1045 of 1907 should also have been governed by the same decisions or whether it was open to us to deal with the particular question then involved as res Integra.

4. For these reasons I agree that this appeal should be dismissed with costs.


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