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Karri Sitaramiah and ors. Vs. Venkadaru Sarvayya Dubacherla and ors. - Court Judgment

LegalCrystal Citation
Subjectcivil
CourtChennai
Decided On
Reported inAIR1944Mad571
AppellantKarri Sitaramiah and ors.
RespondentVenkadaru Sarvayya Dubacherla and ors.
Cases ReferredKrishnaswami Naidu v. Changalroya Naidu A.I.R.
Excerpt:
- .....section 5, limitation act, to an application of this kind. the result seems to be that there is no provision of law under which the prayer in this petition can be granted. it is a matter for consideration whether it is desirable to frame a rule similar to sub-rule (2) of rule 19 of order 41, so as to make the provisions of section 5, limitation act, applicable to a petition under b. 21 of order 41. in the absence of any such rule we have no option but to dismiss this application with costs.
Judgment:

Wadsworth, J.

1. This is an application to excuse the delay in seeking to set aside the ex parte decree passed in A.S. No. 169 of 1941 on 2nd December 1943. The applicants were respondents 1 to 9 and 12 in the appeal. In the appeal there were 14 respondents, three of whom were actually represented by an advocate who was appointed guardian-ad-litem by the Court. The present applicants entrusted their case to Mr. Srikantiah, an advocate of this Court. He did not appear when the appeal was heard and judgment was pronounced after hearing the Court guardian appearing for the minor respondents. According to the contentions in the affidavit of the applicants, they came to know on 14th February 1944, when execution was being taken out, that the High Court had passed a decree in the appeal. On 18th February, one of them came to Madras to make inquiries from Mr. Srikantiah and found that he had left Madras one year previously and given up practice and that his whereabouts were not known. We are informed that the gentleman is now on military service. The pre-sent application to excuse delay was presented on 20th March 1944, and the question is whether such an application lies as a matter of law, assuming the allegations of the petitioners to be correct.

2. Under Order 41, Rule 21, Civil P. C, where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the appellate Court to rehear the appeal, but must satisfy the Court either that notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing. It is conceded in the present case that notice was duly served and although an attempt has been made to suggest that the words 'he was prevented by sufficient cause from appearing' applied only to the party himself and not to the advocate who represents him in the appeal, we find it difficult to accept this contention. Under Article 169, Limitation Act, the period fixed for an application for the re-hearing of an appeal heard ex parte is 30 days from the date of the decree in appeal when notice of appeal has been served. Section 5, Limitation Act, permits an extension of time for filing applications only if this section has been made applicable to such applications by or under any enactment. It is conceded that there is no enactment extending the provisions of Section 5, Limitation Act, to applications under Order 41, Rule 21, although a rule has been framed by this High Court extending the provisions of Section 5 to the somewhat similar applications under B. 19 of Order 41. It seems to be settled so far as this High Court is concerned by the decision in Krishnaswami Naidu v. Changalroya Naidu A.I.R. 1924 Mad. 114 that the inherent powers of the Court under Section 151, Civil P.C., cannot be utilised to take the place of an express provision extending Section 5, Limitation Act, to an application of this kind. The result seems to be that there is no provision of law under which the prayer in this petition can be granted. It is a matter for consideration whether it is desirable to frame a rule similar to Sub-rule (2) of Rule 19 of Order 41, so as to make the provisions of Section 5, Limitation Act, applicable to a petition under B. 21 of Order 41. In the absence of any such rule we have no option but to dismiss this application with costs.


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