1. This is an application to excuse the delay in filing and re-presenting a memorandum of cross-objections. The facts are that the memorandum of appeal was presented and admitted at the end of April, 1941. There was a stay application which was heard by the Vacation Court after notice to the respondent in which application the respondent was represented by his advocate. Stay was ordered and special arrangements were made to expedite the preparation of the appeal. Formal notice of the appeal was served, not on the respondent's advocate, but upon the clerk of that advocate. The clerk failed to communicate the fact of the service of this notice to the advocate himself. The advocate states on oath that he heard of the notice of the appeal only on the 8th October, 1941, he at once communicated with his client and on the 16th October, 1941, he filed the memorandum of cross-objections with a petition to excuse the delay. There was a delay of one month and twenty-two days in presenting the memorandum from the date on which the appeal notice was served on the advocate's clerk and there was a further delay of seventeen days in re-presenting the memorandum after it was returned for a defect.
2. Now, it seems to us that there are no grounds upon which the delay in this case could be excused if it is necessary to excuse the delay. The advocate knew about the filing of the appeal as long ago as May of this year. He knew that special orders had been passed for expediting the appeal. In such circumstances, if the memorandum of cross-objections was necessary, there was no reason why funds should not have been obtained from the clients at once and arrangements made to file the memorandum in good time. It is, however, argued that in fact no notice of this appeal has yet been served either on the respondent or his advocate and that therefore there is no necessity to excuse the delay in presenting or, re-presenting the memorandum of cross-objections. Order 41-A, Rule 6 of the Code of Civil Procedure, provides that all notices other than a notice of appeal shall be sufficiently served if left at the address for service of the party to be served. It is not disputed that the address for service of the party in this case is the address of his advocate. Order 3, Rule 5, provides that any process served on the pleader of any party, or left at the office of such pleader, shall be presumed to be duly communicated and made known to the party whom the pleader represents and, unless the Court otherwise directs shall be as effectual for all purposes as if the same had been given to or served on the party in person. Order 3, Rule 5 is a general provision covering all processes of Civil Courts. Order 41-A is a special order relating to the procedure in appeals to the High Court from original decrees of Subordinate Courts. It must, we think, be inferred that the special provisions of this order, in so far as they are in conflict with the provisions of the other parts of the Code, must prevail and must govern the procedure in preference to these general provisions. Seeing that Rule 6 of Order 41-A excludes a notice of appeal from the category of processes which can be properly served by being left at the address for service of the party to be served, the inference is that such a notice must be served regularly either on the respondent or on his advocate and that service by merely leaving in the office of the advocate is not service on the party or his pleader, for purposes of limitation. It is urged that this view of the rules will result in inconvenience to practitioners and to Courts. The remedy in our view is not to read the rules so as to suit the convenience of parties but to modify the rules in such a manner as may be desirable.
3. We are dealing now with a question of limitation. Under Order 41, Rule 22 the period of limitation is one month from the date of service on the respondent or his pleader of notice of the date fixed for hearing the appeal. We cannot regard service of notice on the pleader's clerk as the correct starting point for limitation in the absence of a special provision to that effect.
4. In the result therefore, we hold that the memorandum of cross-objections has been presented in time. The petition to excuse the delay is dismissed. No order as to costs.