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K. Gopalaswami Iyer Vs. O.S. Ramachandra Iyer, Official Receiver - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1923Mad503; 72Ind.Cas.137
AppellantK. Gopalaswami Iyer
RespondentO.S. Ramachandra Iyer, Official Receiver
Cases ReferredThandayuthapani v. Chinnathal
Excerpt:
civil procedure code (act v of 1908), section 115, order xxii, rules 4, 9 - application to bring legal repreventatives on record--delay--sufficient cause--petition to excuse delay, refusal of--revision. - - 4. in the present case, the court's conclusion was based on no evidence, and, therefore, it failed to consider properly whether sufficient cause for delay had been shown......before him was contained only in two affidavits, one by the official receiver that he did not know earlier of the death, and one by the legal representative that the official receiver did know earlier of it from the insolvent's power-of-attorney agent. the district judge had, therefore, before him no evidence whatever that the official receiver did not, as a matter of fact, know earlier. he has not said so. his order is thus based on no evidence. beyond that he has not considered the essential point whether the official receiver's ignorance of the death was justified and afforded sufficient cause for his belated application.3. the next question is, whether this court is called on to interfere under section 115 of the civil procedure code. respondent relies on the ruling in.....
Judgment:

Wallace, J.

1. Petitioner seeks for revision of the order of the lower Court excusing the delay of 8 months by the Official Receiver, Tanjore, in bringing on record the legal representative of a deceased alienee from an insolvent in the matter of a petition by the Official Receiver to have that alienation set aside. The District Judge has excused the delay on the short ground that the Official Receiver had no means of knowing about the death of the alienee, and presumably, though he does not say so, that he considered that sufficient cause for the application being belated.

2. The evidence before him was contained only in two affidavits, one by the Official Receiver that he did not know earlier of the death, and one by the legal representative that the Official Receiver did know earlier of it from the insolvent's power-of-attorney agent. The District Judge had, therefore, before him no evidence whatever that the Official Receiver did not, as a matter of fact, know earlier. He has not said so. His order is thus based on no evidence. Beyond that he has not considered the essential point whether the Official Receiver's ignorance of the death was justified and afforded sufficient cause for his belated application.

3. The next question is, whether this Court is called on to interfere under Section 115 of the Civil Procedure Code. Respondent relies on the ruling in Thandayuthapani v. Chinnathal 24 Ind. Cas. 872, holding that the order in that case on a petition to excuse delay in presenting an appeal was not open to revision. I take it that no question of gross irregularity in the exercise of jurisdiction arose in that case, i.e., that the Trying Court had considered the point of law which it was its function to decide and had decided on the evidence before it, rightly or wrongly, that there was not sufficient cause for delay in presentation. But when the Court has first of all come to its conclusion oh no evidence and has even then omitted to consider the one point which the law directs it to decide viz., whether there was sufficient cause for delay in presentation, I must hold that it has acted with material irregularity in the exercise of its jurisdiction, if the aggrieved party has been seriously prejudiced thereby.

4. In the present case, the Court's conclusion was based on no evidence, and, therefore, it failed to consider properly whether sufficient cause for delay had been shown. Since, if sufficient cause has not been shown, the Official Receiver's petition to set aside the alienation in favour of petitioner's deceased father will have to be dismissed, I consider that petitioner has been seriously prejudiced by the lower Court's irregular exercise of jurisdiction.

5. I, therefore, set aside the order of the District Judge and direct that the petition be re-heard according to law. Petitioner will get his costs in this Court.


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