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D. Soundararaja Iyengar Vs. K. Sreenivasa Chariar and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1918Mad703; 39Ind.Cas.975
AppellantD. Soundararaja Iyengar
RespondentK. Sreenivasa Chariar and anr.
Excerpt:
limitation act (ix of 1908), section 5 - sufficient came--bona fide mistake of law, whether sufficient cause--mistake of law, when deemed to be bona fide. - .....until it was dismissed on the ground that that order was not appealable, without correcting his mistake or appealing against the subsequent final order. the question is whether he thus lost time owing to a mistake which the lower appellate court could, in the exercise of a judicial discretion, treat as 'sufficient cause.'4. authority in madras recognises that a mistake of law may be sufficient cause, one condition of its being treated as such being, however, that it is made bona fide. the district munsif's judgment of the 14th november 1914 was clear and could not have been, read as a final disposal by any man of ordinary understanding, and certainly not by appellant, since it expressly reserved one objection relied on by him for trial on a later date. appellant alleges here that he.....
Judgment:

1. The main question argued on behalf of appellant is whether an application for a copy required for institution of execution proceedings a starting point from which time will run under Article 182, Schedule I, of the Limitation Act.

2. It is, however, unnecessary to deal with it, because respondent has supported the lower Appellate Court's decision on a point on which it held against him, his objection that the appeal to it was presented out of time.

3. The objection was considered and dismissed in the lower Appellate Court's order of 3rd January 1916, which we read as a finding that appellant had sufficient cause for not presenting the appeal earlier within the meaning of Section 5, Clause 2, of the Limitation Act. The facts are that appellant, the debtor, objected to the petition for execution, which was originally presented by 1st respondent, on two grounds, (1) that it was out of time, (2) that 1st respondent, who applied as a Receiver, no longer held that position. The District Munsif took the irregular course, in his preliminary judgment of 14th November 1914 of disallowing (1) and adjourning the hearing of (2) for evidence to a date specified. On that date appellant was absent and the order asked for, one for transmission of the decree to another Court, was passed. Appellant, however, instead of appealing against it, appealed against the order of 14th November 1914 and prosecuted his appeal, until it was dismissed on the ground that that order was not appealable, without correcting his mistake or appealing against the subsequent final order. The question is whether he thus lost time owing to a mistake which the lower Appellate Court could, in the exercise of a judicial discretion, treat as 'sufficient cause.'

4. Authority in Madras recognises that a mistake of law may be sufficient cause, one condition of its being treated as such being, however, that it is made bona fide. The District Munsif's judgment of the 14th November 1914 was clear and could not have been, read as a final disposal by any man of ordinary understanding, and certainly not by appellant, since it expressly reserved one objection relied on by him for trial on a later date. Appellant alleges here that he was misled by the formal order which the District Munsif unnecessarily drew up in connection with this judgment. But we do not think that it was ambiguous; and it could not; have misled any one, who, as appellant must be presumed to have been was acquainted with the judgment. As we cannot hold that appellant was under any bona fide mistake, we cannot hold that the lower Appellate Court exercised a judicial discretion in excusing the delay. Its decision, therefore, must be supported on this ground. The appeal against appellate order is dismissed with costs.


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