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S. Berumull Sowcar Vs. P. Velu Gramany - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1942Mad369; (1942)1MLJ372
AppellantS. Berumull Sowcar
RespondentP. Velu Gramany
Cases ReferredRamanuja Aiyangar v. Narayana Aiyangar I.L.R.
Excerpt:
.....llth october under order 9, rule 9, read with section 141, civil procedure code and that, even if these provisions are not applicable, it had inherent jurisdiction under section 151. to treat the subsequent application as a continuation of the original application if it was satisfied that there was sufficient cause for non-deposit of the stamp papers required, and reliance is placed on the decision of this court in ramanuja aiyangar v. no doubt the judgment does not state under what provision the court has the power to treat a petition for restoration of an application for copies dismissed for default as a continuation of the previous application, but the decision clearly concludes the point in favour of the appellant......of the petition to restore the original application which had been rejected. the requisite stamp papers were deposited on the same day and the copies were delivered on the 21st october. it is not disputed that if the time prescribed for filing the appeal is computed on the basis of the application originally filed, this appeal preferred on the 28th october, would be in time ; but it is urged that the court below had no power to restore the original application after it was rejected on the 30th september or to treat the fresh application filed on the 2nd october as a continuation of the original application. it is pointed out that rule 129 of the civil rules of practice which provides that ii the required stamp papers have not been deposited within the time prescribed in the rule,.....
Judgment:

Patanjali Sastri, J.

1. This appeal arises out of a suit brought by the appellant in the City Civil Court to enforce an equitable mortgage,

2. A preliminary objection is taken to the maintainability of the appeal on the ground that it is barred by limitation. The decree of the Court below was passed on the 28th August, 1940, and the application for certified copies of the decree and judgment was made on the 29th August. The requisite copy stamps were called for on, the 26th September, but as they were hot deposited in time, the application was rejected on the 30th of the same month. A fresh application for copies was made on the 2nd October. A petition to restore the original application was also filed on the 3rd October. The Court below after hearing the objections of the respondent passed an order on the llth October, that copies be granted on the original application with a note thereon that they were granted in pursuance of the petition to restore the original application which had been rejected. The requisite stamp papers were deposited on the same day and the copies were delivered on the 21st October. It is not disputed that if the time prescribed for filing the appeal is computed on the basis of the application originally filed, this appeal preferred on the 28th October, Would be in time ; but it is urged that the Court below had no power to restore the original application after it was rejected on the 30th September or to treat the fresh application filed on the 2nd October as a continuation of the original application. It is pointed out that Rule 129 of the Civil Rules of Practice which provides that ii the required stamp papers have not been deposited within the time prescribed in the rule, the application shall be struck off is mandatory, and that there is no provision in the rules for the restoration of an application so struck off. The appellant, on the other hand, contends that the Court below had the power to pass the order, dated llth October under Order 9, Rule 9, read with Section 141, Civil Procedure Code and that, even if these provisions are not applicable, it had inherent jurisdiction under Section 151. to treat the subsequent application as a continuation of the original application if it was satisfied that there was sufficient cause for non-deposit of the stamp papers required, and reliance is placed on the decision of this Court in Ramanuja Aiyangar v. Narayana Aiyangar I.L.R.(1895) Mad. 374 which certainly supports the contention. There also an application for copies was struck off under the copyist rules for non-deposit of the required stamp papers, and a petition was put in for restoration of the previous application which was ordered and copies were granted. It was objected that an appeal filed with the copies so obtained was barred by time but this Court held that the later application must be considered to be a continuation of the previous application for the purpose of computing the time prescribed for filing the appeal. No doubt the judgment does not state under what provision the Court has the power to treat a petition for restoration of an application for copies dismissed for default as a continuation of the previous application, but the decision clearly concludes the point in favour of the appellant. The preliminary objection therefore fails and the appeal must be held to have been preferred in time.

3. [Then His Lordship dealt with the case on the merits and modified the decree of the trial Court.]


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