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The Standard Type Foundry by the Proprietor, A. Thiruvengada Mudaliar Vs. Chebolu Venkataramaniah - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1941Mad589; (1941)1MLJ540
AppellantThe Standard Type Foundry by the Proprietor, A. Thiruvengada Mudaliar
RespondentChebolu Venkataramaniah
Cases ReferredJ. N. Surty v. Chettiar
Excerpt:
- - he however failed to appear on the date of the hearing with the result that an ex parte decree was passed against him on 4th february, 1937. on the 3rd august, 1937, the petitioner moved the district munsif, rajahmundry in o. in computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded......was passed against him on 4th february, 1937. on the 3rd august, 1937, the petitioner moved the district munsif, rajahmundry in o. p. no. 33 of 1937, for an order setting aside the decree passed by the panchayat court on the ground that he was not a resident within the jurisdiction and that the panchayat court had therefore no right to entertain the suit against him. this petition was filed under section 73 of the madras village courts act. by that section, an application should be presented within sixty days from the date of the decree or order of the village court sought to be questioned. holding that the petition was filed after the expiry of the period of sixty days limited by the section, the district munsif dismissed the petition. the order of dismissal was passed on the 5th.....
Judgment:

Krishnaswami Ayyangar, J.

1. This is a petition to revise the order of the District Munsif of Rajahmundry made on 6th December, 1937, in I. A. No. 934 of 1937 in O. P. No. 33 of 1937. The petitioner was the defendant in a suit--No. 1103 of 1936--on the file of the Second Panchayat Court, Rajahmundry governed. with respect to its jurisdiction and procedure by the provisions of the Madras Village Courts Act, 1888. The respondent instituted the suit for the recovery of a sum of Rs. 24-10-6 alleged to be due to him on dealings. The petitioner entered a defence alleging, firstly, that the Panchayat Court had no jurisdiction, and, secondly, that the money claimed was not due. He however failed to appear on the date of the hearing with the result that an ex parte decree was passed against him on 4th February, 1937. On the 3rd August, 1937, the petitioner moved the District Munsif, Rajahmundry in O. P. No. 33 of 1937, for an order setting aside the decree passed by the Panchayat Court on the ground that he was not a resident within the jurisdiction and that the Panchayat Court had therefore no right to entertain the suit against him. This petition was filed under Section 73 of the Madras Village Courts Act. By that section, an application should be presented within sixty days from the date of the decree or order of the Village Court sought to be questioned. Holding that the petition was filed after the expiry of the period of sixty days limited by the section, the District Munsif dismissed the petition. The order of dismissal was passed on the 5th August, 1937. The petitioner then filed an application for review of the order on the 12th August, 1937. He pointed out that he was entitled to have the time taken in applying for and obtaining a copy of the decree of the Panchayat Court excluded under Section 12 of the Indian Limitation Act. If the time so taken is excluded, the petition was admittedly within time.

2. The learned District Munsif refused to exclude the time taken in obtaining the copy of the decree on the ground that the petition did not fall within Section 12 (2) of the Indian Limitation Act which is the only provision on which the petitioner relied. Section 12 (2) is as follows:

In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded.

3. In the view of the learned District Munsif, a petition under Section 73 of the Madras Village Courts Act cannot be regarded as being comprehended within the term, 'appeal' occurring in the section. It cannot certainly be regarded as being covered by the other heads mentioned in the section. He was of the opinion that the District Munsif is not a Court of appeal from a decision of the Village Court within the meaning of the Act and that the marginal note to the section made it further plain that the petition was of the nature of a revision petition rather than an appeal.

4. In taking this view, the learned District Munsif appears to my mind to have attached a top narrow meaning to the word, appeal, in the section. It has been held in a Full Bench decision of this Court reported in Chidambaram Nadar v. Rama Nadar : AIR1937Mad385 that the term, appeal, occurring in Article 182 (2) of the Limitation Act is not used in a restricted sense so as to exclude revision petitions and the expression, appellate Court, in the said article is not confined to a Court exercising appellate as opposed to revisional powers. The learned Judges support this view by the decisions of the Privy Council referred to at p. 625 of the report. It is difficult to say that the remedy by way of revision is essentially different from the remedy by way of appeal, though in -the former case, the grounds of interference may be less wide. I am not able to see any reason why the same liberal construction should not be applied in the present case and the petition to the District Munsif treated as an appeal for the purpose of Section 12 (2).

5. A subsidiary point may also be noticed, Section 73 does not require an applicant to produce along with his petition a certified copy of the decree to which he takes exception. There is possibly some reason for the view that a party is not to be permitted to exclude the time taken in obtaining a certified copy of an order or decree wholly unnecessary for the purpose of an application under Section 73 but this argument is rendered untenable by the decision of the Privy Council in J. N. Surty v. Chettiar, a Firm (1928) 54 M.L.J. 696 : L.R. 55 IA 161 : I.L.R. 6 Rang. 302 where the question has been fully discussed and the rule laid down that Section 12 (2) is applicable even to a case where the appeal or application need not be accompanied by a copy of the decree objected to.

6. In the result, the revision petition is allowed with costs and the District Munsif is directed to restore O. P. No. 33 of 1937 on his file and dispose of it according to law.


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