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(Koganti) Veerayya Vs. (Narra) Sreesailam - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1928Mad556
Appellant(Koganti) Veerayya
Respondent(Narra) Sreesailam
Cases Referred and Mira Mohidin v. Nallaperumal Pillai
Excerpt:
- .....eight days for obtaining copy, and 55 days for the in-fructuous appeal, there still remains 59 days, or 29 days over the prescribed 30. the counter-petitioner claims that these can be accounted for by reckoning the period between 27th july 1926 and 2nd september 1926, as a time during which he was prosecuting with due diligence another civil proceeding in a court of incompetent jurisdiction.3. the short answer to such a claim would seem to be that, until 2nd september 1926, there was neither court nor proceeding. no doubt it has been held that when once a proceeding has been initiated in a court of first instance the period allowed by law before presenting an appeal from its decision may be reckoned as time occupied by due diligence. that is clear enough, for a man who is diligent.....
Judgment:

Jackson, J.

1. The petitioner seeks to revise the orders of the District Munsif of Bezwada in Interlocutory Applications Nos. 1317 and 1318 of 1926 excusing delay in the presentation of an application under Order 9, Rule 4, which otherwise would be barred by limitation.

2. The learned District Munsif has confined himself be the laconic order: ' Suit restored to file ' thereby arrogating to himself a general power of dispensing with the law of limitation which is certainly beyond his jurisdiction. Had he applied his mind to the law and facts of the case this Court might consider whether its interference were warranted; but the present proceeding gives room for no such question. Original Suit No. 450 of 1925 was dismissed for default on 27th July 1926. The plaintiff applied for copy-on 29th July 1926 and obtained it on 5th August 1926. He appealed against the decree on 2nd September 1926, and was informed on 27th October 1926, that he had misconceived his remedy and should apply to set aside the order of dismissal under Order 9, Rule 4. On 18th November 1926, he made the application. Reckoning 112 days from the date of the dismissal to the filing of the application, and allowing the applicant eight days for obtaining copy, and 55 days for the in-fructuous appeal, there still remains 59 days, or 29 days over the prescribed 30. The counter-petitioner claims that these can be accounted for by reckoning the period between 27th July 1926 and 2nd September 1926, as a time during which he was prosecuting with due diligence another civil proceeding in a Court of incompetent jurisdiction.

3. The short answer to such a claim would seem to be that, until 2nd September 1926, there was neither Court nor proceeding. No doubt it has been held that when once a proceeding has been initiated in a Court of first instance the period allowed by law before presenting an appeal from its decision may be reckoned as time occupied by due diligence. That is clear enough, for a man who is diligent within the term prescribed by limitation is duly diligent in the eye of the law. But the same principle cannot be extended to some period before the proceeding is begun of Baizanath Lala v. Rama Doss [1916] 39 Mad. 62 and Mira Mohidin v. Nallaperumal Pillai [1913] 36 Mad. 131. Section 5 cannot apply, its purview being confined to applications (other than those specified) to which the section may be made applicable by enactment or rule. And it so happens that Section 5 has not been made applicable to applications under Order 9, Rule 4. Therefore, the orders of the lower Court (must be set aside. Costs to petitioner throughout, one set.


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