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Vazhakuttia Kutti Uduman Haji and ors. Vs. A. Mammi Kutti and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1914Mad299; 24Ind.Cas.56
AppellantVazhakuttia Kutti Uduman Haji and ors.
RespondentA. Mammi Kutti and ors.
Cases ReferredVisvanathan Chetti v. Ramanathan Chetti
Excerpt:
civil procedure code (act v of 1908), section 115 - order amending decree--revision petition against such order presented more than eight months from date of order--delay not excusable--decree amended eight years after, whether ground for revision. - .....ramanathan chetti 24 m 646. was that section 4 of the limitation act provided a means by which the delay in appealing could be excused. but i will assume that the circumstances of this case are sufficient for the petitioner to have considered that it would be more proper for him to come by way of a revision petition than by way of an appeal, and that the fact that in this ease the decree was amended several years after it was originally passed, whereas in visvanathan chetti v. ramanathan chetti 24 m 646. it was amended soon after it was passed, distinguishes the present case from the reported decision. making all allowance for this, i do not see my way to excuse the long delay in presenting this petition. the order was made on the 3rd february 1912., the first time that the petitioner.....
Judgment:

Tyabji, J.

1. This a petition against an order amending a decree. It was presented 168 days after the order complained of. Following the decision in Visvanathan Chetti v. Ramanathan Chetti 24 M 646. I must take it that the petitioner should have appealed against the amended order and not petitioned under Section 115 of the Civil Procedure Code. That case is sought to be distinguished before me in two ways. First it is. argued that in that case if the proper proceeding was to be an appeal, then the appeal would have lain to another Court and that' the High Court could not, therefore, have proceeded on the basis that the petition was an appeal. I accede to that distinction to a certain extent. If that were the only objection to the proceedings, it might have been proper for mo to consider whether the present petition should not be treated as an appeal and whether it should not proceed on that basis. But that would not meet the second objection which is the delay, and curiously enough the second point on which the decision is sought to be distinguished by the petitioner's Pleader is the fact that in the present case the decree was amended several years after the original decree had been passed, the original decree' having been passed in 1903 and amended in 1911. I do not think that that will make any distinction. The .point decided in Visvanathan Cheiti v. Ramanathan Chetti 24 M 646. was that Section 4 of the Limitation Act provided a means by which the delay in appealing could be excused. But I will assume that the circumstances of this case are sufficient for the petitioner to have considered that it would be more proper for him to come by way of a revision petition than by way of an appeal, and that the fact that in this ease the decree was amended several years after it was originally passed, whereas in Visvanathan Chetti v. Ramanathan Chetti 24 M 646. it was amended soon after it was passed, distinguishes the present case from the reported decision. Making all allowance for this, I do not see my way to excuse the long delay in presenting this petition. The order was made on the 3rd February 1912., The first time that the petitioner came to the High Court was on the 16th July 1912. Ho then came with an application in a wrong form. The present petition in the proper form was not presented till 12th September 1912.' But I am asked in the first place to consider the present petition as having been presented on 16th July 1912 and in the second place in regard to the making of the first application (which was admittedly in wrong form) to excuse all time during which the, Court were closed for the vacation. The vacation commenced, I presume, about the beginning of May 1912.

2. The delay between February and May is in itself so great that, taking into consideration the fact that the actual petition with which I. have to deal was not presented till the 12th September 1912, I think I am justified in saying that the petitioner has been dilatory and that he has made out no case for obtaining the indulgence of the Court on the various points on which he has failed to observe that strict form of the-law. It seems to me that this is a case in which it would not be proper to excuse this delay and hear the petition now. The petition will be dismissed with costs.


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