Skip to content


Rukmony Ammal and anr. Vs. Ganesa Mudaliar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1967)2MLJ616
AppellantRukmony Ammal and anr.
RespondentGanesa Mudaliar
Cases ReferredManindra Land and Building Corporation v. Bhutnath
Excerpt:
.....13(4)--sections 17(4), 13(4) ; [a.p. shan c.j.,f.m.ibrahim kalifulla & v. ramasubramanian, jj] appeal right of bank held, the right of the bank is not automatically suspended upon filing of an appeal by borrower under section 17 of the securitisation act and the bank as secured creditor can proceed to auction secured asset where no stay is granted by the tribunal. there is nothing in section 17 of the securitisation act which would indicate that the legislature intended that there would be automatic stay of recovery proceedings by bank under section 13(4) on filing an appeal by borrower under section 17. use of the expressions if and then under section 17 would not mean that the bank can take one or more measures laid down under section 13(4) only if the tribunal declares that the.....t. ramaprasada rao, j.1. the plaintiffs are the petitioners in this civil revision petition. their suit o.s. no. 209 of 1963 on the file of the court of the district munsif, poonamallee, having been dismissed, and they not having filed an appeal, which they intended to file, in time, and their application for excusing the delay in the presentation of the appeal having been dismissed by the lower court, the plaintiffs have now come up in revision against the order of the learned district judge, chingleput. the learned district judge found that there was no sufficient cause for the petitioners in not preferring the appeal in time. in this civil revision petition, however, learned counsel for the petitioners submits that there is not only sufficient cause for the petitioners not having filed.....
Judgment:

T. Ramaprasada Rao, J.

1. The plaintiffs are the petitioners in this Civil Revision Petition. Their suit O.S. No. 209 of 1963 on the file of the Court of the District Munsif, Poonamallee, having been dismissed, and they not having filed an appeal, which they intended to file, in time, and their application for excusing the delay in the presentation of the appeal having been dismissed by the lower Court, the plaintiffs have now come up in revision against the order of the learned District Judge, Chingleput. The learned District Judge found that there was no sufficient cause for the petitioners in not preferring the appeal in time. In this Civil Revision Petition, however, learned Counsel for the petitioners submits that there is not only sufficient cause for the petitioners not having filed the appeal in time, but that substantial injustice would be caused to them if the delay in filing the appeal is not excused. Mr. Balasubramaniam for the petitioners contends that as the matter in issue involves the question of limitation, it ought to be liberally construed and the petitioners' right, of further relief by way of appeal ought not to be shut out merely on technical grounds. He also urged that the point of limitation in any list involves a substantial question of jurisdiction and that therefore in this Civil Revision Petition under Section 115, Civil Procedure Code, such a matter can be gone into as it virtually relates to a question whether the jurisdiction of the lower Court has been rightly exercised. He relied upon the decision reported in Ramlal Motilal and Chotelal v. Rewa Coalfields ltd. (1961) 2 M.L.J. 131 wherein their Lordships of the Supreme Court held that if sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. Apparently reliance was placed on this decision for the contention of the learned Counsel for the petitioners that the provisions of Section 5 of the Limitation Act ought to be liberally construed. One other decision which was brought to my notice by the learned Counsel for the petitioners is that reported in P.D. Chougule v. M.H. Jadhav (1966) 1 S.C.J. This is relied upon in support of the submission that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the Court which tries the proceedings.

2. Learned Counsel for the respondent contended contra. He strongly relied upon the decision of Ayling, J., in Thandayuthapani Sethuram v. Chinnathal A.I.R. 1914 Mad. 149. The following observation of the learned Judge is apposite:

The question is whether a revision petition will lie under Section 115, Civil Procedure Code. In so far as the petition was one to excuse delay in presentation of the appeal, I think it is quite clear that the order is not open to revision.

3. But the above quotation of the learned Judge appears to be far reaching. In any event, the ratio in Gopalasami Aiyar v. Ramachandra Iyer : (1923)44MLJ409 , do not support this extreme view as is seen from the observations of Wallace, J., in the above case. Though the ruling in Thandayuthapani Sethuram v. Chinnathal A.I.R. 1914 Mad. 149, lays down categorically that an order of a subordinate Court refusing to execuse delay in the presentation of an appeal is not open to revision under Section 115, Civil Procedure Code, the decision in Gopalaswami Aiyar v. Ramachandra Iyer : (1923)44MLJ409 , makes an exception to the broad principle set out by Ayling, J. in Thandayuthapani Sethuram v. Chinnathal A.I.R. 1914 Mad. 149. I am inclined to follow the decision in Gopalaswami Aiyar v. Ramachandra Iyer : (1923)44MLJ409 , in preference to the decision of Ayling, J., in Thandayuthapani Sethuram v. Chinnathal A.I.R. 1914 Mad. 149. It therefore follows from my conclusion that if there is indeed sufficient cause and if the order of the lower Court is not based on acceptable evidence and if the lower Court has not adverted itself to the material circumstances of the case, then it would be a proper case in which a revision under Section 115, Civil Procedure Code, is available to the aggrieved party. As contended by Mr. Balasubramaniam, questions concerning limitation involves the consideration of the jurisdiction of the Courts before which such questions are tried. The observations of the Supreme Court in P.D. Chougule v. M.H. Jadhav (1966) 1 S.C.J. 1, is certainly an authority for this proposition. I am therefore unable to accept the general contention of the learned Counsel for the respondent that a revision under Section 115, Civil Procedure Code, is incompetent if the matter concerns the excusing of the delay in the presentation of an appeal under the provisions of the Code in the usual course by the party affected.

4. Mr. Balasubramaniam also contended that in fact the appeal was presented in time and there is, therefore, an apparent error in the record of the lower Court when it states that the appeal is out of time. This particular point was neither argued in the lower Court nor does it find a place in the memorandum of grounds filed by the petitioners. I am not inclined to entertain this plea in the revision stage.

5. One other important aspect concerning this case is to see whether the petitioners-plaintiffs did disclose sufficient cause for not having presented the appeal in time. Learned Counsel for the respondent submitted, relying upon Manindra Land and Building Corporation v. Bhutnath : [1964]3SCR495 , that when the lower Court has jurisdiction to decide on a particular point and if it has so decided on the question involved, then such a matter cannot again be the subject-matter of revision. No doubt, the lower Court has jurisdiction to consider whether sufficient cause has been shown before it for the exercise of its jurisdiction under Section 5 of the Limitation Act and condoned the delay in such presentation. But this is purely incidental and cannot be deemed to be a question in which a question of jurisdiction per se is involved. The learned Judges of the Supreme Court observed:

It is not open to the High Court in the exercise of its revisional jurisdiction under Section 115, to question the findings of fact recorded by a subordinate Court in the exercise of its revisional jurisdiction under Section 115 of the Code, which, it is well settled, applies to cases involving questions of jurisdiction i.e., questions regarding the irregular exercise or non-exercise of jurisdiction or the illegal assumption of jurisdiction by a Court and is not directed against conclusion of law or fact in which questions of jurisdiction are not involved.

6. Though incidentally it might be contended that in this case, the question of jurisdiction is involved as a question of limitation is interpreted, yet the problem has to be considered, whether it would come within the mischief of the rule set out by the Supreme Court in Manindra Land and Building Corporation v. Bhutnath : [1964]3SCR495 . On the material placed before it, the lower Court concluded, on the question of law whether Section 5 is applicable in the instant case and also on the question of fact whether there are sufficient grounds for excusing delay in the presentation of the appeal, and found that the plaintiffs were not diligent and that the allegations in support in the affidavit for excusing the delay in filing the appeal did not contain truthful facts. This finding of fact and incidentally the determination on the question of law involved, does not, in my opinion, relate to the exercise of jurisdiction by the lower Court. It is only in cases where the lower Court has exercised jurisdiction illegally and improperly and assumed jurisdiction when there is none, that a revision under Section 115, Civil Procedure Code, would lie.

7. I am satisfied that the petitioners-plaintiffs did not show sufficient reason for excusing the delay in the presentation of the appeal by them. Even the identity of the person who was ill at Bangalore is in dispute. This sickness of the relative which compelled the first petitioner to proceed to Bangalore, which apparently resulted in the delay, has also not been set out correctly and truly by her. I therefore find that there was absolutely no sufficient cause shown by the petitioners for the excusing of the delay in the presentation of their appeal against the judgment and decree in O.S. No. 209 of 1963 on the file of the Court of the District Munsif of Poonamallee. This Civil Revision Petition therefore fails and is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //