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Lutchmee NaraIn and ors. Vs. Byjanauth Lahia and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1897)ILR24Cal437
AppellantLutchmee NaraIn and ors.
RespondentByjanauth Lahia and ors.
Excerpt:
practice - exceptions to report--notice--rule 565 of belchambers' rules and orders of the high court, original side. - .....which is to be found at page 230 of belchambers' rules and orders, the exceptions could not be heard. rule 565 is as follows:an application to discharge or vary a certificate or report shall be made by motion upon notice to be given within fourteen days from the date of the filing thereof, or within such further time as may be obtained for that purpose, but in that ease the notice shall mention that it has been given with the leave of the court. an application for further time may be made by petition in chambers, without notice.'4. it was said that, though the rule expressly provides that notice to discharge or vary a report shall be given within the time mentioned in the rule, or such further time as the court may allow, the practice has not been uniformly in conformity with that.....
Judgment:

Sale, J.

1. This ease was placed in the peremptory list for further directions on the report of the Second Assistant Registrar to whom it had been referred to take an account.

2. The report is dated the 1st day of February 1896, and was filed on the 8th day of July 1896. On the 17th of July, on an application by summons, the defendants obtained three weeks' further time to file exceptions to the report. Exceptions were filed on the 10th of August, that is, within the extended period, but no further steps were taken till the 15th of March, when the case was placed on the peremptory list for further directions on the report.

3. No notice of motion was given by the defendants to discharge or to vary the report and at the hearing for further directions the plaintiff took the objection that under the terms of Rule 565, which is to be found at page 230 of Belchambers' Rules and Orders, the exceptions could not be heard. Rule 565 is as follows:

An application to discharge or vary a certificate or report shall be made by motion upon notice to be given within fourteen days from the date of the filing thereof, or within such further time as may be obtained for that purpose, but in that ease the notice shall mention that it has been given with the leave of the Court. An application for further time may be made by petition in Chambers, without notice.'

4. It was said that, though the rule expressly provides that notice to discharge or vary a report shall be given within the time mentioned in the rule, or such further time as the Court may allow, the practice has not been uniformly in conformity with that provision, and that the Court has in some cases allowed exceptions which had been filed within the period mentioned in the rule to be heard and disposed of, although no notice had been given as required by the rule.

5. Under these circumstances I thought it desirable that an enquiry should be made as to the practice which has prevailed in this Court in regard to this matter. A note* has been furnished by the Registrar, which shows that there has been no uniform course of practice; that in some cases exceptions have been heard on notice of motion to vary or discharge the report, and that in other cases exceptions have been set down for disposal on requisition, and heard, although no notice to vary or discharge had been given under Rule 565. As it is desirable that there should be a uniform practice, I thought it right to consult my learned colleague, Mr. Justice Jenkins, and our opinion is that the procedure laid down in Rule 565 and followed in suits Nos. 197 of 1887 and 221 of 1893 should be strictly adhered to. It is necessary that notice should be given within the time required by the Rule, or such further time as the Court may allow, and that such notice should be accompanied with the grounds of exception relied on by the party objecting to the report.

6. In the absence of any such notice, given in the manner now indicated, the report will be regarded as confirmed by effluxion of time. The rule should not be applied strictly to exceptions already filed. As regards such exceptions the alternative course may, I think, be permitted, namely, the hearing and disposing of them merely on the requisition of the parties.


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