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Biswanath Banerjee and ors. Vs. Amar Nath Mukherjee and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 1006-F of 1961
Judge
Reported inAIR1962Cal110
ActsCode of Civil Procedure (CPC) , 1908 - Section 151 - Order 41, Rule 19
AppellantBiswanath Banerjee and ors.
RespondentAmar Nath Mukherjee and ors.
Appellant AdvocateRanjit Kumar Banerjee and ;Bimal Kumar Banerjee, Advs.
Respondent AdvocateRabindra Nath Bhattacharya, ;Manindra Nath Ghosh and ;Mukundadeb Bhattacharya, Advs.
Cases ReferredAbdul Ganny v. Mrs. I. M. Russell
Excerpt:
- .....9(2) of the rangoon high court rules, was really one under the code, the basis and the substantive rule (rule 9(1)) under which the appeal in question was dismissed, being of a nature, similar to other provisions of the code, and having been expressly placed by the rangoon high court in order lii of the code (vide p. 234). in that view, the proposed extension--at least, beyond the strict ejusdem generis principle, if not, on the same principle also--must be held to be merely an obiter dictum.6. lastly, we would like to add here that the decision of this court in : air1932cal770 has placed cases like the present really under section 151 of the code of civil procedure and the reference in that decision to order xli, rule 19 of the code was only the citation of an analogous provision of.....
Judgment:

P.N. Mookerjee, J.

1. This Rule raises an important question, concerning the law of limitation. On or about Jutte 2, 1960, the connected appeal was dismissed for nonpayment of paper book costs. On March 23, 1961, the present rule was obtained for restoration of the said appeal. On the merits, we are satisfied that it is a fit case for restoration, as aforesaid, as sufficient cause has been shown by the appellant petitioner for excusing the default in question and the delay, if any, in the making of the present application is not, in the circumstances of this case, unreasonable. The point, however, has been raised by Mr. Bhattacharya, who appears for the contesting opposite parties, that the instant application is time barred under Article 188 of the Indian Limitation Act and, as a matter of law, Section 5 of that Act has no application here to enable or entitle the Court to condone the delay in the matter.

2. On the second question, aforesaid, no decision is necessary as, in our view, the above Article (Article 168) does not apply to cases like the present, which really come under Section 151 of the Code of Civil Procedure (vide Mrs. Minne Lal v. Mahadeo Lal, AIR 1949 Pat 112, citing inter alia and relying upon Ramkhelawan Singh v. Monilal Sahu, AIR 1939 Pat 678 (FB); see also Sm. Hari Dassi Debi v. Sajani Mohan : AIR1932Cal770 , as explained hereinafter), for which and for the exercise of the inherent powers whereunder, there cannot be any period of limitation less, at any rate, than three years from the date of the impugned order, Article 181. being the nearest Article, if any, of the Indian Limitation Act, applicable to the case. Indeed, it may well be contended that there is no period of limitation, prescribed for such applications, and the question of limitation, apart from unreasonable delay, would not arise or would not be relevant in such cases (Vide AIR 1949 Pat 112, supra, the latest Patna case on the point, in which all the relevant earlier authorities have been discussed; see also Armada Prasad Mitra v. Sushil Kumar, 46 Cal WN 326 at p. 332: (AIR 1942 Cal 390 at p. 393) and Sonubai Baburao v. Shivajirao Krishnarao, AIR 1921 Bom 20 but, even taking the other view, the nearest,--and, indeed the only,--Article applicable would be Art, 181 (Vide in this connection, Asmatali Sharip v. Mujaharali Sardar : AIR1948Cal48 Article 168 being, upon a true view of the said Article (Vide AIR 1921 Bom 20 : ILR 45 Bom 648) limited to applications for restoration of appeals, dismissed on account of defaults under the Code, that is, under Rules 17 and 18 of Order XLI, thereof, or, in other words, to application for restoration under Order XLI, Rule 19 of the Code, which in Our opinion, cannot and would not comprehend the instant case, the said Rule being expressly, on its terms, limited to cases of default under Rules 17 and 18 of the said Order.

3. We do not think that the above view is opposed to Ramhari Sahu v. Madan Mohan, ILR 23 Cal 339, where, notwithstanding reference to the old Section 568, corresponding to the present Order XLI, Rule 19 of the Code, at P. 344 of the report, which was really for the purpose of citing an analogous provision of similar principle and procedure, the application in question was dealt with really as an application under Rule 17, Part II, Chapter VIII of the Rules of this Court and the plea of limitation,--particularly under Article 168 of the Indian Limitation Act,--was rejected on that ground. It is to be remembered, further, in the above connection that the present Section 151 was not there in the aforesaid old Code of Civil Procedure.

4. We do not think also that the subsequent Full Bench decision of this Court (Vide Fatimunnissa v. Deoki Pershad, ILR 24 Cal 350, overruling the above case of ILR 23 Cal 339), in so far as it held that the remedy by way of review was not available in such cases, and holding that, that, indeed was the only remedy available for the purpose, presents any difficulty as, under the old Code, a dismissal for default was a decree, which it is not under the new.

5. One word, now, as to the Full Bench decision of the Rangoon High Court, in Abdul Ganny v. Mrs. I. M. Russell, AIR 1930 Rang 228 (F B). That decision appears to have accepted the position that Article 168 of the Indian Limitation Act applies only to applications under the Civil Procedure Code, though purporting to extend it to applications ejusdem generis and seeking to include therein also applications for restoration of appeals dismissed for default for non-payment of paper book costs. It is to be noted, however, that the actual decision in the above Rangoon case appears to have been given upon the footing that the application before their Lordships, though under Rule 9(2) of the Rangoon High Court Rules, was really one under the Code, the basis and the substantive rule (Rule 9(1)) under which the appeal in question was dismissed, being of a nature, similar to other provisions of the Code, and having been expressly placed by the Rangoon High Court in Order LII of the Code (vide P. 234). In that view, the proposed extension--at least, beyond the strict ejusdem generis principle, if not, on the same principle also--must be held to be merely an obiter dictum.

6. Lastly, we would like to add here that the decision of this Court in : AIR1932Cal770 has placed cases like the present really under Section 151 of the Code of Civil Procedure and the reference in that decision to Order XLI, Rule 19 of the Code was only the citation of an analogous provision of similar underlying principle or procedure (vide, in this connection, Ramkhelawan Singh's case, AIR 1939 Pat 678 (FB) already cited), never meant to apply by analogy,--and that, indeed, is not permissible, the rule or limitation in Article 168 of the Indian Limitation Act, no such question of limitation being or having arisen there before their Lordships for decision.

7. We, accordingly, overrule Mr. Bhattacharya's plea of limitation and make this Rule absolute, set-aside the dismissal of the above appeal and restore it to file.

8. There will be no order for costs in this Rule.

Bhattacharya, J.

9. I agree.


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