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Goljan Bibi Vs. Sheikh Nafar Ali and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in40Ind.Cas.234
AppellantGoljan Bibi
RespondentSheikh Nafar Ali and anr.
Excerpt:
civil procedure code (act v of 1908), order xli, rule 10, clause (2) - appeal, dismissal of--re-admission--judge, power of--limitation act (ix. of 1908), article 168--application for re-admission, limitation for. - .....j.1. this is a rule calling on the opposite party to show cause why the order of the officiating district judge of dacca, dated 2nd november 1916, should not be set aside.2. the order was made in the following circumstances. the petitioner filed an appeal in the district judge's court on the 31st may 1916. on the 4th july 1916 she was directed under rule 10, order xli, to furnish security in the sum of rs. 80 for the costs of the appeal and of the original suit. the time for furnishing security was more than once extended. on the 26th august 1916 the officiating district judge refused to extend the time further and dismissed the appeal under clause (2) of order xli, rule 10. on the 2nd november 1916, the petitioner applied for the re-admission of the appeal. by the first of the two.....
Judgment:

Richardson, J.

1. This is a Rule calling on the opposite party to show cause why the order of the Officiating District Judge of Dacca, dated 2nd November 1916, should not be set aside.

2. The order was made in the following circumstances. The petitioner filed an appeal in the District Judge's Court on the 31st May 1916. On the 4th July 1916 she was directed under Rule 10, Order XLI, to furnish security in the sum of Rs. 80 for the costs of the appeal and of the original suit. The time for furnishing security was more than once extended. On the 26th August 1916 the Officiating District Judge refused to extend the time further and dismissed the appeal under Clause (2) of Order XLI, Rule 10. On the 2nd November 1916, the petitioner applied for the re-admission of the appeal. By the first of the two orders made on that date, the Officiating District Judge directed that the appeal should be re-admitted if the amount of the security ordered were deposited in Court by the 8th November 1916. By the second order of the same date against which this Rule has been obtained, he rejected the application on the ground that it had just come to his notice that the application was time-barred by more than a month.

3. It is not disputed that the Judge had jurisdiction to re-admit the appeal after having dismissed it by an order under Clause (2), Rule 10, Order XLI.

4. It is argued for the petitioner that inasmuch as the Officiating District Judge had jurisdiction in the exercise of his powers to re-admit the appeal by his first order of the 2nd November, he was functus officio and had no power to pass the second order of the same day. It is further argued for the petitioner that the Officiating District Judge was wrong in deciding that the application was time-barred. Apparently the Officiating District Judge applied Article 168 of the Schedule of the Limitation Act. It is contended that that Article applies to an application made under Rule 19, Order XLI, and has no application when an application is made to restore an appeal which has been dismissed under Rule 10.

5. On the other hand, it is contended for the opposite party that both the first and second orders of the 2nd November 1916 were made by the Officiating District Judge without notice to them and that they are not bound by those orders. On the question of limitation, it is argued for the opposite party that the District Judge is right in applying Article 168 of the Schedule of the Limitation Act.

6. It seems to me that the contention of the opposite party that they are not. bound by the order of the 2nd November 1916 re-admitting the appeal should be accepted. That raises the question whether this Court ought to exercise its revisional jurisdiction in the matter.

7. In regard to the question of limitation even if Article 168 does not apply to an application for the restoration of an appeal dismissed under Rule 10, Order XLI, it is clear that such an application ought to be made within a reasonable time; and by anology an application made after thirty days would ordinarily be an application unduly delayed

8. The petitioner had had every opportunity of complying with the order for furnishing security and she did not apply to set aside the order dismissing the appeal till the 2nd November. As the Officiating District Judge has said, that was more than thirty days beyond the period allowed by Article 168. Whether the Article applies or not, the petitioner did not, in my opinion, act with due diligence in the matter. We have come to the conclusion that this Court ought not to interfere in this case.

9. In that view, the Rule should be discharged. We make no order as to costs.

Walmsleit, J.

10. I agree tint the Rule should be discharged.


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