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Abdul Hakim Chowdhury Vs. Hem Chandra Das - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported inAIR1915Cal666,(1915)ILR42Cal433
AppellantAbdul Hakim Chowdhury
RespondentHem Chandra Das
Cases ReferredTikait Ajant Singh v. F. T. Christien
Excerpt:
appeal - practice--filing of certified copy of decree appealed from after the prescribed period of limitation, without leave of the court, effect of--inherent power of high court--ex parte order in application for review of order of dismissal passed at preliminary hearing setting aside of, at final hearing of appeal--civil procedure code (act v of 1908) section 151 order xli. rules 1, 11, order xlvii, rules 4, 7--limitation act (ix of 1608) section 5. - .....both the cases, and of the decree in appeal 790 which differed from the decree in the other suit. appeal no. 2024 was filed without any copy of decree or judgment, and it is alleged that inasmuch as the copies might have taken leas time in that case that it was not filed within the period of limitation. but this of course we cannot now go into, as we cannot assume that it would have taken any different time to get copies en this case to what it did in the other. on the 17th june 1912, the memorandum of appeal in 2024 was returned to the appellant with a note under order xli, rule 1, that there was no copy of the decree appealed from. a copy had been obtained on the 1st may 1912 and it was filed by the appellant on the 5th july 1912. appeal 790 came up before a bench of this court.....
Judgment:

Holmwood, J.

1. But the Court allowed the application.

2. It is open to me to object to it now under Order XLVII, Rule 7. (b) and (c) of the Code. Though no appeal lies from an order of the High Court, still I can take this objection in this appeal, which is an appeal from, the final decree in the suit. The order granting the review is to this effect: 'Having regard to the fact that an analogous appeal has been admitted by two learned Judges, who, we are informed, were told that we had summarily rejected the appeal, we think this latter also should be admitted.' This application was not supported by any affidavit explaining the delay of one month since the other appeal was admitted. I ought to mention that there was a note at the end of the application as follows: 'Petitioner prays for extension of time 'under sections 5 and 14 of the Limitation Act.'

3. As regards S. A. No. 2024, I submit that no appeal was filed on 10th April 1912, only a memorandum of appeal without the necessary copies required by Order XLI, Rule 1 of the Civil Procedure Code having been filed. Even the memorandum was filed out of time by about 20 days. The application filing the copy of the decree was not supported by any affidavit, and did not contain any prayer for extension of time under Section 5 of the Limitation Act. It merely says that the copy was not filed through mistake. The copy actually filed, took only 9 days to obtain, and even that period cannot be deducted. Had the copy been filed as soon as it was received, both the appeals would have been dismissed together on 24th June 1912. It is not explained why there was a delay of more than one month in filing it, nor did the Court excuse this delay or the-previous delay in filing the memorandum of appeal out of time.

4. My last objection is that no second appeal lies under the provisions of Section 153(b) of the Bengal Tenancy Act, the learned Subordinate Judge having found against the plea of the defendants and decreed the suit for rent on the basis of the contract between the parties. No doubt an appeal lay from the decision of the Munsif as he allowed a smaller rate of rent than that claimed by the plaintiff, but there was no occasion for the Subordinate Judge to decide, nor did he in fact decide, any question as to amount of rent. I refer to your Lordship's decision in a recent Rule No. 644 of 1914 decided on 23rd Juno 1914.

5. Babu Prabodh Kumar Das, for the respondent. I submit that a second appeal lies, as the defendant claimed reduction o rent under Section 52 of the Bengal Tenancy Act.

Holmwood, J.

6. We want to hear you first on the other objection, which is a serious one.

7. I distinctly asked for extension of time and it was allowed. I even asked their Lordships for a notice on the other side when the review was allowed, but their Lordships thought it was unnecessary. I am told that as a matter of practice no notice is issued in such cases.

8. [Babu Ram Doyal De. No, that is not the practice.]

Holmwood, J.

9. It is not a question of practice, when the law lays down that notice must be given. What Is the rule under which you can now dispute the order in. S. A. No. 2024? You have given ns the rule which you rely on in the case of review in the other appeal.

10. [Babu Ram Doyal De. There is no such rule, but there are two decisions of your Lordships holding that ex parte admission of applications may be disputed at the final hearing: Tikait Ajant Singh v. F.T. Christien (1912) 17 C. W. N. 862. and Bhismadeo Das v. Sita Nath Bay (1912) 17 C. W. N. 42.

Holmwood, J.

11. These two appeals, Nos. 790 and 2024 of 1912, relate to a litigation for rent which has been going on since 1906. The proceedings by which they have now come before us illustrate in the most extraordinary way the ease with which questions of limitation and fatal irregularities may escape the notice of several Benches in succession unless facts are properly brought to the notice of the Judges at the time-applications are made.

12. The history of this case is as follows. A suit was brought for rent in 1906 which was decided exparte. Towards the close of three years execution was taken out and the defendants applied for rehearing. The Munsif restored the suit. In the meantime another rent suit against the same defendants had been filed in the year 1910. The suits were consolidated and the Munsif decreed the suits with modifications. On appeal the lower Appellate Court reversed the decision of the Munsif and decreed the plaintiff's suit in full on the 20th December. 1911. The decree was signed on the 22nd December 1911. The appeals were filed in this Court in the two cases on the 10th April 1912. Appeal No. 790 appears to have been filed on the last day with a copy of the judgment which covered both the cases, and of the decree in Appeal 790 which differed from the decree in the other suit. Appeal No. 2024 was filed without any copy of decree or judgment, and it is alleged that inasmuch as the copies might have taken leas time in that case that it was not filed within the period of limitation. But this of course we cannot now go into, as we cannot assume that it would have taken any different time to get copies En this case to what it did in the other. On the 17th June 1912, the memorandum of appeal in 2024 was returned to the appellant with a note under Order XLI, Rule 1, that there was no copy of the decree appealed from. A copy had been obtained on the 1st May 1912 and it was filed by the appellant on the 5th July 1912. Appeal 790 came up before a Bench of this Court under Order XLI; Rule 11, on the 24th June 1912 and was summarily dismissed.

13. The copy of the decree, which was filed on the 5th July 1912, was accepted. There was no prayer for extension of time, although it was mentioned in a no to that the copy was out of time. But to avoid the law of limitation, Section 5 of the limitation act would have to be applied, and we find that no order stating that the Court was satisfied, as is required by that section, was recorded. Curiously enough Appeal 2024, which was an analogous appeal filed at the same time as 790 did not come on for hearing under Order XLI, Rule 11, until the 2nd January 1913 before another Bench. That Bench admitted it without being told that it was barred by limitation and without any adjudication upon that point. Thereupon a review of the order of dismissal in Appeal 790 was filed before another Bench, that is the fourth Bench before which these cases had come and was granted on the 1st February 1913 without notice to the other side.

14. Now whether, as speaking for myself, I am able to hold that Order XLVII, Rule 7, enables the respondent to take objection before us now in this appeal from the final decree or order passed or made in the suit, or whether be is entitled to invoke the inherent power of this Court as both of ns are prepared tn hold and, as was held in the case of Tikait Ajant Singh v. F. T. Christien (1912) 17 C. W. N. 862., it is clear that the non-compliance with Rule 4 of Order XLVII renders the granting of this application for review, which was prejudicial to the respondent, a nullity and that such an application could not be granted without previous notice. We have already shown that under Order XLI, Rule 1, filing of the decree of the Appellate Court is imperative, and that the appeal cannot be said to have been preferred until that decree is tiled. Appeal. 2024 is therefore clearly barred by limitation.

15. That being so, the preliminary objection must prevail and both the appeals must be dismissed. The question whether any second appeal lay on the matters found by the Subordinate Judge is one which we need not go into. The amounts are very small and in dismissing these appeals with costs, we think that a single hearing fee of one gold mohur is sufficient for both these appeals.

Chapman, J.

16. Concurred.


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