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Mahomed HosseIn Vs. Inodeen - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1884)ILR10Cal946
AppellantMahomed Hossein
Respondentinodeen
Excerpt:
limitation for second appeals under burmah courts' act - act xvii of 1875, section 27. - .....to the high court under the indian limitation act; or, in fact, to any limitation whatever?3. the judicial commissioner states that 'it has been the practice of this court, when sitting with the powers of a high court, to apply to appeals made under the above section, the term of limitation of 90 days prescribed by article 156 of the second schedule of the indian limitation act, for appeals made to a high court under the code of civil procedure.' the question has been raised, however, whether the limitation act applies to a second appeal under section 27 of the burmah courts' act.4. the rules as to second appeals under the burmah courts' act are contained in sections 27-29 of that act.5. in the first place, section 27 deals with oases in which the deputy commissioner, or commissioner on.....
Judgment:

Richard Garth, C.J.

1. This is a reference from the Judicial Commissioner of British Burmah under Section 31 of the Burmah Courts' Act XVII of 1875.

2. The question referred for the decision of this Court appears to be this: Whether a second appeal under Section 27 of the Burmah Courts' Act is subject to the limitation of time prescribed for appeals to the High Court under the Indian Limitation Act; or, in fact, to any limitation whatever?

3. The Judicial Commissioner states that 'it has been the practice of this Court, when sitting with the powers of a High Court, to apply to appeals made under the above section, the term of limitation of 90 days prescribed by Article 156 of the second schedule of the Indian Limitation Act, for appeals made to a High Court under the Code of Civil Procedure.' The question has been raised, however, whether the Limitation Act applies to a second appeal under Section 27 of the Burmah Courts' Act.

4. The rules as to second appeals under the Burmah Courts' Act are contained in Sections 27-29 of that Act.

5. In the first place, Section 27 deals with oases in which the Deputy Commissioner, or Commissioner on appeal has reversed or modified the decision of the Court of First Instance. In such cases the Judicial Commissioner may receive a second appeal if, on a perusal of the grounds of appeal and of copies of the judgments of the subordinate Courts, a further consideration of the case appears to him to be requisite for the ends of justice.

6. The reception of the appeal is a matter for his discretion.

7. Then the Act goes on to deal with cases in which the Appellate Court has confirmed the decision of the Court of First Instance. In these cases, if the question is one of fact only, the decision by Section 28 is final. If, on the other hand, the question was one of law, then by Section 29 the party aggrieved by such decision may either (1) apply to the Court to state a case for the opinion of the Judicial Commissioner, or (2) ask for leave to appeal to the Judicial Commissioner.

8. In either of these cases the application (1) or the appeal (2) must be made within the period prescribed by law for petitions of appeal.

9. Then Section 34 deals with cases where the first Appellate Court has refused to state a case, or to give leave to appeal under Section 29.

10. And in those cases also the Judicial Commissioner may, if he pleases, call for the record of the case, and proceed to try it as if it had been preferred in due course under Section 29.

11. The general question, whether the provisions of the Limitation Act were intended to apply to appeals as of right under the Burmah Courts' Act, is not now before us. It is possible that the Legislature intended to make them applicable, though whether it has done so is another matter. It seems to us, however, that there is a distinction between appeals, which may be preferred as a matter of right, and such appeals as are referred to in Sections 27 and 34, and that this distinction is of the utmost importance in the consideration of the question now referred to us.

12. In cases of first appeal, and in cases under Section 29 when an application to state a case, or for leave to appeal, is made to the first Appellate Court, provision is made for a period of limitation within which such appeal or application should be preferred. But in cases falling under Section 27 or Section 34, when the application is made direct to the Judicial Commissioner, and when the reception of the appeal is left to his discretion, there is no provision made in regard to limitation. We cannot but consider that distinction is intentional. We think it must have been intended, that while a period of limitation is prescribed for appeals which may be preferred as a matter' of right and which the Appellate Court is bound, to entertain, cases under Section 27 or Section 34 of the Act should be left to the unfettered discretion of the Judicial Commissioner. It is discretional with him to receive the appeal, and in the same way we think that the period within which he may receive it is also left to his discretion.

13. No doubt the Judicial Commissioner, in the exercise of this discretion, would do well to consider whether the application to him has been made within a reasonable time, and he would probably refuse to interfere, if the applicant had been guilty of undue delay; but this is a matter for his discretion only, and no rule of limitation has been laid down which would prevent his interference, if at any time he thought it right to rehear or reconsider the case.

14. It is possible, that any application made to him to rehear or reconsider the case, would be subject to the general rule of limitation contained in Article 178 of the Limitation Act, and that consequently it must be made within three years from the time when the right to apply accrued. That question however, does not arise in the present case.

15. We think, therefore, that the view taken by the Judicial Commissioner is correct.


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