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Ramhari Sahu and ors. Vs. Madan Mohan Mitter - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1896)ILR23Cal339
AppellantRamhari Sahu and ors.
RespondentMadan Mohan Mitter
Excerpt:
ghatwali tenure - decree, execution of--rents due to ghatwal during his lifetime--attachment. - prinsep j.1. this is a rule obtained for the re-admission of an appeal dismissed for default in consequence of the failure of the appellant to deposit the necessary costs of the preparation of the paper book in accordance with rule 17. on the merits we are satisfied that the appeal should be restored, and that its preparation for a regular hearing should proceed on the appellant depositing, as it is said he is prepared to do, the necessary money to-morrow.2. it has, however, been contended by the learned vakil for the opposite party that this application being an application under section 558 of the code of civil procedure is barred under the limitation act, it having not been presented within thirty days from the date when the appeal was dismissed for default. an order of this court.....
Judgment:

Prinsep J.

1. This is a rule obtained for the re-admission of an appeal dismissed for default in consequence of the failure of the appellant to deposit the necessary costs of the preparation of the paper book in accordance with Rule 17. On the merits we are satisfied that the appeal should be restored, and that its preparation for a regular hearing should proceed on the appellant depositing, as it is said he is prepared to do, the necessary money to-morrow.

2. It has, however, been contended by the learned vakil for the opposite party that this application being an application under Section 558 of the Code of Civil Procedure is barred under the Limitation Act, it having not been presented within thirty days from the date when the appeal was dismissed for default. An order of this Court dismissing an appeal under Rule 17 for default in depositing the costs necessary for the preparation of the paper book operates no doubt as an order dismissing an appeal for default of prosecution under the Code of Civil Procedure, and an application for restoration of the appeal may possibly be regarded as an application under Section 588 of the Code. It would seem from the terms of the decision that was pronounced by this Court on the 13th instant in Letters Patent Appeal No. 6 of 1895 that it was so regarded, but as we were two of the Judges who delivered that decision, we may say that this point was not fully considered, and that by the expression so used we did not intend to hold that the application should be regarded as being only of that description. We did not then consider, nor was it necessary for the purpose of the matter then before us, to determine whether it might not be more properly an application under the Rules of this Court to a Division Bench rather than under Section 558. We do not therefore consider ourselves in any way embarrassed by the expression of that opinion, and the more so as on hearing this point fully argued, and after full consideration we have come to the conclusion that this application should be regarded as one under Rule 17 of the Rules of this Court rather than one tinder Section 558. Taking it as such we are of opinion that it is not barred by the law of limitation, which does not apply to such an application.

3. We are, therefore, of opinion that this rule should be made absolute, and the appeal restored upon condition that the appellant do deposit the costs to-morrow, otherwise the appeal will stand dismissed. We make no order as to costs.


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