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Elahinewaz Khan Vs. Biseswar Baisya and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Reported inAIR1925Cal175,79Ind.Cas.921
AppellantElahinewaz Khan
RespondentBiseswar Baisya and ors.
Cases ReferredSarat Chandra Bose v. Saraswati Debi
Excerpt:
- .....29th april 1919. the appellant thereafter filed an appeal against that order in the court of the district judge of mymensingh on the 30th may 1919. at the hearing of the appeal an objection was taken by the respondent to the effect that the appeal did not lie to that court but to the high court and the learned judge in a considered judgment upheld the objection, and on the 11th june 1920 returned the memorandum of appeal for presentation to the proper court. the memorandum of appeal was presented to this court on the 9th august 1920 and an application was made to this court on the 16th august 1920 for an extension of time for presentation of the appeal to this court under section 5 of the limitation act.4. in such cases a rule is usually issued on the respondent to show cause why an.....
Judgment:

1. The first question which we are called upon to determine in this case is whether the appellant has made out a case for the exercise of the discretion vested in the Court under Section 5 of the Limitation Act to admit the appeal which was presented after the period of limitation. In order to determine this question it is necessary to refer to the relevant dates. There were three suits brought by the decree-holders on several mortgages. The suits were Nos. 945, 699 and 698 of 1916. They were decreed on the 30th January 1917. The decree passed in these suits was rather peculiar.

2. The suits were tried together and were disposed of by one judgment and the decree following the judgment was a joint decree, a copy of which was ordered to be placed in the record of each of these suits. It ordered that certain properties were to be sold first and out of the sale proceeds the decrees in suits 945 and 699 were to be first paid off and surplus would go to satisfy the decree in suit No. 698 from which the present appeal has arisen.

3. In execution of that decree several properties were sold and the decretal amounts in the first two suits were paid off. Subsequently the property which is described as property No. 2 to Schedule No. 2 (Taluk No. 13165) was sold for Rs. 7,000 on the 25th June 1918. The appellant was one of the judgment-debtors in suit No. 698; but he was no party to suit No. 699. He filed an application for setting aside the sale under Order 21, Rule 90. This application was heard by the Subordinate Judge and was dismissed on the 29th April 1919. The appellant thereafter filed an appeal against that order in the Court of the District Judge of Mymensingh on the 30th May 1919. At the hearing of the appeal an objection was taken by the respondent to the effect that the appeal did not lie to that Court but to the High Court and the learned Judge in a considered judgment upheld the objection, and on the 11th June 1920 returned the Memorandum of Appeal for presentation to the proper Court. The Memorandum of Appeal was presented to this Court on the 9th August 1920 and an application was made to this Court on the 16th August 1920 for an extension of time for presentation of the appeal to this Court under Section 5 of the Limitation Act.

4. In such cases a rule is usually issued on the respondent to show cause why an extension of time should not be granted; and this procedure has been insisted upon by their Lordships of the Judicial Committee in the case of Krishnaswami v. Ramaswami Chettiar A.I.R. 1917 P.C. 179. It is no doubt very desirable that matters relating to the admission of appeals and similar preliminary questions should be decided before the appeal is placed on the list for hearing.

5. The learned Judge before whom the application was made, however, passed the following order, ' Let the appeal be registered subject to such objection, if any, that may be taken at the hearing of the appeal.'

6. They further added that they followed this course as the learned Vakil for the appellant urged that he would prefer it rather than that a Rule should be issued. It is evident therefore that the learned Judges would not have made this order but for the request of the learned Vakil for the appellant. This appeal has come up before us for hearing after four years and the respondent takes the preliminary objection that it was filed out of time and is barred by limitation.

7. It is submitted on behalf of the appellant that it was through a bona fide mistake that he presented the appeal in the Court of the District Judge and that the time that was occupied in prosecuting the appeal with due diligence and in good faith in the District Judge's Court should be deducted, and if this is done, the appeal is within time, because it will have been presented in this Court within 90 days from the data of the order of the Subordinate Judge.

8. There is no doubt that if the appellant succeeds in establishing due diligence, good faith and the absence of neglect he is entitled to argue that it will be sufficient cause within the meaning of Section 5 of the Indian Limitation Act, so as to persuade us to extend the time for presentation of the memorandum of appeal in this Court. In order to determine this question it is necessary to consider the facts of this case. As we have observed, there were three suits brought on different mortgages which were consolidated and tried together by consent of parties.

9. The learned District Judge in his judgment observes, and rightly observes, that the composite decree that was passed by the Subordinate Judge in three cases was passed with the consent of all the parties concerned and the order in which the properties were directed to be sold was intended to be beneficial to the parties inasmuch as the appellant had expected that the sale of the properties which consisted of his town residence and other valuable pieces of land would satisfy the three decrees and thus save the taluk which is the subject-matter of the present appeal. No complaint on the ground that the decree was misleading could be urged by the appellant.

10. It appears, further, that some properties were sold and according to the order recorded by the execution Court on the 10th August 1918, the decrees in suit No. 945 giving rise to execution case No. 56 of 1918 and in suit No. 699 giving rise to execution case No. 57 of 1918 were fully satisfied. The balance left over went towards the satisfaction of the decree passed in suit No. 698 from which arose execution case No. 58 of 1918. It is clear that on that date the decrees in the other two suits were satisfied and that the decree in the last mentioned suit No. 698 of 1916 was satisfied in part. As the three suits were tried together and, as one consolidated decree was made, the three execution proceedings were likewise consolidated and the order in all the execution cases was recorded in the order-sheet in execution case No. 57 of 1918. It is to be noticed that the suits Nos. 699 and 945 were valued at sums below Rs. 5,000 and the suit No. 698 was valued at Rs. 9,613 and that when the execution of the decree in that suit was sought it amounted to Rs. 11,818. This property, namely, the taluk No. 13165 was one of the properties involved in suits Nos. 698 and 945; but, as above stated, the decrees in 699 and 945 having been satisfied by the sale proceeds of other properties, the sale of the taluk in dispute was held in execution of the decree passed in suit No. 698. In the bidsheet which is headed as bid-sheet in execution cases Nos. 56, 57 and 58 of 1918, dated from the 20th June 1918 to the 25th June 1918 there is an order that the last bid of Rs. 14,500 in respect of other properties was accepted by the Court and the Nazir was directed to well the remaining property that is property No. 2 of Schedule No. 2 for the realization of the balance due in suit No. 698 of 1916. In the petition which the appellant presented in the Court below under Order 21,R. 90 he states 'for the realisation of decretal amount in suit No. 698 of 1916 of this Court between the aforesaid decree-holders and judgment-debtors; the decree was executed in case No. 58 of 1918 and the following moveable properties owned and held by the judgment-debtor petitioner were sold by auction on the 25th June 1918, in execution case No. 57 of 1918, for the realization of the amount under the said decree.' This chows that the appellant was aware on that date of the true state of things, namely that the decree in suit No. 698 was executed and the property was sold for realization of the amount due under that decree in Execution Case No. 57. Then again the memorandum of appeal presented to the District Judge is headed as 'In execution cases Nos. 57 and 58 of 1918 of the Court of the First Subordinate Judge of Mymensingh between the aforesaid parties, the property of the judgment-debtor having been sold on the 25th June 1918; the petitioner made an application for the said sale being set aside under Order 21, Rule 90, Civil Procedure Code.' We also notice that the proclamation of sale issued by the execution Court on the 2nd May 1918 for the sale of the properties one of which was the disputed property is headed 'mortgage execution case No. 58 of 1918.' The learned Vakil for the appellant, however, argues that the appellant was misled by execution being taken in execution No. 57 in which the suit was valued at less than Rs. 5,000 he honestly believed that the appeal lay to the District Judge. We are unable to accept this contention. We do not find any circumstances which might reasonably be supposed to have misled the appellant. He was one of the parties to the suit, he knew the valuation of the different suits, he was aware that the decree which was executed in execution case No. 57 was fully satisfied and he was further aware that the amount of the sale proceeds of the disputed taluk went towards the satisfaction of the decree in suits Nos. 945 and 698 of 1916. We may also remark that the appellant is a pleader by profession. He attempted to give some explanations of his apparent negligence in an affidavit which was filed in this Court at the time when the order was obtained for the registration of the appeal. In the affidavit he does not say how he was led to think that the appeal would lie to the District Judge except that orders were passed in Execution Case No. 57 which arose from a suit which was valued at less than Rs. 5,000.

11. This, in our opinion, is not sufficient. There are other circumstances which clearly point to a knowledge of the appellant that he was aware or would have been aware with slight diligence that though execution was taken in one of the Execution Cases, all the three cases were in process of execution.

12. In our judgment the question whether the time should be extended under Section 5 of the Limitation Act, should be answered in the light of the peculiar circumstances of each case. The learned Vakil for the appellant has referred us to certain decisions of the Judicial Committee in order to heir. us to ascertain the principle to be applied in this case. The case of Brij Inder Singh v. Kanshi Ram A.I.R. 1917 P.C. 156 simply reiterates what Section 14 has laid down, namely that the period occupied in prosecuting with due diligence and in good faith a proceeding in another Court is to be deducted in computing the period within which an appeal should be presented. The case Shrimant Sunderabai v. Collector of Belgaum A.I.R. 1918 P.C. 135, shows the reluctance of their Lordships of the Judicial Committee to interfere with the discretion vested in the Judges of this Court in either admitting or refusing to admit an appeal presented beyond time. They affirmed the views taken in the case of Krishnaswami v. Ramaswami A.I.R. 1917 P.C. 179. In Sundarbai's case the defendant had sufficient cause for not presenting the appeal in the District Judge's Court within the period of limitation. The learned Judges of the High Court when admitting the appeal had made the following observation. ' 'We have no doubt that the mistake under which the appeal was filed originally in the High Court arose from the difficulty relating to valuation of suits in this counfery. We are satisfied as to bona fides and diligence of the appellant in this case and we, therefore, think that the appellant had sufficient reason within the meaning of Section 5, Limitation Act, for not presenting the appeal to the District Court.' These cases, therefore, are no authorities for the broad proposition that where there is a chance of mistake the Court should in every case excuse the delay.

13. There is a further difficulty in the way of the appellant. The memorandum of appeal was returned by the District Judge on the 11th June 1920 but was not presented to this Court before the 9th August 1920, i.e., after an interval of about two months. It is, therefore, necessary that the plaintiff should give a satisfactory explanation of this delay. The only explanation offered is contained in his affidavit to which we have already referred. He says therein that ' there was serious illness in the petitioner's family and some time was requited in making arrangement in the High Court.' This, in our opinion, is not sufficient explanation of the delay. Under Section 14, Limitation Act, the appellant who seeks to deduct the period must prove that he carried on the litigation with due diligence. In the case of Ram Narain Joshi v. Parmeshwar Narain Mahto (1903) 30 Cal 309, this Court refused to extend the time for presentation of an appeal under Section 5 of the Limitation Act and the Judicial Committee declined to interfere with the order. In that case the delay was one of six weeks; and their Lordships of the Judicial Committee said that the delay which had occurred since the rejection of the appeal by the High Court and which was not accounted for militates against interference by their Lordships, with the order of the High Court. In the case of Sarat Chandra Bose v. Saraswati Debi (1907) 34 Cal. 216, the delay was for one month in presenting an appeal to this Court after the District Judge had held that he had no Jurisdiction to hear the appeal. Their Lordships (Mookerjee and Holmwood, JJ.) refused to accept the explanation and one of the facts which weighed with them was that the appellant in that case as in this case was a pleader.

14. Considering all the circumstances of the case we are of opinion that this is not a fit case in which we should be justified in exercising the discretion vested in us under Section 5 of the Indian Limitation Act in excusing the delay in presenting the appeal to this Court.

15. The result is that this appeal is dismissed with costs. We assess the hearing fee at three gold mohurs.


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