1. This was a Rule calling on the opposite party to show cause why the second appeal should not be admitted out of time and registered, on the ground that the time taken in the infructuous proceedings in the review matter is bona fide litigation which would save limitation.
2. It appears that the father of the minor applicant died during the hearing of the appeal before the lower Appellate Court. The lower Appellate Court's judgment was passed on the 11th August 1914. The decree was passed on the 15th August 1914. There was an application for review on the 10th September 1914. The learned Subordinate Judge admitted the application, issued notice and fixed the 7th November 1914 for hearing. In the meantime, he was transferred, and on the 7th November 1914 the District Judge heard the parties in the review matter and wrote a considered judgment rejecting the review. The applicants then applied for copy of the lower Court's judgment and decree on the 30th November 1914. They obtained their copy on the 7th December. It is stated that the appeal was ready on the 12th December and it was filed on the 14th December.
3. In showing cause, the learned Vakil has relied upon the finding of the District Judge that all the grounds taken in the petition for review were grounds of appeal and the ruling in Ashanulla v. Collector of Dacca 15 C. 242 has been relied upon. We entirely agree with that ruling, and if the grounds for review were only grounds of appeal we should certainly hold that the applicants can claim no exclusion of time on the ground of bona fide prosecution of civil proceedings. Rut here the fourth ground taken in the petition of review is obviously a good ground for review, and the learned Subordinate Judge must be taken in admitting the review and fixing a date pf hearing to have held that there was such a ground. We have been, referred to the case of Gobinda Dal Das v. Shiba Das Chatterjee 10 C.W.N. 986 : 3 C.L.J. 545 : 33 C. 1323 for the proposition that a mere routine order registering an application for review does not constitute the bona fide prosecution of a civil litigation. That also we are prepared to concede. But the facts of that case were totally different from the facts of the present case, There the application for review was ordered to be registered by the Judge who dismissed the suit, and the Judge who succeeded him when he was on leave refused to hear the review and a great delay took place in passing the order dismissing the review.
4. It is further contended that laches after the dismissal of the review in not immediately filing the appeal, would also deprive the applicants of the benefit of Section 14 of the Limitation Act and certain remarks of Mr. Justice Mookerjee in the case we have just referred to, are relied on. But those remarks being considered, as they must be, as a whole, do not support the contention. The learned Judge recalls the words of an eminent English Judge where he says, for myself I say emphatically that this discretion ought not to be crystallised, as it would become in course of time by one Judge attempting to prescribe definite rules with a view to fetter other Judges in the exercise of the discretion which the Legislature has permitted to them. What is sufficient cause and what is reasonable time for filing an appeal must depend upon all the circumstances of each particular case--circumstances which must necessarily vary greatly in different cases.'
5. Now the laches which is here complained of is that the minor applicants did not apply for copies necessary for their appeal until 23 days after the review had been rejected, and the circumstances which we have to take into consideration are that their father had died in July or August when they were minors, their only guardian being a lady, Gouribari Bewa, and they resided in an out of the way village named Bara Khandu in the Kendrapara Sub-Division of District Cuttack, and we cannot say that 23 days was at all an unreasonable time for them to procure some gentlemen of their own neighbourhood to proceed on the long and troublesome journey to Cuttack and consult Pleaders, then come back and raise the necessary funds for the copies and do all the other necessary work that had to be done before the copies could be obtained.
6. We think that this is eminently a case where our discretion should be exercised in favour of the applicants, and we, therefore, make the Rule absolute and direct that the appeal be registered and put on the board for hearing under Order XLI, Rule 2, Civil Procedure Code. This being an indulgence we do not allow any costs to the applicants.
7. I agree.