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Krishna Prosad Vs. Udit NaraIn Singh - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in9Ind.Cas.621
AppellantKrishna Prosad
RespondentUdit NaraIn Singh
Excerpt:
court of wards act (ix b.c. of 1879), sections 10a and 644 - notice, publication of--'date of the publication of notice'--interest to cease when--pleader, admission of--mistake of law--second appeal. - .....of six months from the publication of the notice.3. it appears, however, that although the notice was published in the gazette on the 12th june, 1907, it was not published in the judge's office until the 18th november, 1907. under section 64 a of the act the notice must be published both in the gazette and the judge's office as well as in several other ways; and the publication cannot be regarded as complete until the notice has been published in all the different ways required by the section. the claim was admittedly filed sometime before the 11th of february, 1908. this is well within six months from the date of the publication in the judge's office. it is clear, therefore that the admission by the plaintiff that the claim had not been filed within six months of the publication.....
Judgment:

1. The defendant in this case is a Ward of Court and the only question that arises in the appeal is whether the plaintiff is entitled to interest after the submission of his claim under Section 10 A of the Court of Wards Act of 1879.

2. It was admitted in the first Appellate Court that the claim had not been filed within six months of the date of publication of the notice prescribed by that section and on that admission the learned District Judge refused interest after the expiration of six months from the publication of the notice.

3. It appears, however, that although the notice was published in the Gazette on the 12th June, 1907, it was not published in the Judge's office until the 18th November, 1907. Under Section 64 A of the Act the notice must be published both in the Gazette and the Judge's office as well as in several other ways; and the publication cannot be regarded as complete until the notice has been published in all the different ways required by the section. The claim was admittedly filed sometime before the 11th of February, 1908. This is well within six months from the date of the publication in the Judge's office. It is clear, therefore that the admission by the plaintiff that the claim had not been filed within six months of the publication of the notice was erroneous. It has been argued by the learned Government Pleader on behalf of the defendant that this admission is an admission of fact and that it is not open to this Court in second appeal to say that the decision of the learned District Judge based on this admission is erroneous in law. But he very properly concedes that if the admission is regarded as an admission based on mistake of law it would not be binding on the plaintiff. Now, if the Pleader for the plaintiff, after seeing that the notice had been published in the Gazette on the 12th June, did not make any farther inquiry, but rashly assumed that all the other notices must have been published within a very short period, I think his admission might well be regarded as an admission of fact and the decree of the learned District Judge based on it might not be assailable. But it appears that the plaintiff actually gave evidence of the publication of the notice in the Judge's Court on the 13th November 1907. It seems, therefore, clear that when the Pleader admitted that the claim had not been submitted within six months from the publication of the notice he was misconstruing altogether the words 'the date of the publication of the notice'. These words at the conclusion of the first Clause of Section 10A of the Act ought to be construed as meaning the date of the last publication under Section (34A. If the Pleader construed it, (and it appears to me that he must have so construed it), as meaning the date of the first publication he was making a mistake in the construction of an enactment; or, in other words, a mistake in law. 1 think, therefore, that I am entitled to deal with this case in second appeal. As it is not now disputed that the claim was filed within 6 months of the final publication of the notice the view of the learned District Judge that the plaintiff is not entitled to subsequent interest cannot be supporter!. At the same time as this second appeal has arisen entirely from this unaccountable mistake of the plaintiff's Pleader and considering also the fact that this ground was not originally stated in the memorandum of appeal to this Court, 1 am not prepared to allow the costs either of the lower Appellate Court or of this Court.

4. The result is the appeal will be allowed, the decision of the learned District Judge is set aside and that of the Subordinate Judge restored.


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