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Boshoon Lall Sookul Vs. Chunder Doss and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal251
AppellantBoshoon Lall Sookul
RespondentChunder Doss and ors.
Cases ReferredMowri Bewa v. Surendranath Roy
Excerpt:
admission of an appeal after time - limitation act (xv of 1877), section 5, schedule i--power of high court to rectify such an error. - .....sircar i.l.r. 5 calc. 1 that the subordinate judge could not override the order of the district judge admitting the appeal, and that he had only jurisdiction to hear the appeal on its merits. we have referred to the original order passed by the judge. he does not in express words say that the appeal is admitted. he only says that it is 'admissible.' a doubt arises whether, by this order, the judge did not intend that the appeal should be entertained subject to hearing objections to its admissibility when both sides were before the court. however, assuming that the judge did admit the appeal, and that, under the authority of the case quoted, the subordinate judge had no jurisdiction to overrule the district judge's order of admission, it seems to us that we ought to deal with this.....
Judgment:

Morris, J.

1. What has occurred in this case is, that the District Judge, after admitting the appeal, which was long out of time, sent the appeal for decision to the Subordinate Judge. On the hearing of the appeal, after hearing both sides in the matter, the Subordinate Judge threw out the appeal on the ground that it was inadmissible. It is contended before us in special appeal, on the authority of the case of Jhotee Sahoo v. Omesh Chunder Sircar I.L.R. 5 Calc. 1 that the Subordinate Judge could not override the order of the District Judge admitting the appeal, and that he had only jurisdiction to hear the appeal on its merits. We have referred to the original order passed by the Judge. He does not in express words say that the appeal is admitted. He only says that it is 'admissible.' A doubt arises whether, by this order, the Judge did not intend that the appeal should be entertained subject to hearing objections to its admissibility when both sides were before the Court. However, assuming that the Judge did admit the appeal, and that, under the authority of the case quoted, the Subordinate Judge had no jurisdiction to overrule the District Judge's order of admission, it seems to us that we ought to deal with this matter in special appeal as a case in which the District Judge has exercised so bad a discretion as to amount to an irregularity in law. The record shows that the subject of dispute between the parties was decided by the Munsif so long ago as the 29th June 1874, and that order became final as the defendants preferred no appeal against it. For a whole year the defendants slept over their rights, and then, by means of a suit for declaration of right, they sought a form of relief which the High Court eventually, in 1879, declared to be closed against them. Foiled in this attempt, the defendants have attempted to re-open, by means of appeal, the question which was determined by the Munsif in June 1874. It seems to us that the District Judge, in admitting this appeal, has overlooked the fact that, for a whole year,--that is, long after the period prescribed by the Law of Limitation for appeal had expired,--the defendants allowed the decision to stand, and that it is entirely owing to their laches that this long delay occurred. The District Judge, too, has done this without having before him material sufficient in law to enable him to come to the conclusion that the delay was justified. We follow as an authority in this matter the case of Mowri Bewa v. Surendranath Roy 2 B.L.R. A.C. 184 note; s.c. 10 W.R. 178 in which a Division Bench of this Court held, that 'it is competent for the High Court, sitting on special appeal, to look into the grounds which a Judge has given for admitting an appeal after the lapse of the period limited for the purpose by the Procedure Code.' We consider that the Judge has exercised an improper and unwarrantable discretion in admitting this appeal; and we therefore affirm in substance, though on an entirely different ground, the order of the Subordinate Judge disallowing the admission of the appeal.

2. We give no costs of this appeal.


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