Skip to content


Promatha Nath Mukherji Vs. Bhabataran Ganguly - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1927Cal829
AppellantPromatha Nath Mukherji
RespondentBhabataran Ganguly
Excerpt:
- .....by the plaintiff against the decree on the 17th september 1920. the seristadar reported to the learned judge that the appeal was out of time and on 20th september the judge recorded an order : 'heard pleaders; appeal admitted.' when the appeal came on for hearing on the 9th march 1922, an objection was taken by the respondent that the appeal had been filed out of time but that objection was overruled and the learned judge decided the appeal on the merits and decreed it and also decreed the suit. this was on the 21st march 1922. an appeal was filed in this court against the learned judge's decree and, on the 1st april 1925, this court reversed the judgment of the learned district judge and remanded the appeal to the lower appellate court directing an enquiry into the propriety of the.....
Judgment:

Cammiade, J.

1. This is an appeal by the defendant in a suit on a handnote, dated the 15fch March 1916. The suit was filed on the 14th March 1919, and it was dismissed by the trial Court on 10th August, 1920. The decree was signed on the 16th August 1920. The applications for copies of the decree and judgment were filed on 12th August and copies were delivered to the plaintiff on 17th August. The appeal was filed by the plaintiff against the decree on the 17th September 1920. The Seristadar reported to the learned Judge that the appeal was out of time and on 20th September the Judge recorded an order : 'Heard pleaders; appeal admitted.' When the appeal came on for hearing on the 9th March 1922, an objection was taken by the respondent that the appeal had been filed out of time but that objection was overruled and the learned Judge decided the appeal on the merits and decreed it and also decreed the suit. This was on the 21st March 1922. An appeal was filed in this Court against the learned Judge's decree and, on the 1st April 1925, this Court reversed the judgment of the learned District Judge and remanded the appeal to the lower appellate Court directing an enquiry into the propriety of the admission of the appeal and also directing that in case that inquiry should result in favour of the appellant in the lower appellate Court the appeal should be decided again on the merits. The learned Judge heard the parties on the question of the propriety of the admission of the appeal on the 30th July 1926, and he decided that the appeal should be admitted. On the 4th October 1926, he decided the appeal on the merits and decreed it.

2. In the appeal before us it is contended that the learned Judge was wrong in his finding that the appeal was within time and that the appellant was entitled to extension of time under the provision of Section 5, Limitation Act. As a matter of fact when the period for preparation of decree is excluded it is found that the appeal was filed one day beyond time and the only question that the learned Judge had to decide was whether or not the appellant had shown reasonable cause within the meaning of Section 5, Limitation Act, for his delay in filing the appeal. The pleader who had acted for the appellant died before the enquiry was held. Affidavits had been filed, one of them by the clerk of the pleader. It would appear that according to these affidavits the-facts are that the papers including the stamp for memorandum of appeal had been made over to the pleader on the 9th September and that the pleader had been under the impression that the appeal was not due to be filed till the 22nd September, but that at the instance of the appellant the appeal was filed at an earlier date, that is to say, on the 17th September. It is not disputed that if the pleader had been under a wrong apprehension about the date on which the appeal had to be filed and had given mistaken advice to his client, this would amount to sufficient cause within the meaning of Section 5, Limitation Act. But what is contended on behalf of the appellant before us is that the plaintiff, who is respondent before us, did not act on the pleader's advice because, if he had left the matter in the pleader's hand the appeal would have been filed on the 22nd September and not on the 17th September. It does not seem reasonable to say that because the plaintiff accelerated the filing of the appeal he is to be blamed. If the facts had been otherwise and the pleader had wished to file the appeal on the 17th September, and the party had asked that it be filed on the 22nd, the party would have been to blame for the delay. As matters stand now it is not just or proper that the respondent before us should suffer for the pleader's mistake.

3. That is as regards the matter of propriety of the admission of the appeal. As regards the merits of the decree passed by the learned Judge it is urged that the learned Judge was wrong in giving to the respondent interest at the rate stipulated in hand note up to the date of realisation. The way in which this matter is sought to be made a question of law is this : it is said that the grounds on which the learned Judge has given interest at this rate for the whole period up to the realization are erroneous. But what the learned Judge had said is this that the present appellant who was the defendant in the suit has caused much harrassment to the plaintiff who is now the respondent. It is urged on behalf of the appellant before us that the whole of the delay was caused by the plaintiff's mistake in filing his appeal one day beyond the time allowed by law. But this was not the only cause of delay in the disposal of this matter which has been before the Court from March 1919. What the learned Judge appears to have meant is that except for the delay in filing the appeal which is not due to any fault on the part of the plaintiff the rest of the delay was caused by the defendant. In any case the matter was one entirely within the Judge's discretion. It is not a matter to be interfered with in. second appeal. The appeal is, therefore, dismissed with costs. The rule is discharged.

Cuming, J.

4. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //