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Abdul Sheikh Vs. Mahamad Ayab - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in56Ind.Cas.551
AppellantAbdul Sheikh
RespondentMahamad Ayab
Excerpt:
provincial small cause courts act (ix of 1887), section 17 - review, application for, unaccompanied by deposit--application filed on last day of limitation--time, extension of, for making deposit, legality of--limitation act (ix of 1908), section 5, schedule 1, article 161. - .....new evidence which he could not have discovered before by the exercise of due diligence. the learned judge entertained the application for review, and eventually gave judgment for the plaintiff.3. this rule had been supported on the ground that the plaintiff did not comply with the provisions of section 17 of the provincial small cause courts act of 1887, it is clear that under the provisions of article 161 of the limitation act of 1908, the period within which an application for review of a judgment given by a provincial court of small causes must be made is fifteen days from the date of the decree or order. it appears from the learned judge's judgment that the application was made on the last day of the fifteen days, allowing the plaintiff one day for taking a copy of the.....
Judgment:

Lancelot Sanderson, C.J.

1. This is a Rule which was obtained by the defendant in a suit which was brought in the Small Cause Court of the Subordinate Judge at Berhampore.

2. The suit was brought by the plaintiff for Rs. 125 and at the first hearing the suit was dismissed, and I assume it was dismissed with costs. Thereafter, the plaintiff made an application for review of judgment. The ground of the application was that he had discovered new evidence which he could not have discovered before by the exercise of due diligence. The learned Judge entertained the application for review, and eventually gave judgment for the plaintiff.

3. This Rule had been supported on the ground that the plaintiff did not comply with the provisions of Section 17 of the Provincial Small Cause Courts Act of 1887, It is clear that under the provisions of Article 161 of the Limitation Act of 1908, the period within which an application for review of a judgment given by a Provincial Court of Small Causes must be made is fifteen days from the date of the decree or order. It appears from the learned Judge's judgment that the application was made on the last day of the fifteen days, allowing the plaintiff one day for taking a copy of the judgment. It is provided by Section 17 of the Provincial Small Cause Courts Act that 'an applicant for an order to set aside a decree passed ex parte or for a review of judgment shall, at the time of presenting his application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment, or give security to the satisfaction of the Court for the performance of the decree or compliance With the judgment, as the Court may direct.' The plaintiff did not comply with the provisions of Section 17 but on the following day the Court, I assume upon the application of the plaintiff, made an order that the amount of costs should be deposited within four days. The amount of costs was not so deposited, and a farther order was made on the 2nd of July granting the plaintiff five more days, and eventually the amount of costs was deposited on the 5th of July 1919. The learned Judge has said that in his opinion Section 5 of the Limitation Act applies to this, case and applying Section 5 he has extended the period for making the application for review up to the 5th of July, the date upon which the amount of costs was deposited. I think it is doubtful whether Section 5 of the Limitation Act applies to this case at all, because it seams to me that the application for review was made within time, and consequently it may be urged that Section 5 does not apply at all. But assuming for the sake of argument that Section 5 does apply, then it is incumbent upon the plaintiff to show that he had sufficient cause for not making the application within the time specified. 1 fail to understand on what ground it can be said that the plaintiff has sufficient cause for not making his application not only within the proper time but in the proper manner by depositing the amount of costs or giving security for the same at the time of making the application. The learned Judge seems to have thought that the plaintiff may have been misled by the orders of the Court. So far as I understand the dates, there was no order of the Court made until after the period within which the application should have been made and in a proper manner in accordance with the provisions of Section 17 of the Provincial Small Cause Courts Act.

4. For these reasons in my judgment the Rule should be made absolute, and the order granting a review of judgment should be set aside and the application for review dismissed. The defendant must have the costs of this Rule, hearing fee one gold mohur, and also the costs of the application for review.

Walmsley, J.

5. I agree.


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