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Benodini Chaudhurani Vs. Jagabandhu Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1933Cal796
AppellantBenodini Chaudhurani
RespondentJagabandhu Roy and ors.
Excerpt:
- 1. in this case according to one view the memorandum of appeal was presented nine days out of time. but according to the view presented on behalf of the respondent, the memorandum of appeal was presented 21 days out of time. it appears that the appeal is directed against a preliminary decree in a mortgage suit. the date of the preliminary decree is the 2nd march 1932. the final decree was passed on 19th march 1932. it is said on behalf of the appellant that the pleader in the court below advised the appellant that there would be appeal only against both the final decree and the preliminary decree and that therefore time for filing the appeal would run from the date of the final decree. the advice was of course incorrect and when the papers reached the learned advocate in this court, mr......
Judgment:

1. In this case according to one view the memorandum of appeal was presented nine days out of time. But according to the view presented on behalf of the respondent, the memorandum of appeal was presented 21 days out of time. It appears that the appeal is directed against a preliminary decree in a mortgage suit. The date of the preliminary decree is the 2nd March 1932. The final decree was passed on 19th March 1932. It is said on behalf of the appellant that the pleader in the Court below advised the appellant that there would be appeal only against both the final decree and the preliminary decree and that therefore time for filing the appeal would run from the date of the final decree. The advice was of course incorrect and when the papers reached the learned advocate in this Court, Mr. Joy Gopal Ghose, it was discovered that the time for preferring the appeal against the preliminary decree had already expired.

2. The present appeal was presented on the l to June. The memorandum of appeal did not bear any stamp. The grounds were written out or typed on a piece of blank paper. It is true that the appellant came to the learned Judges taking first appeals and obtained an order for extension of time for putting in deficit court fees. That order was made in the absence of the other side and without hearing them. Dr. Mukherji for the appellant has drawn our attention to what; has been done in cases where there has been a question of deficit court-fees and where extension of time has been granted. It is to be noticed however that all these cases were cases where the memorandum of appeal bearing some stamp or other was presented in time and it was then discovered that the court-fees were insufficient and thereafter further time was allowed to put in the deficit court fees. The present case is however different. I am not aware of any case where the memorandum of appeal was presented out of time without any stamp whatsoever and where such presentation has been considered as if it were that of a proper memorandum of appeal. As far as one can make out, the net result of this case is that the memorandum of appeal was presented out of time by 21 days. The question is whether having regard to the circumstances and being not; unmindful of the fact that the litigant is a pardanashin lady, we should be prepared to exercise our powers under Section 5, Lim, Act, and grant extension of time not merely for nine days but for as much as 21 days. In my view this would be a dangerous precedent if we were to allow such an extension; and taking all circumstances into consideration such extension of time ought not to be granted. The result is that the rule is discharged and it is directed that the memorandum of appeal be not registered. The rule is discharged with costs, hearing fee being assessed at three gold mohurs.

S.K. Ghose, J.

3. l agree.


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