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Srimati Thakamani Dasi Vs. Pitambar Bhuiya and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in62Ind.Cas.957
AppellantSrimati Thakamani Dasi
RespondentPitambar Bhuiya and ors.
Cases ReferredBrij Indar Singh v. Kanshi Ram
Excerpt:
limitation act (ix of 1908), sections 5, 14 - period occupied in re-view proceedings, when can be deducted in computing limitation for appeal--discretion--court misdirecting itself as to law applicable--superior court, duty of. - .....in computing the period of limitation presented for the appeal to the lower appellate court.2. the learned judge refers to section 14 of the limitation act and to the conflict of rulings on the point. apparently the recent decision of the judicial committee in the case of brij indar singh v. kanshi ram : (1917)19bomlr866 was not brought to his notice. in that case their lordships observed: 'now if the judge who purports to exercise the discretion does so under the view that there is no general rule, when in fact there is one, if he has, to use an expression often used in another class of eases, misdirected himself as to the law to be applied to the case, he cannot exercise a judicial discretion and the superior court--in this case this board--must either remit the case or exercise the.....
Judgment:

1. The question considered by the learned Judge in the lower Appellate Court was whether or not the appellant was entitled to deduct the time during which the application for review was pending, in computing the period of limitation presented for the appeal to the lower Appellate Court.

2. The learned Judge refers to Section 14 of the Limitation Act and to the conflict of rulings on the point. Apparently the recent decision of the Judicial Committee in the case of Brij Indar Singh v. Kanshi Ram : (1917)19BOMLR866 was not brought to his notice. In that case their Lordships observed: 'Now if the Judge who purports to exercise the discretion does so under the view that there is no general rule, when in fact there is one, if he has, to use an expression often used in another class of eases, misdirected himself as to the law to be applied to the case, he cannot exercise a judicial discretion and the superior Court--in this case this Board--must either remit the case or exercise the discretion themselves.' As the learned Judge evidently exercised the discretion without reference to the general rule enunciated above, we think the order must be set aside and the case remanded to the lower Appellate Court, in order that the question may be considered whether the proceedings in the review were reasonably presented and in good faith, which must be found before the appellant can claim the period occupied in the review proceedings to be deducted. The case will, therefore, be remanded in order that the Court may come to a decision on the point and dispose of the case according to law.

3. Costs to abide the result.


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