1. This is an appeal by the defendant against the decision of the District Judge of Chittagong of the 27th November 1916, dismissing the appeal from the decision of the Munsif of the 26th August 1916 on the ground that the appeal was time-barred.
2. The facts are as follows: The suit was one for declaration of title and possession. The Munsif delivered judgment on the 26th August 1916 in favour of the plaintiff. The Munsif signed his decree on the 5th September 1916. On the 23rd September 1916 the defendant applied for copy of the decree. On the 25th September the Court was closed for the pujas. On the 30th October the Court re-opened and on the 30th October an order was made rejecting the application for copies as the record had been taken to the District Court some 26 miles away. The defendant thereupon journeyed to the District Court and on the 31st he filed the memorandum of appeal and applied for copies and moved the Subordinate Judge, who was then in charge, to extend the time. On the 2nd November the Subordinate Judge extended the time for filing copies to the 10th November and the copies were filed on this date. But the District Judge on the 27th November reversed the decision of the Subordinate Judge giving time, stating that the defendant had been guilty of the maximum delay and he saw no ground to show him any special favour and could not extend the time.
3. It seems to me, if these facts are correct, that the defendant not only as a matter of indulgence but; as a matter of right is entitled to succeed on this appeal. But it is said that what the District Judge acted on was a note that appeared on the back of the application of the 23rd September, which stated that the records had gone. Then it is said that this being so, the defendant should at once have taken steps to get the copies from the District Court. But I think it was placing an undue burden on the defendant, when the Courts were closed on the 25th, to suggest that it was necessary for him, even assuming that the application of the 23rd September bore the note which it is said to bear (and this not admitted on the part of the appellant), that he should have at once proceeded to the District Court and obtained copies. I think it was certainly a case in which the District Judge should not have interfered with what had been done by the Subordinate Judge, and I think, as already stated, that both as a matter of indulgence and as a matter of right the defendant is entitled to have his appeal heard.
4. The result is that I remit the case to the lower Appellate Court in order that the appeal should be heard. The costs of this hearing will abide the result of the appeal.
5. The lower Court will deal with the appeal with as much expedition as possible.