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Ujagar Singh Vs. Duni Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtHimachal Pradesh High Court
Decided On
Case NumberSecond Appeal No. 21 of 1950
Judge
Reported inAIR1951HP68
ActsLimitation Act, 1908 - Sections 5 and 14
AppellantUjagar Singh
RespondentDuni Chand and ors.
Advocates: Jai Gopal, Adv.
DispositionAppeal dismissed
Cases ReferredRajendra Bahadur Singh v. Rajeshwar Bali
Excerpt:
- .....before the trial court on 18-8-1949 was not based on the same cause of action on which the present appeal has been filed. the cause of action for the institution of that application in the trial court was the passing of an ex parte decree against the appellant, whereas the cause of action for the constitution of the present second appeal is the passing of the judgment & decree dated 28-1-1950 by the district judge. it is manifest therefore, that the two causes of action are quite different. that being so, the pendency of the aforesaid application of the deft, appellant in the trial court for setting aside the ex parte decree cannot be construed as a sufficient cause for the delay in the preferment of the present second appeal against the judgment & decree of the learned dist. j......
Judgment:

Chowdhry, J.

1. This is a seoond appeal by Ujagar, who was one of the four defts. against whom the pltfs. respondents Duni Chand & others filed a suit in the Court of the Senior Subordinate Judge of Nahan on 7-9-1948 for recovery of an alleged loan. The Senior Subordinate Judge dismissed the suit against the other defts., but decreed it ex parte against the present appellant Ujagar Singh on 18 7-1949, The present appellant thereupon applied on 18-8-1949 to the trial Court for setting aside the ex parte decree, & this application was dismissed by that Court on 25-7-1950. While the aforesaid application of the appellant was pending in the trial Court the pltfs. filed an appeal on 21-10-1949 in the Court of the District Judge against the aforesaid judgment & decree of the trial Court dated 18-7-1949 against the dismissal of their suit against defts. other than the present appellant. This appeal by the pltfs. was dismissed by the District Judge on 28-1-1950 with this modification that they were allowed future interest which the trial Court had failed to allow. Against this judgment & decree of the learned District Judge dated 28-1-1950 Ujagar Singh has filed this second appeal.

2. This second appeal was filed on 7-12 1950, & there is an office report that it has been filed beyond time. It appears that an application for copies was filed by the appellant on 19-8-1950. There is an affidavit on behalf of the appellant that this application was for a copy of not only the judgment but also of the decree of the Court of the District Judge, The appellant got a copy of the judgment on 13-9-1950 but that of thedecree on 20-11-1950. Accepting for purposes of the present decision the affidavit of the appellant that he had applied for copies of both the judgment & decree on 19-8-1950, he is entitled to the benefit of the period from 19-8 1950 to 20-11-1950. In other words, adding this period of time taken in obtaining copies to the usual ninety days for filing the appeal, the present second appeal should have been filed on 30-7-1950. There was, therefore, a delay of four months & seven days upto7-12-1950, when the appeal was actually filed.

3. The learned counsel for the appellant has argued that the period from 18-8-1949 to 25-7-1950, which was taken by the trial Court for the disposal of his application for setting aside the ex parte decree, should be excluded from computation of the period of limitation for filing the present second appeal under Section 14, Limitation Act. There is no doubt that the provisions of Section 14, which are in terms applicable only to suits & applications, have also been extended to appeals. Rajendra Bahadur Singh v. Rajeshwar Bali, A.I.R. (24) 1937 P.C. 276. It is clear that if Section 14 is otherwise applicable the aforesaid period between 18-8-1949 & 25-7-3950 would be excluded as constituting sufficient cause within the meaning of Section 5, Limitation Act. I am, however, of the opinion that the principle of Section 14 is not applicable in the present case.

4. It is necessary for the application of Section 14 that the other civil proceeding which a party has been prosecuting with due diligence in another Court should have been a proceeding founded upon the same cause of action. In the present case, the application filed by the present appellant before the trial Court on 18-8-1949 was not based on the same cause of action on which the present appeal has been filed. The cause of action for the institution of that application in the trial Court was the passing of an ex parte decree against the appellant, whereas the cause of action for the constitution of the present second appeal is the passing of the judgment & decree dated 28-1-1950 by the District Judge. It is manifest therefore, that the two causes of action are quite different. That being so, the pendency of the aforesaid application of the deft, appellant in the trial Court for setting aside the ex parte decree cannot be construed as a sufficient cause for the delay in the preferment of the present second appeal against the judgment & decree of the learned Dist. J. within the intendment of Section 5, Limitation Act. Upholding the office objection this second appeal is summarily dismissed as time-barred.


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