KUNHALI BEAKY Vs. SATHANIKA NARAYANAN
LAWS(KER)-1968-8-7
HIGH COURT OF KERALA
Decided on August 30,1968

KUNHALI BEAKY Appellant
VERSUS
SATHANIKA NARAYANAN Respondents

JUDGEMENT

- (1.) This an application to restore the application of the petitioner for obtaining a copy of the judgment which was rejected on 19-1-1968 for non production of copying papers.
(2.) The counsel for the petitioner invokes S.151 C.P.C. for the purpose and relies on the decisions in Berumull Sowcur v. Velu Gramany AIR 1942 Mad. 369 and Hari Prasad v. Chief Conservator of Forests, Madras 1958 (2) MLJ 552 to support the application. In Berumull Sowcer v. Velu Gramany AIR 1942 Mad. 369 the facts are that the application for copy was rejected on 3Cth August 1940 for default to deposit the copy stamps. A fresh application for copies was filed on 2-10-1940 and oh 3-10-1940 a petition to restore the original application was filed. The Trial Court passed an order on 11-10-1940 directing the issue of copies on the original application with a note thereon that they were granted in pursuance of the petition to restore the original application. The appeal was filed on the basis of the copies thus obtained. A preliminary objection was taken before the court which heard the appeal that it was barred. Patanjali Sastri J., following the decision in Ramanuja Ayyangar v. Narayana Ayyangar ILR 18 Madras 374 said: "No doubt the judgment does not state under what provision the court has the power to treat a petition for restoration of an application for copies dismissed for default as a continuation of the previous application, but the decision in Ramanuja Ayyangar v. Narayan Ayyangar ILR 18 Mad. 374 clearly concludes he point in favour of the appellant." In Ramanuja Ayyangar v. Narayana Ayyangar ILR 18 Madras 374 the application for copies was struck off for non production of the required stamp papers, and a petition was put in for restoration of the application which was ordered and copies were granted. It was contended that the appeal filed with the copies so obtained was barred by time, but the court held in the decision referred to it to be a continuation of the previous application for the purpose of computing the time prescribed for filing the appeal. The said decision is no authority for the position that an application for copy dismissed for default can be restored under S.151 C.P.C. In Hari Prasad v. Chief Conservator of Forests, Madras, 1958 (2) MLJ 552 Rajagopalan. J., was dealing with R.5 of O.11 of the Madras Original Side Rules which contains a specific provision for restoration and cannot therefore help the petitioner. There is no specific provision for restoration of such application in the rules framed by the High Court and I do not think it possible to invoke S.151 C.P.C. The restoration application is only an attempt to get over the period of limitation in filing the appeal which is purely a matter within the jurisdiction of the Court hearing the appeal, especially because of S.12 of the Limitation Act, 1963.
(3.) The application is therefore dismissed.;


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