BISWANATH BANERJEE Vs. AMAR NATH MUKHERJEE
LAWS(CAL)-1961-5-2
HIGH COURT OF CALCUTTA
Decided on May 30,1961

BISWANATH BANERJEE Appellant
VERSUS
AMAR NATH MUKHERJEE Respondents

JUDGEMENT

P.N. Mookerjee, J. - (1.) This Rule raises an important question, concerning the law of limitation. On or about Jutte 2, 1960, the connected appeal was dismissed for nonpayment of paper book costs. On March 23, 1961, the present rule was obtained for restoration of the said appeal. On the merits, we are satisfied that it is a fit case for restoration, as aforesaid, as sufficient cause has been shown by the appellant petitioner for excusing the default in question and the delay, if any, in the making of the present application is not, in the circumstances of this case, unreasonable. The point, however, has been raised by Mr. Bhattacharya, who appears for the contesting opposite parties, that the instant application is time barred under Article 188 of the Indian Limitation Act and, as a matter of law, Section 5 of that Act has no application here to enable or entitle the Court to condone the delay in the matter.
(2.) On the second question, aforesaid, no decision is necessary as, in our view, the above Article (Article 168) does not apply to cases like the present, which really come under Section 151 of the Code of Civil Procedure (vide Mrs. Minne Lal v. Mahadeo Lal, AIR 1949 Pat 112, citing inter alia and relying upon Ramkhelawan Singh v. Monilal Sahu, AIR 1939 Pat 678 (FB); see also Sm. Hari Dassi Debi v. Sajani Mohan, 36 Cal WN 564; (AIR 1932 Cal 770), as explained hereinafter), for which and for the exercise of the inherent powers whereunder, there cannot be any period of limitation less, at any rate, than three years from the date of the impugned order, Article 181. being the nearest Article, if any, of the Indian Limitation Act, applicable to the case. Indeed, it may well be contended that there is no period of limitation, prescribed for such applications, and the question of limitation, apart from unreasonable delay, would not arise or would not be relevant in such cases (Vide AIR 1949 Pat 112, supra, the latest Patna case on the point, in which all the relevant earlier authorities have been discussed; see also Armada Prasad Mitra v. Sushil Kumar, 46 Cal WN 326 at p. 332: (AIR 1942 Cal 390 at p. 393) and Sonubai Baburao v. Shivajirao Krishnarao, AIR 1921 Bom 20 but, even taking the other view, the nearest,--and, indeed the only,--Article applicable would be Art, 181 (Vide in this connection, Asmatali Sharip v. Mujaharali Sardar, 52 Cal WN 64 : (AIR 1948 Cal 48) (SB) Article 168 being, upon a true view of the said Article (Vide AIR 1921 Bom 20 : ILR 45 Bom 648) limited to applications for restoration of appeals, dismissed on account of defaults under the Code, that is, under Rules 17 and 18 of Order XLI, thereof, or, in other words, to application for restoration under Order XLI, Rule 19 of the Code, which in Our opinion, cannot and would not comprehend the instant case, the said Rule being expressly, on its terms, limited to cases of default under Rules 17 and 18 of the said Order.
(3.) We do not think that the above view is opposed to Ramhari Sahu v. Madan Mohan, ILR 23 Cal 339, where, notwithstanding reference to the old Section 568, corresponding to the present Order XLI, Rule 19 of the Code, at P. 344 of the report, which was really for the purpose of citing an analogous provision of similar principle and procedure, the application in question was dealt with really as an application under Rule 17, Part II, Chapter VIII of the Rules of this Court and the plea of limitation,--particularly under Article 168 of the Indian Limitation Act,--was rejected on that ground. It is to be remembered, further, in the above connection that the present Section 151 was not there in the aforesaid old Code of Civil Procedure.;


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