WILLIAM JACKS AND CO INDIA TLD Vs. SUMITA SEN
LAWS(CAL)-1983-7-6
HIGH COURT OF CALCUTTA
Decided on July 21,1983

WILLIAM JACKS AND CO INDIA TLD Appellant
VERSUS
SUMITA SEN Respondents

JUDGEMENT

- (1.) THIS is a re-visional application at the instance of the defendant-appellant whose application under section 5 of the Limitation Act for condoning the delay in preferring an appeal against an exparte decree before the lower appellate court has been dismissed by the said court. The order impugned is one dated May 11, 1983, passed by the learned District Judge, 24-Parganas in Title Appeal No. 275 of 1982 A Short point which arises for our consideration on the present revisional application is as to whether the time spent by the appellant-petitioner in run-successfully prosecuting j an application under Order 9 Rule 13 of the Code of civil Procedure against the very decree under appeal which failed on its merits can be excluded for computing the period of limitation for the appeal subsequently filed against the said decent.
(2.) RELEVANT fact are not in dispute. An exparte decree was passed against the petitioner on May 24, 1979, in ejectment Suit No. 87 of 1978 though the petitioner appeared in the suit to contest. On August 2, 1979, the petitioner filed an application under Order 9 Rule 13 of the Code along with an application under section 5 of the Limitation Act. The delay in filing the said application under Order 9 Rule 13 of the Code having been condoned, the said application was heard on its merits and on contest. It, however, failed and was dismissed on february 14, 1981. An appeal therefrom also failed and was dismissed on December 12, 1981. A revisional application challenging -those orders also failed and was dismissed on March 16, 1982.
(3.) IN that background the petitioner then preferred an appeal against the very same exparte decree on March 25, 1982, T. A. 275 of 1982 as aforesaid. Since the appeal was preferred long beyond the period of limitation (i. e. 1064 days)the petitioner filed an application under section 5 of the Limitation Act. In this application the case made out by the petitioner is that on account of mistaken advice of their lawyer they filed an application under Order 9 Rule 13 of the code and bonafide prosecuted the same until March 16, 1982, hence that period should be excluded in computing the period of limitation for the appeal. This application was heard on evidence and the learned District Judge rejected the same on a finding that the appellant-petitioner had failed to. establish their case that they pursued the remedy under Order 9 Rule 13 of the Code upon any mistaken advice. He refused to believe the petitioner's case that such mistake could be found out only after the application had failed in three courts. Feeling aggrieved the petitioner has now moved this court challenging the said order of the learned District judge.;


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