NARAYAN MANDAL AND ORS Vs. BENI MADHAB SIRKAR

JUDGEMENT

(1.) The point referred for our determination is whether the "period during which the Mofussil Courts are closed for the Dassara vacation, and during which an application for review cannot be filed because there is no officer to receive the application, ought to be absolutely and invariably excluded in calculating the period within which it is directed by section 377 of the Code of Civil Procedure that reviews shall ordinarily be filed." I am of opinion that as a matter of right the applicant cannot claim to deduct from the ninety days any holiday or holidays which may occur within the ninety days, within which under section 377, Act VIII of 1859. the application shall be made. If the ninety days happen to be a holiday and the application is filed on the next Court day, then such circumstances would be taken into consideration when the Court has to decide whether the applicant has shown just and reasonable cause for not applying within the period prescribed under section 377. If it should so happen that the Court is closed on the ninetieth day and the application is filed the next day, no Court exercising a wise discretion would say that such was not a just and reasonable cause for not having preferred the application within the limited period. We are not to presume that the Courts will exercise the discretion given them by this section in an improper and arbitrary manner. The law does not grant that the parties are to have any time given them beyond the ninety days except upon the just and reasonable ground for the delay being shown to the satisfaction of the Court. In this case the applicant allowed seventy-eight working days to elapse before taking any steps towards making an application to review the judgment passed against him. It has been said during the course of the argument that the law will not compel a person to do an impossibility, and that if the Courts are closed on a day on which the ninetieth day allowed by law falls, the applicant is compelled, by circumstances over which he has no control, to file his application after the expiry of the time allowed him by law. My reply to this is that under section 377 that circumstance is just one of the circumstances which may be taken into consideration when the Court decides whether the applicant has been able to show just and reasonable cause to its satisfaction for not having come in within the limited period.

(2.) I have very little to add to the judgment of the learned Judges by whom this question has been referred to us. I entirely concur in the opinion expressed by those learned Judges, and I regret to find that that opinion is not concurred in by the other Judges who form this Bench.

(3.) The question which is propounded for the decision of the Full Bench is whether the period during which the Mofussil Courts are closed for the Dassara vacation, and during which an application for review cannot be filed because there is no officer to receive the application, ought to be absolutely and invariably excluded in calculating the ninety days within which it is directed by section 377 of the Code of Civil Procedure that review shall ordinarily be filed.