DEBENDRA JENA AND ORS. Vs. JHATU JENA AND ORS.
LAWS(ORI)-1973-3-25
HIGH COURT OF ORISSA
Decided on March 23,1973

Debendra Jena And Ors. Appellant
VERSUS
Jhatu Jena And Ors. Respondents

JUDGEMENT

S. Acharya, J. - (1.) THE unsuccessful Defendants 1 to 10 in both the Courts below have preferred this second appeal against the judgment and decree passed by the District Judge, Balasore in S.J.A.N. 93 of 1967. I confirming the judgment and decree of the trial Court.
(2.) THE Plaintiffs filed the suit for partition of the Kha and Ga schedule lands. The trial Court on an elaborate consideration and discussion of the evidence on record has arrived at the following findings : (1) The Ga schedule property was the separate and exclusive property of late Ganesh Jena, one of the four sons of Siba Jena, the common ancestor of the family, and that property has devolved exclusively on the legal heirs of Ganesh (Defendants 12 to 16), and so this property is not available for partition amongst the other three branches of Siba Jena; (2) In the Kha schedule property, Defendants 12 to 16 have no claim whatsoever, and the other three branches have each 1/3rd share in the same. (3) The Plaintiffs (Plaintiff No. 1 is the son of late Bishnu, one of the three other sons of the said Siba, and Plaintiffs 2 and 3 are the sons of Plaintiff No. 1) are entitled to 2/15th share in the Kha schedule property. Plaintiff No. 1 is entitled to 1/15th share in that property and Plaintiffs 2 and 3 together are entitled to another 1/15th share in that property purchased by them from Defendant No. 11. (4) The genealogical table as amended by the Plaintiffs after the remand of the suit is correct. The Appellate Court has mostly confirmed the aforesaid findings of the trial Court and further held that the first appeal filed before it was barred by limitation.
(3.) AT the hearing of this appeal Mr. De, appearing for Defendants 12, 13, 14 and 16 (some of the Respondents herein) at the outset urged that as the first appeal by the Appellants herein before the lower Appellate Court was barred by limitation, this second appeal preferred by the same persons was not maintainable in law. In this connection Mr. De, submits that the decree of the trial Court was passed on 9 -9 -1967, and taking into account seven days for obtaining the certified copy of the judgment and decree the appeal in the first Appellate Court should have been filed by 17 -10 -1967. But that appeal was filed on 14 -12 -1967. The petition under Section 5, Limitation Act filed by the Appellants in that Court for condonation of the said delay was dismissed. Accordingly the appeal in the first Appellate Court was barred by limitation as found by the Appellate Court. This High Court issued notification No. 236 dated 23 -11 -1967 under Section 15, of the Bengal, Agra and Assam Civil Courts Act. 1887 to the following effect: In exercise of the powers vested in them under Section 15 of the Bengal. Agra and Assam Civil Courts Act, 1887 (Act XII of 1887) and in partial modification of the list of Civil Court holidays for the year 1967, published in the Court 's notification No. 219 -S, dated the 24th November. 1966 the High Court with a view to saving limitation in suits, cases and appeals which the litigant public of the flood affected areas could not have filed due to the serious condition arising out of the recent floods, are pleased to declare that the subordinate Civil Courts mentioned in the schedule below shall be deemed as closed for the period noted against each. SCHEDULE. 1. Civil Courts in the district of Balasore in the judgeship of Balasore ... From the 4th September, 1967 to the 30th November, 1967. 2. Civil Courts in the district of Mayurbhanj in the judgeship of Mayurbhanj -Keonjhar ... From the 4th September, 1967 to the 16th September, 1967. Mr. B. Ray, the learned Counsel for the Appellants, contended that because of the aforesaid notice the trial Court in the district of Balasore should be deemed to have remained closed from 4 -9 -1967 to 30 -11 -1967 for all intents and purposes and accordingly the decree signed on 9 -9 -1967 should be considered to have been signed on the 1st December, 1967, when the Courts formally reopened after their deemed closure for the aforesaid period in accordance with the aforesaid notification. Mr. Ray in this connection submitted that as the said notification was issued with a view to save limitation, the decree passed on any date from 4 -9 -1967 to 30 -11 -1967 should be considered to have been passed on 1 -12 -1967 in order to enable the parties to have full benefit of the period of limitation prescribed for an appeal against the said decree. Mr. Ray 's above contention and submissions in that connection are not correct in view of the limited scope and ambit of the above quoted notification. From the language and text of the notification it cannot be said that the Courts mentioned therein should be deemed to have remained closed for all intents and purposes for the aforesaid period. That notification, as is evident therefrom, was made only for the purpose of saving limitation in suits, cases and appeals which the litigant public of the flood affected areas could not file due to the serious condition which prevailed during that time, as specifically mentioned in that notification. So, if any period of limitation for filing suits, cases and appeals expired during the aforesaid period (from 4 -9 -1967 to 30 -11 -1967), such matters could be filed on 1 -12 -1967 on the strength of that notification without any question of limitation. So the only effect of that notification was to extend the last date of filing such matters till 1 -12 -1967 in case the said last date fell within that period, and it is not capable of the wider interpretation given to it by Mr. Ray. Moreover, the Court which passed the decree was not in fact closed on 9 -9 -1967 when the decree was signed. Subsequently this High Court, by the said notification dated 23 -11 -1967, issued under Section 15 of the Bengal, Agra and Assam Civil Courts Act, 1887 (Hereinafter referred to as 'the Act '), declared that the subordinate Courts mentioned in the schedule therein should be deemed as closed for the period noted against each. As per the provisions of Sub -clause (3) of Section 15 of the Act a judicial act done by a civil Court on a day declared as a closed holiday under Section 15 thereof shall not become invalid only because of such declaration. So the decree in this case, which was signed on a day when the Court factually and actually has not closed, continued to be a valid decree in all its aspects even inspite of the aforesaid notification. Accordingly, it cannot be said that the decree, actually signed on 9 -9 -1967, should be construed to have been passed on 1 -12 -1967 though the decree was validly drawn up and signed on 9 -9 -1967. On the above considerations Mr. Ray 's contention is not tenable. The decisions cited by Mr. Ray are not of any help as they do not at all answer the point in issue. The first appeal therefore should have been filed on 1 -12 -1967, and so there was delay in its filing on 14 -12 -1967.;


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