BIMALA DEVI Vs. PATITAPABAN DEV
HIGH COURT OF ORISSA
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(1.) FACTS may be stated in brief. First Appeal No. 127 of 1971 was filed with 4 defects. Defects 1 to 3 were removed before the Registrar on 10-1-1972 by order no. 2. For removal of defect No. 4 the Registrar granted three days time on that day with an order that failing compliance the appeal would be placed before the bench for dismissal. As the defect was not removed the appeal was listed before r. N. Misra, J. on 18-1-1972 who passed the following order: "there is no compliance of order No. 2. There is no appearance. Mr. Das is grant-ed two days' time to comply with order No. 2 subject to an application failing which the appeal shall stand dismissed without further reference to Court. " The appellants filed the requisites in time but did not file an application for acceptance of the requisites. Thus, the peremptory order passed on 18-1-1972 was not complied with partially. Accordingly the Deputy Registrar passed an order on 25-1-72 to the effect "the appeal stands dismissed in pursuance of Court's Order No. 3 dated 18-1-1972. " on 13-7-1972 this M. J. C was filed, long after the expiry of thirty days. The stamp Reporter did not take any objection that the M. J. C was barred by limitation. The Deputy Registrar referred to a judgment of Ahmed C. J. in M. J. C no 55 of 1965 disposed of on 14-1-1966 (Orissa) taking the view that the application is not barred by time. The learned Chief Justice's view is extracted here-under:
". . . . . According to the provision made in Article 122 of the Limitation Act, this application should have been filed latest by the 29th of August, 1965. Mr. Chatterji appearing for the petitioner has challenged the report given by the Stamp Reporter. The submission made by Mr. Chatterji is that in a case like this which has been filed under Section 151 C. P. C. the limitation as provided in Article 122 of the Limitation Act does not apply. In fact according to the learned counsel there is no limitation provided at all for a case like this in the Limitation Act. In support of this contention reliance has been placed by the learned counsel on a Bench Decision of the Patna High Court reported in Mrs. Minne Lal v. Mahadeo Lall, AIR 1949 Pat 112. There the phrase 'for want of prosecution' as used therein has been interpreted to mean 'dismissed for want of prosecution as provided or contemplated In the Code of Civil procedure and not dismissed for want of non-compliance of any peremptory order passed by the Court'. In my opinion the view taken in the Division Bench is fully supported by the terms as used in Article 122 of the Limitation Act. Accordingly it Is held that an application made in the circumstances stated above is not governed or controlled by Article 122 of the Limitation Act. . . . . " The matter was placed before R. N. Misra, J. who by his order dated 22-8-73 referred it to a larger Bench due to conflict of judicial opinion. The case was placed before a Division Bench consisting of Acharya and R. N. Misra JJ. and they referred the matter to a Full Bench OB 7-9-1972. This is how the case has come before us.
(2.) THE short question for consideration is whether Article 122 or Article 131 of the indian Limitation Act, 1963 (Act 36 of 1963) applies to an application for restoration of the appeal dismissed for non-compliance of the provisions of the high Court Rules. Articles 122 and 137 run thus: description of suit Period of Time from limitation which period begins to rs. 122. To restore a suit or appeal or application for review Or revision dismissed for default thirty days The date of dismissal. of appearance or for want of prosecution or for failure to pay costs of service of process or to furnish security for costs. 137. Any other application for which no period of limitation is provided elsewhere in this division. Three years When the right to apply accrues.
(3.) ARTICLE 122 so far as it relates to readmission of an appeal dismissed for want of prosecution corresponds to Article 168 of the Indian Limitation Act, 1908 (Act IX of 1908 ). Similarly Article 137 of the 1963 Act corresponds to Article 181 of the 1908 act.;
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