S.C.Lahiri, J. - (1.) These three revision cases raise the question whether Section 5 of the Indian Limitation Act will apply to appeals under section 27 of the Calcutta Thika Tenancy Act of 1949. The facts of these three cases which are not disputed are these:
(2.) On 29-9-1956, the Thika Tenancy Controller made an order of ejectment against the opposite parties and an appeal against that Order was filed in the court of the District Judge, 24-Parganas, on 20-11-1956. Under Section 27 of the Calcutta Thika Tenancy Act the period of limitation for filing an appeal against an order of the Controller is 30 days from the date of the order. In all these three cases the opposite parties filed applications for extension of time under Section 5 of the Indian Limitation Act on the allegation that though the order had been passed by the Controller on 29-9-1956, the opposite parties on account of physical infirmities of various descriptions, came to know of the order on 5-11-1956. They made an application for an urgent copy o the order on 9-11-1956, and filed the appeals before the District Judge on 10-11-1956. The office of the District Judge made a report that all these appeals were time barred by 12 days. The learned District Judge, however, upon the applications filed by the opposite parties, held that the opposite parties had made out a sufficient cause within the meaning of section 5 of the Indian Limitation Act and accordingly condoned the delay and ordered the appeals to be registered. Against that order the landlord petitioner has obtained the present rules.
(3.) On behalf of the landlord petitioner it has been contended that Section 5 of the Indian Limitation Act does not apply to appeals under Section 27 of the Calcutta Thika Tenancy Act of 1949. The question will have to be decided upon a proper interpretation of section 29(2) of the Indian Limitation Act. The scope of section 29(2) of the Indian Limitation. Act. has in recent years, been very Carefully analysed, in the cases of Province of Bengal v. Amulya Dhone Addy, 54 CWN 297; (AIR 1950 Cal 336)(A) & Bijan Lata Basak v. Bhudhar Chandra Das, both of which are Bench decisions, which are binding on us. In the case of Province of Bengal v. Amulya Dhone Addy (A), Mitter, J. pointed out that section 29 (2) of the Indian Limitation Act applies only to two classes of appeals: (a) where the period of limitation prescribed in a special Act is different from that prescribed in the first schedule of the Limitation Act, and (b) where the only period of limitation is that provided in the special Act and the appeal does not fall under any of the articles in the first schedule of the Limitation Act. In the case of appeals coming under the first class, Sections 3 to 25 of the Limitation Act will apply but in the case of appeals coming under the second class, Sections 4, 9 to la and Section 22 will apply, unless they are expressly excluded, and the remaining sections of the Limitation Act will not apply. In the case of appeals for which a period of limitation has been prescribed in the Special Act and also in the first schedule of the Limitation Act, and both the periods are identical, Section 29(2) has no application and all the provisions of the Limitation Act from Section 3 to Section 25 will be applicable. In Mitter and P. N. Mitter, JJ., had to consider the question whether an appeal under the Calcutta Improvement Appeals Act (Act XVIII of 1911) would be governed by the provisions of Section 5 of the Indian Limitation Act. In that Act Section 4 provides that subject to the provisions of Section 3, the provisions of the Code of Civil Procedure 1908, with respect to appeals from original decrees, shall, so far as may be, apply to appeals under that Act; and section 6 provides that an appeal under that Act shall be deemed to be an appeal under the Code of Civil Procedure, 1908, within the meaning of Article 156 of the first schedule to the Indian Limitation Act, 1908. That case, therefore, was clearly one which came under Article 156 of the Indian Limitation Act and consequently their Lordships had no difficulty in holding that Section 5 of the Indian Limitation Act would apply to an appeal under that Act.;