RAM CHARAN LAL Vs. GHAFOOR

JUDGEMENT

(1.) In this case it was objected before the lower appellate Court that the appeal was not in time; and sustaining the objection, the Court dismissed the appeal. The facts are that the judgment in the suit was delivered on 29 May 1925. The month of June was vacation, and the Court did not reopen till the 6 July on which date a memorandum of appeal was filed with a copy of the judgment but without any copy of the decree against which the appeal was taken. On the 10th July an order was passed allowing the appellants time up to the 15 July for obtaining and filing a copy of the decree. On the 11 July the appellants applied for a copy of the decree, which was not delivered to them till the 16 July. In the meantime the appellants had obtained a further extension of time up to the 21st July, on which date they presented a copy of the decree. The next material date is 27 July 1925, on which date the following order was passed: As parentage of the parties has been filed in English and a report by the office regarding sufficiency of Court-fees has been made, it is ordered that it be registered in the register of appeals and notice fixing 18 August 1925, be issued to the respondents for filing a vakalatnama, and the lower Court record will be sent for when necessary.

(2.) When the case came on for hearing before the District Judge of Bareilly on 2 December, 1925, he dismissed the appeal on a preliminary objection that it was not in time. He held that there was no reason why the appellants should not have obtained a copy of the decree at the same time as they obtained a copy of the judgment of the trial Court. Accordingly he decided that the appellants had failed to show any good cause for their delay, and he refused to exercise the discretion vested in him under Section 5, Lim. Act, to extend the time for filing the appeal. Two points have been urged before me by counsel for the respondents. First that even if the order of 27 July 1925, be taken as an order admitting the appeal and condoning the delay, that order was made ex parte and the learned District Judge had jurisdiction to reconsider the question when the appeal came before him. In support of this contention the case of Krishnasami Panikondar v. Ramasami Chettiar A.I.R. 1917 P.C. 179, is cited. That was a case in which a Division Bench of the High Court of Madras reconsidered, when the case came before it, the decision of the single Judge extending the period of limitation under Section 5, Lim. Act, and their Lordships of the Privy Council observed that.: the Division Bench had jurisdiction to reconsider the sufficiency of the cause shown and to do this at the hearing of the appeal.

(3.) I do not think that the order of 27 July 1925, was intended to been order extending the period allowed for filing the appeal. I think that it was intended that the question, whether the time should be extended or not, should be decided when the appeal came on for hearing; but, even if the order had been intended to extend the time, I think that the learned District Judge had jurisdiction to decide whether the discretion to extend the period for filing the appeal was or was not rightly exercised, because, if that extension was granted, it was granted ex parte and without giving the respondent any opportunity to state his side of the case. The second point taken by counsel for the respondent was that no appeal lies from an order of a Court exercising its discretion to extend or refuse to extend the period of time allowed for filing an appeal. In support of this he has cited the case of Bikram Singh V/s. Narain [1912] 9 A.L.J. 292, and two earlier decisions of this Court referred to and followed in that case. The decision is binding on me and I, therefore, hold that I have no jurisdiction to decide whether the learned District Judge was or was not right in refusing to extend the time. This appeal is accordingly dismissed with costs.