PALACHERLA VENKATA RAO AND ORS. BEING MINORS REPRESENTED BY MOTHER AND GUARDIAN VENKAYAMMA Vs. PALADUGULA RATTAMMA AND ORS.

JUDGEMENT

(1.) THE petitioners are minors. They were defendants in O.S. No. 63 of 1941 on the file of the District Munsiff of Rajahmundry. That suit was a mortgage suit and the plaintiff obtained a decree for sale. The property was brought to sale at a court -auction on the I2lh October, 1943. On the 1st of November, 1943, the petitioners represented by their mother filed an application under Order 21, Rule 90. In the suit, their uncle had been appointed guardian ad litem and that appointment had never been cancelled. On the 22nd November, 1943, the petitioners filed a security bond in the proceedings under Order 21, Rule 90. The bond was returned to them on the 26th November, 1943. The reason for that return is stated as follows in an endorsement on the affidavit:

(2.) AN affidavit stating the interest of the surety in the property should be filed.

(3.) WITH regard to the first point raised by the petitioners, I have no hesitation in holding that the dismissal of the petition on that ground was a dismissal without jurisdiction. When time is given, as it was in this case, for the performance of any act till a certain date, the time given includes that date also. See Perumal Nadan v. Sivanamji Nadachi, I.L.R. (1915) Mad. 583 and Chinniah Chettiar v. Kumaraswamiah, (1933) M.W.N. 88. Here in effect the Court disposed of the matter as though time had been granted till the 2nd December, 1943. In that event a calling of the case on the 3rd December for the purpose of filing the required additional affidavit would have been in order; but as time fixed was " till 3rd December, 1943," I do not consider that any order of dismissal for default, when as is clear here the purpose of the hearing was for the filing of the additional affidavit, can be regarded as a proper exercise of the jurisdiction of the Court. On this ground alone I would be prepared to allow the application for revision.