HAFIZ MOHAMMAD ISMAIL Vs. SHAFAAT HUSAIN

JUDGEMENT

(1.) This is an appln. for revn. of an order rejecting an appln. under S. 5, Limitation Act.

(2.) The appct. filed a suit for the ejectment of the opposite parties from certain property & for damages. The suit was in part decreed & in part dismissed, & against that decree the appct. appealed. The last day for the filing of the appeal was 4-1-1950, but the appeal was in fact filed two days later, namely on 6th January. It was then accompanied by an appln. under Section 5, Indian Limitation Act, supported by an affidavit, praying that the appeal be admitted on the ground of the appct.'s illness. That appln. was on the following day, the 7th January, summarily dismissed by the learned Dist. J. in chambers without hearing the appct. or his counsel. No order was, however, made dismissing the appeal.

(3.) Mr. H. P. Gupta, who appears for the opposite parties, raises the preliminary objection that no revn. lies as there is no "ease decided" within the meaning of Section 115, C. P. C. The question of what constitutes a "case decided" has been considered on a number of occasions by this Ct., but as was pointed out in Ramzan Ali v. Satul Bibi, 1948 A. L. J. 43: (A. I. R. (35) 1948 ALL. 244 F.B.) no conclusive test to determine that question has or probably can be laid down. Each case must be considered as it arises but it is material to consider, although it may not be conclusive, whether the order which is in question is one which is made in proceedings which are distinct & separate from the main suit & whether it is an order which may, under Section 105, Sub-section (1). C. P. C., be challenged in an appeal from the decree which is passed in the main suit: see Gupta, & Co. v. Kirpa Ram Bros., 57 ALL. 17 : (A. I. R. (21) 1934 ALL. 620 F.B.); Ramzan Ali's case, 1948 A. L. J. 43 : (A.I.R. (35) 1948 ALL. 244 F.B.).