LAKSHMI DEVI Vs. TARA BAI

JUDGEMENT

(1.) This appeal arises out of a suit instituted by the appellant for a declaration that a motor lorry which had been: attached in pursuance of their decree by respondents 1, 5 (now dead and represented by respondent 1) and 6 did not belong to her husband, Thakur Sat Parsan Singh taluqdar of Resi, respondent 2, but that it belonged to her. She had filed objections under Order 21, Rule 58, Civil P. C., but they were dismissed and consequently a suit for declaration was brought. The learned Munsif, in whose Court the case was instituted, dismissed the suit. The learned Civil Judge of Sultanpur held the appeal filed in his Court to be time barred and dismissed it, This appeal is from the decree of the learned Civil Judge dismissing the appeal as times barred.

(2.) The circumstances relating to the filing of the appeal in the Court of the District Judge of Sultanpur are that limitation was expiring on 5th September 1942. The appeal was not filed in, Court on that date but at 9 p. m. the appellant proceeded to the house of Mr. Srimal, Civil Judge Sultanpur, in whose Court the appeal was to be filed and requested him to accept it. Mr. Srimal directed the appellant to present himself in Court on Monday 7th September 1942, Accordingly the appellant appeared in Court on Monday the 7th September and on that day the" learned Civil Judge took the memorandum of appeal and made the following endorsement upon it:

(3.) The learned Civil Judge held that it was settled law that presentation of the plaint or memorandum of appeal after the usual court hours is a valid presentation and the Judge has jurisdiction to receive the same at his residence though he is not obliged to do so. In spite of this, however, he held that the matter was one of discretion with the Court and since the Judge to whom the memorandum was presented on 5th September did not in fact accept it on that date, the appeal could not be said to be filed within limitation.