BASANTILATA DHAR Vs. AMAR NATH HALDAR

JUDGEMENT

(1.) THIS is an application under Section 115, Civil P. C., against a decision of the learned Subordinate Judge, 24 Parganas, whereby he set aside an order of dismissal of a suit made on 14th December 1942, and restored the suit to 'file for hearing.

(2.) THE only question that arises in this case is a question of limitation and depends on the construction of Sections 10 and 11, Indian Soldiers' (Litigation) Act (IV [4] of 1925). The relevant portions of the sections are as follows : Section 10: '(1) In any proceeding before a Court in which a decree or order has been passed against any Indian Soldier whilst he was serving under war conditions or at any time after the 1st day of April 1925, whilst he was serving under any special conditions, the soldier may apply to the Court which passed the decree or order for an order to set aside the same, and, if the Court after giving an opportunity to the opposite party of being heard, is satisfied that the interests of justice require that the decree or order should be set aside as against the soldier, the Court shall, subject to such conditions, if any, as it thinks fit to impose, make an order accordingly. (2) No such application shall be entertained unless it is made within two months from the expiry of the first period of thirty days after the date of the decree or order, or where the summons or notice was not duly served on the applicant, after the date on which the applicant had knowledge of the decree or order, during no part of which the soldier was serving under special conditions : Provided that the provisions of Section 5, Limitation Act, 1908, shall apply to such applications.' * * * * *Section 11 : 'In computing the period of limitation prescribed by the Indian Limitation Act, 1908, or any other law for the time being in force, for any suit, appeal, or application to any Court any party to which is or has been an Indian Soldier, the time during which the soldier has been serving under war conditions since 4th August 1914, or under any special conditions since 1st April 1925, shall be excluded.' * * * * *

(3.) ON 15th July 1947 the plaintiff made an application for setting aside the order of dismissal.