DEWAN SINGH Vs. GOLAP SINGH

JUDGEMENT

(1.) These two Rules are taken up together for disposal as they are interconnected. C. R. No. 2285 (R) of 1972 is ancillary to C. R. No. 859 (R) of 1972, depending on the same for an ultimate decision.

(2.) C. R. No. 859 R of 1972 at the instance of the Petitioner Dewan Singh is for review and the prayer is as to why the order dated 25-8-1971 passed by K. K. Mitra, J., in C. R. 2595 of 1969 should not be reviewed. As the review application was out of time, an application under Section 5 of the Indian Limitation Act was filed on the 13th January, 1972 and the Rule was issued by A. K. Sinha, J., on the 15th March, 1972. The connected Rule viz., C. R. 2285 R of 1972 is also at the instance of the petitioner, Dewan Singh, praying that the hearing of the suit in the court below may be stayed till the disposal of the earlier Rule issued for review. An ad interim stay was also granted on terms when the Rule was issued by my learned Brother, A. K. Sinha, J., on the 6th July, 1972.

(3.) Mr. Bhupendra Nath Mitra appearing on behalf of the petitioner in both the Rules made a twofold submission--firstly that there is sufficient reason under Section 5 of the Indian Limitation Act for a condonation of the delay in filing the application for review and secondly on merits. In this context, he urged that there should be a review of the order passed on the 25th August, 1971, when nobody appeared on behalf of the petitioner, and which is based on an error of law, as is apparent from the imprimatur of judicial decisions on the point. Mr. Panda joined issue and submitted that there should be no condonation of delay as (a) under Article 124 of the Limitation Act the period of limitation for review is only 30 days and not 90 days as previously provided for and Section 5 of the Indian Limitation Act is not applicable to a review application and (b) even if Section 5 was applicable there has been no explanation for each day's delay in filing the relevant application either under Order 47, Rule 1, Civil Procedure Code or under Section 5 of the Limitation Act. Mr. Panda next contended that on merits also the prayer for review is unwarranted and untenable and the Rules should be discharged.