BADAL BALA GOSWAMI Vs. MATILAL ROY AND ANOTHER

JUDGEMENT

(1.) Opposite party no. 1 filed a suit for specific performance of a written contract for sale against Sushilabala Dassi, since deceased, and opposite party No. 2, and obtained a decree in that suit. Sushilabala Dassi. the original Defendant no. 1, preferred an appeal before the learned District Judge, Alipore, with an application for leave to appeal in froma-pauperis which was granted and the appeal was registered as Title Appeal No. 1009 of 1971. The petitioner, being her full sister and sole heiress, filed an application for substitution in her place in the appeal on May 25, 1972, and the same was allowed on the same date. The opposite party no. 1 filed objection against the order of substitution and upon hearing the said objection was rejected and the order allowing substitution was retained by the lower Appellate Court. On Sept. 21, 1972, the opposite party no. 1 moved the lower Appellate Court for a direction upon the petitioner to pay court-fees upon valuation of the appeal and upon that the lower Appellate Court directed the petitioner to pay ad-valorem Court fees on the valuation of the appeal. On Jan. 10, 1973, the petitioner filed an application purported to be one under Sec. 151 and Order 44 Rule 1 of the Code of Civil Procedure before the lower Appellate Court for leave to prosecute and/or continue the appeal in forma pauperis without payment of Court-fees, The said application was registered as Misc. Case No. 2 of 1973 in the 4th Court of Additional District Judge, Alipore. The opposite party no. 1 put an objection against the petitioner's said prayer made on Jan. 10, 1973. Upon evidence the lower Appellate Court found that the petitioner was a pauper within the meaning of Order 33, Rule 1 of the Code of Civil Procedure, but the learned Additional District Judge ultimately rejected the application holding that it was barred by limitation inasmuch as it was filed beyond 30 days from the date of substitution and also beyond 30 days from the date of death of the original appellant. The petitioner then filed an application for review of the said order but it was also rejected, after hearing both patties holding, interalia, that Art. 130 and not Art. 137 of the Limitation Act was applicable to the case and that there was no error of law. Accordingly, the application for review was held to be misconceived.

(2.) The propriety of the above decisions has been challenged in revision and on behalf of the petitioner Mr. Sudhis Das Gupta submitted that the impugned orders were bad, illegal and without jurisdiction. He, further, submitted that in any event the application to continue the appeal in forms pauperis was essentially an application under section 151 of the Code of Civil Procedure and as such residuary article 137 of the Limitation Act would apply in such a case, if any question of limitation in this regard arises at all.

(3.) Mr. Shyama Prasanna Roy Chowdhury, learned Advocate appearing on behalf of the opposite party No. 1, however, joined issue and he submitted that there was no scope for any application of the residuary Art. 137 of the Limitation Act when limitation for any application purported to be one under Order 44, rule 1 of the Code of Civil Procedure is governed by Art. 130 of the Limitation Act. His other submission was that even assuming that the view taken by the lower Appellate Court was erroneous on a question of law, that would not be any ground for interference in revision.