ARUN AND CO. Vs. MADHAVSINGH DWARKADAS

JUDGEMENT

(1.) In this appeal a preliminary point of limitation has been taken before dealing with the main appeal into the merits of which we have not yet gone into. I think it necessary to dispose of this point which has been canvassed before us at some length.

(2.) There was no material in the paper -book to show that the appeal was filed out of time. The memorandum of appeal filed in this case by Messrs. G. Bagaria & Co. which was presented on November 23, 1963, was duly accepted by the department and the dates noted at the back of the memorandum are as follows:

(3.) From these dates there is nothing to show that the Appellant was in default at any stage before the memorandum of appeal was actually presented. When the matter was first taken up a few days back, Mr. Ghosh, learned Counsel for the Respondent, said that he would be in a position to show that the Appellant had not complied with the Rules of this Court in the matter of getting the decree drawn up and, as such, we should come to the conclusion that the appeal was out of time. We allowed his client an opportunity to put the matter on affidavits and this has been done. An affidavit -in -opposition has been affirmed on behalf of the Appellant and an affidavit in -reply on behalf of the Respondent. Liberty was given even after the completion of these affidavits to file further affidavits to show when the certificate of funds which looms large in this application was actually drawn up.