RAM NATH Vs. KANHYA LAL

JUDGEMENT

(1.) AGAINST the trial Court's decree dated October 28, 1965, Ram Nath appellant preferred a first appeal to the Court of the Senior Subordinate Judge, Delhi, on the 16th of November 1965. The memorandum of appeal was not accompanied by the requisite certified copies though the same had been applied for by the appellant on 11-11-1965. The copies were ready on December 2, 1965, but were not filed in the first appellate Court till January 5, 1966. On 2nd February, 1966, the appellant filed before the Senior Subordinate Judge, Delhi, an application under Section 5 of the Limitation Act for condoning the delay in preferring the appeal according to law. The learned Senior Subordinate Judge did not agree with the contention of the appellant and dismissed his first appeal on March 2, 1966, as barred by time, The appellant has come up in second appeal to this Court under Section 100 of the Code of Civil Procedure against the first appellate Court's decree.

(2.) AT the outset a preliminary objection was taken on behalf of the respondent by Mr. Daljit Singh, Advocate, to the effect that the appeal was not maintainable as an order refusing to condone delay or extend time under Section 5 of the Limitation Act was not appealable. For this contention the learned counsel relied on the judgment of the Madras High Court in Kamaraju Pantulu v. B. Saramma, AIR 1942 Mad 604, wherein it was held as follows :-

(3.) I do not think there is much force in the preliminary objection of Mr. Daljit Singh. The first appellate Court did not pass any separate order on the appellant's application under Section 5 of the Limitation Act. No appeal has been preferred against the implied order rejecting the application of the appellant for extending lime. The first appeal itself was dismissed by the Court of the Senior Subordinate Judge. An appellate decree was framed by the Court below. This appeal has been preferred under Section 100 of the Code against that decree. The appeal is therefore clearly maintainable. It is, however, a different thing to argue that in this second appeal it is not open to the appellant to impugn the finding of fact arrived at by the Court below to the effect that there was no sufficient cause which prevented the appellant from filing the requisite certified copies within time, but Mr. D. K. Kapur, counsel for the appellant, frankly conceded that he was not at all questioning the finding of fact of the first appellate Court in the above matter nor was he asking me to interfere with the discretion exercised by the court below in declining to extend the time. The learned counsel also referred to the last portion of Sub-section (1) of Section 105 of the Code of Civil Procedure and argued that in an appeal against a decree the appellant is entitled to question the correctness of any interlocutory orders on which the decree itself might be based though no appeal lay against those orders.