RAM NIWAS Vs. SULEMAN

JUDGEMENT

(1.) THIS is an application by Ram Niwas for the restoration of an appeal which was dismissed by this Court on the 1st November, 1950. The reason why the appeal was dismissed was that the applicant had not paid the cost of preparing the paper book as required under Chapt. VII Rule 28 of the Rules of this Court. Consequently the appeal was dismissed for want of prosecution. Thereupon the applicant filed the present application for restoration on the 23rd July, 1951, seven months and twenty two days after the dismissal. Learned counsel for the opposite party has urged that the application is time barred under Art. 168 of the Limitation Act. The Article reads as follows : - "for the re-admission of an appeal dismissed for want of prosecution. Thirty days. The date of the dismissal" Learned counsel for the applicant however, relies on the case of Ramhari Sahu and others vs. Modan Mohan Mitter (I. L. R. 23 Calcutta P. 339 ). In that case the appeal had been dismissed for default on failure of the applicant to deposit the necessary cost of the preparation of the paper book in accordance with the Rules of the Court. There was then an application for readmission of the appeal. It was held that as the application was not under sec. 558 of the Civil Procedure Code which now corresponds to Order 41 Rule 19, Art. 168 of the Limitation Act did not apply and the application was not barred by the law of Limitation.

(2.) THIS case certainly supports the submission of the learned counsel for the applicant. The present application is also not under Order 41 Rule 19 but may be taken up under sec. 151 of the Code of Civil Procedure. But with all due respect to the learned Judges who decided that case we find ourselves unable to understand that decision. We would point out that there is no reason whatsoever in support of the decision that was arrived at. We are, therefore, unable to follow it.