MISRA Vs. RAJASTHAN BOARD OF REVENUE

JUDGEMENT

(1.) THIS is an application under Article 226 and 227 of the Constitution by 28 persons against an order of the Board of Revenue dated 9-5-J958, confirming an order of the Additional Commissioner dated 25-3-1957.

(2.) THE facts, which have given rise to this application, are these : The petitioners brought a suit for declaration of their Khatedari rights against Virendra Singh, respondent No. 3, which was decreed. Against that decree Virendra Singh preferred an appeal in the Court of the Additional Commissioner. 20-2-1957 was fixed for hearing the appeal. On that date Virendra Singh and his counsel were absent. The appeal was accordingly dismissed for default. On 23-3-1957, Shri sardar Nath Modi, who was appearing for Virendra Singh, applied for setting aside the ex parte order dismissing the appeal. The office reported on this application that it was filed beyond limitation. The learned Additional Commissioner, how ever, restored it without giving any reason as to why he treated the application as being within time. The petitioners then filed a revision application before the Board of Revenue against the order of the Additional Commissioner. The Board held that Section 5 of the Limitation Act was applicable to the application for restoration of the appeal, and that there was sufficient reason for not presenting the application within the period of limitation provided under Art. 168. Against this order, the present application has been filed.

(3.) WE are of the opinion that the Board erred in applying Section 5 of the limitation Act to the application for restoration, which was made under Order XLI, rule 19, C. P. C. Section 5 applies only to: 1. appeals, 2. applications for review of judgment, 3. applications for leave to appeal.