CHINTAMAN VYANKATRAO GHADGE Vs. RAMCHANDRA VYANKATRAO GHADGE

JUDGEMENT

(1.) This appeal was filed at first in the form of an application for leave to appeal in forma pauper is, from the decree passed on the 19 of February 1908, by the Subordinate Judge, First Class, at Satara, in Civil Suit No.354 of 1907. The application, presented on the 13 April 1908, was beyond time, having been made more than thirty days after the period prescribed by the Limitation Act, and the appellant, a minor, by his guardian prayed that the delay might be excused. The application for the excusing of delay came on for ex parte hearing before a Division Court on the 2 October, 1908 and it was allowed. But it having been brought to the Court's notice that it had no jurisdiction to excuse delay, it cancelled the order on that ground on the 20 of November 1908. An appeal against that order, presented under the Letters Patent, was allowed on the ground that, the applicant being a minor, Section 7 of the Limitation Act of 1877, Applied and the case was governed by the principle of the Privy Council ruling in Mussammat Phoolban Koonwar V/s. Lala Jogeshwar Sahoy (1876) L.R. 3 I.A. 7, 25. Leave to appeal in forma pauperis was also granted.

(2.) Mr. Kelkar, appearing for the respondents, argues that an application for permission to appeal in forma pauperis, must be treated as an appeal, and that, if it is so treated, Section 5, and not Section 7 of the Limitation Act, must apply here. Whether we treat the application as falling under Sec. 5 or under Section 7, the result is the same. If it falls under Section 5 and is an appeal, as contended by Mr. Kelkar, then, under the second paragraph of that section, which applies to appeals, the Court has jurisdiction to excuse delay.

(3.) If, on the other hand, it is treated as an application and falls under Section 7 of the Limitation Act, it is clearly within time and there is no need of excusing delay, because the section provides that a minor can apply even after he has attained the age of majority but within a period prescribed.