NIBARAN CHANDRA DUTT Vs. MARTIN AND CO

JUDGEMENT

(1.) (July 23, 1920).--This is an application to review the judgment of this Courtin an appeal from two orders made by Mr. Justice Greaves and Mr. Justice Rankin on the 23rd March and 8th April 1920, respectively. The appeal was dismissed on the 13th July last, on the ground that it was barred by limitation We see no reason to resale from the view we took on that occasion. On the other hand, we are of opinion that the appeal was unquestionably out of time. The petitioner, however, ask us to vacate that order in so far as it dismisses his appeal and to substitute therefor an order under Section 5 of the Indian Limitation Act. For this purpose the petitioner has filed an affidavit by his Attorney, which sets out in detail the various steps taken before the appeal was lodged and the reasons why he acted as he did. On these new materials, the petitioner has urged that if want was undoubtedly the practice of the Court for many years had not been changed, the appeal would have been treated as in time. The respondent, on the other hand, has contended that the practice was altered by virtue of the judgment of this Court in the case of Pramatha Nath Roy v. W.A. Lee 52 Ind. Cas. 582 : 23 C.W.N. 553 and that as that decision was pronounced at least a year be ore the present appeal was lodged, there is no good ground why the appellant should not have followed the new practice. It is plain, however, that the decision in Pramatha Nath Roy v. W.A. Lee 52 Ind. Cas. 582 : 23 C.W.N. 553 did not decisively settle the question which was subsequently adopted by us; but 1920. Chitty, J., no doubt took the view the Chief justice in his judgment not proceed exactly on that basis. It is further significant that notwithstanding the decision in Pramatha Nath Roy v. W.A. Lee 52 Ind. Cas. 582 : 23 C.W.N. 553 the officers of this Court have continued to follow the old practice (as they actually did in the present instance) to determine whether a memorandum of appeal was or was not presented in time. We are consequently not prepared to hold that there was any negligence on the part of the Attorney for the plaintiff When he followed what was undoubtedly the practice of this Court for many years, and we are of opinion that this is a fit case for an order for enlargement of time under Section 5 of the Indian limitation Act. No universal formula can be framed to regulate the exercise of judicial discretion in this class of cases; but it may be stated generally that delay may well be excised when the appellant is misled by a doubtful point of practice or by a change of practice of the Appellate Court; Horil Pattuck v. Ram Bhowanee 21 W.R. 308 : 15 B.L.R. 373 note Sukh Dial v. Jey Singh 101 P.R. 1890; McNair & Co. v. Audeshaw (1891) W.N. (Eng.) 157; Baker v. Faber (1908) W.N. (Eng.) 9.

(2.) THE result is that the application is granted in part. Our judgment, in so far as it held that the appeal was presented out of time, will stand; but the order for dismissal will be vacated and the time for presentation of the appeal will be extended so as to remove the bar of limitation. This order is made on condition that the petitioner pays to the opposite party the gouts of this application. THE costs will be taxed separately, but, subject to such taxation, the petitioner must forthwith pay to the opposite parties Rs. 800 (Rs. 400 to each) on undertaking given by their respective Attorneys, Mr. Kally Nath Mitter and Mr. Pyne, that the money will be refunded if the Court otherwise order subsequently. THE order for costs whish was made on the 13th July 1920 will stand unaffected by this order. THE interim injunction will continue until the hearing of the appeal.