SRIMATI HAIMABATI DEVI Vs. PRAN KRISHNA BANERJEE

JUDGEMENT

(1.) This appeal arises out of an application under Section 10 of the Indian Soldiers (Litigation) Act (IX of 1918) and also for a review of a decree said to have been passed by consent.

(2.) It appears that the plaintiff-appellant brought a suit against a certain lady for partition and that on her death six persons were substituted in her place, one of them being Fran Krishna Banerji. Pran Krishna left India to serve in Mesopotamia in August 1918 and returned to Ind a towards the e October, 1919. The suit was disposed of on the 28 of July 1919 upon a petition of compromise filed on behalf of all the defendants. Pran Krishna before his departure from India executed an am mukhtarnama in favour of his four brothers, three of whom signed this petition of compromise, the name of the fourth brother having been signed by the attorney of the latter. In November 1919 the present application was made by Pran Krishna on the ground, amongst others, that the compromise had been affected without his knowledge and authority and that the suit ought not to have been proceeded with in his absence; that his interests were not properly looked after although be had left a power-of-attorney in favour of his brothers before he left India. The Court allowed the application and set aside the decree. The plaintiff has appealed to this Court.

(3.) The order was passed not only under Section 10 of Act IX of 1918 but also upon, an application for review. The review having been granted an appeal would lie only on the ground specified in Order XLVII, Rule 7 (c), no other clauses of that rule being applicable to the case. Clause (c) would apply if the application for review was admitted after the prescribed period and without sufficient cause. Under Section 10 of the Indian Soldiers (Litigation) Act an application can be made within three months from the date on which a soldier ceases to serve under War conditions. It is contended by the learned Pleader for the appellant that the War conditions ceased in November 1918 and that, therefore, the application was out of time. On the other hand, it is contended on behalf of the respondents that the War conditions in Mesopotamia have not yet ceased. However that may be, there is a certificate by the Adjutant-General that Pran Krishna served under War conditions from 25 July 1918 to 5th November 1919. The application was made on 3 December 1919, i.e., within a short time after he ceased to serve under War conditions. Apart from the proviso (a) to Section 10 of the Act, the Adjutant-General's certificate that Pran Krishna was serving under War conditions would be a sufficient ground for admitting the application for review after the period of limitation, and we are not inclined to hold that there was any unreasonable delay in making the application after his return to his place of residence. That being so, the appeal must fail.