RAJENDRA NATH KANRAR Vs. KAMAL KRISHNA KUNDU CHOWDHURY

JUDGEMENT

(1.) These Rules have been issued to show cause why the appeals which the petitioner has presented to this Court should not be registered, time for preferring the same being extended under Section 5, Limitation Act. The facts in the two cases are similar. The petitioner was a party to two awards made by the Land Acquisition Collector and had been given a portion of the compensation money on account of his interest as tenant's share in the acquired properties. The opposite party was awarded the balance amount of the awards. The total amount of the compensation was thus divided between the petitioner and the opposite party in the proportion of one-third and two-thirds. The opposite party thereupon applied for references under Section 18, Land Acquisition Act. To this the petitioner objected alleging that the apportionment as made by the Collector was correct. The references were made and two apportionment cases were started in the Court of the District Judge. There were several adjournments taken on behalf of one party or the other, and ultimately, on 12 February 1931, for which date the cases had been finally fixed, the petitioner was absent and the District Judge made two awards in the two cases in favour of the opposite party. Decrees were drawn up in accordance with the awards and signed on 6 March 1931. To set aside the awards made ex parte as aforesaid, the petitioner applied under the provisions of Order 9, Rule 13, Civil P.C. The applications being heard on the merits were eventually dismissed by the District Judge on 30 June 1931. Thereafter, on 21 August 1931, the petitioner presented the memorandum of appeals, in connexion with which the present applications have been made by him, as appeals to be filed against the awards which had been made ex parte as aforesaid.

(2.) The contention of the petitioner is that the time taken for the disposal of the applications under Order 9, Rule 13 of the Code should be deducted and that it should be held that the appeals which he desires to prefer have been filed within time. The question as to whether in circumstances such as those disclosed in the present case the appellant should be entitled to extension of time under Section 5, Limitation Act, was considered by this Court in a decision which exactly covers the present case That decision is in the case of Ardha Chandra v. Matangini Dasi [1896] 23 Cal. 325. The learned Sir Comer Petheram, C. J., and Beverley, J., held that when an appellant elects to take proceedings for setting aside an ex parte decree and fails on the merits in an application which he makes for that purpose, he cannot be allowed to fall back upon the remedy which was open to him at the time when the original decree was passed and of which he did not choose to avail himself and that recourse to proceedings taken as aforesaid was not a sufficient case within the meaning of Section 5, Limitation Act, for not presenting the appeal within time. It is conceded that this proposition has not been dissented from in this Court in any later case and it is conceded further that there is no authority to be found in the decisions of any other Court which is to a contrary effect. What however has been urged before us on behalf of the appellant is that the authority of this decision must be taken to have been very much shaken by the decision of the Judicial Committee in the case of Brij Inder Singh V/s. Kanshi Ram A.I.R. 1917 P.C. 156. The question for our consideration therefore relates to the true meaning of the decision of the Judicial Committee upon which the petitioner has relied.

(3.) This decision has been sought to be applied to the present case from two points of view. The Judicial Committee purported to uphold the view which was expressed by the Allahabad High Court in a Full Bench decision in the case of Brij Mohan Das V/s. Mannu Bibi [1897] 19 All. 348 in which it was laid down that circumstances contemplated in Section 14, Limitation Act, would ordinarily constitute a sufficient cause within the meaning of Section 5 of that Act. By this Full Bench decision the learned Judges of the Allahabad High Court practically overruled the broad proposition which had? been laid down by an earlier decision of that Court, viz., in the case of Ramjiwan Mal V/s. Chand Mal [1888] 10 All. 587 in which it was held that a mistake in law can never be a foundation for an application for the indulgence contemplated by Section 5. To decide whether the circumstances in the present case can in any way be regarded as those contemplated by Section 14 of the Act in order to entitle the appellant to claim the benefit of Section 5 of the Act, it is necessary to consider what really those circumstances are. The decision in the case of Ardha Chandra Ray Chaudhury V/s. Matangini Dassi [1896] 23 Cal. 325 itself affords an answer go far as the petitioner's contention in this respect is concerned. In that case the learned Judges pointed out that if an application for setting aside an ex parte decree is refused on the merits it is very different from a case where the Application fails for want of jurisdiction or other causes of a like nature. It should be remembered that the words in Section 14 are these: In computing the period of limitation prescribed for any application the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the same party for the same relief shall be excluded, whore such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.