NANDALAL GANGULI Vs. DASARATHI MUKERJEE

JUDGEMENT

(1.) This Rule has been issued to show cause why an appeal which the petitioner has filed in this Court should not be registered, though filed out of time, by availing of the provisions of Section 5, Lira. Act. The facts necessary to be stated are the following: The petitioner's father was the objector in a case in which probate of a will had been applied for by the opposite party. On 19 September 1930, the application for probate was allowed with costs by the Subordinate Judge, Second Court, at Alipur. A decree in accordance with the aforesaid decision was drawn up on 22 November, 1930. On 16 December 1930, the opposite party applied for an amendment of the decree. It appears from the papers which the opposite parties have now produced before us that this application for amendment related only to the question of a certain item of costs which had been omitted from the schedule of costs appended to the decree. The application for amendment was opposed by the petitioner's father and was adjourned from time to time till at last the petitioner's father died on 28th March 1931. The opposite party then applied for substituting the petitioner and some other persons in place of the petitioner's father and upon that an order was made allowing such substitution. Eventually, on 14 August 1931, the application which the opposite party had made for amendment of the decree was rejected. The present appeal was presented by the petitioner in this Court on 1 September 1931 and along with the memorandum of appeal and its connected papers was filed the petition on which the present Rule was issued. The question in this case is whether the petitioner has been able to establish facts which would bring his case within the words "sufficient cause" appearing in Section 5, Lim. Act.

(2.) On behalf of the opposite parties it has been contended that the application for amendment related only to a particular item of costs which had been omitted from the decree that was prepared in accordance with the decision of the Court below and that it had nothing whatsoever to do with the merits of the case and that therefore there was no reason at all as to why the petitioner's father or for the matter of that after the petitioner's father's death the petitioner himself should have waited and not preferred the appeal which he now seeks to have registered. Reliance in this behalf is placed specially upon a decision of this Court in the case of Brojo Lal Rai V/s. Tara Prosanna [1906] 3 C.L.J. 188. In that case Mookerjee, J., laid down a proposition, explaining the provisions of Section 5, Lim. Act, in so far as they would apply to a case of this nature and illustrating that proposition by two subpropositions, which I shall presently quote. He says: Every amendment made in a decree under Section 206, Civil P.C., does not necessarily entitle a party, who prefers an appeal against the decree, to claim an extension of time under Para. 2, Section 5, Lim. Act; whether there 13 sufficient cause for such extension must depend upon the circumstances of each individual case.

(3.) To the proposition thus laid down no objection can possibly be taken, and indeed, it I may say so, I would with the utmost respect agree with what the learned Judge has meant to say by this proposition. As regards the subpropositions, one of them is in these words: If the grounds on which the appeal is based are intimately connected with the amendment of the decree, or if the grounds are directed against the decree only in so far as it has been amended, the Court should exercise in his (that is to say, the applicant s) favour the discretion vested in it by para. 2, Section 5, Lim. Act.