VISMADBV DAS Vs. SITA NATH ROY

JUDGEMENT

(1.) THE petitioner in the present Rule appealed to the Court of the District Judge of Faridpur against a decision passed against him by the Munsif of that district. THE appeal was presented to the District Judge considerably after the period of limitation; but the petitioner when presenting the appeal represented that, owing to an error in Jaw, he had, instead of appealing to the District Judge, applied to this Court in revision, and that, owing to the delay in the disposal of that application and also to a mistake which he fell into as to the result of that application, he was not aware of the true facts until the end of January 1911. He filed his appeal on the 13th February 1911. THE District Judge, on a consideration of the facts represented by the petitioner, admitted the appeal under Section 5 of the Limitation Act. Afterwards the appeal was transferred to a Subordinate Judge for disposal. THE Subordinate Judge, after issuing notices to the respondent and hearing the preliminary objection which they seem to have taken to the competency of the appeal on the ground that it was presented after the period of limitation, came to the conclusion that in fact the appeal was barred by limitation at the time when it was, preferred, and therefore he dismissed, it. THE petitioner then applied to this Court for a Rule on the opposite party to show cause why the decree of the Subordinate Judge should not be set aside, in passing the order for the issue of the Rule, the learned Judges of this Court remarked as follows: "THE applicant appears to have a decision in Jhotee Sahoo v. Omesh Chunder Sircar (1879) I.L.R. 5 Calc. 1. in his favour. We, out of deference to that decision, issue a Rule calling on the other side to show cause why the decree of the Appellate Court should not be set aside on the ground that the Subordinate Judge had no jurisdiction to decide whether or not the appeal was within time." THE main ground which was advanced in support of the application and which has now been pressed before us in support of this Rule is that, after the District Judge had, by his order passed under Section 5 of the Limitation Act, admitted the appeal, the Subordinate Judge had no jurisdiction to set aside that order and to dismiss the appeal on the ground that it was barred by limitation at the time when it was admitted. We have referred to the decision of this Court in the case of Jhotee Sahoo v. Omesh Chunder Sircar (1879) I.L.R. 5 Calc. 1. on which the petitioner relies. That judgment, no doubt, supports the contention that, after the District Judge has, by an ex parte order, directed that an appeal be admitted, a Subordinate Judge, to whom the appeal has been transferred, is not competent to revoke the order of the District Judge. THE learned pleader who appears to oppose this Rule has invited our attention to the fact that the learned Judges who decided that case remarked that, where an appeal had been admitted on the ex parte statements of the appellant, because at that time the respondent had not entered appearance, still, on a proper cause being shown, such an ex parte order was liable to be cancelled by the Court which passed it. This is the view which has been adopted and accepted by this Court in similar cases where appeals have been admitted by an ex parte order of a Division Bench, and the propriety of the order has subsequently been brought into question before the Bench trying the appeal. This Court has invariably held that the Bench trying the appeal is not bound by the order of the Bench which admitted the appeal by an order passed under Section 5 of the Limitation Act. THE learned pleader, who appeal s for the opposite party, has also drawn our attention to the fact that the decision of this Court in Jhotee Sahoo v. Omesh Chunder Sircar (1879) I.L.R. 5 Calc. 1. was passed in 1879 before the Bengal, North-Western Provinces and Assam Civil Courts Act was passed in 1887, and he relies on Clause (3) of Section 22 of the said Act to support the contention, that, when an appeal has been transferred for trial by a District Judge to a Subordinate Judge, the Subordinate Judge has, for the purpose of disposing of the appeal, all the powers which could be exercised by the District Judge. It has not been disputed before us that, in a case like the present, the District Judge would, on further cause being shown by the respondent, have had the power to revoke the order passed by him under Section 5 of the Limitation Act. We see no reason to hold why, under the provisions of the Civil Courts Act, similar powers should not be considered to have been given to a Subordinate Judge trying the appeal. THE view taken by this Court in the case of Jhotee Sahoo v. Omesh Chunder Sircar (1879) I.L.R. 5 Calc. 1. does not appear to have been followed in the other High Courts In India, nor does it appear to have been accepted as a rule in this Court after the passing of the Civil Courts Act. In these circumstances, we are of opinion that the decision on which reliance is placed by the petitioner and with reference to which the Rule was issued, is not a sufficient, authority to support the conclusion that, in the present case, the order of the Subordinate Judge dismissing the appeal is not in accordance with law. THE result must, therefore, be that the Rule is discharged with, costs.