NARESHWAR Vs. CHABILDAS

JUDGEMENT

(1.) GRILLE , A.J.C. 1. This is an application in revision against the order of the District Judge, Nimar, setting aside the order of the Insolvency Court rejecting the receiver's application for annulment of a sale deed under Section 53, Provincial Insolvency Act. The application is filed beyond the period within which according to the established practice of this Court such applications should be filed, and I am asked to condone the delay under the provisions of Section 5, Limitation Act, on the ground that the parties were under the impression that an appeal lay against the order and that the period of limitation is 90 days, and that they had been informed by their pleader at Khandwa accordingly and only discovered their error when they came to Nagpur and approached counsel here.

(2.) IN showing cause why discretion should be exercised in their favour the applicants rely on Sunderabai v. Collector of Belgaum AIR 1918 PC 135, Nagindas Motilal v. Ntlaji Moroba AIR 1924 Bom 399 and an unreported ruling of this Court, Criminal Revision No. 28-B of 1926, decided on 12th April 1926, Baban v. Emperor, reported in AIR 1926 Nag 503. The decision in Sunderabai v. Collector of Belgaum AIR 1918 PC 135 is a decision of their Lordships of the Privy Council and the greatest reliance is placed on it. In that case the difficulty in the mind of the applicant who wished to appeal from the decision of the Subordinate Judge lay as to the valuation to be put upon the consequential relief on a declaratory decree and the advice of the Legal Remembrancer was sought. That officer gave his opinion that for purposes of jurisdiction the appeal lay to the High Court. On the appeal being presented there beyond the period of limitation fixed for presentation to the District Court, the High Court held that jurisdiction lay in the District Court and returned the appeal for proper presentation to that Court. That Court happened to be presided over by the officer who had given the decision as Legal Remembrancer, and he admitted the appeal without prejudice to any objection that might be taken by the respondent as to limitation or otherwise. As the Judge himself had given advice to Government which was a party to the appeal, the appeal was removed from his file and eventually heard in the High Court which decided, on the objection taken on the question of limitation, that the delay in the presentation of the appeal to the District Court should be condoned. This decision was upheld by their Lordships of the Privy Council in these words: The learned Judges of the High Court, after hearing the parties and considering the affidavits which were filed, were rightly satisfied that the defendants had sufficient cause for not having preferred their appeal to the Court of the District Judge within the period of limitation. The fact that the defendants had acted on mistaken advice as to the law in appealing to the High Court in 1910 did not preclude them from showing that it was owing to their reliance on that advice that they had not presented the appeal to the Court of the District Judge within the prescribed period of limitation.

(3.) THE previous practice of this Court had been to consider that such orders as the one passed by the learned District Judge were appealable. In Ramchandra v. Ramchandra AIR 1981 Nag 183 it is laid down by a Full Bench of this Court that such orders were not appealable and that only an application in revision against them lay. This ruling is published in the June and July numbers of the Nagpur Law Reports which was made available to the public at the end of July or at the beginning of August 1931. The order against which the present application is made was passed on 19th November 1931. The applicants had filed affidavits to the effect that they consulted their pleaders at Khandwa and were informed that an appeal lay and that the period of limitation was 90 days. those affidavits do not state the names of the pleaders who gave this advice, and affidavits by the pleaders concerned would have been considerably more in point, but such affidavits have not been filed and in the case of Nagindas Motilal v. Nilaji Moroba AIR 1924 Bom 399 the affidavits of the pleaders who gave the wrong advice were filed stating that they had given such advice, and in Sunderabai v. Collector of Belgaum AIR 1918 PC 135 there was no doubt as to the officer who gave the incorrect advice. The reason why the essential affidavits have not been filed in this case may be that any pleader consulted would not be willing to admit that in giving advice on a question of most common occurrence in the Insolvency law he had ignored the Full Bench decision of this Court. that any pleader should be ignorant of such an important recent decision is difficult to believe, and this lessens considerably the importance to be attached to the affidavits filed by the applicants. Even if they are to be accepted in their entirety they cannot prevail against the ruling in Vithia v. Sakhya (1909) 5 NLR 25 where it was laid down that given due care and attention the mistake might have been avoided: mere carelessness on the part of the legal adviser leading to presentation of the appeal in a wrong Court cannot entitle the appellant to an extended period of limitation for appealing.