T RUTHNA GRAMANY Vs. NVEERABUDRA AIYAR

JUDGEMENT

(1.) In this case an appeal from a decree of a Judge sitting on the original side of this Court was preferred 10 days after the prescribed period of limitation. An explanation was called for, and an affidavit was filed explaining the cause of delay. The case was then posted before the admission Court " for orders." In the Admission Court the learned Judge ordered that notice should go to the respondents to show cause why the delay should not be excused. The appellants Vakil served the respondents with a formal notice of this order. The respondents other than the fifth appeared before another Judge, sitting in the " Admission Court" and shewed cause why the delay should not be excused. The judge excused the delay and admitted the appeal.

(2.) When the appeal was called on for hearing before an appellate Bench, Mr. V.V. Srinivasa Aiyangar on behalf of the 5th Respondent took the preliminary objection that the appeal was out of time. He contended that it was open to him to take this objection notwithstanding the adjudication in the matter by the judge of the " Admission Court." His points were, first, that the order of the Judge directing notice to show cause before a Single Judge, and the order of the judge excusing the delay after cause had been shewn, were made without Jurisdiction; and, secondly, that the procedure in connection with the service of the notice was not in accordance with the Rules and that on that ground the final order was bad.

(3.) First as regards the question of Jurisdiction: It was contended that the dercee, against which the party desired to appeal, being that of a Judge sitting on the Original Side of this Court, the matter was governed by "the Rules of the High Court in its Original Jurisdiction and on appeal therefrom" and that the " Rules of the High Court in its appellate Jurisdiction" had no application. (The Rules may conveniently be referred to as the Original Side Rules and the Appellate Side Rules). The procedure in connection with obtaining an extension of time for an appeal from the original side might no doubt be regulated by rules framed under the powers under which the Original Side Rules are made. But I am not dealing now with the question of procedure but with the question of Jurisdiction. The Appellate Side Rules are made in pursuance of the powers conferred by, inter alia, Sections 13 and 14 of the High Courts Act (24 and 25 Vic. Ch. 104). Rule 1 provides for the exercise of the jurisdiction vested in the Court, and It says in so many words that an application for the admission of an appeal presented after the expiry of the period allowed by the law of limitation should ordinarily be heard and determined by one judge. It seems to me that on an application of this nature the Judge is not asked as an appellate tribunal, to deal with an order which has been made by another tribunal. He is asked to exercise the power given him by Section 5 of the Limitation Act and to say that an appeal may be admitted after the period of limitation prescribed there for. This is a power which Rule (1) of the Appellate Side says may be exercised by one judge. Whether the power is invoked with reference to an appeal from a decree of a judge sitting on the Original Side of this Court or from a decree of a Mofussil Court, so far as any question of jurisdiction is concerned seems to me to be wholly immaterial. A judge who makes an order for the admission of an appeal after the period of limitation prescribed, is not adjudicating on the appeal. See the judgment of Edge C. J. in Husaini Begum v. The Collector of Mazzafarnagar (1889) I.L.R. 11 A. 176. He is exercising a power given to the Court by the Limitation Act in pursuance of a rule validly made, that the power may be exercised by a single judge. It scarcely seems necessary to consider, so far as the question of jurisdiction is concerned, whether, when a judge exercises this power in connection with an application to extend the time for appeal from a decree on the original side, he is exercising original or appellate jurisdiction. I am of opinion that the objection that the orders were made without jurisdiction fails.