R C KRISHNASAMY NAIDU Vs. CHENGALRAYA NAIDU

JUDGEMENT

(1.) This is an appeal from an order of the Subordinate Judge of Chittoor, dated 23rd September 1921, refusing to set aside an order dismissing an appeal, dated 4 March 1921.

(2.) The facts are that the petitioner being the appellant in the appeal before the Court instructed a vakil to appear and conduct his appeal. We will assume on the evidence before the Court that this vakil did not appear on 4 March 1921 to conduct the appeal in pursuance of his instructions by reason of the vakil having taken up the attitude of non-co-operation with the Courts and we will also assume that the appellant did not come to know of the order of the Court dismissing his appeal until sometime after it was dismissed and that he took immediate steps on making the discovery to bring the matter before the Court. Assuming these facts to be correct, the appellant has suffered grave injustice, for his appeal, for no fault of his own, has never been heard, although it may be that he has a remedy against his vakil for negligence. Under Order XLI, Rule 17 of the Civil Procedure Code: If on the day fixed the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed; and under Rule 19 where the appeal is so dismissed: the appellant may apply to the Appellate Court for the re-admission of the appeal; and where it is proved that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.

(3.) These rules provide a remedy in a case like the present for having the appeal re-admitted. But by Art. 168 of the Limitation Act, IX of 1908, an application for the re-admission of an appeal dismissed for want of prosecution must be brought within thirty days from the date of the dismissal. It, therefore, follows that, if the Court is confined to acting under Order XLI, Rule 19, this application is "statute barred."