ELAHINEWAZ KHAN Vs. BISESWAR BAISYA

JUDGEMENT

(1.) The first question which we are called upon to determine in this case is whether the appellant has made out a case for the exercise of the discretion vested in the Court under Section 5 of the Limitation Act to admit the appeal which was presented after the period of limitation. In order to determine this question it is necessary to refer to the relevant dates. There were three suits brought by the decree-holders on several mortgages. The suits were Nos. 945, 699 and 698 of 1916. They were decreed on the 30 January 1917. The decree passed in these suits was rather peculiar.

(2.) The suits were tried together and were disposed of by one judgment and the decree following the judgment was a joint decree, a copy of which was ordered to be placed in the record of each of these suits. It ordered that certain properties were to be sold first and out of the sale proceeds the decrees in suits 945 and 699 were to be first paid off and surplus would go to satisfy the decree in suit No. 698 from which the present appeal has arisen.

(3.) In execution of that decree several properties were sold and the decretal amounts in the first two suits were paid off. Subsequently the property which is described as property No. 2 to Schedule No. 2 (Taluk No. 13165) was sold for Rs. 7,000 on the 25 June 1918. The appellant was one of the judgment-debtors in suit No. 698; but he was no party to suit No. 699. He filed an application for setting aside the sale under Order 21, Rule 90. This application was heard by the Subordinate Judge and was dismissed on the 29 April 1919. The appellant thereafter filed an appeal against that order in the Court of the District Judge of Mymensingh on the 30 May 1919. At the hearing of the appeal an objection was taken by the respondent to the effect that the appeal did not lie to that Court but to the High Court and the learned Judge in a considered judgment upheld the objection, and on the 11 June 1920 returned the Memorandum of Appeal for presentation to the proper Court. The Memorandum of Appeal was presented to this Court on the 9 August 1920 and an application was made to this Court on the 16 August 1920 for an extension of time for presentation of the appeal to this Court under Section 5 of the Limitation Act.