KRISHNADAS ACHARJEE CHOUDHURY Vs. RAHIMANNESSA BIBI

JUDGEMENT

(1.) THIS rule was obtained calling upon the opposite party to show cause why the appeal should not be registered though filed out of time. The decree in this case was prepared and signed on the 22 March, 1922. The application for review was presented to the lower appellate Court on the 16 June 1922. That application was dismissed on the 11 September 1923. The present appeal was filed on the 12 November 1923. On the 21 November the Stamp Reporter reported that the appeal was out of time, and on the 22 November, directed the matter to be laid before the Registrar. On the 7 December 1923 the Registrar allowed two weeks time to the appellant to make the necessary application before the Division Court. On the 2 January, 1924 the present application was filed on which this Rule was issued. The petitioner wants us to deduct the time employed in presenting and prosecuting the review application before the lower appellate Court from the time allowed for presenting an appeal to this Court. His prayer might have been granted on a consideration of the case under Section 5 of the Limitation Act; but he has not shown due diligence in prosecuting the matter in this Court. He filed the appeal in this Court on the 12 November 1923 against a decree prepared and signed on the 22 March, 1922. He must have known at the time he filed the appeal that it was barred and he should have been prepared to get an order from this Court on a proper application explaining the delay in presenting the memorandum of appeal directing the registration of the appeal. Instead of that, he takes no further steps in the matter and not even within the time allowed by the Registrar. THIS application was filed more than a month and a half after the filing of the memorandum of appeal. It seems to us that the petitioner has failed to give sufficient explanation for the delay and we do not think that in the circumstances of this case we should be justified in exercising our discretion under Section 5 of the Limitation Act and extend the time for presentation of the memorandum of appeal. THIS Rule is accordingly discharged with costs. We assess the hearing-fee at two gold mohurs.