NARIMAN RUSTOMJI MEHTA Vs. HASHAM ISMAYAL

JUDGEMENT

(1.) This is an application for leave to appeal to His Majesty in Council. The application was filed on February 12, 1924. The decree sought to be appealed from was passed on February 9, 1923. The application is, therefore, beyond time, and the first question is whether the delay in presenting the application should be excused. The reason relied upon for excusing the delay is that the petitioner filed an application for a review of the decree, now sought to be appealed from, on April 13, 1923. On that application a rule was granted by this Court in September 1923, and that rule was discharged on February 11, 1924. It is urged that as the petitioner was pursuing the remedy by way of review, the time taken up from April 13, 1923, up to February 11, 1924, should be excused under Section 5 of the Indian Limitation Act and reliance is placed upon the decision in Brij Indar Singh v. Kanshi Ram,(1917) L.R. 44 I.A. 218

(2.) In the present case, having regard to the fact that the petitioner was prosecuting this application in good faith, we think that the time occupied in prosecuting that application should be deducted in calculating the period of limitation for presenting the application for leave to appeal to His Majesty in Council. If that time is deducted, it is clear that the application is within time.

(3.) We, therefore, make the rule absolute on the application for excusing delay, and order the costs of the rule to be costs in the rule on the main application.