NAGINDAS MOTILAL Vs. NILAJI MOROBA NAIK

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent from the decision of the Division Court on November 23, 1921, refusing to excuse the delay of the applicants in the presentation of their petition for a certificate of appeal to the Privy Council. The learned Judges who constituted the Court disagreed as to whether the delay should be excused. Accordingly under Clause 36 of the Letters Patent the opinion of the senior Judge prevailed, which was to the effect that the delay should not be excused. Consequently it became unnecessary to decide whether the certificate should be granted. I should state that one consolidated rule had been granted both in the above application to excuse delay and in the above petition for a certificate. They were respectively Civil Applications No. 615 of 1921 and No. 681 of of 1921, and both of them were before the Division Court Similarly the present appeal before us is headed in both the above applications, although that does not appear from page a of the Appeal Paper Book before us; and it would seem from the notice of appeal sent to the present respondents by the office that only Civil Application No. 615 of 1921 is specially mentioned, viz., the application to excuse delay.

(2.) Now this Letters Patent appeal was filed on January 28, 1922, and the delay of over two years which has ensued in bringing the appeal to a hearing is serious and, so far as I am aware, most unusual. We have called for a report on this matter, which can he marked for identification as Exhibit Z. But it is admitted that the appeal was originally brought within time, and no contention has been raised before us that there has been any subsequent laches on the part of the applicants which would disentitle them from obtaining the relief which they claim.

(3.) The only preliminary objection taken by the respondents is that no appeal lies from the decision of the Division Court on November 23, 1921. This depends on whether the above decision was a "judgment" within the meaning of Clause 15 of the Letters Patent. It should be borne in mind that by the High Court's judgment of February 11, 1921, the decision of the trial Judge had been restored, and that of the first appellate Court reversed, with the result that the plaintiff and others succeeded in the claim for rent which they had advanced in respect of the suit lands. The effect, therefore, of the decision of November 28, 1921, refusing to excuse the delay and consequently refusing to entertain the petition for the necessary certificate of appeal to the Privy Council amounted to a final decision so far as this High Court was concerned, and put an end to the litigation between the parties. The only remedy then open to the appellants was to apply direct to the Privy Council for special leave to appeal. But as such special leave will not as a rule be granted unions there is some substantial question of law or general interest involved, presumably the applicants would not be in so strong a position as if they would rely before us on Section 110 of the Civil Procedure Code. The question, therefore, whether the applicants can still rely before us on Section 110 is or may be one of practical importance.