M ZAHUR HUSAIN Vs. CHURA SINGH

JUDGEMENT

(1.) This is a decree-Holders appeal against a decree of the lower Appellate Court modifying the decree of the Court of first instance. The Court of first instance disallowed the judgment-debtor's objection but that order was modified very materially in the decree passed by the lower Appellate Court.

(2.) The decree-holder on August 23, 1932, obtained a decree for arrears of rent against the judgment-debtors. The arrears of rent covered the years 1338 and 1339 Fasli. The decree-holder attempted on a number of occasions to execute his decree but with no success and finally he applied for ejectment of the judgment- debtors from the holding in question under the provisions of Section 79 of the Agra Tenancy Act. Notice was served upon the judgment-debtors to show cause why they should not be ejected from their holding and to this notice they failed to appear. On January 3, 1933, the matter came before the execution Court and on that date the Assistant Collector of Budaun passed an order ejecting the judgment-debtors from their holding. The judgment-debtors applied for a revision of this order to the Commissioner of the District but he held that he had no jurisdiction to deal with the matter. Consequently on April 1, 1933, the judgment- debtors filed an appeal against; the decree of the Assistant Collector in the Court of the District Judge.

(3.) This appeal was clearly filed out of time because the period for filing such appeal was 30 days from the date of the decree of the Assistant Collector which was January 3, 1933. The appellants however applied to the District Judge to extend the time for appeal under Section 5 of the Limitation Act and the learned District Judge held that the appellants had sufficient cause for not preferring the appeal within the 30 days allowed to them. They had applied for revision of this order to the Commissioner and although this was not a proper way of proceeding in the matter, it was a mistake which afforded them a reasonable excuse for not preferring the appeal in the Court of the District Judge within the time provided by law. The appellants before me concede that the learned District Judge had jurisdiction to extend" the time and it is not argued that there were no grounds upon which he could properly admit and hear this appeal. Difficult questions of jurisdiction constantly arise in appeals of this nature and a bona fide. mistake such as that committed by the judgment-debtors in this case should not be held to debar them from being heard in the proper tribunal, vis., that of the District Judge.