PROSUNNO KUMAR BAIDYA Vs. RAM CHANDRA DE

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent from a judgment of Mr. Justice Newbould. The appeal was dismissed by him under Section 3 of the Indian Limitation Act, on the ground that it had been preferred after the period of limitation prescribed therefor and that sufficient ground had not been made out for extension of time under Section 5.

(2.) A preliminary objection has been taken that the appeal is incompetent as the decree made by Mr. Justice Newbould is not a "judgment" within the meaning of Clause 15 of the Letters Patent. In support of this view reliance has been placed upon the decision in GobindaLal Das v. Shiba Das Chatterjee 33 C. 1323 : 10 C.W.N. 986 : 3 C.L.J. 545. On behalf of the appellant that case has been distinguished, on the ground that there the Court had to deal with an application for registration of the appeal after expiry of the period of limitation and that the effect of the order, was that the appeal was never registered, while in this ease the appeal was registered and was dismissed subsequently tinder Section 3 of the Indian Limitation Act. We need not decide whether the distinction is or is not substantial; but we observe that the decision in GobindaLal Das v. Shiba Das Chatterjee 33 C. 1323 : 10 C.W.N. 986 : 3 C.L.J. 545 has been criticised and distinguished in, the case of Mathura Sundari Dassi v. Haran Chandra Shaha 34 Ind. Cas. 634 : 43 C. 857 : 23 C.L.J. 443 : 20 C.W.N. 594. It may also be pointed out that as repeatedly ruled by this Court [Doucett v. Wise 2 Ind. Jur. (N.S.) 280 at p. 296, Upendra Nath Bose v. Bindeshri Prosad 32 Ind. Cas. 468 : 22 C.L.J. 452 :20 C.W.N. 210 and Krishen Doyal Gir v. Irshad Ali Khan 31 Ind. Cas. 965 : 22 C.L.J. 525], the term judgment " in Clause 15 of the Letters Patent means " decree or order," and that consequently an order of dismissal of an appeal without investigation of the merits may be a " judgment." In the present case, however, it is not necessary for us to enter upon a discussion of this question, because, the appeal, if competent, must fail on the merits. The application for review was, no doubt, presented to the lower Court with due diligence on the 8th October 1912, that is on the day following the disposal of the appeal in that Court. The application for review was dismissed on the 12th April 1913, but the appeal to this Court was not presented till the 9th July 1913, and no application was made under Section 5 of the Indian Limitation Act till the 5th August 1913. No explanation has been offered for this delay. The decision in GobindaLal Das v. Shiba Das Chatterjee 33 C. 1323 : 10 C.W.N. 986 : 3 C.L.J. 545 shows that the appellant is not entitled, as a matter of right, to a deduction of the period during which the application for review remained pending in the Court below. He has to seek extension of time under Section 5 of the Indian Limitation Act, in other words, to satisfy this Court that he had sufficient cause for not preferring the appeal within the prescribed period. He is consequently under an obligation to explain satisfactorily why he did not come to this Court till the 9th July 1913, and further why he did not apply for extension of time till the 4th August 1913. This he has completely failed to do. The appeal was obviously barred by limitation and there was thus no ground whatever established for extention of time.

(3.) The result is that the decree made by Mr. Justice Newbould is affirmed and this appeal dismissed with costs.