HARI LAL Vs. PARMESHARI DAS

JUDGEMENT

(1.) This is an application in revision against an order of Mr. Plowden, District Judge of Bareilly, refusing to review a judgment of his predecessor. The facts of the case are follows: The present applicant owed money to the opposite party who brought a suit and obtained a decree. Some property of the applicant was attached and put up, for sale and, knocked down to the opposite party, i.e., the decree-holder. Before the sale was confirmed the judgment-debtor got some money from a third party by agreeing to sell that property to that third party. He then applied to the Court to set aside the sale on deposit of the whole amount plus 5 per cent under Order 21, Rule 89. That application was rejected by the Munsif on the ground that the Allahabad High Court decisions were against allowing a judgment-debtor to make a deposit under Order 21, Rule 89. An appeal was filed before the then District Judge Mr. Neave who dismissed the appeal on the same ground on the 14 August, 1925. An application in revision-was made to this Court. That application was dismissed by this Court on the ground that the District Judge had applied the view of law by which he was bound at the time and that his decision in consequence gave no cause for revision.

(2.) The applicant was, however, advised fey this Court to apply to the District Judge to review the appellate decision of Mr. Neave of the l4 August 1925. This was done on the 25 March 1926. This application was also rejected by Mr. Heave's successor, Mr. P.C. Plowden. The application for review was beyond the 90 days allowed by Art. 173 of the Limitation Act, but Mr. Plowden recognised the discretion possessed by him to admit the application after time under Section 5 of the Limitation Act. He rightly held, however, that the discretion allowed by Section 5 should only be exercised when an application, made after the period o? limitation prescribed in the Schedule, is: made without delay. He found that the decision of this High Court, which altered the view of law which it was incumbent for the District Judge to follow, was published in January 1926, and held that the applicant should have applied earlier than the 25 March.

(3.) There is an affidavit on the file, filed by the present applicant in this Court that the reason why he did not apply until the 25 March was that he only heard of the dismissal of his application for revision by the High Court and of the High Court's advice to him to apply in review to the District Judge on the 23 March. It is urged by counsel for the opposite party that this affidavit is based on a postcard on the file, but that the applicant when applying to Mr. Plowden did not take the trouble to prove the postcard or to put in an affidavit in respect of it.