SUDHANSU BHUSAN PANDEY Vs. MAJHO BIBI

JUDGEMENT

(1.) This is an appeal against an order of the District Judge of Murshidabad by which he rejected a memorandum of appeal filed in his Court on the ground that it was out of time. At the hearing of the appeal before me, Dr. Radha Benode Pal for the respondent took a preliminary point in bar which apparently sprung a surprise upon the learned advocate for the appellant, Mr. Urukramdas Chakravorty. Mr. Chakravorty was not quite sure at first as to the line of answer he should adopt, but his argument assumed a more definite shape after the midday recess. Dr. Pal's contention was that the order of the learned District Judge was not a decree, nor was it an appellate order under the Civil P. C., hence there was no appeal, and the only remedy of the appellant, if any, was by way of revision under Section 115 of the Code. In support of his argument, he relied on the ease in Jnanada Sundari Shah v. Madhab Chandra Mala .

(2.) In answer, Mr. Chakravorty put forward three grounds on which he said the order should be treated as a decree. In the first place it was urged that the effect of the order was the same as if it had been dismissed after hearing, at any rate after hearing under Order 41, Rule 11, if not after final hearing. Secondly, it was contended that the order in so far as it dismissed the appeal amounted to an affirmance of the decision of the trial Court, and in that sense was an adjudication of the rights of the parties within the definition of a "decree" under Sec. 2(2) of the Code. In the third place, it was argued that the words "rejection of a plaint", which a decree is deemed to include under Section 2(2), are wide enough to include the rejection of a memorandum of appeal by virtue of the provisions of Section 107 read with Order 7, Rule 11. In case it was held that the order was not a decree, Mr. Chakravorty urged that the order was passed without jurisdiction and thus amenable to interference under Section 115 and he invited the Court to treat the memorandum of appeal as an application in revision.

(3.) On the merits, Mr. Gopendra Nath Das, who appeared for Dr. Pal at a later stage of the argument, did not make a serious attempt to defend the order of the learned District Judge. That order cannot in fact be supported. The learned Judge applied a test which has no manner of application in deciding a question of limitation. The facts on which he held that the appeal in the Court below was out of time may be indicated by reference to the relevant dates. The judgment of the trial Court was passed on 30 April 1935, but the decree was not signed till 15 June 1935, that is till about two months and a half later. On the 13 July following, that is within less than 30 days from the date the decree was signed, the appellant applied for certified copies of the judgment and the decree. The requisite court-fee stamps etc., were notified on the 15 July, and were supplied that very day. The copies were ready for delivery on the 18 July, and the appeal was filed with these copies on the 20th. The office noted that the memorandum of appeal was time-barred, and on that the learned Judge made the following endorsement on the 22nd July: Nothing will persuade me that the appeal is not time barred when no attempt was made to take a copy of the judgment until 2 months after it was signed. It makes no odds that the decree was passed late.