GAYA PRASAD Vs. RAM SARUP

JUDGEMENT

(1.) THE learned Judge of the lower appellate Court ought to have detailed reasons for which he refused to admit an appeal under Section 5, Limitation Act, and not put this Court to the trouble of finding out the facts and adjudicating upon them. THE word "rejected" does not by any indulgence amount to a judgment. An appealable decree follows such a judgment. THE facts are these. THEre was a suit for accounts against the defendant (appellant here), and a preliminary decree was passed for taking accounts against him. This decree was passed ex parte and the defendant went on taking proceedings to get the ex-parte decree set aside by reason of its being ex-parte. He did not appeal at the time on the merits under Section 96, Civil P.C. THE proceedings taken by him came to an end on 19 May 1926. He submitted to the ex-parte preliminary decree, prosecuted the matter before the Subordinate Judge up to the preparation of a final decree and then appealed against the final decree to the Court of the District Judge. So as for proceedings in the suit for accounts, whatever litigation the defendant-appellant undertook as against the preliminary decree ended on 19 May 1926. It so happened that the defendant had another litigation arising out of a suit No. 177, of 1922. That suit was wholly independent of the suit for accounts. He had litigation in this Court in a first appeal subsequent to losing that suit. In this Court he found that the preliminary decree which was passed ex parte against him stood in his way and was taken as res judicata between him and the party opposed to him. THEreupon he appealed to the District Judge under Section 96 against the preliminary decree to which he had submitted after 19 May 1926. THE litigation subsequent to 19 May 1926, related to a wholly different proceeding not founded upon the same cause of action as the suit in which the preliminary decree was passed.

(2.) LITIGATION subsequent to 19 May 1926, therefore, cannot be taken into account, and the time spent in carrying on a wholly independent litigation cannot be excluded from the time given to the appellant to appeal. Provisions of Section 14, Lim. Act, do not apply to proceedings subsequent to 19 May 1926, in a totally different suit. The appeal, even taking into account the proceedings up to 19 May 1926, would be time barred. This second appeal is, therefore, dismissed.