NANDA LAL BOSE Vs. ASHUTOSH GHOSE

JUDGEMENT

(1.) This Rule was heard ex parte by Mr. Justice Chatterjea and Mr. Justice Panton some months ago, but later at the instance of the opposite party an order was passed that the Rule should be heard again. I have now heard the learned Pleaders on both sides. The facts are stated in the judgment delivered on the 24th of March last. There are now four points to be considered. The first one is that the lower Court ought to have set aside its order when the defendant made his application for review of judgment. I have read the learned Judge s judgment in regard to this application and I think that he was correct and that there is no ground for interference on that score.

(2.) The second point urged is that the suit is barred by limitation. The point taken by the lower Court was that the suit was saved by the operation of Section 10 of the the Limitation Act. When the case was heard by this Court, the learned Judges took a different view and held that the suit was subject to the Rule of 3 years limitation. The learned Pleader who appears to day for the opposite party does not rely upon Section 10, but refers to Article 145 and quotes the case of Lata Gobind Prasad v. Chairman of Patna Municipality 6 C.L.J. 535. It appears to me that he is right in this contention and that in consequence the suit cannot be held to be time-barred.

(3.) The third point is that the defendant was a public servant and, therefore, entitled to the benefit of a notice under Section 80 Civil Procedure Code, I cannot find that he falls within any of the classes enumerated in Clause (17) of Section 2 of the Civil Procedure Code and, I, therefore, think that he was not entitled to a notice.