Jiwan Ram Ram Chander vs Hazari Lal Bhagat and Others

This is an application to extend the time for filing the appeal to this Court from a decision of the Subordinate Judge, dated 5th January 1925, in a claim case.

The ground urged for extension of time is that the applicant was prosecuting with diligence another civil proceedings in respect of the same matter. That proceeding was a suit instituted by him in the Court of the Subordinate Judge of Bhagalpur on 9th April 1925. That suit was dismissed on 30th September 1926 and on an appeal by the applicant the suit was decreed on 26th August 1927. The opposite party preferred a second appeal to this Court. That was disposed of on 20th March, 1929. This Court held that the application of the opposite party claiming the property as his own and seeking to have it exempted from attachment in execution of the decree of the applicant was really u/s 47, Civil P.C. and against that order the applicant should have preferred an appeal and not filed the suit referred to above.

In pursuance of the order of the High Court, the applicant filed an appeal in the Court of the District Judge on 26th April 1929 against the order of the Subordinate Judge purporting to have been passed under Order 21, Rule 58 on 5th January 1925. In that appeal the applicant made a similar prayer as in this case to condone the delay in filing the appeal and the ground urged for such an indulgence is the same here as in that case. His application to extend time for filing the appeal before the District Judge was granted by the order passed on 25th May 1929. The District Judge summarised the events in the case with necessary dates and came to the conclusion that the applicant was diligent in prosecuting his case, namely, that

he claimed in the title suit to proceed against the attached properties which ware claimed by Hazari Lil (opposite party) as his own.

The learned advocate on behalf the opposite party says that the applicant has not given in his petition any explanation why he filed the appeal before the District Judge on 26th April 1929, the order of the High Court having been passed on 25th March 1929. It appears from the certified copy of the order of this Court obtained by the applicant that he got the copy on 11th April 1929 and it must be assumed that a fortnight''s time taken by him in consulting lawyors and preparing the grounds of appeal and filing it before the District Judge is not unreasonable. Another grievance of the learned advocate on behalf of the opposite party was that all the necessary dates have not been set forth in the petition for extension of time filed by the applicant in this Court.

We find, however, that all these dates are on the record and they will appear from the certified copies of the several orders passed by different Courts at different stages of this litigation and most of them have been set forth in the order of the District Judge passed on 25th May 1929 condoning the delay caused by the applicant in filing the appeal before him. Therefore there is no substance in this contention as well.

The applicant is therefore entitled as of right to the exclusion of the time during which he was diligently prosecuting the civil proceedings referred to above. Deducting the period when the appeal was filed by him on 25th April 1929 against the order of the Subordinate Judge purporting to have been passed under Order 21, Rule 58, dated 5th January 1925 in accordance with the method set forth in Clause 2, Section 14, the appeal was filed before the time for filing the appeal had expired. This calculation bas been made by the office according to which the appeal from the order passed by the Subordinate Judge under Order 21, Rule 58 (really u/s 47) could have been filed up to 21st April 1925, and the suit was filed on 9th April 1925 well within the time for filing the appeal. The learned District Judge ultimately held by his order, dated Sid July 1929 that the appeal did not lie to him but to this Court, regard being had to the valuation of the original suit in which the applicant obtained his decree and he returned the memo of appeal to be filed in this Court.

We therefore hold that the applicant is entitled to the exclusion of the time during which he was prosecuting diligently the civil proceedings in connextion with the same subject matter. That being done, the appeal to this Court is well within time. The applicant is also entitled to the extension of time in the circumstances of the case u/s 5, Lim. Act.

We also find that the original mistake was initiated by the opposite party in describing his application in the claim case under Order 21, Rule 58 and he got his order also from the Subordinate Judge under that provision. The further proceedings to have that order vacated adopted by the applicant were due to that mistake of the opposite party, and in the circumstances of the case the opposite party is more to blame than the applicant.

We therefore allow this application with costs, hearing fee two gold mohurs.