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Judgment
Wallace, J.—Petitioner seeks for revision of the order of the lower Court excusing the delay of 8 months by the Official Receiver, Tanjore,
in bringing on record the legal representative of a deceased alienee from an insolvent in the matter of a petition by the Official Receiver to have that
alienation set aside. The District Judge has excused the delay on the short ground that the Official Receiver had no means of knowing about the
death of the alienee, and presumably, though he does not say so, that he considered that sufficient cause for the application being belated.
The evidence before him was contained only in two affidavits, one by the Official Receiver that he did not know earlier of the death, and one by
the legal representative that the Official Receiver did know earlier of it from the insolvent''s power-of-attorney agent. The District Judge had,
therefore, before him no evidence whatever that the Official Receiver did not, as a matter of fact, know earlier. He has not said so. His order is
thus based on no evidence. Beyond that he has not considered the essential point whether the Official Receiver''s ignorance of the death was
justified and afforded sufficient cause for his belated application.
The next question is, whether this Court is called on to interfere u/s 115 of the Civil Procedure Code. Respondent relies on the ruling in
Thandayuthapani v. Chinnathal 24 Ind. Cas. 872, holding that the order in that case on a petition to excuse delay in presenting an appeal was not
open to revision. I take it that no question of gross irregularity in the exercise of jurisdiction arose in that case, i.e., that the Trying Court had
considered the point of law which it was its function to decide and had decided on the evidence before it, rightly or wrongly, that there was not
sufficient cause for delay in presentation. But when the Court has first of all come to its conclusion oh no evidence and has even then omitted to
consider the one point which the law directs it to decide viz., whether there was sufficient cause for delay in presentation, I must hold that it has
acted with material irregularity in the exercise of its jurisdiction, if the aggrieved party has been seriously prejudiced thereby.
In the present case, the Court''s conclusion was based on no evidence, and, therefore, it failed to consider properly whether sufficient cause for
delay had been shown. Since, if sufficient cause has not been shown, the Official Receiver''s petition to set aside the alienation in favour of
petitioner''s deceased father will have to be dismissed, I consider that petitioner has been seriously prejudiced by the lower Court''s irregular
exercise of jurisdiction.
I, therefore, set aside the order of the District Judge and direct that the petition be re-heard according to law. Petitioner will get his costs in this
Court.