AI Structured Summary
Not yet generated for this judgment
Judgment
Sadasiva Aiyar, J.—Following Venkatrayudu v. Nagadu ILR (1886) M. 450 Krishna Bhatta v. Subraya ILR (1897) M. 228 Sarat
Chandar Bose v. Saraswati Debi ILR (1907) C. 216 and the very recent case, A.A.O. No. 71 of 1911 on the file of the High Court, Madras,
decided by Ayling and Napier JJ., two days ago and also the uniform practice of this Court on this particular question of the effect of an order of a
court admitting an appeal (excusing the delay in its filing without giving notice to the other side), I hold that the District Judge had jurisdiction to
consider, at the final hearing of the appeal after notice, the question whether the delay in the filing of the appeal had been adequately explained
notwithstanding the ex parte order of his predecessor excusing the delay and admitting the appeal.
This being the only point argued in this second appeal and it being decided against the appellant as above, the second appeal is dismissed with
costs.
Tyabji, J.
The decisions referred to by my learned brother (Venkatrayudu v. Nagadu ILR (1886) M. 450, Krishna Bhatta v. Subwaya ILR (1897) M.
228, Sarat Chandar Bose v. Saraswati Debi ILR (1907) C. 216 and A.A.O. No. 71 of 1911 on the file of the High Court, Madras, recently
decided by Aylingand Napier JJ.) and also, in so far as the circumstances of the present case are concerned, the case reported in Jhotee Sahoo v.
Omesh Chander Sircar ILR (1879) C. 1 lay down in express terms that ""an order made ex parte u/s 5 of the Limitation Act (Act IX of 1871) may
on proper cause shown be set aside by the Court which made it."" These decisions leave no room for the expression of any opinion on my part on
the question involved. The decision in Appeals Nos. 128 and 210 of 1911 on the file of this Court in which Mr. Justice Miller and I took part,
supports the same view. Second Appeal No. 1045 of 1907 (decided by Justice Ayling and me) was not cited to us in this appeal, nor were the
decisions above referred to cited to us in second Appeal No. 1045 of 1907. It is therefore unnecessary for me to express any opinion on the point
whether Second Appeal No. 1045 of 1907 should also have been governed by the same decisions or whether it was open to us to deal with the
particular question then involved as res Integra.
For these reasons I agree that this appeal should be dismissed with costs.