Manick Dukandar vs Naibulla Sircar

This is an appeal against the order of the Subordinate Judge of Mymensingh, dated the 1st July 1896. The order appealed against is one dismissing the Appellant''s appeal on the ground that it was presented out of time. The facts seem to be that an ex-parte decree was passed against the Appellant on the 14th February 1895, on which date the Defendant, Appellant, applied to the Munsif who had given the ex-parte decree, for a review of judgment. This application was rejected on the 31st August 1895, and then the Defendant, Appellant, appealed to the District Judge on the 24th October 1895. The District Judge ordered the appeal to be registered and transferred it to the Subordinate Judge for hearing. The Subordinate Judge, on hearing the appeal, rejected it on the ground that it was presented after time, and, on the strength of the ruling in the case of Ahsanulla v. The Collector of Dacca ILR 15 Cal. 242, he held that the time spent by the Respondent, Appellant, in prosecuting his review, should not be given credit for, as there was no good reason for presenting that review.

The Defendant, Appellant, appeals to this Court, and the first ground urged by the learned pleader on his behalf is that in as much as the District Judge registered the appeal, and therefore admitted it, it was not open to the Subordinate Judge who heard that appeal, to dismiss it on the ground that it was filed after time.

The second ground urged is that the Defendant had reasonable and proper grounds for presenting that application for review.

Now, in support of the first of these pleas, the learned pleader who appears for the Defendant, Appellant, has relied on the case of Jhotee Sahoo v. Omesh Chunder Sircar ILR 5 Cal. 1, in which it has been held that an order made by the District Judge admitting an appeal after time, cannot be cancelled by a Subordinate Judge on the appeal coming on for hearing before him.

We cannot follow this ruling, as the circumstances of the cases are very different. In the case in which this ruling was passed, the District Judge "was satisfied that the Appellant had sufficient cause for not being able to present the appeal within the prescribed time," and so allowed it to be registered. In this case the judge does not appear to have ever considered the question whether the appeal was presented in time or out of time. No doubt, that fact was recorded in the Bengali petition presented to him, but we do not see that it was brought to the notice of the judge or that he ever considered that matter. What happened was that a stamp was affixed upon the order-sheet probably by one of the ministerial officers to the effect:--"register, issue notice fixing 25th December for hearing." This order, affixed by means of a stamp, is not, we think, sufficient to show that the District Judge considered the question or was satisfied that the Appellant had good reasons for not being able to present the appeal within the prescribed time.

We are supported in the view by the rulings in the cases of Mulna Amad v. Krishanji Ganesh Godbole ILR 2 Bom. 594 and Chunder Dass v. Boshoom Lall Sookul ILR 6 Cal. 252. Then as to the second ground all we need say is that the Subordinate Judge seems to be quite right in finding that the Appellant failed to show that he had any grounds for a review. It appears that the Appellant was guilty of laches in leaving the Court and not returning till 2 P.M., and he did not take the trouble to produce any witnesses. We have examined the record, and we find that no copy of his petition for review is forthcoming, therefore we cannot say on what grounds the application was made. For these reasons this appeal fails and must be dismissed with costs.