Mt. Gopi Bibi vs Chanu Prasad Singh and Others

This is an appeal in forma pauperis and two questions arise before us for consideration. The first question is whether the appeal is time barred. It appears that the decree from which this appeal has been preferred was originally prepared on 25th January 1929.

One of the items allowed to the appellant in the decree was a sum of Rs. 4,605-15-0 which was granted to her byway of maintenance pendente lite. Subsequently there was an application for the amendment of the decree and on 22nd April 1929, the decree was amended with the result that this item of Rs. 4,605-15-0 was disallowed. The present appeal was filed on 23rd May 1929, and it is not disputed that it would be within time if the period of limitation is calculated from the date of the amendment of the decree.

The question, however, is whether the period of limitation is to be computed from the date of the original decree or from 22nd April 1929, the date of the amended decree. The learned Counsel relies in this connexion on the case of Aviar Chandra Kundu v. Asad Ali Khan [1905] 32 Cal. 908. The facts of that case were that the original decree was signed on 6th July 1903, and the plaintiffs applied on 22nd July, to have the ?same amended in respect of the name of a party which had been incorrectly recorded, and of the amount of the claim allowed, which had been entered as Rs. 600 instead of Rs. 1,600 and the amendment was made on 22nd August.

In these circumstances it was held that the period of limitation should be reckoned from 22nd August, as the date when the correct decree was prepared and that the appeal filed on 2nd September was within time. This was held on the ground that the decree was wrong in a very material particular namely as to the amount claimed and allowed. It was also held that u/s 5, Lim. Act, there was sufficient cause for not presenting the appeal within 30 days from the date of the first decree. In this case also the decree was amended in a very material particular which is also the subject matter of the present appeal and in these circumstances we think that the period of limitation should be calculated from 22nd April 1929. In any event the learned Counsel for the appellant asks us to give him the benefit of Section 5, Lim. Act, which in the circumstances of the case we think should be given to him.

The next question that arises is whether this is a fit case in which leave should be granted to the appellant under Order 44, Rule 1. That rule provides that the Court shall reject the application unless upon a perusal thereof and of the judgment and decree appealed from, it sees reason to think that the decree is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust. In this particular case what happened was that this Rs. 4,605-15-0 was originally allowed to the appellant by the decree and there is also a passage in the judgment of the trial Court saying that the allowance that was granted to the appellant should be granted from the date of the present suit till her life. Subsequently the amendment was made not by the learned Subordidate Judge who passed the decree but by his successor on the ground that:

though there is no prayer in the plaint for arrears of maintenance nor is there any order allowing the arrears, the decree allows to the plaintiff Rs. 4,605-15-0 as arrears of maintenance and so the decree allowing the arrears is wrong.

The learned Counsel for the appellant contends that this at once raises the question of law whether the successor of the learned Subordinate Judge who decided the suit could alter the decree passed by the latter in the manner he has done especially when the judgment of the Court seems to suggest that the decree originally prepared was prepared in accordance with that judgment. In our opinion the contention is not without substance and this is a fit case in which the leave should be granted.