Rai Gulab Chand Saheb vs Abas Ali

In this case a preliminary decree for partition was obtained on the 9th January 1908. There was an appeal to the High Court: the decree was confirmed on the 16th June 1914. There after the defendants Nos. 3 to 45 made an application in the Original Court asking that in the final decree for partition they should be awarded a separate share. Their application was granted by an order dated the 5th June 1916, in which it was directed that the preliminary decree of the 9th January 1908 should be amended.

Against this amendment an appeal was filed in this Court on the 8th July 1916, and a motion on the 7th August 1916. The decree was actually amended at some unknown date, a direction being inserted in the margin to the effect that the defendants above referred to should get a separate share. A copy of this decree was obtained on the 13th July 1916 but was not produced in this Court until the 25th January 1917, this delay being due partly to the carelessness of the appellant''s karpardaz who had been instructed by the appellant''s Vakil to furnish him with a copy of the decree and partly due to the carelessness of the Vakil himself in not reminding the karpardaz to comply with his instruction and furnish him with a copy of the decree.

The question for our determination is whether the appeal should now be held to be barred by limitation and dismissed, or whether we should hold that in the circumstances of the case the provisions of Section 5 of the Limitation Act apply and that the appellant has satisfied the Court that he had sufficient excuse for not presenting the appeal within the time, it being conceded that until the decree of the Original Court has been presented the appeal cannot be held to have been presented within the meaning of that section.

Without prejudice to any view which I might take upon the question whether a motion or an appeal would He in this case, the balance of authority in the Calcutta High Court and in the Allahabad High Court appears to be in favour of the view that the proper remedy against an order directing the amendment of a decree is by motion and not by way of appeal. The Madras High Court appears in two cases to have taken the opposite view and to have held that an appeal lies against the amended decree. It may, therefore, be reasonably held that the appellant''s Vakil had ground for thinking that his remedy would probably be held by this Court to be by way of motion and not by way of appeal, and this being so, there is, in my opinion, ground for excusing the carelessness in the prosecution of the appeal. I have also the consideration in my mind that at the time of the hearing of a motion it has been held that the Court has jurisdiction, if it considers that the remedy was by way of appeal and not by way of motion, to convert the motion into an appeal. To dismiss the appeal now would preclude the Court from taking that course if it thought it should do so. If it had been a question merely of an appeal, I have no doubt whatever that the great carelessness in the prosecution of the appeal would not have been excused and that the appeal would have been dismissed on the ground of limitation. But having in view the considerations to which I have above referred, I would direct that the appellant''s case comes within the terms of Section 5 of the Limitation Act, and I would allow the appeal to be admitted for hearing.