S. Berumull Sowcar vs P. Velu Gramany

Patanjali Sastri, J.—This appeal arises out of a suit brought by the appellant in the City Civil Court to enforce an equitable mortgage,

A preliminary objection is taken to the maintainability of the appeal on the ground that it is barred by limitation. The decree of the Court below

was passed on the 28th August, 1940, and the application for certified copies of the decree and judgment was made on the 29th August. The

requisite copy stamps were called for on, the 26th September, but as they were hot deposited in time, the application was rejected on the 30th of

the same month. A fresh application for copies was made on the 2nd October. A petition to restore the original application was also filed on the

3rd October. The Court below after hearing the objections of the respondent passed an order on the llth October, that copies be granted on the

original application with a note thereon that they were granted in pursuance of the petition to restore the original application which had been

rejected. The requisite stamp papers were deposited on the same day and the copies were delivered on the 21st October. It is not disputed that if

the time prescribed for filing the appeal is computed on the basis of the application originally filed, this appeal preferred on the 28th October,

Would be in time ; but it is urged that the Court below had no power to restore the original application after it was rejected on the 30th September

or to treat the fresh application filed on the 2nd October as a continuation of the original application. It is pointed out that Rule 129 of the Civil

Rules of Practice which provides that ii the required stamp papers have not been deposited within the time prescribed in the rule, the application

shall be struck off is mandatory, and that there is no provision in the rules for the restoration of an application so struck off. The appellant, on the

other hand, contends that the Court below had the power to pass the order, dated llth October under Order 9, Rule 9, read with Section 141,

CPC and that, even if these provisions are not applicable, it had inherent jurisdiction u/s 151. to treat the subsequent application as a continuation

of the original application if it was satisfied that there was sufficient cause for non-deposit of the stamp papers required, and reliance is placed on

the decision of this Court in Ramanuja Aiyangar v. Narayana Aiyangar I.L.R.(1895) Mad. 374 which certainly supports the contention. There also

an application for copies was struck off under the copyist rules for non-deposit of the required stamp papers, and a petition was put in for

restoration of the previous application which was ordered and copies were granted. It was objected that an appeal filed with the copies so

obtained was barred by time but this Court held that the later application must be considered to be a continuation of the previous application for

the purpose of computing the time prescribed for filing the appeal. No doubt the judgment does not state under what provision the Court has the

power to treat a petition for restoration of an application for copies dismissed for default as a continuation of the previous application, but the

decision clearly concludes the point in favour of the appellant. The preliminary objection therefore fails and the appeal must be held to have been

preferred in time.

[Then His Lordship dealt with the case on the merits and modified the decree of the trial Court.]