Purnendu Nath Tagore v. Kanailal Ghoshal — 1947 DIGILAW 184 (CAL)

JUDGMENT Sharpe, J. - The Respondents to England are sons of the late Shailendra Nath Ghoshal, who made a trust of his property and appointed as trustees Raja Praphulla Nath Tugore and two others. They were beneficiaries under the trust-deed and brought a suit in the Original Side of this Court against Raja Praphulla Nath Tagore, the sole surviving trustee, for recovery of Rs. 75,000 with interest, accounts and other reliefs. On the death of Raja Praphulla Nath Tagore, his executors were substituted in the suit and are Appellants to England. Judgment was delivered in the suit by Das J., on August 2, 1946 and it was decreed for a sum of Rs. 78,000 with interest. A memorandum of appeal against that decision was lodged with the Deputy Registrar of this Court, on February 18, 1947. He reported that the appeal had been filed out of time and in accordance with the rules of the Original Side, the memorandum of appeal was returned to the filing solicitors. It was then presented to the Division Bench dealing with Original Side applications, presided over by my learned brother Mitter J., along with an application for admission of the appeal, or, if found necessary, for extending the time for preferring the appeal u/s 5 of the Indian Limitation Act. 2. The application was heard by Mitter and Ahmad JJ. on April 18, 1947. They held that the appeal was barred by time on February 18, 1947, the date on which it had been presented to the Deputy Registrar and that, on the facts disclosed in the affidavits, there were no adequate grounds for extending the period of limitation. The application was, therefore, dismissed with costs and the present application has been made by the Defendants-Appellants for a certificate that the amount or value of the subject-matter in the Court of first instance is Rs. 10,000 or upwards and that the appeal involves a substantial question of law, or that the case is a fit one for appeal. 3. Before stating the points, which have been urged in the present matter, it will be convenient to mention briefly the reasons which led to the passing of the order, against which the present application is directed. 10,000 or upwards and that the appeal involves a substantial question of law, or that the case is a fit one for appeal. 3. Before stating the points, which have been urged in the present matter, it will be convenient to mention briefly the reasons which led to the passing of the order, against which the present application is directed. As already mentioned, the judgment in the original suit was delivered on August 2, 1946 and on August 6, 1946, the Plaintiffs made a requisition for the drawing up of the decree. Certain other intermediate steps were taken subsequently, but it is unnecessary to state these in detail for the present purpose eventually the decree was signed on December 17, 1946 and filed the following day. It was held by my learned brothers, Mitter and Ahmad JJ., that the Appellants were entitled to deduct this period in computing the period of limitation. They had, however, applied for a copy of the decree on the August 14, 1946 and the folios necessary for that purpose were marked on December 18 1946. Folios were supplied on January 11, 1947 and the copy of the decree was given on the January 31, 1947. The memorandum of appeal, as mentioned above, was not filed until February 18, 1947 and it was held, on consideration of the affidavits, that the period December 18, 1946, to January 11, 1947, was not requisite for obtaining a copy of the decree and that, after making all permissible allowances, the latest date for the filing of the appeal would have been January 28, 1947. It was also held on a consideration of the facts disclosed by the affidavits that no grounds had been made out why the appeal could not have been filed much earlier than February 18, 1947 and that-- if the Petitioners had been diligent and taken prompt steps, which they were bound to take in view of the very short period of limitation provided by Article 151 of the Indian Limitation Act, the appeal could have been filed immediately the certified copy of the decree was obtained. 5. For these reasons, the application was dismissed with costs. 6. It is not disputed that the value of the subject-matter of the suit in the Court of first instance exceeded Rs. 10,000, and on behalf of the Appellants to England, Mr. 5. For these reasons, the application was dismissed with costs. 6. It is not disputed that the value of the subject-matter of the suit in the Court of first instance exceeded Rs. 10,000, and on behalf of the Appellants to England, Mr. Chatterjee has urged that the appeal involves a substantial question of law and that, in any event, the order appealed from did not affirm the decision of the Court immediately below within the meaning of Section 110 of the Code of Civil Procedure. Both these contentions have been refuted by Mr. Gupta for the Respondents to England, but his main contention is that the order under consideration does not come within Clause (a) of Section 109 of the Code and that the present is not a fit case for the granting of a certificate under Clause (c) of that section. We propose to examine this contention first, because, if it is accepted, the other contentions will have no practical importance for the decision of the present matter. 7. The question is, whether the order against which it is sought to appeal to His Majesty in Council is a "decree for final order "passed on appeal by a High Court" within the meaning of those words in Clause (a) of Section 109. On behalf of the Appellants to England, Mr. Chatterjee has relied on the decision, Promotho Nath Roy v. W.A. Lee (1919) 33 C.L.J. 128, in support of the claim that the answer should be in the affirmative; a contrary view has been advanced by Mr. Gupta, relying on the decision Karsondas Dharamsey v. Gangabai (1907) ILR 32 Bom. 108, 109. The latter was a decision of Sir Lawrence Jenkins and it is directly applicable to the present matter. It was held therein that an order of the High Court refusing to admit an appeal after the period of limitation had expired is not a decree passed on appeal by a High Court u/s 595 of the CPC and there is, therefore, no jurisdiction to grant leave to appeal therefrom to the Privy Council under Clause (a) of that section. The meaning of the words "passed on appeal" were specifically considered and Sir Lawrence Jenkins observed-- The meaning of the expression "passed on appeal" has been settled by a line of authorities, which it is right that we should follow: see Sander Koer v. Chandishwar Prosad Singh (1903) ILR 30 Cal. 679 and the cases there cited. And applying that interpretation to the circumstances of the case, it cannot (in my opinion) be said that there is here a decree passed on appeal by a High Court. 8. The decision of the Bombay High Court was noticed by Sir Lancelot Sanderson in Promotho Nath Roy's case (supra) referred to above, but it was held that the facts of the Bombay case were distinguishable. The reason apparently was that the order of the High Court, against which it was sought to appeal in that case, was an order made in an appeal, which had been admitted and which was dismissed. In the Bombay case, however, as in the present case, the appeal was not admitted and consequently the question of dismissing the appeal did not arise; the Appellants attempted to file an appeal but that attempt was unsuccessful and their application for admission of the appeal after, if necessary, extending the period of limitation was rejected. In these circumstances, we are clearly of opinion that the order in question was neither a decree nor a final order "passed on "appeal," and so this Court has no jurisdiction to grant leave to appeal under Clause (a) of Section 109 of the Code of Civil Procedure. 9. We might note that different views in this matter appear to have been taken by different High Courts. On precisely similar facts, the Outh Chief Court held in Karim Jehan Begam v. Girdhari Lal (1935) ILR 11 Luck. 599 that an order rejecting a memorandum of appeal as time barred and disallowing an application u/s 5 of the Limitation Act was not a final order passed on appeal. On precisely similar facts, the Outh Chief Court held in Karim Jehan Begam v. Girdhari Lal (1935) ILR 11 Luck. 599 that an order rejecting a memorandum of appeal as time barred and disallowing an application u/s 5 of the Limitation Act was not a final order passed on appeal. In Ramaswami Udayar v. Sevu Rama Aru Ramanathan Chettiar AIR (1942) (Mad.) 357, it was held by a Division Bench of the Madras High Court that, where an application to excuse delay, by deducting the time taken in other proceedings in computing the time for the application for the rehearing of an appeal, was dismissed and consequently no order was passed on the application for rehearing the appeal, these were not orders passed on appeal within the meaning of Section 109(a) of the CPC and hence no leave could be granted. A contrary view was expressed by a Division Bench of the Patna High Court in H.G. Pereira v. East Indian Railway AIR (1923) Pat 102. In that case, an application was made for leave to appeal to the Privy Council against an order extending the period of limitation for presenting an appeal to the High Court, and in refusing leave to appeal on the ground that the order was not a final order, some observations were made by way of obiter that if the application for extension of time had been refused, this would have operated as a dismissal of the appeal and the order would have been appealable, not as a final order but as a "decree passed on appeal." It does not appear whether, in that case, the appeal had already been admitted or not and no reference was made to any previous decisions on this matter. A view similar to that of the Patna High Court appears to have been taken in Brij Indar Singh v. Kanshi Ram AIR (1917) (Lah.) 448. That was the decision of a single Judge and whilst expressing the opinion that an order refusing to admit an appeal on the ground of time-bar is an order "passed on appeal" within the meaning of Section 109 of the Code of Civil Procedure, it was held that Clause (c) of that section was fully applicable to the facts of that case and so a certificate should in any case be granted. In J.N. Surty v. T.S. Chettyar Firm (1926) ILR 4 Ran. In J.N. Surty v. T.S. Chettyar Firm (1926) ILR 4 Ran. 265, 287-8, it was held that, where an appeal had been dismissed on the ground of limitation, the result being to confirm the decision of the original Court, the decision was either a "judgment made on appeal" within the meaning of Section 37 of the Letters Patent or a "decree or final order "passed on appeal" within the meaning of Section 109(a) of the Code. No reasons were given for his view and no previous decisions in the matter were cited. The conclusion was, however, that-- the appeal fulfils the requirements of Clause 37 of the Letters Patent of this Court and we grant a certificate accordingly. 10. Although there is no uniformity in the decisions, the general trend is in support of the view we have taken, in agreement with the decision of Karsondas's case (supra) referred to above that an order, rejecting an application for admission of an appeal, not on the merits but on the ground that it is barred by limitation, is not "a decree or final order passed on appeal", within the meaning of those words in Clause (a) of Section 109 of the Code of Civil Procedure. Our view finds further support from the decision Sunder Koer v. Chandishwar Prasad Singh (1903) ILR 30 Cal. 679, which followed the earlier decisions Soudaminee Dossee v. Mohabab Chand (1866) B.L.R.F.B. 685 and Enact Hossein v. Roushun Jehan (1868) 1 B.L.R. (F.B.) 1 and referred to the observations of Sir Barnes Peacock in regard to the distinction to be drawn between orders of the High Court "made or passed: "on appeal" and those "passed in the exercise of its appellate "jurisdiction." 11. In the view we have taken that the order in the present case is not an order such as is contemplated by Clause (a) of Section 109 of the Code of Civil Procedure, it follows that we cannot grant a certificate u/s 110 of that Code and since we are further of opinion that the present is not a fit one for appeal within the terms of Clause (c) of Section 109 of the Code, the present application must be refused. The further points which have been mentioned at the outset do not, therefore, require decision. The further points which have been mentioned at the outset do not, therefore, require decision. We may, however, say that the proposed appeal does not, in our opinion, involve any substantial question of law. The word "requisite" in Sub-section (2) of Section 12 of the Indian Limitation Act has been interpreted by their Lordships of the Privy Council in J.N. Surty v. T.S. Chettyar, A Firm (1926) ILR 4 Ran. 265 to mean "properly required," and the question whether the period taken in obtaining a copy of the decree in the present case was properly required or not is a question of fact to be decided on evidence. The further question whether the period for the filing of the appeal should be extended is one of discretion; and it has not been suggested that that discretion was in any way improperly exercised. 12. On the further question whether the order rejecting the application for admission of the appeal was an order affirming the decision of the Court immediately below, we think it necessary only to refer to the observations of Lord Moulton in the Privy Council decision, Abdul Majid v. Jawahir Lal (1904) I.L.R 36 All. 350. That decision related to a question of the starting point of limitation for the execution of a decree and that question depended upon the effect of an order of His Majesty in Council dismissing an appeal for want of prosecution. In that connection, his Lordship said as follows: The order dismissing the appeal for want of prosecution did not deal judicially with the matter of the suit and could in no sense be regarded as an order adopting or confirming the decision appealed from. It merely recognised authoritatively that the Appellant had not complied with the conditions under which the appeal was open to him and that therefore he was in the same position as if he had not appealed at all. 13. We think, however, that these observations apply with equal cogency to the present case and that, whilst the order rejecting the application for filing an appeal could not be regarded as an order adopting or confirming the decision appealed from, its effect was to put the Appellants in the same position as if they had not appealed at all. 13. We think, however, that these observations apply with equal cogency to the present case and that, whilst the order rejecting the application for filing an appeal could not be regarded as an order adopting or confirming the decision appealed from, its effect was to put the Appellants in the same position as if they had not appealed at all. These observations to some extent support the view we have taken on the interpretation of Clause (a) of Section 109 of the Code. We think it unnecessary, however, to pursue this matter further, since for the reasons already given, we dismiss the application with costs for the Respondents. Certified for two Counsel. Mitter, J. 14. I agree.