UNION OF INDIA v. KAMAL KUMAR GOSWAMI — 1970 DIGILAW 21 (CAL)

( 1 ) THIS is an extra-ordinary application by the respondent No. 1 who was the plaintiff in the suit. It is extra-ordinary for more than one reason. Firstly, because the applicant prays for an order that the memorandum of appeal be rejected or taken off the file and for dismissal of the appeal with costs on the ground that it is barred by limitation and further, and if necessary, for an order that the order or decision of the Deputy Registrar admitting the appeal be quashed or set aside and the memorandum of appeal be rejected. Secondly, because the applicant prays for dismissal of the appeal which is not ready for hearing, not even the paper book having been filed. Thirdly, because though the Rules of the Original Side of the Court, to which I will refer later in this judgment, enables him to canvass the bar of limitation at the hearing of the appeal he wants the question of limitation to be determined at this stage in exercise of the powers under Order 7, Rule 11 and Order 14, Rule 2 of the Code of Civil Procedure and, failing those Rules, in exercise of the inherent powers of the Court. ( 2 ) MR. R. C. Deb, the counsel for the petitioner, contended that although the appellant's Solicitor put in a requisition for a certified copy of the decree on June 29, 1967, he took no further steps until March 26, 1969, when he furnished the requisite stamps. It was argued that the decree was ready for filing on November 6, 1968, and it was in fact filed on January 2, 1969, by the Solicitor for the respondent Nos. 2 and 3. It was also contended that though the certified copy of the decree was ready for delivery to the appellant's Solicitor on May 2, 1969, the memorandum of appeal was not presented until May 28, 1969. In these facts, it was argued that since the appellant's Solicitor had failed to take any steps for filing the decree expeditiously and also to obtain certified copy of the decree, the appeal was filed beyond the period prescribed by the law of limitation and was therefore, barred by limitation and should be dismissed. ( 3 ) IN support of his contention Mr. ( 3 ) IN support of his contention Mr. Deb invoked the provision of clause (d) of Rule 11 of Order 7 and Rule 2 of Order 14 of the Code of Civil Procedure and also the inherent power of this Court. Order 7, Rule 11 deals with rejection of plants on the four ground mentioned in clauses (a), (b), (c) and (d ). Clause (d) provides that a plaint shall be rejected where suit appears from the statement in the plaint to be barred by any law. It is to be considered if this rule is attracted in this case and if there is any statement in the memorandum of appeal from which it appears that the appeal is barred by the law of limitation. From the allegations in the petition it appears that the bar of limitation is sought to be attracted by reason of the laches of the appellant is not taking diligently the steps which it should have taken for the filing of the decree and for obtaining a certified copy of the same. Assuming these allegations are correct, is the petitioner entitled to invoke clause (d) of Order 7, Rule 11 of the Code of Civil Procedure? In order to come within the ambit of clause (d) of that rule it must appear from the statements in the memorandum of appeal that the appeal is barred by the law of limitation. It is to be considered if there is any such statement in the memorandum of appeal in this case. ( 4 ) THE counsel for the petitioner however, contended that it, appeared from the endorsement made at the back of the memorandum by this Court's office that the appeal was barred by limitation. It was submitted that the endorsement made by the office of this Court was part of the memorandum itself and that, on the basis of the dates set out in the office notes, the appeal should be held to be barred by limitation. I must at once observe that this case has not been made out in the petition. The question is if the office notes incorporating various dates can be held to be statement made in the memorandum itself so as to make the notes part of the memorandum. I must at once observe that this case has not been made out in the petition. The question is if the office notes incorporating various dates can be held to be statement made in the memorandum itself so as to make the notes part of the memorandum. The counsel forth petitioner conceded that there was no rule which required the office to make the notes at the back of the memorandum setting out therein various dates on which steps were taken for drawing up of the decree, filing the same and obtaining certified copy thereof. He argued that the notes were prepared in pursuance of a practice and procedure followed by this Court and that such practice and procedure should be treated as having the same force as of a rule. It was submitted that on the basis of the dates endorsed at the back of the memorandum, it cannot but be held that the appeal was barred by limitation, and therefore, the memorandum should be taken off the file and the appeal dismissed. ( 5 ) WE cannot accept this contention of the counsel for the petitioner. The endorsement made by this Court's office cannot be treated to be part of the memorandum of appeal filed on behalf of the appellant. It cannot be overlooked that it is not in all cases that a memorandum is filed in the office. Sometimes, and not in frequently, a memorandum of appeal is filed in the Court when leave is sought for the same without a certified copy of a decree or order against which the appeal is sought to be preferred. In such cases, upon leave being granted to file the memorandum of appeal it is filed in the Court and has to be treated as a memorandum of appeal although it does not bear any endorsement from the office of the date on which steps were taken for drawing up filing and obtaining certified copy of the decree or order. In such cases, it will never be possible for a respondent to contend that the appeal is barred by limitation on the basis of the endorsement made because there is no such endorsement. In such cases, it will never be possible for a respondent to contend that the appeal is barred by limitation on the basis of the endorsement made because there is no such endorsement. ( 6 ) TURNING now to the question of practice and procedure regarding such endorsement, we must at once note that there is no material before us to hold that there is such a practice and procedure of making such endorsement at the back of the memorandum of appeal. In the absence of such materials and at any rte of evidence that such practice and procedure is uniformly followed, we cannot hold that the endorsement made by the office is part of the memorandum itself, and that on the basis of the dates set out therein, it is open to be respondent to contend that the appeal is barred by the law of limitation. ( 7 ) IN order to ascertain if any uniform practice is followed in this Court's office as in making of the endorsement at the back of the memorandum of appeal, we sent for some such memorandum filed in the Court and found that excepting an endorsement as to the date of filing of the memorandum of appeal, no other endorsements are made about the dates of filing of the requisition for drawing up of the decree or order, the date of settlement, the date of signing of the same, the date when it is ready for filing, the date when it is filed, the date when stamp is furnished and the date when it is ready for delivery. None of these dates were endorsed on any of the four memoranda which we called for and which were produced before us. We gave an opportunity to the counsel for the parties to inspect these memoranda and make their submission s thereon. The counsel for the petitioner submitted that the endorsements were not made on these memoranda as they were filed in the Court and that such endorsements were made when a memorandum of appeal is filed in office for admission before the Registrar. The counsel for the petitioner submitted that the endorsements were not made on these memoranda as they were filed in the Court and that such endorsements were made when a memorandum of appeal is filed in office for admission before the Registrar. ( 8 ) A memorandum of appeal filed in the Court in which no endorsements are made by this Court's office, of the dates mentioned above, is as much a memorandum of appeal as one filed in this Court's office in which endorsements of the various dates mentioned above are made, and that being so, it cannot be held that there is any uniform practice to make the endorsement on a memorandum of appeal so as to make such practice have the force of a rule. ( 9 ) IN support of the contention that this Court has jurisdiction to reject the memorandum of appeal in exercise of the power under Order 7, Rule 11 of the code, reliance was placed by the counsel for the petitioner on a Bench decision of this Court in (1) Jnanadasundari Shaha v. Madhabchandra Mala, ILR 59 Cal 358. In that case an appeal was preferred against the personal decree in a mortgage suit on a Court-fee of re. 1 only out of Rs. 135 payable. The deficit Court-fee not having been paid within the extended time allowed by the lower Appellate Court the memorandum of appeal was rejected. On the next day, however, on an application for further seven day's time to put in the deficit Court-fees, such time was allowed and the stamp was supplied within the extended time. Thereupon the appeal was registered and notice was issued to the respondent for hearing. The respondent raised an objection that the appeal was barred, but this objection was rejected and against this order of rejection this Court issued a rule at the instance of the respondent and it was contended that all orders made by the lower Appellate Court after rejecting the memorandum of appeal were made without jurisdiction. It was held that the appeal should not have been registered by the lower Appellate Court without deciding the question as to whether the Appellant was entitled to an extension of time under section 5 of the Limitation Act. It was held that the appeal should not have been registered by the lower Appellate Court without deciding the question as to whether the Appellant was entitled to an extension of time under section 5 of the Limitation Act. It is to be noticed, however, that this case came within the terms of clause (v) of Order 7, Rule 11, and not clause (d) of that Rule. Reliance was next placed on a Bench decision of the Bombay High Court in (2) Achut Ram Chandra Pai and Anr. v. Nagappa Bab Balgya and Ors. , ILR 38 Calcutta 41. That was also a case where the memorandum of appeal was insufficiently stamped and the pleader on being questioned said that he had no fund with which to pay the stamp and requested that time should be given for putting in the necessary stamp. The prayer for time was refused by the District Judge and the memorandum of appeal was rejected. The Bombay High Court held that clause (c) of Order 7, Rule 11 of the Code of Civil Procedure applied and that the Court below was wrong in rejecting the memorandum of appeal. This again was a case where the memorandum of appeal was insufficiently stamped. The next case relied upon was a Bench decision of the Patna High Court in (3) Sarjug Prasad Sahu and Ors. v. Surendrapat Tewari and Ors. , AIR 1939 Patna 137 in which it was held that Order 7, Rule 11 of the Code of Civil Procedure applied to appeals and, therefore, when the memorandum of appeal was insufficiently stamped, the Court should afford the appellant an opportunity of making good the deficiency in the Court-fee payable on the memorandum of appeal. ( 10 ) ORDER 7, Rule 11 of the Code of Civil Procedure deals with rejection of plaint, Clause (a) of that Rule deals with a case where the plaint discloses no cause of action. It cannot, therefore, be invoked in the case of an appeal. Clause (b) deals with cases where the relief claimed is under-valued and clause (c) deals with cases where the plaint is insufficiently stamped. Clauses (b) and (c) of the Rule does not apply to the Original Side of this Court. It cannot, therefore, be invoked in the case of an appeal. Clause (b) deals with cases where the relief claimed is under-valued and clause (c) deals with cases where the plaint is insufficiently stamped. Clauses (b) and (c) of the Rule does not apply to the Original Side of this Court. No authority has been cited before us of any Court anywhere in which an appeal was dismissed, and the memorandum of appeal was directed to be taken off the file on an application by a respondent made on the basis of statements made in the memorandum of appeal itself. In none of the decisions discussed above, clause (d) of Order 7, Rule 11 was invoked, nor did the Court consider the question if on the basis of endorsement made on the memorandum of appeal the Appellate Court could reject the appeal on the ground that it was barred by the law of limitation on an application being made by the respondent prior to the hearing of the appeal itself. ( 11 ) THE next contention of the counsel for the petitioner was that the question of limitation should be decided by this Court before the hearing of the appeal itself by reason of the provision in Rule 2 of Order 14 of the Code of Civil Procedure. It was contended that Rule empowered the Court to dispose of issues of law only first if it was of opinion that the case or any part thereof might be disposed of on determination of such issue. It was argued that if it was held at this stage that the appeal was barred by limitation, it would be unnecessary for the Appellate Court to go into the other questions involved in the appeal which would, therefore, stand disposed of on the determination of the question of limitation at this stage, namely, on the petitioner's application for determination of the issue. It was further argued that under Order 14, Rule 2 of the Code the Court had jurisdiction to postpone the settlement of issues of facts until after determination of the issues of law, and therefore the question of limitation could be conveniently disposed of on this application. ( 12 ) IT was next argued that for the purpose of determination of several issues, a case could be split up into different stages for hearing. ( 12 ) IT was next argued that for the purpose of determination of several issues, a case could be split up into different stages for hearing. In support of this contention reliance was placed on a decision of the Supreme Court in (4) Rao Shiba Bahadur Singh v. The State of Vindhya Pradesh and Anr. , (1955) 2 SCR 206 . Reliance was also placed by the counsel for the petitioner on Rule 6 of Chapter 14 of the O. S. Rules of this Court, which provides that where after filing of written statement it appeared to the Court that the only questions were questions not of fact but of law, or that it was desirable that a question of law should be decided before the issues of fact, the Court might appoint a day for settling the issues and postpone the day of hearing for final disposal of the suit. ( 13 ) THIS contention of the counsel for the petitioner, though attractive, cannot in our view be sustained. The decision of the Supreme Court in Rao Shiba Bahadur Singh's case, (1955) 2 SCR 206 is not an authority for the proposition that before an appeal is ready for hearing and before even a paper book has been filed, a respondent to the appeal can on an application claim to have the issue of limitation decided by the Court. In that case the question was whether the Constitution Bench of the Supreme Court could determine constitutional questions leaving the rest of the case to be dealt with by a Division Bench of less than five Judges of that Court, and it was in that connection that it was held that the splitting up of a case into different stages for hearing was not repugnant to the Constitution or the general principles of procedural law. It cannot be overlooked that in that case the appeal itself was ready for hearing and was before the Court for disposal. So far as Order 14, Rule 2 of the Code of Civil Procedure and Rule 6 of the Chapter 16 of the O. S. Rules are concerned, we do not think those Rules are of any assistance to the petitioner, because the Court contemplated by Order 14, Rule 2 is the Court which is dealing with the suit. We are now dealing with the appeal. We are now dealing with the appeal. At the petitioner's instance all further proceedings in the appeal have been stayed even before the filing of the paper book. Rule 6 of the Chapter 14 of the O. S. Rules merely deals with the settlement of issues in certain cases. This Rule, as we read it, does not empower the Court to dispose of the suit on determination of a preliminary issues as to the bar of limitation. ( 14 ) IT was next contended by the counsel for the petitioner that even if clause (d) of Order 7, Rule 11 and also Order 14, Rule 2 of the Code of Civil Procedure did not apply to this case, the inherent powers of his Court could and should be invoked, to hold at this stage, on this application that the appeal was barred by the law of limitation. It was argued that in order to eliminate a protracted trial of the appeal. Involving considerable expense and to save the time of this Court, the inherent powers of this Court should be exercised for deciding at this stage, the question if the appeal is barred by limitation. In support of this contention reliance was placed on a decision of the Judicial Committee in (5) Maulvi Muhammed Abdul Majid v. Muhammed Abdul Aziz and Ors. , 24 IA 22. In that case, a Subordinate Judge had before him a case consisting of two parts, namely, a question of title and an incidental question of account depending on the title. The question of title was taken up first and the judgment was delivered on that question. It was held that it was for the advantage of the parties that the question of title should be decided first and also that the Code of Civil Procedure did not contain any prohibition against the Court's arranging the disposal of a suit to the advantage of the parties. Reliance was next placed on a Bench decision of this Court in (6) 11 Cal LEARNED JUDGE 580 for the proposition that the Code of Civil Procedure was not exhaustive and it was not conceivable that contingencies might arise which were not anticipated by the farmers of the Code and that the Court had inherent powers to regulate its procedure in such manner as to shorten litigation and to do substantial justice to the litigant parties. On this question reliance was also placed on a Bench decision of this Court in (7) Nabin Kali Devi v. Banalata Debi, ILR 32 Calcutta 921. Reliance was next placed an another decision of the Judicial Committee in (8) Pramatha Nath Ray v. Lee, 49 IA 307. In that case a memorandum of appeal was admitted by the Appellate Court without the certified copy of the order, but subject to all objections that might be raised at the hearing of the appeal. At the hearing of the appeal it was held by the Appellate Court that the appeal was out of time. It was held that under section 12 (2) of the Limitation Act, no period could be regarded as requisite which need not have elapsed if the appellant had taken reasonable and proper steps to obtain a copy of the decree or the order, and that the High Court was right in holding that the appeal was barred by limitation. It is to be noticed that the decision on the question of limitation was given by the High Court at the hearing of the appeal itself and not on an application as in the instant case now before us. Reliance was next placed on a Bench decision of this Court in (9) Nabin Kishore Singh v. Ram Golam Sahu, ILR 40 Calcutta 955 in which it was held that the High Court was competent to make an order for stay of proceedings in execution of its decrees in view of an application by the judgment-debtor to the Judicial Committee for special leave to appeal, although there was no provision in the Code for that purpose. Reliance was next placed on the dissenting views of Mahmood, J. in the Full Bench decision of the Allahabad High Court in (10) Norasingh Das v. Mangal Dubey, 5 ILR (All) 163 to the effect that in construing the provisions of the Code, the Courts were not to act upon the principles that every procedure was taken to be prohibited unless it was expressly provided for by the Code but on the converse principle that every procedure was to be understood as permissible till it was shown to be prohibited by law. Reliance was next placed on a decision of the Allahabad High Court in (11) Lala Dhanpat Rai v. Sri Prem Sundar Bhargava and Ors. Reliance was next placed on a decision of the Allahabad High Court in (11) Lala Dhanpat Rai v. Sri Prem Sundar Bhargava and Ors. , AIR 1962 All 572 in which it was held that when a preliminary point was raised which affected the very entertainment or maintainability of a suit, it was not always proper to pass an order on the preliminary point at the time of final hearing of the suit. All that this case lays down is that the preliminary point should be heard and decided at a stage earlier than the final hearing of the suit. The next case relied upon by counsel for the petitioner was a Bench decision of the Punjab High Court in (12) AIR 1958 Punj n409. In that case the question was whether under Order 14, Rule 2 of the Code of Civil Procedure an Election Tribunal was justified in declining to determine certain preliminary questions of law which, if decided in favour of the objecting party would dispense with any further trial or at any rate the trial of some substantial questions in the case. It was held that the word 'shall' in that Rule indicated that the provisions in that Rule were imperative and mandatory in nature and not merely directory and that the Court must in such cases proceed to determine the issues of law first. This case is not an authority for the proposition that the Court should decide an issue of law on an application by a party although the suit or appeal is not ready for hearing. ( 15 ) IN determining the question if the Court has inherent powers in a particular matter, and the question if such powers are to be exercised and if so when, it must first be ascertained if there is any rule or statutory provision which governs and controls the Court's power on the same subject. If there is a rule or a statutory provision, on a question on which inherent powers of the Court are sought to be invoked, the Court in our view should unhesitatingly refuse to take recourse to its inherent power. In this case we find that the rules in Chapter 31 of the O. S. Rules deal with the questions sought to be raised by the petitioner. In this case we find that the rules in Chapter 31 of the O. S. Rules deal with the questions sought to be raised by the petitioner. Chapter 31, Rule 3 provides that the Registrar shall accept and file a memorandum of appeal if it appears to have been presented within time and that such acceptance and filing shall not be a bar to any objection that may be taken in respect of any such matters at the hearing of the appeal. It is thus clear that the decision of the Registrar on the question of limitation can be challenged by a party, aggrieved by such decision, at the hearing of the appeal itself. Rules 4 and 5 of the Chapter 31 are also relevant on this question. Rule 4, provides that when a memorandum of appeal is not accepted by the Registrar, the date of presentation is to be endorsed on the memorandum which is to be returned to the party or its Attorney by whom it is tendered, and such memorandum may then be presented to the Appellate Court for admission. Rule 5 provides that the application for admission of a memorandum, rejected by the Registrar, may be heard by the Appellate Court with or without notice to the respondent, and where it is admitted without notice to the respondent such admission shall not be a bar to any objection that may be taken at the hearing of the appeal in respect of its admissibility. These rules make it amply clear that where a question is involved, with regard to the admissibility of a memorandum of appeal, such questions are to be agitated at the hearing of the appeal itself except in the case where the appeal is admitted by the Appellate Court upon notice to the respondent. The decision of the Registrar in this case under Rule 3 is a decision according to the Rules of this Court, and those Rules provide the manner in which the decision of the Registrar can be challenged. It is not that a party who has been aggrieved by a decision of the Registrar to admit the appeal is without a remedy so as to enable him to invoke inherent powers of this Court to prevent a miscarriage of justice. It is not that a party who has been aggrieved by a decision of the Registrar to admit the appeal is without a remedy so as to enable him to invoke inherent powers of this Court to prevent a miscarriage of justice. The Rules provide a remedy and in such a case, in our view, there is no scope for exercise of inherent powers of the Court to deal with the decision of the Registrar to admit the appeal. It is to be remembered that under the O. S. Rules whenever it is intended that a decision of the Registrar is to be reviewed or deal with in appeal by the Court, specific provision to that effect has been made in the Rules. For instance, when the Registrar acts as a Taxing Officer in taxation of bills of costs, provision has been made for a review of his order by Rule 72 of Chapter 32 of the Rules. Similarly, Chapter 6, Rule 15 enables any party affected by an order of the Registrar or Master to appeal to a Judge. There is similar provision in Chapter 16, Rule 32 of the Rules. There is no such provision for review of the Registrar's order or an appeal against the same with regard to the decision of the Registrar for acceptance and filing of a memorandum of appeal under Chapter 31, Rule 3. From an analysis of Rules 2, 3 and 4 of Chapter 31, and also other provisions in the Rules enabling an aggrieved party to apply for a review or revision of the Registrar's orders, there can be no doubt that the Rules do not confer upon a party aggrieved by the Registrar's decision under Chapter 31, Rule 3, to challenge such a decision either by way of an application for review of the same or by an appeal against it. The decision of the Registrar admitting the appeal seems to us to be final until the appeal comes up for hearing when the Registrar's decision can be challenged before the Appellate Court. The petitioner in this case, in our view, has no right to challenge the decision of the Registrar at this stage by an application for a review or revision of the decision of the Registrar. The petitioner in this case, in our view, has no right to challenge the decision of the Registrar at this stage by an application for a review or revision of the decision of the Registrar. The Rules do not confer upon him the right to challenge that decision in the manner in which he has sought to do so, and in our opinion the petitioner cannot be permitted to do indirectly what he is prevented from doing directly. ( 16 ) MR. B. Das, the counsel for the appellant, relying upon Rules 2, 3 and 4 of Chapter 31 contended, and we think rightly, that this application is not maintainable. He argued that after admission of the memorandum of appeal by the Registrar his client had a right to the appeal being heard, although the question of limitation could be raised at the hearing of the appeal itself as a preliminary issue. It seems to us that this contention of the counsel for the respondent in this application is well-founded. There can be no doubt that the petitioner in this case, who is the respondent No. 1 in the appeal, can claim to have a preliminary issue on the question of limitation heard by the Appellate Court which deals with the appeal. . We think that Mr. Das is right in contending that the petitioner is not entitled at this stage to contend that the Registrar was wrong in admitting the appeal which should, therefore, be dismissed and the memorandum of appeal taken officer the file. ( 17 ) IN support of the contention that the appeal cannot be disposed of at this stage on the preliminary issue as to the bar of limitation. Mr. Das relied upon by him was (13) Tara Kant Banerjee v. Puddomoney Dassee and Ors. , 10 MIA 476. In that case it was held that in appealable cases the Court should not forbear from deciding on all the issues joined, because if a decision was not given on all such issues the case might have to be remanded which might otherwise had been finally decided in an appeal. It was further held that in appealable cases the Court should as far as practicable pronounce an opinion on all the important points. It was further held that in appealable cases the Court should as far as practicable pronounce an opinion on all the important points. The same view was reiterated by the Judicial Committee in (14) Mohamed Solaiman v. Birendra Chandra Singh, 50 IA 247 and again in (15) Jagannath Rao Dani v. Ram Bharosa and Anr. , 60 IA 49. The views of the Judicial Committee pronounced and reaffirmed in the three decisions mentioned above were accepted and reiterated by the Federal Court in (16) K. V. R. Naynar v. K. V. Madhubi Amma and Ors. , AIR 1950 FC 140. ( 18 ) MR. A. P. Chowdhury, counsel for the respondent No. 3, adopted the argument of Mr. Das and contended that the appeal should not be heard piecemeal. He argued that Order 14, Rule 2 of the Code could not be invoked as the petitioner had made this application long before the appeal was ready for hearing. In support of this contention he relied on a Bench decision of this Court in (17) Rai Yatindra Nath Chaudhury v. Hari Charan Chaudhury, 20 Cal LJ 426. It seems to us that this contention is well-founded. ( 19 ) RELYING upon the decisions of the Judicial Committee and the Federal Court mentioned above, Mr. Das argued that the appeal could not be disposed of at this stage by determination of the preliminary questions arising out of the bar of limitation without determination of the other issues involved in the appeal. It seems to us that Mr. Das is right in his contention that at this stage, at any rate, the appeal cannot be dismissed on the ground that it is barred by the law of limitation, assuming that the respondent's contentions on the question of limitation are sound. We must make it clear, however, that it is always open to the Appellate Court to try any issue in the appeal as a preliminary issue and then proceed to deal with the appeal in such manner as the Appellate Court thinks fit and proper. But such a course can be adopted at the hearing of the appeal itself and not at this stage. But such a course can be adopted at the hearing of the appeal itself and not at this stage. The provision in the Rules in Chapter 31 of the O. S. Rules do not confer upon the petitioner the right to challenge the decision of the Registrar by an application for an order that the memorandum should be taken officer the file and the appeal be dismissed. ( 20 ) IN support of the contention that substantive rights of the parties cannot be defeated by an order made in exercise of the inherent powers of the Court, reliance was placed by Mr. Das on a decision of the Supreme Court in (18) Padam Sen and Anr. v. The State of Uttar Pradesh, AIR 1961 SC 218 . Whereas in this case the Rules of the Court allow and permit the Registrar to admit a memorandum of appeal, and it is provided that questions of limitation can be agitated at the hearing of the appeal itself, the appellant has a right to the hearing of the appeal itself and the petitioner's contention that the Registrar's order admitting the appeal should be set aside and quashed and the memorandum of appeal taken officer the file, in exercise of the inherent powers of the Court, cannot in our view be upheld. ( 21 ) THE counsel for the petitioner next contended on the merits that the appeal was barred by limitation and in support of this contention he relied on the dates endorsed at the back of the memorandum of appeal and also as set out under para 15 of the petition. He argued that it would be clear from the dates endorsed by this Court's office that the appeal was barred by the law of limitation. In support of this contention reliance was placed by counsel for the petitioner on several decisions of the Supreme Court and also of the various High Courts. Since we are of the view that this application is not maintainable and that no order can be made on the prayers of the petitioner at this stage, and also that the question of limitation raised by the petitioner in this application ought to be raised and canvassed at the hearing of the appeal itself, we refrain from expressing any views in this application on the question of the bar of limitation raised by the counsel for the petitioner. The decisions on which reliance was placed by the counsel for the petitioner in support of his contention that the appeal was barred by limitation in (19) J. N. Surety v. T. S. Chettiyar, 55 IA 161, (20) Pramathanath Roy v. Hon. William Arthur Lee, LORDSHIP 49 IA 307, (21) Kamaruddin Hyder v. M. N. Mitter, AIR 1925 Cal 375, Jannadasundari Shaha v. Madhabchandra Mala (supra), Sarjug Prasad Sahu v. Surendrapat Tewari (Supra) and cases (22) reported in 38 ILR (Bom) 41 and (23) AIR 1956 Bom 86 and two unreported Bench decisions of this Court, namely, Suit No. 4461 of 1952, (24) Jawala Prosad Khemka v. Ram Chandra Bhotica (Unreported) and in Appeal No. 96 of 1963. In the matter of Jagannath Gupta and Co. (P) Ltd. , between (25) Mool Chand Gupta v. Jagannath Gupta and Co. (P) Ltd. (Unreported ). Mr. B. Das on the other hand, contended that the appeal was not barred by limitation, and in support of this contention reliance was placed by him on the decision in (26) Jagat Dhish Bhargava v. Jawahar Lal Bhargava, AIR 1961 SC 832 and (27) State of U. P. v. Maharaja Narain, AIR 1968 SC 960 and the case reported in (28) 13 ILR (Cal) 104 and also on the two unreported decisions of this Court in Jawala Prosad Khemka v. Ram Chandra Bhotia (Supra), and Mool Chand Gupta's case (Supra ). ( 22 ) IN the view we take of this application, it is not necessary for us to deal with the decisions mentioned above at this stage. We should not be understood however to say that the decisions mentioned above do not support the contentions of the parties on the plea of limitation. The petitioner will be at liberty to urge the grounds he has urged in this application in support of the contention that the appeal is barred by limitation as also such other grounds as may be available to him in law at the hearing of the appeal. The respondent will also be entitled to contend to the contrary. All that we hold in this application is that in the fact of this case the petitioner is not entitled to an order at this stage that the memorandum of appeal be rejected or taken officer the file and the appeal be dismissed. The respondent will also be entitled to contend to the contrary. All that we hold in this application is that in the fact of this case the petitioner is not entitled to an order at this stage that the memorandum of appeal be rejected or taken officer the file and the appeal be dismissed. For the reasons mentioned above the application fails and is dismissed with costs. The ad interim order is vacated. Mukherjea, J. : I agree. Application dismissed.