Case: Manindra Land And Buildingcorporation Ltd Vs. Bhutnath Banerjee And Others

them as the Act did not apply to commercial loans and as the Court had no jurisdiction to give the necessary relief. The trial Court held that the loan in that suit was a commercial loan and therefore did not come within the terms of the Act. The High Court disagreed with that view and held that the loan was not a commercial loan. The High Court had therefore set aside the order of the Subordinate Judge in the exercise of its revisional jurisdiction. The Judicial Committee considered whether the High Court was right in doing so and said at p. 142 (of Ind App): (at p. 242 of AIR) :"In so doing, on the assumption that his decision that the loan was a commercial loan was erroneous, he refused to exercise a jurisdiction vested in him by law, and it was open to the High Court to act in revision under sub-section (b) of S. 115.and then followed the observations already quoted above. It is clear that on the decision of the question the Subordinate Court had to determine in that case depended its very jurisdiction to take action under that particular Act. It had the jurisdiction to decide the question, but it could not give jurisdiction to itself or give up the exercise of its jurisdiction in the matter on the basis of its finding if that be erroneous. Neither the facts of that case are comparable to the facts of the present case nor the observations relied on by the learned counsel for the respondents can be applicable to this case, as here the Subordinate Judge had jurisdiction to decide both the questions of fact viz., whether the appellant had sufficient cause for not making an application for setting aside the abatement of the suit within the period prescribed and therefore had sufficient cause for the Courts exercising its discretion in extending the period of limitation in view of the provisions of S. 5 of the Limitation Act and also the fact whether the appellant was prevented from sufficient cause from not making an application for the substitution of the legal representatives within the prescribed period of limitation and thus continuing with the suit. The Court had the jurisdiction to decide both the questions of fact and also to proceed with the suit as a result of its decision.13. We may refer to two cases relied on for the respondents. In Dwarka v. Union of India, ILR 33 Pat 176: (AIR 1954 Pat 384 ) an application for setting aside an ex parte decree dated November 30, 1951was made on January 25, 1952. Though made after the expiry of the period of limitation, it was held to be within time on the view that the Court, though open on January 2, 1952 must be treated as closed as no substantive work was transacted on that day. The High Court held that the trial Court was wrong in its view about the Court being taken as closed on January 2 and therefore the High Court interfered in revision. The trial Court mis-applied the provisions of S. 4 of the Limitation Act which allows the making of an application on the day on which the court reopens after the day on which the period of limitation prescribed for making the application expires and on which day the Court happens to be closed. The trial Court had gone absolutely against the provisions of this section in ignoring the fact that the Court reopened on January 2 and not on January 25, 1952. The High Court, in coming to its conclusion, relied on the provisions of S. 3 of the Limitation Act. Section 5 of the Limitation Act is not applicable to applications for setting aside ex parte decrees under O. IX, R. 13 of the Code. This case does not decide that the finding about the Court being satisfied about the existence of sufficient cause was such a finding as involved jurisdiction and therefore could be interfered with by the High Court.14. In the case reported as Basantilata v. Amar Nath, AIR 1950 Cal 411 the High Court interfered as the trial Court had misconstrued and mis-applied the provisions of Ss. 10 and 11 of the Indian Soldiers (Litigation) Act, 1925 (Act IV of 1925). The suit was dismissed on December 14, 1942. An application for the setting aside of the order of dismissal was made on July 15, 1947. The plaintiff, who was a soldier, served under war conditions from May 23, 1942 to November 25, 1946 when he was discharged. Thus the total period the plaintiff served under war conditions was 4 years 6 months and 3 days, The question was whether this entire period had to be excluded in computing the period of limitation for making the application for setting aside the dismissal of the suit. The Subordinate Judge excluded it and the High Court considered it unjustifiable to exclude the period prior to December 14, 1942, the date of the decree, as that period could not have in any way prevented the plaintiffs in making the application for the setting aside of the dismissal order. Here again, the error committed by the trial Court was not in coming to a finding of fact in connection with the provisions of S. 5 of the Limitation Act which applied to such applications, but on the Courts deciding the question of limitation in connection with which sub-s. (2) of S. 10 followed practically the language of S. 3 of the Limitation Act as it said that no such application would be entertained unless it was made within a certain time.15. We are therefore of opinion that the High Court fell in error in interfering with the finding of fact arrived at by the Subordinate Judge with respect to the appellants having sufficient cause for not making an application for bringing the respondents on record within time and for not applying for the setting aside of the abatements within time.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]13. We may refer to two cases relied on for the respondents. In Dwarka v. Union of India, ILR 33 Pat 176: (AIR 1954 Pat 384  ) an application for setting aside an ex parte decree dated November 30, 1951was made on January 25, 1952. Though made after the expiry of the period of limitation, it was held to be within time on the view that the Court, though open on January 2, 1952 must be treated as closed as no substantive work was transacted on that day. The High Court held that the trial Court was wrong in its view about the Court being taken as closed on January 2 and therefore the High Court interfered in revision. The trial Court mis-applied the provisions of S. 4 of the Limitation Act which allows the making of an application on the day on which the court reopens after the day on which the period of limitation prescribed for making the application expires and on which day the Court happens to be closed. The trial Court had gone absolutely against the provisions of this section in ignoring the fact that the Court reopened on January 2 and not on January 25, 1952. The High Court, in coming to its conclusion, relied on the provisions of S. 3 of the Limitation Act. Section 5 of the Limitation Act is not applicable to applications for setting aside ex parte decrees under O. IX, R. 13 of the Code. This case does not decide that the finding about the Court being satisfied about the existence of sufficient cause was such a finding as involved jurisdiction and therefore could be interfered with by the High Court.14. In the case reported as Basantilata v. Amar Nath, AIR 1950 Cal 411   the High Court interfered as the trial Court had misconstrued and mis-applied the provisions of Ss. 10 and 11 of the Indian Soldiers (Litigation) Act, 1925 (Act IV of 1925). The suit was dismissed on December 14, 1942. An application for the setting aside of the order of dismissal was made on July 15, 1947. The plaintiff, who was a soldier, served under war conditions from May 23, 1942 to November 25, 1946 when he was discharged. Thus the total period the plaintiff served under war conditions was 4 years 6 months and 3 days, The question was whether this entire period had to be excluded in computing the period of limitation for making the application for setting aside the dismissal of the suit. The Subordinate Judge excluded it and the High Court considered it unjustifiable to exclude the period prior to December 14, 1942, the date of the decree, as that period could not have in any way prevented the plaintiffs in making the application for the setting aside of the dismissal order. Here again, the error committed by the trial Court was not in coming to a finding of fact in connection with the provisions of S. 5 of the Limitation Act which applied to such applications, but on the Courts deciding the question of limitation in connection with which sub-s. (2) of S. 10 followed practically the language of S. 3 of the Limitation Act as it said that no such application would be entertained unless it was made within a certain time.15. We are therefore of opinion that the High Court fell in error in interfering with the finding of fact arrived at by the Subordinate Judge with respect to the appellants having sufficient cause for not making an application for bringing the respondents on record within time and for not applying for the setting aside of the abatements within time. We allow the appeal with costs throughout, set aside the order of the Court below and restore that of the trial Court. It will now proceed according to law with the further execution of the decree on the second application presented by the appellant for the purpose.