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

2. The suit was instituted on April 29, 1952, by the appellant corporation against Kalosashi Banerji, father of the respondents, to recover a sum of money due on a mortgage by deposit of title-deeds. The defendant contested the suit. Ultimately, a preliminary decree in the suit was passed ex parte on February 8, 1955. On an application presented on June 11, 1955, final decree was passed on June 23, 1955.3. The first application for execution of the decree presented on August 30, 1955, was dismissed for default on October 4, 1955, on account of the decree-holder not taking any steps as a result of the report of the process server dated September 14, 1955, stating that the defendant Kalosashi Banerji had died.4. The second application for execution of the decree against the defendants legal representatives was presented on September 20, 1956. On January 30, 1957, the respondents filed an objection under S. 47 of the Code and on March 1, 1957, they disclosed the date of death of Kalosashi to be July 20, 1954, by producing a certified copy of the death register showing the date.5. Thereafter, the appellant filed the application for substitution, on setting aside the abatement. The respondents opposed this application and the learned Subordinate Judge, however, held that the appellant had established that it was prevented by sufficient cause from continuing the suit and, allowing the application, set aside the abatement of the suit. The respondents then went up in revision to the High Court. The High Court disagreed with the Subordinate Judge and held that the appellant had entirely failed to make out any good cause for the delay in applying for the setting aside of the abatement and for applying for substitution much later than the period allowed by law.6. Kalosashi, the defendant, died on July 28, 1954. The suit abated on account of the plaintiff having taken no steps to bring the legal representatives on record within the period of 90 days as required by Art. 176 of I Schedule to the Limitation Act. The appellant could have applied for the setting aside of the abatement within the next 60 days in view of Art. 171. Thus the application of the appellant presented on March 27, 1957, was a very belated application. The appellant therefore had to satisfy the Court in two respects. Firstly it had to satisfy the Court, in order to obtain advantage of the provisions of S. 5 of the Limitation Act which applies to applications under R. 9 (2) of O. XXII in view of sub-r. (3) of R. 9 of that Order, that it had sufficient cause for not making the application within the period of limitation prescribed for an application to set aside the abatement of the suit and, secondly, it had to establish that it was prevented by any sufficient cause from continuing the suit by making an application under R. 4 of O. XXII for the legal representatives of the deceased defendant to be made parties to the suit within the prescribed period of limitation. To satisfy the Court in these respects, the appellant had to show when it learnt that the defendant had died prior to the passing of the decree, that it was necessary to implead legal representatives of the deceased in the suit and that the delay in knowing of this fact and in its applying for the setting aside of the abatement of the suit was not due to laches on its part. On these two questions of fact the findings of the trial Court were in its

Reasoning: 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.