Chekuri Ramachandra Raju v. Pathapati Satyanarayana Raju .

1. The petitioner, Chekuri Ramachandra Raju, has filed this petition praying for excusing the delay in preferring a Second Appeal. He presented that Second Appeal on 13th April, 1962 with a delay of 577 days. The sole respondent, Pathapati Satyanarayana Raju, has contested this petition and filed a counteraffidavit. The petitioner has filed a reply affidavit in addition to his original affidavit.

2. The relevant facts were as follows:— The respondent (hereinafter referred to as the plaintiff) filed O.S No. 58 of 1957 in the Court of the District Munsif, Bhimavaram, on a promissory note said to have been executed by the petitioner (hereinafter referred to as the defendant). After contest by the defendant, the learned District Munsif dismissed the suit with costs. The plaintiff filed A.S No. 94 of 1958 in the Court of the Subordinate Judge, Narasapur. When that appeal came up for hearing on 16th March, 1960, the defendant's Advocate reported ‘no instructions’. The learned Subordinate Judge heard arguments in the appeal ex parte and passed judgment on 21st March, 1960, allowing the appeal. The defendant filed I.A No. 282 of 1960 in A.S No. 94 of 1958 on 4th April, 1960 under Order 41, rule 21, Civil Procedure Code, praying for re-hearing of the appeal, urging certain grounds. The learned Subordinate Judge dismissed that application on 13th February, 1961. The defendant filed C.M.A No. 122 of 1961 in this Court. On 30th January, 1962, this Court dismissed C.M.A No. 122 of 1961. Subsequently, the defendant presented the Second Appeal on 13th April, 1962.

3. In his original affidavit, the defendant has stated as follows:—

“I submit that there is a delay in filing the above appeal as I am prosecuting the other alternative remedy by way of filing an application under Order 41, rule 21, Civil Procedure Code, for re-hearing the appeal. As the C.M.A No. 122 of 1961 was disimssed by this Honourable Court I was obliged to file the above Second Appeal and hence the delay in preferring the appeal. I submit that lam bona fide prosecuting the other alternative remedy open to me and there are no laches or negligence on my part in conducting the same. If the time taken for prosecuting the other alternative remedy is deducted for computing the period of limitation in preferring the appeal I submit that it is within the prescribed time.”

4. In his counter-affidavit, the plaintiff has stated as follows:—

“The respondent submits that in the same way even when the High Court was pleased to dismiss the Civil Miscellaneous Appeal on 30th January, 1962, the petitioner was never ready to file the appeal in question immediately”.

5. In his reply affidavit, the defendant has stated as follows:—

“I could not file the present appeal immediately after the disposal of the appeal (C.M.A No. 122 of 1961) by this Honourable Court as sometime elapsed for obtaining the legal opinion, for raising the necessary funds and for obtaining copies of the judgment and decree.”

6. In view of these contentions, the period of delay can be conveniently divided into two periods:

1. Period upto 30th January, 1962 when C.M.A No. 122 of 1961 was disposed of by this Court. This is the time taken by the proceedings relating to the petitioner's asking for re-hearing of the appeal (A.S No. 94 of 1958).

2. Period from 31st January, 1962 to 13th April, 1962, i.e, the delay committed after C.M.A No. 122 of 1961 had been disposed of by this Court.

7. It is beyond doubt or dispute that the defendant could have filed the Second Appeal straightaway against the judgment, dated 21st March, 1960 in A.S No. 94 of 1958 within appeal time if he had chosen to do so. But, the case of the defendant is that, he was bona fide prosecuting the other alternative remedy open to him and that there are no laches or negligence on his part in conducting the same. On the contrary, the case of the plaintiff is that, the remedies said to be open to the defendant are concurrent but not mutually exclusive, that nothing prevented the defendant in prosecuting both the remedies to establish his bona fides, that there is nothing to show that he is ill-advised or misled and that, as such, there are absolutely no bona fides in this petition.

8. On the pleas raised in the affidavits of both sides, the following points arise: (1) Is the delay concerned in Period 1 to be excused? (2) Is the delay concerned in Period 2 to be excused?

9. Period 2 relates to the delay committed after the disposal of the C.M.A No. 122 of 1961 by this Court and the date of the presentation of the Second Appeal, that is, from 31st January, 1962 to 13th April, 1962. Reliance is placed on the decision of the Lahore High Court in Ghulam Qazam Khan v. Qutbuddin . A.I.R 1930 Lah. 113. in this behalf. In that case, the facts were as follows: On an application filed by the judgment-debtor, an ex-parte order was passed on 26th July, 1927 under Order 21, rule 2, Civil Procedure Code, without notice to the decree-holder, allowing an adjustment. Later on the decree-holher filed an application for setting aside the ex parte order. The Court rejected the application by its order, dated 14th October, 1927. Subsequently, the appellant presented an appeal on 3rd January, 1928, along with an application for extension of time on the ground that he had been prosecuting bona fide his application for restoration of his case and that the period occupied by those proceedings should be deducted. It was urged before the learned Judge that there was no justification for not filing the appeal immediately after the application for restoration was dismissed on 14th October, 1927 and for excusing the delay from then onwards upto 3rd January, 1928. But, the learned Judge, relying on the decision in Brij Inder Singh v. Khanshi Ram . 1918 I.L.R 45 Cal 94 observed as follows at page 114:

“In Brij Inder Singh v. Khanshi Ram, also it appears that there was some delay of the same description……. and yet the whole period, which was spent in prosecuting the application for review was allowed to be deducted. It is not disputed that, in the present instance, if the whole period spent in prosecuting the application in the Court below is deducted, the appeal is within time.”

10. In effect, the learned Judge held in that case that there was no need to excuse the delay from 14th October, 1927 to 3rd January, 1928 and that the appeal would have been in time, whether the delay during that period was excused or not, if the whole period spent in prosecuting the application in the Court below was deducted. The learned Judge has mentioned that ‘the learned counsel for him (appellant) has explained that he had to obtain copies and take legal advice before filing an appeal in this Court’. In the present case, substantially the same ground has been urged by the petitioner-defendant in his reply affidavit. So, there is no need to excuse the delay concerned in Period 2 as the Second Appeal would be in time if the delay in Period 1 is excused. Hence the crucial question is whether the delay in Period 1 can be excused and should be excused.

11. The learned Advocate for the plaintiff, Shri S.C Venkatapathi Raju contends that the defendant ought to have filed Second Appeal promptly within the period of limitation irrespective of his filing I.A No. 282 of 1960 on 4th April, 1960 and that the pendency of the proceedings in the I.A and the C.M.A did not stand in the way of the defendant filing the Second Appeal and that, therefore, his waiting till C.M.A No. 122 of 1961 was dismissed was not bona fide.

12. In Brij Inder Singh v. Kkanshi Ram a question was formulated by their Lordships of the Privy Council as follows (at page 102):

“The sole question directly raised is whether the time which was spent in getting the District Judge Prenter's judgment, which was afterwards decided to be wrong and in getting it set aside, falls to be deducted in calculating the time during which appeal was possible. This depends upon section 5 of the Limitation Act.”

13. In that case, the relevant facts were as follows: An application was made before the District Judge for order of abatement of a suit on the ground that in none of the three specified cases had representatives of deceased parties been put on the record within time in a pending suit. The District Judge (Captain Sanford) passed an order summarily ordering abatement of the suit without notice to the plaintiff. Subsequently, on a review petition filed by the plaintiff, that is, Chief of Faridkot, the new District Judge (Prenter), who had succeeded Captain Sanford, passed an order, dated 8th April, 1908 setting aside the order of abatement so far as it depended on the death of one person, namely, the original plaintiff, and passed another order, dated 24th April, 1908 setting aside the abatement in so far as it depended on the death of the other two persons, namely, one defendant Jotimal and another defendant that is judgment-debtor G.H Coates. The orders were taken up on revision to the Chief Court. Johnstone, J., who was the Chief Judge, set aside the order, dated 24th April, 1908 passed by the District Judge Prenter and restored the ex parte order which had been passed by the District Judge, Captain Sanford. Johnstone, J. decided like that as, in his opinion, the order, dated 24th April, 1908 of District Judge Prenter was ultra vires and the proper course was to file an appeal against the original order of the District Judge (Captain Sanford) to the Chief Court. Johnstone, J. passed his judgment on 6th April, 1909. Accepting that judgment, the plaintiff filed an appeal on 21st April, 1909. Their Lordships of the Privy Council observed with reference to the actual dates and time elapsed that the period between 6th April, 1909 and 21st April, 1909 was immaterial as much more time was available to file the appeal within time if the period spent in review was excluded. Their Lordships considered the decision of the Full Bench of the Allahabad High Court in Karm Baksh v. Daulat Ram and extracted from it portions as follows:—

“We think, the true guide for a Court in the exercise of this discretion is whether the appellant has acted with reasonable diligence in prosecuting his appeal and we think further that he ought ordinarily to be deemed to have acted with ordinary diligence, when the whole period between the date of the decree appealed against and the date of presenting the appeal does not, after excluding the time spent in prosecuting with due diligence a proper application for review of judgment, exceed the period prescribed bylaw for presenting the appeal……. We also agree with the High Court of Allahabad in the case of Balwant Singh v. Gumani Ram . 1883 I.L.R 5 All. 591., that the circumstances contemplated in section 14 of the Limitation Act should ordinarily constitute a sufficient cause within the meaning of section 5.”

14. Their Lordships of the Privy Council accepted and approved of (without interference) the above principle as a general rule laid down by the Full Benches in all the High Courts of India and then proceeded to deal with the further question which they formulated as follows (at page 107):

“Here……the general rule applies, and it only remains to see whether the proceedings in review were reasonably prosecuted and in good faith. That they were so their Lordships have no doubt.”

15. Their Lordships held that the time taken up by review could be excluded under section 5 of the Limitation Act though it was possible for the plaintiff in that case to file an appeal at the time when he filed the application for review. Therefore, the contention of the plaintiff in the present case that the delay cannot be excused because the remedies of seeking to set aside the ex parte judgment and of filing Second Appeal were concurrent and riot mutually exclusive and that nothing prevented the defendant from prosecuting both the remedies is not tenable.

16. In Peer Ammal v. N.S. Nallusami Pillai the facts were as follows: On 8th August, 1928, an ex parte preliminary mortgage decree was passed by the Sub-Judge, Madurai, in a suit. Ongth August, 1928, the appellants (defendants 1 and 4) filed an application under Order 9, rule 13, Civil Procedure Code, to set aside the ex parte decree. On 12th October, 1928, the learned Subordinate Judge passed order setting aside the ex parte decree. The plaintiff filed C.R.P No. 116 of 1929 against that order of the Subordinate Judge. The High Court passed an order on 22nd November, 1929 allowing the C.R.P and restoring the original preliminary decree. On 6th January, 1930, the appellants (defendants 1 & 4) filed an appeal in the High Court of Madras. The question arose before a Division Bench as to whether the appeal was presented in time. This depended on the question as to whether the date of decree for purpose of appeal was 8th August, 1928, the date on which the Subordinate Judge had originally passed an ex parte preliminary decree, or 22nd November, 1929, the date on which the High Court restored the original preliminary decree. It will be observed that, from 8th August, 1928 upto 12th October, 1928, which I shall refer to hereafter as period (a), there was a preliminary mortgage decree (which could have been appealed against) in force, not having been set aside till then, and that from 12th October, 1928 upto 22nd November, 1929, which I shall call hereafter as period (b), there was no preliminary mortgage decree (against which an appeal could be filed) in existence as things stood during that period. The learned Judges dealt with two contentions which are relevant for the purposes of this case. They are as follows:

1. That the date of the decree was 8th August, 1928, the date when it was originally passed and the subsequent vicissitudes had no effect on the period of appealability and that the only course open to the appellants was to induce the Court to excuse the delay under section 5 of the Limitation Act.

2. That, in any case, the appellants could have and ought to have filed the appeal before decree was set aside by the learned Subordinate Judge, i.e, during period (a).

17. The first contention itself assumed and conceded that, it was open to the appellants to induce the Court to excuse the delay under section 5 of the Limitation Act. No application under section 5 had in fact been filed. The learned Judges did not go into the question as to whether the delay of entire period (a) plus (b) could be excused under section 5 as it was not a contested question for decision before them. In this case, there is an application for excusing delay under section 5 and that application is being decided by this order. The learned Judges observed as follows (at page 150):

“It is not only in consonance with the principle underlying the law oflimitation that suits, appeals and other legal proceedings are possible only when there is some cause of action, or ground of appeal or other grievance on which the plaintiff, appellant or applicant has a right to come to Court and ask dor relief, but the opposite view would lead to the absurd result that an appell ant's right to appeal and ithe decrce-holder's right to executc the decree are both barred before the decree to be appealed from or ito be executed came into legal being.”

18. The learned Judges obviously referred to the fact that during period (b) there was no decree in existence against which defendants x and 4, who were the appellants, could file an appeal.

19. As regards contention No. 2, which related to period (a), the learned Judges observed as follows (at page 152):

“……Assuming he had done so (i.e, filed appeal during period (a), as soon as the decree was set aside under Order 9, rule 13, the appeal would become infructuous and would necessarily have to be dropped and the position after the decree was restored in revision by the High Court would be the same as if he had not appealed at all. It is not to be supposed that the appeal should be kept pending, in contemplation of the double uncertainty that the plaintiff might take the order setting aside the decree to the High Court in revision and that this Court might interfere in revision.”

20. In that case, the period from the preliminary ex parte decree upto the date when the High Court passed final order in the C.R.P, came under the categories (a) and (b) as the Subordinate Judge allowed the I.A and set aside the ex parte decree. But, in this case, the petition to set aside the ex parte decree was dismissed by the Subordinate Judge. All the same, the proceedings were continued by the defendant himself going to the High Court with a C.M.A against the order of the Subordinate Judge. The result was that, during the period from the date of ex parte decree, namely, 21st March, 1960 upto the High Court passing final judgment in C.M.A namely, 30th January, 1962, the decree by the Subordinate Judge against which Second Appeal could be filed was throughout in force without there being any interval during which the decree was not in force. So, this entire period, in the instant case, comes under category (b). When the I.A for setting aside the ex parte decree was pending, there was room, scope and possibility for a lawful order being passed (that is, in law apart from the question of merits) setting aside the original ex parte decree and, therefore, for a period of category (b) coming into existence. Then, after the learned Subordinate Judge dismissed the I.A on 13th February, 1961 and upto 30th January, 1962, there was similarly room, scope and possibility in law, apart from merits, for the High Court setting aside the order of dismissal of the I.A and in effect setting aside the ex parte decree, dated 21st March, 1960. Therefore, if the appeal against the original decree had been filed during the period 21st March, 1960 to 13th February, 1961, there was the possibility in law of the appeal becoming infructuous and having to be dropped on that ground. The same possibility in law existed even if the appeal were filed between the dates 13th February, 1961 and 30th January, 1962. The real reason why the learned Judges rejected contention No. 2 in the Madras case was the possibility of the decree being set aside, which possibility fructified in fact on 12th October, 1928 by the order of the Subordinate Judge setting aside the ex parte decree. That reason, which was based on possibility in law, would hold good even if the learned Subordinate Judge had not set aside the decree and so it would apply to the entire period of the pendency of the I.A irrespective of the question whether the order which the learned Subordinate Judge ultimately passed was by way of setting aside the ex parte decree or by way of refusing to set aside the ex parte decree. For, during the period (a) it could not be known for certain as to whether the final order of the Subordinate Judge in the I.A was going to be by setting aside the ex parte decree or dismissing the I.A I, therefore, find that the finding of the learned Judges regarding contention No. 2 which related to period (a) in that case, substantially applies to the entire period in the present case between the date of the original ex parte decree (21st March, i960) and the final judgment of the High Court in the C.M.A (30th January, 1962). The observations and reasoning of the learned Judges show that a party would be acting bona fide and with due diligence in not filing an appeal against ex parte decree when proceedings started by him mder Order 9, rule 13, Civil Procedure Code, to set aside that ex parte decree are pending and that he cannot be blamed or penalised for not filing an appeal against the ex parte decree during the pendency of such proceedings. It follows that the period covered’ by such proceedings has to be excused under section 5 of the Limitation Act. In this connection, the following observation of the learned Judges with reference to an earlier Full Bench decision of the Madras High Court is significant and enlightening (at page 151):

“Reading the judgments pronounced in Muthu Korakkai v. Madar Ammal it becomes clear that, while on the one hand no ‘suspension’ in the proper sense of a period of limitation which has begun to run is permissible except as provided in section 14, etc., Limitation Act, the Courts will place a liberal, or in the language of Oldfield, J., an accurate construction on the somewhat loosely expressed words in column 3, Schedule 1, which prescribed the starting point of the period of limitation by not requiring the parties to start legal proceedings in circumstahces when it would be futile for them to do so…….”

21. The words “section 14, etc., Limitation Act” in the above passage include section 5 of the Limitation Act which provides for exclusion of a period for purposes of limitation. Though the learned Judges observed “when it would be futile for them to do so” in dealing with contention No. 2, they in effect held that the principle applied even regarding circumstances when the starting of legal proceedings was possible in law and of becoming futile or infructuous in view of the proceedings pending for setting aside the ex parte decree concerned. In Peer Ammal v. N.S. Nallusami Pillai, application for copies of judgment and decree had been made on 9th August, 1928, the very next day after the passing of ex parte preliminary decree and the copies were ready for delivery on 27th September, 1928 and there was still about months after 12th October, 1928 available for filing an appeal. The above decision of a Division Bench of the Madras High Court is binding on me. It laid down a principle that appeal need not be filed during the pendency of proceedings to set aside the ex parte decree. It approved of the contention which was raised incidentally that the period covered by such proceedings could be excused under section 5 of the Limitation Act though it did not discuss and decide about it. The above decision, therefore, shows that the Madras High Court was inclined on principle to hold that the period covered by proceedings to set aside the ex parte decree including the period covered by further proceedings in the High Court was not a period during which the petitioner was bound to file an appeal disregarding the uncertainty referred to above.

22. The learned Advocate, Shri Venkatapathi Raju has relied on the decision of a Division Bench of the Calcutta High Court in Rajendranath Kanrar v. Kamalakrishna Kundu Chaudhuri. In that, case, the relevant facts were as follows: On 12th February, 1931, a party was absent in each of the two cases which were pending before the District Judge. The latter treated him as ex parte and accordingly passed ex parte awards. In accordance with the awards, decrees were drawn up on 6th March, 1931. That party filed a petition under Order 9, rule 13, Civil Procedure Code, for setting aside the ex parte awards. The learned Judge dismissed those petitions on merits on 30th June, 1931. The party did not file any appeal against those orders of dismissal. But, on 21st August, 1931, he filed two appeals against the two original ex parte awards which had been passed on 6th March, 1931. These appeals would be barred by limitation unless the period covered by the pendency of the petitions under Order 9, rule 13, Civil Procedure Code, was deducted. The party contended that the period had to be deducted. The learned Judges referred to the decision of the Privy Council in Brij Inder Singh v. Khanshi Ram . 1918 I.L.R 45 Cal 94, and observed as follows at page 1063:

“We are of opinion that so far as applications for review are concerned, this decision is conclusive of the contention that at one time used to be put forward, viz., that the period taken up for prosecuting, the review should not be deducted in computing the period for preferring an appeal. But, there is noreason whatsoever for extending the rule, which their Lordships approved of, for holding by analogy that this principle should be extended to applications, which are not applications for review. Indeed if the question of practice is to be considered, it may be said, as we have already said, that there is no decision in which the practice contrary to what has been laid down in the case of Ardha Chandra Rai Chowdhry v. Matangini Dassi . 1895 I.L.R 23 Cal. 325. has been suggested………”

23. In that case, the learned Judges of the Calcutta High Court held in effect that the decision of the Privy Council in Brij Inder Singh v. Khanshi Ram, did not directly apply to and could not be extended by analogy to periods covered by proceedings to set aside ex parte orders under Order 9, rule 13, Civil Procedure Code, that as regards such proceedings regarding ex parte orders the uniform practice of the Calcutta High Court which was embodied in Ardha Chandra Rai Chowdhry v. Matangini Dassi, was that such period should not be excluded and that such practice had to be followed. So far as this High Court is concerned, the principle indicated by the decision of the Division Bench of the Madras High Court in Peer Ammal v. N.S. Nallusami Pillai, has to be followed; and I accordingly follow it in preference to the practice of the Calcutta High Court in its decision in Ardha Chandra Rai Chowdhry v. Matangini Dassi, which was approved of in Rajendranath Kanrar v. Kamalakrishna Kundu Chaudhuri. The Lahore High Court also held in Ghulam Quzam Khan v. Qutbuddin, that the principle of the decision of the Privy Council in Brij Inder Singh v. Khanshi Ram, applied to exclusion of periods spent in proceedings for setting aside ex parte orders. Consequently, the prayer of the defendant for excusing the delay in period (i) has to be granted if it be found that the defendant was diligently prosecuting the remedy which he originally chose, namely, to set aside the ex parte order. I find on a perusal of the affidavits that the defendant did pursue that remedy and prosecute those proceedings with due diligence. It is represented on behalf of the plaintiff that I.A No. 282 of 1960 and C.M.A No. 122 of 1961 were dismissed. The dismissal was on merits due to the two Courts finding that his explanation for not prosecuting the appeal (A.S No. 94 of 1958) was not acceptable. I do not consider it proper to concludc that, because he failed in I.A No. 282 of 1960 and C.M.A No. 122 of 1961, he must be deemed to have not prosecuted those proceedings bona fide or with due diligence. If he had succeeded ultimately in those proceedings, there would be no need for him to file the Second Appeal at all. The occasion and necessity for this petition being filed and this order being passed arose out of the defendants' ultimate failure in the above proceedings. I, therefore, find that the delay of period (1) has to be excused. It is clear that if this period (1) is excused, the Second Appeal would be in time even if the other period (2) is not excused.

24. In the result, I excuse the delay concerned in period (1) and also excuse the delay concerned in period (2) but with the observation that the non-excusing of the delay in period (2) would not make any difference to the present Second Appeal being in time within the period of limitation. I hold that the Second Appeal is in time. Leave refused.

25. Petition allowed; delay excused.