Nanda Lal Bose v. Ashutosh Ghose

1. This rule was heard ex-parte by Chatterjea, J., and Panton, J., some months ago, but later, at the instance of the opposite party an order was passed that the Rule should be heard again. I have now heard the learned pleaders on both sides. The facts are stated in the judgment delivered on 24th March last. There are now four points to be considered. The first one is that the lower Court ought to have set aside its order when the defendant made his application for review of judgment. I have read the learned Judge's judgment in regard to this application and I think that he was correct and that there is no ground for interference on that score.

2. The second point urged is that the suit is barred by limitation.

3. The point taken by the lower Court was that the suit was saved by the operation of Section 10 of the Limitation Act. When the case was heard by this Court the learned Judges took a different view and held that the suit was subject to the rule of three years' limitation. The learned pleader who appears today for the opposite party, does not rely upon S. 10, but refers to Article 145 and quotes the case of Lala Gobind Prasad v. Chairman of Patna Municipality (1). It appears to me that he is right in this contention and that in consequence the suit cannot be held to be time barred.

4. The third point is that the defendant was a public servant and therefore entitled to the benefit of a notice under Section 80 of the CPC. I cannot find that he falls within any of the classes enumerated in Clause 17, Section 2 of the CPC, and I therefore think that he was not entitled to a notice.

5. The fourth point is that the defendant was sued as manager of the estate but the decree was made against him personally. It appears to me that on the findings of the learned Judge of the Court below it is right that the decree should be made against him personally.

6. Taking these views I discharge the Rule with costs hearing fee one gold mohur.

V.B/R.K

7. Rule discharged.