1. The only question which arises in these appeals is one of limitation. A decree was passed in the original Court on 13th September, 1917, an appeal was filed on 27th September but without any copy of the decree and four days were allowed for remedying the defect. The vacation commenced from 28th September and lasted till 30th October; the last date therefore for filing the appeal would be 31st October. On 5th November the appellant's vakil was told that no copy of the decree had been filed and that a copy should be supplied. On 10th November, no step having been taken by the appellant to cure the defect, the appeal was struck off. Then, on 19th November the appellant filed a copy of the decree and on 21st the learned District Judge admitted the appeal subject to objection, a petition, having been filed together with the copy of the decree.
2. It is contended before me that the Court could only have admitted the appeal after time by exercising the power of extension allowed by Section 5 of the Lim. Act, and it is explained that it was in exercise of this power that the appeal was admitted. There is nothing however on the record to show us how the appellant satisfied the Court that he had sufficient cause for not filing the appeal in the regular way within time.
3. All we have on the order sheet is: “admitted subject to objection.”
4. In the first place, it is clear, according to numerous decisions, that the petition of appeal filed without a copy of the decree is not valid as an appeal and the appeal cannot therefore be said to have been filed until 19th November, about 22 days out of time. The only material on the record on which the learned District Judge can have satisfied himself as to the desirability of extending the time under S. 5 is the petition which was filed with a copy of the decree on 19th November. In that petition it is stated that the appellant's karpardaz had been injured in a not and had been confined to hospital for several days, that the petitioner did not know that a copy of the decree had not been filed nor the fact that the Court had passed an order that it should be filed within four days. This petition is not supported by an affidavit and the learned District Judge does not say that the extension of time was based on it. There is no doubt that the reasons for allowing more time should have been recorded and there should have been a detailed affidavit explaining the delay. Notice should also have been given to the respondents who should have had an opportunity to object to the admission. Pleaders having been engaged in the case the illness of the karpardaz could hardly be taken as a sufficient excuse. There is no finding by the learned District Judge that the delay was excusable. It lay on the litigant to adduce distinct proof of the sufficient cause on which he relied.
5. In the case of Krishnasami Panikondar v. Ramasami Chettiar(1) their Lordships of the Privy Council decided that the practice of admitting appeals out of time provisionally without notice to the respondent and allowing objection to its admission to be taken at the hearing should be condemned. Provision should be made for the final determination at the stage of admission of any question of limitation affecting the competence of the appeal and that the burden rests on the applicant under Section 5 of the Lim. Act of adducing distinct proof of the sufficient cause on which he relies. There is nothing to show us that the present appellant made any objection to the admission of the appeal before the lower appellate Court but there is no doubt that, even so, this Court can take the question of limitation into consideration: Balaram v. Nangta Dass(2), and even an agreement between the parties that the objection should not be raised in the lower Court would not prevent this Court from considering it: Midnapur Zamindary Co.…Judgment-Debtor v. Deputy Commissioner Of Manbhum…Decree-Holder .(3). The lower Court should have recorded reasons, and there is nothing to show to this Court that the lower Court was satisfied that the appellant had sufficient cause for not preferring the appeal within the period of limitation. In the absence of anything to show that there was material sufficient for an allowance of an extension, I must allow the appeals and set aside the decrees of the lower appellate Court and restore these of the Munsif. The appellant is entitled to his costs in both of the appellate Courts.
V.S/R.K
6. Appeal allowed.