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Case Number

Application for leave to appeal to His Majesty in Council No. 18 of 1944

Judges

Mitter
Akram, JJ.

Acts

sec. 64 of the Provincial Insolvency Act
sec. 12 of the Limitation Act
sec. 5 of the Limitation Act
provisions of Rule 15,

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Smart Summary

Summary of Judgment — Mitter, J.

Factual and Procedural Background

Haribux Modi was adjudicated an insolvent on 13 March 1926 by the District Judge of Howrah. In his petition for adjudication he named many creditors but did not list the firm of Dwarka Das Kedar Bux (hereafter "the firm"). Before adjudication he applied for amendment to include that firm. After adjudication, pursuant to a notice under sec. 64 of the Provincial Insolvency Act, the firm appeared before the Receiver in Insolvency and applied for inclusion in the schedule of creditors. The Receiver reported in the firm's favour and the District Judge accepted that report; the firm's name was included in the schedule of creditors to whom Haribux owed Rs. 2,41,071-0-0 and odd. Two other creditors, Gajanan Jagannath and Bulmukund Ruia, were also included.

Gajanan Jagannath appealed against the inclusion of the firm's name (Appeal from Original Order No. 587 of 1936). The appeal was heard by a Division Bench on 13 and 14 July 1939. The appellant contended the firm was not a creditor. The Bench asked the firm to produce certain account books immediately preceding the year 1920 (Sambat 1977); counsel for the firm requested time to produce them, but at the subsequent hearing the books were not produced. On 7 August 1941 the Court allowed the appeal and ordered the firm's name struck out of the schedule; the decree was signed on 22 August 1941.

The firm applied for review on 28 August 1941. A rule was issued on 16 January 1942 calling upon Gajanan Jagannath to show cause why the 7 August 1941 judgment and decree should not be set aside and the appeal re-heard. That rule was heard and discharged on 10 March 1944 (i.e., the review was refused). The firm then applied for leave to appeal to His Majesty in Council on 25 July 1944, proposing to appeal against both the 7 August 1941 judgment and decree and the 10 March 1944 order refusing review.

Legal Issues Presented

Whether an order of this Court refusing a review application is a "decree or final order passed on appeal by a High Court" within clause (a) of section 109, C.P.C., thereby permitting a certificate for appeal to His Majesty in Council.
If the order refusing review is not within section 109(a), whether the firm's application for leave to appeal against the judgment and decree dated 7 August 1941 was filed within the period of limitation.
Whether the Court should grant a certificate under clause (c) of section 109, C.P.C., certifying the proposed appeal against the order refusing review as a fit case to be heard by His Majesty in Council (i.e., whether the case involves questions of great public or private importance).

Arguments of the Parties

Appellant in the original appeal (Gajanan Jagannath)

Contended that the firm (Dwarka Das Kedar Bux) was not a creditor of the insolvent.

Firm (Petitioner seeking certificate / leave) — principal points advanced

Sought leave to appeal to His Majesty in Council against the judgment and decree of 7 August 1941 and against the order refusing review dated 10 March 1944.
Argued (in support of seeking a certificate under sec. 109(c)) that the review was rejected on a misapprehension because the relevant account books were, in fact, in the Court's record room but were not placed before the Judges as the firm's officers did not know they were there.
Applied under section 5 of the Limitation Act for extension of time to 25 July 1944, explaining delay principally by reference to time taken to obtain certified copies of orders (44 days for one certified copy).

Opposite Party No. 1 (Gajanan Jagannath) — procedural posture

Opposed the inclusion of the firm's name in the insolvency schedule and prevailed on appeal before this Court; opposed the firm's review application; awarded costs on the present application.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Soudamonee Dossee v. Maharaj Dheraj Mahatab Chand Bahadoor, 6 W.R. M.R. 102 (1866) (Full Bench)	Held that an order rejecting an application for review is not an order made on appeal and hence not appealable to the Privy Council under the corresponding Letters Patent clause.	The Court treated the Full Bench decision as authoritative and followed it in concluding that an order refusing review is not an order "passed on appeal" within sec. 109(a), C.P.C.
Sunday Koer v. Chandishwar Prosad Singh, I.L.R. 30 Cal. 679 (1903)	Considered whether an order refusing to amend a decree passed on appeal was itself an order "passed on appeal"; interpreted sec. 595 (C.P.C. 1882) consistently with the Full Bench view.	The Court regarded this decision as binding authority supporting the proposition that orders refusing review or refusing amendment are not orders passed on appeal for the purpose of Privy Council appeals under sec. 109(a).
Bani Madhub Mitter v. Matungini Dassi, I.L.R. 13 Cal. 104 F.B. (1886)	Authority for the rule that, under section 12 of the Limitation Act, time between delivery of judgment and the date of signing of decree may be added when computing the limitation period.	Applied to allow inclusion of the interval between delivery of judgment (7 Aug 1941) and signing of the decree (22 Aug 1941) when computing the last date for filing the application for leave.
Brij Indar Singh v. Kanshi Ram, 44 I.A. 218	Guidance on computation of limitation and on allowances that may be made in special circumstances (used to assess whether time while review application was pending can be excluded).	Relying on this authority and having regard to the nature of the review application, the Court held the firm was entitled to exclude the period during which the review application was pending (28 Aug 1941 to 10 Mar 1944) when computing limitation.
Banarasi Parshad v. Kashi Krishen Narain, 28 I.A. 11	Sets out the Judicial Committee's test for granting a certificate under sec. 109(c): there must be a question of great public or private importance to justify certification.	The Court applied this test and concluded that the case involved neither a question of great public importance nor of great private importance; therefore it refused to grant a certificate under sec. 109(c).

Court's Reasoning and Analysis

The Court proceeded in a sequence of legal determinations strictly tied to statutory language and precedent.

Interpretation of sec. 109(a), C.P.C.: The Court focused on whether an order refusing review is a "decree or final order passed on appeal by a High Court." It accepted the view (following Soudamonee Dossee and Sunday Koer) that proceedings by way of review are independent and that an order refusing an application for review is not an order "passed on appeal." Consequently, an order refusing review does not fall within sec. 109(a) and is not, by that provision, a fit object for a Privy Council certificate on that basis.
Limitation as to leave to appeal against the 7 August 1941 judgment and decree: The Court applied section 12 of the Limitation Act to allow (a) the interval between delivery of judgment (7 Aug 1941) and signing of decree (22 Aug 1941), and (b) the time while the firm's review application was pending (28 Aug 1941 to 10 Mar 1944), relying on Bani Madhub Mitter and Brij Indar Singh. With those allowances, the Court calculated the last date for filing the application for leave to be 18 June 1944.
Application under sec. 5 (extension) for delay to 25 July 1944: The firm filed its application for leave on 25 July 1944 and sought enlargement under sec. 5, relying in part on delay in obtaining certified copies. The Court analyzed the claimed delay (44 days for obtaining a certified copy of the order refusing review) but concluded that section 12 did not entitle the firm to include that 44-day period because the appeal must be regarded as being only against the 7 August 1941 judgment and decree (the order refusing review was not appealable). The Court observed that, after the review was dismissed on 10 March 1944, the firm still had about 84 days to file the leave application (until 18 June 1944). The Court further found that a certified copy could have been procured on expedition within three days under Rule 15, Chapter XIII of the Appellate Side Rules, and that the short refusal order did not make a copy reasonably necessary for drafting the petition for leave or grounds of appeal directed against the 7 August 1941 judgment. On these bases the Court declined to extend limitation under sec. 5 to 25 July 1944.
Certification under sec. 109(c): Addressing whether the Court should nevertheless certify the proposed appeal against the order refusing review as a fit case under sec. 109(c), the Court applied the Judicial Committee's test in Banarasi Parshad — namely that certification requires a question of great public or private importance. The Court concluded the case involved neither such public importance nor great private importance; mere existence of a substantial question of fact or law was insufficient. Accordingly, the Court refused to grant a certificate under sec. 109(c).

Holding and Implications

Holding: Certificate refused.

Direct consequences and immediate effects:

The Court held that an order refusing review is not an order "passed on appeal" within clause (a) of section 109, C.P.C.; therefore it could not grant a certificate to appeal to His Majesty in Council against the 10 March 1944 order refusing review.
On limitation grounds, after allowing the period between judgment and signing of decree and the time during which the review application was pending, the Court found the firm's application for leave (filed 25 July 1944) to be beyond the extended last date (18 June 1944) and refused to enlarge time under section 5 of the Limitation Act to cover the further delay.
The Court refused to certify the proposed appeal under section 109(c) because the case did not involve questions of great public or private importance as required by the relevant test; only a substantial question of fact or law was present, which is insufficient for certification under clause (c).
Opposite Party No. 1 (Gajanan Jagannath) was awarded the costs of the application. The hearing-fee was assessed at five gold mohurs.

Broader implications: The opinion applies and follows established precedents on the non-appealability of orders refusing review and on the computation of limitation under section 12; the Court did not extend the statutory limitation period in this instance. The decision confines relief to the matters described above and does not grant the requested certificate for appeal to His Majesty in Council.

Judges: Mitter, J.; Akram, J. (concurring).

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Dwarkadas Kedar Bux, A Firm To England, v. Gajanan Jagannath And Ors. S To England, Opposite Parties.

The Judgment of the Court was as follows:—

Mitter, J.:— One Haribux Modi was adjudicated an insolvent on the 13th March, 1926, on his own application by the District Judge of Howrah. In his application for adjudication he mentioned the names of many of his creditors but did not state that the firm of Dwarkadas Kedar Bux was one of his creditors. The firm of Dwarka Das Kedar Bux, hereafter called the firm, is the applicant for leave to appeal to His Majesty in Council. Before Haribux was actually adjudicated he made an application for amendment of the record of the insolvency proceedings by including the name of that firm as one of his creditors. After his adjudication, in pursuance of a notice issued under sec. 64 of the Provincial Insolvency Act the firm appeared before the Receiver in Insolvency and applied for its name to be included in the schedule of creditors. The Receiver reported in favour of the firm and the District Judge upheld that report. Its name was thus included in the schedule of creditors to whom Haribux owed Rs. 2,41,071-0-0 and odd. The names of two other creditors were also included in the schedule of creditors namely, Gajanan Jagannath and Bulmukund Ruia. One of the creditors namely, Gajanan Jagannath, preferred an appeal (Appeal from Original Order No. 587 of 1936) against the order of the learn-ed District Judge by which the firm had been included in the schedule of creditors. That appeal came up for hearing before a Division Bench of this Court on the 13th and 14th July, 1939. The Appellant in that appeal contended that the firm was not a creditor of the insolvent at all. After the hearing on those two dates the learned Judges asked the firm to produce some account books immediately preceding the year 1920=Sambat, 1977. The learned Advocate appearing for the firm took time to produce those books. At the further hearing those books were, however, not produced before the Judges, and judgment was delivered allowing the appeal, that is to say, the name of the firm was ordered to be struck out from the schedule of creditors. That judgment of this Court was pronounced on the 7th August, 1941, and the decree in that appeal was signed on the 22nd August, 1941. On the 28th August, 1941, the firm made an application for review to this Court. On that application a rule was issued on the Opposite Party, namely, Gajanan Jagannath as to why the judgment and decree of this Court dated the 7th August, 1941, should not be set aside and the appeal re-heard. This rule which was issued on the 16th January, 1942, was heard on the 10th March, 1944, and was discharged on that date. The firm presented their application for leave to appeal to His Majesty in Council on the 25th of July, 1944. They propose to appeal against the judgment and decree of this Court, dated the 7th August, 1941, by which the appeal to this Court filed by Gajanan Jagannath was allowed as also against the order refusing review, dated the 10th March, 1944. The judgment is a judgment of reversal and the subject-matter of the proposed appeal to His Majesty in Council is much over Rs. 10,000. If there had not been other questions involved, the firm would have been entitled to get a certificate from us as a matter of course.

2. The other questions involved in the case are whether the order of this Court, dated the 10th March, 1944, refusing review is an order which comes under cl. (a) of sec. 109, C.P.C. If it does, there is no further question which would disentitle the firm to a certificate, but if it is not an order of the class mentioned in cl. (a) of sec. 109, C.P.C. the further question would be whether the application for leave had been filed within the period of limitation.

3. The material portion of sec. 109 (a) runs thus:

“An appeal shall lie to His Majesty in Council from any decree or final order passed on appeal by a High Court.”

4. The order refusing review is an order passed by this Court. It may be a final order or it may not be a final order. That is a point which we do not wish to discuss, but the question is that assuming it to be a final order passed by this Court, whether it is a final order passed on appeal. In our judgment, it is not. The appeal which was pending in this Court, namely, Appeal from Original Order No. 587 of 1936 was finally disposed of by the judgment and decree, dated the 7th August, 1941. In our judgment proceedings by way of review are independent proceedings and an order refusing an application for review cannot be considered to be an order passed on appeal.

5. In the case of Soudamonee Dossee v. Maharaj Dheraj Mahatab Chand Bahadoor . 6 W.R M.R 102 1866., a Full Bench of this Court had to consider the question whether an order refusing an application for review made in this Court was an order against which an appeal could be preferred to His Majesty in Council. That question depended upon the construction of the first part of clause 39 of the Letters Patent of this Court which runs thus:

“And we do further ordain that any person or persons may appeal to Us, Our heirs and successors in Our or Their Privy Council, in any matter not being of criminal jurisdiction from any final judgment, decree or order of the said High Court of Judicature at Fort William in Bengal made on appeal.”

6. The Full Bench held that the order rejecting an application for review was not an order made on appeal. This interpretation of the Full Bench was adopted and followed in construing sec. 595 of the Civil Procedure Code of 1882 by Chief Justice Maclean and Mr. Justice Geidt in the case of Sunday Koer v. Chandishwar Pro-sad Singh . I.L.R 30 Cal. 679 1903., where the question arose as to whether an order refusing to amend a decree passed by this Court on appeal was an order passed “on appeal.” These are binding authorities on the interpretation of sec. 109 (a) of the Civil Procedure Code of 1908 which is pari materia with clause 39 of our Letters Patent and the first clause of sec. 595 of the Civil Procedure Code of 1882. We, therefore, cannot grant a certificate in regard to the proposed appeal against the order dated the 10th March, 1944, refusing review.

7. The question that arises, then, is whether the application for leave to appeal against the judgment and decree of this Court in the aforesaid appeal (F. M.A 587 of 1936) passed on the 7th August, 1941, is in time. Under sec. 12 of the Limitation Act the Petitioner before us is entitled to add to 90 days the time between the delivery of judgment and the date of the signing of the decree [Bani Madhub Mitter v. Matungini Dassi . I.L.R 13 Cal. 104 F.B 1886.]. It is also entitled to add to the said period under sec. 12 of the Limitation Act the time that was taken up in obtaining certified copies of the said judgment and decree. It applied for copies of the judgment and decree on the 30th May, 1944, and those copies were ready on the 14th June, 1944. In view of the decision of the Judicial Committed in the case of Brij Indar Singh v. Kanshi Ram . 44 I.A 218 and having regard to the nature of the application for review we are inclined to hold that the firm is entitled to the time during which its application for review was pending, that is, from the 28th August, 1941, when the application for review was filed to the 10th March, 1944, when it was dismissed. Making all those allowances the last date for filing the application for leave to appeal would be the 18th June, 1944, but the firm filed its application for leave on the 25th July, 1944. It made an application under sec. 5 of the Limitation Act to extend the period up till the 25th July, 1944. In that application it states that 44 days were spent in getting a certified copy of the order refusing review. The relevant dates are these: On the 31st March 1944, the application for certified copy of that order was put in. The copy was ready for deli very on the 13th May, 1944. It covers 44 days. Under sec. 12 of the Limitation Act it is not entitled to this period because its appeal must be regarded as an appeal against the judgment and decree of the 7th August, 1941, only and not an appeal against the order refusing review, for we have already held that that order is not appealable to His Majesty in Council. The question is whether the facts justify an extension up to the 25th July, 1944. The application for review was rejected on the 10th March, 1944. The order is a very short order. The applicant had still about 84 days from that time to put in his application for leave because, as we have already pointed out, if the period during which the application for review was pending here was excluded in computing limitation, the last date of filing the appeal would have been the 18th June, 1944. If a copy of the order refusing the review was thought to be necessary for the purposes of drawing up the petition for leave and the grounds of appeal a certified copy of that order on expedition fee could have been got in course of three days under the provisions of Rule 15, Chapter XIII of the Appellate Side Rules of this Court. We are further of opinion that having regard to the contents of that order a copy of that order would not have been reasonably required for drawing up either the petition for leave or the grounds of appeal directed against the judgment and decree of the 7th August, 1941. In these circumstances, we are not prepared to extend the period of limitation under sec. 5 of the Limitation Act to the 25th July, 1944, when the application for leave was presented.

8. A further question has been raised as to whether we should certify the proposed appeal against the order refusing review to be a fit case under cl. (c) of sec. 109, C.P.C. In support of that contention the learned Advocate for the Petitioner says that we should do it because the application for review was rejected on a misapprehension, as the relevant account books were, in fact, lying in this Court but unfortunately was not put before the learned Judges as the fact that they were lying in the record room of this Court was not known to the officers of the Petitioner. The Judicial Committee has laid down the test in the case of Banarasi Par-shad v. Kashi Krishen Narain . 28. I.A 11 for a certificatc under sec. 109 (c). There must be a question of great public or private importance. There is in this case no question of public importance and we do not consider that the case involves questions of great private importance either. It is not enough for the purpose of exercising our discretion under cl. (c) of sec. 109, C.P C, that there is only a substantial question either of fact or of law.

9. We accordingly refuse to grant a certificate. The Opposite Party No. 1 would be entitled to costs of this application. The hearing-fee is assessed at five gold mohurs.

Akram, J.:— I agree.

C.C

Dwarkadas Kedar Bux,... v. Gajanan Jagannath An...