In Re: Poppuri Chinna Venkataswami

Subba Rao, J.—These two applications are filed for review of a judgment and decree in A. S. No. 351 of 1945 and A.S. No. 78 of 1946. The judgment was delivered on 12th April 1949. These applications were filed on 11th July 1949, i.e., on the 90th day from the date of judgment. The relevant articles of the Court-fees Act read thus :

"Art 4 : Application for review of judgment, if presented on or after the ninetieth day from the date of the decree

The fee livable on the plaint or memorandum of appeal

Art. 5 : Application for review of judgment, if presented before the ninetieth day from the date of the decree

One half of the fee livable on the plaint or memorandum of appeal.

As the 89th day happened to be a Sunday, and therefore a holiday, the petitioner contended that Art, 5 applied, and that, he need only pay one half of the fee livable on the memorandum of appeal. The Master rejected that contention relying upon the decision in In re Kota 9 Mad. 134.. The learned Judges in that case held that in computing the period of 89 days from the date of decree, within which an application for review of judgment may be presented on payment of half the fee payable on the plaint or memorandum of appeal, the time during which the Court is closed for vacation cannot be excluded. This decision was given in the year 1885, and it has stood the test of time, though the learned Counsel contended that the judgment is not sound, we are not inclined to take a different view. Even so, it is argued that the applicant should be given a certificate authorizing him to receive back from the Collector so much of the fees paid on the application as exceeds the fee which would be payable had it been presented before such date under the provisions of S. 14 of the Court-fees Act. Under that section, ''''where an application for a review of judgment is presented on or after the ninetieth day from the date of the decree, the Court, unless the delay was caused by the applicant''s latches, may, in its discretion, grant him a certificate "like the one required." The only question, therefore, is whether the applicant can be said, in the circumstances of the case, to be guilty of latches. If the 89th day happened to be a working day, the applicant would have paid half the court-fee and Art. 5 of Sch. 1 would have applied. But, unfortunately, as that day happened to be a holiday, he was not able to comply with the provisions of Art. 5, The default is not because of his latches but because of an accident, namely, the last day happening to be a holiday. We, therefore, hold that the petitioner is not guilty of any latches, and we direct a certificate to be issued in the manner prescribed under S. 14 of the Court-fees Act in both the review applications.