Lakshminarasayya Setti vs Venkanna Setti and Others

Davies, J.—The respondents were served with notice of the appeal within the extended time allowed by a Bench of this Court, but the

respondents allege that the time should not have been extended without notice to them, or at any rate that they should now be permitted to urge

their objections to the extension. I am of opinion that no notice was necessary in the first instance, but as the order extending the time was passed

ex parte, I think the respondents are now entitled to object thereto.

As in my opinion, however, the appeal against the order must, u/s 169 of the Indian Company''s Act, 1882, itself be filed within three weeks of

the date of the order at the very latest, it makes it practically impossible to have the notice of the appeal also served within that time. It follows that

the Court could not reasonably have refused the extension applied for. The preliminary objection is therefore overruled. On the merits, I consider

the Judge was right in dismissing the application, for the charges therein made are too vague, and there is nothing tangible to go upon. Further,

there is no distinct averment of any loss. This appeal is therefore dismissed with two sets of costs--one for the first respondent and the other for the

fifth and seventh respondents.

Bhashyam Ayyangar, J.

I agree. But the point having just been raised and argued not fully 1 refrain from expressing any opinion on the question as to whether the latter

part of Section 169, which prescribes a period of three weeks from the date of the order complained of for giving notice of the appeal, reduces the

ordinary period of appeal given by the first part of the section to the making of the appeal, viz., 90 days plus the time requisite for obtaining copy of

the order appealed against to a period being the difference between the three weeks and the time occupied during those three weeks in serving

notice of the appeal on the respondent after the appeal has been filed, subject to the proviso that if notice is not served within the three weeks the

time for service may by special order of the Appellate Court be extended, nor do I express any opinion that the notice of appeal referred to in the

latter part of the section, if it means notice to the other party of an intended appeal, should necessarily be served through the Court. The solution of

the former question depends upon the correct interpretation to be put upon the expression ""notice of the same,"" i.e., notice of the rehearing or

appeal which occurs in the latter part of the section. If it means notice to the other party of the appeal which has been made or filed the appeal of

course should have been preferred in sufficient time before the expiration of the three weeks. But if its correct interpretation having regard to the

former part of the section be ""notice of appeal to be made or of the appeal if any already made"" then the ordinary period of limitation for making

the appeal apart from the period of three weeks prescribed by the section for giving notice of the appeal whether the same has been filed or is only

intended to be filed remains unaffected. I also refrain from expressing any opinion as to whether the giving notice of appeal within three weeks in

the manner in which notices of appeal are ordinarily given under the CPC is not simply the lodging of the memorandum of appeal and not the

service of the notice of hearing of the appeal on the respondent or of giving him notice of the intended appeal. Even if this were the correct

interpretation of the section, as I am inclined to think that it is, there were reasonable grounds in this case for the extension of the three weeks

prescribed by the latter part of the section, inasmuch as the general impressions supported by the assumptions made in judicial decisions of this

High Court and of the Calcutta High Court is that the appeal itself should be made within three weeks and notice of hearing of appeal also served

upon the respondent within the three weeks unless the period of three weeks be extended by an order of the Court.