Sheo Dhari Ram vs Gupteswar Pathak and Another

Foster, J.—This is a petition in revision. The applicant as a judgment-debtor instituted a proceeding under Order 21, Rule 90 which on the 6th January, 1923, was dismissed for default, neither party being present. The applicant then filed an appeal on the 12th February, 1923. The Subordinate Judge who beard the appeal found that no appeal lay and that in any case it was out of time. It is urged here that the lower Court was wrong in holding that the appeal was incompetent. But the matter is of little consequence, for I find that the final order of the Subordinate Judge was justified on the ground of limitation. I come therefore to the point of limitation. The appeal (if it lay) was filed six days out of time so far as I can see from the documents put before me on the applicant''s behalf. It is urged that Sections 14 and 5 of the Indian Limitation Act should have been applied. Section 14 in my opinion has no application. The petition for restoration of the case which was dismissed on the 29th January was dismissed because that petition was one not recognised by the law. Proceedings coming u/s 14 must be such as are recognized by law as legal in their initiation, though a party has carried the proceeding to the wrong Court. It can hardly be said that a party who is proceeding in ignorance of law has been proceeding with due diligence or in good faith. The words "good faith" are explained in the earlier part of the Act as connoting due care and attention. Nor do I find any ground for the application u/s 5 inasmuch as the applicant had plenty of time between the 29th January and the date on which the period of limitation for appeal (if any) would expire.

The last point is urged by referring to the case of Naurang Ram Sahu v. Bhakhori Mandar (1919) 4 Pat. L.J. 277. It is argued that the Munsif in the original Court did not show under what provision of the law he was dismissing the application under Rule 90 and therefore he acted without authority and his act amounted to a refusal to exercise jurisdiction. It seems to me this is stretching the argument too far. In the case quoted the order was one that could not with any certainty be labelled, if I may use the expression, with any indication of the provision of law under which it was passed. Here the order of the 6th January. 1923, could only have been passed under Order 17, Rule 2 read with Order 9, Rule 3, for it was an order passed after adjournment and in the absence of the two parties. I find no reason to interfere. The petition is rejected with costs.