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Sri Ram alias Sri Nath and Others vs Ram Pheran and others

Allahabad High Court · Decided on 21 December 1939 · Citation: (1939) 12 AHC CK 0015

HON’BLE JUDGES
Thomas, C.J · Radha Krishna, J
ACTS & SECTIONS REFERRED
Civil Procedure Code, 1908 (CPC) — Order 44 Rule 1 · Limitation Act, 1963 — Section 5
RESULT
Dismissed
CASE NUMBER
Civil Miscellaneous Applications No''s. 913 and 914 of 1939
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Judgment

4 paragraphs · 365 words

Thomas C. J. and Radha Krishna, J.—The decree sought to be appealed from is dated the 12th August, 1939. On the 15th November, 1939, the applicants presented a memorandum of appeal as well as an application (Civil Misc. Application No. 913 of 1939) for leave to appeal as a pauper under Order 44, Rule 1, of the Code of Civil Procedure. They also ''filed an application (Civil Miscellaneous Application No. 914 of 1939). u/s 5 of the Limitation Act supported by an affidavit explaining the delay in making the application for leave to appeal and praying that the application although beyond time be admitted.

2.

Section 5 of the Indian Limitation Act applies to any appeal or application for a review of judgment or for leave to appeal or to any other application to which that section has, been made applicable by or under any enactment for the time being in force. It is clear that this section has riot been made applicable to an application under Order 44, Rule 1 of the Code of Civil Procedure. The limitation for making an application under Order 44, Rule 1 is thirty days under Article 170 of the Limitation Act.. The application is admittedly barred by time and no extension can be allowed u/s 5 as that section is not applicable.

3.

The application u/s 5 of the Limitation Act is therefore rejected.

4.

As regards the appeal which does not bear any court-fee stamp, the learned Counsel for the appellants prays that some time be granted to him to pay up the requisite amount of court-fee. This Court has power to grant time in its discretion to. make up the deficiency in the court-fee on a plaint or memorandum of appeal u/s : 149 of the CPC and now also u/s 6, Clause (2) of the Court Fees Act of 1870 as amended by the Court Fees (Amendment) Act of 1938. In the circumstances of the case we think that we should grant time to the appellants to make good the deficiency. We accordingly grant them two months'' time from today for that purpose with a clear understanding that no further extension will be asked to.