Upendra Chandra Singh vs Umesh Chandra Ghosh

Kulwant Sahay, J.—This is an application by the plaintiff for leave to appeal as a pauper under the provisions of Order 44, Civil P.C. The period of limitation for an application for leave to appeal as a pauper is 30 days from the date of the decree appealed from under Article 170, Schedule 1, Lim. Act. The present application has been made more than 30 days from the date of the decree, and an application has been made u/s 5, Lim. Act, for extension of time. Therefore, the first question for decision is whether sufficient grounds have been made out for extension of time. It is only after time is extended u/s 5, Lim. Act, that it would be necessary for this Court to consider, upon a perusal of the application and of the judgment and decree appealed from whether the decree is contrary to law or some usage having the force of law or is otherwise erroneous or unjust, and thereafter, if necessary, to inquire into the pauperism of the application.

The judgment of the learned Subordinate Judge appealed against was pronounced on 27th July 1926. The decree was prepared and signed on 12th August 1926. Applications for copies of the necessary documents were made on 2nd October 1926. and the copies were ready on 10th November 1926. It is stated that the. applicant was required to attend for taking the copies on 11th November 1926. The 11th November 1926 was, however, a holiday and the copies were delivered on 13th November 1926. If the whole period from the 2nd October up to 13th November 1926 be excluded u/s 12, Lim. Act, the last date for filing the application would be the 7th October 1926. The High Court was, however, closed on that date on account; of the annual vacation and the first regular sitting after vacation commenced on 26th October 1926 upon which date the present application ought to have been filed, The application was, however, filed on 10th December 1926 and it is thus clearly barred by limitation.

The petitioner had made an application for amendment of the decree on 12th August 1926 and this application remained pending up to 4th October 1926 on which latter date it was rejected. It is contended on behalf of the petitioner that he is entitled to compute the period of limitation from 4th October 1926 and that, if the time taken for obtaining the copies be excluded, then the present application is within time.

The question for decision is whether the petitioner is entitled to compute the period of limitation from 4th October 1926. Learned Counsel for the petitioner contends that the application filed on 12th August 1926 was really an application for review of judgment. It appears that in the judgment pronounced on 27th July 1926 the direction was that the suit be dismissed with costs and interest at 6 per cent per annum. On 8th June 1926 a circular was issued by this Court prescribing1 new rates for calculation of pleader''s fees. Under this circular pleader''s fees could be calculated in the present case up to the maximum of 10 per cent. on the value of the suit. Although there was no direction in the judgment as originally pronounced that the pleader''s fees should be calculated at the rate of 10 per cent, the decree prepared on 12th August 1926 followed this circular and the pleader''s fees were entered in the decree at the rate of 10 per cent.

The petitioner objected to the pleader''s fees being calculated under the provisions of the now circular on the ground that the Subordinate Judge was not aware of this circular on 27th July 1926 on which date he pronounced his judgment inasmuch as he received a copy of the circular on 30th July 1926, and that he did not apply his mind to the question of the rate on which the pleader''s fees should be calculated in preparing the decree on 12th August 1926. The application of the 12th August for amendment of the decree is, therefore, said to be really an application for review of judgment and it is contended on the authority of Haradhan Chattopahdya v. Prankrishna Kumar [1909] 10 C.L.J. 39 that the petitioner is entitled to an extension of time on account of the pendency of the application of 12th August 1926.

I am of opinion that the application of 12th August 1926 cannot be treated as an application for review of judgment. According to the case of the petitioner there was nothing wrong in the judgment as regards costs. The judgment merely directed that the suit be dismissed with costs and it gave no special direction as regards the mode in which the pleader''s fees were to be calculated. His complaint was that the decree as drawn up was not in accordance with the judgment inasmuch as the judgment directed costs to be calculated according to the old rules and that in the decree as drawn up the pleader''s fees were calculated according to the new rules and, therefore, the decree was not in conformity with the judgment. It is thus clear that the application of 12th, August 1926 cannot be treated as an application for review of judgment, but merely as an application for amendment of the decree. The decree was, however, not amended and the petitioner cannot be allowed to compute the period of limitation from the date on which his application for amendment of the decree was rejected.

It is next contended that he could not present an application for leave to appeal as a pauper so long as the application of 12th August 1926 was pending in as much as one of the grounds of his appeal would be the same as the ground taken in his application of 12th August 1926. In my opinion the fact that the application for amendment of the decree was pending did not, under the circumstances of the present case, prevent the petitioner from presenting his application to this Court for leave to appeal as a pauper mainly upon the merits of the case, and the question, of costs would be only one of the grounds upon which he would be entitled to assail the decree. If he had succeeded in his application of 12th August 1926 still only one of the grounds, viz., the ground as regards costs, would become infructuous in the appeal, and the decision of the application for amendment could not in any way affect the other grounds of appeal relating to the merits of the case. As to whether an application for review or an application for an amendment is or is not a sufficient ground for extension of time would depend upon the particular facts of each ease, and, under the circumstances of the present case, I am of opinion that the pendency of the application for amendment of the decree is not a sufficient ground for extension of time. The application, therefore, is clearly barred by limitation, and no ground has been made out for extension of time.

In this view of the case it is not necessary to consider the question as to whether the petitioner is entitled to appeal as a pauper.

Mr. P.K. Sen, on behalf of the petitioner asks for time to pay the Court-fee on the memorandum of appeal and to allow him to prefer the appeal in the ordinary form and not as a pauper. The appeal itself is barred by limitation, and therefore no extension of time can be granted to pay the Court-fee upon the memorandum of appeal. Had the appeal been filed within time we could have considered the question as to whether the petitioner was entitled to extension of time for paying the Court-fee. No application has been made to this Court for leave to file the appeal in the ordinary form beyond the period of limitation and consequently, that question cannot be considered in the present proceeding.

The application for leave to appeal as a pauper must be dismissed as barred by limitation. Notice had been issued upon the opposite party to show cause and he has appeared and contested the present application. The opposite party is therefore entitled to his costs. Hearing fee three gold mohurs.

Mullick, J.

I agree.