TMI Blog1961 (5) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... Rameshwar Nath and P. L. Vohra, for the appellants. D. N. Pathak, R. Mahalingier and B. C. Mishra, for the respondent. JUDGMENT: GAJENDRAGADKAR, J.- The short question which falls to be considered in this appeal relates to the construction of s. 5 of the Indian Limitation Act IX of 1908. It arises in this way. The respondent Rewa Coalfields Limited is a registered company whose coal-mines are situated at Burhar and Umaria. Its registered office is at Calcutta. The appellant is a firm, Chaurasia Limestone Company, Satna, Vindhya; Pradesh, by name and the three brothers Ramlal, Motilal and Chhotelal are its partners. The appellant prepares and deals in limestone at Maihar and Satna and for the use in their lime-kilns it purchased coal from the respondent's coal-mines at Umaria by means of permits issued to it by Coal Commissioner Calcutta. According to respondent's case the appellant purchased from it 3,307 tons of coal at the rate of Rs. 14-9-0 per ton between January 1952, and March 1953. The price for this coal was Rs. 48,158-4-0. Since the appellant did not pay the price due from it the respondent filed the present suit in-the Court of the District Judge, Umaria, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in filing the appeal should be condoned because Ramlal, one of the partners of the appellant's firm, who was in charge of the limitation., fell ill on February 16, 1955, which was the last date for filling the appeal. This application was supported by an affidavit and a medical certificate showing that Ramlal was ill on February 16, 1955. The learned Judicial Commissioner, who heard this application, appears to have accepted the appellant's case that Ramlal was ill on February 16 and that if only one day's delay bad to be explained satisfactorily by the appellant his illness would constitute sufficient explanation; but it was urged. before him by the respondent that the appellant bad not shown that its partners were diligent during the major portion of the period of limitation allowed for appeal, and since they put off the filing of the appeal till the last date of the period of Limitation the illness of Ramlal cannot be said to be sufficient cause for condoning the delay though it was only one day's delay. On the other hand, the appellant urged that it had a right to file the appeal on the last day and so the. delay of one day which it was required to explain by sufficient reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "the period of the delay between the last day for filing the appeal and the date on which the appeal was actually filed" he would undoubtedly have come to the conclusion that the illness of Ramlal on February 16 was a sufficient cause. That clearly appears to be the effect of his judgment. That is why it is unnecessary for us to consider what is "a sufficient cause" in the present appeal. It has been urged before us by Mr. Andley, for the appellant, that the construction placed by the Judicial Commissioner on the words "within such period" is erroneous. In construing s. 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be lightheartedly disturbed. The other consideration which cannot be ignore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal on the last day but to explain the delay made thereafter day by day. In other words, in showing sufficient cause for condoning the delay the party may be called upon to explain for the whole of the delay covered by the period between the last day prescribed for filing the appeal and the day on which the appeal is filed. To hold that the expression "within such period" means during such period would in our opinion be repugnant in the context. We would accordingly hold that the learned Judicial Commissioner was in error taking the view that the failure of the appellant to account for its non-diligence during the whole of the period of limitation prescribed for the appeal necessarily disqualified it from praying for the condonation of delay, even though the delay in question was only for one day; and that too was caused by the party's illness. This question has been considered by some of the High Courts and their decisions show a conflict on the point. In Karalicharan Sarma v. Apurbakrishna Bajpeyi (1931)I.R.L 58 Cal 549, it appeared that the papers for appeal were handed over by the appellant to his advocate in the morning of the last day for filing the appeal. Through pressure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on this a priori consideration and did not address himself as he should have to the construction of the section itself. Apparently this view has been consistently followed in Nagpur. In Jahar Mal v. G. M. Pritchard A.I.R. 1919 Pat.503. the Patna High Court has adopted the same line. Dawson Miller, C.J., brushed aside the claim of the appellant for condonation of delay on the ground that ',one is not entitled to put things off to the last moment and hope that nothing will occur which will prevent them from being in time. There is always the chapter of accidents to be considered, and it seems to me that one ought to consider that some accident or other may happen which will delay them in carrying out that part of their duties for which the Court prescribes a time limit and if they choose to rely upon everything going absolutely smoothly and wait till the last moment. I think they have only themselves to blame if they should find that some thing has happened which was unexpected, but which ought to be reckoned and are not entitled in such circumstances to the indulgence of the court." These observations are subject to the same comment that we have made about the Nagpur decision A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1902) L.R. 30 I.A. 20., the Privy Council was dealing with a case where on August 9, 1895 the High Court bad made an order that the appeal in question should be transferred to the High. Court under s. 25 of the Code of Civil Procedure and heard along with another appeal already pending there. In making this order the High Court had given liberty to the respondent to make his objections, if any, to the said transfer. On September 16, 1895 a petition was filed on behalf of the appellant objecting to the said transfer; and the' question arose whether sufficient cause had been shown for the delay made by the party, between August 9, 1895 to September 16, 1895. The decree under appeal had been passed on June 25, 1894 and the appeal against the said decree had been presented to the District Judge on September 1894. It would thus be seen that the question which arose was very different from the question with which we are concerned; and it is in regard to the delay made between August 9, 1895 to September 16, 1895 that the Privy Council approved of the view taken by the High Court that the said delay had not been satisfactorily explained. We do not see how this decision can assist us in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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