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- Appeal barred by time due to limitation. Analysis: The judgment delivered by Modi Chhangani, J. of the Rajasthan High Court pertains to a defendant's first appeal in a suit for recovery of arrears of rent and damages. The main issue raised was whether the appeal was barred by time, focusing on the question of limitation. The trial court had decreed the suit on 15th February 1960, following which the defendants applied for setting aside the ex parte decree on 20th March 1960. The application was dismissed on 8th August 1960. The defendants then filed the present appeal on 19th August 1960, which was deemed time-barred. An application under section 5 of the Limitation Act was also submitted along with the memorandum of appeal. The defendants argued that they believed the decree was passed under a specific provision of the Civil Procedure Code, leading them to apply for setting it aside at the trial court instead of filing an appeal directly to the High Court. The defendants contended that the time spent on this application should be condoned. However, the court referred to precedents like Ardha Chandra Rai Chowdhry v. Matangini Dassi and other cases, which held that time spent in pursuing an unsuccessful application to set aside an ex parte decree cannot be excluded under section 5 of the Limitation Act when filing an appeal. The court emphasized that pursuing concurrent remedies does not entitle a litigant to exclude the time spent on the first remedy when later opting for a second remedy. The judgment highlighted the principle that a litigant, upon failing on the merits of one remedy, cannot seek exclusion or condonation of time spent on that remedy when resorting to another, except in exceptional cases like a review. Applying this principle to the case at hand, the court concluded that the defendants could not deduct the time spent on their unsuccessful application to set aside the ex parte decree when calculating the period for filing the appeal. Consequently, the appeal was deemed time-barred, and the objection as to limitation prevailed, leading to the dismissal of the appeal. Despite the dismissal, no order as to costs was made considering all circumstances of the case.
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