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TMI Blog1963 (5) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... 1955, final decree was passed on June 23, 1955. The first application for execution of the decree presented on August 30, 1955, was dismissed for default on October 4, 1955, on account of the decree-holder not taking any steps as a result of the report of the process-server dated September 14, 1955, stating that the defendant Kalospshi Banerji had died. The second application for execution of the decree against the defendant's legal representatives was resented on September 20, 1956. On January 30 1957, the respondents filed an objection under s. 47 of the Code and on March 1. 1957, they disclosed the date of death of Kalosashi to be July 20, 1954, by producing a certified copy of the death register showing the date. Thereafter, the appellant filed the application for substitution, on setting aside the abatement. The respondents opposed this application and the learned Subordinate Judge, however, held that the appellant had established that it was prevented by sufficient cause from continuing the suit and, allowing the application, set aside the abatement of the suit. The respondents then went up in revision to the High Court. The High Court disagreed -with the Subord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion or the illegal assumption of jurisdiction by a Court and is not directed against conclusion of law or fact in which questions of jurisdiction are not involved : See Bala Krishna Udayar v. Vasudeva Aiyar ((1917) L -R. 44 1. A. 261, 267); M/s A. Batchamian Sahib and Co. v. A. N. Channiah (C. As 452 and 487/62 decided on 19.10.1962). This legal position is not disputed for the respondents. It is however contended for the respondent that a decision on a question of limitation involves the question of jurisdiction and in support of this contention reliance is placed on the case reported as Joy Chand Lal Babu v. Kamalaksha Chaudhury (1949) L R 76 I.A. 131,142). This case laid down no different principle of law. What it said in that connection was quoted with approval in Keshardeo Chamria v. Radha Kissen Chamria (1953) S.C.R. 136,152) and those observations are : There have been a very large number of decisions of Indian High Courts on section 115 to many of which their Lordships have been referred. Some of such decisions prompt the observation that High Courts have riot always appreciated that although error in a decision of a subordinate court , does not itself involve that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is made beyond the period of limitation prescribed. The Court had no choice and if in construing the necessary provision of the Limitation Act or in determining which provision of the Limitation Act applies, the Subordinate Court comes to an erroneous decision, it is open to the Court in revision to interfere with that conclusion as that conclusion led the Court to assume or not to assume the jurisdiction to proceed with the determination of that matter. Section 5 of the Limitation Act, on the other hand., empowers the Court to admit an application, to which its provisions arc made applicable, even when presented after the expiry of the specified period of limitation if it is satisfied that the applicant had sufficient cause for not presenting it within time. The Court therefore had jurisdiction to determine whether there was sufficient cause for the appellants not making the application for the setting aside of the abatement of the suit in time and, if so satisfied, to admit it. Babu Ram'S case (1), referred to in the observations relied on for the respondent was a case, which according to the reports, was a case in which the application for setting aside the ex parte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neous, he refused to exercise a jurisdiction vested in him by law, and it was open to the High Court to act in revision under sub-s. (b) of s. 115. and thenfollowed the observations already quoted above. It is clear that on the decision of the questionthe Subordinate Court had to determine in , that case depended its very jurisdiction to take action under that particular Act. It had the jurisdiction to decide the question, but it could not give jurisdiction to itself or give up the exercise of its jurisdiction in the matter on the basis of its finding if that be erroneous. Neither the facts of that case are comparable to the facts of the present case nor the observations relied on the learned counsel for the respondents can be applicable to this case, as here the Subordinate judge had jurisdiction to decide both the questions of 'fact viz., whether the appellant had sufficient cause for not making an application for setting aside the abatement of the suit within the period prescribed and therefore had sufficient cause for the Court's exercising its discretion in extending the period of limitation in view of the provisions of s. 5 of the Limitation Act and also the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al period the plaintiff served under war conditions was 4 years 6 months and 3 days. The question was whether this entire period had to be excluded in computing the period of limitation for making the application for setting aside the dismissal of the suit. The Subordinate Judge excluded it and' the High Court considered it unjustifiable to exclude the period prior to December 14, 1942, the date of the decree, as that period could not have in any way prevented the plaintiffs in making the application for the setting aside of the dismissal order. Here again, the error committed by the Trial Court was not in coming to a finding of fact in connection with the provisions of s. 5 of the Limitation Act which applied to such applications but on the Court's deciding the question of limitation in connection with which sub-s. (2) of s. 10 followed practically the language of s. 3 of the Limitation Act as it said that no such application would be entertained unless it was made within a certain time. We arc therefore of opinion that the High Court fell in error in interfering with the finding of fact arrived at by the Subordinate judge with respect to the appellants having sufficien ..... X X X X Extracts X X X X X X X X Extracts X X X X
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