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TMI Blog1954 (1) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... plication had been dismissed, he would concede at once that the point should be decided in favour of the appellant. He added that we might proceed to consider the application on its merits or send it back to the learned Judge for disposal by him. It was, however, brought to our notice that there was a reported decision of P. B. Mukharji. J. himself, given in another case, according to which the application in the present case would be time-barred. We, therefore, thought that it would not be proper for us to decide the issue of limitation in the appellant's favour merely on the concession of Counsel without giving due consideration to the reasons given by the learned Judge in support of the view held by him. Such consideration appeared to us to be all the more necessary, because we were informed that, on the identical point, there was also a decision by Bachawat J. in which a contrary view had been taken. As there is obviously a conflict of opinion on a question of law and procedure affecting applications made on the Original Side of this Court, we thought it proper to give a decision on it. 3. The facts are as follows. On 21-11-1950, the respondent, Manick Lal Seal, broug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the 6th September, but the petitioner did not get the application noted as made on that day. On the 6th September the application was adjourned to the 13th September and again the petitioner did not have the application noted as made even on that date. On the 13th September the application was adjourned till the 16th and on the 16th it was heard and dismissed as barred by limitation. 6. In giving his reasons, P. B. Mukharji J. pointed out that under Article 163, Limitation Act, the relevant period of limitation was thirty days from the date of dismissal and, therefore, the application was plainly barred by time, even on the day on which the notice of motion had been taken out. It had however been argued before him that in a case where he plaintiff had no knowledge of the decree at the date it was passed, the starting point of limitation would be the date of the plaintiff's knowledge, which in that case was said to have been 11-8-1949. P. B. Mukharji J. did not accept that view of Article 163, but he proceeded to hold that even assuming that the starting point of limitation was 11-8-1949, the application was still out of time, because it was not made within the meaning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing adjourned to 19-1-1953. On the 19th it was further adjourned to the 27th January and the hearing of the application commenced on that date. It was argued on behalf of the respondent to the application that the application was not made within three months from the commencement of the Ordinance, that is, within 21-1-1953, Bachawat J. held that an application was made to a Court when the Court took cognisance of it and that in the case before him, it had been made, first, on 22-12-1952, then on 19-1-1953, and, lastly, on 27-1-1953. He referred to the provisions of Rules 6 and 15 of Chapter 20 of the Rules of the Original Side and held that under the provisions of those Rules, orders giving directions for the filing of affidavits or granting adjournments were judicial acts. He added that although an application was not made when a notice of motion was taken out, as held in certain earlier cases and finally in -- 'Shree Chand Daga v. Sohanlal Daga' AIR1943Cal257 , there were expressions of opinion in those cases to the effect that an application was made when it was mentioned to the Court or when the Court took cognisance of it and, upon taking cognisance, passed an ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. Usually, the Court gives directions for filing the affidavit-in-opposition and the affidavit-in-reply and adjourns the application to a subsequent date, as was done in the present case on 7-4-1952. Such an order is made under Rules 11 and 15 of Chapter 20 of the Rules of the Original Side. Unless such an order is made under Rule 11, giving leave to the parties to file the affidavit-in-opposition and the affidavit-in-reply on certain future dates, no such affidavits can be used at the hearing, if they were not filed before the date named in the notice of motion -- see Rules 7 and 11; and unless an order is made under Rule 15, adjourning the hearing of a motion to a future date, it must be heard on the first date of hearing and cannot be heard on a subsequent date -- see Rule 15. The direction for filing affidavits on subsequent dates is made on the prayer of the parties and the order for adjournment is made with their consent. It would thus seem to be clear that when the Court is asked to adjourn the hearing of the application or to give leave to the parties to file affidavits on a subsequent date, the application is brought to the notice of the Court and the Court is m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proach is with, regard to some incidental matter, belonging to a stage prior to the making of an application. Although, therefore, this Court has not accepted the Bombay view that the filing of a notice of motion in the proper office of the Court for signature and seal is making an application for the purposes of limitation, or the Madras view that an application is made when the notice of motion is issued, it has never been held--nor is there any reason for holding -- that an application is not made even when the motion comes up before the Court, the Judge gives direction for the filing of affidavits and adjourned the hearing to a subsequent date. 13. In my view, the application was made in the present case on 7-4-1952, which was the first day of the hearing of the motion and when the Court gave directions for the filing of affidavits and adjourned the hearing to the 28th of April. As the decree was passed on 28-3-1952, the application was within time. 14. There was some discussion at the Bar as to what further orders we should make in case we decided the issue of limitation in favour of the appellant. It was suggested on behalf of the respondent that we might proceed to hea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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