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TMI Blog1961 (1) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... hen made to the trial Court by the defendants for setting aside the exparte decree on the 20th of March, 1960. This application was dismissed on the 8th of August, 1960. The present appeal was then filed in this Court on 19th of August, 1960, and was obviously barred by time. An application under sec. 5 of the Limitation Act was also filed by the defendants along with the memorandum of appeal. 4. The main ground made in this application is that the appellants were under the impression that the decree, which was passed against them on the 15th of Feb., 1960 in their absence, was passed really under O. 17 R. 2 of the Code of Civil Procedure, and therefore, they thought it proper to file an application to the trial Court itself for having i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itation Act. We have given our careful and anxious consideration to this contention and have come to the conclusion that it has force. We would now refer to a few cases which support us in the view we have felt persuaded to accept. In Ardha Chandra Rai Chowdhry v. Matangini Dassi(1) the plaintiff's suit was decreed on the 13th of April, 1893. On the 10th May one of the defendants who was not represented at the proceeding of the suit made an application to have the decree set aside. On the 30th November; 1893, the Subordinate Judge rejected the application. On the 24th February, 1894 the defendant filed an appeal to the High Court against the order of the subordinate court rejecting his application, and that appeal was dismissed on the 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings to set aside the ex-parte decree, did not constitute sufficient cause within the meaning of sec. 5 of the Limitation Act inasmuch as it was open to the defendants to pursue the current remedy of preferring an appeal against the ex parte decree on the merits while he was prosecuting his application to have the ex parte decree set aside. It was further observed that the result of accepting the contrary view would lead to unnecessary waste of time, for it was conceivable that, after his appeal from the order of the lower court refusing to set aside the ex parte decree was dismissed, the defendant may resort to the remedy of applying in revision to the High Court, and thus very considerable time would be thrown away in the filing of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... among the days limited for appealing, out should be added thereto, and a memorandum of appeal filed within such extended period should be received as presented within time. It must be remembered, however, that in arriving at this decision their Lordships were greatly impressed by the submission which was put forward before them, and which was in fact accepted, that there was a rule of procedure sanctioning that course which had been laid down by Full Benches of various High Courts in India, and an upsetting of that practice was likely to cause great inconvenience, and it was because of this special consideration that their Lordships expressly said that they would not propose to interfere. It is clear, therefore, that this decision must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial Court should be considered as an order under O. XVII R. 3, Civil Procedure Code, and that Page: 298an appeal lay directly from that order as a decree. Thereafter, the plaintiff filed an appeal to the High Court on the 26th September, 1950 along with an application under sec. 5 of the Limitation Act. It was held that although sec. 14 of the Limitation Act was not directly applicable to appeals, the principle underlying it should be applied to appeals in considering an application under sec. 5 and, therefore, the existence of circumstances contemplated by sec. 14 may be regarded as a good ground for excusing the delay caused by the wrong proceedings, and that would afford a sufficient cause for the condonation of the delay within the mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d protraction of litigation which would be entirely avoidable on the view which we have felt disposed to accept as correct. 9. The broad principle, that is deducible from the discussion made above, by pre-ponderence of judicial opinion in our country is, that where it is open to a litigant to adopt concurrent remedies, and he adopts one of those remedies, and fails on the merits, then when he later chooses to adopt the second remedy, he cannot be held entitled (save in the exceptional case of a review where such an application would properly lie) to the exclusion or condonation of time which has been spent by him on the prosecution of the first remedy, the ratio being that it was perfectly open to him to pursue the second remedy while he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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