Applications under Order XLI, R.19 are strictly governed by Art.168 of the Limitation Act with no applicability of S.5 for condonation.

1. This is an application by the appellant in Civil Misc. First Appeal No.22 of 1956 filed under Order XLI, R.19, CPC for the readmission of the appeal dismissed on 18-12-1959 under Order XLI, R.17 for the default of the appellant. The petition was filed on 7-6-1960 and it is prayed that for reasons mentioned in the petition the limitation may be condoned under S.5 of the Limitation Act .

2. The petitioner filed the appeal against an order of the Subordinate Judge directing him as receiver appointed by Court to pay a sum of Rs.32,525/- to the respondent on the ground that he occasioned loss to the property of which he was receiver by his wilful default and negligence. The respondent filed a memorandum of cross - objections in the said appeal stating that he was entitled not only to the sum already awarded to him by way of damages but to a further amount of Rs.9000/-. The petilioner - appellant was represented by Advocate Mr. N.C. Ghosh and arguments of the said Advocate were heard partly on 20-7-1959. It was then found that without the translation of many other documents relied on both sides further arguments could not be heard and both parties were directed to give the list of documents to be translated. The lists were given, but necessary charges for translation were not paid by the appellant. So the case was posted to 18-12-1959 for orders. On 18-12-1959 Mr. N.C. Ghosh, the appellant's Advocate said that he had no instructions from his client. Hence the appeal was dismissed with, costs for want of prosecution on that date. The memorandum of cross - objections was then heard on the same date and it was allowed.

3. Now the petitioner would say that in the suit in which he was appointed receiver M/S. Das Bank Ltd. was the plaintiff, that he was appointed receiver in 1950 as an employee of the said Bank and to represent the said Bank, that in 1957 he left the services of the Bank, that he naturally expected the Bank to be vigilant about the prosecution of the appeal and to meet the cross - objections therein, that in view of his constant change of address since 1957 and in view of the fact that he had no personal liability in the matter, neither his Advocate Mr. Ghosh nor the Bank informed him about the result of the appeal or the memorandum, of cross - objections, that his Advocate had all the necessary papers for the purpose of conducting the appeal and for meeting the cross - objections, that he now finds that he had been let down by his Advocate by reporting want of instructions, that he came to know of the dismissal of the appeal only when he got notice on 7-5-1960 in Civil Misc. Petition No.3 of 1960, a review application filed by the respondent and so he has come forward with the present application on 7-6-1960 within 30 days from the date of his knowledge and that the delay in filing the petition under Art.168 of the Limitation Act should therefore be condoned under S.5 of the Limitation Act .

4. The learned Advocate for the petitioner stated that his client was willing to let in evidence to show that he did not know of the dismissal of the appeal till 7-5-1960.

5. The respondent took a preliminary objection that S.5 of the Limitation Act will not apply to an application under Order XLI, R.19 and that the petition was hopelessly barred by limitation as it had to be filed within 30 days from the date of dismissal and as it was filed only 5½ months after the said dismissal.

6. This preliminary objection was heard first. The petitioner has brought this application under Order XLI, R.19 and he has admitted that the dismissal of the appeal was under Order XLI, R.17 for the default of his appearance on the date of he