Judgement

Appeal by special leave from a judgment and decree of the High Court (November 4, 1908) dismissing an appeal from a decree of the additional Subordinate Judge of Tanjore.

The suit was instituted by the first respondent against the appellant and other persons who were joined as respondents to the appeal to the High Court and in the present appeal. The claim was in respect of the estate of the Zamindar of Sillatur, deceased.

The facts material to the question of practice, which alone was argued before the Board and is the subject of the judgment of their Lordships, appear from that judgment.

1917. Oct. 16, 17, 18. Sir Erle Richards, K.C., and Kenworthy Brown, for the appellant. There was no power in the High Court to reconsider the order admitting the appeal. The order was properly made by

Law Rep. 45 Ind. App. 25 ( 1917- 1918) Krishnasami Pandikondar V. Ramasami Chettiar

a single judge under the Rules of the Madras High Court, 1905, r. 1 (1.) (6). The respondents must have had notice of the order, since they filed evidence controverting the affidavit upon which the order was made. The respondents proper remedy was by an application under s. 623 of the Code of Civil Procedure for a review of the order. Review is applicable in the case of an ex parte order Woodroffe and Ameer Ali, Civil Procedure Code, p. 1316. At the time of the hearing the right to apply for a review, or to appeal (if there was that right) was barred by limitation. There is no inherent power in the High Court to reconsider an order of the Court unqualified in its terms; the power, not being given by the Code, does not exist. The procedure followed in the present case was held to be invalid by the Calcutta High Court in Bharrutt Chunder Roy v. Issur Chunder. (( 1867) 8 Suth. W. R. 141.) That decision has not been followed in later cases Dubey Sahey v. Caneshi Lal (( 1875) I. L. R. 1 A. 34 (F.B.)); Jhotee v. Omesh Chunder (( 1879) I. L. R. 5 C. 1.); Bhismadeo Das v. Sita Nath Ray (( 1882) 17 Cal. W. N. 42.), including Venkatrayudu v. Nagadu (( 1886) 1. L. R. 9 M. 450.) in Madras. The procedure is, however, not supported by the Code and is ultra vires. If there was power to reconsider the order admitting the appeal the affidavit evidence shows that there was “sufficient cause " within s. 5 of the Limitation Act for admitting it.

De Gruyther, K.C., and OGorman, for the respondents, were not called upon.

Nov. 8. The judgment of their Lordships was delivered by

SIR LAWRENCE JENKINS. On November 4, 1908, the High Court of Madras dismissed an appeal from an original decree on the ground that it was barred by limitation. From this order of dismissal the present appeal has been preferred, and in its support it has been contended, first, that the order was without jurisdiction and, secondly, that it was erroneous on the merits.

The original decree was passed on February 8, 1905, in the Court of the additional Subordinate Judge at Tanjore in the plaintiffs favour. Against it the first defendant, Krishnasami Pandikondar, preferred an appeal to the Madras High Court. The last day for its presentation was July 10, when the Court reopened after vacation ; but it was not presented until July 12, 1905. It was then returned to the appellant as out of time. It thus became necessary for the appellant to satisfy the Court that he had sufficient cause for not presenting his appeal within the prescribed period. He accordingly again presented his appeal on July 26, supported this time by affidavits purporting to explain the delay. The application for admission came before Sankaran Nair J., sitting as a single judge, and on July 31 he made an order in these terms "Delay excused in the circumstances and appeal admitted."

When notice of this appeal was served on the respondents does not appear, but in the following November affidavits were filed controverting the material allegations in those on which delay had been excused. Further affidavits were subsequently filed on both sid