Law: Limitation Act, 1908

Section: 5

Law: Civil Procedure Code (V of 1908)

Section: O.44,R.1

(a) Limitation Act (IX of 1908)------ ----S. 5-Applies to applica­tion under O. 44, R. 1, The language of section 5 of the Limitation Act shows clearly that the intention of the Legislature was that applica­tions of the present kind (i.e., to be allowed to appeal as a pauper) could be admitted after the period of limitation had expired if the conditions required by section 5 of the Limita­tion Act were fulfilled. Section 5 of the Limitation Act was applied by all the High Courts in British India before its parti­tion to applications under Order 45 of the Code of Civil Procedure for leave to appeal to the Judicial Committee of the Privy Council, and there is no reason why it should not apply to applications under Order 44, Rule 1 of the Code of Civil Procedure. Both Articles 170 and 179 speak of applications for leave to appeal and there is no doubt that when mentioning applica­tions for leave to appeal in section 5 of the Limitation Act the Legislature had in view the language of Articles 170 and 179, of that Act and not of any other enactment. But even if at the time of the enactment of that section the Legislature had in view the language of the Code of Civil Procedure their intention may have been not to make applications mentioned in Article 179 subject to the section, but could not have been to exclude applications under Order 44, Rule 1, Civil P. C., from the operation of that section. Ram Pheron v. Sri Ram alias Sri Nath, I. L. R. 15 Luck. 390 ; Sabuddin v. Pundlik, A. I. R. 1927 Nag. 197 not correctly decided. Ram Dulari v. Mst. Allan Bibi, I. L. R. 17 Luck. 628 ; Parbati v. Bhola, I. L. R. 12 All. 79; Sarat Chandra Dev v. Brojeshwari Dassi, I. L. R. 30 Cal. 790 and Ram Charan v. Bansidhar I. R. 1928 All. 499 ref. to. (b) Civil Procedure Code (V of 1908)----- -----O. 44, R. 1­ Application to obtain leave to appeal as pauper is none the less an application to obtain leave to appeal. The rule makes it clear that the application is to obtain leave to appeal and the mere fact that the permission sought is to appeal as a pauper cannot justify the application being treated as not being one for leave to appeal. (c) Limitation Act (IX of 1908)----- -----S.…

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