Aston, J.:— The order under appeal was passed on the 25th February 1899 in execution proceedings. The proper remedy of the party not satisfied with that order was to appeal to the District Court: Gowri v. Vigneshvar (1892) 17 Bom. 48. The period of limitation for such an appeal, as provided by the Limitation Act, is 30 days. The proceeding actually taken by the present appellant was however a suit filed on the 24th February 1900, and on the 30th September 1903 it was decided, in the first appeal in that suit, by the District Judge that the suit was barred by section 244, Civil Procedure Code, i.e, it was pointed out to the appellant, in this very litigation, that he had gone to a wrong Court and taken wrong proceedings.
Nevertheless the appellant, instead of taking the right course and appealing at once from the order of 25th February 1899, waited until the 4th January 1904, when he filed in the District Judge's Court his appeal against that order. He also appealed to the High Court against the appellate decree of 30th September 1903 in his suit. The District Judge decided that there was no sufficient reason for not presenting the appeal in time, and dismissed the appeal with costs as being barred by limitation. Against this decision the present appeal is brought.
Mr. Branson has relied on section 5 of the Limitation Act, which provides that any appeal or application for review of judgment may be admitted after the period of limitation provided therefor, when the appellant satisfies the Court that he bad sufficient cause for not presenting the appeal within the period prescribed. Mr. Branson's main contention was that although wrong proceedings were taken in the wrong Court through mistake of law, still those proceedings were prosecuted Page: 36bond fide. The ground, however, upon which the District Judge has held that sufficient cause was not shown for not bringing the appeal within the proper period of limitation, is stated in the concluding portion of the judgment as follows “:—
“Assuming that ignorance of the law could be in these circumstances a sufficient excase, was it not the duty of the appellants to file their appeal within the time allowed by law from the date of the decision of this Court, for, after that decision they must have known that there was considerate doubt as to the correctness of the course which they were following. I do not think that sufficient cause is shown.”
There has been a delay from the 80th September 1903 to 4th January 1904 in presenting the appeal. After the decision of the 30th September 1903 the appellants must have known that there was considerable doubt about the correctness of the course they were following.
The present appeal being an appeal against the exercise of discretion, it is for the appellant to show that the lower Court has exercised its discretion capriciously or arbitrarily or without proper material to support its decision (vide the case of Parvati v. Ganpati (1898) 23 Bom. 513). In Ranchodji v. Lallu (1882) 6 Bom. 304 it was held that “where the law leaves a matter within the discretion of a Court, and the Court, after proper enquiry and due consideration, has exercised the discretion in a sound and reasonable manner, the High Court will not interfere with the conclusion arrived at, even though it would itself have arrived at a different conclusion.”
And in the case of Karsondas v. Bai Gungabai (1905) 30 Bom. 329 at p. 330, 7 Bom. L.R 965 it has been; held that “when the time for appealing is once passed, a very valuable right is secured to the successful litigant: and the Court must, therefore, be fully satisfied of the justice of the grounds on which it is sought to obtain an extension of the time for attacking the decree, and thus perhaps depriving the successful litigant of the advantages which he has obtained.”
Having regard to the delay which occurred in presenting this appeal between 30th September 1903 to 4th January 1904, we do not think that it is open to the appellant to contend that the Page: 37District Court has exercised its discretion under section 5, Limitation Act, in a capricious or arbitrary manner. We, accordingly, confirm the decree of the lower appellate Court with costs.
Decree confirmed.
R.R