1. This is a petition against an order amending a decree. It was presented 168 days after the order complained of. Following the decision in Visvanathan Chetti v. Bamanathan Chetti(1) I must take it that the petitioner should have appealed against the amended order and not petitioned under Section 115 of the CPC. That case is sought to be distinguished before me in two ways. First it is argued that in that case if the proper proceeding was to been appeal, then the appeal would have lain to another Court and that the High Court could not therefore have proceeded on the basis that the petition was an appeal. I accede to that distinction to a certain extent. If that were the only objection to the proceedings, it might have been proper for me to consider whether the present petition should not be treated as an appeal and whether it should not proceed on that basis. But that would not meet the second objection which is the delay, and curiously enough the second point on which the decision is sought to be distinguished by the petitioner's pleader is the fact that in the present case the decree was amended several years after the original decree had been passed, the original decree having been passed in 1903 and amended in 1911. I do not think that will make any distinction.
2. The point decided in Visvanathan Chetti v. Bamanathan Chetti was that Section 4 of the Lim. Act, provided a means by which the delay in appealing could be excused.
3. But I will assume that the circumstances of this case are sufficient for the petitioner to have considered that it would be more proper for him to come by way of a revision petition than by way of an appeal, and that the fact that in this case the decree was amended several years after it was originally passed, whereas in Visvanathan Chetti v. Bamanathan Chetti it was amended soon after it was passed, distinguishes the present case from the reported decision. Making all allowance for this, I do not see my way to excuse the long delay in presenting this petition. The order was made on 3rd February 1912. The first time that the petitioner came to the High Court was on 16th July 1912. He then came with an application in a wrong form. The present petition in the proper form was not presented till 12th September 1912. But I am asked in the first place to consider the present petition as having been presented on 16th July 1912, and in the second place in regard to the making of the first application (which was admittedly in wrong form) to excuse all time during which the Courts were closed for the vacation. The vacation commenced, I presume, about the beginning of May 1912. The delay between February and May is in itself so great that, taking into consideration the fact that the actual petition with which I have to deal was not presented till 12th September 1912, I think I am justified in saying that the petitioner has been dilatory and that he has made out no case for obtaining the indulgence of the Court on the various points on which he has failed to observe that strict form of the law. It seems to me that this is a case in which it would not be proper to excuse this delay and hear the petition now. The petition will be dismissed with costs.
S.N/R.K
4. Petition dismissed.