1. This is an application by the petitioner under Section 5 of the Lim. Act, asking that the time for appealing from an order made in the course of execution proceedings dismissing his application under O. 21, R. 90 of the CPC, may be extended. The facts appear to be shortly these: The applicant was the judgment-debtor under a decree held by the opposite party. In execution of the decree for costs amounting to Rs. 1,300 certain property of the judgment-debtor was attached and advertised for sale. The petitioner thereupon filed a petition under O. 21, R. 90, but owing to circumstances which he refers to in his present petition he was not present before the Subordinate Judge when the matter came up for hearing. He States in his petition that he had good grounds for not being present. However owing to his absence his application under O. 21, R. 90 was dismissed for default. Immediately afterwards, within a day or so, he ??? proceedings under O. 9, R. 9, ??? C., asking that the case should ??? and heard on the merits, ??? cation came on for hearing on 17th May, 1919. In the meantime it appears that by a decision of a Full Bench of this Court it had been ruled that O. 9, R. 9, and other rules of the CPC, which related to suits had no application to proceedings in execution and therefore the learned Judge rejected that application on the ground that he had no jurisdiction in the matter. Before the decision of this High Court referred to there can be no doubt that in the subordinate Courts O. 9, R. 9, and other rules of a similar kind had been applied to proceedings in execution and therefore the petitioner contends that, owing to this practice which had hitherto prevailed to a large extent at all events in the Subordinate Courts, he had been misled and lulled into security, because thinking that he could get all he wanted by an application under O. 9, R. 9, if he could show any merits, it was not necessary for him to file a memorandum of appeal from the order dismissing his application by which he was aggrieved.
2. Section 5 of the Lim. Act, provides that any appeal or application for review of judgment or for leave to appeal or any other application to which the section may be made applicable by any enactment or rule for the time being in force, may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. Therefore it would appear, prima facie, in the circumstances of this case that the applicant was misled by the practice which had hitherto prevailed in the subordinate Courts but which has recently been held to be wrong. Therefore he contends that under the provisions of Section 5 of the Lim. Act, indulgence ought to be extended to him because he made a bona fide mistake and he could not foresee the consequences. Therefore, if the time which was occupied by the applicant in endeavoring to have his case reinstated under O. 9, R. 9, be deducted from the total period between the order appealed against and the filing of the memorandum of appeal, which was on 26th June this year, he is clearly within time because, on 7th December, his application under O. 21, R. 90, was rejected and within a day or two of that he filed an application to have his previous application reinstated under O. 9, R. 9, and that was not heard until 17th May, 1919. Between 17th May and 26th June is little more than a month, so that it would appear if an indulgence is granted under Section 5 of the Lim. Act, that he was well within the time allowed for an appeal from such an order, which is 90 days.
3. It is contended, however, that he has not shown due diligence between 17th May when his application was rejected and 26th June when his memorandum of appeal was filed, and that no real reason has been assigned why he should have waited something rather over a month before filing his memorandum of appeal. This matter however has been dealt with more or less recently in a decision of their Lordships of the Privy Council in the case of Brij Indar Singh v. Lola Kanshi Ram(1) and the effect of that decision which is shortly described in the head-note is this: An appellant applying under Section 5 of the Lim. Act, ought ordinarily to be deemed to have acted with ordinary diligence, when the whole period between the date of the decree appealed against and the date of presenting the appeal does not, after excluding the time spent in prosecuting with due diligence a proper application for review of judgment, exceed the period prescribed by law for presenting the appeal, and his appeal should in such a case be admitted under the section. It would appear therefore that in this case, excluding the time which was occupied, in taking proceedings which proved infructuous owing to a change in the law as laid down by this Court, the time occupied by the applicant in filing his memorandum of appeal was only something very little over a month. It does not seem to me that where he is in fact allowed 90 days and excluding the time mentioned only takas slightly over a month, it can be said in any view of the case that he has not acted with due diligence in seeking the only remedy which was open to him. Therefore I think this application, so far as that objection is concerned, ought to be admitted.
4. It was further contended on the authority of the case of Dwarka Singh v. Layakat Ali Khan(2) that it is not always a sufficient cause for presenting an appeal after time that the appellant was unsuccessfully prosecuting an application for review of the judgment appealed against. I quite agree that the fact that there was such an application is not in all circumstances a reasonable cause for not having presented an appeal, but in the particular circumstances of the case mentioned it appears that the classes of cases in which the Court would hold that the prosecution of an application for review is not sufficient cause for extending the time for an appeal, are those classes of cases in which the review is really only a small matter and does not necessarily cover the same class of relief as the applicant would get by an appeal. Of course in such a case it is quite obvious that if he were intending to seek the larger remedy which he could not get by a review, then he ought to show due diligence, notwithstanding his review in filing his appeal.
5. If he does not do so, it can hardly be said in such circumstances that the application for review was a good reason for not filing his memorandum of appeal. Or again where it is obvious that his review application cannot be heard and determined before the time limited for an appeal expires, then in such a class of cases possibly that fact may be taken into consideration in weighing all the circumstances and seeing whether in the discretion of the Court Section 5 of the Lim, Act, may be taken advantage of. In the particular case before us I do not think that any ground has been made out why the application should not be granted either on the ground of laches on the part of the applicant or on the ground that his application under O. 9, R. 9, would not really grant him at least as much relief as he would get by the present appeals in my opinion this application should be granted and the time for appealing should be extended until 26th June, 1919.
6. Foster, J.:— I agree.
V.S/R.K
7. Application granted.