BHIMRAO RAMRAO Vs. AYYAPPA YELLAPPA

JUDGEMENT

(1.) The order under appeal was passed on the 25 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/s. Vigheahvar (1982) I.L.R. 17 Bom. 49. The period of limitation for such an appeal, as provided by the Limitation Act, is thirty days. The proceeding actually taken by the present appellant was however a suit filed on the 24 February, 1900, and on the 30 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.

(2.) Nevertheless the appellant, instead of taking the right course and appealing at once from the order of 25 February 1899, waited until the 4 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 30 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.

(3.) 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 had 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 bona 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 cricumstances a sufficient excuse, 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 considerable doubt as to the correctness of the course which they were following. I do not think that sufficient cause is shown.