A. Sambasiva Rao, Ag.C.J.
1. An appeal was presented in this Court with a delay of 3 years 6 months and 22 days. Punnayya, J. dismissed the petition filed under Section 5 of the Indian Limitation Act to condone the delay. This Letters Patent Appeal is against that judgment of dismissal.
2. A suit was filed to recover a sum of Rs. 5,500 and was numbered as O. S. 174/68 in the Court of the Second Additional Judge, City Civil Court. The written statement was filed by the defendants on 17-10-1969 and later the issues were framed. The suit underwent very many adjournments and finally on 18-2-1972 when the defendants, who were twelve in number, were absent, an ex parte decree was passed. They filed a petition under Order. 9, Rule. 13, Civil Procedure Code on 1-3-1972 to set aside that ex parte decree. That was, however, dismissed on 28-2-1974. C. M. A. No. 199/74 was filed against that order of dismissal but that was also dismissed on 7-8-1975. Keeping quiet for a month thereafter, the defendants applied for copies of the ex parte decree on 6-9-1975. They received them on 27-11-1975. Then they presented an appeal against the ex parte decree in this Court on 9-12-1975 with a petition to condone this long delay in filing the appeal.
3. Our learned brother Punnayya, J. accepted the contention of the plaintiff respondent that when two remedies were open to the affected party when an ex parte decree was passed and if one remedy like filing a petition for setting aside that ex parte decree under Order. 9, Rule. 13, Civil Procedure Code was adopted, the affected party cannot thereafter avail itself of the other remedy of preferring a regular appeal against the ex parte decree. The learned Judge relied on two Calcutta decisions in Chandra Rai Chowdhary v. M. Thangini Dessi, ILR (1895) 23 Cal 325 and Rajendranath Kanrar v. Kamal Krishna Kundu Chowdary. AIR 1932 Cal 558 and held that the party, who had unsuccessfully pursued his other remedy under Order. 9, Rule. 13, Civil Procedure Code, cannot also choose to avail himself of the right to prefer a regular appeal against the ex parte decree. He held that the explanation offered by the petitioners for condonation of delay was untenable. In the view he took, he dismissed the petition under Section 5. The unsuccessful defendants 1 to 12 have preferred this Letters Patent Appeal.
4. Sri N. C. V. Ramanujachari appearing for the appellants argued that the view of the learned Judge is wrong and that it is open to the party against whom an ex parte decree had been passed to avail himself of both the remedies available to him under Order. 9, Rule. 13, Civil Procedure Code and also under Section 96 by preferring a regular also under Section 96 by preferring a regular appeal. He contended that under Section 14 of the Limitation Act the time taken for prosecuting the proceeding under Order. 9, Rule. 13 should be excluded and once that is excluded in this case, the presentation of the appeal was in time. He also contended that the dismissal of C. M. A. 199/74 on 7-8-1975 started the period of limitation afresh and it is from that date the time for preferring the regular appeal should be reckoned. Learned counsel relied on Ramachandra Raju v. Satyanarayana Raju, (1963) 1 Andh WR 387, Brij Indar Singh v. Kanshi Ram, AIR 1917 PC 156 and Peerammal v. Nallusami Pillai, AIR 1931 Mad 149.
5. Mr. Syed Amanullah for the plaintiff- respondent, on the other hand, sought to sustain the view taken by Punnayya J. and also contended that Section 14 does not apply to the facts of the case, that it is untenable to say that the dismissal of C. M. A. 199/74 started a fresh period of limitation and lastly that the reasons assigned for the delay that funds were not available cannot be accepted.
6. This is an application clearly and squarely under Section 5 of the Limitation Act. In order to get relief through such a proceeding, the petitioners should satisfy the Court that they had sufficient cause for not preferring the appeal within the prescribed period. It is not in dispute that there was considerable delay. However, a large part of it was spent for prosecuting the petition under Section 14 of the Limitation Act. That petition was filed on 1-3-1972 and it reached culmination through the dismissal of C. M. A. 199/74 on 7-8-1975. Sri Ramanujachari strongly urged that this period should be excluded from the calculation of the period of limitation and that in any case 7-8-1975, which was the day on which C. M. A. 199-74 was dismissed, should be taken as the fresh starting point of limitation. This latter limb of the learned counsel's argument is once again founded on Section 14. The two limbs are patently two facets of the same argument based on Section 14.
7. This argument is devoid of merits. Section 14 of the Limitation Act has no application to the facts of the case. The exclusion of the time postulated by Section 14 can be made only when the other proceeding has been taken in a Court which, from defect of jurisdiction or other cause of a like nature, was unable to entertain it. Such is not the case here. The appellants were perfectly entitled under the law to file petition under Order. 9, Rule. 13, Civil Procedure Code to set aside the ex parte decree and the Court had jurisdiction to entertain the same and also to grant it if it was satisfied that the defendants were prevented by sufficient cause from appearing when the ex parte decree was passed. Likewise, this High Court had power and jurisdiction to entertain the Civil Miscellaneous Appeal 199/74 preferred by the appellants. When this Court dismissed it, it did not dismiss it for reasons of lack of jurisdiction or other cause of a like nature but because it was not satisfied that there was sufficient cause for the defendants' absence when the ex parte decree was passed. Therefore, to invoke Section 14 to the circumstances of the case is wholly untenable. It is likewise unacceptable that 7th Aug., 1975 on which day the Civil Miscellaneous Appeal was dismissed, started a new period of limitation. The cause of action for preferring an appeal against the ex parte decree did not arise on account of the dismissal of the civil miscellaneous appeal but on account of the ex parte decree on 18-2-1972.
8. Reading Section 14 and Section 5 of the Limitation Act, the best that can be spelled out of the two provisions is that when Section 14 does not, in terms apply to any particular proceeding, the fact that the aggrieved party bona fide prosecuted that proceeding may be considered in the circumstances of each case as a sufficient cause for the delay. Each case will have to be decided on its facts. The utmost that can be said is that the delay from 1-3-1972, the date on which Order. 9, Rule. 13 which C. M. A. 199/74 was dismissed, is satisfactorily explained. But then the duty still remains on the defendants-appellants to explain every day's delay. From 1-3-1972 till 7-8-1975 there was certainly delay. By 7-8-1975 the time for preferring a regular appeal against the ex parte decree had long expired. Therefore, it is the duty of the appellants to explain every day's delay from 7-8-1975. In this case they waited till 6-9-1975 i.e., for 29 days to make even the copy application. The copies were received on 27-11-1975. But the appeal was presented only on 9-12-1975, i.e., once again after a delay of 11 days. The only reason that was assigned in the affidavit filed in support of Section 5 application is lack of funds for preferring the appeal. In Banarsidas v. State of U. P., : 1SCR357 it was held that this was not a sufficient ground for condonation of the delay. In any case, the appellants had taken 29 days even to file a copy application and for filing an application, it can, by no stretch of imagination, be pleaded that there were no funds. Therefore, there is no alternative to the conclusion that the appellants have not explained the delay which was caused even from 7-8-1975. The application for condonation of the delay in preferring the appeal deserves no other result excepting dismissal.
9. In this connection we may usefully refer to certain observations of the Supreme Court in Ramlal v. Rewa Coal Fields Ltd., : 2SCR762 . Gajendragadkar, J. (as he then was), stating the view of the Court, observed that in construing Section 5 of the Limitation Act it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties and this legal right which has accrued to the decree-holder by lapse of time should not be lightheartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for execution delay is shown discretion is given to the Court to condone delay and admit the appeal. However, even after sufficient cause has been shown, a party is not entitled to the condonation of delay as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction under Section 5. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration. Considerations of bona fides or due diligence are always material and relevant when the Court is dealing with applications made under Section 14 of the Limitation Act. In dealing with such applications the Court is called upon to consider the effect of the combined provisions of Section 5 and Section 14. Therefore, considerations which have been expressly made material and relevant by the provisions of Section 14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be dealing with applications which fall to be decided only under Section 5 without reference to Section 14. As we have already pointed out, Section 14 does not apply to the present case and that the utmost that can be said is the fact that a petitioner under Order. 9, Rule. 13, Civil Procedure Code was prosecuted may be treated as a sufficient cause within the meaning of Section 5. Even if that is so considered, it does not explain the delay after the conclusion of those proceedings. In this decision, Gajendragadkar, J. (as he then was) referred to the decision of Brij Indar Singh v. Kanshi Ram (AIR 1917 PC 156) (supra) which has been relied on by Sri Ramanujachari before us. This is what the learned Judge said dealing with that decision at p. 366:
'The principal point decided in that case had reference to Section 14 read with Section 5 of the Limitation Act, 1908; and the question which it raised was whether the time occupied by an application in good faith for review, although made upon a mistaken view of the law, should be deemed as added to the period allowed for presenting an appeal. As we have already pointed out, when the question of limitation has to be considered in the light of the combined operation of Section 14 and Section 5 of the Limitation Act the conditions expressly imposed by Section 14 have to be satisfied. It would, however, be unreasonable to suggest that the said conditions must to the same extent and in the same manner be taken into account in dealing with applications falling under Section 5 of the Limitation Act.'
For these reasons, we are of the opinion that the decision of the Privy Council in Brij Indar Singh v. Kanshi Ram, (AIR 1917 PC 156) (supra) does not help the contention of Sri Ramanujachari.
10. Reliance was then placed on a Bench decision of the Madras High Court in Peer Ammal v. Nallusami Pillai (AIR 1931 Mad 149) (supra). There was an ex parte preliminary mortgage decree. It was set aside on the defendants application. However, the High Court allowed the appeal and restored the ex parte mortgage decree. It was held that limitation ran from the date of the restoration by the High Court. That was patently for the reason that until the High Court restored it, there was no ex parte decree, which could be challenged in an appeal because that was set aside on the defendants application. The defendants could not have preferred an appeal, even if they wanted, against the ex parte decree until the High Court restored it. For this reason, this decision has no application to the facts of the present case.
11. Lastly, learned counsel for the appellants sought to derive support from the decision of Anantanarayana Ayyar J. in Ramachandra Raju v. Satyanarayana Raju (1963) 1 Andh WR 387 (supra). The learned Judge relied on Peer Ammal v. Nallusami Pillai (AIR 1931 Mad 149) (supra) and differed from the Calcutta decisions in Chandra Rai Chowdhry v. Matangini Dassi (ILR (1895)) 23 Cal 325) (supra) and Rajendranath Kanrar v. Kamal Krishna Kundu Chowdary (AIR 1932 Cal 558) (supra). In the view of the learned Judge when the application for setting aside the ex parte decree was pending, there was room, scope and possibility for a lawful order being passed in law, setting aside the ex parte decree. Even after the Subordinate Judge dismissed the application, there was similarly room for the High Court setting aside the order of dismissal of the application and in effect setting aside the ex parte decree. Therefore, if the appeal against the original decree had been filed during that period, there was a possibility in law of the appeal becoming infructuous and having to be dropped on that ground. The reason based on possibility in law would hold good even if the Subordinate Judge had not set aside the decree, irrespective of the question whether the order which the Subordinate Judge ultimately passed was by was of setting aside the ex parte decree or by way of refusing to set aside the same. A party would be acting bona fide and with due diligence in not filing an appeal against an ex parte decree when proceedings started by him to set aside that ex parte decree are pending. He cannot be blamed or penalised for not filing an appeal against the ex parte decree during the pendency of such proceedings. It, therefore, follows that the period covered by such proceedings has to be excluded under Section 5 of the Limitation Act. Even supposing that these observations of the learned Judge are good law in view of the decision of the Supreme Court in Ramlal v. Rewa Coal Fields Ltd. : 2SCR762 (supra) the only thing that emerges is that the period covered by the proceedings under Order. 9, Rule. 13, Civil Procedure Code could only be treated as a good reason for the delay. When as in this case, that time only forms part of the delay and there is no satisfactory explanation for the later delay, then certainly the petitioners cannot succeed in their application under Section 5.
12. Sri Ramanujachari relied on the explanation to Section 5 that his client was guided by the decision in Ramachandra Raju v. Satyanarayana Raju (1963) 1 Andh WR 387 (supra), and therefore he was protected by the explanation to Section 5. We cannot accept this contention either. Even supposing for argument's sake that the decision in Ramachandra Raju v. Satyanarayana Raju (1963) 1 Andh WR 387 (supra) applied, it would explain the delay up to 7-8-1975. For the delay thereafter there is no satisfactory explanation. Consequently, the explanation to Section 5 is of no use to the appellants.
13. We do not express any opinion on the ground which appealed to our learned brother Punnayya, J., that once the other remedy has been availed, the aggrieved party cannot take recourse to the remedy of a regular appeal. We have reached the same conclusion of dismissing the petition for condonation of the delay through another reasoning.
14. In the result, the Letters Patent Appeal is dismissed with costs. Now that the appeal is rejected on the ground that it was not presented within the time allowed by the Law of Limitation, one-half of the Court-fee paid on the memorandum of the main appeal shall be refunded to the appellants under Section 63 of the Andhra Court- fees and suits valuation act, 1956.
15. Appeal dismissed.