Pramada Charan Banerji and Gokul Prasad, JJ.
1. This was a suit for the demolition of certain constructions alleged to have been made by the defendant. It was decreed by the Munsif on the 26th of February, 1917. On the 2nd of April, 1917, the defendant preferred an appeal to the District Judge from the decree of the court of first instance. The memorandum of appeal was signed and presented by two pleaders, who held a vakalatnamah, in the body of which their names were not mentioned but at the foot of which there was an acceptance of the vakalatnamah by both the pleaders.- When the appeal came on for hearing an objection was taken to the [effect that as the names of the pleaders had not been mentioned in the body of the vakalatnamah the presentation of the appeal by those pleaders was an invalid presentation and the appeal could not be entertained. Two days before the date on which the appeal was decided a petition was filed by the appellant supported by an affidavit in which he stated that the names of the pleaders had been omitted from the vakalatnamah through an over-sight, that the same pleaders had appeared for him in the court of first instance and that when the petition of appeal was presented he accompanied the pleaders and presented the petition of appeal to the Munsarim of the court. In that petition he further asked that, if this presentation was not deemed to be sufficient, the memorandum of appeal might be deemed to have been presented on the date of the application and that in view of the facts stated in the affidavit the appeal might be admitted by the court in the exercise of its powers under Section 5 of the Limitation Act, With that application a fresh vakalatnamah containing the names of the same pleaders and accepted by them was filed. The learned Subordinate Judge dismissed the appeal, hoi ling that it had not been properly presented, and purported to follow the ruling of this Court in the case of Mahammad Ali Khan v. Jas Ram (1913) I.L.R. 36 All. 46 which was affirmed in Letters Patent Appeal. It does not appear whether in that case the vakalatnamah had been accepted by the pleader. If the vakalatnamah had been accepted by the pleader, as was the case in the present suit, we think it would be too technical to hold that the vakalatnamah was not a valid authority to the pleader to appear because his name did not appear in the body of it. However, in the present case it is not necessary to enter into that question, inasmuch as in our opinion the court ought to have exercised its discretion under Section 5 of the Limitation Act, and admitted the appeal as presented on the 19th of December, 1917. The court refused to apply Section 5 not because in its opinion there were no valid reasons for admitting the appeal after time, but simply because the court thought that the petition of appeal was not in proper form. As a matter of fact it was in proper form. It was signed by the pleaders who were given an authority to appear at least on the 19th of December, 1917. We think that the court below should have admitted the appeal under Section 5 of the Limitation Act and heard and decided it on the merits. We direct that the appeal to the court below be admitted under Section 5. We allow the appeal, set aside the decree of the court below and remand the case to that court with directions to restore the appeal to its original number and to dispose of it according to law. The parties will bear their own costs of this appeal.