1. This is a defendants' appeal from an order dismissing an appeal as being barred by time.
2. The claim was decreed by the first Court on 17th of December 1924, and the defendants applied for the copies of the decree and judgment on the 23rd of December. These copies were ready on the 5th January. An, appeal was preferred by the defendants on the 17th of January 1925, through a vakil whose vakalatnama was filed along with the memorandum of appeal. Later on it was discovered that the names of the appellants and the name of the vakil were omitted from the body of the vakalatnama which was, however, signed by the appellants and the vakil. On the 12th of February 1925, one of the appellants who was present filed a fresh vakalatnama duly signed by him with an application praying that the omission might be deemed to have been cured. The learned Judge, however, held against the defendants and dismissed the appeal on the ground that it had not bean properly presented.
3. On the 18th of February 1925, an application for fresh copies was made and granted on the 19th of February on which data a fresh appeal was filed. In an application accompanying the appeal its was prayed that time should be extended under Section 5 of the Limitation Act. Another Judge before whom this appeal came up for hearing has declined to extend the time and has dismissed the appeal as being time-barred.
4. The learned Counsel for the appellants has argued before me that even if Section 14 of the Limitation Act does not in terms apply to an appeal, as it obviously applies only to suits, its principle ought to be applied and that the time from the 17th of January 1925 till 12th February 1925, during which the infructuous ap peal was pending should be altogether excluded. His contention is that if this period is excluded and the time requisite for obtaining copies is also excluded, the appeal filed on 19th February 1925 would be well within time. He has placed a very strong reliance on the case of Narain Singh v. Bikram Singh (1911) 8 ALJ 793. He has further argued that even if the principle underlying Section 14 cannot be made applicable in its entirety, the period spent in prosecuting the previous appeal should be taken into account when considering the extension of time under Section 5.
5. In view of the pronouncement of the Letters Patent Bench in the case of Mohammad Ali Khan v. Jasram AIR 1914 All 536, affirming a judgment of a single Judge reported as Muhammad Ali Khan v. Saktu (1913) 11 ALJ 458, it is clear that the appeal with the defective vakalatnama had not been properly presented and was not a good appeal.
6. As to the applicability of Section 14, Limi. Act, it seems to me that there is a clear distinction between exclusion of the time during which another civil proceeding has been duly prosecuted within the meaning of that section and an extension of time for good cause shown under Section 5. If it wore a question of exclusion then the appellant would be entitled to exclude from all calculation the period during which the previous appeal was pending; but if it is merely a matter of extension than he would be entitled to have time extended up to the last date when the previous proceeding terminated. If time were to be excluded then it is not incumbent on him to explain the delay for the subsequent period provided that the appeal comes within time. On the other hand, if it is only a question of extension then it is necessary for him to explain the delay between 12th February 1925, when the appeal was dismissed and 19th February 1925 when it was filed afresh. All that was decided in the case of Balwant Singh v. Gumani Ram (1883) 5 All 591, was that the circumstances contemplated in Section 14 might and ordinarily would constitute a sufficient cause in the sense of Section 5, Lim. Act. I am, therefore, prepared to concede that in view of the obvious fact that the previous appeal had been filed through an oversight the time during which it was pending should be taken into account while exercising the discretion under Section 5, Limi. Act. But that does not absolve the appellants from their obligation to show that there was sufficient cause for not filing the appeal earlier than 19th February 1925.
7. It has been suggested on behalf of the appellants that only one of the appellants was present on the 12th or 13th February and that some delay was due to the fact that intimation had been given to the other appellants and that they had to come to Azamgarh to apply for fresh copies. It is further said that the application was made on the 18th and as soon as the copies were obtained on the 19th the appeal was filed.
8. Unfortunately for the appellants no affidavit was filed on their behalf before the lower appellate Court, explaining these facts and stating that it was owing to the absence of the appellants that the application for fresh copies was not made earlier than 18th February 1925. It is possible that this delay might have been explained easily, but the appellants failed to file any affidavit or produce any evidence explaining this delay. The lower appellate Court has accordingly held that the appellants have not acted with due diligence in presenting the appeal after a week from the dismissal of the first appeal and have bean guilty of gross delay and carelessness and that no sufficient cause is shown for the delay. In view of the absence of an affidavit explaining the delay the lower appellate Court declined to exercise the discretion vested in it under Section 5, Lim. Act. Although it is obviously a hard case I find it difficult to say that the order passed by the lower appellate Court is either perverse or does not amount to an exercise of discretion. It has been held in several cases by this Court that where discretion has been exercised one way or the other by an appellate Court under Section 5, the High Court will not interfere in second appeal. I may refer to the case of Ahmad. Husain v. Muhammad Fasih Ullah AIR 1923 All 455, and the cases referred to therein.
9. The appeal is accordingly dismissed but having regard to the unfortunate circumstances of this case I direct that parties should bear their own costs of this appeal.