1. This application is for a certificate entitling the applicant to appeal to His Majesty in Council from an order of this Court, dated the 4th November 1908, dismissing an appeal on the ground that it was not preferred within the period prescribed by the Limitation Act. In that order the Court gave its reasons for declining to exercise the power to excuse delay conferred by Section 5 of the Limitation Act and dismissed the appeal with costs.
2. Taking it in the applicant's favour that this order is a final order passed on appeal by the High Court (Section 109 (a) Civil Procedure Code), we are of opinion, none the less, that the applicant is not entitled to the certificate applied for.
3. In the first place we think the order of this Court is an order affirming the decision of the Subordinate Judge within the meaning of Section 110 of the Code. We think that the right view of this question was taken in Beni Rai v. Ram Lakhan Rai I.L.R. (1898) A. 367 and that an order the result of which is that the lower court's decision stands unaltered as a result of the disposal of the appeal from it, is an order affirming the decision of the lower court. This view receives some sup. port from the decision of the Privy Council in Tassadug Rasul Khan v. Kashi Ram I.L.R. (1902) A. 109 where it is pointed out that what has to be affirmed is the decision and not the judgment, though no doubt that case is not entirely on all fours with the present case.
4. The order therefore being an affirming order, we have to see whether a substantial question of law is involved in the appeal. We think there is none : it is conceded that there is no question of law dealt with by the order appealed from; but it is urged that that order itself is contrary to law because a learned Judge of this Court had in an exparte order dated 31st July 1905 excused the delay and admitted the appeal.
5. No objection was taken at the time of the hearing by the Division Bench to the competency of the Court to determine the respondent's objection based on limitation and it has always been the practice of this Court to hear such objections and determine the question of limitation irrespective of the order made without notice to the respondents.
6. In these circumstances we should not be justified in holding that this contention involves a substantial question of law.
7. Then it is contended that the case in the court of first instance involved a substantial question of law and that inasmuch as if their Lordships held that the order of this Court was wrong it will be within their competence instead of directing this Court to hear this appeal to go on and determine it themselves therefore the appeal must be held to involve a substantial question of law. We think this is not so : the appeal is from an order of this Court which decides that the appellant has precluded himself from calling in question the decree of the Subordinate Judge and we think though not without some doubt that the only question that can properly be said to be involved in that appeal is the question whether that order is right or wrong.
8. We must dismiss the application with costs.