(1) This civil revision petition arises out of an order passed by the District Judge, Coimbatore, in dismissing an application under S. 5 of the Limitation Act for excusing the delay of 259 days in presenting a civil miscellaneous appeal, against the order passed by the Sub-Court, Palghat, in E.P. 154 of 1959.
(2) The short facts that are necessary for the disposal of this petition are, the petitioner is a decreeholder in O. S. 28 of 1947 on the file of the Sub-Court, Palghat, for about Rs. 13000. At the instance of the decreeholder, the decree was transmitted to Sub-Court, Coimbatore, for execution. The decree-holder then filed E.P. 154 of 1959 on the file of the Sub-Court, Coimbatore, for execution. When an objection was taken by the judgment debtor, the respondent herein that the petition was barred by limitation, the petition was dismissed.
(3) The petitioner filed an appeal straight to the High Court, Madras, as he was under the impression that, as the amount in the execution petition, was more than Rs. 10000, the appeal lies only in this court. The office in the High Court took objection that the appeal does not lie to the High Court, but only to the District Court. When the matter was placed before the court at the instance of the petitioner, an order was passed by Ramachandra Iyer J. (as he then was) to the effect that the opinion of the office was correct in saying that the appeal does not lie to this court; but the Judge observed:
'I cannot say that there was no bona fide doubt in the mind of the petitioner in thinking that this court is the proper court for entertaining the appeal'.
After the order was passed in the above unnumbered appeal in this High Court, and after the receipt of the papers from this court, the petitioner presented the appeal to the District Court, with an application to excuse delay in the presenting the appeal. The learned District Judge dismissed the application agreeing with the contention raised by the judgment-debtor that the petitioner filing an appeal in the High Court was mala fide and it was only a ruse resorted to for the purpose of getting round the normal period of limitation of one month.
(4) It is against this order of dismissal that the petitioner has presented this petition. The contention of the learned counsel for the petitioner is that the learned District Judge ought to have excused the delay in filing the appeal. When the learned Judge in the High Court observed,
'That I cannot say that there was no bona fide doubt in the mind of the petitioner in thinking that this court is the proper court for entertaining the appeal'.
I feel that the District Judge is wrong in coming to the conclusion that the present application is only a ruse to get over the normal period of limitation. The learned Judge should have followed the principle laid down in Brij Indar Singh v. Kanshi Ram ILR 45 Cal 94: AIR 1917 PC 156, where Lord Dunedin observed:
'We think the true guide for a court in the exercise of this discretion is whether the appellant has acted with reasonable diligence in prosecuting his appeal'.
(5) The learned counsel cited a decision reported in Sundar Bai v. Collector of Belgaum ILR 43 Bom 376: AIR 1918 PC 135 where the facts are almost similar: An appeal from a Subordinate Judge from its nature should rightly have been presented to the District Court and not to the High Court, But the appellant had acted on mistaken advice in filing an appeal direct to the High Court. The High Court directed the memorandum of appeal to be returned to the appellant for presentation to the District Court. The appellant then filed an application to the District court, but it was beyond the prescribed period of limitation. Their Lordships of the Privy Council held that the appeal was not barred by limitation; the fact that defendant had acted on mistaken advice as to the law, in appealing to the High Court did not preclude them from showing that it was owing to their reliance on that advice that they had not presented the appeal to the District court within the proper period.
(6) In Parthasarathi Naidu, In re : (1957)2MLJ250 it was held that by virtue of the amendment of the Madras Civil Courts(Amendment) Act of 1956, which substitutes the District Court instead of the High Court, as hitherto the forum for appeals in cases of suits of specified valuation by necessary intendment lay to the Dist. Court. The appellant in this case filed his appeals to the High Court on the day the amendment Act came into force. An objection was taken by the office that the appeals lay only to the District Court. The learned Chief Justice while sitting with Panchapakesa Aiyar J. in : (1957)2MLJ250 observed:
'Taking up these two appeals one after the other we find that the appeal covered by S. R. 12151 of 1957 was filed into this court even before the expiry of the 30 days which is the period allowed by the Limitation Act for an appeal to the District Court. The papers will be returned to the appellant for presentation to the District Court immediately after the reopening of that court. There can be no question of limitation as the appeal to this court was preferred within even the time allowed by law for preferring the appeal to the District Court. In the other cases, however, the appeal would be out of time if it is now presented to the District Court. But having regard to the circumstances of the case and the fact that it was filed in this court within the 90 days allowed by law, any delay in the circumstances should be excused. The papers will be returned to the appellant to be presented to the District Court'.
In another case reported in S.J. Nathan In re : (1958)1MLJ9 an appeal which ought to have been filed in the Principal City Civil Court, by virtue of the amendment of Madras Act X of 1955, was wrongly filed in High Court. The learned judge returned the papers for presentation to the proper court with an observation that the appellant can file a petition to excuse the delay in the peculiar circumstances. It is fit case to excuse the delay'.
(7) Relying on these decisions I am of opinion that the delay ought to have been excused by the learned District Judge specifically when the Judge of this court while returning the papers made an observation:
'I cannot say that there was no bona fide doubt in the mind of the petitioner in thinking that this Court is the proper Court for entertaining the appeal'.
But still the contention of the learned counsel for the respondent is that when the appeal itself was filed in the High Court, it was barred by limitation as it was not filed within 30 days. He is wrong,. The appellant had 90 days time for filing an appeal in the High Court. If he files an appeal in the District Court, it has to be filed within 30 days. Therefore, there is no substance in his contention that as the original appeal itself, when it was filed in the High Court was barred by limitation, he could not present this appeal with an application to excuse the delay. He further contended that the High Court should not interfere with the decision of the lower court in the exercise of its revisional jurisdiction under S. 115 C.P.C. I do not agree, because the learned Judge has not exercised his jurisdiction to see whether there was 'sufficient cause' for not presenting the appeal in the District Court.
(8) In Krishna v. Chathappan, ILR (1890) Mad 269 it was held the words, 'sufficient cause' must be liberally construed so as to advance substantial justice particularly when no negligence nor inaction nor want of bona fides is imputable to the appellant.
(9) In Kayambu Pillai v. Court of Wards, Trichinoploy, AIR 1942 Mad 170 Abdur Rahman J. after referring to ILR (1890) Mad 269 held that the equities on which S. 14 is based may be taken into account though the section may not in terms be applicable. The existence of circumstances mentioned in S. 14 therefore constitutes a sufficient ground for excusing the delay under S. 5, caused by wrong proceedings.
(10) In these circumstances the civil revision petition is allowed. No costs.
(11) Revision allowed.