Walter Schwabe, C.J.
1. In my Judgment this preliminary point fails. By the rules in existence, if a petition of appeal is presented out of time the grounds for the delay must be stated so that when the matter comes before the Admission Court, the Court may decide whether it shall be admitted, notwithstanding its being out of time. In this case it appears that the case came before Napier, J. That learned Judge accepted the excuse and admitted the appeal. Within a short time of that date the respondent must have been perfectly aware that the appeal was admitted. As has been decided by the Privy Council in Krishnasami Panikondar v. Ramasami Chettiar 43 Ind. Cas. 493 : 41 M. 412 : 34 M.L.J. 63 : 4 P.L.W. 54 : 16 A.L.J. 57 : 7 L.W. 156 : 23 M.L.T. 101 : 27 C.L.J. 253 : 2 P.L.R. 1918 : 22 C.W.N. 481 : 21 Bom. L.R. 541 : 11 Bur. L.T. 121 : (1918) M.W.N. 906 : 45 I.A. 25 (P.C.) he could have moved the Court to set aside the leave to appeal although out of time. He did not do so. But he says: 'Never mind. I am not going to ask you to do it now. When the case comes on for hearing on appeal, I shall then take it not by way of motion but by way of a preliminary point to the appeal.' In the first place, in my judgment it is not a preliminary point at all and any such applications ought to be done by way of motion. There is no motion before the Court. But I will assume that there is a motion before the Court. We have been told by the Vakil what would be put before us on such a motion and if that motion were before the Court I should refuse it. I should refuse it on the ground that it is much too late. A Court will never allow people to wait upon their rights while the other party incurs expenses; and in a case of this kind, it being open, as was found in the Privy Council case, to the respondent to move the Court to set aside the leave, he did nothing of the kind. He has waited for a period of one year and half until all the expanses of the hearing have been incurred and now comes into Court and says that the appeal should be dismissed because it was originally out of time. I should never entertain such an application and I do not propos; to listen to it to-day.
2. I agree. I think it is sufficient to say that there is no application before us to set aside Napier, J's ex parte order such as there was in the Privy Council case which has been quoted.