1. The husband of the appellant before as obtained a decree against a tenant for rent. He obtained an attachment before judgment and after the decree his legal representative, the appellant, was attempting to execute the decree against the property attached. The respondent who claimed the attached property under two bale-deeds (1) from the judgment-debtor to his wife and the 2nd from the wife to himself filed a claim petition under Order XXI, Rule 58. The petition was enquired into by the District Munaif of Bhimavaram. In the order he says 'For the purpose of this petition we are concerned only with the prima facienature of the case.' This shows that he considered the matter as one falling under Order XXI, Rule 58 of the Civil Procedure Code.
2. The appellant then filed an appeal to the District Court of Masulipatam. Ordinarily appeals lie from Bhimavaram to the Sub-Court, Narasapur. The appeal to the District Court was attempted to be justified on the ground that it was an appeal under Section 75 of the Provincial Insolvency Act though Section 47 of the Civil Procedure Code was the section originally quoted and that the Munsifs order was under Section 4 of the Act. Though the Munaif was requested to inquire into the matter under that section he declined to do so.
3. The District Judge held that there was an appeal under: 75 of the Provincial Insolvency Act. The appeal was then presented to the Subordinate Judge's Court of Narasapur as one under Section 47 of the Civil Procedure Code out of time. The Habordinate Judge dismissed it as barred by limitation. Hence this second appeal.
4. In second appeal it is argued that the mistake of the Vakil in this case is a good ground for excusing the delay. The affidavits now filed before us were not before the Subordinate Judge, There was no attempt in the Subordinate Judge's Court to explain the delay.
5. It seems to me, that what happened was, the appellant thinking that there was no appeal against the District Munsif's order under the general law as it was an order passed under Order XXI, Rule 58 resorted to the expedient of interpreting it as an order under the Insolvency Act and filed an appeal to the District Court. There was no idea of filing an appeal under Section 47 of the Civil Procedure Code which was probably abandoned on the ground that it does not lie.
6. In the view I take, I do not think it necessary to discuss the cases cited by the appellant's Vakil. The Vakil's affidavit does not say that he advised that an appeal lay only under Section 75, Provincial Insolvency Act or that no appeal lay under Section 47 of the Civil Procedure Code. The appeal finally filed in the sub-court of Narasapur was an afterthought.
7. The Subordinate Judge is right and the Civil Miscellaneous Second Appeal is dismissed with costs.
8. I agree. I understand the reported cases Shib Dayal v. Jagannath Prasad : AIR1922All490 and Karakkattitathil Rayarappa Nambiar v. Koyotan Chable Veetil 45 Ind. Cas. 489 : 35 M.L.J. 51 : 24 M.L.T. 28 : 8 L.W. 154, to have established that the mistake of the Vakil may be pleaded as sufficient ground under Section 5 to excuse limitation, but they do not go so far as to make such mistake in all circumstances conclusive ground.
9. A party himself cannot file an appeal after the expiry of time and merely say no more than that he was prosecuting it on the wrong Court; and his Vakil has no greater license in this respect.
10. In the present case no explanation of the Vakil's treatment of the matter was offered to the lower Court. An affidavit has been filed in this Court which really explains nothing. Merely because insolvency matters were discussed in a proceeding before a District Munsif acting in the exercise of his ordinary jurisdiction no one can have imagined that an appeal could really lie to the District Court as if from an Insolvency Court. Where the mistake is both stupid and unaccountable the suspicion of ulterior motive can hardly be said to have been displaced, even assuming that it is necessary to find such ulterior motive before holding that there is no sufficient ground.