The petition seeks to revise the orders of the District Munsif of Beawada in Interlocutory Applications Nos. 1317 and 1318 of 1926 excusing delay in the presentation of an application undef Order XI, Rule 4 which otherwise would be barred by limitation.
The learned District Munsif has confined himself to the laconic order, 'suit restored to file;' thereby arrogating to himself a general power of dispensing with the Law of Limitation which is certainly beyond his jurisdiction. Had he applied his mind to the law and facts of the case, this Court might consider whether its interference were warranted; but the present proceeding gives room for no such question. Original Suit No. 450 of 1925 was dismissed for default on 27th July, 1926. The plaintiff applied for copy on 29th July, 1926, and obtained it on 5th August, 1926. He appealed against the decree on 2nd September, 1926, and was informed on 27th October, 1926, that he had misconceived his remedy and should apply to set aside the order of dismissal under Order XI, Rule 4. On 18th November, 1926, he made the application. Reckoning 112 days from the date of dismissal to the filing of the application, and allowing the applicant 8 days for obtaining copy, and 55 days for the infructuous appeal, there atill remain 59 days, or 29 days over the prescribed thirty. The counter-petitioner claims that these can be accounted for by reckoning the period between 27th July, 1926, and 2nd September, 1926, as a time during, which he was prosecuting with, due diligence another civil proceeding in a Court of incompetent jurisdiction.
The short answer to such a claim would seem to be that, until 2nd September, 1926, there was neither Court nor proceeding. No doubt it has been held that when once a proceeding has been initiated in a Court of first instance the period allowed by law before presenting an appeal from its decision may be reckoned aa time occupied by due diligence. That is clear enough, for a man who is diligent within the term prescribed by limitation is duly diligent mthe eye of the law. But the same principle cannot be extended to some period before the proceeding is begun cf. Baisnath Lala V.Ramadoss 26 Ind. Cas. 219; 39 M. 62; 16 M. L. T. 509; 27 M. L.J. 640; 1 L. W. 952 and Mira Mohideen Rowther v. Nallaperumal Filial 12 Ind. Cas. 58; (1911) 2 M.W.N. 221; 10 M. L. T. 254; 21 M. 14. J. 1000; 36 M. 131. Section 5 cannot apply, its purview being confined to applications (other than tnose specified) to which the section may be made applicable by enactment or rule. And it so happens that Section 5 has not been made applicable to applications under Order IX, Rule 4. Therefore, the orders of the lower Court must be set aside. Costs to petitioner throughout, one set.