W. Comer Petheram, C.J. and Beverley, J.
1. This is a rule for the admission of a first appeal after time under the following circumstances:
The petitioner was one of nine principal defendants in a suit brought against them for possession of certain lands with mesne profits. In that suit he appeared and filed a written statement. It turned out to be a boundary-dispute, and a Commissioner was appointed to make a local enquiry. The enquiry having been completed, the case came on for trial, and on the day of hearing the pleaders who represented the petitioner and three others stated that they had no instructions from their clients. The rest of the defendants having accepted the Commissioner's report, judgment was given for the plaintiff on 13th April 1893.
2. On the 10th May following the petitioner made an application under Section 108 of the Code to have the decree set aside, but the Subordinate Judge, after taking evidence, found that the petitioner, not only had notice of the day of hearing, but was actually at the Court on that day, and he accordingly rejected the application. That was on 30th November 1893. On 24th February 1894 the petitioner appealed to this Court against that order, and a Divisional Bench of this Court, while pointing out that a question of law had been raised which it was not necessary to determine, held upon the facts that the appellant had failed to satisfy the Court that he was prevented from appearing on the day of hearing, and accordingly dismissed the appeal on the 18th January 1895.
3. An appeal against the original decree was then presented on 30th March last, and it is contended that under Section 5 of the Limitation Act this Court should hold that the appellant had sufficient cause for not making his appeal within time. It is urged that the time during which the petitioner was prosecuting his application under Section 108 of the Code should be excluded from consideration, and that if that be done the appeal was presented on the 89th day from the date of the decree.
4. We see no reason why the petitioner should be allowed a deduction of the time during which he was endeavouring to have the decree set aside. Section 14 of the Limitation Act does not apply to appeals, and, even supposing that the Court could apply the principle of that section in considering what was sufficient cause under Section 5 [as was done by the Allahabad Court in Balwant Singh v. Gumani Ram I.L.R. 5 All. 591], it is clear that in the proceedings under Section 108 relief was not refused for want of jurisdiction but on the merits. It may be that, as was ruled in the case of Sital Hari Banerjee v. Heera Lal Chatterjee I.L.R. 21 Cal. 269, this was not a case in which an application could properly be made under Section 108. Bud the petitioner elected to make it, instead of appealing as (even supposing that the decree could be called an ex parte decree) he was entitled to do under Section 540 of the Code, and having failed in that application on the merits, we think we cannot now allow him to fall back upon the remedy which was open to him at the time, and of which he did not choose to avail himself. The petitioner has not satisfied us that he had sufficient cause for not presenting the appeal within time, and we accordingly discharge this rule with costs.