Mitter and Grant, JJ.
1. It appears to us that the lower Appellate Court in this case has rejected the appeal as filed out of time and refused to admit it under Section 5, on the ground that a bona fide mistake made by the appellant in the respect of the limit of time within which Recording to law he is bound to file his appeal is under no circumstances a valid ground for admitting an appeal under Section 5.
2. We are of opinion that is not a correct view of the provisions of Section 5. It is for the Judge in each case to exercise his discretion, having regard to the particular facts established before him. We upon that ground set aside his order rejecting the appeal and remand the case to him to decide that point again.
3. We may, however, point out that if the facts stated before us are correct, and if the matter had been left to us to decide, we should have been very much inclined to think that the appeal should be allowed to be filed under Section 5. We may here state the facts that have been stated before us. The decree of the lower Court is dated 20th December 1883; the suit was valued at Rs. 18,000, but on the objection of the defendant the Court decided that the value of the subject-matter of the suit was below Rs. 5,000. The appellant applied for copies on the 3rd of February, the decree was ready on the 7th of February, the appellant being then under the impression that the appeal would lie to the High Court. Then on the 16th of March a letter was received from his agent at Calcutta, informing the appellant that he was mistaken, and that an appeal would lie to the District Judge. This letter reached Rajshahye on the 17th, and the appeal was filed on the 23rd of March.
4. The costs of this hearing will abide the result.