1. This appeal and the alternative motion for revision are directed against an appellate order refusing to set aside a sale in execution of a decree.
2. As regards the appeal, the learned Vakil for the appellant has frankly admitted that he is unable to press it. In this, we think, he is well advised; for there can be no doubt as to there being no right of second appeal in this case. The appeal is, therefore, dismissed; but in the circumstances we make no order as to costs.
3. As regards the Rule, the facts are these: The sale with which we are concerned took place on the 23rd August 1907, and the petitioner's application to have it set aside was made on the 17th November 1903. The time limited by law had, therefore, passed and prima facie the application was barred by limitation. The petitioner, however, both in the Court of first instance and in the lower Appellate Court claimed the benefit of Section 18 of the Indian Limitation Act of 1877, which admittedly governed the case. He was overruled and his application was dismissed by both Courts as being time-barred. He now asks us to interfere in the exercise of our revisional powers on the ground that he was and still is a minor, and that he ought to have been given the benefit of Section 7 although he never claimed it.
4. Now the law expressly imposes upon a Court the duty of throwing out a suit or application filed after the period of limitation fixed therefor, and it may well be that, if a Court were to decree a suit or allow an application which was in fact time-barred, without considering whether it was so or not, it could be said to have failed to exercise a jurisdiction vested in it by law so as to bring the matter within the scope of Section 115 of the Code of Civil Procedure 1908. But we think that the same thing cannot be said of a Court merely because it has omitted to consider ex proprio motu the question whether a litigant was entitled to proceed out of time by reason of some special provision of law, such a question not having been raised by him or on his behalf. If a litigant claims the benefit of an exceptional rule of the kind indicated, it is clearly his duty both to do so expressly and to establish his claim. This is in accordance with general principles, and is recognized by Order VII, Rule 1 of the Code, which provides for the contents of a plaint and lays down a rule applicable by virtue of Section 141, to applications, mutatis mutandis. It is true that the petitioner was described in the headings to certain applications made in this case as a minor represented by a guardian, but that alone was clearly not sufficient to entitle him to the benefit of section V of the Limitation Act; nor was it, in our opinion, sufficient to throw upon the Court the duty of protecting his interests by raising a point of this kind on his behalf. We may add that the view which we now take follows, more or less, from that taken by us in the case of Benode Behari Bhadra v. Ram Sarup Chamar 15 Ind. Cas. 679; 16 C.W.N. 1015.
5. The result is that the Rule also must be discharged with costs.
6. We assess the hearing fee at five gold mohurs.