1. This appeal is directed against an order of dismissal made on an application for execution of a decree against a surety. The decree was made by this Court on the 23rd January 1917 in a first appeal in a suit valued at more than Rs. 5,000. It is plain that an appeal against an order in execution of such a decree lies not to the District Judge but to this Court. The order of the Subordinate Judge was made on the 3rd March 1920, and an appeal was presented to the District Court on the 1st April 1920. The District Judge dismissed the appeal on the 10th July 1920. Thereupon the present appeal was lodged in this Court on the 11th September 1920 against the order of the District Judge whereby he had affirmed the order of the Subordinate Judge. No preliminary objection was taken to the appeal presented to the District Judge and nobody discovered that the appeal was' incompetent. Indeed, in this Court also, the point was not mentioned till the respondent was called upon to answer the argument advanced on behalf of the appellant. It is plain that the order of the District Judge was made without jurisdiction and that this Court must now set aside that order and substitute therefor the order which should have been made by the District Judge, namely, a order that the memorandum of appeal presented to the District Judge be resumed to the appellant for presentation to this Court. This is the course which was adopted in Ranjit Missir v. Ramudar Singh 16 Ind. Cas. 940 : 16 C. L. J. 77 C. W. N. 116. difference, however, between that ease and the present, namely, that there the lower Appellate Court had modified the order of the primary Court, while here the lower Appellate Court has affirmed the order of the Court of first instance. This circumstance, however, does not affect the position, and the learned Vakil for the appellant has suggested that, be the memorandum of appeal presented in the Court of the District Judge is now in this Court, it may be taken to have been presented here after its return by an order of this Court. This, we think, is reasonable. The memorandum of appeal will, therefore, be taken to have been presented to this Court on this day and an endorsement to that effect will be made on the memorandum by the Registrar.
2. No question of Court-fees arises; but we have to consider the question of limitation. It is, we think, sufficiently obvious that this is a fit case for the exercise of our (sic)iseretion under Section 5 of the Indian Limitation Act. It has been ruled that in the exercise of that discretion in regard to an appeal, the Court may well be guided by the provisions of Section 14, which does not in terms apply to appeals, because appeals are governed by Section 5 which has a manifestly wider scope. This view was adopted by this Court in the cases of Ardha Chandra Rai v. Matungini Dassi 28 C. 325 : 12 Ind. Dec. (N. S.) 217. and Balaram Bhramaratar Ray v. Sham Sunder Narendra 23 C. 526 : 12 Ind. Dec. (N. S.) 350. A similar view was adopted by the Bombay High Court in Dadabhai Jamset(sic)i v. Maneksha Sorabji 21 B. 552 : 11 Ind. Dec. (N. S.), 370. by the Madras High Court in Gupisetti Narainswami Naidu Garu v. Tallanraju Vencalasubbarayudu 9 Ind. Cas. 642 : 9 M. L. T. 315 : (1911) 1 M. W. N. 233. and by the Allahabad High Court in Ma(sic)huban Das v. Narain Das 4 A. L. J. 379 at p. 400 : 29 A. 535 : A. W. N. (1907) 155. and Narain singh v. Bikram Singh 11 Ind. Cas. 814 : 8 A. L. J. 793. If the period between the presentation of the appeal in the Court of the District Judge and the order for return made by this Court be deducted, the appeal now lodged in this Court is within time. The proper course to follow in these circumstances is that stated in Ranjit Missir v. Ramudar Singh 16 Ind. Cas. 940 : 16 C. L. J. 77 : C. W. N. 116., namely, to allow the appeal, to discharge the order of the District Judge, to record on the memorandum of appeal presented to that Court an order of return for presentation to the proper Court to be signed by the Registrar and finally to regard the memorandum as presented in this Court on this day. The memorandum will now be registered as an appeal from an original order against the order of the Subordinate Judge passed on the 3rd March 1920, and, in the exercise of the discretion vested in the Court under Section 5 of the Indian Limitation Act, we hold that the appeal so registered h in time. The paper-book mill be prepared and the appeal heard in due course as a first appeal. We order accordingly.
3. As the objection to jurisdiction was not raised in the Court of the District' Judge and as the point was not taken in this Court till a late stage of the argument, we direct each party to pay his own costs bath here and in the Court of Appeal below.
4. The appellant will file a vakalatnama in support of the appeal now lodged in this Court.