1. This is an appeal by the defendant No. 1 against the decision of the learned District Judge of Mymensingh, dated the 30th April 1915. The appeal is preferred against, an order refusing to admit an appeal out of time. It is said that it is a decree under the terms of the Civil Procedure Code and is, therefore, appealable. I will assume for the purposes of this case that it is so. There may be some other cases in which there may be arguments for considering whether or not that is a decree within the meaning of the Civil Procedure Code. Now what happened in this case was this. We are, told that there was a conflict of legal opinion on this important case. There was a consultation amongst the Pleaders practising in the Munsif's Court as to the course the plaintiff should adopt under the law. That opinion did not, however, agree with a similar consultation that took place amongst the Pleaders practising in the Court of the District Judge and the appellant before us admitted allowed the time to expire within which he had to prefer his appeal. On the 27th April 1915, an exparte application was made to the District Judge asking him under the provisions of Section 5 of the Limitation Act to extend the time for appealing and to give the appellant time for the purpose of paying the Court-fee. Now, it is a well-established rule in all Courts that when an ex parte application is made, it is the duty of the party making the application to call the attention of the Judge not only to the portion of the law or authority in favour of his case but also to the matters that are against him and, apparently, as far as one can gather from the records of this case, the attention of the learned Judge was not called to the provisions of Section 28 of the Court Fees Act and the Judge on his order sheet made the order that time would be extended. Subsequently the learned Judge discovered that under the Court Fees Act, the Court-fee ought ordinarily to be paid on a plaint or memorandum of appeal before such plaint or memorandum of appeal is admitted. It is said that the learned Judge was wrong because Section 149 of the Code of Civil Procedure is opposed to that view. But so far as appears from the order sheet, the Pleader for the appellant did not call the learned Judge's attention to Section 149, Civil Procedure Code, and the learned Judge clearly did not exercise any discretion that he had under Section 149. That being so, the learned Judge said that the matter must be heard again. It is said that the learned Judge having discharged his duties on the 27th April 1915 was incompetent to interfere with his order made on that date. With that I do not agree. The memorandum of appeal had not, in fact, been admitted and the Judge had obviously power to revoke or alter that order at any time before the appeal was admitted. It seems to me that there cannot be the slightest doubt that the Judge had ample authority in this case to reconsider his order of the 27th April 1915 when the matter was pointed out to him.
2. Then the next point is that the Court has not properly considered the case under Section 5 of the Indian Limitation Act and that the Judge has not taken into consideration any of the facts. There are a number of decisions now on this point and these authorities turn upon the mistake of the legal adviser. Take the case reported as Rakhal Chandra v. Ashutash Ghosh 19 Ind. Cas. 931 : 17 C.W.N. 807 There the appeal was sought to be admitted on the mistake of the Pleader. But in these cases we find that the legal adviser never comes forward and states that he made the mistake but somebody else pledges his oath for another and says that the legal adviser made the mistake. As a matter of fact I understand that in this, case the legal adviser has not madetyany affidavit stating that he made the mistake and ordinarily, before a Court can act upon a statement that a gentleman made a mistake, there ought to be proper evidence establishing the fact that a mistake had been committed and that it was bona fide. In this case, that has not been established nor do I think there is any ground for interfering with the discretion exercised by the learned District Judge. It is said that it is not shown on what grounds the learned Judge exercised his discretion. The answer is that it is not shown in this appeal that there are grounds on which we are entitled to interfere with the exercise of that discretion. I see no reason in a case of this nature to interfere with the order passed by the learned District Judge. The appeal fails and is dismissed with costs.
3. Shamsul Huda, J.--I agree.