1. This is a second appeal and the point arises in this way.
2. When the appeal to the lower Appellate Court was presented it was found to be out of time. The appellant, who was the defendant No. 2 in the suit, filed an affidavit explaining circumstances. Upon that the then District Judge ordered the appeal to be admitted 'subject to objection at the bearing.' The appeal came on for bearing before his successor and it appears that on behalf of the respondents, the plaintiffs, no objection was taken at the hearing to the order of admission. The appeal was heard at length on the merits and the District Judge in his judgment has discussed and pronounced upon the merits, his conclusion being that the decree of the trial Court in favour of the plaintiffs was erroneous and that the suit should have been dismissed. Having, however, come to that conclusion, he seems to have noticed the order made when the appeal was admitted and acting suo motu he went on to deal with the question of limitation. On that question he found, against the appellant and in the result he was, as he himself expresses it, 'unfortunately' compelled to dismiss the appeal on the ground that it was time-barred.
3. From that decision the defendant No. 2 has appealed to this Court. The case has been argued on his behalf, but not, we regret to say, on behalf of the plaintiffs who have not entered appearance before us,
4. Now if we refer to Section 3 of the Limitation Act, it lays down that every suit instituted or appeal presented after the prescribed period is to be 'dismissed although limitation has not been set upas a defence.' A duty is thus cast upon the Courts which in a proper case ought not to be neglected. But the rule so enacted is expressly made subject to the sections which follow) and among those sections is Section 5 under which on 'sufficient cause' being shown, an appeal may be admitted out of time. The order made by the first District Judge was presumably made under that section. It was an order provisionally deciding the question of limitation in the appellant's favour. It was obtained by the appellant on the strength of the affidavit filed by him and he was entitled to such benefit as be could derive from its terms. The words subject to objection at the hearing 'mean subject to objection by the respondents', and the order was provisional in this sense that the respondents might at the hearing take exception to it and show fat it was wrong. The District Judge was so far bound by the order, as an order made by his predecessor, that unless the respondents chose to object to it he was not at liberty to go behind it.
5. It follows that, in our opinion, the District Judge should have decided the appeal in accordance with the opinion which he had formed on the merits. On the present appeal it is open to us to make the decree which the District Judge should have made.
6. We may add that the practice of admitting appeals 'subject to objection at the hearing' has now been condemned by the Privy Council Krishnasami v. Ramasami 43 Ind. Cas. 493 : 45 I.A. 25 : 31 M.L.J. 63 : 4 P.L.W. 54 : 16 A.L.J. 57 : 7 L.W. 156 : 23 M.L.T. 101 : 27 C.L.J. 253 : 2 P.L.R. 1918 : 22 C.W.N. 481 : 41 M. 412 : 20 Bom. L.R. 541 : 11 Bur. L.T. 121 : (1918) M.W.N. 906. The practice, therefore to should cease.
7. The appeal is allowed. The decrees of the Courts below are set aside and the suit is dismissed. The appellant will pay his own costs of this appeal but is entitled to his costs in the Courts below.