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Judgment
Ramesam, J.—The husband of the appellant before as obtained a decree against a tenant for rent. He obtained an attachment before
judgment and after the decree his legal representative, the appellant, was attempting to execute the decree against the property attached. The
respondent who claimed the attached property under two bale-deeds (1) from the judgment-debtor to his wife and the 2nd from the wife to
himself filed a claim petition under Order XXI, Rule 58. The petition was enquired into by the District Munaif of Bhimavaram. In the order he says
For the purpose of this petition we are concerned only with the prima facienature of the case."" This shows that he considered the matter as one
falling under Order XXI, Rule 58 of the Civil Procedure Code.
The appellant then filed an appeal to the District Court of Masulipatam. Ordinarily appeals lie from Bhimavaram to the Sub-Court, Narasapur.
The appeal to the District Court was attempted to be justified on the ground that it was an appeal u/s 75 of the Provincial Insolvency Act though
Section 47 of the CPC was the section originally quoted and that the Munsifs order was u/s 4 of the Act. Though the Munaif was requested to
inquire into the matter under that section he declined to do so.
The District Judge held that there was an appeal under: 75 of the Provincial Insolvency Act. The appeal was then presented to the Subordinate
Judge''s Court of Narasapur as one u/s 47 of the CPC out of time. The Habordinate Judge dismissed it as barred by limitation. Hence this second
appeal.
In second appeal it is argued that the mistake of the Vakil in this case is a good ground for excusing the delay. The affidavits now filed before us
were not before the Subordinate Judge, There was no attempt in the Subordinate Judge''s Court to explain the delay.
It seems to me, that what happened was, the appellant thinking that there was no appeal against the District Munsif''s order under the general
law as it was an order passed under Order XXI, Rule 58 resorted to the expedient of interpreting it as an order under the Insolvency Act and filed
an appeal to the District Court. There was no idea of filing an appeal u/s 47 of the CPC which was probably abandoned on the ground that it does
not lie.
In the view I take, I do not think it necessary to discuss the cases cited by the appellant''s Vakil. The Vakil''s affidavit does not say that he
advised that an appeal lay only u/s 75, Provincial Insolvency Act or that no appeal lay u/s 47 of the Civil Procedure Code. The appeal finally filed
in the sub-court of Narasapur was an afterthought.
The Subordinate Judge is right and the Civil Miscellaneous Second Appeal is dismissed with costs.
Jackson, J.
I agree. I understand the reported cases Shib Dayal and Another Vs. Jagannath Prasad, and Karakkattitathil Rayarappa Nambiar v. Koyotan
Chable Veetil 45 Ind. Cas. 489 : 35 M.L.J. 51 : 24 M.L.T. 28 : 8 L.W. 154, to have established that the mistake of the Vakil may be pleaded as
sufficient ground u/s 5 to excuse limitation, but they do not go so far as to make such mistake in all circumstances conclusive ground.
A party himself cannot file an appeal after the expiry of time and merely say no more than that he was prosecuting it on the wrong Court; and his
Vakil has no greater license in this respect.
In the present case no explanation of the Vakil''s treatment of the matter was offered to the lower Court. An affidavit has been filed in this
Court which really explains nothing. Merely because insolvency matters were discussed in a proceeding before a District Munsif acting in the
exercise of his ordinary jurisdiction no one can have imagined that an appeal could really lie to the District Court as if from an Insolvency Court.
Where the mistake is both stupid and unaccountable the suspicion of ulterior motive can hardly be said to have been displaced, even assuming that
it is necessary to find such ulterior motive before holding that there is no sufficient ground.