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Judgment
Ramesam, J.—The husband of the appellant before us 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 sale deeds, (1) from the judgment debtor to his wife and the 2nd from the wife to
himself- filed a claim petition under Order 21 Rule 58. The petition was enquired into by the District Munsif of Bhimavaram. In the order he says:
for the purpose of this petition, we art concerned only with the prima facie nature of the case.
This shows that he considered the matter as one falling under Order 21 Rule 58 Civil P.C.
The appellant then filed appeal to the District Court of Masulipatam. Ordinarily appeals lie from Bhimavaram to Sub-Court, Narasapur. The
appeal to 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, Civil P.C. was the section originally quoted and that the Munsifa order was u/s 4 of the Act. Though the Munsif was requested to inquire into
the matter under that section he declined to do so. The District Judge held that there was no appeal u/s 75 of the Provincial Insolvency Act. The
appeal was then presented to Subordinate Judge''s Court of Narasapur as one u/s 47,. Civil P.C. out of time. The Subordinate 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 21, Rule 58. resorted to the expedient of interpreting it as an order under the insolvency Act and filed
an appeal to District Court. There was no idea of filing an appeal u/s 47, Civil P.C. 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, Civil P.C. The appeal finally filed in Sub-Court of
Narasapur was an afterthought. The; Subordinate Judge is right and the civil miscellaneous second appeal dismissed with costs.
Jackson, J.
I agree. I understand the reported cases Shib Dayal v. Jagannatha Prasad AIR 1922 All. 490, Karakkattitathil Rayarappan Nambiar Karnavan
and Manager of his Tarwad Vs. Koyotan Chalile Veetil Kamaran Karnavan of his Tarwad (dead) and Others, 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 in 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 ulterior motive before holding that there ''is no sufficient ground.