Judgement

Appeal from a judgment of the Chief Court (January 20, 1911) affirming an order of the District Judge of Ferozepur (March 16, 1908).

The facts are stated in the judgment of their Lordships.

1917. June 14, 15, 18. De Gruyther, Z.C., and 0Gorman, for the appellant. The effect of Full Bench decisions in India is to lay down a general rule for the exercise of the judicial discretion given by s. 5 of the Indian Limitation Act, namely, that the time occupied in applying for a review, even where made upon a mistaken view as to the jurisdiction, is to be excluded Karm Bakhsh

v. Daulat Ram ( 1888 P. R. No. 183.); Balwant Singh v. Gumani Ram (( 1883) I. L. R. 5 Allah. 591.) ; Brij Mohan Das v. Mannu Bibi. (I. L. R. 19 Allah. 348.) Those decisions followed the rule laid down, under the earlier Act, by fourteen judges in the Calcutta High Court in Nobo Kissen Singh v. Kaminee Dassee (( 1865) B.L. R. Sup. vol. 349.) and followed in In re Brojender Coomar Roy. (( 1867) 7 Suth. W. R. 529.) The judgment appealed from was based upon Ramjiwan Mal v. Chanel Mal (( 1888) I. L. R. 10 Allah. 587.) and the general proposition there laid down that a mistake of law was not a ground for an extension of time under s. 5. That decision must, however, be regarded as overruled as to cases where there has been a mistaken application for review by Brij Mohan Das v. Mannu Bibi (3), which was not referred to by the learned judge. He was mistaken in supposing that no general rule had been laid down as to the discretion given by s. 5 ; the judicial discretion was consequently not properly exercised. [As to the remedy given by s. 371, reference was made to Sun Bhatta v. Sitarama Bhatta (( 1883) I. L. R. 7 Madr. 195.) and Sham Singh v. Sant Singh. ( 1885 P.

11. No. 22.)]

Zeffert, for the respondent A. A. Coates. The judicial discretion given by s. 5 was exercised after a full consideration of the circumstances and should not be interfered with Sharpe v. Wahefield ([ 1891] A. C. 173.); Bhimrao Ramrao Desai v. Ayappa Yellappa. (( 1906) I. L. R. 21 Bomb. 33.) A mistake in law is not a ground for an extension of time In re Coles and Raven-shear ([ 1907] 1 K. B. 1.), and cases there followed. Upon the expiration of the statutory period for an appeal there is a vested right in the order. That principle has been applied in India under s. 5 Ramjiwan Mal v. Chand Mal (6); Bechi Ahsanulla Khan. (( 1890) I. L. R. 12 Allah. 461.) The decision reported at I. L. R. 19 Allah. 348 goes no further than that a mistake as to jurisdiction may be a sufficient cause for an extension. There is no settled rule in India governing the matter, and the discretion was properly exercised. [Murugesa Mudaliar v. Jataram Davy (( 1900) I. L. R. 23 Madr. 621, 625) and Sultan v. Ala Bakhsh ( 1893 P. R. No. 45.) were also referred to.] Further, having regard to the delay in prosecuting the suit, the refusal of the Courts discretionary indulgence should not be interfered with Ram Narain Joshi v. Parmeshwar Narain Mehta. (( 1902) L. R. 30 Ind. Ap. 20.) In any case, the judgment should be supported on a further ground. The Code of Civil Procedure. 1908, came into operation on January 1, 1909, and governed the appeal to the Chief Court Chajmal Das v. Jagadamba Prasad. (( 1889) I. L. R. 11 Allah. 408, 412) Order xxII., r. 4, of that Code replaced s. 368. Against an abatement order under r. 4 there is no appeal under Order xLIII. r. 1 ; the plaintiff has to proceed under Order xxII., r. 9. The appeal was statute-barred when the new Code came into operation ; consequently the saving clause in r. 9 does not apply. The appeal to the Chief Court was therefore not competent.

De Gruyther, K.C. (who was called on only as to the last contention), in reply. The plaintiffs right of appeal under s. 588, sub-s. 18, of the 1882 Code was not taken away by the 1908 Code. The orders referred to in s. 104 of the latter Code are orders made under that Code. By Order xLIII., r. 1 (k), an appeal lies against an order