Section 14 of the Limitation Act does not apply to cases where the other proceeding was taken in a Court which had jurisdiction to entertain it.

A. SAMBASIVA RAO, AG. C. J.

( 1 ) AN appeal was presented in this Court with a delay of 3 years 6 months and 22 days. Punnayya, J. dismissed the petition filed under Section 5 of the Indian Limitation Act to condone the delay. This Letters Patent Appeal is against that judgment of dismissal.

( 2 ) A suit was filed to recover a sum of Rs. 5,500 and was numbered as O. S. 174/68 in the Court of the Second Additional Judge, City Civil Court. The written statement was filed by the defendants on 17-10-1969 and later the issues were framed. The suit underwent very many adjournments and finally on 18-2-1972 when the defendants, who were twelve in number, were absent, an ex parte decree was passed. They filed a petition under Order. 9, Rule. 13, Civil Procedure Code on 1-3-1972 to set aside that ex parte decree. That was, however, dismissed on 28-2-1974. C. M. A. No. 199/74 was filed against that order of dismissal but that was also dismissed on 7-8-1975. Keeping quiet for a month thereafter, the defendants applied for copies of the ex parte decree on 6-9-1975. They received them on 27-11-1975. Then they presented an appeal against the ex parte decree in this Court on 9-12-1975 with a petition to condone this long delay in filing the appeal.

( 3 ) OUR learned brother Punnayya, J. accepted the contention of the plaintiff respondent that when two remedies were open to the affected party when an ex parte decree was passed and if one remedy like filing a petition for setting aside that ex parte decree under Order. 9, Rule. 13, Civil Procedure Code was adopted, the affected party cannot thereafter avail itself of the other remedy of preferring a regular appeal against the ex parte decree. The learned Judge relied on two Calcutta decisions in Chandra Rai Chowdhary v. M. Thangini Dessi, ILR (1895) 23 Cal 325 and Rajendranath Kanrar v. Kamal Krishna Kundu Chowdary. AIR 1932 Cal 558 and held that the party, who had unsuccessfully pursued his other remedy under Order. 9, Rule. 13, Civil Procedure Code, cannot also choose to avail himself of the right to prefer a regular appeal against the ex parte decree. He held that the explanation offered by the petitioners for condonation of delay was untenable. In the view he took, he dismissed the petition under Section 5. The unsuccessful defendants 1 to 12 have preferred this Letters Patent Appeal.

( 4 ) SRI N. C. V. Ramanujachari appearing for the appellants argued that the view of the learned Judge is wrong and that it is open to the party against whom an ex parte decree had been passed to avail himself of both the remedies available to him under Order. 9, Rule. 13, Civil Procedure Code and also under Section 96 by preferring a regular also under Section 96 by preferring a regular appeal. He contended that under Section 14 of the Limitation Act the time taken for prosecuting the proceeding under Order. 9, Rule. 13 should be excluded and once that is excluded in this case, the presentation of the appeal was in time. He also contended that the dismissal of C. M. A. 199/74 on 7-8-1975 started the period of limitation afresh and it is from that date the time for preferring the regular appeal should be reckoned. Learned counsel relied on Ramachandra Raju v. Satyanarayana Raju, (1963) 1 Andh WR 387, Brij Indar Singh v. Kanshi Ram, AIR 1917 PC 156 and Peerammal v. Nallusami Pillai, AIR 1931 Mad 149.

( 5 ) MR. Syed Amanullah for the plaintiff- respondent, on the other hand, sought to sustain the view taken by Punnayya J. and also contended that Section 14 does not apply to the facts of the case, that it is untenable to say that the dismissal of C. M. A. 199/74 started a fresh period of limitation and lastly that the reasons assigned for the delay that funds were not available cannot be accepted.

( 6 ) THIS is an application clearly and squarely under Section 5 of the Limitation Act. In order to get relief through such a proceeding, the petitioners should satisfy the Court that they had sufficient cause for not

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