The time spent in prosecuting an alternative remedy, such as an application under O.9, R.13 of the Civil P. C., which fails on its merits, cannot be excluded in computing the period of limitation for an appeal against the decree under challenge.

ANIL K. SEN, J.:- This is a revisional application at the instance of the defendant-appellant whose application under S.5 of the Limitation Act for condoning the delay in preferring an appeal against an ex parte decree before the lower appellate court has been dismissed by the said court. The order impugned is one dt. May 11, 1983, passed by the learned District Judge, 24-Parganas in Title Appeal No. 275 of, 1982. A short point which arises for our consideration on the present revisional application is as to whether the time spent by the appellant-petitioner in unsuccessfully prosecuting an application under O.9, R.13 of the Civil P. C. against the very decree under appeal which failed on its merits can be excluded for computing the period of limitation for the appeal subsequently filed against the said decree.

2. Relevant facts are not in dispute. An ex parte decree was passed against the petitioner on May 24, 1979, in Ejectment Suit No. 87 of 1978 though the petitioner appeared in the suit to contest. On Aug. 2, 1979, the petitioner filed an application under O.9, R. 13 of he Code along with an application under S.5 of the Limitation Act. The delay in filing the said application under O.9, R.13 of the Code having been condoned, the said application was heard on its merits and on contest. It, however, failed and was dismissed on Feb. 14, 1981. An appeal therefrom also failed and was dismissed on Dec. 12, 1981. A revisional application challenging those orders also failed and was dismissed on Mar. 16, 1982.

3. In that background the petitioner preferred then appeal against the very same ex parte decree on Mar. 25, 1982, T. A. 275 of 1982 as aforesaid. Since the appeal was preferred long beyond the period of limitation (i.e. 1064 days) the petitioner filed an application under S.5 of the Limitation Act. In this application the case made out by the petitioner is that on account of mistaken advice of their lawyer they filed in application under O.9, R.13 of the Code and bona fide prosecuted the same until Mar. 16, 1982, hence that period should be excluded in computing the period of limitation for the appeal. This application was heard on evidence and he learned District Judge rejected the same on a finding that the appellant-petitioner had failed to establish their case that they pursued the remedy under O.9, R.13 of the Code upon any mistaken advice. He refused to believe lie petitioners case that such mistake could be found out only after the application had failed in three courts. Feeling aggrieved the petitioner has now moved this court challenging the said order of the learned District Judge.

4. Mr. Tagore appearing in support of his revisional application has strongly contended that the learned. District Judge should have accepted the case of the petitioner that they were prosecuting a wrong remedy upon a mistaken advice which could be detected only after the failure of the revisional application preferred against the appellate order arising out of the application under O.9, R.13 of the Code. According to Mr. Tagore in any event the period spent in prosecuting the said application is liable to be excluded in computing the period of limitation for preferring an appeal against the ex parte decree. Strong reliance is placed by Mr. Tagore on the decision of the Privy Council in the case of Brij Inder Singh v. Kanshi Ram 44 Ind App 218 : (AIR 1917 PC 156).

5. Caveat having been lodged, Mr. Banerji appearing on behalf of the plaintiff-respondent has contested the points raised by Mr. Tagpre. According to Mr. Banerji, the appellant-petitioner had alternative remedies open to him against the ex parte decree and if he had chosen one, he had done so upon his own choice and the period spent in prosecuting such a remedy cannot, be excluded if that had not failed on the ground of defect of jurisdiction or any cause of like nature.

6. We have carefully considered the points raised by Mr. Tagore. Admittedly when the petitioner suffer