ORDER :- This civil revision petition arises out of an order passed by the District Judge, Coimbatore, in dismissing an application under S.5 of the Limitation Act for excusing the delay of 259 days in presenting a civil miscellaneous appeal, against the order passed by the Sub-Court, Palghat, in E. P. 154 of 1959.

2. The short facts that are necessary for the disposal of this petition are, the petitioner is a decreeholder in O. S. 28 of 1947 on the file of the Sub-Court, Palghat, for about Rs. 13000. At the instance of the decreeholder, the decree was transmitted to Sub-Court, Coimbatore, for execution. The decree-holder then filed E. P. 154 of 1959 on the file of the Sub-Court, Coimbatore, for execution. When an objection was taken by the judgment debtor, the respondent herein that the petition was barred by limitation, the petition was dismissed.

3. The petitioner filed an appeal straight to the High Court, Madras, as he was under the impression that, as the amount in the execution petition, was more than Rs. 10000, the appeal lies only in this court. The office in the High Court took objection that the appeal does not lie to the High Court, but only to the District Court. When the matter was placed before the court at the instance of the petitioner, an order was passed by Ramachandra Iyer J. (as he then was) to the effect that the opinion of the office was correct in saying that the appeal does not lie to this court; but the Judge observed :

"I cannot say that there was no bona fide doubt in the mind of the petitioner in thinking that this court is the proper court for entertaining the appeal".

After the order was passed in the above unnumbered appeal in this High Court, and after the receipt of the papers from this court, the petitioner presented the appeal to the District Court, with an application to excuse delay in presenting the appeal. The learned District Judge dismissed the application agreeing with the contention raised by the judgment-debtor that the petitioner filing an appeal in the High Court was mala fide and it was only a ruse resorted to for the purpose of getting round the normal period of limitation of one month.

4. It is against this order of dismissal that the petitioner has presented this petition. The contention of the learned counsel for the petitioner is that the learned District Judge ought to have excused the delay in filing the appeal. When the learned Judge in the High Court observed,

"That I cannot say that there was no bona fide doubt in the mind of the petitioner in thinking that this court is the proper court for entertaining the appeal".

I feel that the District Judge is wrong in coming to the conclusion that the present application is only a ruse to get over the normal period of limitation. The learned Judge should have followed the principle laid down in Brij Indar Singh v. Kanshi Ram ILR 45 Cal 94 : (AIR 1917 PC 156), where Lord Dunedin observed :

"We think the true guide for a court in the exercise of this discretion is whether the appellant has acted with reasonable diligence in prosecuting his appeal."

5. The learned counsel cited a decision reported in Sunder Bai v. Collector of Belgaum ILR 43 Bom 376 : (AIR 1918 PC 135) where the facts are almost similar : An appeal from a Subordinate Judge from its nature should rightly have been presented to the District Court and not to the High Court. But the appellant had acted on mistaken advice in filing an appeal direct to the High Court. The High Court directed the memorandum of appeal to be returned to the appellant for presentation to the District Court. The appellant then filed an application to the District court, but it was beyond the prescribed period of limitation. Their Lordships or the Privy Council held that the appeal was not barred by limitation; the fact that defendant had acted on mistaken advice as to the law, in appealing to the High Court did not preclude them from showing that it was owing to their reliance on that advice that they

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