The appellant's failure to establish due diligence and good faith in prosecuting the appeal in the wrong court resulted in the dismissal of the appeal as being beyond limitation.

M. N. SHUKLA, J. :- This is a defendants appeal presented along with an application under S. 5 read with Section 14 of the Limitation Act. It arises out of a suit valued at Rs. 29,617.10, which was decreed by the trial Court on 2-6-1975. Aggrieved by the decree the defendant-appellant filed an appeal on 4-8-1975 in the court of the District Judge, Varanasi, which was registered as Civil Appeal No. 495 of 1975. As early as 19/20-11-1975, the plaintiff moved an application praying that the appeal be rejected on the ground that in view of the valuation of the original suit mentioned above, the appeal lay to the High Court. The said objection was ordered to be put up for orders on 22-1-1975. On that date the present appellant moved an application No. 160, asking for 15 days time for replying to that objection. The case was adjourned to 6-12-1975 on which date again the Court passed an order directing the objection 15 (c) to be put up on 3-1-1976. It appears that on that date, respondent No. 3 (a co-defendant) also filed an objection saying that the Court in which the appeal had been filed was possessed of jurisdiction to hear the same and the appeal was not required to be filed in the High Court. Thereafter the case was taken up again on 7-2-1976 on which date Sri M. L. Khatri, the senior counsel appearing on behalf of the appellant conceded that the appeal should have been filed in the High Court and prayed for return of the memo of appeal. In these circumstances, the learned Ist Addl. District Judge, Varanasi, who was seized of the application, passed an order on 24-2-1976 that the memo of appeal be returned to the appellant or his counsel for presentation to the proper court, being of the view that the appeal did not lie to the District Judge. It is alleged that the appellant was able to obtain the actual return of the memo of appeal late in the afternoon of 25-2-1976 and reached Allahabad in the early morning of 25-12-1976 and on that date the appeal was presented to this Court.

2. On these facts the benefit of Ss. 14 and 5 of the Limitation Act is invoked by the appellant and it is prayed that the delay in filing the appeal be condoned. The question, therefore, which falls for decision is as to whether on the above facts the appellant could be deemed to have been prosecuting bona fide and with due diligence the appeal in the court of the District Judge, Varanasi, where it is alleged to have been filed under the advice of his local lawyer.

3. A comparison of the language of the provisions of S. 5 and S. 14 of the Limitation Act reveals that they are not identical and this explains the somehow different tests which have been applied and evolved by the courts in deciding as to whether an appellant should be given the benefit of Section 14 or not. S. 5 of the Limitation Act provides that any appeal etc. may be admitted after the prescribed period of limitation if the appellant satisfies the court that he had sufficient cause for not referring the appeal within such period. On the other hand, Section 14 the Limitation Act is to the effect that in computing the period of limitation for any suit etc., the time during which the plaintiff had been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant, shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature is unable to entertain it. It is manifest that the crucial factor which would influence the court in extending the benefit of S. 14 would be whether the appellant s conduct satisfies the test of prosecuting with due diligence other civil proceedings. S. 14 also postulates that the other civil proceedings on which reliance has been placed were prosecuted in good faith. The two underlined expressions provide the key to the interpretation of S. 14. This naturally