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. ( 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 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 rejecting an application under Order xxII., r. 9, to set aside an abatement. July 19. The judgment of their Lordships was delivered by Lord Dunedin. The facts out of which this case arises are very clearly and succinctly stated by Johnstone J. in his judgment of April 6, 1909 (Upon a petition under s. 70 (a) of Act XVIII. of 1884, as amended by s. 6 of Act XXV. of 1899, for revision of the orders of the District Judge dated April 24, 1908.), which is part of the necessary history of the judgment actually before their Lordships. He says "The history of this case is in brief as follows In 1903 His Highness Raja Balbir Singh of Faridkot brought a suit under s. 283, Civil Procedure Code, 1882, against Kanshi Ram and Joti Mai, decree-holders, Mr. G. H. Coates, judgment debtor, and two others, for a declaration that certain property, attached under Kanshi Ram and Joti Mais decree, was plaintiffs property, and so not liable. Great delay took place and an application for transfer of the case was made to the Chief Court; but a new District Judge having been ordered to Ferozepur, transfer became unnecessary. Again plaintiff applied for transfer of the case, and again the petition was rejected, and the case was taken up thereafter on April 21, 1904. In the course of the hearing on July 16, 1904, an application was made to the Chief Court to revise an order of the District Judge, directing a party to produce certain books. I need not -go into details concerning this. Suffice it to say that the petition remained in the Chief Court till January 1, 1908, when Mr. Herbert, pleader for plaintiff, withdrew it, and that in the meantime certain casualties had occurred among the parties. In February, 1906, Raja Balbir Singh died and was succeeded by the present chief. I need not -go into details concerning this. Suffice it to say that the petition remained in the Chief Court till January 1, 1908, when Mr. Herbert, pleader for plaintiff, withdrew it, and that in the meantime certain casualties had occurred among the parties. In February, 1906, Raja Balbir Singh died and was succeeded by the present chief. On May 9, 1906, the latter applied in the Chief Court for substitution of his own name, and this was ordered on May 19, 1906. Joti Mai, defendant 2, had also died on April 15, 1906, and plaintiff said he heard of this (plaintiff is a minor) on November 8 of the same year. Application for substitution of his five sons was made on December 13, 1907, and. the file still being in the Chief Court, on January 11, 1908, the prayer was granted. These orders of May 19, 1906, and January 11, 1908, were apparently both ex parte. "The papers went back from Chief Court to District Judge on March 13, 1908, and then an application was made to District Judge on March 16, 1908, by Kanshi Ram, defendant 1, and Achhru Ram, one of the sons of Joti Mai, praying for an order of abatement on the ground that in none of the following cases had representatives of deceased parties been put on the record within time, viz. (1.) vice Raja Balbir Singh, died February, 1906 ; (2.) vice Joti Mai, died April, 1906; and (3.) vice Mr. G. H. Coates, died about December, 1906. " The new District Judge, Captain Sanford, without enquiry and without notice to plaintiff, the present chief, and obviously without looking at the Chief Courts orders of May 19, 1906, and January 11, 1908, summarily there and then ordered abatement, and gave the applicants costs out of the deceased Rajas estates. The order was passed under both ss. 366 and 368, Civil Procedure Code, 1882, all three grounds set forth in the petition being accepted s sound. " Upon a petition by the present chief, Captain Sanfords suc- cessor, on April 6, 1908, reconsidered the ex parte order of March 16, 1908, and set aside the order of abatement in so far as it depended upon the matter of the decease of the late Raja. This was an order under s. 371, Civil Procedure Code, and was within the power of the District Judge. This was an order under s. 371, Civil Procedure Code, and was within the power of the District Judge. Then, on April 24, the District Judge took up the other two demises, and set aside the abatement order also in respect of them. On both occasions it was urged before the District Judge that s. 371 did not authorize the reconsideration by him of an order under s. 368, Civil Procedure Code, but he overruled the objection." Having thus set forth the facts, the learned judge expressed his opinion that though s. 371 authorized the setting aside of the abatement in so far as it depended on a failure to substitute a new plaintiff under s. 366 it did not do so in so far as the abatement order depended on a failure to substitute a new defendant under s. 368. Accordingly, holding the District Judge Prenters order to review to be ultra vires, he quashed that order and restored the ex parte order of the District Judge Sanford which abated the suit. It follows from what Johnstone J. had said that in his opinion the proper course for the plaintiff, who by an ex parte order in the District Court had had his suit brought to an end, was to appeal to the Chief Court against that order. This the plaintiff did. But on presenting his appeal he was met by the objection that it was time-barred. The case depended before the same judge, John-stone J. He upheld the objection. The case was then set down for review by the Chief Court. In that Court Johnstone J. sat as sole judge. He, after a careful reconsideration, not unnaturally repeated his former judgment, but gave leave to appeal to His Majesty in Council. The sole question directly raised is whether the time which was spent in getting the District Judge Prenters judgment, which was afterwards decided to be wrong, and in getting it set aside falls to be deducted in calculating the time during which appeal was possible. The sole question directly raised is whether the time which was spent in getting the District Judge Prenters judgment, which was afterwards decided to be wrong, and in getting it set aside falls to be deducted in calculating the time during which appeal was possible. This depends on s. 5 of the Limitation Act, which is in these terms " Any appeal or application for a review of judgment may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had some sufficient cause for not presenting the appeal or making the application within such period." It is right, also, to quote s. 14 of the same Act, which is as follows " In computing the period of limitation prescribed for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or a Court of appeal, against the defendant, shall be excluded, when the proceeding is founded upon the same cause of action, 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." This, it will be observed, does not in terms apply, as it deals with suits and not with appeals, but its relevance will be seen by the judgments afterwards quoted. The learned judge, Johnstone J., in his first deliverance on this matter, cited the case of Ramjiwan Mal v. Chand Mai. (I. L. R. 10 Allah. 587.) That case laid down the broad proposition that a mistake in law never could be the foundation for an application for the indulgence which may be granted under s. 5. If that were sound there would be an end of the case. Upon the assumption that review was not the proper remedy for an abatement granted in respect of s. 368 (which assumption the plaintiff by acquiescing in the judgment of John-stone J. of April 6, 1909, must be held to concede), the proceeding by way of review instead of by appeal was a mistake in law. But the learned judges attention does not seem to have been called to the fact that the case cited was really reversed by the decision of Brij Mohan Das v. Mannu Bibi (I. L. R. 19 Allah. But the learned judges attention does not seem to have been called to the fact that the case cited was really reversed by the decision of Brij Mohan Das v. Mannu Bibi (I. L. R. 19 Allah. 348.), where a Full Bench held that a mistake in law may be the foundation for the relief craved. The case on its facts is not directly in point here, for it was concerned with a suit and not with an appeal—i.e., was directly under s. 14 ; and, further, the mistake made was clearly within the words " a Court which from defect of jurisdiction is unable to entertain it." In the second judgment the learned judge carefully reconsidered the authorities. The case of Karm Bakhsh v. Daulat Ram ( 1888 P. R. No. 183.) had been specially pressed upon his attention—a Full Bench decision of his own Court, which, if applicable, he was bound to follow. He refused to consider it applicable, because, in his opinion, it laid down no general rule, and each case, he considered, depended on its own facts. Their Lordships find it impossible to agree with the view that the case of Karm Bakhsh v. Daulat Ram ( 1888 P. R. No. 183.) laid down no general rule. The case was first taken in chambers, when Plowden J., the point being raised, said " This class of cases is constantly cropping up, and some definite rule should be laid down." Following this view, when with another judge he took up the case in the Divisional Courts he referred the matter to a Full Bench. The case was heard before a Full Bench, and Plowden J. delivered the judgment. It will be enough to cite two passages from that judgment. After setting forth the terms of s. 5 of the Limitation Act, he says " All that the section requires in express terms as a condition for the exercise of the discretionary power of admission of an appeal presented after time is sufficient cause for not presenting the appeal within the prescribed period. If such can be shown the Court may in its discretion, which is of course a judicial and not an arbitrary discretion, admit the appeal. If such can be shown the Court may in its discretion, which is of course a judicial and not an arbitrary discretion, admit the appeal. We think the true guide for a Court in the exorcise of this discretion is whether the appellant has acted with reasonable diligence in prosecuting his appeal, and we think farther that he ought ordinarily to be deemed to have acted with ordinary diligence, when the whole period between the date of the decree appealed against and the date of presenting the appeal does not, after excluding the time spent in prosecuting with due diligence a proper application for review of judgment, exceed the period proscribed by law for presenting the appeal." And again " We also agree with the High Court of Allahabad in the case reported in I. L. R. 5 Allah. 591 that the circumstances contemplated in s. 14 of the Limitation Act should ordinarily constitute a sufficient cause within the meaning of s. 5." These citations seem to show that there is a general rule expressed, and that the case was only sent to a Full Bench in order that some general rule should be laid down. The learned judge says that each case depends on its own circumstances. This is true. But he seems to treat this truism as if it was destructive of the idea that there can be a general rule. There is no inconsistency in the position. There may be a general rule as to the exercise of discretion, but each case must nevertheless be examined as to its own circumstances to see whether they make it fall within or without the terms of the general rule. It would doubtless be within the power of this Board to hold that the general rule so laid down was wrong. But here it must be noticed that though as authority binding on Johnstone J. it rests on the Punjab case, the authority for it is really much wider. The case of In re Brojender Coomar Roy (7 Suth. It would doubtless be within the power of this Board to hold that the general rule so laid down was wrong. But here it must be noticed that though as authority binding on Johnstone J. it rests on the Punjab case, the authority for it is really much wider. The case of In re Brojender Coomar Roy (7 Suth. W. R. 529.) was also a Full Bench case, sent to the Fall Bench of Calcutta in order to obtain a general rule, and it is well summarized in the head-note which runs " If a party presents an application for review of judgment within the ordinary period limited for appealing, the time occupied by the Court in disposing of such application will not be reckoned among the days limited for appealing, but will be added thereto, and a memorandum of appeal presented within such extended period will be received as presented within time." And in delivering judgment Peacock C.J. mentioned that they were upholding the ruling of fourteen judges in 1865, and that the practice upheld had been the practice of Madras since I860. Their Lordships were also informed that the same rule had been followed in Bombay. In Allahabad the same result is reached by combining the case reported in I. L. R. 5 Allah; 591 with the case in I. L. R. 19 Allah. 348. Now if the matter were entirely open, inasmuch as a mere mistake in law is not per se sufficient reason for asking the Court to exercise its discretion under s. 5 (instances of which are given in some of the oases cited by the learned judge), there would be a good deal to be said in argument in favour of making the rule universal and upholding in its entirety the ruling given in the case of Ramjiwan Mal v. Chand Mal(I. L. R. 10 Allah. 587.), above cited. But the matter is not open. To interfere with a rule, which after all is only a rule of procedure, which has been laid down as a general rule by Full Benches in all the Courts of India, and acted on for many years, would cause great inconvenience, and their Lordships do not propose so to interfere. 587.), above cited. But the matter is not open. To interfere with a rule, which after all is only a rule of procedure, which has been laid down as a general rule by Full Benches in all the Courts of India, and acted on for many years, would cause great inconvenience, and their Lordships do not propose so to interfere. It was strenuously urged by the learned counsel for the respondents that, inasmuch as the power in s. 5 is admittedly a discretionary power, this Board ought not to interfere with the discretion exercised by Johnstone J., and he cited cases of which Sharpe v. Wakefield ([ 1891] A. C. 173.) may be taken as a type. In reality, however, that case is against him. For it laid down that discretion there, as here, must be a judicial and not an arbitrary discretion. Now if the judge who purports to exercise the discretion does so under the view that there is no general rule, when in fact there is one, if he has, to use an expression often used in another class of cases, misdirected himself as to the law to be applied to the case, he cannot exercise a judicial discretion, and the Superior Court—in this case this Board— must either remit the case or exercise the discretion themselves. In a case like Sharpe v. Wakefield ([ 1891] A. C. 173.) there would necessarily be a remit. Here it is otherwise, for the general rule applies, and it only remains to see whether the proceedings in the review were reasonably prosecuted and in good faith. That they were so their Lordships have no doubt. The District Judge Sanford made the order for abatement on March 16, 1908. The plaintiff applied on March 20 to set it aside, and it was set aside by the District Judge Prenter on April 24, 1908. Johnstone J. speaks of the plaintiff " persisting " in prosecuting review after the defendants had taken the point that appeal and not review was the proper remedy. But the defendants were held by the District Judge Prenter to be wrong, and their Lordships think that the plaintiff cannot be held in any fair sense to have " persisted" in his attitude till the first judgment of John-stone J. of April 6, 1909. Accepting that judgment, he appealed on April 21, 1909. But the defendants were held by the District Judge Prenter to be wrong, and their Lordships think that the plaintiff cannot be held in any fair sense to have " persisted" in his attitude till the first judgment of John-stone J. of April 6, 1909. Accepting that judgment, he appealed on April 21, 1909. The question of what he did in the fifteen days is neither here nor there. For, accepting the general rule as stated above, the period for appealing being (Under Act XVIII. of 1884, s. 42.) ninety days, the dates stand thus The District Judge Sanfords order was made on March 16, 1908 ; that order was set aside on April 8, 1908. Thus only twenty-three days out of the ninety had expired. That left sixty-seven days. And after the proceedings for review terminated only fifteen days were consumed before the appeal was presented. Though it is not in the appellants mouth to say that the first judgment of Johnstone J. settling that review was incompetent is wrong, he having acquiesced therein, still, as the matter has been mooted and discussed, their Lordships think it better to say that in their view the District Judge Prenters judgment on this point was right and that of Johnstone J. wrong. The point seems to their Lordships very clear. Sect. 365 provides for the substitution of a new plaintiff, when the plaintiff has died, upon the application of the representative of the deceased plaintiff. Sect. 366 deals with, the state of circumstances when no such application is made within a certain time. The defendant may either (1.) have the suit abated, or (2.) get an order putting up a new plaintiff. Sect. 368 deals in a similar manner with the case of the death of a defendant. Thus it will be noticed that abatement is a penalty which is only imposed on a failure of the plaintiff. Then comes s. 371, which primarily deals with what abatement involves " No fresh suit shall be brought on the same cause of action." It is obvious that it is only a plaintiff that is hurt by this. Nothing could be better for a defendant. It is also obvious that an abatement is equally hurtful to the plaintiff whether granted in respect of a failure under s. 366 or s. 368. Nothing could be better for a defendant. It is also obvious that an abatement is equally hurtful to the plaintiff whether granted in respect of a failure under s. 366 or s. 368. When s. 371 goes on to say under what conditions the plaintiff can get rid of the abatement, it would be expected that it would deal with abatement however procured. And the opening words make it clear that it is so " When a suit abates or is dismissed under this chapter." This chapter includes s. 368 just as much as s. 366. The learned judge seems to think that an argument can be founded on the fact that in the appeal section (s. 588) an appeal is given against orders pro nounced under s. 368 and the second paragraph of s. 366, but none against those under the first paragraph of s. 366. The reason is apparent. Sect. 371, which gave review, was sufficient as to abatement so far as the plaintiff was concerned ; but, being a plaintiffs section only, it was unavailable to a defendant, and, as already pointed out, a defendant as such never would want to complain of abatement. But in par. 2 of s. 366 and in parts of s. 368 there are other matters than abatement. Under s. 366, par. 2, a defendant might bring about the introduction of a wrong plaintiff against the will of the right one ; under s. 368 a plaintiff might introduce a wrong defendant. To the persons so aggrieved there is given appeal. Though they think that the judgment of Johnstone J. on this point is erroneous, there is one remark which he makes in his opinion with which their Lordships agree, and which they wish to approve and emphasize. He points out how the whole mischief has arisen from the fact that the District Judge Sanfords order abating the suit was pronounced ex parte without giving the opposite party the opportunity of appearing. An order abating the suit, looking to the terms of s. 371 already quoted, may be said to be really tantamount to a judgment in favour of the defendant. An order abating the suit, looking to the terms of s. 371 already quoted, may be said to be really tantamount to a judgment in favour of the defendant. To pronounce such a judgment ex parte, when no notice has been given to the opposite side to appear and contest the order, is much the same as to decide a suit against a defendant who has not been cited to appear. The practice, if it is a practice, is quite indefensible. Their Lordships think it better to say, further, that if the defendant had been present it is clear that no order of abatement ought to have been pronounced. The plaintiff as representative of the original plaintiff, and the defendants representatives. of Joti Lai, had been introduced in the Chief Court. No doubt that was only done in the course of an interlocutory application as to the production of books. But the introduction of a plaintiff or a defendant for one stage of a suit is an introduction for all stages, and the prayer, which seems to have been made ob majorem cautelam, by the plaintiff, in his application to the District Judge Prenter under s. 365, was superfluous and of no effect, Coates, the judgment debtor, was only formally called, and the non-presence of his representatives would afford no ground for the abatement of the suit. Their Lordships will therefore humbly advise His Majesty to allow this appeal, and to remit to the Chief Court to allow the appeal and to set aside the order of the District Judge Sanford, and to remit to the District Judge to proceed with the hearing of the case on the merits. The respondents will pay the appellant the costs of this appeal, and in the Courts below the costs so far as the proceedings were directed to setting aside the order of Judge Sanford. The general costs of the suit will abide the result on the merits.