Ranawat, J. - (1.) THIS case has been referred to Division Bench by one of us shitting singly. The following two questions arise according to the order of reference - 1. Whether second appeal in the present case was governed by sec. 608 of the Jaipur Civil Procedure Code of Smt. Year 1987 or' of sec. 100 of Jaipur Code of Civil Procedure, 1943? 2. Whether time spent in prosecuting the application for leave to appeal to D. B. may be excluded and the application for review be treated as within time?
(2.) A decree for redemption of a shop was confirmed in appeal by this Court on the 24th of July, 1950. The mortgagee filed an application for leave to appeal to the Division Bench under sec. 18 of the Rajasthan High Court Ordinance on the 16th of August, 1950, which was dismissed on the 6th of October, 1950. He then filed a review petition on the 2nd of December, 1950; An objection was taken by the mortgagor that the review petition was barred by the period of limitation. The applicant, however, applied for the benefit under sec. 5 read with sec. 14 of the Indian Limitation Act on the ground that he was diligently pursuing the case for filing an appeal but when his application for leave to appeal was dismissed he chose to taken his stand on the review petition. The petitioner urged that as the suit was instituted at the time the Jaipur Civil Procedure Code of Svt. Year 1987 was in force, he was entitled to take up questions of fact in his second appeal, notwithstanding the fact that at the time the decision was given by the first court, the Jaipur Civil Procedure Code of 1943 had come into force, which did not allow a second appeal on questions of fact in a case where the decision of the two courts below was concurrent. In this case the finding of fact of the two courts below were concurrent. We may refer to a decision of this Court on the first question in Thakurji Sriji Gopi Nathji vs. Gumaniram (1), wherein it has been observed as follows - "in our opinion, the right of appeal or for that matter of second appeal becomes vested in a litigant on the date of the institution of the suit and in the case before us this was a present right which was saved by the express provision of sec. 154 of the Code. The view taken by the Madras High Court in Kalinga Hebbara vs. Narasima Hebbara (IX Indian Cases. 937), and in subsequent cases of the same High Court is in our opinion a correct one. We hold, therefore, that the plaintiff had a right to prefer a second appeal on facts according to the law in force on the date of institution of the suit. " The facts of Thakurji Sriji Gopinathji's case (l) were every similar to the facts of the present case. The first question, therefore, is governed by the decision of this Court in Thakurji Sriji Gopinathji's case. As regards the second question, we are of opinion that the petitioner has not been able to show good grounds for invoking the aid either of sec. 5 or of sec. 14 of the Indian Limitation Act. Sec. 5 provides for extension of time in case of appeal or application for a review of judgment or for leave to appeal or any other application to which the section may be made applicable by or under any enactment for the time being in force, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within the prescribed time. It is necessary in cases under sec. 5 for the appellant or the applicant to explain each day of delay as has been held by this Court in Seth Nauratanmal vs. Harisingh (2 ). In that case the appellant failed to explain delay from the 26th of June onwards the date of the presentation of the appeal. It was observed as follows - "as to the delay from the 26th of June onwards, it is the duty of the applicants in such cases to explain each day's delay satisfactorily, and if they fail to do so, they cannot get the benefit of sec. 5 of the Limitation Act. In the present case the petition was dismissed on the 6th of October, 1950, and the review application was filed on the 2nd of December, 1950. No explanation has been given for the time after the expiry of the period of limitation, plus the time requisite for obtaining a copy of the judgment upto the date of presentation of the review petition. No case for extension of time has thus been made out by the petitioner under sec. 5 of the Limitation Act. Coming to the case of the petitioner under sec. 14 (2) of the Indian Limitation Act, it may be noted that the provision of sec. 14 (2) is as follows - "in computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding whether in a Court of first instance or in a Court of appeal, against the same party for the some relief shall be excluded, where such proceeding 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. ', The petition for leave to appeal was heard and decided by this Court on merits and it was not dismissed for defect of jurisdiction or other cause of like nature. The petitioner could invoke the aid of Sec. 14 (2) only in case his previous petition had been unsuccessful for the reason of defect to jurisdiction, or other cause of a like nature. As the petition for leave to appeal was decided on merits, it cannot be urged by the petitioner that his petition failed on account of some defect of jurisdiction or other cause of a like nature The provision of Sec. 14 (2) cannot, therefore, come to the help of the petitioner. The learned counsel urged that he may be allowed the benefit of the principles underlying Sec. 14 (2) by reading Sec. 5 together with it. As has already been discussed above, sec. 5 cannot help the case of the petitioner for the reason that he has failed to explain the time after the expiry of 90 days' period of limitation till the date of filing of the review petition, and for that reason the principles underlying Sec. 14 cannot come to his aid at all either by themselves or by applying them together with Sec. 5. The review petition is thus barred by the period of limitation and cannot be entertained. We would, therefore, dismiss the review petition as being time barred. .;