Concurrent remedies and limitation: time spent in an earlier failed application did not justify condonation for a later appeal.

Where a litigant pursues one of two concurrent remedies and fails on merits, the time spent in that proceeding is not ordinarily available for exclusion or condonation under section 5 of the Limitation Act when a later appeal is filed. The court distinguished cases involving review and wrong forum appeals, and held that mistaken legal advice or diligence in pursuing the earlier application did not amount to sufficient cause for delay. The appeal therefore remained barred by limitation, and the preliminary objection succeeded.

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Issues: Whether the time spent in prosecuting an application to set aside an ex parte decree could be excluded or condoned under section 5 of the Limitation Act so as to save a subsequently filed appeal from limitation.

Analysis: The appeal was filed after expiry of the normal period of limitation. The defendants had first pursued an application to set aside the ex parte decree, but that application failed on merits. The governing principle applied was that where a litigant has concurrent remedies, choice of one remedy does not ordinarily entitle him to exclude or condone the time spent in that proceeding while later invoking the second remedy, except in the special case of review. The Court distinguished authorities dealing with review and wrong forum appeals, and held that mistaken legal advice or diligence in pursuing the earlier application did not amount to sufficient cause for the delay in filing the appeal.

Conclusion: The time spent in prosecuting the application to set aside the ex parte decree could not be deducted or condoned, and the appeal remained barred by limitation.

Final Conclusion: The preliminary objection on limitation succeeded, and the appeal was dismissed as time-barred.

Ratio Decidendi: Where a litigant pursues one of two concurrent remedies and fails on merits, the time spent in that proceeding is not ordinarily available for condonation of delay in a later appeal, save in the exceptional case of review.

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