Norman Macleod, Kt., C.J.`
1. In this case the plaintiff obtained a decree on November 27, 1907, in the Vadgaon Court in the Poona District, for possession of certain property. By a darkhast No. 29 of 1919 he is now seeking to execute that decree and an objection has been taken by the judgment-debtors that the darkhast was barred by limitation.
2. That question depends on a further question whether the darkhast of June 7, 1916, was itself in time. The darkhast before that was dated April 10, 1912, and admittedly unless some of the period between April 10, 1912, and June 7, 1916 is excluded the darkhast of June 7, 1916, was out of time. The darkhast of April 10, 1912, was properly filed in the Vadgaon Court but thereafter as that Court had to sit for a certain number of days in a month at the Haveli Court, a notice was issued that the Judge would be sitting in the Haveli Court to hear that darkhast. The defendants did not appear and the Judge sitting in the Haveli Court made the warrant for possession absolute. The defendant objected to that order on the ground that the Court had no jurisdiction to pass that order sitting in the Haveli Court and appealed to the District Court which on February 26, 1913, set aside that order. The plaintiff appealed to the High Court but on February 3, 1915, that appeal was dismissed. The darkhast was finally brought on board in the Vadgaon Court on June 30, 1915, when it was struck off owing to the absence of the plaintiff. When the plaintiff sought to proceed with the execution of darkhast No. 29 of 1919 he was confronted by the plea of limitation. The District Judge directed the Subordinate Judge of Vadgaon to proceed with the execution. Against that order an appeal was filed to the High Court which was summarily dismissed by Mr. Justice Shah. In the Letters Patent appeal there was a difference of opinion between Mr. Justice Marten and Mr. Justice Pratt, so under Clause 36 of the Letters Patent the opinion of the senior Judge which was in favour of the appeal being dismissed prevailed. The defendants have filed a further appeal under the Letters Patent.
3. There is no authority on the question which we have to decide. Mr. Justice Marten was of opinion that Section 14(2) was intended to protect a party from time running against him during the pendency of a bona fide proceeding which might eventually prove abortive by reason of want of jurisdiction or some similar cause. He referred to the decision in Hira Lull v. Budri Dass (1880) L.R. 7 IndAp 167 where it was held that a proceeding to enforce a decree taken bona fide and with due diligence before a Judge whom the party bona fide though erroneously believed to have jurisdiction, was a proceeding within the meaning of Section 20, Act XIV of 1859, whether the Judge actually decided that he had jurisdiction, or supposing himself to have jurisdiction acted accordingly. The only distinction from the present case is that in that case there was no darkhast filed in the proper Court in which time was running when the wrong applications were made, and as they were held to have been made bona fide, in a Court which had no jurisdiction, the time taken up in making those applications was excluded. Here undoubtedly there was a darkhast filed on April 10, 1912, which was filed in the proper Court, and there would be a difficulty in determining whether the proceedings taken up by the Judge on his own motion apparently when sitting in another Court were proceedings of a different character to the proceedings originally taken in the Vadgaon Court. But if the proceedings in the Haveli Court are considered as original darkhast proceedings taken bona fide in a Court without jurisdiction then undoubtedly the time from April 15, 1912, would have to be excluded. We do not think that in this case the plaintiff ought to suffer because when the proper proceedings were in the Vadgaon Court, the Judge sitting in the Haveli Court wrongly entertained the darkhast. For the purpose of this application, we think the notice of April 15, 1912, and the steps taken therein should be treated as a separate proceeding and not as appertaining to the original proceeding which was properly filed in the Vadgaon Court. It was only owing to the fact that the Judge was sitting for part of his time at the Vadgaon Court, for part of his time in the Haveli Court, and for part of his time in another Court, that a case of this nature could possibly arise I very much doubt whether the framers of the Indian Limitation Act could have contemplated the possibility of a Judge being right in taking up certain proceedings when sitting in one Court and wrong in taking up the same proceedings when sitting in another Court.
4. The appeal, therefore, must now be dismissed with costs.
5. I agree.
6. I agree.