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Narayan Ambaji Chavan Vs. Hari Ganesh Navare - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case Number Second Appeal No. 969 of 1927
Judge
Reported inAIR1930Bom505; (1930)32BOMLR1186
AppellantNarayan Ambaji Chavan
RespondentHari Ganesh Navare
DispositionAppeal dismissed
Excerpt:
.....prosecuting a revision application in the high court cannot be deducted, under section 14 of the indian limitation act, from the period prescribed for filing a suit.;baiznath lala v. ramadoss (1914) i.l.r. 39 mad. 62 and s.r.m.m.a. firm v. maumng po saitng (1929) i.l.r. 7 ran. 466 followed ;;subramania pillai v. seelhai animal (1911) i.l.r. 36 mad. 135 and baijnath sahai v. ramgut singh (1896) i.l.r. 23 cal. 775, distinguished. - - thereupon the plaintiff made an application under order xxi, rule 97, for removal of the obstruction which was dismissed on april 15,1924, under order xxi, rule 99, it was incumbent on the plaintiff to bring a suit under order xxi, rule 103, within one year but the present suit was brought by the plaintiff on june 24, 1925. the suit is governed by article..........suit was brought by the plaintiff on june 24, 1925. the suit is governed by article 11a of the indian limitation act and rule 10 of order xxi, and is clearly beyond time. the plaintiff tried t save limitation on the ground that he had made an application the high court in revision on july 11, 1924, which was dismissed on april 3, 1925. it is urged on behalf of the appellant that that time is excluded under section 14 of the indian limitation act the suit would be within time.2. the first question arising in the case is whether an application for revision to the high court is a 'civil proceeding in a court o appeal' within the meaning of section 14. the lower appellate court relying on the decision in the case of bubramania pillai seethai ammal ilr (1811) mad. 135 held that a.....
Judgment:

Patkar, J.

1. One Ganesh Anant Desai filed suit No. 29 of 1918 against the present plaintiff' for possession of the property in suit and obtained a decree in execution of which he was put in possession. On appeal the plaintiff got the decree reversed and then applied under Section 144 of the Civil Procedure Code, for restoration of possession. The application was granted but defendant No. 1 resisted the delivery of possession. Thereupon the plaintiff made an application under Order XXI, Rule 97, for removal of the obstruction which was dismissed on April 15,1924, under Order XXI, Rule 99, It was incumbent on the plaintiff to bring a suit under Order XXI, Rule 103, within one year but the present suit was brought by the plaintiff on June 24, 1925. The suit is governed by Article 11A of the Indian Limitation Act and Rule 10 of Order XXI, and is clearly beyond time. The plaintiff tried t save limitation on the ground that he had made an application the High Court in revision on July 11, 1924, which was dismissed on April 3, 1925. It is urged on behalf of the appellant that that time is excluded under Section 14 of the Indian Limitation Act the suit would be within time.

2. The first question arising in the case is whether an application for revision to the High Court is a 'civil proceeding in a Court o appeal' within the meaning of Section 14. The lower appellate Court relying on the decision in the case of Bubramania Pillai Seethai Ammal ILR (1811) Mad. 135 held that a revisional application in the High Court could not be covered by the words ' a civil proceeding a Court of appeal.' It appears that the decision relates to the words 'order on appeal' in Article 182 of the Indian Limitation Act and has no application to Section 14 of the Indian Limitation Ac The appellant's counsel relied on the decision in the case of Baijnath Bahai v. Ramgut Singh ILR (1898) Cal. 775. But it appears from the judgment that the point under Section 14 of the Indian Limitation Ac was not decided. The High Court is not a Court of appeal but Court of revision in respect of an order of a Second Class Sufe ordinate Judge under Order XXI, Rule 99. Assuming, however that an application for revision to the High Court is covered by the words ' civil proceeding in a Court of appeal' within the meaning of a 14 of the Indian Limitation Act, the further question for decision is whether the High Court was not able to entertain the application from defect of jurisdiction or other cause of like nature. It appears that the High Court refused to interfere o the ground that there was another remedy by way of a suit, think, therefore, that the conditions necessary under Section 14 of the Indian Limitation Act are not satisfied.

3. In Baismath Lala v. Bamadoss ILR (1914) Mad. 62 it was held that in computing the period of limitation for the filing of a suit the plaint was not entitled to deduct under Section 14 of the Indian Limitation Act the period of time taken by him to file a revision petition the High Court or the time during which ho was prosecuting the revision petition against the order of distribution under Section 73 < the Civil Procedure Code. At p. 66 it is observed :-

We think, further, that the respondent is entitled to rely upon the contention that in any event plaintiff cannot be said to have prosecuted the Revision Petition in good faith within the meaning of Section 14 of the Limitation Act inasmuch as it has been frequently held by this and other High Courts that the High Court will not exercise its revisional powers when there is any other remedy open. Here the plaintiff had his remedy by suit.

4. Similarly, in S. M. M. M. A. Firm v. Maung Po Sawng ILR (1929) Ran. 466, it was held that where a person does not file a suit within one year after the adverse order under Order XXI, Rule 63, and chooses to apply for revision of such order, he cannot get benefit of Section 14 of the Indian Limitation Act and ask for the exclusion of time taken up in the revision proceedings, and that the proceedings contrary to the clearly expressed provision of law cannot be regarded as prosecuting another civil proceeding in good faith. Under Order XXI, Rule 103, it has been specifically laid down that subject to the result of a suit which is therein expressly provided for, the order shall be conclusive.

5. Even on the facts of the present case, it cannot be said that the plaintiff was diligent in filing the present suit. The revisional application was dismissed on April 3,1925, and the present suit was not brought till June 24, 1925. If the plaintiff had filed the suit soon after the dismissal of the revisional application on April 3, his suit would have been within time.

6. I think, on the whole, that the view taken by the lower Court was right, and this appeal must be dismissed with costs.


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