1. The suit was filed by Parsharam Vasudev Mogre on a promissory note executed on October 7, 1921, by the deceased father of the defendants-appellants Dadaji Ramchandra Joshi. He died on September 17, 1923, and on November 28, 1924, his widow made a payment of a hundred rupees in part payment of the debt. On November 10, 1927, she acknowledged that a certain amount was dueon the promissory note and on October 16, 1930, that is about a month before the expiry of the period of limitation, Mogre filed a suit in this Court on the promissory note. On February 25, 1931, however, he made an application for leave to withdraw the suit under Order XXIII, Rule 1, of the Civil Procedure Code, and for permission to file a fresh suit, and the leave was granted by an order of the Court on the same date. Thereafter on March 24, 1931, he filed a suit on the promissory note in the Court of the Second Class Subordinate Judge of Andheri. The only issue with which we are now concerned was whether the suit was time-barred. It is embodied in issue No. 8 :
Is plaintiff entitled to exclude, under Section 14 of the Indian Limitation Act the period from October 16, 1930 to February 25, 1931 (the period during which he was prosecuting his suit in the High Court) in computing the period of limitation for this suit?
2. The learned Subordinate Judge held that he was entitled to exclude that period and made a decree in his favour. The defendants appealed and the same question was decided again against them, and they have now filed appeal in this Court.
3. It is conceded that unless the plaintiff be allowed to deduct the period during which he was prosecuting his suit in this Court, his suit must be held to be out of time. The learned Assistant Judge found the question difficult to answer. He answered it, however, in favour of the plaintiff on the ground that the plaintiff had been prosecuting his suit upon the same cause of action with due diligence and in good faith in the High Court, and, secondly, that as the defendants were agriculturists and lived outside the jurisdiction of the High Court, that Court could not entertain the suit. His conclusion was in effect that inasmuch as the Court had no jurisdiction, its order purporting to be made under Order XXIII, Rule 1, was a nullity and might be ignored. With respect we cannot agree with this reasoning. Our view is that the Court had jurisdiction to entertain the suit and did entertain it under Clause 12 of the Letters Patent. It had also jurisdiction to decide the question raised by the defendants that they were agriculturists, that is, it had jurisdiction to decide whether it could make a decree, and we do not think that its jurisdiction was affected in any way by the action of the plaintiff. The order made by it under Order XXIII, Rule 1, was an order of a Court which had jurisdiction, and this case, therefore, comes under Order XXIII, Rule 2, and the plaintiff was bound by thelaw of limitation just as if the first suit had not been instituted. It is not necessary for me to labour this point as it has already been decided by a bench of this Court in an unreported case of Dattatraya Vasudev Vagh v. Dinkar Dattatraya Khandalekar (1936) F.A. No. 92 of1930, decided by Broomfield and Tyabji JJ on February 19, 1936 (Unrep), where the facts were similar Mr. JusticeBroomfield remarked thus :
Why it should be suggested that this Court's order was without jurisdiction, as the learned trial Judge appears to think, or why it should be treated as anything other than what it evidently was, I must confess I fail to see. The Court obviously has jurisdiction to inquire whether the parties who set up the status of agriculturist are in fact entitled to that status. It cannot be disputed that the order appointing a Commissioner to make this inquiry was within jurisdiction, and when the motion was made for an order giving leave to withdraw, there wag no finding one way or the other as to whether defendants Nos. 2 and 3 were agriculturists or not.
4. Mr. Kane suggests that our present case is distinguishable as no Commissioner was appointed as in the case of Dattatraya v. Dinkar to decide the question of status, but we cannot see that this makes any difference. Mr. Justice Tyabji in concurring said :.the appellant himself was responsible for the order that was made in this Court. He made a mistake of not realising that, if he wanted an order for withdrawal with leave of the Court undler Order XXIII, Rule 1, then he would have to face Rule 2 of Order XXIII, and not have the benefit of Section 14 of the Indian Limitation Act. He seems to have been afraid of admitting and proceeding on the basis that defendants Nos. 2 and 3 were agriculturists, and that therefore the suit in this Court should be dismissed against him on the ground that the Court had no jurisdiction. If he had had the suit dismissed on the ground of want of jurisdiction, he might have had Section 14 of the Indian Limitation Act in his favour. As it is, he did not take the steps that would have been necessary for him to get over the Limitation Act.
5. The Civil Procedure Code and the Indian Limitation Act are rules of procedure and must be interpreted strictly. In our opinion this case comes under Order XXIII, Rule 2, and not under Section 14 of the Indian Limitation Act. This being so, the appeal must succeed and the decree of the lower appellate Court in favour of the plaintiff must be set aside and the plaintiff's suit dismissed with costs throughout.