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Annu Alias Kallappa Vs. Sheshu Gundappa - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 237 of 1965
Judge
Reported inAIR1970Kant318; AIR1970Mys318; (1970)2MysLJ73
ActsLimitation Act, 1908 - Sections 14; Bombay Agricultural Debtors Relief Act, 1947 - Sections 4 and 52; Debt Law; Code of Civil Procedure (CPC), 1908 - Sections 68, 69, 70, 71, 72 and 144
AppellantAnnu Alias Kallappa
RespondentSheshu Gundappa
Appellant AdvocateK. S. Savanur, Adv.
Respondent AdvocateJ.S. Gunjal, Adv.
Excerpt:
.....integral part of the constitutional system. an authority is bound to pass reasonable order. if not, interference by high court and supreme court is permissible. - , on 13-10-1960 the appellant filed the present suit for recovery of possession after an unsuccessful application to the collector made on 7-3-1956, which was dismissed shortly thereafter. --in computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or in a court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a court which, from defect of jurisdiction, or other cause of a like..........civil court to which the provisions of the code of civil procedure apply. the argument is that the civil proceedings in this section must be regarded as covering everything other than a criminal proceeding. reliance is placed on a ruling of the madras high court in dugarajulum v. aryan bank, vizagapatam, air 1937 mad 357. the other proceedings dealt with in the said madras case were proceedings in execution of a decree and the the actual declaration of law is contained in the following observations of justice varadachariar:--'the legislature has not, for purposes of computation, drawn any distinction in clause (1) of section 14 between the suit stage and later stages in execution, though for purposes of initiation of proceedings, a distinction has been made between a suit dealt with by.....
Judgment:

A. Narayana Pai, J.

1. This second appeal is against a concurrent decision of both the Courts below.

2. The salient facts necessary for the disposal of the second appeal are as follows:

A money decree in Original Suit No. 326 of 1936 on the file of the trial Court against the appellant's father was assigned to the respondent who put it into execution. During that period Sections 68 to 72 of the Code of Civil Procedure had not been repealed. Hence the actual conduct of the sale was made over to the Collector by the Civil Court. The Collector sold two strips of land measuring 1 acre 20 guntas and fifteen gimtas respectively on 6-6-1944. They were purchased by the respondent for Rs. 1,290/- and the sale was confirmed on 22-11-1944. The respondent took possession on 8-10-1946.

3. Subsequent thereto the appellant is said to have preferred an appeal to the State Government of Bombay against an appellate Order of the Divisional Commissioner dismissing his appeal. The State Government set aside the order of sale and directed the appellant to approach the Collector for appropriate consequential reliefs.

4. The appellant instead of going to the Collector, applied to the trial Court for restitution under Section 144 of the Code of Civil Procedure. That application was made on 13-2-1954 and was dismissed on 8-2-1956.

5. Prior thereto the appellant had applied to the Court under the Bombay Agricultural Debtors Relief Act for adjustment of his debt. That application was made on 20-10-1945 and dismissed on 10-10-1951, on the ground that the appellant was not a debtor within the meaning of the Act and also on the ground that the sale had been confirmed long before the presentation of the application.

6. It was thereafter that he made the above application under Section 144 of the Code of Civil Procedure, which, as already stated, was dismissed on 8-2-1956. More than five years thereafter i.e., on 13-10-1960 the appellant filed the present suit for recovery of possession after an unsuccessful application to the Collector made on 7-3-1956, which was dismissed shortly thereafter.

7. On the dates given above, namely, taking of possession by the respondent on 8-10-1946 and the filing of the suit on 13-10-1960, there can be no doubt whatever that the suit was prima facie barred by limitation. The period of limitation was twelve years from the date of loss of possession. The actual rime lag is fourteen years and five days.

8. The only ground on which the appellant tried to bring his suit within the limitation of twelve years is that he was entitled under Section 14 of the Limitation Act, 1908, to the exclusion of the periods spent by him in bona fide pursuing other remedies.

9. The first sub-section of the said section reads:--

'In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and 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 other proceeding referred to in this section is undoubtedly a proceeding in a Civil Court to which the provisions of the Code of Civil Procedure apply. The argument is that the Civil Proceedings in this section must be regarded as covering everything other than a criminal proceeding. Reliance is placed on a ruling of the Madras High Court in Dugarajulum v. Aryan Bank, Vizagapatam, AIR 1937 Mad 357. The other proceedings dealt with in the said Madras case were proceedings in execution of a decree and the the actual declaration of law is contained in the following observations of Justice Varadachariar:--'The Legislature has not, for purposes of computation, drawn any distinction in Clause (1) of Section 14 between the suit stage and later stages in execution, though for purposes of initiation of proceedings, a distinction has been made between a suit dealt with by clause (1) of Section 14 and an application provided for in clause (2). ..... Theprinciple of Section 14, Limitation Act, is that if and so long as a person has been bona fide and with due diligence seeking the relief that he was entitled to in a Court which he believed to be a Court competent to grant him that relief, he ought not to be penalized for having instituted that action in the wrong Court. '...... The section specifically refers to the possibility of proceedings being taken in the Court of first instance or in the Court of Appeal; this obviously rests on the theory that an appeal is merely a continuation of the proceedings in the first Court. No express reference has been made to proceedings in execution, apparently because under the law proceedings in execution have to be taken in the Court of first instance.'

10. Apart from the fact that the Court was dealing exclusively with proceedings in a Civil Court the further reference to the fact that proceedings dealt with in the section are referred to as those taken in the Court of first instance or appeal or revision, leave no room, in my opinion, for any doubt that the proceedings referred to are proceed-dings dealt with under the Code of Civil Procedure in a Court exercising general civil jurisdiction to which alone, it may be remembered, the provisions of the Limitation Act apply.

11. Another ingredient of this section which must be borne in mind is that the other proceedings referred to therein must be proceedings which relate to the same matter in issue, which Justice Varadachariar has understood to mean the proceedings by taking which the party bona fide believes that he might secure the relief which is under consideration.

12. If these principles are applied, there can be no doubt that the proceedings taken by the appellant before the B. A. D. R. Court are wholly beyond the scope of Section 14 of the Limitation Act. Firstly they are not proceedings taken under the Code of Civil Procedure in a Civil Court, and secondly they are not proceedings taken for the relief sought in the present suit, namely, recovering of possession of the property. The only relief sought in the B. A. D. R. Court was the adjustment of the debt, as the only relief the appellant could have sought and which that Court was competent to give was the adjustment of the debt and not recovery of possession of the property as an ordinary Civil Court can do.

13. Finally, Section 52 of the Bombay Agricultural Debtors Relief Act contains what Mr. Gunjal for the respondent describes as complete answer to the appellant's contention. That section reads as follows:--

'In computing the period of limitation for the institution of any suit or proceeding in respect of any debt due from any person who is held not to be a debtor by the Court or the Court in appeal or an application relating to which has been dismissed by the Court or the Court in appeal, the period during which the proceedings in respect of such debt were prosecuted before the Court or the Court in appeal shall be excluded,'

On the plain language of this section, the benefit thereof is intended to be conferred on the creditor whose ordinary remedies either by way of suit or otherwise get incapable of being pursued by him. Further the reason for conferring this benefit of exclusion upon the creditor expressly by Section 52 is that in the absence thereof the creditor would have been disabled from taking the, benefit of Section 14 of the Limitation Act.

14. The appellant, therefore, is not entitled to the exclusion of the period occupied by the B. A. D. R. proceedings taken by him.

15. The question of law whether he could deduct the period occupied by his application under Section 144 of the Code of Civil Procedure in the trial Court, need not be gone into because even if that is deducted still the suit is beyond time.

16. Nor is it worthwhile considering the question of Government's jurisdiction to set aside the sale, because whatever may he the EPosition in regard thereto, the undeniable fact is that the respondent took possession of the property for his own benefit and in his own right and to the exclusion of the right of everybody else on 8-10-1946 more than twelve years before the institution of the suit.

17. The second appeal fails and is dismissed with costs.

18. Appeal dismissed.


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