1. This special appeal has been brought to this Court on a certificate granted by a learned Single Judge deciding an execution second appeal that the case was a fit one for being taken in special appeal.
2. The facts giving rise to this appeal may be briefly stated thus :
3. The appellant was a judgment-debtor in a decree made against him by a Sub-Divisional Officer on 13-8-1936. That decree was put into execution for the first time on 12-2-1938. The execution application was made in the Court of the Collector of Meerut for the sale of zamindari property belonging to the judgment-debtor. The judgment-debtor filed various objections to the execution of the decree including the objection that the Collector's Court was not the proper court for executing the decree. On 31-7-1939, the Collector allowed the objections of the judgment-debtor but did not decide the question as to whether or not he had jurisdiction to execute the decree. Therefore the question as to whether or not the Collector's Court was the proper court for executing the decree in question remained undecided.
4. On 21-8-1939, the decree-holder made a second application for execution and this application too was presented in the Court of the Collector, for by this application also the decree-holder prayed for execution by the sale of the zamindari property of the judgment-debtor. The judgment-debtor again raised objections to the execution of the decree and he again reiterated his objection as to the jurisdiction of the Collector to entertain the execution application. This time the Collector considered the question as to whether or not he had jurisdiction to grant execution and he decided that he had no jurisdiction to execute the decree. He, therefore, made an order directing the application for execution to be returned to the decree-holder for presentation to the proper court. The decree-holder presented the execution application, which had been returned to him under the orders of the Collector dated 15-9-1942, to the Court of the Sub-Divisional Officer, Baghpat, on 19-9-1942.
The judgment-debtor raised the objection of limitation in the Court of the Sub-Divisional Officer. His contention was that execution was barred because no proper application for execution had been made within three years of the date of the decree. On behalf of the decree-holder it was contended that he had bona fide and with due diligence prosecuted an execution application for a similar remedy against the judgment-debtor in a court which on account of want of jurisdiction could not give him the relief which he had sought in that court and therefore his contention was that he was entitled to exclude all the time that had been spent in his bona fide and with due diligence prosecuting the same remedy in another court; the decree-holder in effect relied on the provisions of Section 14 (2) of the Indian Limitation Act.
5. The executing court and the court of first appeal repelled the objection of the judgment-debtor in regard to limitation. On second appeal to this Court a learned single Judge held that Section 14 (2) of the Limitation Act applied to execution applications as well and therefore the decree-holder who had been prosecuting bona fide his application for execution in the Court of the Collector was entitled to a deduction of the time which had been spent by him in prosecuting his remedy in the court of the Collector. It has been conceded that if the period during which the decree-holder had been prosecuting his execution in the Collector's Court could be excluded in computing the period of limitation, then the application dated 19-9-1942, would not be beyond time.
The courts below have found that the decree-holder acted bona fide and prosecuted his application with due diligence. These were questions of fact on which the decision of the court below was bindine on this Court and therefore these findings have to be accepted, and the only question that we were called upon to determine was whether Section 14 (2) applied to execution applications or not. The consensus of judicial opinion is that it does and indeed there was nothing in the words of that sub-section to indicate that it did not, for the words are these :
'In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the same party for the same relief shall be excluded, where such proceeding 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.'
6. The appellant relied on a decision of this Court in Ram Raj Dasundhi v. Mt. Umraji : AIR1926All345 , for his contention that Section 14 of the Indian Limitation Act applied only to suits and not to execution proceedings. Ram Raj Dasundhi's case AIR 1926 AH 345, was decided by Sulaiman, J., as he then was, and the reported decision does give the impression that he decided that Section 14 did not apply to an application for execution, but this impression is due to the fact that the report of the case in this volume of the All India Reporter was incorrect. We have however examined the original judgment made by Sulaiman, J., in the case and we find that what he said was this :
'The learned Advocate for the appellant contends that inasmuch as the decree-holder was acting bona fide under a wrong impression and was prosecuting another proceeding with due diligence the provisions of Section 14 of the Limitation Act would be applicable and that in any case Section 5 should apply. Neither of these contentions can be accepted. The court below has found that the decree-holder did not act in good faith or with due care and diligence. Section 14 is therefore inapplicable.'
From what we have quoted above from the original judgment of Sulaiman, J. it is clear that he never held that Section 14 of the Limitation Act did not apply to applications for execution. Therefore, this case was no authority on which the appellant could rely for his contention.
7. For the reasons given above we have seen no merits in this appeal which we accordingly dismiss. The respondent has not appeared in this Court and therefore we make no order as to the costs of this appeal.