Karamat Husain, J.
1. The suit out of which this appeal arose was for sale upon a mortgage. Kure Mal and Chhajju executed a simple mortgage in favour of the plaintiff Khyali Ram on the 23rd of December 1890. On the 7th of August 1907, a suit on the said bond was instituted which was withdrawn on the 14th of the same month. The substance of the application was as follows:'There is such a patent defect (naqs sarih) in the case as renders its dismissal likely, it is, therefore, prayed that the case may be dismissed with permission to being a fresh suit.' The order on the application is in these terms:'This is an application under Section 373, Civil Procedure Code. I allow the application. The plaintiff should be at liberty to bring a fresh suit for the subject-matter of the claim'.
2. The fresh suit was brought on the 30th of June 1910 with the allegation that in 1907 a suit on the same bond was withdrawn on the ground of limitation with permission to bring a fresh suit. Chhajju Mal denied the allegation and pleaded that the permission to bring a fresh suit being granted for insufficient reasons and without notice to the defendant was bad in law; that the fresh suit was barred by res judicata and that it was barred by Section 31(2) of the Indian Limitation Act, 1908, and that the defendant was a minor when the bond was executed. The Court of first instance overruled other pleas already mentioned but, finding Chhajju to be minor on the date of the execution of the bond, gave a decree against Kure Mal and dismissed the claim against Chhajju.
3. The plaintiff appealed challenging the findingas to the minority of Chhajju and Chhajju filed objections to the effect that the suit not being instituted within six months from the 14th of September 1907 was time-barred. The lower Appellate Court, finding that Chhajju was of age on the 23rd of December 1890, decreed the plaintiffs claim against Chhajju but took no notice of the plea of limitation put forward by him.
4. In second appeal, two points are urged:
(1) As the permission to bring a fresh suit was bad in law, the suit is barred by res judicata; and
(2) the suit is barred by Section 31(2) of the Indian Limitation Act, (sic).
5. There is no substance in the first point.
6. The order granting permission to bring a fresh suit, assuming that it was given for insufficient reasons, became final and could not be re-opened in the fresh suit on the merits. That order could not operate as res judicata [see Abdul Rahman v. Behari A.W.N. (1885) 151] In Ram Krishna v. Ram Kirpa 9 A.L.J. 358 : 14 Ind. Cas. 97 a learned Judge of this Court ruled that permission to withdraw a suit without sufficient grounds is bad in law but the order in suit of 1907 became final. The next question is whether the suit instituted on the 30r,h of June 1910 is or is not barred by Section 31(2) of the Indian Limitation Act, 1908. Section 31(2) applies to applications for restoration of a case dismissed or withdrawn on the ground of 12 years' rule of limitation and has no application to a fresh suit. Such a suit, under the provisions of Section 374, Civil Procedure Code, 1882, corresponding to Order XXIII, Rule 2, is governed by the law of limitation in the same manner as if the first suit had not been instituted.
7. The law of limitation in force on the 30th of June 1910, when the fresh suit was instituted, was the Indian Limitation Act, 1903, and Section 31(1) of that Act provided:
Notwithstanding anything contained in this Act or in the Indian Limitation Act, 1877, in the territories mentioned in the second Schedule, a suit for foreclosure or a suit for sale by a mortgagee may be instituted within two years from the date of the passing of this Act, or within sixty years from the date when the money secured by the mortgage became due whichever period expires first'. The United Provinces of Agra and Oudh are among the territories mentioned in the second Schedule and the fresh suit was instituted on the 30th of June 1910, i.e., within two years from the date of the passing of the Indian Limitation Act, 1908, i.e., the 7th of August 1908. The fresh suit was thus instituted within the period of limitation. The mere fact that the fresh suit was brought with the permission of the Court does not, in my opinion, deprive the plaintiff of the benefit of Section 31(1) of the Indian Limitation Act.
8. The facts in Ram Autar Sahu v. Gulab Chaudhri 6 Ind. Cas. 700 were somewhat different from the facts of the present case, but I feel some doubt as to the correctness of the decision in that case.
9. For the above reasons, I dismiss the appeal with costs which in this Court will include fees on the higher scale.