1. In my opinion this decision is wrong. First, as regards the point of limitation. The facts are these: Defendants Nos. 1 and 2, who are now the decree-holders, are alleged to have seized more than they are entitled to, and the plaintiffs set up their title and seek to prevent the attachment and sale of property which is theirs. They took an objection in the execution department. Their claim was rejected on the 3rd of March 1917. They thereupon brought a suit, as they could properly do on the 15th of August 1917 against the decree-holder and one of the two judgment-debtors, the absent judgment-debtor being a woman, Musammat Batul Bibi. The time for bringing that suit was one year from the 3rd of March 1917. They apparently brought the suit in the wrong Court. There is no suggestion that they did not do so in good faith. For some reason which is not disclosed but which merely illustrates once more the terrible delay in litigation in this country, the plaint was not returned from the Court of the Subordinate Judge until the 25th of June 1919, a period of nearly, two years. I hold that the, time during which a Court holds up a case while it is discovering that it ought to have been presented in another Court, is time which ought to be excluded in computing the period of limitation which is applicable, as provided by Section 14 of the Limitation Act. It cannot be said that a plaintiff is not prosecuting a suit with due diligence in a Court of first instance when the delay is caused by the action of the Court itself. I, therefore, think that the period between the 15th of August 1917 and the 25th of June 1919 ought to be excluded. It was objected, in the suit which was eventually filed on the 8th of August 1919 before the Munsif, that the absent Musammat Batul Bibi was a necessary party and she was impleaded on the 5th of February 1920. Excluding the period wasted in the Subordinate Judge's Court, to which I have referred, and adding the other periods together, namely, 5 months and 12 days between the 3rd of March 1917 and the 15th of August 1917, and 6 months and 6 days from the 25th of June 1919 to the 31st of December 1919, and a further period of one month and 5 days up to the 5th of February 1920 we get a period altogether of 12 months and 23 days. So that the suit as against Musammat Batul Bibi is barred by limitation. It is quite clear that it is not barred by limitation as against the decree-holder or the other judgment debtor. The ground upon which it has been dismissed as against them is that the suit is not well founded in the absence of Musammat Batul Bibi. One answer to this seems to be Order I, Rule 9, which provides that no suit shall be defeated by reason of non-joinder of parties and the Court may in every suit deal with the matter in controversy so far as Regards the rights and interests of the parties actually before it. The notion that a decree-holder can seize property which belongs to a stranger and hold it by reason, for example, of the fact that one of his judgment-debtors is keeping out of the way so as to prevent any possibility of service being effected upon him in the suit after an order of dismissal of the claim by the execution Court, is so contrary to one's sense of justice, that one would decline to accept it as being the law. It seems to me that Order I, Rule 9 was intended to cover such a case. If the plaintiffs succeed in establishing their title, there seems no reason in law or equity why the decree-holder should not be compelled to give up what he seeks to obtain under his decree which belongs to the plaintiffs. There can be no hardship in the matter as one of the judgment-debtors is already on the record, but even if there were, it is the fault of the claimant, If decree-holders seize what is alleged to be more than they are entitled to seize, it is their own look out whether they are able to secure the assistance of their judgment-debtors or not in disproving the claimant's title. Both the Courts have relied upon the decision in the case of Ghasi Ram v. Mangal Chand 38 A. 41 : A.W.N. (1905) 172 : 2 A.L.J. 491. It is erroneously referred to in the lower Court's judgment as being in Volume 38. That is a two Judge decision and is binding upon me to the extent of what it decides, which is that a judgment-debtor is not a necessary party in a suit brought by a decree holder against a successful claimant. That has nothing to do with what I have to decide, but there is a dictum in the judgment, which the lower Court's have acted upon, to this effect; 'If an unsuccessful claimant brings a suit and he seeks to establish his claim against both the decree-holder and the judgment-debtor, the latter is of course, a necessary party.' That is a dictum which was not necessary for the decision. The point did not arise in any way in the case and I am not prepared to follow it. In the first place, the words 'or none-joinder' which of course means failure to join, which are in Order I, Rule 9 were not in the existing provision, namely, Section 31 of the Act of 1882, when this case was decided. I am unable to see any principle of law or equity which can be asserted in favour of such a proposition. It is clear that it may in this particular case lead to great injustice. However, it is sufficient for the purposes of to-day to hold that Order I, Rule 9 covers the case and distinguishes it from the dictum relied upon by the Courts below.
2. The result is that this appeal must be allowed and the case must be remanded to the lower Appellate Court to remit it to the First Court for decision on the merits. I agree with the lower Appellate Court that the First Court should have framed an issue not quite in the language of the lower Appellate Court but in the following terms: 'Whether the plaintiffs are the owners or not of the disputed property.' That issue I direct to be framed. Any further necessary issues may be framed as the Court thinks fit. Costs up to to-day will abide the result of the suit.