P.K. Tare, J.
1. The plaintiffs have filed this appeal against the dismissal of their suit by Shri S. Rafiullah, Additional District Judge, Chhindwara dated 30-12-1953 In Civil Suit No. 9-A of 1952. A separate finding was recorded leading to the judgment and decree which are the subject of this appeal.
2. It is necessary to reproduce the respondents' family tree for a proper appreciation of the facts.
ZULFEKAR ALI KHAN
Mst. ... (wife) = K. B. All Raja Khan = Smt. Hasnoobi
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Umardarajali Khan Tahasin Ali Khan Vilayatalikhan |
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Himayat Ali Khan | |
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Atefat Ali Khan Matin Ali Khan |
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Mashia Ali Khan Ayadat Ali Khan Ashiq Ali Khan Aftab Ali Khan Mst. Anwar Begum.
The said genealogical tree was admitted by the defendants.
3. Mst. Hasnoobi for self and as guardian of her minor sons Aahiq Ali, Aftab Ali and minor daughter Mst. Anwar Begum and her major sons executed a mortgage by conditional sale dated 7-7-1924 in favour of Dalchand (original plaintiff 1 since deceased), and the other plaintiffs. The suit property was alleged to be belonging to K. B. Ali Raja Khan. He was said to have transferred the property to his younger wife. Mst. Hasnoobi by two deeds dated 2-10-1912 and 31-8-1920 executed in lieu of dower debt. K. B. Ali Raja Khan died some time in the year 1922.
3-A. The plaintiffs filed Civil Suit No. 53 of 1929 in the Court of the Civil Judge First Class, Chhindwara claiming foreclosure on the strength of the mortgage deed dated 7-7-1924. The present defendants were impleaded as defendants. They claimed that they were not necessary parties. Accordingly Shri G. S. Dubey, the trial Judge by judgment and decree dated 28-4-1930 decreed the plaintiff's claim against the other defendants in that suit, holding that the present defendants were not necessary parties. The defendants, against whom a decree had been passed, filed First Appeal No. 139 of 1930 in the Court of the Judicial Commissioner, Nagpur. The appeal was remanded for determination of the shares of the minors Ashiq Ali, Aftab Ali and Mst. Anwar Begum, as also the exclusive share of Mst. Hasnoobi. The trial Judge, Shri Shrouti, released the shares of the minors and a decree was passed against the rest of the property. Against the judgment after remand the plaintiffs filed First Appeal No. 138 of 1934 in the Court of the Judicial Commissioner, Nagpur. In the appeal, by judgment dated 26-7-1937, it was held that Smt. Hasnoobi was the exclusive owner of the property and the minors had no shares therein.
4. Subsequently a final decree for foreclosure was passed in the year 1943 by the trial Court. Mst. Hasnoobi filed First Appeal No. 124 of 1944 in the Nagpur High Court, which was ultimately dismissed on 22-11-1951. During the pendency of the said appeal Smt. Hasnoobi did not obtain any stay order. Therefore, the plaintiffs started execu-tion of the final decree for foreclosure. The present defendants obstructed the delivery of possession of the suit property to the plaintiffs. Thereupon the plaintiffs filed an application under Order 21, Rule 97 of the Civil Procedure Code. It was registered as Miscellaneous Judicial Case No. 29 of 1947. By order dated 18-9-1948, it was dismissed. The plaintiffs filed Miscellaneous Appeal No. 206 of 1948 against the same, in this Court, presumably on the assumption that the order 18-9-1948 was one under Section 47 of the Civil Procedure Code. The appeal was dismissed on 7-12-1951. Therefore, the plaintiffs filed the present suit, namely Civil Suit No. 9-A of 1952. on 8-12-19-52 under Order 21. Rule 103 of the Civil Procedure Code.
5. The respondents raised various pleas in their defence in the trial Court. But the one plea, which we are concerned with, in the present appeal, related to the question of limitation on the ground that the suit was barred by time, as the same was not filed within one year of the passing of the summary order dated 18-9-1948 as required by Arti-cle 11-A of the Indian Limitation Act.
6. The learned trial Judge, by order, dated 30-12-1953, upheld the defence contention regarding limitation. Hence the present appeal.
7. The learned Counsel for the appellants claimed benefit of Section 14 (1) of the Limitation Act. In the alternative, he urged that the limitation under Article 11-A of the Limitation Act started from the date of the final order dated 7-12-1951 passed by this Court in Miscellaneous Appeal No. 206 of 1948.
8. We propose to consider whether Section 14 (1) of the Limitation Act could be availed of by the appellants in the present case. The section is as follows :
'14(1) 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.'
9. The learned trial Judge held that even if Section 14 (1) of the Limitation Act he available to the plaintiffs, they could at the most exclude the time from 15-12-1948, on which day the appeal was filed, upto the day on which it was dismissed, namely 7-12-1951. He held that in no case were the plaintiffs entitled to exclude the period from 18-9-1948 to 14-12-1948. He, however, found it as a fact that the plaintiffs prosecuted Miscellaneous Appeal No. 206 of 1948 in good faith. Further the learned Judge held that the plaintiffs did not prosecute the said appeal with due diligence, as they did not deposit the paper book costs due on 17-12-1949 till 23-3-1950. They were not entitled to exclude that time.
10. At the outset, it is necessary for us to state that the view of the learned trial Judge regarding the period from 17-12-1949 to 23-3-1950 is obviously untenable. If once it is assumed that the plaintiffs prosecuted Miscellaneous Appeal no. 206 of 1948 in good faith, though under a misconception of law, we see no reason to deny the appellants benefit of the period from 17-12-1949 to 23-3-1950. It was for this Court in that appeal either to extend time for payment of the paper book costs or to dismiss the appeal under Order 41, Rule 15-A of the Civil Procedure Code.
If this Court condoned the delay in deposit of the said costs, it must be held that the appellants were prosecuting the appeal with due diligence. To deprive a party of the benefit of Sec, 14 of the Limitation Act regarding a part of the period on the ground that process fee was paid late or some other thing required to be done under the rules was done late, would be tantamount to unnecessarily curtail the scope of Section 14, contrary to the specific wording of the Section.
The time during which the plaintiff has been prosecuting another civil proceeding has to be excluded. For that purpose the good faith in prosecuting the civil proceeding has to be determined, The question of good faith cannot be decided on such irrelevant considerations such as late payment of procees fees or late payment of paper book costs, when this Court had condoned the default. As the trial Judge found it as a fact that Miscellaneous appeal No. 206 of 1948 was prosecuted in good faith, we hold that the plaintiffs were entitled to exclude the period from 17-12-1949 to 23-3-1950.
11. The learned trial Judge denied the appellants benefit of the period from the date of the order, that is, 18-9-1948 to 15-12-1948, that is the date, when the appeal was filed. The learned Judge relied on explanation I to Section 14. It is as follows:
'Explanation I. : In excluding the time during which a former suit or application was pending, the day on which that suit or application was instituted or made, and the day on which the proceedings therein ended shall both be counted.'
The explanation is with regard to suits or applications. It does not refer to appeals. The explanation ought to be read along with Section 14 (1), which is as follows :
'14(1) : 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.' (Underlining (here in ' ') ours).
What would be the time during which the plaintiff has been prosecuting with due diligence another civil proceeding in a Court of appeal? Certainly the time requisite for obtaining the certified copies under Section 12 of the Limitation Act would be included within the meaning of the section. Also the limitation prescribed for the filing of an appeal would be included, if the appeal be filed on the last day of limitation.
But if the appeal be filed earlier, the time from the date of the order impugned upto the actual date of filing of the appeal would certainly be the time during which the plaintiff can be said to be prosecuting another civil proceeding in a court of appeal. We are unable to endorse the view of the learned trial Judge on this point. A Division Bench of this Court consisting of Sir Gilbert Stone, C. J. and Niyogi, J., in the case of Kasturchand v. Wazir Begum', ILR (1937) Nag 291: (AIR 1937 Nag 1), held with reference to Article 11 (1) of the Limitation Act as follows :
'Then it is said that the plaintiff is out of time owing to the operation of Article 11 (1) of the Limitation Act which, in the case of a suit by a person against whom an order is passed on his objection in execution proceedings, fixes one year. The dates are as follows : the objection order was passed on 5-3-1928. The plaint was presented in one Court on 15-9-1928, of course in time. That wast returned by that Court on 14-12-1928, for presentation to what that Court held to be the proper Court. The plaintiff challenging the correctness of that order appealed on 6-2-1929 and the appeal was dismissed on 2-9-1929, and the plaint was presented to the Court as decided by die first Court, on 25-11-1929. In our opinion the plaintiff has been litigating the matter in a Court which she bona fide believed to be the correct tribunal, believing, to the extent of incurring costs of an appeal against the decision that it was not the correct tribunal, for something like 10 months.
Those 10 months must be taken into account in considering the period that has elapsed between the date of suit and the date when the plaint was eventually filed in the correct Court, and if this is so taken into account the time that has expired is less than a year. The limitation point, therefore, in our opinion, fails.'
In the case of Abdul Sattar v. Abdul Husan, AIR 1936 Cal 400, the plaintiffs had applied for execution of their decree. The judgment-debtors raised objeictions to the execution on the ground of adjustment of the decree. The question of adjustment was fought in appeals upto the highest Court. Ultimately it was decided against the plaintiffs by the final appellate Court. The learned Judges constituting the Division Bench held that the plaintiffs were entitled to exclude the entire period from the date of the order recording the adjustment upto the date of the final order of the highest appellate Court. We feel that this interpretation of Section 14 is in consonance with the wording of the Section. Therefore, differing from the learned trial Judge, we hold that the appellants were entitled to exclude the period from 18-9-1948 to 15-12-1948.
12. Upon a misconception of the law regarding the two periods mentioned in paragraphs 10 end 11 above, the trial Judge erroneously held that the suit was barred by time. Upon a correct interpretation of Section 14, he ought to have held that the suit to be within time, particularly as he had found that the appeal in this Court was in fact prosecuted in good faith. But before we close, wet must take note of the objections raised by the learned Counsel for the respondents on the question of the applicability of Section 14 of the Limitation Act.
13. The learned Counsel for the raspondents challenged the finding of the trial Court on the point of good faith. The question of good faith is a finding of fact, which an appellate Court would he slow to disturb except for very string reasons. The learned Counsel was unable to point out any decisive factors excent that an order under Order 21, Rule 97 of the Civil Procedure Code was not appealable, but the only remedy was to file a suit contemplated by Order 21, Rule 103 of the Civil Procedure Code.
In our opinion, the question of good faith can-not be decided merely on the basis of the fact whe-ther an appeal was tenable or not. The learned trial Judge upon a consideration of all circumstances arrived at the conclusion that the appeal was prosecuted in good faith. The respondents, who were parties to the mortgage suit themselves wised an objection that they should be discharged. Ultimately the suit against them failed. It was thus a debatable matter whether they were parties to the suit and whether the order of the executing Court was covered by Section 47 of the Civil Procedure Code.
As the appeal, namely Miscellaneous Appeal No. 206 of 1948 had been admitted for hearing parties, the point was certainly debatable. It was another matter that this Court by the order dated 7-12-1951 held that the appeal was not tenable, as it did not fall within the scope of Section 47 of the Civil Procedure Code. Therefore, we are not inclined to disturb the trial Court's finding on the question of good faith.
14. It was further urged on behalf of the respondents on the authority of Naravan Ambaji v. Hari Ganesh, AIR 19SO Born 505, Ramanand Pra-sad v. Gaya Prasad Ram, AIR 1949 Pat 362, V. C. Thani Chettiar v. Dakshinamurthy Mudaliar, (S) AIR 1955 Mad 288; Tirumala Bhaskara Hao v. Panasa Narayanamma, (S) AIR 1956 Orissa 124 and Govinda Menon Raman Menon v. Krishna Pillai Kesava Pillai, AIR 1955 Trav-Co 51 (FB). that Section 14 (1) of the Limitation Act could not be availed of by a plaintiff, who filed an infructuous appeal contrary to a specific prevision of law.
We are aware of the fact that the proposition may apply to a certain class of cases, where a plaintiff merely indulges in infructuous litigation not in good faith. But those cases are distinguishable from the present case on the ground that here the question of the applicability of Section 47 of the Civil Procedure Code wag nrima facie a debatable one and moreover, the plaintiffs filed the earlier appeal in this Court in good faith, as found by the trial Court, which finding we have confirmed.
In the case of Laxmandas v. Chunnilal, 27, Nag LR 251 : (AIR 1931 Nag 17), a Single Bench of this Court presided over by Niyogi A. J. C. (as he then was), was concerned with the question whether the period occupied by an infructuous revision could be excluded under Section 14 of the Limitations Act. It was argued in that case that limitation did not start till the date of the final order. That contention was negatived.
As regards Sectioin 14, the learned Judge held that the period occupied by the revision could be excluded, if it was found that the same had been filed in good faith. We approve of the view of the learned Judge in the said case. Of course, the bene-fit would not be available to a plaintiff, who prosecutes the infructuous litigation not in good faith, as was the case in the cases earlier referred to in this paragraph.
15. Next the learned Counsel for the respondents urged that Section 14 was not available to the appellants, as the earlier proceedings were not founded on the same cause of action as the present suit. We are unable to accept this contention for the reason that in Miscellaneous Appeal No. 206 of 1948. the relief sought was the setting aside of the order dated 18-9-1948 passed in Miscellaneous Judicial Case No. 29 of 1947, which is the cause of action furnished for the filing of the present suit.
It may be that in Miscellaneous Judicial Case No. 29 of 1947, the cause of action was the obstruction by the respondents in effecting delivery of possession to the decrce-holder-appellants. But that cause of action does not survive, as it is merged in the adverse order passed on 18-9-1948 against the appellants. We are fully satisfied regarding the identity of the cause of action of the earlier appeal and the present suit. Therefore, we are of the opinion that the appellants could not be denied benefit of Section 14 on the ground that the two causes of action were not identical.
16. Lastly the learned Counsel for the respondents urged that Section 14 way not available to the appellants, as the earlier appeal did not fail from the defect of jurisdiction or other cause of a like nature. We are unable to accept this contention as well. The earlier appeal was held to be not tenable, as the order impugned was held not to fall under Section 47 of the Civil Procedure Code. In short, the appeal was held to be untenable.
This, in our opinion, was a defect of jurisdiction or a cause of a like nature. We cannot interpret the phrase in a narrow sense suggested by the learned Counsel. The word, 'jurisdiction' connotes more than one sense. We feel that an untenable appeal would be covered by the phrase 'defect of jurisdiction.' At any rate, it would certainly he included within the phrase 'other cause of a like nature.'
17. As we find in favour of the appellants about Section 14 of the Limitation Act being available to them, it is not necessary to decide the alternative contention of the learned Counsel regarding the starting point of limitation under Article 11-A of the Limitation Act. We leave that question open for decision on a more suitable occasion.
18. Upon the view of the learned trial Judge that the earlier proceedings were prosecuted in good faith, the appellants were entitled to the benefit of Section 14 of the Limitation Act. But the trial Judge held the suit to be barred by time upon a misapprehension of the law regarding the two periods mentioned in paragraphs 10 and 11 of this judgment. Therefore, the finding and judgment of the trial Judge cannot be upheld. Consequently they are set aside and this appeal succeeds and is allowed with costs throughout. The case is remitted to the trial Court for a further trial on merits. Counsel's fee Rs. 100/- or as per certificate, whichever be less.
19. The suit was dismissed by judgment and decree dated 30-12-1953, after recording a separate finding of the same date holding that the plaintiffs were not entitled to extension of time under Section 14 of the Limitation Act and, therefore, their suit was barred by time. The suit had not been tried on merits. As such the dismissal was on a preliminary issue. This remand order being under Order 41, Rule 23 of the Civil Procedure Code, we further direct under Section 13 of the Court-Fees Act that the court fees of Rs. 20/- paid on the memorandum of appeal in this Court shall be refunded to the appellants and a certificate of refund shall br granted to them.