1. The only point for our decision in this second appeal is whether the plaintiff's suit was within limitation. In order to appreciate this point it is necessary to relate the sequence of events leading up to the institution of this suit.
2. On 16-8-1924 Daulat Ram defendant mortgaged his occupancy rights in some land in favour of Sukh Dial, father of the present plaintiff. Sukh Dial, the mortgagee, brought a suit for the recovery of the mortgage money by sale of the property and obtained a preliminary decree and then a final decree. He took out execution of this decree on 8-12-1931 but the application was dismissed in default on 16-2-1932.
3. The judgment-debtor, that is, the mortgagor was adjudicated insolvent on 15-4-1932 and during the course of the insolvency proceedings the Official Receiver sold the mortgaged property to the mortgagee in full satisfaction of the decree held by him. The decree was thus satisfied but the satisfaction was not recorded by the executing Court. The landlords now instituted a suit for setting aside the sale in favour of the decree-holder on the ground that as their consent had not been obtained by the Official Receiver the sale was ineffective. The landlords were successful and the sale of the occupancy rights was set aside. The matter was finally disposed of by the Commissioner, Jullundur Division, on 25 4-1940. The plaintiff was thus dispossessed. The plaintiff then on 2-7-1940 made a fresh application for executing his mortgage decree. Objection was taken that this application was barred by time as it had been presented more than three years after the date of the dismissal of the previous application (16-2-1932), The applicant, however, contended that for a certain period his decree had remained satisfied and that this period, namely, from the date of the sale in his favour and the date when the sale was set aside finally should be excluded. The question of limitation was decided in favour of the plaintiff by the executing Court, by the Additional District Judge, Ferozepore, on first appeal and by Dalip Singh, J. on second appeal. A Division Bench of the Lahore High Court, however, on a Letters Patent appeal held that the application for execution was barred by limitation, having been filed more than eight years after the dismissal of the previous application.
4. The plaintiff then filed the present suit on 14th October 1944. He invoked the provisions of Section 14, Limitation Act, and claimed to exclude the period between 2nd July 1940 (the date of the filing of the execution application) and 14th April 1944 (the date on which the Letters Patent appeal was decided). His contention, therefore, was that the present suit was within limitation. The trial Court held that the suit was within limitation but the learned District Judge took the contrary view and dismissed the suit.
5. The only question for our decision, therefore, is whether the period between 2nd July 1940 and 14th April 1944 can be excluded by virtue of the provisions of Section 14, Limitation Act. The learned Counsel for the appellant has contended that the previous execution application failed because the executing Court had no jurisdiction to entertain it. He also maintained that the plaintiff had been pursuing this application with due diligence and in good faith. In my view the question of due diligence and good faith must be answered in favour of the plaintiff for he was certainly not acting mala fide or carelessly in pursuing his application in the executing Court. He must have been under the honest belief that he could maintain an application for execution in the executing Court. The question, however, remains whether the dismissal of the application was on account of lack of jurisdiction or other like cause. Section 14(1), Limitation Act, is in the following terms:
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 application of the appellant was dismissed as barred by time and the learned Counsel for the appellant maintains that the question of limitation is a question of jurisdiction. He has not been able to cite any direct authority in support of this view but has drawn our attention to a number of cases which appear to me to have no relevancy whatsoever to the point in issue. He cited Mathura Singh v. Bhawani Singh (1900) 22 All. 248, in which case misjoinder of causes of action was held to be a like cause, but Expln. 3 to Section 14 specifically mentions misjoinder of causes of action Firm Lorind Chand v. Bahadur Khan ('35) 22 A.I.R. 1935 Lah. 736 and Brij Mohan Das v. Munnu Bibi ('97) 19 All. 348 (F.B.) do not appear to have any bearing on the points in issue. The only two cases in which the question of limitation was considered are Vidhya Theeratha Swamigal v. Venkatarama Lyer ('18) 5 A.I.R. 1918 Mad. 23 and Bishambhar Haldar v. Bonomali Haldar ('99) 26 Cal. 414 (F.B.). In the Madras case a decree-holder made an application for the transfer of his decree. This application was dismissed on two grounds (1) as barred by time and (2) because the decree-holder had not shown that there was no property belonging to the judgment-debtor within the jurisdiction of the executing Court. It was held that this dismissal could not be said to be on the ground of lack of jurisdiction or other like cause, and Section 14, Limitation Act, could not save limitation. The Calcutta case is even more in point. This case was referred by a Division Bench to a Full Bench. In this case the previous proceedings consisted of an appeal preferred to the Commissioner. The Commissioner had held the appeal to be barred by time, and the question arose whether the proceedings before the Commissioner had failed from defect of jurisdiction or other cause of a like nature. The learned Judges of the Division Bench in their referring order took the view that the proceedings had not failed from defect of jurisdiction or other cause of a like nature. The referring order contains the following observations:
But in this case the appeal to the Commissioner was clearly out of time as well under Section 2, Bengal Act 7 [VII] of 1868 as under Section 16 of Bengal Act 7 [VII] of 1880, the only provisions of the law under which such an appeal could lie; and though under Section 5, Limitation Act, the appeal could be admitted for sufficient cause though out of time, it was for the Court to which the appeal was made to say whether there was any sufficient cause for admitting it. As no such sufficient cause was shown before the Commissioner, the appeal to him must be taken to have been barred by limitation, and it, therefore, failed for a reason other than 'defect of jurisdiction or other cause of a like nature' within the meaning of Section 14, Limitation Act.This view of the referring Judges was approved of by the Full Bench.
6. Learned Counsel for the appellant has drawn our attention to certain observations made by the learned Judges hearing the Letters Patent appeal and has sought shelter behind those observations. When dealing with a certain argument raised by the counsel in that case the learned Judges re-marked:
In my judgment the setting aside of the sale that had been arranged between the Official Receiver and the decree-holder outside the executing Court in consideration for which the decree-holder had agreed to satisfy his decretal-debt furnished an absolutely new cause of action to him to bring a suit on the failure of that consideration against the judgment-debtor for recovery of the debt which stood revived on that contingency happening.Learned Counsel for the appellant argued that the only remedy open to the plaintiff was by way of a separate suit. I cannot, however, construe the observations of the learned Judges in this manner. When the sale by the Official Receiver in favour of the plaintiff was set aside the plaintiff had no doubt open to him the remedy of filing a fresh suit but he could also maintain an application for execution provided it were within time. The question for decision is not whether the plaintiff could have availed himself of a second remedy but of whether the remedy which he chose to pursue failed because of defective jurisdiction. It cannot be denied that had the plaintiff put in his application for execution within 3 years of the dismissal of the first application his application could have been entertained. That being so, the executing Court cannot be said to have suffered from any defect of jurisdiction. Jurisdiction there certainly was. The plaintiff's application failed not because of defect of jurisdiction or other like cause but because on merits the application was barred by time, and in such a case the provisions of Section 14, Limitation Act, cannot be invoked.
7. For the reasons given above, I would hold that the plaintiff's suit is barred by time and was rightly dismissed by the learned District Judge. I would, therefore, dismiss this appeal with costs.
Teja Singh, J.
8. I agree and wish to add a few words. The important words of Clause (1) of Section 14, Limitation Act, that define the scope of the previous proceeding the time spent in prosecuting which can be excluded, are as follows:. 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 phrase 'other cause of a like nature' used in conjunction with 'defect of jurisdiction' is clear enough, but the use of the concluding words of the sub-section, namely, 'unable to entertain it,' make it further clear that the proceeding should not have failed on merits. Had the intention of the Legislature been other, wise, they should have used the words 'unable to decide it' or some such other words. It may be pointed out in this connection that the 1859 Act used the words 'unable to decide upon it' and that of 1871 'unable to try it.' By changing these words to the words 'unable to entertain it' in the Act of 1908 the Legislature appears to have intended that either because of a defect of jurisdiction or of other cause of a like nature the Court which was seised of the previous civil proceeding should neither have decided it nor tried it
A Court may be able to entertain a suit in its inception, but be unable to decide it oh the merits, owing to some defect, not in jurisdiction, but in procedure. There must have been some reason for this change of language, and a possible reason is that the Legislature intended to limit the benefit of the section to oases, where the Court had no power to embark upon the case at all.10. Now, when a Court dismisses a suit or an application on the ground that it is barred by time it decides it on merits. In any case, it cannot be said that it is unable to entertain it either from defect of jurisdiction or other cause of a like nature. In the present case, the previous proceedings, the time spent during which, the plaintiff wishes to be excluded were started on an application for execution and it was held that the execution application was barred by time. 80 the case does not fall under the purview of Section 14 and the appeal must necessarily fail.