Alfred Henry Lionel Leach, C.J.
1. The Chief Justice. The only question which arises in this appeal is whether a person who claims to come within Section 14 of the Limitation Act has to show that in pursuing his remedy in other proceedings he acted in good faith or whether the burden of showing lack of good faith is on his opponent. The appellant obtained a decree on a promissory note against one Nataraja Pillai on the 22nd October, 1930. On the 10th December, 1931, Nataraja Pillai sold certain immoveable properties to the respondents. On the 12th August, 1932, the appellant attached these properties in execution of the decree which he had obtained on the promissory note and at the sale, which was held on the 15th January, 1935, he purchased the properties. When he desired to enter into possession he was obstructed by the respondents, who claimed title by reason of their purchase of the properties on the 10th-December, 1931. On the 27th June, 1935, the appellant applied to the District Munsif of Manamadura, in whose Court the execution proceedings had taken place, for an order against the respondents under Order 21, Rule 97 of the Code of Civil Procedure requiring them to deliver possession to him. This application was dismissed by an order of the District Munsif passed on the 14th October, 1935. The appellant preferred an appeal to the Subordinate Judge of Sivaganga, who dismissed it on the 26th November, 1936, on the ground that the appellant's remedy was by suit and not by an appeal. Rule 103 of Order 21 provides that a party, not being a judgment-debtor, against whom an order is made under Rule 98, Rule 99 or Rule 101 may institute a suit to establish the right which he claims to the present possession of the property; but, subject to the result of a suit the order is conclusive.
2. On the 7th December, 1936, the appellant instituted the suit out of which this appeal arises. He asked for a declaration that the sale of the properties to the respondents was invalid and for an order requiring them to vacate. The respondents pleaded that the suit was barred by the law of limitation, and clearly it was if the time taken up by the appeal from the order of the District Munsif dismissing the appellant's application under Order 21, Rule 97, was not to be excluded. The District Munsif held that the respondents' plea was well-founded and dismissed the suit but his decision was reversed on appeal by the Subordinate Judge. The respondents appealed to this Court, and their appeal was allowed by Wadsworth, J., who, however, gave a certificate which has permitted of the filling of the present appeal under Clause 15 of the Letters Patent.
3. There is nothing on the record which shows the circumstances under which the appellant filed the appeal against the dismissal of his application under Order 21, Rule 97, and the decision in this appeal must turn on the question on whom lies the burden of proof. Section 14 of the Limitation Act says:
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.
4. Then follow three explanations, but it is not necessary to set them out. Section 2(7) defines 'good faith' for the purposes of the Act. The definition is that nothing shall be deemed to be done in good faith which is not done with due care and attention. I should have thought that when a person is claiming the benefit of Section 14 of the Limitation Act he must prove that he acted in good faith in instituting the earlier proceedings. Order 7, Rule 6 of the Code of Civil Procedure states that where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption is claimed. This must, mean that when a suit has been filed beyond the period allowed by law the burden of proving that there is ground for exemption from limitation is on the plaintiff, but apart from this the wording of Section 14 of the Limitation Act seems to me to be here quite clear.
5. But a different opinion has been expressed by a Bench of this Court. In Alagappa Chettiar v. Somasundara Chettiar (1937) M.W.N. 465, Varadachariar, J., sitting with Mockett, J., discussed Section 14 of the Limitation Act, and it would appear that he was of the opinion that the Privy Council in deciding Benoderam Sen v. Brojendro Narain Roy (1873)21 W.R. 97, had placed the burden of proof on the defendant and not on the plaintiff. With the greatest respect to all that was said in the judgment of Varadachariar, J., I am unable to agree that the Judicial Committee can there be taken to have laid down a rule that a person seeking the benefit of Section 14 of the Limitation Act is not required to show that he acted bona fide in the previous proceedings and that it is incumbent on his opponent to prove mala fides. In that case the Privy Council were considering the effect of Section 10 of the Limitation Act of 1859 and not of Section 14 of that Act, which corresponds to Section 14 of the present Act. Section 20 of the Act of 1859 corresponds to Art 182 of the Act of 1908 and it reads as follows:
No process of execution shall issue from any Court not established by Royal Charter to enforce any judgment, decree or order of such Court, unless some proceeding shall have been taken to enforce such judgment, decree or order or to keep the same in force within three years next preceding the application for such execution.
6. It was alleged in Benoderam Sen v. Brojendra Narain Roy (1873)21 W.R. 97, that certain proceedings in execution had not been instituted bona fide and therefore the decree-holder was not entitled to claim a fresh starting point of limitation by reason of his application. There was nothing in the Limitation Act of 1859 which required the decree-holder to show bona fides, but in resisting the proceedings the person concerned set up a specific charge of mala fides. The Judicial Committee decided that in such circumstances the person who alleged mala fides ought to prove his allegation. There is nothing in the judgment in that case or in the judgment of the Privy Council in the earlier case of Roy Dhunput Singh v. Modhomotee Debia (1872) 18 W.R. 76, the earlier case was referred to in Benoderam Sen v. Brojendra Narain Roy (1873) 21 W.R. 97, which can in my opinion be taken as supporting the interpretation placed upon Section 14 of the Limitation Act in Alagappa Chettiar v. Somasundaram Chettiar 1937 M.W.N. 465.
7. As I have already indicated a person who asks the Court to hold that he is entitled to the benefit of Section 14 must in my judgment show that he comes within it. To the reasons I have given I may add that Section 103 of the Evidence Act expressly states that the burden of proof of any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by law that the proof lies elsewhere. I have no hesitation in holding that in this case the burden of proving that he acted bona fide in his earlier action rests on the appellant. He has not made any attempt to show that in filing the appeal against the claim order he was acting on advice and the Court is left in entire ignorance why he appealed from the order on his application under Order 21, Rule 97 before he filed the present suit. As the appellant has not shown that in filing the appeal he acted in good faith he is not entitled to the benefit of Section 14 of the Limitation Act.
8. For these reasons I consider that the decision of Wads-worth, J., was correct and that the appeal should be dismissed with costs.
9. I agree.
Krishnaswami Aiyangar, J.
10. I also agree but I desire not to be understood as expressing any opinion on the question whether an appeal lay to the Subordinate Judge in the prior proceedings or not. The matter was argued on the assumption that no such appeal lay and that the remedy was by way of suit only.