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Bukkapatnam Tirumala Narasimha Charyulu Vs. Sree Rajah Sabhnadri Appa Rao Bahadur Zamindar Garu - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in140Ind.Cas.270
AppellantBukkapatnam Tirumala Narasimha Charyulu
RespondentSree Rajah Sabhnadri Appa Rao Bahadur Zamindar Garu
Cases ReferredGanpathi Mudaliar v. Krishnamachari
Excerpt:
.....attacking validity of decree on the ground of fraud and gross negligence of guardian--subsequent suit for same relief--exclusion of period of prior proceedings--applicability of section 11-'jurisdiction', meaning of--misconceived proceedings, effect of--bona fide mistake of legal advisers. - - b) in good faith. in order to apply the aforesaid section, it must be found that the former proceeding was founded upon the same cause of action and was prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, was unable to entertain it. the former application clearly indicate fraud on the part of the plaintiff in o. that being so, we have to see whether the former proceeding was prosecuted in good faith or not. even the lower appellate court does..........execution of that decree and the proceedings in execution taken against him are not valid. in the present suit, after setting forth all the previous allegations with some embellishments, the relief asked for by him is a declaration that the former decree is tot valid and binding on him. the point to be considered is whether, the present relief sought for in this suit and based upon substantially the same allegations as affording a cause of action was one which the executing court had jurisdiction to grant on the former application. it is settled law that an executing court cannot go behind the decree and allow an objection as to the validity or binding character of the decree by any one who was a patty to the suit. such a question could not be gone into by the executing court but it.....
Judgment:

Sundaram Chetty, J.

1. The plaintiff is the appellant. It is appeal arises cut of a suit brought by him to set aside on the ground of fraud and gross negligence of his former guardian, the decree in O.S. No. 188 of 1906 in which he was impleaded as the 5th defendant. The preliminary question that was taken up for consideration by both the courts below is one of limitation. One of the grounds urged by the plaintiff to save the suit from the bar of limitation i.e., that the fraud alleged in the plaint became known to him only on the 19th September, 1920, when his properties were attached in execution of the decree in the former suit. On that footing, he seeks to have the period from 19th September, 1920 to 14th September, 1926 excluded under Section 14 of the Limitation Act from computation of the period of limitation for this suit, as he was prosecuting the proceedings in I.A. No. 1328 of 1920 (Ex. B) in good faith. The courts below held that the aforesaid period of time could not be excluded under Section 14 of the Limitation Act, and as a consequence of this finding, the suit was barred even as assuming that the starting point of limitation was the 19th September, 1920 on account of the fraud alleged in the plaint. The main point for consideration in this second appeal is, whether the plaintiff is entitled to the exclusion of time Under Section 14 of the Limitation Act or not. In order to apply the aforesaid section, it must be found that the former proceeding was founded upon the same cause of action and was prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, was unable to entertain it. Another aspect for consideration under that section is whether the previous proceeding was for the same relief although not founded upon the same cause of action. In para 5 of the lower Court's judgment, the learned District Judge has set forth the allegations which can be deemed to be common in the former application and in the present plaint. That application was presented under Section 47 of the Civil Procedure Code, for certain reliefs to be obtained from the executing Court. If regard be had to the common allegations in the former petition and in the present plaint, I should observe that the grounds set forth by the plaintiff in order to obtain the reliefs required by him are substantially the same. Some of the allegations in. the former application clearly indicate fraud on the part of the plaintiff in O.S. No. 188 of 1106 by reason of the suppression of the fact of adoption of the present plaintiff and also the; gross negligence of his natural mother appointed as his guardian at litem, though fraud and gross negligence are not stated specifically, there is enough indication that these are the grounds on which the present plaintiff attacked the validity of the decree passed against him. It is true that he went so far as to allege that he was not a party to that suit at all, in the sense that there was no representation of him as the adopted son which, according to him, is his real status. In pars. 6 of his application, he expressly says that the said decree cannot legally bind him or his property. It is on this basis he sought for a declaration that the properties of his adoptive family were not liable to attachment in execution of that decree and the proceedings in execution taken against him are not valid. In the present suit, after setting forth all the previous allegations with some embellishments, the relief asked for by him is a declaration that the former decree is tot valid and binding on him. The point to be considered is whether, the present relief sought for in this suit and based upon substantially the same allegations as affording a cause of action was one which the executing Court had jurisdiction to grant on the former application. It is settled law that an executing Court cannot go behind the decree and allow an objection as to the validity or binding character of the decree by any one who was a patty to the suit. Such a question could not be gone into by the executing Court but it must be made the subject of a separate suit; Vide Govindan Nadar v. Natesa Pillai 135 Ind. Cas. 314 : 61 M.L.J. 520 : 34 L.W. 806 : A.I.R. 1932 Mad. 7 : Ind. Rul. (1932) Mad. 74 It may be that, if the decree sought to be executed is attacked as a nullity, such a contention may be decided by the, executing Court. In the present case, though one of the objections taken by the present plaintiff was that he was not to be considered as a party to the former suit, he did raise several other objections which would only go to show that the decree could not be valid and binding on him. As his application was deemed to cover this kind of relief also, it was observed by Mr. Justice Wallace in the second appeal connected with the former application, that, if the petitioner's contention was, as it really seemed to be, that his natural mother did not properly look after his interests in the suit, he should get the decree set aside by proceedings ad hoe and could not resist the execution of the decree on that ground. On a due consideration of the allegations in the present plaint and those in the former application, I am of opinion that the material facts constituting the cause of action in the present suit were also alleged in the former application. I, therefore, hold that the former proceedings may be deemed to have been founded upon the same cause of action. It can even be said that this relief which is asked for in the present suit was in a way asked for in the former proceeding as ancillary to the main relief or reliefs claimed. That being so, we have to see whether the former proceeding was prosecuted in good faith or not. Even the lower Appellate Court does not seriously dispute this position and says that it may be assumed that the plaintiff prosecuted the prior proceeding in good faith, since he acted under legal advice. The observation of the Privy Council in the case reported as Ramdutt Ramkishen Das v. F.D. Sassoon & Co. 115 Ind. Cas. 713 : 56 I.A. 128 : A.I.R. 1929 P.C. 103 : 29 L.W. 682 : 6 O.W.N. 473 : 33 C.W.N. 485 : 49 C.L.J. 462 : 31 Bom. L.R. 741 : (1929) A.L.J. 254 : 56 M.L.J. 614 : (1929) M.W.N. 546 56 C. 1048 is to the effect that Section 14 of the Limitation Act was intended to protect a bona fide plaintiff from the consequence of some mistake which was made by his advisers in prosecuting his claim. If under the wrong advice given to the plaintiff, he believed that he could get the decree declared to be not valid and binding on him by an application to the executing Court, and under that belief he prosecuted the former proceeding right up to the High Court, it would be difficult to say that he was not acting in good faith in the conduct of that litigation. Some of the reliefs asked for by him were no doubt within the jurisdiction of the executing Court, although this particular relief was beyond the competency of that court.

2. Granting the existence of good faith in the plaintiff, the next point to be considered is whether the executing Court was unable to entertain the application in respect of the aforesaid relief on account of defect of jurisdiction or other cause of a like nature. The word 'jurisdiction' occurring in Section 14 of the Limitation Act should, in my opinion be interpreted liberally, and this is the view taken in some of the authorities. The decision in Dhansingh v. Basantsingh 8 A. 519 : A.W.N. 1886 182 deals with this question elaborately. As observed by Mahmood, J., on page 527 Page of 8 A.--[Ed.], adopting the meaning given m Wharton s Law Lexicon, 'jurisdiction' means 'legal authority, extent of power, declaration of the law 'Extent of power' may mean the territorial limits of jurisdiction or the pecuniary limits of jurisdiction. There is another category which has reference to the nature of the class to which the case belongs For the purposes of the present appear it is enough to observe that the executing Court had no jurisdiction to grant the relief asked for in the present plaint, which was also one of the reliefs sought for in the former application. Several decisions have been cited by the learned Advocate for the appellant as to what would be defect of jurisdiction or other cause of a like nature, within the meaning of Section 14 of the Limitation Act. It is unnecessary to deal with those decisions. Suffice it to say that in the present case the executing Court had no jurisdiction to grant the particular relief or, at any rate, was unable to grant it from a cause of a like nature.

3. It is strongly contended by the learned Advocate for the respondent, that, inasmuch as the former proceeding was a misconceived remedy, the case is taken out of the Limitation Act. Relians placed upon the decision in Ganapathi Mudaliar v. Krishnamachari 70 Ind. Cas. 743 : 43 M.L.J. 184 : 16 L.W. 178 : 31 M.L.T. 135 : (1922) M.W.N. 514 : A.I.R. 1922 Mad. 417 which is the same as the decision in 70 Ind. Cas. 733 referred to by the lower Appellate Court. If a suit or proceeding by reason of any inherent defect in it should fail before any court, it cannot be said that the court before which it was presented was unable to entertain it from defect of jurisdiction. If a suit or proceeding which is otherwise competent was presented before a wrong forum, then that court could not entertain it for want of jurisdiction. If the present plaintiff had only sought for this relief by means of a suit, the court would not be unable to entertain it forwent of jurisdiction, but, as the same relief was asked for in an application under Section 47 to be decided by the executing Court, that court was unable to. entertain it for the express reason mentioned in Section 14 of the Act. In Ganapathi's case 70 Ind. Cas. 743 : 43 M.L.J. 184 : 16 L.W. 178 : 31 M.L.T. 135 : (1922) M.W.N. 514 : A.I.R. 1922 Mad. 417 above referred to, the learned Judges have considered the applicability of Section 14 as a question of secondary importance. The finding that that case was governed by Article 166 of the Limitation Act, was sought for the disposal of that case. However, they considered the question relating to Section 14 also, and in the circumstances of that casa they held that the former action was entirely misconceived, If the misconception was of such a nature and so patent as to indicate to any court want of due care and attention or want of ordinary diligence, then it may be said that the plaintiff cannot be deemed to have prosecuted the former action in good faith. In the decision reported as Murugesa Mudaliar v. Jatharam Davy 23 M. 621 which was also referred to in the above case, there is no express rinding that the former action was not prosecuted, in good faith. It may be that the learned Judges thought that the remedy was so glaringly misconvieved as to amount to lack of good faith. In Ganapathi Mudaliar v. Krishnamachari 70 Ind. Cas. 743 : 43 M.L.J. 184 : 16 L.W. 178 : 31 M.L.T. 135 : (1922) M.W.N. 514 : A.I.R. 1922 Mad. 417 there is no doubt 'an observation that the plaintiff acted in good faith. I am however, of opinion, that we cannot add to the conditions set forth in Section 14 of the Limitation Act, as the requisites for the exclusion of time. The misconception of the remedy sought for in the previous action, may, in my opinion, be taken as a criterion for determining the existence of good faith. But if all the requisites mentioned in Section 14 are found to exist it seems to me that the benefit given by that section, cannot be taken away on the mere ground that, in the opinion of the court, the course adopted before was not a well-conceived one. However that may be, I do not consider that the former application by the plaintiff was entirely misconceived, as was the case considered in Ganpathi Mudaliar v. Krishnamachari 70 Ind. Cas. 743 : 43 M.L.J. 184 : 16 L.W. 178 : 31 M.L.T. 135 : (1922) M.W.N. 514 : A.I.R. 1922 Mad. 417.

4. For this reason, I am of opinion that the period from 19th September, 1920, to 14th September, 1926, should be excluded from the computation of the period of limitation under Section 14 of the Limitation Act. That being so, the suit cannot be dismissed on the preliminary ground adopted by the courts below. I may point out that the question whether the starting point of limitation for this suit is 18th September, 1920, or not, is still an open question which has to be decided hereafter.

5. The decrees of the courts below are set aside and also the finding on the 3rd issue, and the suit h remanded to the Court of first instance to be disposed of according to law. The appellant's costs in this appeal should be paid by the respondent, and the other costs will abide the final result and should be provided for by the first Court. The court-fee paid by the appellant in this Court and in the lower Appellate Court will be refunded to him.


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