1. The only point raised in this appeal is one of limitation. Certain properties were sold on the 16th February 1901 in execution of a mortgage decree and purchased by the plaintiff No. 1 who took possession of the same through the Court on the 16th May 1905.
2. Defendant No. 1 then caused an application to be made under Section 335, Civil Procedure Code, through Mathur Mohan Sarkar, the ancestor (now deceased) of defendants Nos. 2 and 3, in the Court of the Subordinate Judge of Nuddea and during the pendency of the case defendants Nos. 2 and 3 executed in favour of defendant No. 1 a deed of sale of their interest in the disputed properties, The case under Section 335, Civil Procedure Code, was decided in favour of defendant No. 1 and against the plaintiffs, and the possession of defendant No. 1 in the disputed properties was confirmed on the 24th February 1906.
3. The plaintiffs claiming priority of title to the properties instituted a suit to establish their title and recover possession. The plaint was filed on the 25th February 1907, (The 24th February being a Sunday), that is to say, on the last day of the period of limitation.
4. The suit was valued at Rs. 1,095 and was instituted before the Munsif, 1st Court, Krishnaghur who was then vested with power to try suits not exceeding Rs. 2,000 in value throughout the whole of the District of Nuddea. Subsequently, the suit was transferred for disposal to the Court of the Subordinate Judge of Nuddea at Krishnaghur.
5. In the Subordinate Judge's Court objection was taken to the jurisdiction of the Court on the ground that the suit had been over-valued and that its value did not in fact exceed Rs. 1,003. The Subordinate Judge raised and tried an issue on that point and decided that the value of the suit was less than Rs. 1,000. He accordingly returned the plaint to the plaintiff on the 30th January 1908 for presentation to the proper Court within a week. The proper Court was the Court of the Munsif of Ranaghat and the plaint was filed in that Court on the 4th February 1908.
6. In that Court, the plea was taken by the defendant that the suit was barred by limitation. It was contended that the plaintiff was entitled only to the allowance for the period during which the suit was actually being tried in the Court of the Subordinate Judge, as provided by Section 14 of the Limitation Act, and that the Subordinate Judge could not extend that period by his order directing the plaintiff to file the plaint in the proper Court within a week. Five days having elapsed between the return of the plaint by the Subordinate Judge and the re-filing of the plaint in the Court of the Munsif of Ranaghat, the period of limitation was exceeded by that number of days, the plaint having been filed originally in the Court of the Subordinate Judge of Krishnaghur on the last day of limitation.
7. The learned Munsif went carefully into the question of limitation raised and held that on the authorities he was bound to hold that the suit was barred by limitation and dismissed it.
8. On first appeal, the District Judge has set aside the judgment and decree of the Munsif and has remanded the suit to him for trial. Against this order of the District Judge, appeal has been preferred to this Court.
9. The learned Judge, in differing from the view taken by the Munsif, has relied on the decision of this Court in the case of Khellat Chunder Ghose v. Nusseebunnissa Bibee 16 W.R. 47.
10. The point raised and considered in that case was not, however, the point raised in the present case. The question then raised was whether the suit was barred by the provision of Section 14 of Act XIV of 1859 (the Limitation Act then in force) and the reasons given in the judgment of this Court in that case for holding that the suit was not barred have no application to the facts of the case now before us.
11. In this Court, it has been all along held that for the purpose of determining limitation as governed by the provision of Section 14 of Act XV of 1877 (the Limitation Act which governs this case), the date of instituting the suit must be held to be the date on which the plaint was filed in the Court having jurisdiction to try it, excluding only for the purpose of calculating limitation the periods excluded under Section 14.
12. The law has, in our opinion, been correctly set out in the judgment of the Munsif and though our attention has been invited to a decision of this Court in the case of Nibaran Chandra Banerjee v. S.C. Mukherjee 6 Ind. Cas. 637 we are not prepared in the present case to depart from the established practice of this Court.
13. Accordingly, we decree the appeal, set aside the judgment and order of the District Judge and restore the judgment and order of the Munsif. In the result, the suit of the plaintiff will stand dismissed with costs. This appeal is decreed with costs.