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TMI Blog1963 (9) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... against one Hanumanthu, husband of the second respondent and the father of the third respondent herein. In execution of this decree, he brought the properties, the subject matter of this litigation, to sale and purchased them himself in the beginning of the year 1949. Subsequently, a sale-certificate was issued on 21-7-1949. After the abolition of the estates under the provisions of the Madras Estates (Abolition and Conversions into Ryotwari) Act, 1948, the Government in whom the whole of the estate vested under section 3(b) of the Act obtained delivery of possession of these properties. (3) The appellants herein filed an application under O. 21, Rules 100 and 101 C. P. C. claiming the properties at their own and seeking to dispossess the Government as representing the decree-holder-auction-purchaser. This application was rejected by the executing Court on 9-7-1953. Instead of having recourse to Order 21, Rule 103 C. P. C. the appellants filed a civil revision petition (C. R. P. No. 1863 of 1953) to the High Court of Judicature at Madras on 23-9-1953. This petition was dismissed on 18-10-1955 by the High Court presumably for the reason that it did not involve any question relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ows that the intendment thereof was that in computing the period of limitation, the time occupied by the litigation which became fruit less by reason of the defects contemplated by that sub-section should be deducted. No doubt the section does not define the period of that should be allowed under that section. The intention of the legislature in this behalf is conveyed by the clause, 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. . It is seen that the legislature had used comprehensive words and it must have done it advisedly so that they may take in the entire period covered by the prosecution of another civil proceedings. (11) The learned Government Pleader for the first respondent invites us to hold that the prosecution of another civil proceeding is synonymous with prosecution in a Court of law and that the word Prosecution has a definite connotation of pursuing a thing in a court of law so the exclusion of the period should be confined to the pendency of the proceeding in the court. In support of this proposition, he draws our attent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tified copies of the judgment which is an essential requisite for the filing of an appeal or revision in the higher Court has to be disregarded for purposes of S. 14 . We do not think that the legislature would have contemplated such a situation. It would certainly result in an anomaly to hold that the time covered by taking the steps absolutely necessary for initiating proceedings in a Court should be included in calculating the period of limitation while the time during which a former suit or application was pending in a Court should be excluded. In our considered judgment the section does not make any distinction between the steps which a litigant has to take to initiate proceedings in a Court and the actual pendency of those proceedings in the Court. (15) In this context, it is worthy of note that it is only a party, who prosecutes a Civil proceedings with due diligence that would get the time envisaged in the section deducted from the period of limitation prescribed by the relevant Article. In other words, the relief of exclusion to the time could be granted only when it is shown that the prosecution was with due diligence. Thus, the right conferred upon a party is not an u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the view adumbrated by us above (18) This principle is echoed in Luckhi Narain Mitter v. Khettro Pal Singh, 20 Suth WR 380 (PC) though in a different form, while construing the same section of the same Act. One of the questions that called for decisions in that case was whether a person who was engaged in a fruitless litigation could deduct the whole period occupied by such proceedings and it was answered in the affirmative. What happened there was that in order to recover a deposit in a Court made in November 1864 a suit was instituted by the plaintiff in a Court which ultimately turned out to be one not having territorial jurisdiction to entertain it. Though the trial Court overruled the plea as to jurisdiction and a gave a decree, this defence found acceptance with the first and the second appellate Courts. The result was that the plaintiffs had to bring another action for recovery of the deposit in a Court of competent jurisdiction. When the matter went up in appeal ultimately to the Judicial Committee of the Privy council, their Lordships expressed the opinion that, according to the true constructions of S. 14, Act XIV of 1859, the whole time occupied in that suit, includin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial change in the object and the purpose of law declared in the section. the concept underlying both the sections is the same, though there were a number of verbal changes. It is also interesting to note what was once a section in Act XIV of 1859 was split up into a section and two Explanations in the 1871 Act. This Act in its turn was repeated in 1887 and the law of limitation was re-enacted as the Indian Limitation Act of 1877 (XV of 1877). (22) The relevant section, (Sec. 14) recites : 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. (23) It is unnecessary for the present purpose to extract the second paragraph of that section. The third paragraph reads : In computing the period of limitation prescribed for any application , the time during which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rend of thought is the pronouncement of their Lordships of the Supreme Court in Raghunath Das v. Gokul Chand, . It was decided there that the plaintiff who was engaged earlier in infructuous proceedings, was entitled, in computing the limitation, to deduct the period spent in the execution proceedings which included all the appeals arising therefrom. In that case, the respondent, Gokul Chand, applied to the District Court on 31-8-1936 for filling an award and the Court passed the decree on compromise modifying certain terms of the award. But on application for execution of that decree was dismissed by the District Court on 23-12-1942. This was reversed in appeal by the High Court on 5-4-1942. This was reversed in appeal by the High Court on 5-4-1944. Finally, the execution petition was dismissed on a Letters Patent Appeal on 15-3-1945. On 5-6-1946, the appellant before the Supreme court brought a suit claiming a different relief which need not be set out here, in the Subordinate Judge's Court. One of the controversies that arose was whether the entire period occupied by the execution proceedings including the two appeals should be deducted under section 14 of the Limitation Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be allowed under S. 14 and not that the whole of time taken by the execution proceedings should be excluded. Hence the argument advanced by the learned Government Pleader is inconsistent with the principle embodied in . (30) In Perumal v. Pandaram, AIR 1951 Trav-Co 26 a Division Bench of the Travancore-Cochin High Court held that Section 15 did not limit the period of exclusion to the period of exclusion to the period of actual pendency of infructuous appeals or revisions. (31) The rulings cited above firmly establish the proposition that Section 14 permits a plaintiff to deduct the whole of the time occupied in pursuing remedies which proved to be fruitless for reasons of defects of jurisdiction or of the like nature in calculating the limitation for the purpose of a suit to annual the order forming the subject-matter of that suit. (32) We will now turn to the judgment of the Madras High Court in ILR 39 Mad 62. (AIR 1915 Mad 405) which was mainly responsible for this reference. An auction was raised to set aside an order disallowing a petition for rateable distribution under Section 73, clause (2) Civil Procedure Code. Originally, the petition was dismissed on 18-10-1905 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut, normally the parties were expected to file revision petitions with in 90 days. It is to remove the uncertainty and to fix a time within which revision petitions should be filed in the High Court that sub-rule 41(A) was introduced into the Appellate Side Rules by the Madras High Court. Rule 41-A(2) says : No application in civil Revision shall be presented after ninety days from the date of the order complained of, provided that the Court may, on sufficient cause shown, excuse the delay in presentation. (36) After the addition of this sub-rule the principle enunciated in ILR 39 Mad 62 : (AIR 1915 Mad 405) will not govern S. 14 (1) of the Limitation Act. (37) In 1937 Mad WN 465 (2) another Bench decision of the Madras High Court , in a way approved the principle enunciated in ILR 39 Mad 62 : (AIR 1915 Mad 405). It may be mentioned here that this case also related to a period when no limitation was prescribed for filing civil revision petitions in the High Court under Appellate Side Rules. It was only on 1931 that Rule 41-A was added to the Appellate Side Rules of the Madras High Court . Therefore, the observations in the subsequent ruling also were explicable on the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned Judge thought that they could gather support for this opinion from Lal Behari Lall v. Bani Madhava Khatri, 28 Pat 102 : (AIR 1949 Pat 293) (FB). A perusal of the judgment in ILR 28 Pat 102 : (AIR 1949 Pat 293) (FB) reveals that it does not lend any colour to the theory propounded in . All that the Full Bench had to decide was whether the plaintiff was entitled to exclude the time during which the revision petition was pending in the High Court. They were not called upon to decide whether the period between the order sought to be assailed and the presentation of the revision petition should be deducted or not. Be that as it may, we are unable to share the view expressed by the Division Bench of the Patna High Court in . (42) We will now advert to Chhuttan Lall v. Dwarka Prasad, AIR 1938 All 78. A single Judge of the Allahabad High Court ruled that the only period that could be deducted under S. 14 of the Limitation Act is the period between the date of presentation to the plaint and its return for presentation of the plaint and its return for presentation to the proper court. It looks to us that the learned Judge based his conclusion largely upon the party having reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. We are satisfied that Explanation I does not given any support to the principle enunciated in AIR 1938 All 78. We, therefore, express our respectful dissent from AIR 1938 all 78 (supra). (44) To a like effect is the decision of a single Judge of the Nagpur High Court in Laxmandas v. Chunnilal, AIR 1931 Nag 17. The comments made in regard to AIR 1938 All 78 apply equally to this case also. (45) The ruling of a Full Bench of the Kerala High Curt in Thycattuseri Church v. Sicillyamma, is in accord with the abovementioned tow cases. What we have said in dealing with those cases applies with full force to this ruling also. It may be mentioned here that does not refer to an earlier decision of a Division Bench of the same High Court . It is also interesting to note, there is no reference either to 6 Suth WR 308 or 20 Suth WR 380 (PC) or to 7 Ind Cas 775 (Cal) in these cases. (46) What follows on this discussion is that both on authority and on the language of S. 14 there is no scope for limiting the ambit of S. 14 to pendency of infructuous proceedings in a Court of law and to disregard the time taken for taking the indispensable and preparatory steps to institute proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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