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TMI Blog1958 (10) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... | | | | Umardarajali Khan Tahasin Ali Khan Vilayatalikhan | | | | Himayat Ali Khan | | _______________________ | | | | Atefat Ali Khan Matin Ali Khan | | ______________________________________________________________________________ | | ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the said appeal Smt. Hasnoobi did not obtain any stay order. Therefore, the plaintiffs started execu-tion of the final decree for foreclosure. The present defendants obstructed the delivery of possession of the suit property to the plaintiffs. Thereupon the plaintiffs filed an application under Order 21, Rule 97 of the Civil Procedure Code. It was registered as Miscellaneous Judicial Case No. 29 of 1947. By order dated 18-9-1948, it was dismissed. The plaintiffs filed Miscellaneous Appeal No. 206 of 1948 against the same, in this Court, presumably on the assumption that the order 18-9-1948 was one under Section 47 of the Civil Procedure Code. The appeal was dismissed on 7-12-1951. Therefore, the plaintiffs filed the present suit, namely Civil Suit No. 9-A of 1952. on 8-12-19-52 under Order 21. Rule 103 of the Civil Procedure Code. 5. The respondents raised various pleas in their defence in the trial Court. But the one plea, which we are concerned with, in the present appeal, related to the question of limitation on the ground that the suit was barred by time, as the same was not filed within one year of the passing of the summary order dated 18-9-1948 as required by Arti-cle 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Procedure Code. If this Court condoned the delay in deposit of the said costs, it must be held that the appellants were prosecuting the appeal with due diligence. To deprive a party of the benefit of Sec, 14 of the Limitation Act regarding a part of the period on the ground that process fee was paid late or some other thing required to be done under the rules was done late, would be tantamount to unnecessarily curtail the scope of Section 14, contrary to the specific wording of the Section. The time during which the plaintiff has been prosecuting another civil proceeding has to be excluded. For that purpose the good faith in prosecuting the civil proceeding has to be determined, The question of good faith cannot be decided on such irrelevant considerations such as late payment of procees fees or late payment of paper book costs, when this Court had condoned the default. As the trial Judge found it as a fact that Miscellaneous appeal No. 206 of 1948 was prosecuted in good faith, we hold that the plaintiffs were entitled to exclude the period from 17-12-1949 to 23-3-1950. 11. The learned trial Judge denied the appellants benefit of the period from the date of the order, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jection order was passed on 5-3-1928. The plaint was presented in one Court on 15-9-1928, of course in time. That wast returned by that Court on 14-12-1928, for presentation to what that Court held to be the proper Court. The plaintiff challenging the correctness of that order appealed on 6-2-1929 and the appeal was dismissed on 2-9-1929, and the plaint was presented to the Court as decided by die first Court, on 25-11-1929. In our opinion the plaintiff has been litigating the matter in a Court which she bona fide believed to be the correct tribunal, believing, to the extent of incurring costs of an appeal against the decision that it was not the correct tribunal, for something like 10 months. Those 10 months must be taken into account in considering the period that has elapsed between the date of suit and the date when the plaint was eventually filed in the correct Court, and if this is so taken into account the time that has expired is less than a year. The limitation point, therefore, in our opinion, fails. In the case of Abdul Sattar v. Abdul Husan, AIR 1936 Cal 400, the plaintiffs had applied for execution of their decree. The judgment-debtors raised objeictions to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 1948 had been admitted for hearing parties, the point was certainly debatable. It was another matter that this Court by the order dated 7-12-1951 held that the appeal was not tenable, as it did not fall within the scope of Section 47 of the Civil Procedure Code. Therefore, we are not inclined to disturb the trial Court's finding on the question of good faith. 14. It was further urged on behalf of the respondents on the authority of Naravan Ambaji v. Hari Ganesh, AIR 19SO Born 505, Ramanand Pra-sad v. Gaya Prasad Ram, AIR 1949 Pat 362, V. C. Thani Chettiar v. Dakshinamurthy Mudaliar, (S) AIR 1955 Mad 288; Tirumala Bhaskara Hao v. Panasa Narayanamma, (S) AIR 1956 Orissa 124 and Govinda Menon Raman Menon v. Krishna Pillai Kesava Pillai, AIR 1955 Trav-Co 51 (FB). that Section 14 (1) of the Limitation Act could not be availed of by a plaintiff, who filed an infructuous appeal contrary to a specific prevision of law. We are aware of the fact that the proposition may apply to a certain class of cases, where a plaintiff merely indulges in infructuous litigation not in good faith. But those cases are distinguishable from the present case on the ground that here the question of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to accept this contention as well. The earlier appeal was held to be not tenable, as the order impugned was held not to fall under Section 47 of the Civil Procedure Code. In short, the appeal was held to be untenable. This, in our opinion, was a defect of jurisdiction or a cause of a like nature. We cannot interpret the phrase in a narrow sense suggested by the learned Counsel. The word, 'jurisdiction' connotes more than one sense. We feel that an untenable appeal would be covered by the phrase 'defect of jurisdiction.' At any rate, it would certainly he included within the phrase 'other cause of a like nature.' 17. As we find in favour of the appellants about Section 14 of the Limitation Act being available to them, it is not necessary to decide the alternative contention of the learned Counsel regarding the starting point of limitation under Article 11-A of the Limitation Act. We leave that question open for decision on a more suitable occasion. 18. Upon the view of the learned trial Judge that the earlier proceedings were prosecuted in good faith, the appellants were entitled to the benefit of Section 14 of the Limitation Act. But the trial ..... X X X X Extracts X X X X X X X X Extracts X X X X
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