9911796707
TMI Blog1998 (7) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the premises which was decreed and the execution proceeding No. 331 of 1951 ensued. Since the Amin could not deliver the possession of the property due to obstruction by the plaintiff-appellant, the defendant-respondent moved an application under Order 21 Rule 97 CPC before the executing court. The plaintiff-appellant filed objection to the said application claiming himself to be the co-owner and in possession over the property. After hearing the objection, the application of the defendant-respondent was allowed by the executing court on 3.2.1956 and the objections raised by the plaintiff-appellant were rejected. Under such circumstances, although the plaintiff-appellant had a remedy of filing a fresh suit under order 21 Rule 103 CPC, but instead be filed a revision before the High court on 9.2.1956 which was dismissed on 30.10.1957. After the revision petition was rejected, the plaintiff-appellant brought suit No. 390 of 1956 on 26.9.1958 under Order 21 Rule 103 CPC. In the said suit the plaintiff-appellant prayed for a declaration that he is the co-sharer and is entitled to possession on the land in dispute. Since the said suit was barred by limitation, the plaintiff-appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then is extracted below:- 14. Exclusion of time of proceeding bonafide in Court without jurisdiction -(1) 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. 2............ Explasnation -I. In excluding the time during which a former suit or application was pending the day on which that suit or application was instituted or made, and the day on which the proceedings therein ended, shall both be counted. Explanation - II. For the purposes of this section, a plaintiff or an applicant. resisting an appeal shall be deemed to be prosecuting a proceeding. A perusal of the aforesaid provision would show that in order to get the benefit of sub-section (1) of section 14 of the Act, the party seeking its benefit must fulfil the following four conditions:- (1) T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on other than the judgement-debtor, the court shall make an order dismissing the application. 100. (1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the court complaining of such dispossession. (2) The court shall fix a day for investigating the matter and shall summon the party against whom the application as made and answer the same. 103. Any 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 such suit (if any), the order shall be conclusive. A perusal of the aforesaid provisions would show that the scheme commencing under Rule 97 and onwards before the amendment of the Amendment Act, 1976 was that where a decree holder or the purchaser at the court sale of property was obstructed in obtaining possession of such property by any person he was entitled to apply to the court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents relied on the decision of Patna High Court reported in AIR 1994 Patna p.225 for the proposition that in the case like the present one, limitation would run from the date of order in the claim case and not from the date of High Court s order discharging the rule, and the plaintiff-appellant would not be entitled in such a case to an extension of time under Section 14(1) of the Act. In the said case the plaintiff filed an appeal before the High Court against the order passed under Rule 98 C.P.C. The High Court while issuing rule cautioned the plaintiff that the appeal is not maintainable, yet he persisted to prosecute the same, whereas in the present case the high Court entertained the revision petition for hearing which gave a reasonable ground to the plaintiff appellant to think that the original order may be set aside in revision. Thus, the decision referred to above has no application to the present case and is distinguishable. Learned counsel appearing for the respondents urged that, assuming the High Court suffered from disability to decide the rights of party on facts, the plaintiff appellant did not prosecute the revision petition before the High Court in good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound that there was no lack of due care, there is no reason why the plaintiff-appellant would not be accorded the benefits of section 14 of the Act. Does the interest of justice demand that plaintiff should be refused benefit of Section 14 of the Act on account of the negligence on the part of his counsel, ill advising him to file a revision instead of filing a fresh suit? An illiterate litigant cannot be made to suffer when he is ill-advised by his counsel. On the facts and circumstances of this case, we are satisfied that the plaintiff-appellant prosecuted the earlier civil proceeding in good faith. For the aforesaid reasons this civil appeal deserves to be allowed. Consequently the judgment and order dated 5.9.1985 in Second Appeal No. 2062 of 1984 passed by the High Court is set aside. Since the High court has allowed the second appeal only on the point of limitation, this case is sent back to the High Court for decision on surviving points. The matter being quite old, we request the High court to decide the second appeal expeditiously preferably within six months from the date of production of certified copy of this order. The appeal is allowed. However, in the circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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