KANYA TEXTILES TRADERS Vs. C R ARUNACHALAM

JUDGEMENT

(1.) THIS revision is directed against the order in E.A.No.370 of 1983 In E.P.No.527 of 1979 in O.S.No.372 of 1979 on the file of the Principal District Munsif Court, Nagercoil. The decree holder is the revision petitioner. The respondent claimant filed an application under Or.21, R.58, C.P.C, to raise attachment effected by the revision petitioner decree holder. According to the respondent, he purchased the property which is the subject-matter of the claim petition, on 4.10.1979. The order for attachment was made on 8.3.1979. That claim petition was dismissed as the purchase of the property was subsequent to the attachment. The first respondent filed an appeal A.S.No.131 of 1981, which also met with the same fate. He has now filed an application under Or.21, R.58, C.P.C, and along with that filed an application to condone the delay under Sec.5 of the Limitation Act as well as to exclude the period during which he has been prosecuting the appeal A.S.No.131 of 1981. The delay according to the first respondent was only 429 days while according to the decree-holder it was two years and thirty-seven days. The trial Court found that the period for which the first respondent was prosecuting the appeal A.S.No.131 of 1981 has to be excluded.

(2.) IT is now contended for the revision petitioner by its learned counsel that Sec.14(2) of the Limitation Act is not applicable. A reading of Sec.14(2) of the Act shows that in computing the period of limitation for any application, the time during which the applicant has been prosecuting With due diligence, another civil proceeding, whether in a Court of first instance or of appeal or revision, against the same party for the same relief, shall be excluded, where such proceeding is prosecuted in good faith in a Court, which from defect of jurisdiction or other cause of like nature, is unable to entertain it. IT is pointed out for the revision petitioner by its counsel that the claimant was only prosecuting the appeal against the order of dismissal of petition under Or.21, R.58, C.P.C, and the Court which entertained the appeal has no defect in jurisdiction. This point was not considered by the Court below. Secondly, the petition is purported to lie both under Secs.5 and 14 of the Limitation Act while Sec.14 provides for exclusion of the period, Sec.5 is one for condonation of the delay. The ingredients in respect of both sections are different. Under Sec.14, the applicant has to prosecute with due diligance and good faith whereas Sec.5 requires only 'sufficient cause'. That difference was also not borne in mind by the trial Court. The proper course to be adopted under such circumstances is to set aside the order and remit the matter for fresh disposal. The revision is allowed and the order of trial Court is set aside and remitted for enquiry de novo. There will be no order as to costs. As it is an old petition, the trial Court will dispose it of as expeditiously as possible within a period of three months from this date.