CHAIT RAM Vs. GHASI RAM

JUDGEMENT

(1.) This is defendants' second appeal and the only question of importance raised is about limitation. How this question arises would be clear only from the narration of facts. The defendant-appellant had filed Suit No. 279 of 1950 against one Chhuttan for rent and ejectment. The suit was decreed after contest and execution proceeding No. 331 of 1951 ensued. The matter took a tortuous route, several objections were filed, attempts were made to avoid delivery of possession and ultimately all these attempts failed and time came for executing the decree again. On an application made by the defendant appellant (the plaintiff decree-holder in that suit) the Amin was directed to deliver possession. This time he was obstructed by the plaintiff-respondent and an application under O. 21, R. 27 C.P.C. was made. The respondent filed objections pleading inter alia that an earlier application for execution had been dismissed and, therefore, a second application was barred by res judicata. He also set up his right to present possession over the property. After hearing the objections, the application under R. 97 C.P.C. was allowed on 3-2-1956 and the objections raised by the plaintiff-respondent were dismissed. He had a remedy of filing a suit under R. 103 of O. 21 but instead he filed a revision before the High Court on 9-2-1956 which was dismissed on 30-10-1957 holding that the application is not barred by res judicata and the other matter was not even looked into. After the dismissal of the revision, the present suit No. 390 of 1958 was filed on 26-9-1958 by the respondent under O. 21, R. 103 C.P.C. It was pleaded that the time spent by the plaintiff before the High Court was liable to be excluded and the suit was within limitation. This position was contested by the present appellant and it was urged that under S. 14 of the Limitation Act, no such benefit could be availed by the plaintiff since the revision was heard and decided on merits and the Court did not lack jurisdiction in the matter. Both the Courts below have, however given benefit of S. 14 to the plaintiff and on merits the suit has been decreed holding that the plaintiff was a co-sharer in the property.

(2.) In appeal, it is conceded by both the sides that if merits are gone into, then the shares of the parties may not be determined as was done by the Court below for it would be sufficient to uphold the plaintiffs right if he had even a smallest possible share in the property. They also concede that in such an event, the finding about share recorded by the Court below should be set aside and be left to be decided in a proper suit for partition if such a situation arises.

(3.) Thus the foremost question which needs determination in the appeal was whether the suit of the plaintiff was within time and this will primarily depend on the question whether the plaintiff would be entitled to exclude the time spent by him in filing the revision. According to Sri Swami Dayal, learned counsel appearing for the appellant, S. 14 of the Lim. Act did not apply in terms to the present case. It is, however, contended by Sri K. B. L. Gaur for the respondent that firstly the revisional order was not on merit but merely decided the question of res judicata and the revisional Court had no jurisdiction to decide any matter on the facts of the dispute and as such had no jurisdiction to that extent. The High Court, therefore, suffered from a disability to adjudicate in the matter for a cause of the like nature, and, therefore, the time spent in revision was liable to be excluded. Secondly, it is submitted that the order of the executing Court became merged in the order of the revisional Court and since that order was passed on 30-10-1957, the suit was well within time.