BABANNA GURUSANGAPPA Vs. CHANNAPPA CHANMALLAPPA

JUDGEMENT

(1.) THIS is an appeal from the judgment dated December 23, 1340, of. Mt. L. Y. Ankalgi, who was then the First Class Subordinate Judge at Bijapur. The appeal raises two quite different questions, and it will he convenient to deal with the question with regard to the Indian Limitation Act first, because if the respondents' contention is right with regard to that Act,, then the other question would not arise at all and this appeal would have to be dismissed with costs.

(2.) NOW, the question of limitation arises in this way: The plaintiff was adopted on October 22, 1925, and that, for the purpose of running of time, is the critical date. This litigation was commenced in the Court of the 'first Class Subordinate Judge on October 1, 1938, and it is, therefore, apparent, unless some time can be allowed, that the suit is out of time and barred because more than twelve years would have elapsed. But Mr. Jahagirdar on behalf of the appellant, who is the plaintiff, claims that under Section 14 of the Indian Limitation. Act, 1908, he is entitled to compute the time taken up in the, Second Class Subordinate Judge's Court in which Court this suit was initiated and in which Court it was held that there was no jurisdiction to try the suit. Section. 14 is in these terms : 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.

(3.) IN fact the plaint was returned on September 30, when the learned Judge made a further endorsement on it to this effect: The plaint was presented by the plaintiff's pleader Mr. B. N. Padaki on 21st, October 1887 and it is returned to him on this date. 30th September 1038.