KUNWARBAI RATHODNIJI Vs. JASRAJ

JUDGEMENT

(1.) THIS appeal arises out of a suit which the plaintiff respondent No. 1 Jasraj had filed under Order 21, Rule 63, Civil Procedure Code, for a declaration that the houses under attachment belonged to him. The claim succeeded in both the Courts below and the defendant Smt. Rathodniji alias Kunwarbai has now come up in appeal.

(2.) THE only question which has been raised by Shri Waghmare for the appellant in this appeal is that the suit filed under Order 21, Rule 63, was barred by time as it was filed more than one year after the order of the executing court rejecting the plaintiff's objection under Order 21, Rule 58 on 15 -10 -1952. The present suit was tiled on 15 -7 -1954. However under Section 14 of the Limitation Act the plaintiff claimed exclusion of the time spent by him till 23 -11 -1953 in prosecuting an appeal which he had filed against the order of the executing court rejecting his objection.

(3.) THE expression "from defect of jurisdiction or other cause of a like nature" occurring in Section 14 of the Limitation Act was construed in V. C Thani Chettiar Vs. Dakshipamurthy Mudliar ( : AIR 1955 Mad. 288) and it was held that that expression did not cover cases where the previous proceedings were totally misconceived. In Govinda Menon Vs. Krishna Pillai (AIR 1955 TC 51) the words "Defect of jurisdiction" have been construed to mean a defect in a particular court where the former proceedings were instituted and not an inability shared by that Court in common with all other courts to entertain the proceedings. Or in other words, it bas been held in that case that the Section applies if the proceedings are capable of being sustained in the sense of being granted in conformiiy with law by some court and does not make an allowance for time spent in prosecuting a proceeding which the law does not permit any Court whatever to grant. By virtue of the express provision in Order 21, Rule 63, no appeal lies against an order rejecting an objection under Order 21, Rule 58, and it is difficult to see how the provision can be misconstrued by anyone if it is read with a little care.