NARAYAN AMBAJI CHAVAN Vs. HARI GANESH NAVARE

JUDGEMENT

(1.) One Ganesh Anant Desai filed suit No. 29 of 1918 against the present plaintiff for possession of the property in suit and obtained a decree in execution of which he was put in possession. On appeal the plaintiff got the decree reversed and then applied under Section 144 of the Civil Procedure Code, for restoration of possession. The application was granted but defendant No. 1 resisted the delivery of possession. Thereupon the plaintiff made an application under Order XXI, Rule 97, for removal of the obstruction which was dismissed on April 15,1924, under Order XXI, Rule 99, It was incumbent on the plaintiff to bring a suit under Order XXI, Rule 103, within one year but the present suit was brought by the plaintiff on June 24, 1925. The suit is governed by Art. 11A of the Indian Limitation Act and Rule 10 of Order XXI, and is clearly beyond time. The plaintiff tried t save limitation on the ground that he had made an application the High Court in revision on July 11, 1924, which was dismissed on April 3, 1925. It is urged on behalf of the appellant that that time is excluded under Section 14 of the Indian Limitation Act the suit would be within time.

(2.) The first question arising in the case is whether an application for revision to the High Court is a "civil proceeding in a Court o appeal" within the meaning of Section 14. The lower appellate Court relying on the decision in the case of Bubramania Pillai Seethai Ammal (1811) I.L.R. 36 Mad. 135 held that a revisional application in the High Court could not be covered by the words " a civil proceeding a Court of appeal." It appears that the decision relates to the words "order on appeal" in Art. 182 of the Indian Limitation Act and has no application to Section 14 of the Indian Limitation Ac The appellant's counsel relied on the decision in the case of Baijnath Bahai V/s. Ramgut Singh (1898) I.L.R. 23 Cal. 775. But it appears from the judgment that the point under Section 14 of the Indian Limitation Ac was not decided. The High Court is not a Court of appeal but Court of revision in respect of an order of a Second Class Sufe ordinate Judge under Order XXI, Rule 99. Assuming, however that an application for revision to the High Court is covered by the words " civil proceeding in a Court of appeal" within the meaning of a 14 of the Indian Limitation Act, the further question for decision is whether the High Court was not able to entertain the application from defect of jurisdiction or other cause of like nature. It appears that the High Court refused to interfere o the ground that there was another remedy by way of a suit, think, therefore, that the conditions necessary under Section 14 of the Indian Limitation Act are not satisfied.

(3.) In Baismath Lala V/s. Bamadoss (1914) I.L.R. 39 Mad. 62 it was held that in computing the period of limitation for the filing of a suit the plaint was not entitled to deduct under Section 14 of the Indian Limitation Act the period of time taken by him to file a revision petition the High Court or the time during which ho was prosecuting the revision petition against the order of distribution under Section 73 the Civil Procedure Code. At p. 66 it is observed :- We think, further, that the respondent is entitled to rely upon the contention that in any event plaintiff cannot be said to have prosecuted the Revision Petition in good faith within the meaning of Sec. 14 of the Limitation Act inasmuch as it has been frequently held by this and other High Courts that the High Court will not exercise its revisional powers when there is any other remedy open. Here the plaintiff had his remedy by suit.