SRI KASIKANANDA GNANACHARYA SWAMIGAL Vs. SARAVANA PERUMAL PILLAI

JUDGEMENT

(1.) The Chief Justice. The only question which arises in this appeal is whether a person who claims to come within Section 14 of the Limitation Act has to show that in pursuing his remedy in other proceedings he acted in good faith or whether the burden of showing lack of good faith is on his opponent. The appellant obtained a decree on a promissory note against one Nataraja Pillai on the 22nd October, 1930. On the 10 December, 1931, Nataraja Pillai sold certain immoveable properties to the respondents. On the 12 August, 1932, the appellant attached these properties in execution of the decree which he had obtained on the promissory note and at the sale, which was held on the 15th January, 1935, he purchased the properties. When he desired to enter into possession he was obstructed by the respondents, who claimed title by reason of their purchase of the properties on the 10th-December, 1931. On the 27 June, 1935, the appellant applied to the District Munsif of Manamadura, in whose Court the execution proceedings had taken place, for an order against the respondents under Order 21, Rule 97 of the Civil P. C. requiring them to deliver possession to him. This application was dismissed by an order of the District Munsif passed on the 14 October, 1935. The appellant preferred an appeal to the Subordinate Judge of Sivaganga, who dismissed it on the 26 November, 1936, on the ground that the appellant's remedy was by suit and not by an appeal. Rule 103 of Order 21 provides that a party, not being a judgment-debtor, against whom an order is made under Rule 98, Rule 99 or Rule 101 may institute a suit to establish the right which he claims to the present possession of the property; but, subject to the result of a suit the order is conclusive.

(2.) On the 7 December, 1936, the appellant instituted the suit out of which this appeal arises. He asked for a declaration that the sale of the properties to the respondents was invalid and for an order requiring them to vacate. The respondents pleaded that the suit was barred by the law of limitation, and clearly it was if the time taken up by the appeal from the order of the District Munsif dismissing the appellant's application under Order 21, Rule 97, was not to be excluded. The District Munsif held that the respondents plea was well-founded and dismissed the suit but his decision was reversed on appeal by the Subordinate Judge. The respondents appealed to this Court, and their appeal was allowed by Wadsworth, J., who, however, gave a certificate which has permitted of the filling of the present appeal under Clause 15 of the Letters Patent.

(3.) There is nothing on the record which shows the circumstances under which the appellant filed the appeal against the dismissal of his application under Order 21, Rule 97, and the decision in this appeal must turn on the question on whom lies the burden of proof. Section 14 of the Limitation Act says: 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.