PANDY WALAD DAGADU MAHAR Vs. JAMNADAS CHOTUMAL MARWADI

JUDGEMENT

(1.) This is an appeal under the Letters Patent from the order of Mr. Justice Shah, dated 13 December 1921, dismissing the defendants appeal against the order of the District Judge of Poona who directed the Subordinate Judge of Vadgaon to proceed with the execution of the decree under Darkhast. No. 29 of 1919.

(2.) The question is one of limitation and concerns, primarily, Section 14, Sub- section (2) and Art. 182(5) of the Indian Limitation Act. To explain it, I will state shortly the material facts. The suit was an ejectment suit brought in 1906, and on the 27 November 1907 the plaintiff obtained a decree for possession in the Vadgaon Court. I understand from Counsel that the plaintiff has now recovered possession of all the suit land except a particular cottage, and that the present Darkhast relates only to that cottage. Be that as it may, there have been numerous Darkhasts since the original decree, but it is unnecessary to mention them all. It is common ground that the present Darkhast, No. 29 of 1919, is in time if another Darkhast of 7 June 1916 (No. 411 of 1916) was itself in time. This 1916 Darkhast in its turn depends upon whether the time occupied over certain proceedings under an earlier Darkhast of 1912 (No. 284 of 1912) can be deducted under Section 14 (2). That Darkhast was admitted on 10 April 1912, so that three years from that date would expire in April 1915, and consequently, unless some exemption can be claimed, the Darkhast of 1916 would be out of time. The plaintiff contends that he is entitled to that exemption under Section 14 (2) of the Indian Limitation Act, and this is how he makes out his claim.

(3.) It appears that the two spearate Courts of Poona and Vadgaon have a common Judge, that is to say, from the 1 to the 20 of each month the Judge sits at Haveli, Poona; and, from 21 to 25 he sits at Vadgaon, and from the 25 to 30 of the month he sits at Lonavli which is also a part of the Vadgaon Court. The plaintiff filed his Darkhast No. 284 of 1912 on the 10 April 1912. He filed it at Vadgaon quite correctly, but as the Judge was then sitting at Haveli, the officials, apparently, sent the papers to the Judge at Haveli, and he, on the 11th April 1912, gave a notice to the defendants returnable on the 14 or 15 April 1912 in the Haveli Court. The defendants did not appear, and on the 15 April the Judge sitting in the Haveli Court made the warrant for possession absolute. Defendants appealed, and on the 26 February 1913 this order was set aside on the ground that the Judge had no jurisdiction to direct the defendants to appear in the Haveli Court, nor to make the order against them in that Court. It was accordingly directed that the Court of first instance should take up the Darkhast at the point where it was when the order for issuing the warrant of possession was passed. That means, I take it, that the proceedings as from the 14 or 15 of April 1912 were in effect set aside, but as the Darkhast itself was in order, the Court was to proceed on it. The plaintiff appealed to the High Court, but on 3rd February 1915 his appeal was dismissed. Counsel states that on 29 June 1915 the Darkhast was brought on again, that the plaintiff was present but as the Judge was away the proceedings were adjourned to the next day. The plaintiff this time was not present in Court and accordingly the Darkhast was struck off. The next Darkhast he filed. was, I have already said, on the 7 June 1916 and the question is; was it in time?