SOMSHIKHARSWAMI SHIDLINGSWAMI Vs. SHIVAPPA MALLAPPA HOSMANI

JUDGEMENT

(1.) The plaintiff in this case obtained a mortgage from one Tipava in 1904, and in a suit on that mortgage, a decree was passed in favour of the plaintiff. In execution of that decree he purchased the property in suit with the leave of the Court. When he tried to get possession, he was obstructed by the present defendants, to whom apparently Tipava had transferred the property while the litigation was pending. As a result the plaintiff filed Suit No. 344 of 1911 against the defendants to obtain possession. He obtained a decree on February 15, 1913. There was an appeal first to the District Court and then to the High Court, which ultimately confirmed the decree on December 10, 1915. He filed his application for execution of this decree on June 28, 1920.

(2.) During the interval, however, the defendans filed Suit No. 42 of 1916 for a declaration that the plaintiff's decree had been obtained by fraud. That litigation lasted till July 31, 1920, when the suit was ultimately dismissed. In that litigation the matter came up to the High Court in Second Appeal No. 328 of 1917. The nature of the suit was described in the judgment of this Court in these terms : "This is not a case of fraud, but on allegation that the sale under the decree by reason of its being made without notice to the judgment-debtor was either so irregular or so absolutely illegal that the sale cannot be upheld and that the present plaintiffs have a right to disregard the sale". By that judgment the suit was remanded and ultimately decided against the then plaintiffs. This litigation of 1916 lasted up to July 31, 1920, and the plaintiff made the present application for execution on June 28, 1920. The application for execution, even taking the time to run from the date of the final decree in appeal, is time-barred, unless the plaintiff can claim a deduction of the period taken up in the litigation of 1916. The lower Courts have come to the conclusion that the plaintiff is not entitled to deduct the time under any of the provisions of the Indian Limitation Act, and have accordingly rejected the application for execution.

(3.) The only point in second appeal is whether the deduction of time claimed is allowable under the provisions of the Indian Limitation Act. The two sections upon which reliance is placed are Secs.14 and 15 of the Indian Limitation Act. This case is not covered by the terms of Section 15, because there was no order obtained by the present defendant staying execution of the decree passed in Suit No. 344 of 1911. No injunction was claimed by the defendants in Suit No. 42 of 1916, and none was granted at any stage. It is clear, therefore, that the provisions of Section 15 of the Indian Limitation Act cannot apply to the facts of this case. If there had been any such order or injunction as provided in that section, the plaintiff would have been entitled to deduct the time covered by such injunction or order. Reliance was also placed upon Sub-section (2) of Section 14. That sub-section applies to a case where the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the same party or for the same relief, and where such proceeding 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.