KOPPOLU VENKATASWAMI Vs. UTTARKAR SARA BAI

JUDGEMENT

(1.) I have had the benefit of full and exhaustive arguments on the questions involved in this case. One is whether the case comes under Section 14 of the Limitation Act and the second is whether under Art. 11 of the Act, the starting point is the date of the first order or the final order passed on a revision to the High Court.

(2.) The facts that are material for the decision of these questions are not in dispute. The plaintiff-appellant obtained a money decree against the second defendant in O.S. No. 98 of 1925 on the file of the District Munsiff's Court, Gooty and in execution of the said decree attached a house as belonging to his judgment-debtor. The first defendant who is the first respondent in this Court intervened with a claim petition which was allowed on the 21st January, 1938. On the 22nd March, 1938, the plaintiff who was the attaching decree-holder filed a revision petition before the High Court which was admitted and it was ultimately dismissed on the 28 November, 1940. The dismissal of the revision petition by the High Court was on the ground that the petitioner who is the appellant herein had a remedy by way of a suit under Order 21, Rule 63, Civil Procedure Code and that he ought to have availed himself of that remedy. The appellant filed the suit out of which the present appeal arises to establish the right which he claims to the suit property, that being that he is entitled to attach it as the property of his judgment-debtor. The suit was dismissed by both the lower Courts on the ground that the appellant had not brought himself within the provisions of Section 14 of the Limitation Act. The suit was admittedly filed one year after the date of the claim order and if the time taken by the civil revision petition is excluded, the suit would be well within time. The revision petition was filed on the 23 March, 1938 and was disposed of on 28th November, 1940. If, therefore, the period between the 23 March, 1938, and 28th November, 1940, is excluded, the suit would be in time. If again, the starting point under Art. 11 was the date of the final order in the claim proceedings and if the final order is held to be that passed by the High Court on the revision petition, then the starting point would be 28 November, 1940, and then again the suit would be in time. The first question for decision is whether the lower Courts are right in holding that the suit was not saved by the provisions of Section 14(1) of the Limitation Act. That section runs thus: 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 juris-diction, or other cause of a like nature, is unable to entertain it.

(3.) There are several questions calling for decision before the provisions of Section 14(1) are held to be applicable. The first question dealt with by the lower Courts is whether the plaintiff can be said to have acted in good faith when he filed the revision petition in the High Court instead of filing a suit under Order 21, Rule 63. The trial Court after laying down that the burden of proving good faith is upon the person who claims exemption under Section 14 says this: In the present case except the bare statement of the plaintiff there is nothing to show that he was acting as such on advice of his courisel. The plaintiff is a Vysia trader and it cannot be said that he is an illiterate person. He should have examined the advocate to prove beyond doubt that he had advised to prefer the revision petition only instead of a suit as is prescribed under law. When the plain provisions under Order 21, Rule 63 are staring in the face, it is nothing short of negligence to incur the risk of losing the remedy expressly provided under law, and such a procedure cannot be regarded as prosecuting his cause in good faith with due care and attention. As it is not satisfactorily proved in this case that in filing the revision against the claim order the plaintiff was acting on advice in good faith, he is not entitled to the benefit of Section 14 of the Limitation Act.