PATEEL SIDDALINGANA GOWD Vs. TATANA GOWDRA BHIMANA GOWD

JUDGEMENT

(1.) This appeal raises a question of limitation in the following circumstances.

(2.) The plaintiffs are members of a joint Hindu family. The defendant held a mortgage over certain joint family properties but that mortgage had been executed only by a step-brother of the plaintiffs. In execution of the decree obtained on that mortgage the defendant himself became the purchaser of the properties, but as the plaintiffs and another deceased brother of theirs were not parties even to the suit on the mortgage, they resisted the defendant when he attempted to take possession as execution purchaser. The Court ordered their obstruction to be removed by an order, dated 4 April, 1918; and on the 5 April, the plaintiffs filed a suit under Order 21, Rule 103, Civil Procedure Code, for a mere declaration. As shortly thereafter, the defendant took possession, that plaint was amended by the addition of a prayer for possession, but it did not occur to anybody to add a prayer for future profits as well. The suit for possession was ultimately heard by the Subordinate Judge and dismissed on the 22nd March, 1921, but on appeal the District Court reversed the decree of the Subordinate Judge and gave the plaintiffs a decree for partition and possession of five-sevenths share in the suit properties. This decree was passed on 13 October, 1921. A second appeal against that decree was dismissed by the High Court on 3 October, 1923. In execution of the decree of the District Court the plaintiffs got possession of their share of the properties by May 1922. On the facts above stated there can be no doubt that the plaintiffs are entitled to five-sevenths share in the profits received from these properties for four years, i.e., between 1918 and 1922; and on the allegations in the written statement, it is clear that the profits are received each year some time about March. This suit was instituted only on the 30 March, 1927 and it will be prima facie barred by limitation if Art. 109 applied. The plaintiffs claimed that even under the three years rule of limitation they would be in time if they were allowed a deduction under Section 14 of the Limitation Act, (1) in respect of the period during which the matter was pending in Second Appeal here i.e., between 13 October, 1921 and 3 October,1923 and (2) in respect of the period during which they were prosecuting certain proceedings by way of a claim for restitution. These latter proceedings were pending from early in 1924 till 9 March, 1927 when they were ultimately dismissed by this Court. The learned District Judge has held that the plaintiffs are not entitled to invoke the benefit of Section 14 of the Limitation Act in respect of either of these periods. Before us Mr. Somayya did not contend that Section 14 could be made applicable to the period of the pendency of the Second Appeal, but he maintained that the period during which the restitution proceedings were pending would be covered by Section 14 of the Limitation Act. He relied upon the decision of a Bench of this Court in Venkatragayya Appa Rao V/s. Murala Sriramulu (1912) 17 I.C. 593 as laying down that the word appeal in Section 14 would also include "Revision Petition" and he argued that in the circumstances of the present case there could be no doubt that the plaintiffs had been prosecuting the restitution proceedings diligently and in good faith.

(3.) For the purpose of the application of Section 14 it is not sufficient merely to say that the word "appeal" will include "Revision Proceedings" as well. We must be satisfied that the proceeding was being conducted bona fide and that it failed on the ground of want of jurisdiction or other defect of a like nature. The definition of good faith in the Limitation Act itself, will show that it must be the result of due care and attention. It is difficult to hold that by any reasonable construction of Section 144 of the Code, the present case could have been believed to fall under that Section. Further, in view of the decisions of this Court in Ganapathi Mudaliar V/s. Krishnamachari and Baisnath Lala V/s. Ramadoss (1914) I.L.R. 39 Mad. 62 : 27 M.L.J. 640 it is not possible to say that the proceeding failed by reason of want of jurisdiction or other cause of a like nature. The mere fact that the plaintiffs might have honestly believed that they could get all that they are entitled to by way of proceedings in restitution will not suffice to give them the benefit of Section 14. We must therefore hold that the learned Judge was right in his view that the plaintiffs are not entitled to claim a deduction of either of the above periods.