MULLAPUDI SATYA NARAYANA BRAHMAM Vs. MAGANTI SEETHAYYA

JUDGEMENT

(1.) In the former suit there was no prayer for an injunction nor did the Court give an injunction. Therefore there was nothing in the decree of the District Munsif, the obedience to which involved a restraint on the present plaintiff preventing him from filing the suit earlier. In this respect this case resembles the decision in Sethu Rao V/s. Seethalakshmi Ammal (1914) 21 LW 716. It is unnecessary to repeat the reasons given in that case to which one of us was a party. It is true that the decision in The Secretary, of State V/s. Ranganayakamma (1920) 12 LW 334. has since been reversed by the Judicial Committee on the intimation of the parties "that the Secretary of State for India in Council has now decided not to contest the appeal.", Their Lordships allowed the appeal "without making any pronouncement on the merits of the judgment of the High Court." The Secretary of State was unwilling to retain tax wrongly collected by relying on the plea of limitation. The Subordinate Judge relies on Nrityamoni Dassi V/s. Lakhan Chandra Sen (1916) ILR 43 C 660 : 30 MJ 529 (PC). Though the High Court has stated that Section 14 of the Act did not apply and though the Privy Council agreed "generally" with the High Court for holding that there was no limitation, that case was meant to be decided under Section 14. After the decree of Henderson, J., in the first suit and until its reversal, the descendants of Money Madub Sen must be taken to have been bona fide prosecuting a claim for partition in the first suit. They got a decree for partition and they attempted to support the decree in appeal and could not have then filed a suit of their own during the pendency of the appeal.

(2.) But whatever view may be taken of the decision in Nrityamoni Dassi V/s. Lakhan Chandra Sen, two points are now clear (1914) 21 LW 716. no such principle of a dependent judgment as was once laid down in Jogesh Chunder Dutt V/s. Kali Churn Dutt now exists see Naganna v. Venkatappayya (1920) 12 L W 334 no equitable grounds for suspension of a cause of action can be added to the provisions of the Limitation Act. We agree with the explanation of Mussamat Ranee Sumo Moyee V/s. Shooshee Mokhee Burmonia, given by Walmsley and Mukerjee, JJ., in Jamini Mohan Sarkar V/s. Nagendra Nath Pal and generally with the view taken by Mukerji, J., of various decisions, particularly of Bassu Kuar V/s. Dhum Singh, which has been relied on before us. The decision in Huro Pershad Roy V/s. Gopal Das Dutt and Muthuveerappa Chetti V/s. Adaikappa Chetti belong to the same group as Mussamat Ranee Sumo Moyee v. Shooshee Mokhee Burmonia. The case in Kunhi Kutti Ali V/s. Kunhatmmad is like Nrityamoni Dassi V/s. Lakhan Chandra Sen. The facts of Najaf Shah V/s. Rangu Ram are obscure but that case cannot help the plaintiff.

(3.) There is nothing in the present case to prevent the filing of the suit on 5 September, 1921. It may be that the District, Munsif would have dismissed the suit following his finding in the earlier case on the question of consideration and undue mfluence. But, on appeal, it would have been reversed along with the other appeal and plaintiff would have got his decree. So long as there was no legal impediment to the filing of the suit earlier, no time can be excluded. The third column of Art. 73 operates.