SRI RAJAH TYADA PUSAPATI SIMHADRIRAJU DAKSHINAKAVATA DUGARAJULUM GARU Vs. UNLIMITED ARYAN BANK OF VIZAGAPATAM REPRESENTED BY THE OFFICIAL LIQUIDATOR, MRRYNISHTALA BHAGHAVANNULU PANTULU

JUDGEMENT

(1.) This is an appeal against the decree in a mortgage suit filed in the Court of the Agency District Judge of Vizagapatam and the only point pressed before us is one of limitation.

(2.) This suit became necessary by reason of the rule laid down by the Privy Council in Ramabhadra Raju Bahadur V/s. Maharaja of Jeypore (1919) 37 M.L.J. 11 : L.R. 46 I.A. 151 : I.L.R. 42 Mad. 813 (P.C.) that where a mortgage comprises property situate within the jurisdiction of the ordinary civil Courts in British India and also property situate in the Agency Tracts which are subject to the special jurisdiction of the Agent under Madras Act XXIV of 1839, the ordinary Civil Courts have no jurisdiction to take cognisance of the suit so far as it relates to the property situate within the Agency tracts. In the present case the two mortgages executed in November, 1895 and May, 1897, respectively, comprised properties partly situate in the Vizagapatam District proper and partly in the Vizagapatam Agency. The date fixed for payment was the 29 November, 1901; and within six years of that date, an action was commenced in the Subordinate Judge's Court of Vizagapatam for relief in respect of both sets of properties. A decree nisi followed in due course and also a final decree. Between February, 1911 and July, 1918, several applications for the execution of the decree were presented to and entertained by the Subordinate Judge of Vizagapatam but these attempts at realisation of the decree proved infructuous either for want of bidders or for other reasons not attributable to the default of the decree-holder. In July, 1918, the Subordinate Judge of Vizagapatam passed an order proclaiming for sale the properties situate within his jurisdiction and proposing to transfer the matter to the Agent so far as the properties within the jurisdiction of the Agent had to be sold. On the next application, however, which was made after the judgment of the Privy Council in Ramabhadra Raju Bahadur V/s. Maharajah of Jeypore (1919) 37 M.L.J. 11 : L.R. 46 I.A. 151 : I.L.R. 42 Mad. 813 (P.C.), had been reported, he held that this part of the decree was futile and there was accordingly nothing to transfer to the Agent. It appears from the record that the properties situate in the regular jurisdiction were actually sold only some time in January, 1923; and as the amount then realised fell far short of the amount due on foot of the mortgage decrees, this suit was instituted in the Agency Court in October, 1923.

(3.) On the facts above stated, the question arises whether the plaintiffs are by reason of Section 14 of the Limitation Act entitled to deduct the period during which the decree obtained by them in the Subordinate Judge's Court of Vizagapatam was sought to be executed and if so on what basis the period of such deduction is to be calculated. No question has been raised as to their right to deduct the period between the institution of the suit and the date of the decree. The learned Agency District Judge has held that the plaintiffs are entitled to deduction of the whole period from 17 August, 1907 (the date when the first suit was instituted) to January, 1920, when he thought the plaintiffs must be deemed to have become aware of the pronouncement of their Lordships of the Judicial Committee. It has not been contended before us that if during this period the plaintiffs could be held to have "been prosecuting another civil proceeding" within the meaning of Section 14 of the Limitation Act, they are nevertheless disentitled to the benefit of that section by reason of any lack of bona fides or due diligence on their part. It has been argued only as a point of law, first, that proceedings in execution of the decree in one suit are not within the contemplation of Section 14 when calculating the period of limitation for the institution of another suit and, secondly, that if the period occupied by the proceedings in execution could be deducted at all, it must be calculated only with reference to the time during which each execution application presented by the plaintiffs was pending and not by taking into account the interval between the dismissal of one execution application and the presentation of another. The answer to both these arguments seems to us to depend upon the true interpretation of the expression "prosecuting another civil proceeding".