SRI VIDHYA VARUTHI THEERTHA SWAMIGAL THROUGH HIS AUTHORISED AGENT, M RAGAVENDRA ROW Vs. VENKATARAMA AIYAR

JUDGEMENT

(1.) The question for decision in this appeal is one of limitation in connection with a petition for execution. The decree holder made an application for execution, No. 1571 of 1909 on the 13th September 1909, the object of the application being to get a transfer of the decree from the Tinnevelly court to the Ambasamudram Munsif s court. The application was dismissed on two grounds by the District Mutisif--firstly that it was not shown that there was no property of the judgment debtor within the local limits of the Tinnevelly court and secondly that the application was barred by limitation. Then on appeal, the Subordinate Judge reversed that order. But the High Court in second appeal restored the order of the District Munsif. This was on the 13th February 1913. The present application was put in on the 14th October 1913 and limitation is said to be saved by deducting the time between the filing of the application on the 13th September 1909 and of the date of the High Court s order, 13th February 1913. The District Judge who has held in favour of the decree-holder applied Section 14 of the Limitation Act to this case. But it seems to us that that section has no application because it could not be said that the application was proceeded with in a court without jurisdiction, that is to say, that the application was in fructuous because it was proceeded with in a Court without jurisdiction or on a similar ground. The Tinnevelly Court had jurisdiction to deal with the application for transfer though it could make the order only if certain facts were proved. It could not be said therefore that the decree holder was pursuing his remedy through a bona fide mistake in the wrong court. Further the relief that is now sought, that is, attachment of properties in the Tinnevelly Court is not the same relief which was asked for in the application of the 13th September 1909 because all that was asked for in it was transfer of the decree for execution to another court.

(2.) Then the learned Vakil for the respondent has asked us to uphold the order of the District Judge on the basis of the ruling reported in Nrityamoni Dasi v. Lakhan Chandra Sen (1916) I.L.R. 43 C. 660 following a ruling in Lakhan Chunder Sen v. Madhusuden Sen (1907) I.L.R 35 C. 209. There, what was apparently held was that since the party against whom limitation was pleaded was in fact litigating the same question in another court, the remedy of the party was suspended during the time, that that litigation occupied. This apparently was the principle, so far as I understand it, upon which that case proceeded. I am unable to hold that it applies to the present proceedings. The one complete answer to the argument of the learned Vakil for the respondent is that the remedy which is now sought could have been asked for if he had only put forward proper facts before the court even while the application of the 13th September 1909 was pending litigation, It was open to him to find out the facts and make an effective application for attachment of the properties. The appeal must be allowed and the execution petition of 14th October 1913 is dismissed with costs here and in the court below. Oldfield, J.

(3.) I agree and only wish to add that I cannot read the decision in Nrityamani Dasi v. Lakhan Chandra Sen (1907) I.L.R. 35. C. 209 as in any way affecting the scope of Section 14 of the Limitation Act; and applying Section 14 of the Limitation Act, there is no doubt that the appellant must succeed.