CHINTAMAN Vs. KISAN

JUDGEMENT

(1.) 1. The admitted facts of the case out of which this second appeal arises are these: On 9th August 1924 an order Under Order 21, Rule 97, Civil P.C. was passed against the plaintiff-appellant in certain execution proceedings. He accordingly filed a suit Under Order 21, Rule 103 ibid on 23rd October 1924 in the Court of the 1st Class Subordinate Judge No. 2, Akola, but that Court on 16th March 1925 returned the plaint for presentation to the proper Court holding that it had no jurisdiction in the matter. The plaintiff then on 28th April 1925, presented the returned plaint in the Court of the 2nd Class Subordinate Judge No. 3, Akola, but the suit was dismissed by that Court on 13th August 1925 Under Order 9,Rule 2, Civil P.C. for plaintiff's failure to pay process fees.

(2.) BEFORE the presentation of the plaint in the Court of the 2nd Class Subordinate Judge, the plaintiff had, on 11th March 1926, filed an appeal in the Court of the District Judge against the order of the First Class Subordinate Judge returning the plaint, but the appeal was dismissed on merits on 29th July 1926, On 11th September 1925 the plaintiff started proceedings to have the dismissed suit restored to file, but they failed, the order of dismissal of the plaintiff's application for restoration being passed on 16th February 1926.

(3.) IT would be convenient to reproduce Section 14(1), Lim. Act, as the decision of the case depends upon a correct interpretation of its terms and their proper application to the facts of the present case: In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceedings, 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 jurisdiction, or other cause of a like nature, is unable to entertain it.