DAL SINGAR KOERI Vs. CHANDI SINGH

JUDGEMENT

(1.) This is a plaintiff's application in revision under Section 25, Small Cause Courts Act, against a decree passed by the learned Munsif of Azamgarh in the exercise of Small Cause Court jurisdiction dismissing a suit on the ground that it was barred by limitation. The relevant facts of the case may briefly be stated as follows: The applicant Dalsinger Koeri and Kharpattu Koeri who appears as opposite party No. 2 in the present case held a simple mortgage from the opposite party No. 1, Chandi Singh, for Rs. 55. The mortgage deed was executed on 30th January 1932 but was not registered. The omission to register the deed was presumably due to a mistaken belief that the value of the mortgage being less than Rs. 100 no registration was necessary. On 29 January 1938 the applicant and Kharpattu Koeri instituted a suit on the basis of that mortgage in the Court of the learned Munsif at Azamgarh on the regular side.

(2.) There is no contest that the suit was within time on that date inasmuch as the mortgage deed provided for a period of three years for repayment of the loan. The relief claimed in the suit was the usual one that a decree for the principal and interest due under the mortgage deed may be passed in favour of the plaintiffs and in case of the defendant failing to discharge that amount the property mentioned in the mortgage deed may be sold. It is quite obvious that this relief consisted of two distinct portions (1) that a decree should be passed for the whole amount due under the mortgage on account of principal and interest and (2) that the property which was the subject of the charge under the deed should be sold to satisfy that amount in case the defendant failed to discharge it. It is admitted that there was a clear personal covenant in the deed of mortgage upon which the suit had been brought and the plaintiffs were therefore clearly entitled to a personal decree against the defendant on the basis of the loan. In the written statement filed by the defendant he raised the plea that the deed in suit not being registered could not operate as a mortgage deed. This plea was obviously sound and the plaintiffs consequently got the plaint amended by scoring out the relief to sell the property covered by the mortgage. It was then found that the valuation of the suit being within the cognizance of the Court of Small Causes the learned Munsif had no jurisdiction to entertain the suit on the regular side. He accordingly directed the plaint to be returned for presentation to the proper Court. This order was passed on 19 March 1938 and the plaint was actually returned to the plaintiffs on 24th March 1938. On the same date the plaint was presented in the same Court on the Small Cause Court side. "When the suit proceeded to trial the defendant raised the plea, amongst others, that the suit was barred by limitation. The learned Munsif has allowed this plea to prevail and has consequently dismissed the suit though he has rejected all the other pleas taken by the defence. Hence the present application in revision. The substance of the argument on behalf of the applicant is that the learned Munsif has erred in law in holding that the plaintiffs were not entitled to the benefit of Section 14, Limitation Act. The learned Munsif arrived at that conclusion for reasons which may best be set out in his own words as follows: I do not think that Section 14 has application to the facts of this case. It is only when the previous Court is unable to entertain the suit for want of jurisdiction or some cause of a like nature and when the cause of action in both Courts is the same that Section 14 comes into play. Here neither of the two essentials exist. Cause of a like nature should be one ejusdem generis with want of jurisdiction. A defect in the title deed would not be covered by the expression. Similarly, a cause of action to enforce security is different from one on a personal covenant. Suit is therefore dismissed as time-barred.

(3.) All that is necessary therefore is to examine the position taken by the learned Munsif and to see if that is right. Now Section 14, Limitation Act, runs as follows: In computing the period of limitation prescribed for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding 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.