AKKAL NAICKER Vs. KUMARASAMI REDDIAR

JUDGEMENT

(1.) This is an application to revise the order of the District Munsiff of Sattur in E.A. No. 42 of 1945 in S.C. No. 311 of 1938. The learned District Munsiff dismissed the application on the ground that the petitioner is not entitled to invoke the aid of Section 14 of the Limitation Act, and, if it is so, the petition is barred by limitation.

(2.) Shortly stated, the facts are these. The learned District Munsiff, sitting as a Small Cause Judge passed the decree against the respondent for a sum of money on 19 January, 1939, in favour of the petitioner who was decree-holder plaintiff. The petitioner filed successive execution petitions on the Original Side of the same Court. The first of them on 1st September, 1941, being E.P. No. 341 of 1941. This was dismissed for default of prosecution on 25 September, 1941. Thereupon another application E.P. No. 292 of 1942, was filed in the same Original Side of the District Munsiff's Court on 15 July, 1942. This application again was dismissed on 19 February, 1943. A third application, E.P. No. 230 of 1943, was then filed on 17 July, 1943, and after various interlocutory and other orders, this application was pending on 3 September, 1945 when, the petitioner realising that he had made a mistake in invoking the aid of the Original Side of the District Munsiff's Court for executing the decree filed the present application out of which the civil revision petition has arisen.

(3.) According to the learned District Munsiff, the petitioner is not entitled to invoke the aid of Section 14 of the Limitation Act; and for that purpose he relied upon a decision of this Court in Satyanarayana V/s. Kajireddi , and another of the Patna High Court reported in Bishundeo Narain Missir V/s. Raghunath Prasad Missir (1939) I.L.R. 19 Pat. 354. Mr. Natesan, appearing for Mr. V. Ramaswami Aiyar for the petitioner, invites my attention to the observations contained in Rustomji's Limitation Act, Vol. I, page 254 as also to the decision of this Court in Ramier v. Muthukrishna Iyer , where Ramesam, J., at pages 816-817 states that in matters like this Section 14 of the Limitation Act is applicable. A decision of the Bombay High Court in Pandu v. Jamnadas , on which the author Rustomji based his observation was also cited before me. In view of these authorities, it seems to me that the learned District Munsiff was wrong in holding that the petitioner was not entitled to invoke the aid of Section 14 of the Limitation Act and thereby deduct the period during which the three execution petitions were pending before the Original Side of the District Munsiff's Court, because he was bona fide prosecuting petitions for the same relief which the Court in which they were prosecuted could not give on account of want of jurisdiction. So on that point the learned District Munsiff who decided the case, is wrong. But there is another hurdle which the petitioner has to surmount before he is entitled to succeed, and that is, that since the decree was passed on 19 January, 1939, and the present application was filed only on 3 September, 1945, the period that elapsed is six years, seven months and 15 days. Out of this period the pendency of the three aforesaid applications in the District Munsiff's Court which became infructuous was only two years, nine months and odd. Therefore, the petitioner has to account for a period of three years, ten month's and odd and being more than three years as provided under Art. 182, Clause (5) of the First Schedule of the Limitation Act, the present application is barred by limitation.