LAL BIHAR LALL Vs. BANI MADHAVA KHATI AND

JUDGEMENT

(1.) Before formulating the question of law involved in this reference, it is necessary to set out the material facts. The plaintiffs brought the suit under Order 21, Rule 63, for a declaration that the house in dispute was not liable to be attached in execution of a decree. Plaintiffs claimed that on 17 September 1943, they had purchased the house from Abdul Razak, defendant 8, by a registered sale deed, Long before that date defendants 1 and 2, had obtained a money decree against Abdul Razak in the Calcutta High Court. In September 19-13, the decree was transferred to the Court of the District Judge, Patna. On 18 November 1943, the house was attached in execution of the decree. The plaintiffs preferred a claim under Order 21 Rule 58, which was rejected by the executing Court on 24 April 1944. On 4 May 1944, the plaintiffs applied to the High Court for revising the order. The application was admitted on 9 May 1944, A rule was issued and on 24 April 1945, Sinha J. dismissed the petition holding that the executing Court had not committed any error of jurisdiction, On 16 May 1945, the plaintiffs filed the present suit under Order 21, Rule 63. The Subordinate Judge held that the plaintiffs had acquired title to the house by virtue of their purchase. But on the question of limitation, he felt bound to follow the authority of Radhakishun v. Srinivas Ram Kumar A.I.R. 1944 Pat. 225, and to hold that the plaintiffs were not entitled under Section 14, Limitation Act, to exclude the period from 4 May 1944 to 24 April 1945 when the civil revision was pending in the High Court. The Subordinate Judge accordingly dismissed the suit as time barred.

(2.) The question for decision is whether the plaintiffs are entitled under Section 14(1), Limitation Act to the deduction of the time spent in prosecuting civil revision before the High Court against the adverse order passed under Order 21, Rule 63(61?), Civil P.C.

(3.) In Radhakishun V/s. Firm Srinivas Ram Kumar A.I.R. 1944 Pat. 225 the plaintiffs had made an application under Order 21, Rule 103, before the executing Court. That application was rejected on 26 June 1939. The plaintiff brought the suit under Order 21, Rule 103, on 16 December 1940, that is, more than a year after the order had been passed by the executing Court. The plaintiffs argued that they were entitled to the benefit of Section 14 for the reason that they had on 18th September 1939 filed an appeal, that High Court issued notice but on 20th September 1940, dismissed the appeal as incompetent. But the Division Bench held that the plaintiffs were not entitled to invoke Section 14, Limitation Act. In the course of the judgment Fazl Ali C.J. stated: What has happened is that though in fact no appeal lay, yet the plaintiffs preferred an appeal against an order of the executing Court. The appeal failed because it was found that it was incompetent. Now, can it be said that this Court did not entertain the appeal owing to defect of jurisdiction?. In fact the defect was not in the jurisdiction but it was in the procedure followed by the plaintiffs. Again, it seems to me that it cannot be argued that this Court was unable to entertain the appeal owing to a ?cause of like nature . The fact that an appeal fails because a litigant is wrongly advised can by no stretch of reasoning be regarded as a cause of a like nature .