An application for execution filed in the wrong court cannot be said to be prosecuted in good faith for the purpose of Section 14 of the Limitation Act.

Chatterji, J.

1. This is an appeal by the judgment-debtors from an appellate order of the learned Additional District Judge of Gaya, dismissing their objection under Section 47 of the Code of Civil Procedure.

2. The decree under execution is a money decree passed by the third Court of Additional Subordinate Judge, Gaya, on the 26th October 1944. On 8th October, 1947, the decree-holder filed an application for execution in the third Court of Subordinate Judge, Gaya. On this application the office submitted a note that the decree was passed not by the third Court of Subordinate Judge, but by the third Additional Court of Subordinate Judge. Against this office note the decree-holders pleader noted on the application-

"The decree was not passed by A. Section J. III. It was passed by Additional Subordinate Judge which Court is not existing. Original Court was Sub-Judge III."

The decree-holders pleader was thereupon asked to produce the certified copy of the decree. When the decree was produced, it became clear that the decree was passed, not by the third Court of Subordinate Judge, but by the third additional Court of Subordinate Judge. Accordingly, on 19th January, 1948, the application for execution was returned for presentation- to the proper Court. On the same day it was filed in the third additional Court of Subordinate Judge. It may be stated here that the suit had been originally filed in the third additional Court of Subordinate Judge and eventually disposed of by the latter Court.

3. The judgment-debtors filed an objection under Sec. 47 of the Code of Civil Procedure on the ground that the decree was barred by limitation. The decree-holder, on the other hand, sought to save limitation by excluding the period from 8th October, 1947, to 19th January, 1948, under Sec.14 of- the Limitation Act.

4. The learned Additional Subordinate Judge, third Court, upheld the judgment-debtors objection and dismissed the application for execution as time-barred.

5. On appeal, the learned Additional District Judge held that the decree-holder was entitled, under Sec.14 of the Limitation Act, to exclude the period from 8th October, 1947 to 19th January, 1948. He accordingly allowed the appeal and directed the execution to proceed.

6. Mr. K.C. Sanyal on behalf of the judgment-debtors contends that the decree-holder is not entitled to the benefit of Sec.14 of the Limitation Act, because the application for execution filed in the third Court of Subordinate Judge was not prosecuted in good faith. Sec.14 (2) of the Limitation Act runs as follows:

"In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding whether in a Court of first instance or in a Court of appeal against the same party for the same relief shall be excluded where such proceeding 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."

"Good faith" is defined in Sec.2 (7) as follows: "Nothing shall be deemed to be done in good faith which is not done with due care and attention."

Mr. Sanyals contention is that when the office pointed out that the decree was passed, not by the third Court of the Subordinate Judge, but by the third additional Court of Subordinate Judge, which Court was then existing, the decree-holders pleader did not take the ordinary care to look at the decree, but tried instead to refute the office report and thus persisted in the mistake committed by him. On behalf of the decree-holder, it is pointed out that the heading in the decree reads "In the Court of Additional Subordinate Judge", which is misleading, because the number of the Court is not stated; and this apparently misled the decree-holders pleader. But the very opening line in the body of the decree shows that the suit came up for final disposal before the Additional Subordinate Judge, third Court. At the foot a