( 1 ) BEHU Mal and others had a decree against Roop Chand and Mehar Chand. In execution of this, decree certain property was attached. Murli Dhar filed a claim under Order 21, Rule 58, C. P. C. , against the attachment of that property. His claim was dismissed in default on 15-4-1944.

( 2 ) MURLI Dhar filed an application under Section 151, C. P. C. on 11-5-1944, for the setting aside of the dismissal order. This application was dismissed on 15-9-1945.

( 3 ) MURLI Dhar then filed a regular suit on 2-8-1946. The decree-holders objected to the maintainability of the suit on the ground of limitation, it being urged that in view of Order 21, rule 63, C. P. C. , the suit should have been instituted within a year of the dismissal of the claim under Order 21, Rule 58, C. P. C. This objection was upheld by the trial court and the suit was dismissed. On appeal the appellate Court did not agree with this objection and remanded the suit for further progress. It is against this order that Bchu Mal, one of the decree-holders who had attached the pro-perty in suit in execution, has filed this appeal.

( 4 ) THE sole question for determination in this appeal is whether Murli Dhar, the plaintiff of this suit, can take advantage of the provisions of Section 14 of the Limitation Act and therefore exclude the period between 11-5-1944, and 15-9-1945, spent in prosecuting the application under Section 151, C. P. C. from the period of limitation prescribed for such a suit under Order 21, Rule 63, C. P. C. Section 14 of the Limitation Act has two sub-sections. We are concerned with the interpretation of Sub-section (1) as Sub-section (2) applies in connection with the limitation prescribed for any application and not to limitation prescribed for any suit. Sub-section (1) of Section 14 of the Limitation Act is:

"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. "

This sub-section will apply to a case where three conditions are satisfied about the previous proceeding the period of whose pendency is sought to save limitation. These three conditions are:(i) the previous civil proceeding should be founded upon the same cause of action on which the later suit is founded; (ii) the earlier proceeding should have been prosecuted in good faith; and (iii) that proceeding should be in a court which could not entertain it on account of defect of jurisdiction or other cause of a like nature,

( 5 ) IN view of the opinion I have formed of the effect of the first condition on the present case, I do not consider it necessary to record a finding on the effect of the other two conditions in the present appeal. I assume that Murli Dhar had prosecuted his application under Section 151, C. P. C. , in good faith and that the court could not entertain it on account of some defect of jurisdiction or similar cause. It is, therefore unnecessary to refer to most of the rulings relied on for the respondent on the question of what amounts to good faith and defect of jurisdiction.

( 6 ) I am of opinion that the cause of action for the present suit for a declaration that Murli Dhar is the proprietor of the property in suit and that that property was not liable to attachment in the decree of Behu Mal and others is not identical or even mostly identical with the cause of action for the application under Section 151, C. P. C. and that, therefore, Murh Dhar, the plaintiff of the present suit, cannot get advantage of the provisions of Section 14, Sub-section (1), Limitation act. It has been rightly pointed out for the respondent that cause of action is differe