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IN THE HIGH COURT OF MADHYA PRADESH
T.P. Naik and P.K. Tare, JJ.
Mst. Duliyabai and Ors.
Vs.
Vilayatali and Ors.
First Appeal No. 20 of 1954
Decided On: 08.10.1958
LIMITATION ACT - SECTION 14(1) - APPLICABILITY - GOOD FAITH - INTERPRETATION - CIVIL PROCEDURE CODE - ORDER 21, RULE 97 - ORDER 21, RULE 103 - ORDER 41, RULE 15-A - INTERPRETATION.
Fact of the Case:
Plaintiffs filed a suit under Order 21, Rule 103 of the Civil Procedure Code, claiming possession of the mortgaged property after obtaining a final decree for foreclosure. The defendants obstructed the delivery of possession, leading to the filing of an application under Order 21, Rule 97 of the Civil Procedure Code. The application was dismissed, and the plaintiffs filed an appeal, which was also dismissed. The plaintiffs then filed the present suit under Order 21, Rule 103 of the Civil Procedure Code.
Finding of the Court:
The trial court dismissed the suit, holding that it was barred by limitation under Article 11-A of the Limitation Act. The court found that the plaintiffs could not avail the benefit of Section 14(1) of the Limitation Act, which excludes the time spent in prosecuting another civil proceeding, as the appeal filed by them was not tenable and did not fall within the scope of Section 47 of the Civil Procedure Code.
Issues: 1. Whether Section 14(1) of the Limitation Act is applicable to the present case. 2. Whether the plaintiffs prosecuted the earlier appeal in good faith. 3. Whether the cause of action in the earlier appeal and the present suit is the same. 4. Whether the earlier appeal failed due to a defect of jurisdiction or other cause of a like nature.
Ratio Decidendi: 1. Section 14(1) of the Limitation Act is applicable to the present case as the plaintiffs were prosecuting another civil proceeding, namely, an appeal, against the same defendants and founded on the same cause of action. 2. The trial court's finding that the plaintiffs prosecuted the earlier appeal in good faith is upheld. 3. The cause of action in the earlier appeal and the present suit is the same, as both proceedings sought to set aside the order passed in Miscellaneous Judicial Case No. 29 of 1947. 4. The earlier appeal failed due to a defect of jurisdiction or other cause of a like nature, as the order impugned was held not to fall under Section 47 of the Civil Procedure Code.
Final Decision: The appeal is allowed. The judgment and decree of the trial court are set aside, and the case is remanded for a further trial on merits. The court fees paid on the memorandum of appeal are directed to be refunded to the appellants.
P.K. Tare, J.
1. The plaintiffs have filed this appeal against the dismissal of their suit by Shri S. Rafiullah, Additional District Judge, Chhindwara dated 30-12-1953 In Civil Suit No. 9-A of 1952. A separate finding was recorded leading to the judgment and decree which are the subject of this appeal.
2. It is necessary to reproduce the respondents' family tree for a proper appreciation of the facts.
ZULFEKAR ALI KHAN | Mst. ... (wife) = K. B. All Raja Khan = Smt. Hasnoobi | | __________________________________________ | | | | | Umardarajali Khan Tahasin Ali Khan Vilayatalikhan | | | | Himayat Ali Khan | | _______________________ | | | | Atefat Ali Khan Matin Ali Khan | | ____________________________________________________________________________________ | | | | | Mashia Ali Khan Ayadat Ali Khan Ashiq Ali Khan Aftab Ali Khan Mst. Anwar Begum.
The said genealogical tree was admitted by the defendants.
3. Mst. Hasnoobi for self and as guardian of her minor sons Aahiq Ali, Aftab Ali and minor daughter Mst. Anwar Begum and her major sons executed a mortgage by conditional sale dated 7-7-1924 in favour of Dalchand (original plaintiff 1 since deceased), and the other plaintiffs. The suit property was alleged to be belonging to K. B. Ali Raja Khan. He was said to have transferred the property to his younger wife. Mst. Hasnoobi by two deeds dated 2-10-1912 and 31-8-1920 executed in lieu of dower debt. K. B. Ali Raja Khan died some time in the year 1922.
3-A. The plaintiffs filed Civil Suit No. 53 of 1929 in the Court of the Civil Judge First Class, Chhindwara claiming foreclosure on the strength of the mortgage deed dated 7-7-1924. The present defendants were impleaded as defendants. They claimed that they were not necessary parties. Accordingly Shri G. S. Dubey, the trial Judge by judgment and decree dated 28-4-1930 decreed the plaintiff's claim against the other defendants in that suit, holding that the present defendants were not necessary parties. The defendants, against whom a decree had been passed, filed First Appeal No. 139 of 1930 in the Court of the Judicial Commissioner, Nagpur. The appeal was remanded for determination of the shares of the minors Ashiq Ali, Aftab Ali and Mst. Anwar Begum, as also the exclusive share of Mst. Hasnoobi. The trial Judge, Shri Shrouti, released the shares of the minors and a decree was passed against the rest of the property. Against the judgment after remand the plaintiffs filed First Appeal No. 138 of 1934 in the Court of the Judicial Commissioner, Nagpur. In the appeal, by judgment dated 26-7-1937, it was held that Smt. Hasnoobi was the exclusive owner of the property and the minors had no shares therein.
4. Subsequently a final decree for foreclosure was passed in the year 1943 by the trial Court. Mst. Hasnoobi filed First Appeal No. 124 of 1944 in the Nagpur High Court, which was ultimately dismissed on 22-11-1951. During the pendency of the said appeal Smt. Hasnoobi did not obtain any stay order. Therefore, the plaintiffs started execu-tion of the final decree for foreclosure. The present defendants obstructed the delivery of possession of the suit property to the plaintiffs. Thereupon the plaintiffs filed an application under Order 21, Rule 97 of the Civil Procedure Code. It was registered as Miscellaneous Judicial Case No. 29 of 1947. By order dated 18-9-1948, it was dismissed. The plaintiffs filed Miscellaneous Appeal No. 206 of 1948 against the same, in this Court, presumably on the assumption that the order 18-9-1948 was one under Section 47 of the Civil Procedure Code. The appeal was dismissed on 7-12-1951. Therefore, the plaintiffs filed the present suit, namely Civil Suit No. 9-A of 1952. on 8-12-19-52 under Order 21. Rule 103 of the Civil Procedure Code.
5. The respondents raised various pleas in their defence in the trial Court. But the one plea, which we are concerned with, in the present appeal, related to the question of limitation on the ground that the suit was bar
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