TaxTMI 
TaxTMI 
1958 (10) TMI 39
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....elf 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 w....
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....7-12-1951 passed by this Court in Miscellaneous Appeal No. 206 of 1948. 8. We propose to consider whether Section 14 (1) of the Limitation Act could be availed of by the appellants in the present case. The section is as follows : "14(1) 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." 9. The learned trial Judge held that even if Section 14 (1) of the Limitation Act he available to the plaintiffs, they could at the most exclude the time from 15-12-1948, on which day the appeal was filed, upto the day on which it was dismissed, namely 7-12-1951. He held that in no case were the plaintiffs entitled to exclude the period from 18-9-1948 to 14-12-1948. He, however, found it as a fact that the plaintiffs prosecuted Miscellaneous Appeal No. 206 of 1948 in good fa....
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....n is with regard to suits or applications. It does not refer to appeals. The explanation ought to be read along with Section 14 (1), which is as follows : "14(1) : 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." (Underlining (here in ' ') ours). What would be the time during which the plaintiff has been prosecuting with due diligence another civil proceeding in a Court of appeal? Certainly the time requisite for obtaining the certified copies under Section 12 of the Limitation Act would be included within the meaning of the section. Also the limitation prescribed for the filing of an appeal would be included, if the appeal be filed on the last day of limitation. But if the appeal be filed earlier, the time from the date of the....
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....al order of the highest appellate Court. We feel that this interpretation of Section 14 is in consonance with the wording of the Section. Therefore, differing from the learned trial Judge, we hold that the appellants were entitled to exclude the period from 18-9-1948 to 15-12-1948. 12. Upon a misconception of the law regarding the two periods mentioned in paragraphs 10 end 11 above, the trial Judge erroneously held that the suit was barred by time. Upon a correct interpretation of Section 14, he ought to have held that the suit to be within time, particularly as he had found that the appeal in this Court was in fact prosecuted in good faith. But before we close, wet must take note of the objections raised by the learned Counsel for the respondents on the question of the applicability of Section 14 of the Limitation Act. 13. The learned Counsel for the raspondents challenged the finding of the trial Court on the point of good faith. The question of good faith is a finding of fact, which an appellate Court would he slow to disturb except for very string reasons. The learned Counsel was unable to point out any decisive factors excent that an order under Order 21, Rule 97 of the Civi....
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....he question whether the period occupied by an infructuous revision could be excluded under Section 14 of the Limitations Act. It was argued in that case that limitation did not start till the date of the final order. That contention was negatived. As regards Sectioin 14, the learned Judge held that the period occupied by the revision could be excluded, if it was found that the same had been filed in good faith. We approve of the view of the learned Judge in the said case. Of course, the bene-fit would not be available to a plaintiff, who prosecutes the infructuous litigation not in good faith, as was the case in the cases earlier referred to in this paragraph. 15. Next the learned Counsel for the respondents urged that Section 14 was not available to the appellants, as the earlier proceedings were not founded on the same cause of action as the present suit. We are unable to accept this contention for the reason that in Miscellaneous Appeal No. 206 of 1948. the relief sought was the setting aside of the order dated 18-9-1948 passed in Miscellaneous Judicial Case No. 29 of 1947, which is the cause of action furnished for the filing of the present suit. It may be that in Miscellane....