TaxTMI 
TaxTMI 
1958 (10) TMI 39
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....p; ZULFEKAR ALI KHAN | Mst. ... (wife) = K. B. All Raja Khan = Smt. Hasnoobi &nb....
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.... | | | Himayat Ali Khan | &n....
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....sp; | ______________________________________________________________________________ | | |  ....
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....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 Proce....
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....he plaintiffs prosecuted Miscellaneous Appeal No. 206 of 1948 in good faith. Further the learned Judge held that the plaintiffs did not prosecute the said appeal with due diligence, as they did not deposit the paper book costs due on 17-12-1949 till 23-3-1950. They were not entitled to exclude that time. 10. At the outset, it is necessary for us to state that the view of the learned trial Judge regarding the period from 17-12-1949 to 23-3-1950 is obviously untenable. If once it is assumed that the plaintiffs prosecuted Miscellaneous Appeal no. 206 of 1948 in good faith, though under a misconception of law, we see no reason to deny the appellants benefit of the period from 17-12-1949 to 23-3-1950. It was for this Court in that appeal either to extend time for payment of the paper book costs or to dismiss the appeal under Order 41, Rule 15-A of the Civil Procedure Code. If this Court condoned the delay in deposit of the said costs, it must be held that the appellants were prosecuting the appeal with due diligence. To deprive a party of the benefit of Sec, 14 of the Limitation Act regarding a part of the period on the ground that process fee was paid late or some other thing req....
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..... But if the appeal be filed earlier, the time from the date of the order impugned upto the actual date of filing of the appeal would certainly be the time during which the plaintiff can be said to be prosecuting another civil proceeding in a court of appeal. We are unable to endorse the view of the learned trial Judge on this point. A Division Bench of this Court consisting of Sir Gilbert Stone, C. J. and Niyogi, J., in the case of Kasturchand v. Wazir Begum', ILR (1937) Nag 291: (AIR 1937 Nag 1), held with reference to Article 11 (1) of the Limitation Act as follows : "Then it is said that the plaintiff is out of time owing to the operation of Article 11 (1) of the Limitation Act which, in the case of a suit by a person against whom an order is passed on his objection in execution proceedings, fixes one year. The dates are as follows : the objection order was passed on 5-3-1928. The plaint was presented in one Court on 15-9-1928, of course in time. That wast returned by that Court on 14-12-1928, for presentation to what that Court held to be the proper Court. The plaintiff challenging the correctness of that order appealed on 6-2-1929 and the appeal was dismissed on 2-9....
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....isive factors excent that an order under Order 21, Rule 97 of the Civil Procedure Code was not appealable, but the only remedy was to file a suit contemplated by Order 21, Rule 103 of the Civil Procedure Code. In our opinion, the question of good faith can-not be decided merely on the basis of the fact whe-ther an appeal was tenable or not. The learned trial Judge upon a consideration of all circumstances arrived at the conclusion that the appeal was prosecuted in good faith. The respondents, who were parties to the mortgage suit themselves wised an objection that they should be discharged. Ultimately the suit against them failed. It was thus a debatable matter whether they were parties to the suit and whether the order of the executing Court was covered by Section 47 of the Civil Procedure Code. As the appeal, namely Miscellaneous Appeal No. 206 of 1948 had been admitted for hearing parties, the point was certainly debatable. It was another matter that this Court by the order dated 7-12-1951 held that the appeal was not tenable, as it did not fall within the scope of Section 47 of the Civil Procedure Code. Therefore, we are not inclined to disturb the trial Court's findi....
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....f action furnished for the filing of the present suit. It may be that in Miscellaneous Judicial Case No. 29 of 1947, the cause of action was the obstruction by the respondents in effecting delivery of possession to the decrce-holder-appellants. But that cause of action does not survive, as it is merged in the adverse order passed on 18-9-1948 against the appellants. We are fully satisfied regarding the identity of the cause of action of the earlier appeal and the present suit. Therefore, we are of the opinion that the appellants could not be denied benefit of Section 14 on the ground that the two causes of action were not identical. 16. Lastly the learned Counsel for the respondents urged that Section 14 way not available to the appellants, as the earlier appeal did not fail from the defect of jurisdiction or other cause of a like nature. We are unable to accept this contention as well. The earlier appeal was held to be not tenable, as the order impugned was held not to fall under Section 47 of the Civil Procedure Code. In short, the appeal was held to be untenable. This, in our opinion, was a defect of jurisdiction or a cause of a like nature. We cannot interpret the phra....