TaxTMI 
TaxTMI 
1998 (7) TMI 683
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.... 1950 against one chhutan for recovery of rent and ejectment from the premises which was decreed and the execution proceeding No. 331 of 1951 ensued. Since the Amin could not deliver the possession of the property due to obstruction by the plaintiff-appellant, the defendant-respondent moved an application under Order 21 Rule 97 CPC before the executing court. The plaintiff-appellant filed objection to the said application claiming himself to be the co-owner and in possession over the property. After hearing the objection, the application of the defendant-respondent was allowed by the executing court on 3.2.1956 and the objections raised by the plaintiff-appellant were rejected. Under such circumstances, although the plaintiff-appellant had a remedy of filing a fresh suit under order 21 Rule 103 CPC, but instead be filed a revision before the High court on 9.2.1956 which was dismissed on 30.10.1957. After the revision petition was rejected, the plaintiff-appellant brought suit No. 390 of 1956 on 26.9.1958 under Order 21 Rule 103 CPC. In the said suit the plaintiff-appellant prayed for a declaration that he is the co-sharer and is entitled to possession on the land in dispute. Since ....
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.... the Limitation Act of 1963. Section 14 of the Act as it stood then is extracted below:- "14. Exclusion of time of proceeding bonafide in Court without jurisdiction -(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. 2............ Explasnation -I. In excluding the time during which a former suit or application was pending the day on which that suit or application was instituted or made, and the day on which the proceedings therein ended, shall both be counted. Explanation - II. For the purposes of this section, a plaintiff or an applicant. resisting an appeal shall be deemed to be prosecuting a proceeding." A perusal of the aforesaid provision would show that in order to get the benefit of sub-section (1) of section 14 of the Act, the party seeking it....
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.... of the property on his own account or on account of some person other than the judgement-debtor, the court shall make an order dismissing the application. 100. (1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the court complaining of such dispossession. (2) The court shall fix a day for investigating the matter and shall summon the party against whom the application as made and answer the same. 103. Any party not being a judgment-debtor against whom an order is made under rule 98, rule 99 or rule 101 may institute a suit to establish the right which he claims to the present possession of the property, but, subject to the result of such suit (if any), the order shall be conclusive." A perusal of the aforesaid provisions would show that the scheme commencing under Rule 97 and onwards before the amendment of the Amendment Act, 1976 was that where a decree holder or the purchaser at the court sale of property was obstructed in obtaining possession of suc....
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....he rights of the parties on facts. Learned counsel for the respondents relied on the decision of Patna High Court reported in AIR 1994 Patna p.225 for the proposition that in the case like the present one, limitation would run from the date of order in the claim case and not from the date of High Court's order discharging the rule, and the plaintiff-appellant would not be entitled in such a case to an extension of time under Section 14(1) of the Act. In the said case the plaintiff filed an appeal before the High Court against the order passed under Rule 98 C.P.C. The High Court while issuing rule cautioned the plaintiff that the appeal is not maintainable, yet he persisted to prosecute the same, whereas in the present case the high Court entertained the revision petition for hearing which gave a reasonable ground to the plaintiff appellant to think that the original order may be set aside in revision. Thus, the decision referred to above has no application to the present case and is distinguishable. Learned counsel appearing for the respondents urged that, assuming the High Court suffered from disability to decide the rights of party on facts, the plaintiff appellant did not ....