Agarwala, C.J:— This is an appeal under the Letters Patent by the judgment-debtor against the decision of Imam, J. upholding a decision of the Subordinate Judge reversing that of the Munsif. The material facts are as follows: The appellant executed a zarpeshgi in respect of 19 bighas of land to secure a loan of Rs. 551. By a contemporaneous transaction the mortgaged land was settled with the mortgagors at a rent of Rs. 99 a year. The rent having fallen into arrears a suit for recovery of the arrears for the years 1339 to 1342 Fasli was instituted in 1935. It was compromised on the 12th of March, 1936. The terms of the compromise were that the suit was to be decreed in full unless the defendant paid Rs. 415 within a certain date. This condition was not complied with, with the result that the decree-holder applied for execution on the 21st of May, 1938. The sale in execution of the decree was held on the 19th of April, 1939, and was confirmed in June. The present application to set aside the execution sale was made on the 23rd of May, 1944, and is prima facie time-barred. The appellant, however, seeks to exclude the whole of the period from the 5th of September, 1938, to the 24th of April, 1944, for the following reasons: On the 5th of May, 1938, he instituted a suit for redemption of the mortgage, alleging that nothing was due under it by reason of the fact that the mortgagees had wrongfully cut timber from the mortgaged land amounting in value to more than the mortgage debt. This suit was eventually dismissed by this Court in second appeal on the 8th of April, 1943, on the ground that the remedy of the appellant was not by way of a suit for redemption, but by way of an application to set aside the execution sale. On the 19th of July, 1943, an application was made for leave to appeal under the Letters Patent from the decision of this Court. This was converted into, an application for review on the 11th of August, 1943, and was eventually dismissed on the 24th of April, 1944.
There are two clear reasons why the appellant is not entitled to exclude the period which he seeks to exclude in computing the period of limitation for the application to set aside the execution sale. In the first place the suit for redemption was dismissed, not, because the Court had no jurisdiction to entertain it, or for any other cause of a like nature, but because the appellant had misconceived the remedy that was open to him. It is contended, however, that even when the plaintiff fails in a suit by reason of his own misconception of the remedy open to him, he is entitled to exclude the period spent in prosecution of litigation under section 14 of the Limitation Act by reason of the language of that section which provides for exclusion of time where the plaintiff is engaged in prosecuting a proceeding in good faith in a Court which, from defective jurisdiction, or other cause of a like nature, is unable to entertain it. The contention is that the words “other cause of a like nature” are sufficiently wide to include instances in which the failure of the plaintiff's suit is due to the fact that the remedy he sought is misconceived. For that proposition reliance is placed on a decision of the Full Bench of the Allahabad High Court in Mathura Singh v. Bhawani Singh. It was there held that to entitle a litigant to the benefit of section 14 of the Limitation Act it is not necessary that the cause which prevented the Court from entertaining the suit should be a cause which was independent of and beyond the control of the plaintiff. That decision was dissented from by a Division Bench of the Madras High Court in Ganapathi Mudaliar v. Krishnamachari, where the facts were more similar to those of the case before us. It was there held that, where a person misconceives his remedy, and, instead of proceeding by an application to set aside an execution sale, brings a suit which is eventually dismissed, the time taken in prosecuting the suit and an appeal therefrom cannot be deducted under section 14 in computing the period of limitation for an application to set aside a sale. The same view was taken by the Bombay High Court in Hari Janardhan Limaye v. Krishnaji Balkrishnu Bhate.
The second reason why exclusion of the time claimed in this case cannot be allowed is that it cannot be said that the plaintiff was pursuing the previous litigation with due diligence after his appeal had been dismissed by this Court and it had been pointed out to him that the proper remedy was by way of an application to set aside the sale, inasmuch as even after that the appellant persisted in attempting to obtain a review of that decision instead of adopting the course that was pointed out to him. In Radhakishun v. Firm Sri Niwas Ram Kumar it was held that where a party persists in preferring an appeal which does not lie he is not entitled, in a subsequent litigation, to the benefit of the period occupied in the prosecution of the appeal. It was pointed out that in such a case the appeal fails not because of any defect in the jurisdiction of the Court to entertain it, but that the failure of the appellant is due to his own fault in choosing a remedy not open to him.
On both these grounds the present appeal must fail and be dismissed with costs.
Meredith, J.:— I agree with, what has been said by His Lordship the Chief Justice, and I am further in agreement with Imam, J. that the two proceedings were not brought in respect of the same relief.
S.H
Appeal dismissed.