Ramaswami, J.:— Before formulating the question of law involved in this reference, it is necessary to set out the material facts. The plaintiffs brought the suit under Order XXI, rule 63, for a declaration that the house in dispute was not liable to be attached in execution of a decree. Plaintiffs claimed that on 17th September 1943 they had purchased the house from Abdul Razak, defendant no. 3, by a registered sale deed. Long before that date defendants 1 and 2 had obtained a money decree against Abdul Razak in the Calcutta High Court. In September, 1943, the decree was transferred to the Court of the District Judge, Patna. On 18th November 1943 the house was attached in execution of the decree. The plaintiffs preferred a claim under Order XXI, rule 58, which was rejected by the executing Court on 24th April 1944. On 4th May 1944 the plaintiffs applied to the High Court for revising the order. The application was admitted on 9th May 1944. A rule was issued and on 24th April 1945 Sinha, J. dismissed the petition holding that the executing Court had not committed any error of jurisdiction. On 16th May 1945 the plaintiffs filed the present suit under Order XXI, rule 63. The Subordinate Judge held that the plaintiffs had acquired title to the house by virtue of their purchase. But on the question of limitation he felt bound to follow the authority of Radhakishun v. Srinivas Ram Kumar and to hold that the plaintiffs were not entitled under section 14, Limitation Act, to exclude the period from 4th April 1944 to 24th April 1545 when the civil revision was pending in the High Court. The Subordinate Judge accordingly dismissed the suit as time-barred.
The question for decision is whether the plaintiffs are entitled under section 14(1) of the Limitation Act to the deduction of the time spent in prosecuting civil revision before the High Court against the adverse order passed under Order XXI, rule 63, C.P.C
In Radhakishun v. Firm Sri Niwas Ram Kumar the plaintiffs had made an application under Order XXI, rule 103, before the executing Court. That application was rejected on 26th June 1939. The plaintiffs brought the suit under Order XXI, rule 103, on 16th December 1940, that is more than a year after the order had been passed by the executing court. The plaintiffs argued that they were entitled to the benefit of section 14 for the reason that they had on 13th September 1939 filed an appeal, that High Court issued notice but on 20th September 1940 dismissed the appeal as incompetent. But the Division Bench held that the plaintiffs were not entitled to invoke section 14 of the Limitation Act. In the course of the judgment Fazl Ali, C.J stated: “What has happened is that though in fact no appeal lay, yet the plaintiffs preferred an appeal against an order of the executing Court. The appeal failed because it was found that it was incompetent. Now, can it be said that this Court did not entertain the appeal owing to defect of jurisdiction. In fact the defect was not in the jurisdiction but it was in the procedure followed by the plaintiffs. Again, it seems to me that it cannot be argued that this Court was unable to entertain the appeal owing to a ‘cause of like nature’. The fact that an appeal fails because a litigant is wrongly advised can by no stretch of reasoning be regarded as a ‘cause of like nature’.”
For the appellants learned Counsel argued that they had bona fide filed the civil revision in the High Court, on the pressing advice of their lawyers, that even if the advice be wrong or mistaken, the appellants were entitled to exclude the time taken in the High Court under section 14 of the Limitation Act. In support of his contention learned Counsel referred to Koppolu Venkataswami v. Uttarkar Sara Bai and Chhuttan Lal v. Dwarka Prasad.
It is necessary hence to examine if the case of Radhakishun v. Firm Srinivas Ram Kumar was rightly decided.
The question must be determined on the words of section 14 as a matter of statutory construction. Section 14 enacts:
“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 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.”
In Radhakishun v. Firm Sri Niwas Ram Kumar (to which the facts of the present case are closely analogous) there was no reason to doubt that the plaintiffs had prosecuted the former proceeding with due diligence and in good faith. Order XXI rule 103, no doubt provides that where an order is made under rule 98, 99 or 101, the party, against whom the order is made may institute a suit to establish the right which he claims, but, subject to the result of such suit, if any, the order shall be conclusive. Instead of filing a suit the plaintiffs had appealed against the order of the executing Court. It is manifest that the plaintiffs had acted under mistake of law. But that the mistake is bona fide is supported by the circumstance that the High Court admitted the appeal and issued notice. In the order sheet it is indeed stated that if it is found at the time of hearing that no appeal lies, the application might be treated as an application for revision. On appellant's behalf it was pleaded that they were misled by wrong advice given bona fide by his lawyer. In my opinion, such a plea, if established, would entitle the plaintiffs to claim the benefit of section 14. This view is supported by high authorities. In Braj Inder Singh v. Kashi Ram the party aggrieved had presented an application for review of judgment within the ordinary period limited for appealing. Since review was not the proper remedy for abatement, the proceeding by way of review instead of by appeal was a mistake in law. Lord Dunedin nevertheless held that the judicial discretion given by section 5 of the Limitation Act should be exercised and that the time occupied by an application in good faith for review, although made upon a mistaken view of the law, should be deemed as added to the period allowed for presenting the appeal. Again in Sunderbai v. Collector of Belgaum the Judicial Committee held that the fact that an appellant has acted on mistaken advice as to the law in appealing to the High Court did not preclude him from showing that it was owing to his reliance on that advice that he had not presented the appeal to the court of the District Judge within the period of limitation. In Radhakishun v. Firm Sri Niwas Ram Kumar as also in the present case the admitted facts establish that the plaintiffs had prosecuted the privious proceeding in good faith and with due diligence.
It is next necessary to investigate whether previous proceedings in the High Court were abortive “for defect of jurisdiction or other cause of like nature”. It is obvious that in dismissing the appeal or civil revision, the High Court was not acting from any defect of jurisdiction. But the question is—was the High Court unable to entertain the application from “other cause of like nature” to defect of jurisdiction? Before construing the phrase, it is of importance to bear in mind the essential object of section 14 and the principle which underlies it. The principle is that the bar of limitation should not affect a person honestly doing his best to get his case tried on merits but failing through the Court being unable to give him such a trial. The principle is clearly applicable not only to cases in which a man brings his suit in the wrong Court, that is, a Court having no jurisdiction to entertain it, but also where he brings the suit in the wrong Court in consequence of a bona fide mistake of law or defect, of procedure. It is moreover established by the authorities that given good faith and due diligence, a cause is not prevented from being of a like nature to defect of jurisdiction merely because it was in the plaintiffs' own power to avoid or resulted from his own act or from a bona fide mistake of law or procedure which prevented the Court in limine from entertaining the suit. In Deo Prosad Singh v. Pertab Kairee a Division Bench of the Calcutta High Court held that dismissal of a suit on the ground of misjoinder of cause of action was a cause of like nature to defect of jurisdiction. The learned Judges observed that the test was not whether the cause was one within the plaintiffs' own power to avoid because it was equally in plaintiffs own power to avoid suing in a Court which for defect of jurisdiction was unable to entertain the suit. In the Full Bench case Brij Mohan Das v. Mannu Bibi the plaintiff bona fide believed that having regard to the value of the property his suit was not within the jurisdiction of the Munsif and brought his suit in the court of the Subordinate. Judge of Allahabad. Subsequently the Subordinate Judge held that the suit should have been valued with reference to the amount of the decree sought to be executed and not with reference to the value of the property sought to be sold. He, therefore, returned the plaint to the plaintiff to be presented to the proper court. The Full Bench held that the maxim—Ignoratia legis neminem excusat — was not applicable to the case. They held, that where a plaintiff had prosecuted his suit in a, wrong Court in consequence of a bona fide mistake of law, he was entitled to the benefit of section 14 of the Limitation Act.
In Yepuri Venkamma v. Pabbisetti Parthasarathi a prior suit for a declaration of title was dismissed as not maintainable because if contained no prayer for possession. But the Court held that the time taken in prosecuting the suit could be deducted, under section 14 of the Limitation Act, as the defect was of a like nature with defect of jurisdiction. In Hem Chancier Chowdhry v. Kali Prosunno Bhaduri the facts were that in 1890 a suit was brought against certain talukdars claiming to enhance the rent and to recover rent at an enhanced rate for a particular year. The first prayer was allowed but the second claim was rejected upon the ground that it was premature. Five years thereafter the plaintiff brought a suit to recover, inter alia, rent at the enhanced rate for the same year. The Subordinate Judge held that this claim was barred by res judicata. In appeal, the High Court did not accept this view but held that it was barred by limitation. The Judicial Committee held that there was no bar of limitation. They observed: “In the opinion of their Lordships the proceedings in the earlier suit stayed the operation of the law of limitation; and as the appellant claimed the arrears of 1298 in that suit, but his claim was then disallowed as premature, he is now entitled to the benefit of the decree for enhancement and to recover the arrears at the enhanced, rate”.
In Narasimma v. Muttayan the obligee's interest under a hypothecation bond had vested in six persons, of whom three brought a suit in district court and three brought a similar suit, in a Munsif's court to recover with interest their due shares of the sum secured. The former suit was dismissed as not being tenable and the latter was withdrawn. The present suit was brought by all six persons. The High Court held that in computing the time within which the plaintiffs had to sue the time occupied by them in prosecuting the former suits should be deducted. In Ganpatrao Sultanrao v. Anandrao Jagadeorao the plaintiff had filed a suit against the defendant to recover excess amount levied in execution. The Court dismissed the suit on the ground that the applicant's proper remedy was to apply to the execution court. Thereupon the plaintiff applied to the execution court to obtain refund of the money recovered in excess from him. The learned Judges held that the application for refund was properly made under section 47, Civil Procedure Codes to the executing Court and that the application was not time-barred because the time taken in prosecuting the previous suit should be deducted under section 14 of the Limitation Act. In Keshori Mal v. Jagdish Narayan an application for execution was dismissed on the ground that the prayer for execution of the decree was joint with a prayer which related to relief in another decree and which the Court thought and that it is not competent to grant. In a second application to execute the decree Mullick and Bucknill, JJ. held that the period spent in prosecuting the previous application should be deducted under section 14 of the Limitation Act.
On the facts of the present case I hold that the plaintiffs in prosecuting the civil revision in the High Court committed a bona fide mistake of law or of rule of procedure, which rendered the previous proceeding abortive. Hence, the plaintiffs would he entitled to exclude the time spent in the previous proceedings under section 14 of the Limitation Act.
The question was debated whether the expression “civil proceeding in a court of appeal” includes revision proceedings in the High Court. In my opinion, there is no reason why a revision petition in the High Court should not be regarded as “a civil proceeding in a court of appeal”. The expression “court of appeal” should be taken as being used in the broad sense of any court which has the power to bring under review the decision of an inferior court whatever may be the extent of jurisdiction that the superior court may possess in reviewing the decision of the inferior court. In support of this construction, I would refer to Appa Rao v. Sriramuli in which a plaint was returned for presentation to the proper court and the plaintiff having unsuccessfully appealed against that order moved the High Court in revision under section 622 of Civil Procedure Code (Act XIV of 1882) but the High Court dismissed the revision petition. On these facts a Division Bench held that plaintiff was entitled to deduct the time during which the revision petition in the High Court was pending in computing the period of limitation for the suit. The same opinion has been adopted in Lakshman Das v. Chumi Lal and Chutan Lal v. Dwarka Pd..
There is high authority for the view that section 14 ought to be liberally construed. In Ramdutt Ramkissendas v. F.D Sassoon and Co. the Judicial Committee applied by analogy the provisions of section 14 to cover civil proceedings before arbitrators. Lord Salvesen held that the analogy of the Indian Limitation Act required that an arbitrator should exclude the time spent in prosecuting in good faith the same claim before an arbitrator who was without jurisdiction. With respect to section 14, the observation of Lord Salvesen is important: “It may be assumed that it had been ascertained before these provisions were formulated that there was a serious risk of injustice arising if the period of limitation, which is in many cases shorter than in England, should be too strictly applied. In Indian litigation it is consistent with the experience of their Lordships that the time necessary for the decision in a suit may be of much longer, duration than one is accustomed to in the Courts of Great Britain. Hence, the necessity for some provision to protect a bona fide plaintiff from the consequences of some mistake which had been made by his advisers in prosecuting his claim.”
Finally I may adopt and adapt the words of Lord Macmillan used in another context—that in spite of the rule of stare decisis decisions in progressively construing a statute must often be stepping stones rather than halting places [Birch Bros. Ltd. v. Brown].
… For these reasons I consider with greatest respect that Radhakishun v. Firm Sri Niwas Ram Kumar was not correctly decided.
I hold that in the present suit, the plaintiffs are entitled under section 14 to exclude the whole period from 9th May, 1944, to 24th April, 1945; that consequently the present suit is not barred by limitation.
That is the answer I would give to this reference to the Full Bench.
Meredith, J.:— I agree and have nothing to add.
Manohar Lall, J.:— I have come to the same conclusion; but I desire to add some observations and notice some cases which have not been referred to by my learned Brother.
In the case of Nrisingha Charon Nandy, I reviewed a large number of authorities bearing upon the question whether a High Court can interfere with the jurisdiction of a subordinate court refusing to extend the period of limitation under section 5 of the Indian Limitation Act. Many of the authorities which were referred to in that judgment are also apposite to the consideration of the question before us, namely, the applicability of section 14 of the Indian Limitation Act. In the case of Srimati Nrityamani Dassi, (not cited at the bar), the plaintiffs were defendants in a former suit in which they associated themselves with the plaintiffs of that suit wherein the court was asked to adjudicate upon the rights of the plaintiffs, and the defendants in that suit also claimed an adjudication of their rights. The first court granted a declaration and a decree was pronounced not only in favour of the plaintiffs but also in favour of the defendants of that suit. In appeal, the High Court affirmed the findings as to the title of the parties to the eight houses which were the subject matter of the suit, but set aside the decree which had been pronounced in favour of the defendants holding that no decree could be passed in favour of the defendants, and the defendants were relegated to bring a fresh suit for the relief to which they were clearly found to be entitled. The defendants then brought their suit and were met by the plea of limitation. Their Lordships of the Judicial Committee pointed out that it was unfortunate that the learned Judges of the High Court did not exercise the power which they possessed under the Code of Civil Procedure to transpose these defendants to the category of the plaintiffs and then to maintain the decree pronounced by the trial court in their favour and that if this had been done, the family would have been spared another litigation for 10 years. They also observed that the mistake of procedure was purely technical and could have been set right by a small amendment without the party resorting to a fresh suit. Having made these observations, the question of limitation was dealt with thus at page 101:
“Limitation would no doubt run against them from that time. (That is to say, from the date of the execution of the deed of trust in 1892). But it would equally without doubt remain in suspense whilst the plaintiffs were bona fide litigating for their rights in a Court of Justice. They had in that suit of 1896 before Mr. Justice Henderson associated themselves with the plaintiffs in that action, and had asked for an adjudication in those proceedings of their rights. A distinct issue was framed in respect of their claim to which no objection seems to have been made by the appellant Nrityamoni; * * * * *
It was an effective decree made by a competent Court, and was capable of being enforced until set aside. Admittedly, if the period during which the plaintiffs were litigating for their rights is deducted, their present suit is in time. Their Lordships are of opinion that the plea of limitation was rightly overruled by the High Court.” I refer to this case as it is an important decision where the principle underlying section 14 of the Limitation Act, though not expressly referred to by their Lordships in the judgment, was applied to a situation where the former decree was held to be of no effect not on the ground of want of jurisdiction in the court but on the ground that the procedure adopted by the defendants in not asking to be transposed to the category of the plaintiffs entitled the court to reject their claim. That is to say, the words “other cause of like nature” occurring in section 14 were practically treated as wide enough to cover the case where a litigant is bona fide litigating his rights but has been unsucceseful in obtaining them. Their Judgment must be read along with the weighty observasions of Lord Salvesen in Ramdutt Ramkissendass where the provisions of section 14 of the Limitation Act were applied and the time taken in infructuous arbitration proceedings was allowed to be deducted—the proceeding became infructuous by reason of the Privy Council having held in E.D Sassoon v. Ramdutt Ramkissen Das, that the award pronounced by the arbitrator was illegal. Their Lordships point out that the periods of limitation for suits in India in some cases are short and therefore, having regard to the notorious length of Indian litigations provision is made to protect a former infructuous but bona fide litigation.
In Brij Inder Singh v. Kansi Ram, their Lordships while considering the exercise of judicial discretion given by section 5 of the Limitation Act referred with approval, to some observations of a Full Bench of the Lahore High Court where they agreed with the decision of the Allahabad High Court in the case of Balwant Singh v. Gumani Ram, that the circumstances contemplated in section 14 of the Limitation Act should ordinarily constitute a sufficient cause within the meaning of section 5. Sir George Rankin in the case of Kumar Rajendra Bahadur Singh, also observed that in applying section 5 the analogy of section 14 is an argument of considerable weight.
Nitya Nand v. Lala Karam Chand, is a similar case where it was held by the Privy, Council that under section 14(1) of the Limitation Act, the limitation began to run from the date of the appellate court's decree against the plaintiffs because “the plaintiffs were seeking to enforce the incomplete partition in the partition proceedings and were, therefore, founding themselves upon the same cause of, action as that upon which the present suit founded; that it was only on the 17th of May 1933 that it was held by the Judicial Commissioners that the effect of the incomplete partition was to remove all the properties with which it dealt from the purview of the suit.” This final decision of the Judicial Commissioners was interpreted to mean that “they had no jurisdiction in that suit to deal with any claims under such partition, and as it could not be suggested that in seeking to enforce the partition in the earlier proceedings the appellants were not acting with due diligence or in good faith, the case undoubtedly fell within section 14(1).” This reasoning applies a fortiori to the present case where it was only on the 24th of April 1945 that the High Court held that it did not feel inclined or justified in allowing the application made by the plaintiffs to get the adverse order in the claim case set aside.
Reference may also be made to the case of Hiralal and Lakshman Dada Naik. Finally, attention is drawn to the case of Hem Chunder Chowdhry, where Sir Andrew Scoble in delivering the judgment of the Judicial Committee pointed out at page 181 that the proceedings in the earlier suit stayed the operation of the law of limitation, and as the plaintiff claimed the arrears of 1298 in that suit but his claim was then disallowed as being premature, the plaintiff was held entitled to recover the arrears at the enhanced rate in the latter suit.
On a consideration of the above additional authorities I have no hesitation in agreeing with the view taken by my learned Brother. I cannot imagine that it was the intention of the legislature that a litigant should be deprived of his rights by reason of the applicability of the law of limitation when he is diligently and bona fide proceeding to obtain the redress in the High Court although by means of an application in its revisional jurisdiction—the intention of the legislature is otherwise. It was suggested on behalf of the respondents that the plaintiff knows that the period of limitation for instituting the suit is only one year, and even when these provisions were staring him in the face he chose to spend time in a probably, infructuous proceeding before the High Court, he himself is to blame if the period of limitation for the suit has run out. It was also suggested that in such cases the plaintiff should have instituted a suit in the court of the Subordinate Judge and then asked for stay of that suit pending the decision in the High Court on his revisional application. With respect this argument is wholly unacceptable. In the first place, if the plaintiff files a suit in the subordinate court, then the High Court would be entitled to refuse to interfere on the ground that the other remedy which is open to the plaintiff is being pursued by him—the plaintiff cannot ordinarily be allowed to pursue two remedies at the same time. In the next place, supposing the High Court had decided the application in his favour, then the whole of the costs incurred in the suit would have been wasted. The court of equity delights in shortening litigation and not in lengthening it or in multiplying litigation proceedings.
I am, therefore, of the opinion that the case of Radha Krishna, was not correctly decided.
It was also contended before us that the final order in the claim case must be taken to be the order of the High Court dated the 24th April 1945. I do not agree with this contention. The High Court has not subsituted any order of its own, but has merely declined to exercise jurisdiction in this particular case with the result that the order in the claim case remains the order passed by the original court—the matter, of course, would have been different if the High Court had varied the order of the original court. This, view is not against the decision in Venugopal Mudali v. Venkatasubbiah Chetty, relied on by the appellants, because there the order was passed by the High Court in its appellate jurisdiction in an appeal preferred against the claim case order passed by a Single Judge of the High Court.
It was faintly argued that section 14 of the Limitation Act cannot apply to the proceedings, taken in the High Court in its revisional jurisdiction because the High Court is not sitting as a court of appeal in those civil proceedings. This argument is met by the observations of Sir Dinshah Mullah in the case of Nagendra Nath Dey v. Suresh Chandra Dey. His Lordship observed that at page 287: “There is no difinition of appeal in the Code of Civil Procedure, but their Lordships have no doubt that any application by a party to an Appellate Court, asking it to set aside or revise a decision of a subordinate Court, is an appeal within the ordinary acceptation of the term.”
K.D
Reference answered.