1. I have had the benefit of fall and exhaustive arguments on the questions involved in this case. One is whether the case comes under Section 14 of the Limitation Act, and the second is whether under Article 11 of the Act, the starting point is the date of the first order or the final order passed on a revision to the High Court. The facts that are material for the decision of these questions are not in dispute. The plaintiff-appellant obtained a money decree against defendant 2 in O.S No. 98 of 1925 on the file of the District Munsif's Court, Gooty, and in execution of the said decree attached a house as belonging to his judgment-debtor. Defendant 1, who is respondent 1 in this Court, intervened with a claim petition which was allowed on 21st January 1938. On 22nd March, 1938 the plaintiff who was the attaching decree-holder filed a revision petition before the High Court which was admitted and it was ultimately dismissed on 28th November, 1940. The dismissal of the revision petition by the High Court was on the ground that the petitioner who is the appellant, herein had a remedy by way of a suit under O. 21, R. 63 of the CPC, and that he ought to have availed himself of that remedy. The appellant filed the suit out of which the present appeal arises to establish the right which he claims to the suit property, that being that he is entitled to attach it as the property of his judgment-debtor. The suit was dismissed by both the lower Courts on the ground that the appellant had not brought himself within the provisions of Section 14 of the Limitation Act. The suit was admittedly filed one year after the date of the claim order and if the time taken by the civil revision petition is excluded, the suit would be well within time. The revision petition was filed on 23rd March, 1938 and was disposed of on 28th November, 1940. If therefore, the period between 23rd March, 1938 and 28th November, 1940 is excluded, the suit would be in time. If again, the starting point under Article 11 was the date of the final order in the claim proceedings and if the final order is held to be that passed by the High Court on the revision petition, then the starting point would be 28th November, 1940 and then again the suit would be in time. The first question for decision is whether the lower Courts are right in holding that the suit was not saved by the provisions of Section 14(1) of the Limitation Act. That section runs thus:
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. There are several questions calling for decision before the provisions of S. 14(1) are held to be applicable. The first question dealt with by the lower Courts is whether the plaintiff can be said to bare acted in good faith when the filed the revision petition in the. High Court instead of filing a suit under O. 21. R. 63. The trial Court after laying down that the burden of proving good faith is upon the person who claims exemption under S. 14 says this:
In the present case except the bare statement of the plaintiff there is nothing to show that he was acting as such on advice of his counsel. The plaintiff is a Vysia trader and it cannot be said that he is an illiterate person. He should have examined the advocate to prove beyond doubt that he had advised to prefer the revision petition only instead of a suit as is prescribed under law. When the plain provisions under O. 21, R. 63 are staring in the face, it is nothing short of negligence to incur the risk of losing the remedy expressly provided under law, and such a procedure cannot be regarded as prosecuting his cause in good faith with due care and attention. As it is not satisfactorily proved in this case that in filing the revision against the claim order the plaintiff was acting on advice in good faith, he is not entitled to the benefit of Section 14 of the Limitation Act.
3. The appellate Judge began by saying that the District Munsif had held perfectly correctly that the appellant was not entitled to rely on Section 14 of the Limitation Act. Then he went on to consider the various authorities cited before him. It is clear that he did not regard the appellant as having proceeded in good faith. Reliance was placed by the lower appellate Court upon the decision of the Rangoon High Court in 7 Rang. 4661. The appellate Judge extracts a quotation from another judgment of the Rangoon High Court in 27 I.C 8292, where it was said:
With such plain provisions staring him in the face it was sheer culpable negligence on the part of the advocate who was then acting for the plaintiff to incur the risk of the plaintiff losing all remedy by filing the appeal and the application for revision.
4. The appellate Judge considered that this was on all fours with the present appeal. I respectfully dissent from the observations of the learned Chief Justice where he said that it was sheer culpable negligence on the part of the advocate to have filed a revision petition instead of filing a suit. I cannot but express my surprise that the District Judge should have relied upon a decision of another High Court instead of following—as it is his duty to do—the decision of this Court in 1937 M.W.N 4653. I can only hope that perhaps the above decision was not brought to the notice of the District Judge. As pointed out by Varadachariar J., in the above decision, there has been a marked divergence between the Madras High Court and the other High Courts in accepting revisions against orders passed under O. 21, R. 63 of the CPC, or Section 73 of the CPC, or against interlocutory orders passed in pending suits.
5. Right from 4 Mad. 3834 this Court has been entertaining revisions under Section 115 of the CPC, and has been interfering in revisions in order to cut short litigation or to avoid multiplicity of litigations. The judgment of Varadachariar and Mockett JJ. deals very exhaustively with all the aspects which have a bearing on this question and there is very little for me to add by way of reasoning. An order was passed under Section 73 of the CPC, and the unsuccessful party filed a revision petition which was pending for a long period. It was ultimately dismissed and a suit was filed later on. The question was whether the time occupied in revision proceedings in the High Court was to be deducted under S. 14(1), Limitation Act. Under S. 73(2) of the Code, a remedy by way of suit is provided to an unsuccessful party to have it declared that the order under S. 73(1) was not correct. The provision under O. 21, R. 63 that the unsuccessful party may establish his right which he claims to the property within a year from the date of the order is analogous to S. 73, cl. (2) of the Code. No doubt there is the further expression “subject to the result of such suit, the order shall be conclusive.” But so far as the point under consideration is concerned, the result is the same. There is no difference in principle. A right of suit was expressly provided under S. 73(2). In the case before Varadachariar and Mockett JJ., the unsuccessful party filed a revision petition in the High Court. It was admitted and after a pendency of seven years or so, it was dismissed. Then the suit was filed. All the questions argued in the present appeal were very elaborately discussed by the learned Judges and they held that S. 14 applied. They also held that where the revision petition was dismissed on the ground that the Court would not interfere having regard to the fact that there was another remedy provided, it was a case where the plaintiff was unable to get the relief either owing to defect or want of jurisdiction or other cause of a like nature. This being the course of decisions so far as this Court is concerned, I cannot, as said before, help very strongly dissenting from the observations of the Chief Justice of Burma in 27 I.C 829.
6. When the Judges of this Court have been interfering in revision with orders passed under O. 21, R. 63, it would amount to stultifying itself if this Court held that the pleader who happened to advise his client to prefer a revision petition acted with negligence in so doing. At any rate, when a revision petition was admitted by a Judge of this Court, it means that it is a fit one for further consideration by this Court and it is sheer perversity of the lower appellate Courts to say that nevertheless the plaintiff should be regarded not to have acted in good faith. When the District Munsif says that the advocate who filed the revision was not examined to show that he gave the advice that a revision may be filed he forgets that practitioners cannot be expected to say years after the event has happened, whether he advised filing either a particular revision petition or whether the client insisted upon its being filed. One must take it that when the advocate did file the revision petition which was admitted by a Judge of this Court there was something in the revision petition. It is surprising that the District Munsif should have said that as the advocate has not gone into the witness box, the plaintiff failed to discharge the onus that lay upon him of proving that he acted on advice. It is enough for me to say that the trial Court acted illegally in holding that the plaintiff did not act in good faith. The appellate Judge, except endorsing what the Chief Judge of Upper Burma said, has not given any independent reasoning. I hold that the plaintiff acted in good faith in filing the revision petition, instead of straightway filing a suit.
7. The next argument of Mr. Vinayaka Rao for the respondents is that in this case under S. 14(1) the time occupied by the revision proceedings cannot be deducted on the ground that the section speaks of only proceedings pending in the Court of first instance or in the Court of appeal but not in a Court of revision. The word “appeal” has been construed to include revision as well: see I.L.R (1937) Mad. 6165. The question is whether under S. 14(1) the expression “Court of appeal” does not include a Court on revision. On this point I have nothing to add to the decision of Varadachariar and Mockett JJ. already cited. There is also a prior decision of this Court to the same effect in 17 I.C 5936. Mr. Vinayaka Rao draws my attention to 39 Mad. 627, where the question was whether the time taken between the order of the first Court and the date when the revision petition was filed in the High Court can be deducted under Section 14(1) of the Limitation Act. If this time was not excluded, it was admitted before the learned Judges that the suit would be out of time even though the time between the date of the actual filing of the revision and the date of the disposal was excluded. The other side did not contend before the, learned Judges that the time taken by the pendency of the revision calculated from the date of the actual filing of the revision and the date of its disposal should not be excluded. The only contention urged was that the time which elapsed between the date of the order of the first Court and the date when the revision was filed should not be excluded. The learned Judges first dealt with this question and held that the time which elapsed between the date of the order of the first Court and the date when the revision was filed cannot be excluded. Then they said that the respondent was also entitled to rely upon another ground that the pendency of a revision is not covered by Section 14 of the Limitation Act. This is what they said:
We think, farther, that the respondent is entitled to rely upon the contention that in any event plaintiff cannot be said to have prosecuted the revision petition in good faith within the meaning of Section 14 of the Limitation Act, inasmuch as it has been frequently held by this and other High Courts that the High Court will not exercise its revisional powers when there is any other remedy open.
8. These observations are merely obiter dicta. The only question that was mooted on the other side was that the time that elapsed between the date of the order of the lower Court and the date when the revision was filed should not be deducted. The decision in 17 I.C 593 was not apparently brought to the notice of the learned Judges in 39 Mad. 62. Following the later decision in I.L.R (1937) Mad. 616, I hold that the pendency of the revision petition in the High Court should be deducted under S. 14(1). There is one other question whether the starting point under Acticle 11 of the Limitation Act, must be taken to be the final order i.e, the order in the revision petition. It is not denied on the other side that if there was an appeal against the order and an order was passed by the appellate Court, it would be the date of the appellate order that would be the starting point. That question has been decided by a Bench of this Court in 39 Mad. 11968. But it is urged that if it is a revision petition, the starting point must be the date of the first Court's order. I do not see any justification for this contention. It will be noted that even in a civil revision petition, it is clear that if the High Court passed an order allowing the revision and held against the respondents in the revision petition, the party who was unsuccessful before the High Court would have to file a suit within one year from the date of the High Court's order. Therefore, if the real reason for holding that in the case of an appeal, the starting point should be the date of the appellate order is that the appeal is a continuation of the proceedings of the trial Court, the same reasoning should apply in the case of a civil revision petition and there is no reason why a different construction should be applied in the case of a civil revision petition.
9. I am aware that a different view has been expressed in some judgments and I would say, speaking for myself, that there is much to be said in favour of the view that under Article 11 of the Limitation Act, the starting point should be taken to be the date of the final order, whether that order was passed on an appeal from that order or whether it was passed in a civil revision petition from that order. Having regard to my decision on the first point, it is unnecessary to go further into this question. I set aside the decrees of both the Courts with costs throughout up to date payable by the respondents and remand the case to the first Court for disposal according to law. I understand that some evidence has been recorded. The Court will proceed to deal with the other issues in the case and dispose of the suit. Court-fee paid on the memorandum of appeal in this Court will be refunded. No leave.
C.R.K/G.N
10. Case remanded.