1. Chunnilal (non-applicant 1) purchased the field in suit in execution of a decree obtained by him against Sadasheo (non-applicant 2) and took possession of the same. The applicant Laxmandas obtained a final decree for foreclosure and got possession through Court. Chunnilal made an application under O. 21, R. 100, complaining of dispossession. That application was rejected on 10th August 1926. Chunnilal preferred an application in revision in this Court. That application, after notice to the other side, was dismissed on 21st March 1927. Chunnilal filed the suit out of which this revision petition arises on 21st March 1928 under O. 21, R. 103 of the CPC, for establishing his right. Laxmandas (defendant 1) contended that the suit not having been filed within one year computed from 10th August 1926 (when the executing Court rejected Chunnilal's application made under O. 21, R.,100 of the CPC), was barred by time. The lower Court held that the suit was not barred by limitation and ordered that the suit should proceed. The learned Judge gave the benefit of Section 14 of the Lim. Act, to the plaintiff (Chunnilal) and held that the period of limitation commenced to run from 21st March 1927, the date on which Chunnilal's revision petition was rejected by this Court.
2. Laxmandas, the defendant, has applied for revision of this order. It is contended for the applicant that the plaintiff (Chunnilal) was not entitled to the benefit of Section 14 of the Lim. Act. S.R.M.M.A Firm v. Maung Po Saung(1) was relied on as an authority. It is contended for the non-applicant that the Court below had discretion to extend the period of limitation by applying the provisions of Section 14 of the Lim. Act, and that the order being an interlocutory order, this Court ought not to interfere in revision. In order to decide whether this Court can at this stage interfere with the order, it is necessary to determine the nature of the order under revision. It should be observed that as Chunnilal's application made under O. 21, R. 100, was rejected, his only remedy was to institute a suit to establish the right which he claimed to the present possession of the property, under O. 21, R. 103. This rule makes the order conclusive subject to the result of such a suit. In other words, the only remedy R. 103 provides is by way of a suit, and it is with reference to this provision that Article 11(a), Sch. 1, Lim. Act, provides the period of one year computed from the date of the order. The question is whether Article 11(a) contemplates computation of the period of limitation from the date of any order passed in revision. In my opinion it does not. Decisions reported in Hamida Bibi…Defendant v. Fatima Bibi…Plaintiff .(3) are brought to my notice. All that these decisions lay down is that the periods spent in suits and proceedings before the High Courts under Section 115 of the CPC, can be excluded in computing the period of limitation. In Venugopal Mudali v. Venkatasubbiah Chetty(4) it was no doubt held that the starting point of limitation under Article 11 was the date of the order passed on appeal. The reason given for the view was that the word “order” in Article 11, Lim. Act, should be construed as meaning the only subsisting order in the case, which is the one passed on appeal. Their Lordships however annexed a proviso that the appeal should be competent. Their Lordships observed incidentally that if the decision on revision interferes with the original decision, the former decision becomes the only subsisting order and stands on the same footing as the decision passed in a competent appeal.
3. The facts of the present case are distinguishable from hose in the reported cases. There the Courts were dealing with the time during which the plaintiff was prosecuting the suit and subsequent proceedings, but, in the present case I am concerned only with the time taken up by the revisional proceedings. The view of the law taken in the last case appears plausible in so far as the order passed in appeal is concerned on the principle that appeal is a continuation of the suit. But I may observe that it may not be true in every case: see Juscurn Boid v. Pirthichand Lal(5) at p. 679 (of 46 Cal). It is difficult to concur with the obiter dicta pronounced in regard to the order in revision. There is a clear distinction bet ween an appeal and an application for revision. Eight of appeal is a substantive right created by statute and the powers of the Court in appeal are conterminous with those exercised by the Court of original jurisdiction. Even when the appeal is dismissed, the appellate Court exercises its jurisdiction. Not so with the revisional jurisdiction as of right; it is entirely discretionary with the High Court to exercise its jurisdiction or not. Even this power is limited. When the High Court declines to exercise its revisional powers, can it be rightly said that the order rejecting a petition for revision is the only subsisting order in the case? Obviously not, because the High Court abstains from exercising its jurisdiction and allows the subordinate Court's order to stand.
4. The lower Court purported to apply the provisions of Section 14 of the Lim. Act. Under that section the time during which the party has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, is excluded. Expln. 1 appended to that section provides that:
“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.”
5. The section properly interpreted lays down that the party who is entitled to the benefit of S. 14 can claim the exclusion of time which begins with the filing of the application and ends with the pissing of the order. In this case the revision petition was filed on 27th September 1926 and it was dismissed on 21st March 1927. In view of the fact that the Court in revision thought it fit to hear both parties, it may be assumed that Chunnilal had reasonable ground for supposing that the original order would be set aside in revision. The lower Court was therefore right in giving the benefit of Section 14 of the Lim. Act, to Chunnilal. No doubt it was held in S.R.M.M.A Firm v. Maxing Po Saung that the plaintiff in the position of Chunnilal was not entitled to a claim under Section 14 of the Lim. Act. This view is based on the principle that a party who proceeds contrary to a clearly expressed provision of law cannot be regarded as prosecuting another civil proceeding in good faith. The principle is perfectly sound, but the rule could not be enforced with rigidity. If on examining the proceedings in revision it is found that there was no want of the diligence and good faith, there is no reason why the plaintiff should be deprived of the benefit of S. 14 “because of the sheer culpable negligence on the part of the advocate” in the application for revision filed: sea S.R.M.M.A Firm v. Maung Po Saung, at p. 468 (of 7 Bang.) Every case has to be judged on its own merits. I am therefore of opinion that Chunnilal was entitled to the benefit of Section 14 of the Lim. Act; but it appears that in applying this section the lower Court has gone beyond the purview of that section. All that the lower Court should rightly have excluded from computation was the time which elapsed between 27th September 1926 and 21st March 1927, i.e the period during which the revision petition was pending. But the learned Judge has excluded the time between the date of the original order, viz. 1st August 1926 and the date on which the revision petition was preferred, i.e 27th September 1926. The plaintiff was thus given a concession which is not provided for in Section 14 of the Lim. Act. The plaintiff's suit was filed on 21st July 1928 i.e on the last date of the period of limitation computed from the order passed in revision. On proper calculation it would appear that the suit ought to hive been filed a month earlier. It was therefore barred by time.
6. Now the question is:
“Can this Court interfere with the interlocutory order in exercise of the powers vested in this Court by Section 115 of the CPC?”
7. The High Court of Allahabad: see Buddhu Lal v. Mewa Ram(6), Equitable Trust Company v. Hafiz Muhammad Halim and Co.(7) and Lal Chand Mangal Sen v. Behari Lal Mehr. Chand(8), held the view that the word “case” occurring in Section 115 of the CPC, does not include part of a case such as interlocutory orders. The High Court of Calcutta: see Dhapi v. Ram Pershad(9), Kariya Goundan v. Tiruhhaivelu Chetty(10), Mani Lal v. Durga Prasad(11) and The Jupiter General Insurance Co. Ltd. v. Abdul Aziz(12) held that the word “case” is wide enough to cover interlocutory orders. This Court has been following the latter view. In Mahadeo v. Nago(13) it was held that the word “case” in Section 115 of the CPC, must be understood in its broadest and most ordinary sense. The same view was taken in Amolaksao v. Govindrao(14). It therefore, follows that this Court will not be precluded from exercising its jurisdiction under Section 115 of the CPC, only because the order is interlocutory. Now the next question is:
“Is the applicant entitled to invoke the provisions of Section 115 of the CPC, in his favour?”
8. Section 115 only deals with cases of assumption, non-exercise, or mis-exercise (if I may compendiously use that term for illegal or irregular exercise) of jurisdiction by the Court. Is there any question of jurisdiction involved in this case? It is contended for the non-applicant that an erroneous view of law cannot be rectified in revision. The observations of their Lordships of the Privy Council made in Amir Hassan Khan v. Sheo Baksh Singh(15), at p. 8, viz.:
“Whether they decided it rightly or wrongly, they had jurisdiction to decide the case; and even if they decided wrongly, they did not exercise their jurisdiction illegally or with material irregularity”
are relied upon as authority. In Shew Prosad Bungshidhur v. Ram Chunder Haribux(16) it was held that the words “acted illegal” refer only to matters of procedure. This interpretation was in a later case not accepted as wholly correct: see C.D.M Hindley v. Joynarain Marwari*(17) at p. 971. In Balakrishna Udayar v. Vasudeva Ayyar(18) at p. 799 of 40 Mad), their Lordships of the Privy Council observed that S. 115 is not directed against conclusions of law or fact in which the question of jurisdiction is not involved. This observation properly interpreted means that when the conclusion of law or fact involve the question of jurisdiction, viz. “the irregular exercise or non-exercise of it or the illegal assumption of it,” such conclusions of law or fact may be disturbed in revision. The term “jurisdiction” cannot be restricted to the power to entertain a suit or appeal. The Court may have this power and it may lose its jurisdiction to pass a particular order in the suit or appeal. If it is found that the Court, purporting to apply a provision of law, does it in an erroneous manner or applies an inapposite law, would it be committing merely an error of law or “acting” in exercise of its powers “illegally?” The lower Court while professing to apply the provisions of S. 14, has really acted in contravention of the section, and the result was that whereas it had no jurisdiction to allow the suit to continue, it has assumed jurisdiction to try it. From this point of view, it would be clear that the Court did not merely decide wrongly, but “acted illegally”: see Har Prasad v. Jafar Ali(19). Thus I find that I am not dealing with merely a case of erroneous opinion on a question of law, but an “illegal action”: see Mahadeo v. Nago at p. 133. Due to violation of the rule of law which has occasioned failure of justice in the sense that the suit which was barred by time, the Court has assumed jurisdiction to proceed with it as being within time. The case reported in Amolaksao v. Govindrao is precisely of the same nature as the present case. Batten, A.J.C, observed that the High Court would interfere in revision even with an interlocutory order
“if such order goes to the root of the case and allows the continuation of litigation which the Court had no jurisdiction to allow to continue.”
9. These observations are fully applicable to this case. From the foregoing observation it is manifest that the Court acted in exercise of its jurisdiction illegally in treating the suit as being within time and ordering it to proceed.
10. I therefore allow this application and dismiss Chunnilal's suit. The non-applicant will pay the costs of the applicant in this Court. He will also pay the costs incurred by the applicant in the lower Court. Pleader's fees Rs. 25.
K.N/R.K
11. Order accordingly.