Akkal Naicker vs Kumarasami Reddiar

Govinda Menon, J.—This is an application to revise the order of the District Munsiff of Sattur in E.A. No. 42 of 1945 in S.C. No. 311 of

1938. The learned District Munsiff dismissed the application on the ground that the petitioner is not entitled to invoke the aid of Section 14 of the

Limitation Act, and, if it is so, the petition is barred by limitation.

Shortly stated, the facts are these. The learned District Munsiff, sitting as a Small Cause Judge passed the decree against the respondent for a

sum of money on 19th January, 1939, in favour of the petitioner who was decree-holder plaintiff. The petitioner filed successive execution petitions

on the Original Side of the same Court. The first of them on 1st September, 1941, being E.P. No. 341 of 1941. This was dismissed for default of

prosecution on 25th September, 1941. Thereupon another application E.P. No. 292 of 1942, was filed in the same Original Side of the District

Munsiff''s Court on 15th July, 1942. This application again was dismissed on 19th February, 1943. A third application, E.P. No. 230 of 1943,

was then filed on 17th July, 1943, and after various interlocutory and other orders, this application was pending on 3rd September, 1945 when,

the petitioner realising that he had made a mistake in invoking the aid of the Original Side of the District Munsiff''s Court for executing the decree

filed the present application out of which the civil revision petition has arisen.

According to the learned District Munsiff, the petitioner is not entitled to invoke the aid of Section 14 of the Limitation Act; and for that purpose

he relied upon a decision of this Court in Vemulapalli Satyanarayana and Others Vs. Vetrapu Kajireddi and Others, , and another of the Patna

High Court reported in Bishundeo Narain Missir v. Raghunath Prasad Missir ILR (1939) Pat. 354. Mr. Natesan, appearing for Mr. V.

Ramaswami Aiyar for the petitioner, invites my attention to the observations contained in Rustomji''s Limitation Act, Vol. I, page 254 as also to the

decision of this Court in Ramier Vs. Muthukrishna Aiyar and Others, , where Ramesam, J., at pages 816-817 states that in matters like this

Section 14 of the Limitation Act is applicable. A decision of the Bombay High Court in Pandu Dagadu Mahar Vs. Jamnadas Chotumal Marwadi, ,

on which the author Rustomji based his observation was also cited before me. In view of these authorities, it seems to me that the learned District

Munsiff was wrong in holding that the petitioner was not entitled to invoke the aid of Section 14 of the Limitation Act and thereby deduct the

period during which the three execution petitions were pending before the Original Side of the District Munsiff''s Court, because he was bona fide

prosecuting petitions for the same relief which the Court in which they were prosecuted could not give on account of want of jurisdiction. So on

that point the learned District Munsiff who decided the case, is wrong. But there is another hurdle which the petitioner has to surmount before he is

entitled to succeed, and that is, that since the decree was passed on 19th January, 1939, and the present application was filed only on 3rd

September, 1945, the period that elapsed is six years, seven months and 15 days. Out of this period the pendency of the three aforesaid

applications in the District Munsiff''s Court which became infructuous was only two years, nine months and odd. Therefore, the petitioner has to

account for a period of three years, ten month''s and odd and being more than three years as provided under Article 182, Clause (5) of the First

Schedule of the Limitation Act, the present application is barred by limitation.

Mr. Natesan contended that each of the subsequent applications should be deemed to be continuations of the earlier applications so that from

the date 1st September, 1941, on which he presented the first infructuous application till 3rd September, 1945, when the proper application was

filed before the learned District Munsiff as a Small Cause Court, the period that elapsed ought to be considered as the period during which he has

been diligently prosecuting in a Court and praying for a relief which he could not get on account of want of jurisdiction in that Court. No authority

has been brought to my notice to show that an infructuous application which was filed in a wrong Court and dismissed by that Court can be

considered to be continued by another infructuous application filed in the same Court and for the same relief some time later. It is not even

pretended that the second application, E.P. No. 292 of 1942, is a continuation of the earlier application because there is no mention of such an

intention in the second petition and the Court is not asked to revive the moribund application and restore it to life. In these circumstances, it seems

to me, that each of these three applications were distinct and separate and ought to be treated as such and the later ones cannot be treated as

continuations of the earlier applications. Therefore, however regrettable it is that a judgment-debtor who is legally bound to pay his creditor

escapes scot-free, the provisions of law have to be enforced and I am constrained to hold that the application is barred by limitation and that the

order of the District Munsiff, for the reasons given by me, is correct on the merits. The petition is therefore dismissed.

I must express my thanks to Mr. V.P. Sarathy who agreed to read the papers, appear as amicus curia and argue the case before me. I am much

indebted to him for that help.