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Judgment
Bellie, J.—A decree passed in O.S. No. 156 of 1977 on the file of Sub Court, Krishnagiri as confirmed in appeal A.S. No. 677 of 1979 by a single Judge of this Court is in attack in this Letters Patent Appeal. Fourth defendant is the appellant herein. The suit relates to 57 cents of land in Survey No. 697 of Beganapalli village. It belonged to the second defendant and his mother third defendant. It appears the brother-in-law of the second defendant was employed in Krishnagiri Co-operative Stores, Krishnagiri and for shortage of textiles worth Rs. 5,414-67 proceedings were initiated against him. In this connection defendants 2 and 3 executed a bond in favour of the Co-operative Stores undertaking to be sureties for payment of the said amount and making all their properties including the suit property liable therefor. Then defendants 2 and 3 sold the property to the plaintiff under a sale deed dated 16-11-1963 which was registered on 18-11-1963. While so an award was passed in respect of the amount due to the society by the brother-in-law of the second defendant and in execution thereof the suit property was attached on 18-11-1963. The plaintiff filed a claim petition before the Sales Officer of the Co-operative Stores but it was dismissed under R.76 of the Madras Cooperative Rules. Therefore the plaintiff has filed the present suit for setting aside that order of dismissal of the claim petition. Here it may be mentioned that subsequently the property was sold to the fourth defendant in the auction held pursuant to the attachment on 26-1-1964.
Fourth defendant keenly contested the suit filing a written statement. He would contend that the sale deed in favour of the plaintiff is sham and nominal and no possession was given. The sale deed was executed with a view to screen the suit property from the creditor. It is further contended that the attachment made on 18-11-1963 will prevail over the sale deed registered on the same day i.e., 18-11-1963.
The suit was originally filed in the District Munsif Court, Krishnagiri but that Court after finding that it had no pecuniary jurisdiction to try the suit returned the plaint to be presented in the proper court and upon that the plaint was presented in the District Court, Dharmapuri at Krishnagiri. In that Court the plaintiff filed an amended plaint wherein he has stated that he was diligently and in good faith prosecuting the suit in the District Munsif Court, but it was returned after nine years holding that it had no pecuniary jurisdiction. As against this the fourth defendant filed an additional written statement contending that the suit is barred by limitation.
On consideration of the pleadings and the evidence, the learned Subordinate Judge did not accept the case of the fourth defendant that the sale deed in favour of the plaintiff was fraudulent one to defeat or delay the creditors and held that the sale deed having been executed on 16-11-1983 though registered on 18-11-1963 it will prevail over the attachment made on 18-11-1963. The trial Court further held that in any event the plaintiff is a bona fide purchaser for value. The trial Court also held that in view of S. 14(1) of the Limitation Act, the suit is not barbed by limitation. On these findings the trial Court granted a decree to the plaintiff.
The fourth defendant appealed and in the appeal in this Court A.S. No. 677 of 1979. Venugopal, J. confirmed the findings of the trial Court and dismissed the appeal.
Mr. R. Sundaravaradan, learned counsel for the appellant as his main point submits that on the facts in this case the trial Court as well as the learned single Judge should have held that the suit is barred by limitation and their findings to the contrary are erroneous. The learned counsel points out that the suit was filed in the District Munsif Court on 26-1-1964 and it was returned on 3-8-1973 upon which the plaintiff presented it in the District Court and no proper, reason has been given as to why such delay has occurred. But we find in the amended plaint the plaintiff has clearly stated that during the period the suit was in the District Munsif Court i.e., from 26-1-1964 to 3-8-1973 he was prosecuting the same with due diligence and under the bona tide belief that that court had jurisdiction. We do not see what more reason the plaintiff should give. The learned counsel would however contend that no evidence has been let in. But the said averment in the amended plaint that the plaintiff was prosecuting that suit with due diligence has not been denied in the additional written statement filed by the fourth defendant except stating that proceeding with a matter in ignorance of law cannot be said to be due diligence. One important thing to be noted in this connection is that on the very day the suit was returned in the District Munsif Court the plaintiff presented it in the District Court. This certainly speaks of diligence on the part of the plaintiff. Nothing was pointed out to us as the fault of the plaintiff that contributed for the long pendency of the matter in the District Munsif Court. Having filed the suit the plaintiff has only waited for the day of trial. An issue on the point of pecuniary jurisdiction was decided, and upon that the plaint was returned. On going through the order of return it appears to us that the learned District Munsif is in error (sic) (order ) and at any rate we are not able to see any negligence or inadvertence on the part of the plaintiff. Therefore we are unable to see how it can be said that the plaintiff has not been diligently prosecuting the suit. The long pendency of the suit in the District Munsif Court is not a peculiar feature for this suit alone. With regret it has to be admitted that delay in disposal of cases by Courts is the order of the day.
Then there is absolutely no reason for holding that the plaintiff did not prosecute the case in the District Munsif Court in good faith. Here it will be relevant to refer to two recent Supreme Court cases viz., (1) Vijay Kumar Rampal and Others Vs. Diwan Devi and Others, , wherein it was held that:
The expression ''good faith'' qualifies prosecuting the proceeding in the Court which ultimately is found to have no jurisdiction. Failure to pay the requisite court fee found deficient on a contention being raised or the error of Judgment in valuing a suit filed before a Court which was ultimately found to have no jurisdiction has absolutely nothing to do with the question of good faith in prosecuting the suit as provided in S.14 of the Act.
And (2) Shankarrao Vs. Chandrasenkunwar, in which it was ruled as follows: �
We are of the opinion that this is a case in which the application for condonation of delay should have been granted for the mere asking of it. The appeal was presented in time though it was lodged in the Court of the learned Additional District Judge instead of lodging it in the Court of the learned District Judge. The memo was returned for presentation to the Court of District Judge and it was presented in his Court on that very day. On these facts it is obvious that there was more that sufficient cause for the inadvertent delay which was not intentional (what was the appellant to gain by such delay?). The Court should not have therefore made an injustice-oriented approach and rejected the application for condonation of delay.
In the light of these judgments of the Supreme Court and the facts stated above there is no gainsaying that there was no bad faith on the part of the plaintiff in prosecuting the suit in the District Munsif Court. Mr. R. Sundaravaradan, learned counsel for the appellant brought to our notice two comparatively old decisions of the Supreme Court viz., (1) Madhavrao Narayanrao Patwardhan Vs. Ramkrishna Govind Bhanu and Others, and (2) Rabindra Nath Samuel Dawson Vs. Sivakasi and Others, . But we find that the facts in those cases are quite different from the facts in our case. In the first case the plaintiff filed a suit in the District Munsif Court without even disclosing the value of the property for the purpose of jurisdiction. The suit was later on returned by the District Munsif Court pointing out that that Court had no jurisdiction. Thereupon the plaintiff presented the suit in the District Court. In those circumstances it was held by the Supreme Court that it was not proved that the suit while it remained pending in the District Munsif Court has been prosecuted with due diligence and in good faith and therefore the plaintiff was not entitled to the benefit of S. 14 of the Limitation Act. In the second case with regard to sub Tarvadh there was objection for the suit on the ground of non-joinder of parties but the plaintiff resisted that objection both in the trial Court as well as in the revisional Court. In these circumstance the Supreme Court held that:
A person who has resisted to the objector regarding non joinder of parties at the initial stage and also at the revisional stage and run the risk of proceeding with the suit without impleading the necessary parties, cannot be said to act in good faith because he cannot be said to have acted with due care and attention. Consequently, such person will not be entitled to benefit of S.14 of the Act for excluding the time spent by him in that proceeding in a fresh suit.
Thus the facts of this case of the Supreme Court also are different from the facts in the instant case. Thus we find no merit in the argument of the learned counsel for the appellant that the suit presented in the District Court was barred by limitation.
Then it was argued that the trial Court as well as the learned single Judge are in error in deciding that the sale deed Ex.A2 dated 16-11-1963 in favour of the plaintiff was not executed with a view to defeat or delay the creditors. But the trial Court as well as the learned single Judge have considered the evidence let in in the case and found as a matter of fact that the sale deed was not executed with any intention to defeat or delay the creditors. The trial Court and the learned single Judge have further stated that even otherwise the plaintiff had no notice of any such intention of defendants 2 and 3 and therefore the plaintiff is a bona fide purchaser for value. We find no reason to differ from these concurrent findings. The property was attached on 18-11-1963 but the sale deed Ex.A2 had been executed already on 16-11-63 though it was registered on 18-11-63. It is in evidence that apart from the suit property defendants 2 and 3 have other properties also which would be sufficient to satisfy the amount due to the Co-operative Stores. On the point of adequacy of consideration also the trial Court and the learned single Judge have, discussing the evidence let in, found that the consideration cannot be said to be grossly inadequate. Further regarding the plaintiff''s plea that he was a bona fide purchaser for value the trial Court and the learned single Judge have said that there is no evidence whatsoever to attribute knowledge of the debt of defendants 2 and 3 to the Cooperative Stores. Considering all these we find no ground has been made out by the appellant which merits acceptance in this Letters Patent Appeal. In the result therefore the Letters Patent Appeal is dismissed. In the circumstances no costs.