Kunwarbai Rathodniji vs Jasraj

T.C. Shrivastava, J.—This appeal arises out of a suit which the plaintiff respondent No. 1 Jasraj had filed under Order 21, Rule 63, Civil Procedure Code, for a declaration that the houses under attachment belonged to him. The claim succeeded in both the Courts below and the defendant Smt. Rathodniji alias Kunwarbai has now come up in appeal.

The only question which has been raised by Shri Waghmare for the appellant in this appeal is that the suit filed under Order 21, Rule 63, was barred by time as it was filed more than one year after the order of the executing court rejecting the plaintiff''s objection under Order 21, Rule 58 on 15-10-1952. The present suit was tiled on 15-7-1954. However u/s 14 of the Limitation Act the plaintiff claimed exclusion of the time spent by him till 23-11-1953 in prosecuting an appeal which he had filed against the order of the executing court rejecting his objection.

It will be observed that Order 21, Rule 63 of the CPC clearly provides that an order passed under Order 21, Rule 58, rejecting an objection is conclusive between the parties subjet only to a suit to establish the right. In view of this clear provisions, the filing of the appeal by the plaintiff-respondent was clearly misconceived and it can hardly be considered that the plaintiff was prosecuting with due deligence proceedings in a Court of appeal against the defendant within the meaning of Section 14 of the Limitation Act. Under that Section the prosecution must be in good faith, and nothing can be said to be done in good faith which is done without due care and attention. (See Dinkar Rao Vs. Ratansi and others ILR 1939 Nag. 422).

The expression "from defect of jurisdiction or other cause of a like nature" occurring in Section 14 of the Limitation Act was construed in V.C. Thani Chettiar and Another Vs. Dakshinamurthy Mudaliar and Others, ) and it was held that that expression did not cover cases where the previous proceedings were totally misconceived. In Govinda Menon Vs. Krishna Pillai ( AIR 1955 TC 51) the words "Defect of jurisdiction" have been construed to mean a defect in a particular court where the former proceedings were instituted and not an inability shared by that Court in common with all other courts to entertain the proceedings. Or in other words, it bas been held in that case that the Section applies if the proceedings are capable of being sustained in the sense of being granted in conformiiy with law by some court and does not make an allowance for time spent in prosecuting a proceeding which the law does not permit any Court whatever to grant. By virtue of the express provision in Order 21, Rule 63, no appeal lies against an order rejecting an objection under Order 21, Rule 58, and it is difficult to see how the provision can be misconstrued by anyone if it is read with a little care.

On behalf of the respondent No. 1 Shri Khabya relied upon AIR 1931 17 (Nagpur) and Lal Bihar Lall and Another Vs. Bani Madhava Khati and Others, . In the first case it, was held that the time spent in prosecuting a revision in the High Court against an Order 21, Rule 188, could be excluded u/s 14 of the Limitation Act. In the second case, the plaintiff had gone up in revision against the order of the Court under Order 21, Rule 58, and it was held that in computing the period for a suit filed under Order 21, Rule 63, the period during which the revision was pending could be excluded. The cases of revisions stand on a different footing. The power of the High Court to entertain a revision u/s 115 can be invoked to revise any order of the trial court, though this can be done on limited grounds. If a litigant believes bona fide that he can get the necessary redress in a revision, the time spent in revision could certainly be excluded. The same argument would not however apply to a claim to exclude time spent in appeal for which there is no provision in law either expressly or by implication and the action cannot be supported on a bona fide, though erroneous, construction of any provision of law.

The lower appellate Court was in error in excluding the time u/s 14 of the Indian Limitation Act. The suit should have been dismissed as barred by time.

In the result, the appeal is allowed and the decrees passed by the Courts below are set aside. Instead it is directed that the suit be dismissed. The costs of this appeal and of the courts below shall be paid by the plaintiff to the defendant.