Shaikh Fazlul Jamil and Others vs Shaik Helaluddin

Scroope, J.—The original decree out of which this appeal arises was passed on the 18th June 1917 and the last execution case was dismissed on the 10th July 1922 after some realisation. The execution petition, which is the subject of the present appeal, was filed in the Court of the First Munsif of Purnea on the 10th July 1925, though the decree had been passed by the Court of the Subordinate Judge. The Munsif returned the petition on the 14th July 1925, and it was filed in the Subordinate Judge''s Court on the next day.

The judgment-debtor contended that the execution was barred by limitation as the application was filed on the 15th July 1925. The decree-holder contended that he was entitled u/s 14 of the Limitation Act to an exclusion of the time between the 10th July and 15th July as it was on account of a bona fide mistake of fact that the application was filed in the Court of the Munsif. The Subordinate Judge held that the decree was barred and on appeal to the District Judge this decision was set aside. The debtor has now appealed.

Good faith for the purpose of the Limitation Act is defined in Section 2, Sub-section 7 Nothing should be deemed to be done in, good faith which is not done with due care and attention.

Now, the facts in the present case are that the decree on the face of it shows that it had been passed by the Court of the Subordinate Judge. There had been two previous execution proceedings, both! in the Court of the Subordinate Judge and some money had been realised, According to the case for the decree-holder who examined the scribe of the execution petition the latter naturally thought from the account, namely, Rs. 1,591 that the decree was a Munsif decree, but it is not disputed that the heading of the decree; showed it was one of the Subordinate Judge''s Court.

The question then is: Do the facts attract the operation of Section 14. The cases cited on both sides, Mathurct, Singh v. Bhawani Singh [1900] 22 All. 248, Karimulla Shaha v. Mohammad Reza [1920] 1 P.L.T. 612 and Deo Prasad Singh v. Pertab Kairee [1884] 10 Cal. 86 for the respondent and India Publishers, Limited v. Adridge [1908] 35 Cal. 728 and Bibi Sairah v. Golab Kuar [1919] P.H.C.C. 409 for the appellant are not on all fours with the present case, but the same principle that Section 14 has no application if there is wilful neglect or default underlies them all. Here the opposite party postponed action till the very last moment and though the decree was staring him in the face as one of the Subordinate Judge''s his agent negligently filed the execution application in the Munsif''s Court. Clearly such an act cannot be said to be done with due care; and attention.

It was contended, however, on behalf of the respondents that the finding of the learned District Judge that the decree-holder acted in good faith was a finding of fact which could not be challenged in second appeal. But thee whole question in this appeal is whether the facts found attract the operation of Section 14 of the Limitation Act and the question is a mixed question of law and fact which this Court has undoubtedly power to go into.

I hold then that Section 14 of the Limitation Act does not apply in this case and I think that the learned Subordinate Judge was quite right in taking the same view and that the view of the first appellate Court cannot be supported. To hold otherwise would be putting a premium on dilatoriness and carelessness. The judgment of the District Judge must therefore be set aside and the appeal is accordingly decreed with costs.

Adami, J.

I agree.