Vaithilinga Naidu vs Narayanaswami Naidu

King, J.—The question which arises in this appeal is one of limitation. There was an execution petition filed by a decree-holder in March,

1939. This was his second execution application, the first one having been dismissed in July, 1933. The interval between these two dates is

obviously more than three years, but he contended that a large part of the interval was covered by the language of Section 14 of the Limitation Act

and it has been held by the lower appellate Court that this contention is valid. The appeal is by the judgment-debtor who holds that Section 14

cannot properly be applied. The other relevant dates and facts in the case are these : In June, 1933, before the first execution petition had in fact

been dismissed, the decree-holder applied to adjudicate the appellant as an insolvent. His application was made in the Court of the District Judge

of South Arcot who in December, 1933, transferred it to the Subordinate Judge of Cuddalore. There the judgment-debtor was adjudicated

insolvent on 5th February, 1934, and the insolvency petition remained pending until in 1938, the District Judge following a decision of this Court

recalled the petition from the file of the Subordinate Judge on the ground that the learned Subordinate Judge had no jurisdiction to deal with it. The

District Judge having thus resumed the case on his own file, finally disposed of it by refusing to adjudicate the appellant an insolvent on the ground

that no acts of insolvency had been proved against him. The petition to adjudicate him was accordingly dismissed in November, 1938.

The question which now arises is essentially this : whether the period from December, 1933 to July, 1938, during which the insolvency petition

was pending on the file of the Subordinate Judge can be allowed for u/s 14 of the Limitation Act. If it can, it is quite clear that the present execution

application is well within time. Section 14 (2) runs as follows:

In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence

another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the same party for the same relief shall be excluded,

where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to

entertain it.

There can be no doubt that the Subordinate Judge had no jurisdiction to entertain the insolvency petition. There can also be no doubt that the

petitioner was acting in good faith in continuing his proceedings before the learned Subordinate Judge. It was of course impossible for him to have

questioned the action of the learned District Judge in transferring his insolvency petition to the Subordinate Judge. It is argued that although the

respondent may have shown good faith he did not show due diligence and in support of this argument the fact that the insolvency petition

remained-pending for so many years has been mentioned. It seems to me that this does not in any way affect the question of the diligence of the

decree-holder. The decree-holder filed his application to have the judgment-debtor adjudicated and once the adjudication order was passed--and

that was passed with reasonable promptitude--the control of the proceedings naturally passed from the decree-holder''s hands into the hands of

the Official Receiver and if there has been any subsequent delay in the administration of the insolvency, I do not see how the person who originally

filed the insolvency petition can in any sense be blamed for that delay. It seems to me therefore that in this matter also Section 14 applies.

It has been argued on behalf of the appellant that Section 14 will not apply because there is no formal order of the Subordinate Judge dismissing

the insolvency application on the ground that he had no jurisdiction. This seems to me to be totally irrelevant. Section 14 does not require any

order of the Court which had no jurisdiction recognising that fact. All it requires is that the Court which has to decide the question of limitation must

find that the other Court was unable to entertain a proceeding because it had no jurisdiction. Also it is obvious that the fact that the Subordinate

Judge retransmitted the file on the orders of the District Judge to the District Judge is the equivalent of an order of the Subordinate Judge

acknowledging that he had no jurisdiction. This objection therefore to the applicability of Section 14 seems to me to have no force.

The only objection which requires serious consideration in my opinion is the objection that in applying to the Insolvency Court in 1933, and in

filing this execution application in 1939, the respondent was not asking for the same relief. In a narrow sense, this may perhaps be true. In 1933, all

that the respondent asked for was that the appellant should be adjudicated an insolvent. In 1939, the precise kind of execution for which the

respondent applied was the arrest of the appellant. It is of course obvious that the adjudication of a man, as an insolvent and the arrest of that man

in execution of a decree are two different reliefs. In essence, however, it seems to me that the respondent was asking for the same relief. His

proceedings in insolvency were not confined to the adjudication of the appellant as an insolvent. They continued after that date and were obviously

prosecuted by him in the hope and with the purpose that at some time a dividend would be paid to him from the insolvent''s estate. It was therefore

an application whose ultimate purpose was to receive"" money and, at any rate, after the adjudication all further steps which were taken by the

respondent, were directly to obtain money from the Official Receiver. In the execution application in 1939 no doubt the arrest of the judgment-

debtor is asked for, but the actual language of the execution petition is this : after tabulating the amount due to the decree-holder, the decree-holder

prays that "" the Court may be pleased to pass an order directing that the amount may be realised and delivered to him...""by various methods falling

under Order 21. He therefore definitely and clearly asks for money to be paid to him. It seems to me, in these circumstances, that both in the

Insolvency Court and in the executing Court the respondent was definitely asking for the realisation of money from the appellant to be paid to him;

or in other words that the relief is the same relief.

On these grounds I hold that the lower appellate Court was right in applying Section 14 to the facts of this case, and that when that section is

applied, the execution petition of the respondent is within time. This appeal accordingly fails and is dismissed with costs.

Leave refused.