Braja Gopal Mukherji vs Tarachand Marwari

Coutts, J.—This is an appeal against the order of a Judge of this Court sitting alone and arises out of an execution proceeding.

It appears that Tara Chand Marwari, the respondent, obtained a decree for costs against Braja Gopal Mukerji, the present appellant. The decree was passed on the 6th of January 1909. He made several applications for execution. One of these was made on the 6th of October 1915, it was dismissed and on the 10th of December 1918 the execution proceeding, with which we are now concerned, was filed. The application being made more than three years from the date of application made in the year 1915 was, on the face of it, barred by limitation and an objection was made to execution being taken on this ground. The objection was allowed but on appeal to this Court the objection has been disallowed and it was against this order that the present appeal has been filed.

It appears that Braja Gopal Mukerji, against whom the decree for costs was obtained, had also a decree for costs against Tara Chand Marwari and made an application for execution of this decree. In that execution proceeding Tara Chand Marwari applied to be allowed to set off his costs against the costs for ,which Braja Gopal Mukerji''s decree was being executed. That application was made on the 15th of November 1916 and it was finally disallowed on the 23rd of May 1918, The decree-holder now clauas that this period should be excluded from the period of limitation.

The whole question depends upon the interpretation of Section 14, Clause (2) of the Limitation Act. This clause 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 defeat of jurisdiction, or other cause of a like nature, is unable to entertain it.

There is no doubt that the decree-holder was prosecuting his application for set off with due diligence and it was against the same party and was in good faith. That application was not dismissed on amount of want of jurisdiction, however, and the only question for consideration in this case is, whether it was dismissed for ''other cause of a like nature.'' The application in fast was dismissed on the ground of res judicata and the short question for decision in this appeal is, whether res judicata constitutes ''other cause of a like nature'' u/s 14(2) of the Limitation Act. The learned Judge of this Court, lelying on the decisions in Mathura Singh v. Bhawani Singh 22 A. 248 (F.B.) A.W.N. (1900) 64 : Ind. Dec. (N.S.) 1197 and Deo Prosad Sing v. Pertab Kairce 10 C. 86 : 13 C.L.R. 218 : 5 Ind. Dec. (N.S.) 61, has held that it does. With this view, however, I am unable to agree. The two decisions on which the learned Judge has relied are cases of misjoinder of parties or cause of action which are expressly provided for in Explanation (3) of the section which is as follows:

For the purposes of this section, misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.

On the other hand, the decisions in Hafisinnissa Khatun v. Bhyrah Chunder Das 13 C.L.R. 214 and Rays v Padmanand Singh 32 C. 118 are express authorities for the proposition that res judicata. does not constitute ''other cause of a like nature.'' With these decisions I am in entire agreement and there is no authority to the contrary.

I would, therefore, set aside the decision of the learned Judge of this Court and would decree this appeal with costs in the High Court.

Ross, J.

I agree.