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Judgment
Sundaram Chetty, J.—The plaintiff is the appellant. This appeal arises out of a suit brought by him to set aside on the ground of fraud and
gross negligence of his former guardian, the decree in O.S. No. 188 of 1906 in which he was impleaded as defendant 5. The preliminary question
that was taken up for consideration by both the Courts below is one of limitation. One of the grounds urged by the plaintiff to save the suit from the
bar of limitation is, that the fraud alleged in the plaint became known to him only on 19th September 1920, when his properties were attached in
execution of the decree in the former suit. On that footing he seeks to have the period from 19th September 1920 to 14th September 1926
excluded u/s 14, Lim. Act, from computation of the period of limitation for this suit, as he was prosecuting the proceedings in I.A. No. 1328 of
1920 (Ex. B) in good faith. The Courts below held that the aforesaid period of time could not be excluded u/s 14, Lim. Act, and as a consequence
of this finding, the suit was barred even assuming that the starting point of limitation was 19th September 1920 on account of the fraud alleged in
the plaint.
The main point for consideration in this second appeal is, whether the plaintiff is entitled to the exclusion of time u/s 14, Lim. Act, or not. In
order to apply the aforesaid section, it must be found that the former proceeding was founded upon the same cause of action and was prosecuted
in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, was unable to entertain it. Another aspect for
consideration under that section is whether the previous proceeding was for the same relief although not founded upon the same cause of action. In
para. 5 of the lower Court''s judgment, the learned District Judge has set forth the allegations which can be deemed to be common in the former
application and in the present plaint. That application was presented u/s 47, Civil P.C., for certain relief to be obtained from the executing Court. If
regard be had to the common allegations in the former petition and in the present plaint, I should observe that the grounds set forth by the plaintiff
in order to obtain the reliefs required by him are substantially the same. Some of the allegations in the former application clearly indicate fraud on
the part of the plaintiff in O.S. No. 188 of 1906 by reason of the suppression of the fact of adoption of the present plaintiff and also the gross
negligence of his natural mother appointed as his guardian ad litem, though fraud and gross negligence are not stated specifically, there is enough
indication that these are the grounds on which the present plaintiff attacked the validity of the decree passed against him. It is true that ho went so
far as to allege that he was not a party to that suit at all in the sense that there was no representation of him as the adopted son which, according to
him, is his real status. In para. 6 of his application, he expressly says that the said decree cannot legally bind him or his property. It is on this basis
he sought for a declaration that the properties of his adoptive family were not liable to attachment in execution of that decree and the proceedings
in execution taken against him are not valid. In the present suit, after setting forth all the previous allegations with some embellishments, the relief
asked for by him is a declaration that the former decree is not valid and binding on him.
The point to be considered is whether the present relief sought for in this suit and based upon substantially the same allegations as affording a
cause of action was one which the executing Court had jurisdiction to grant on the former application. It is settled law that an executing Court
cannot go behind the decree and allow an objection as to the validity or binding character of the decree by anyone who was a party to the suit.
Such a question could not be gone into by the executing Court, but it must be made the subject of a separate suit: vide Govindan Nadar Vs.
Natesa Pillai (Lunatic) represented by his wife and guardian Annathachi, . It may be that, if the decree sought to be executed is attacked as a
nullity, such a contention may be decided by the executing Court. In the present case, though one of the objections taken by the present plaintiff
was that he was not to be considered as a party to the former suit, he did raise several other objections which would only go to show that the
decree could not be valid and binding on him. As his application was deemed to cover this kind of relief also, it was observed by Wallace, J., in
the second appeal connected with the former application, that, if the petitioner''s contention was, as it really seemed to be, that his natural mother
did not properly look after his interests in the suit, he should get the decree set aside by proceedings ad hoc and could not resist the execution of
the decree on that ground. On a due consideration of the allegations in the present plaint and those in the former application, I am of opinion that
the material facts constituting the cause of action in the present suit were also alleged in the former application. I therefore hold that the former
proceedings may be deemed to have been founded upon the same cause of action. It can even be said that this relief which is asked for in the
present suit was in a way asked for in the former proceeding as ancillary to the main relief or reliefs claimed.
That being so we have to see whether the former proceeding was prosecuted in good faith or not. Even the lower appellate Court does not
seriously dispute this position and says that it may be assumed that the plaintiff prosecuted the prior proceeding in good faith since he acted under
legal advice. The observation of the Privy Council in the case reported as Ramdutt Ramkishen Das v. F.D. Sassoon & Co. AIR 1929 PC 103 is
to the effect that Section 14, Lim. Act, was intended to protect a bona fide plaintiff from the consequence of some mistake which was made by his
advisers in prosecuting his claim. If under the wrong advice given to the plaintiff, he believed that he could got the decree declared to be not valid
and binding on him by an application to the executing Court, and under that belief he prosecuted the former proceeding right up to the High Court,
it would be difficult to say that he was not acting in good faith in the conduct of that litigation. Some of the reliefs asked for by him ware no doubt
within the jurisdiction of the executing Court, although this particular relief was beyond the competency of that Court.
Granting the existence of good faith in the plaintiff, the next point to be considered is whether the executing Court was unable to entertain the
application in respect of the aforesaid relief on account of defect of jurisdiction or other cause of a like nature. The word ""jurisdiction"" occurring in
Section 14, Lim. Act, should in my opinion be interpreted liberally and this is the view taken in some of the authorities. The decision in Dhansinyh
v. Basantsingh (1886) 8 All 519 deals with this question elaborately. As observed by Mahmood, J., on p. 527, adopting the meaning given in
Wharton''s Law Lexicon, jurisdiction"" means legal authority, extent of power, declaration of the law."" Extent of power"" may mean the territorial
limits of jurisdiction or the pecuniary limits of jurisdiction. There is another category which, has reference to the nature of the class to which the
case belongs. For the purposes of the present appeal, it is enough to observe that the executing Court had no jurisdiction to grant the relief asked
for in the present plaint, which was also one of the reliefs sought for in the former application. Several decisions have been cited by the learned
advocate for the appellant as to what would be defect of jurisdiction or other cause of a like nature, within the meaning of Section 14, Lim. Act. It
is unnecessary to deal with those decisions. Suffice it to say, that in the present case the executing Court had no jurisdiction to grant the particular
relief or at any rate, was unable to grant it from a cause of a like nature.
It is strongly contended by the learned advocate for the respondent that inasmuch as the former proceeding was a misconceived remedy the
case is taken out of Section 14, Lim. Act. Reliance is placed upon the decision in C. Ganapathi Mudaliar Vs. N. Krishnamachari and Others,
which is the same as the decision in 70 I.C. 733 referred to by the lower appellate Court. If a suit or proceeding by reason of any inherent defect
in it should fail before any Court, it cannot be said that the Court before which it was presented was unable to entertain it from defect of
jurisdiction. If a suit or proceeding which is otherwise competent was presented before a wrong forum, then that Court could not entertain it for
want of jurisdiction. If the present plaintiff had only sought for this relief by means of a suit, the Court would not be unable to entertain it for want of
jurisdiction but as the same relief was asked for in an application u/s 47 to be decided by the executing Court, that Court was unable to entertain it
for the express reason mentioned in Section 14 of the Act. In C. Ganapathi Mudaliar Vs. N. Krishnamachari and Others, above referred to, the
learned Judges have considered the applicability of Section 14 as a question of secondary importance. The finding that case was governed by
Article 167, Lim. Act, was sought for the disposal of that case. However, they considered the question relating to Section 14 also, and in the
circumstances of that case they held that the former action was entirely misconceived.
If the misconception was of such a nature and so patent as to indicate to any Court want of due care and attention or want of ordinary diligence,
then it may be said that the plaintiff cannot be deemed to have prosecuted the former action in good faith. In the decision reported as Murugesa
Mudaliar v. Jatharam Davy (1900) 23 Mad 621 which was also referred to in the above case there is no express finding that the former action was
not prosecuted in good faith. It may be that the learned Judges thought that the remedy was so glaringly misconceived as to amount to lack of good
faith. In C. Ganapathi Mudaliar Vs. N. Krishnamachari and Others, there is no doubt an observation that the plaintiff acted in good faith. I am
however of opinion that we cannot add to the conditions set forth in Section 14, Lim. Act, as the requisites for the exclusion of time. The
misconception of the remedy sought for in the previous action, may in my opinion, be taken as a criterion for determining the existence of good
faith. But if all the requisites mentioned in Section 14 are found to exist, it seems to me that the benefit given by that section cannot be taken away
on the mere ground that, in the opinion of the Court, the course adopted before was not a well-conceived one. However that may be, I do not
consider that the former application by the plaintiff was entirely misconceived, as was the case considered in C. Ganapathi Mudaliar Vs. N.
Krishnamachari and Others, .
For this reason I am of opinion that the period from 19th September 1920 to 14th September 1926, should be excluded from the computation
of the period of limitation u/s 14, Lim. Act. That being so, the suit cannot be dismissed on the preliminary ground adopted by the Courts below. I
may point out that the question whether the starting point of limitation for this suit is 19th September 1920, or not, is still an open question which
has to be decided hereafter. The decrees of the Courts below are set aside and also the finding on issue 3, and the suit is remanded to the Court of
first instance to be disposed of according to law. The appellant''s costs in this appeal should be paid by the respondent, and the other costs will
abide the final result and should be provided for by the first Court. The court-fee paid by the appellant in this Court and in the lower appellate
Court will be refunded to him.