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Judgment
Jayachandra Reddy
The scope of Section 14(2) of the Limitation Act, 1963 falls for consideration in this Civil Miscellaneous Appeal. There have been weighty pronouncements that the statutes of limitation belong to a class of beneficial statutes and should be interpreted liberally. It is however cautioned that they are statutes of repose, the object of which is to put an end to state and fraudulent demands. To what possible length the expressions "due diligence", "good faith" "same relief" "defect of jurisdiction" or "other causes of a like nature" occurring in Section 14 (2) of the Limitation Act, 1963, can liberally be construed is the precise point that has to be dealt with in this appeal. It is apparent that these expressions are of wide import and a decision on the point, to a great extent, depends on the facts of the case, and we shall presently state them. The respondent, hereinafter referred to as "the decree-holder" obtained a money decree in O.S. No. 111 of 1954 on the file of the Sub-Court, Rajahmundry on 7-2-1955 against Mamidi Butchaiah, the father of the appellant.
The said decree was transferred to the District Court for execution and the E.P. was numbered as E.P No. 27 of 1955. The Execution Petition was dismissed as not pressed. Another E.P. No. 13 of 1961 was subsequently filed and that was also dismissed on 27-3-1961. Thereafter E.P. No. 29 of 1961 was filed on 5-4-1961 for attachment of the proved debt in O.S. 41/1932 on the file of Asst. Agent Bhadrachalam, laying with the official Receiver and payable to Mamidi Butchaiah, hereinafter referred to "judgment debtor-1". Attachment was ordered and confirmed on 3-7-1961. Subsequently judgment-debtor 1 died in the year 1962. Fresh execution petition (No. 54 of 1963) was filed on 27-8-1963 by the decree-holder for the relief of the sale of the proved decree debt in O.S. No 41 of 1932 against the appellant (hereinafter referred to as "Judgment-debtor 2",) who was already brought on record as legal representative of judgment-debtor 1. That E. P. was dismissed on 12-11-1963, holding that Judgment-debtor 1 had no saleable interest in the decree debt and that he was on record only as a trustee. Against that order the decree-holder filed C.M.A.N. 104 of 1964 in this Court and that was dismissed on 11-3-1969. Thereafter he filed the present E.P. No. 54 of 1969 on 24-7-1969, for the relief of attachment of a sum of Rs. 1,68,840/- lying with the Collector, West Godavari District, being the compensation payable to the appellant and others for lands taken over by the Government. The execution petition was opposed on the ground that it was barred by limitation as it was filed beyond 12 years from the date of decree. The plea of the decree-holder was that he was entitled to the benefit of Section 14(2) of the Limitation Act and that the period between 27-8-1963 the date on which E.P. 54 of 1963 was filed, and 11-3-1969 the date of judgment of the High Court in CM. A. 104 of 1964, has to be excluded from the period of 12 years. The learned District Judge held that the decree-holder is entitled to the benefit of section 14 (2) and that the execution petition is maintainable. The present appeal is directed against the said order, by judgment-debtor 2.
Sri M. Jagannadha Rao the learned counsel for the appellant, contended that the decree-holder is not entitled to the benefit of Section 14(2) as there is no proof (1) that the decree-holder had been prosecuting the other civil proceeding (E. P. No. 54 of 1963) and the appeal in the High Court thereafter) with due diligence, (2) that the earlier and the present proceedings are for the same relief, and (3) that the former proceeding 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. The learned counsel for the respondent decree-holder on the other hand contended that judgment-debtor I was one of the decree-holders in O.S. No. 41 of 1932, that his interest in the decree was attachable and that was how the decree-holder proceeded and filed EP. 54 of 1963 with due diligence and care, and as the same was dismissed he preferred C.M.A. No, 104 of 1964 and the same was also dismissed, and that having regard to the facts and circumstances of the case it must be held that all the three conditions laid down in section 14 (2) have been satisfied. It may be mentioned here that the main contention of the learned counsel for the appellant is that the decree-holder did not act with due diligence and in good faith in prosecuting the former proceeding.
In order to appreciate whether the decree-holder had been prosecuting E.P. 64 of 1963 and the consequent appeal (C.M.A. 104 of 1964 with due diligence and in good faith, it becomes necessary to examine the nature of the decree in O.I. No. 41 of 1932. One Butchi Ramanna Dora and his minor sons who were the landholders in an estate executed a trustee-deed on 15 6-1932 in favour of judgment-debtor 1 under which judgment debtor I was empowered to collect the moneys due to the landholders and pay the same to the creditors of the landholders. Under the said trust-deed judgment-debtor 1 was also made a permanent lessee of some of the lands on condition of his paying 600/- annually to the landholders, He was also empowered to institute the Suit (O.S. No. 41 of 1932) and to recover the amount due from some of the mortgages. In the said, suit for redemption Ramanna Dora and Judgment debtor I figured as co-plaintiffs and the same was filed against Tadepalli Thammi Reddy Gangi Reddy and others. A preliminary decree was passed on 9-1-1935 and subsequently the final decree was passed on 13-4-1937 for a sum of Rs. 12, 32, 518-11 in favour of the plaintiffs in the said Suit, and the joint decree shows that judgment-debtor 1 was also one of the decree-holders therein. In E.P. No. 29 of 1962, in which the interest of Mamidi Butchaiah (judgment-debtor I) in the decree in O.S. No. 41 of 1932 was sought to be attached, notice was served on judgment-debtor 1 who took time to file counter, but ultimately he did not file it. Consequently the attachment was confirmed. As judgment debtor 1 died, the decree-holder was compelled to file a fresh execution petition(No. 54 of 1968) which was contested by judgment-debtor 2 who was brought on record as legal representative of judgment-debtor 1 But the same, as already stated, was dismissed on the ground that judgment-debtor 1 had no salable interest. Some other decree holder, who obtained a decree against Mamid Butchaiah (judgment-debtor 1) filed a similar execution petition for attachment of salable interest of Judgment-debtor 1 in the decree tin O.S 41 of 1932 and the same was dismissed on the ground that Mamidi Butchaiah (J.S.L.) had no salable interest. He preferred C.M.A. No. 291 of 1963 in the High Court and the sane was heard along with CM. A. No. 104 of 1964 by a Division Bench While dismissing both the C.M. As the Division Bench observed that the copy of the final decree in OS. No. 41 of 1932, does not disclose as to in what capacity the decree in O.S. 41 of 1932 was obtained by Mamidi Butchaiah. The Bench further observed that it was only in the preliminary decree that a mention has been made that Mamidi Butchaiah instituted the Suit in the capacity of a trustee. The Division Bench at one stage also observed thus:--
It is no doubt true, that Ex. B-3 which is the certified copy of the final decree dated 13-4-1937 does not disclose as to in what capacity the decree is passed in favour of Mamidi Butchayya, Ex. B-2 however which is a certified copy of the preliminary decree in O.S. No. 41 of 1932 leaves us in no doubt Mamidi Butchayya who was the co-plaintiff has instituted, the suit in the capacity of a trustee.
The Division Bench, after an examination of the evidence, held that Mamidi Butchyya had no interest in the subject matter of the suit O.S. 41/1932, except that he was empowered to institute the suit for the benefit of the other plaintiff. Before reaching these conclusions the Division Bench considered the additional evidence filed in the appellate stage. The additional evidence consisted of certified copies of some of the judgments passed by the Civil Court. With reference to these documents admitted as additional evidence, the Division Bench observed thus :--
If these documents are taken into consideration, it will be very clear that Mamidi Butchayya, against whom these two suits were brought, was not really interested in the subject-matter of O.S. 41/1932, He was merely a trustee and therefore was not entitled to the dividends which may become due in that case.
As one stage the Division Bench also observed that the execution petition seeking attachment of the debt said to have been proved by Mamidi Butchayya in O S. 41 of 1932 was misconceived. The learned counsel for the appellant (judgment debtor 2) invited our attention to the judgment of the Division Bench in the above mentioned C.M. As. and contended that it was apparent that Mamidi Butchaiah had no salable interest in the decree in O.S. No. 41 of 1932 and that, therefore, it cannot be said that the decree holder prosecuted the E.P. (54 of 1963) and the consequent appeal (CM A. 104 of 1964) with due diligence.
Section 14 (2) of the Limitation Act, 1963, is in the following terms:-
14.(2). In computing the period of limitation, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal of revision, against the same party for the same relief shall be excluded, where such proceedings 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.
This section aims to protect a bona fide applicant and provides for extension of limitation. The necessary conditions for the applicability of the section are :
(1) The applicant must have been prosecuting the former proceeding with due diligence and in good faith in the court; (2) the former proceeding must be between the same parties and for he same relief, and (3) the court had been unable to entertain the farmer proceeding from defect of jurisdiction or other cause of a like nature.
We shall now take up the first contention whether the first condition is satisfied in the instant case. A division Bench of the Allahabad High Court in K.B. Mohammad Maqsood Ali Khan Vs. B. Hoshiar Singh and Others, observed that if the conduct of the person claiming the benefits of section 14 has been bona fide that is, he has established his good faith, and that he has been prosecuting with due diligence, he is entitled to the benefits. In Madhavrao Narayanrao Patwardhan Vs. Ramkrishna Govind Bhanu and Others, heir Lordships of the Supreme Court had to consider a case where the plaintiff instituted a suit without making a statement as to the value of the subject matter and prosecuted the same for 10 years and whether in those circumstances section 14 of the Limitation Act, 1908 could be invoked by the plaintiff in that context it is observed thus:--
But the Indian Limitation Act contains its own definition of good faith to the effect that "nothing shall be deemed to be done in good faith which is not done with due care and attention"- S. 2(7). We have therefore, to see if the institution and prosecution of the suit in the Munsif''s Court at Miraj, was done with due care and attention.
Their Lordships, after considering the averments in the plaintiff''s petition held :--
The question is not whether the Plaintiff did it dishonestly or omissions in this connection, were mala fide. On the other hand, the question is whether, given due care and attention, the plaintiff could have discovered the omission without having to wait for about 10 years or more.
Whether in a case the applicant acted with due diligence and in good faith is a matter to be decided on the facts of each case and the question whether the former proceeding was prosecuted in good faith and with due diligence will more or less be a question of degree The question in the instant case on this aspect is, whether given due care and attention, the decree holder could have discovered that judgment-debtor I had no salable interest in the decree in O.S. 41 of 1932. After a careful consideration of the order of the trial Court in E.P. 54 of 1963, the judgment of the High Court in the Civil Miscellaneous appeals and the attendant facts we have noticed the following circumstances :--
The final decree in O.S. No. 41 of 1932 was a joint decree in favour of judgment-debtor 1 and another and it does not disclose as to in what capacity the decree was passed in favour of Mamidi Butchaiah (judgment-debtor 1 therein).
In E.P. No. 29 of 1951 notice of notice the judgment-debtor No. 1 did not choose to file a counter and the attachment was made absolute. Had judgment-debtor 1 been alive, the decree holder could have got the attachment enforced. But as judgment-debtor 1 died in 1962, judgment-debtor 2 was brought on record and the decree-holder filed E.P. No. 54 of 1963 against judgment debtor 2 wherein the plea was taken that judgment-debtor 1 had no salable interest in O.S. No. 41 of 3932.
A perusal of the judgment in the above mentioned C.M. As, goes to show that whether Mamidi Butchaiah had salable interest in the decree in O.S. 43 of 1932 was a highly debatable point. As a matter of fact, another decree-holder in similar circumstances also filed C.M.A. No. 291 of 1963. The High Court for a proper decision in the matter, even admitted additional evidence at the appellate stage.
4 The High Court did not find the litigation to be unreasonable or vexatious, and directed each party to bear its own cost throughout.
The above circumstances would show that the earlier execution proceedings and the subsequent filing of the appeal are of such a nature manifesting that the decree-holder did prosecute them with due diligence and in good faith in a court. Having regard to the fact that the final decree in O.S. No. 41 of 1932 does not disclose as to in what capacity judgment-debtor 1 obtained the decree, if the decree-holder proceeded to attach the interests of Mamidi Butchaiah in the said decree, it cannot be said that he did not act with due diligence and in good faith It is only after a further scrutiny of the trust-deed and the preliminary decree, the High Court as well as the trial Court reach the conclusion in that Mamidi Butchaiah had no personal interest in the said decree. Therefore the decree-holders even after given due care and attention, could not have discovered at that stage that Mamidi Butchaiah had no personal interest. The Division Bench in C.M.A. 104 of 1964 at one stage observed:--
Thus the execution petition seeking attachment of the said debt was misconceived and was rightly rejected by the lower court.
Relying on this observation the learned counsel contended that the decree-holder did not act with due diligence and in good faith. He relied on a judgment of the Madras High Court in Ganpathi Mudatiar V. Krishnamachari AIR 1922 Mad 417 where in it is held that where the proceeding and the remedy have been wholly misconceived, section 14 has no application. But the facts of that case would show that the appellant therein sought for setting aside a court sale in execution of a mortgage decree and for a fresh sale on an amended proclamation He also asked for the amendment of the execution petition of his opponent the decree-holder by bringing it into conformity with the decree under execution and the learned Judges held that the failure of the appellant in the prosecution of his claim by Suit cannot be attributed to anything connected with the jurisdiction of the court. Therefore this case is distinguishable. Reliance was also placed on a decision of the Madhya Pradesh High Court in Kashiram Vs. Santokhbai, wherein it is observed: --
When a suit is dismissed not because the Court had no jurisdiction to entertain it, or for any other cause of a like nature, but because it was misconceived or because the proceeding or the suit was not one recognised by law as legal in its initiation, then clearly section 14 is not attracted to such a suit.
That was a case where it was found that the suit dismissed not on account of jurisdiction or other cause of a like nature, but because the very proceedings were not recognised by law as legal initiation. In the case before us it cannot be said that E.P. 54 of 1963 was wholly misconceived and had no legal sanctity in the very inception. Apart from that, the above observations made by the Division Bench in C.M.A. No. 104 of 1964 were not with reference to the applicability of section 14, but were made in a general way while considering the merits of the appeal.
Therefore, those observations are of no assistance to the appellant.
The learned counsel for the appellant also relied on a decision of this Court in Firm of Sivdutt Rai Gulab Rai Vs. The Union of India (UOI), wherein it is held that a party pursuing a wrong remedy on wrong advice of counsel shall not be entitled to the benefit of section 14. In the aforesaid discussion we have pointed out that the decree-holder did act with due diligence in prosecuting E.R. 54 of 1963 and it is difficult to hold that he was pursuing a wrong remedy. In G.S. Pathak Vs. S.S. Nisal AIR 1965 Bom 93 it is held that.
Section 14 (2) requires the prosecution of the earlier proceeding in good faith "Good faith" as contemplated by this subsection is not the same good faith as contemplated under the Bombay General Clause Act.........................................Therefore, while the Bombay General Clauses Act emphasises "honesty" and ignores the factor of negligence, the Limitation Act emphasises not "honesty" but the fact that due care and attention has been given to the prosecution of the earlier application.
Relying on these observations the learned Counsel for the appellant contended that "good faith" as contemplated u/s 14 (2) has a restricted meaning and cannot be given wider meaning The definition of "good faith" in the Limitation Act (section 2 (b) is "nothing shall be deemed to be done in good faith which is not done with due care and attention". The standard of good faith contemplated in this definition is higher than that of the definition of "good faith" in the General Clauses Act. A Division Bench of the Madras High Court in Kondepu Raghavayya Vs. Elukooru Vasudevayya Chetty, held that whether a person has shown due care and attention is a question of fact to be decided on the evidence adduced in any particular case and as no absolute rule of law can be laid down. In Gehimal Vs. Manager 32 I.C. 616 it is laid down that there can be no hard and fast rule as to what amounts to due diligence and "good faith" and it is a matter to be decided on the facts of each case. While considering the question whether the decree-holder acted with due diligence, we have extensively referred to the facts and held that he acted with due diligence. The very facts would also firmly establish that the decree-holder acted with due care and attention.
The learned counsel for the appellant however sought to contend that the decree-holder having failed in E.P. 54 of 1963 ought to have realised that Mamidi Butchaiah had no personal interest to that decree and thereafter ought not have filed C.M.A. 10 of 1964 and waited for 5 years till 11-3-1969 on which date the C.M.A. was disposed of and this conduct of the decree holder, according to the learned counsel, shows that he did not are with due diligence and in good faith. We see no force in this contention. As already pointed out, the order of the Division Bench in the C.M.As. shows that the points involved were debatable and if such a long time for the disposal of the appeal had taken place in the High Court, the decree-holder cannot be blamed. For these reasons we reject the first, contention of the learned counsel for the appellant.
The next contention is that the former proceedings and the present E.P. 54 of 1969 are not for the sane relief. In E.P. No. 54 of 1963 the decree-holder prayed that the debt which Mamidi Butchaiah had proved in O.S. No. 41 of 1982 should be attached and sold, the 2nd judgment-debtor resisted the petition. The decree-holder could not get the relief prayed for Thereafter he filed the present E.P. asking for the realisation of Rs. 38,707-75, and sought the attachment of the amount due by way of a prohibitory order from out of the amount of Rs. 1,68,840/- lying with the Collector, West Godavari, being the compensation payable to the judgment debtor. In view of the difference in the nature of the amount that was sought to be attached, the learned counsel for the appellant contended that the relief in both the proceedings is not the same. It is true that to attract the application of section 14(2) the two proceedings must be between the same parties and for the same relief, but can it be contended that the second proceeding must be a literal copy of the earlier proceedings. The learned counsel relied upon several decisions of the various High Courts in support of his contention. In Bacha Rowther Vs Chidambaram AIR 1945 Madras 86 it is held thus : --
"The words" same relief in section 14. Limitation Act, could not be construed so as to look not to the precise relief sought in the proceedings but to the ultimate object with which that relief was sought.
IN Yeswant Deorao Deshmukh Vs. Walchand Ramchand Kothari, their Lordships of the Supreme Court had to consider the question whether the time occupied by the insolvency proceedings against the judgment-debtor could be excluded and whether the relief subsequently sought for was the same as that in the insolvency proceedings, and in that context it is observed as follows :-
The relief sought in insolvency is obviously different from the relief sought in the execution application. In the former, an adjudication of the debtor as insolvent is sought as preliminary to the vesting of all his estate and the administration of it by the Official Receiver or the Official Assignee, as the case may be, for the benefit of all the creditors; but in the latter, the money due is sought to be realised for the benefit of the decree holder alone, by processes like attachment of property and arrest of persons. It may be that ultimately in the insolvency proceedings the decree-holder may be able to realize his debt wholly or in part, but this is a mere consequence or result. Not only is the relief of a different nature in the two proceedings but the procedure is also widely divergent
To the same effect is the decision in Magandas Bhukandas Vs. Bhalchandra Ramrao, . An examination of these decisions shows that the relief sought for in all those cases were distinctly different from one another and could not be held that they were of the same nature and for the same relief. Yet another decision relied upon by the appellant is Raghavender Rao vs. Venkata Rama Aiyar 33 Madras Law Journal, 682 In that case the decree-holder filed an execution petition in the District Munsif''s Court, Tinnevelly for a transfer of the decree from that Court to the District Munsif''s Court, Ambasamudram, but the same was dismissed and again restored ultimately by the High Court. He made a fresh application to Tinnevelly Court for attachment of the properties of the judgment-debtor within its jurisdiction and on a question whether it was barred by limitation the Court held. "The decree-holder was not, under S. 14 of the Limitation Act, entitled to a deduction of the time between the filing of the previous application and of the date of the High Court''s order thereon, in as much as (a) it could not be said that the application was proceeded with in a Court without jurisdiction, that is to say that the said application was infector as because it was proceeded with in a Court without jurisdiction or on a similar ground within the meaning of S. 14 and 14 (b) the relief sought by the subsequent application was not be same relief which was asked for in the application of 13th September, 1909". An examination of the facts of this case would show that the earlier application in the District Munsif''s Court was only for a transfer of the decree and the subsequent application was for attachment of properties in Tinnevelly and therefore it was rightly held that the relief was not the same. There is no manner of doubt that whether in both the proceedings the relief is the same or not, is again a question which revolves round the facts obtaining in the case.
Section 51 of the CPC states generally the power of the Court to enforce the execution The Court can order execution of the decree by delivery of any property specifically decreed, by attachment and sale, or by sale without attachment of any property and also in such other manner as the nature of the relief granted may require. In the instant case it is the execution of the decree that was sought for and the relief in both the proceedings is the same, viz., the execution of the decree. It is only in the matter of enforcement of relief there is some insignificant difference and that is as regards the nature of the amount that was to be attached. This in no way makes difference in the relief sought for. A perusal of section 14 (2) shows that it would be sufficient for its application if the proceedings are between the same parties and for the same relief. In the Instant case in both the proceedings the parties are the same as judgment-debtor 2 was brought on record as L.R. of judgment-debtor 1 in the subsequent proceeding. The precise relief in both the proceedings is the same and the ultimate object with which the relief was sought is also the same. We, therefore, reject the contention of the learned counsel that both the proceedings are not for the same relief.
The last contention is that the third condition of the section, viz., that the former Court had been unable to entertain the proceeding from defect of jurisdiction or other cause of a like nature, is not satisfied. According to the learned counsel, the order in E.P. 54 of 1963 was one on merits and was not thrown out at its inception and therefore it cannot be said that the Court was unable to entertain it from defect of jurisdiction or other cause of a like nature. The learned counsel for the appellant relied on a judgment of the Madras High Court in Katragada Rajabapayya vs. Devineni Basavayya 1942 II Mad L J 515. In that case the learned Judges had to consider the question whether the words "unable to entertain" in section 14 of the Limitation Act would apply to the action of the insolvency Court where the petition was heard on merits and where the insolvency Court was not debarred from entertaining the petition. After considering the scope of section 14 the learned Judge held thus :�
It seems to us perfectly clear from an examination of the language of section 14 that it cannot be of any assistance to the appellant. In the first place, it is obvious that the words "unable to entertain it" cannot apply to the action of the Insolvency Court. This is not a case in which an Insolvency Court was debarred from entertaining a petition filed by the appellant That petition specifically mentioned the facts which it was necessary to prove in order to show that the 1st defendant was an insolvent and all that the Insolvency Court has done is to hold that those facts have not been proved. The whole petition has been disposed of on its merits and to say that a Court which has considered all the merits of a case and held that the facts alleged by a petitioner have not been proved and therefore dismissed his application as unable to entertain, it seems to us to be stretching a liberal interpretation to an impossible length.
We may at once point out that E.P. 54 of 1963 was not dismissed on the ground of want jurisdiction, but what we have to see it whether it was dismissed for other cause of a like nature. In E.P. 54 of 1963 it became necessary of the decree-holder to prove that judgment-debtor 1 had beneficial interest the decree in O.S. 41 of 1932 and that was the point that had to be decided before the Court could give the relief sought for. Therefore, it became necessary to prove that aspect, before the Court, in the sense, could entertain and decide the matter. The former Court while dismissing E.P 54 of 1963 held that Mamidi Butchaiah had no salable interest in the decree passed in O.S. 41 of 1932. Therefore, it stands to reason that E.P. 54 of 1963 was dismissed for a cause of a like nature as that of defect of jurisdiction. But then it is contended that an application can be regarded as not entertained by the Court only if it is thrown out at its inception and reliance is placed on Kashiram Vs. Santokhbai, wherein it is observed thus:--
The word "entertain" means to admit for consideration. It does not mean giving relief, and when a suit or proceeding is not thrown out in limine but Court receives it for consideration and disposal according to law, it must be regarded as entertaining the suit or proceeding no matter whatever the ultimate decision may be; and a suit is to be regarded as not entertained by the Court only if it is thrown out at its inception and the Court does not decide it on its merits.
We have already held that E.P. 54 of 1963 was not decided on merits But we are unable to agree with the learned Judges of the Madhya Pradesh High Court that only when a suit is thrown out at its inception it can be regarded as not entertainable. In AIR 1944 136 (Lahore) it is held thus:--
The words ''or other cause of a like nature'' however liberally construed, must be read so as to convey something endangering analogous with the preceding words relating to the defect of jurisdiction. If these words are read along with the expression "is unable to entertain", they would denote that the defect must be of such a character as to make it impossible for a Court to entertain the suit or application either in its inception or at all events as to prevent it from deciding it on its merits. It is not quite easy or perhaps possible to give an exhaustive list of defects that these words may be taken to rover. But if they are such as have got to be decided before the merits of the case can be gone into and if they do not necessitate an examination of the merits of a case, they may, in my opinion, fall within the purview of these words. If, on the other hand, the Court has got to go into the merits before a case can be dismissed, the defect will not in my judgment coma with in the ambit of these words.
This judgment of the Lahore High Court was referred to in India Electric Works Ltd. Vs. James Mantosh and Another, and their Lordship of the Supreme Court approved this view of the Lahore High Court and also referred to a judgment of the Privy Council in Nrityamoni Dassi vs. Lakhan Chandra Sen AIR 1916 PC 96 and held thus:--
Even if the test propounded in the Lahore Full Bench decision in ILR 1944 Lah. 451 (A.I.R. 1944 Lah 135 FB), is to be applied there can be no manner of doubt that the defect in the suit of 1948 was of a nature which had to be decided before the claim could be disposed of on the merits. The High Court there was called upon to decide whether the claim was at all entertainable on the frame of the suit and it came to the conclusion that the Court was not competent to pass any decree for recovery of future damages or mesne profits in the suit as laid. The defect was of a nature which had to be decided before the merits of the claim could be adjudicated upon nor did any occasion or necessity arise of going into or examining the merits of the aforesaid claim.
The Lahore High Court and the Supreme Court did not lay down that the proceedings should be thrown out at its inception to regard the same as not entertained by the Court. On the other hand, it is clearly laid down that the Court can decide the defects before adjudicating upon the merits of the relief.
It can thus be seen that it became absolutely necessary for the Court to decide in E P. 40 of 1953 whether the claim was at all entertainable. Therefore, the defect was of a nature to be decided before the merits of the claim could be adjudicated upon. We are firmly of the view that the decision rendered in E.P. 54 of 1963 was not one on the merits of the claim, but it was one on the question whether the claim could be entertainable in view of the fact that Mamidi Buchaiah had no salable interest in the decree in O.S. 41 of 1932. To put it in other words, it became necessary to decide whether Mamidi Buchaiah had salable interest in the said decree before examining the merits of the claim by the decree holder. Therefore the defect was of such a character as to make it impossible for the Court to entertain the execution petition and at any rate it prevented the Court from deciding the execution petition on its merits, In Maneklal Kalidas Sheth Vs. Shivlal Dayaram Luvar, a Division Banch of the Bombay High Court held thus:--
What is a "defect of a like nature" within the meaning of that section must depend upon the facts of each case. One thing is clear that these words must mean and connote something which is quite distinct from defect of jurisdiction Defects as to wrong plaintiffs or wrong defendants are also provided for in the Limitation Act. The principle is well settled that S. 14 must be liberally construed, and If on the facts of a particular case the court finds that the plaintiff was prosecuting in good faith another civil proceeding against the same defendant founded on the same cause of action, the time taken up in such proceeding will be excluded, and because it was held that the cause of action was premature..................
In Kishore Mal and Another Vs. Jagdish Narain Singh, it is held that the dismissal of the previous execution application on the ground that the relief asked for was not in conformity with the decree is a cause of a nature, similar to defect of jurisdiction. Explanation (c) to section 14 reads thus:--
Misjoinders of parties or of cause of action shall be deemed to be a cause of a like nature with defect of jurisdiction.
The explanation which is analogous to Explanation III to section 14 of the Limitation Act, 1908, gives a clue that section 14 should be interpreted liberally. In India Electric Works Ltd. Vs. James Mantosh and Another, their Lordships of the Supreme Court observed thus.--
It is well settled that although all questions of limitation must be decided by the provisions of the Act and the courts cannot travel beyond than the words "or other cause of a like nature" must he construed liberally. Some clue is furnished with regard to the intention of the legislature by the Explanation III in Section 14 (2). Before the enactment of the Act in 1908 there was conflict amongst the High Courts on the question whether misjoinder and non-joinder were defects which were covered by the words ''or other cause of a like nature." It was to set at rest this conflict that Explanation III was added. An extended meaning was thus given to these words. Strictly speaking misjoinder or non-joinder of parties could hardly be regarded as a defect of jurisdiction or something similar or analogous to it.
From, the foregoing discussion, it is abundantly clear that section 14 of the Limitation Act should be interpreted liberally and the words "cause of a like nature" definitely mean and connote something which is quite distinct from defect of jurisdiction. ''Applying these tests to the facts of the present case we have no hesitation in holding that E.P 54 of 1963 was dismissed as the same became unentertrainable due to a cause of a like nature as defect of jurisdiction. In the result, the Civil Miscellaneous Appeal is dismissed with costs.