Yalpi Virupakshappa vs Chowdireddi Veerabhadra Gowd and Others

Alfred Henry Lionel Leach, C.J.—The appellant obtained a money decree against the 2nd and 3rd respondents in the Court of the District

Munsiff of Bellary. In execution of that decree he attached certain immovable properties. The 1st respondent applied for an order removing the

attachment on the ground that the properties were his. His application was rejected and consequently he instituted a suit under the provisions of

Order 21, rule 63 to establish his title. When the suit came on for hearing the 1st respondent realized that he could not succeed without a prayer

for possession and he applied for leave to amend his plaint in this respect. The leave to amend was refused, but the District Munsiff intimated that

he would be prepared to allow the 1st respondent to withdraw his suit with liberty to file a fresh suit under Order 23, rule 1 of the Code of Civil

Procedure. The 1st respondent, realising that he would be in a difficulty with regard to limitation, raised this question before the District Munsiff,

but the District Munsiff considered that Section 14 of the Limitation Act would apply. Accordingly he decided to embody his opinion in his order.

He did so in these words:

Plaintiff seems to entertain some apprehension on point of limitation, because this suit is for setting aside a claim and, it had to he filed within one

year of the order. But I am inclined to give him the benefit of Section 14 of Limitation Act and hold that point of limitation shall not prejudice his

filing of a fresh suit.

I therefore grant this petition giving permission to withdraw the suit with permission to file a fresh suit for the same reliefs prayed for here and for

possession and on the same cause of action without any prejudice whatever to plaintiff on the question of limitation. Time for filing the fresh suit is

one month.

The District Munsiff further directed that the 1st respondent should pay half the costs of the appellant.

In due course the first respondent filed a fresh suit. The appellant raised the plea of limitation, but in view of the order which has just been

quoted, the District Munsiff held that the suit was within time, notwithstanding that it had been filed more than twelve months after the date of the

dismissal of the claim petition. The District Munsiff also held that the appellant could not raise the question of limitation because he had accepted

the order for costs passed in the previous suit. On appeal the'' District Judge of Bellary agreed with the District Munsiff and this appeal is from the

decision of the District Judge.

It is manifest that the District Munsiff was wrong in holding that Section 14 of the Limitation Act applied in such a case. A Bench of this Court in

Arunachellam. Chettiar v. Lakshmana Aiyar (1915) 29 M.L.J. 569 : ILR 39 Mad. 936. held that Section 14 does not apply and it was pointed out

there that the Bombay and Calcutta High Courts had expressed the same opinion. A Full Bench of the Allahabad High Court has expressed an

opinion to the same effect. See Sadayatan Pande v. Ram Chandra Gopal ILR (1934) All. 145. Arunachellam, Chettiar v. Lakshrnana Aiyar

(1915) 29 M.L.J. 569 : ILR 39 Mad. 936. is binding on this Court, as it was binding on the Court below. It is conclusive on the question whether

the District Munsiff was right in holding that Section 14 applied.

The learned advocate for the 1st respondent does not dispute this, but he says that inasmuch as the District Munsiff gave the 1st respondent

leave to withdraw the first suit with permission to bring a fresh suit and at the same time stated that this would be without prejudice to the 1st

respondent on the question of limitation, that order cannot now be challenged. While it was an erroneous order to pass, the District Munsiff had, it

is said, jurisdiction to pass it and as it was not challenged in appeal it is final. This argument ignores the provisions of rule 2 of Order 23. That rule

reads as follows:

In any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same

manner as if the first suit had not been instituted.

There is here a statutory provision which says that when a fresh suit is instituted the plaintiff shall be bound by the law of limitation. Any statement

made by the District Munsiff when he gave permission to the 1st respondent to withdraw the suit under rule 1 of Order 23 could not operate to

repeal rule 2. The District Munsiff had no power to impose a condition, and the fact that he did does not relieve the 1st respondent from the

responsibility of filing his suit in time. Moreover, a defendant in such a suit cannot be prejudiced by what the Court may happen to say in passing an

order under rule 1. The argument that the appellant is estopped from raising the question of limitation because he accepted costs which were

awarded to him in the first suit has only to be stated to be rejected. There is no substance in it at all.

For these reasons the appeal will be allowed and the suit dismissed with costs throughout. The memorandum of cross-objections which has

been filed will be dismissed with no order as to costs.