VADILAL DIPCHAND v. SHIVLAL BHOGILAL — 1968 DIGILAW 15 (GUJ)

M. U. SHAH, J. ( 1 ) THESE two proceedings arise from the order originally passed by the learned Civil Judge (Junior Division) Chanasma on December 9 1963 in Civil Execution Application No. 38 of 1962 of his Court. The order passed was that the execution application was within the prescribed period of limitation excluding the time taken by the decree-holder in prosecuting another civil proceeding (execution application) in the Harij Court wherein the decree-holder had earlier filed Civil Execution Application No. 10 of 1961 on July 14 1961 which application had been dismissed by the learned Civil Judge at Harij by his order dated June 18 1962 By the latter order the Harij Court had upheld the contention of the judgment-debtor that it was the Court of Civil Judge at Chanasma which had passed the decree under execution that had the jurisdiction to entertain the execution application. On the very day on which the Harij Court had dismissed the Execution Application No. 10 of 1961 the decree-holder had rushed to the Court of Civil Judge at Chanasma which was the Court passing the decree and filed the execution application. . . . . . . . . . . . . . . . . . . . . . ( 2 ) THE relevant facts giving rise to this Second Appeal No. 74 of 1965 are not in dispute The respondent decree-holder named Shah Shivlal Bhogilal Manager of the joint Hindu family trading firm running in Harij in the name and style of Shah Shivlal Bhogilal had filed Regular Civil suit No. 40 of 1952 in the Court of the Civil Judge Junior Division at Chanasma District Mehsana. The suit was filed against the joint Hindu family trading firm running in the name and style of Vadilal Dipchand at Harij and against Dipchand Muljibhai and Vadilal Dipchand both of Harij as members of the firm and in their individual capacity. The suit which was for recovery of a sum of Rs. 6 675. 06 np. with running interest and costs of the suit from the defendant was decreed as such by the Chanasma Court. The suit which was for recovery of a sum of Rs. 6 675. 06 np. with running interest and costs of the suit from the defendant was decreed as such by the Chanasma Court. Against the said decree an appeal being Civil Appeal No. 47 of 1954 was preferred by Dipchand Muljibhai and Vadilal Dipchand In the Court of the learned District Judge Mehsana which appeal was heard by the then 2nd Extra Assistant Judge who partly allowed the appeal and set aside the decree against Dipchand Muljibhai and also against the joint family trading Firm of Vadilal Dipchand. The learned Judge however confirmed the decree against original defendant No. 3 Shah Vadilal Dipchand who it may be stated is the judgment-debtor and the appellant in this appeal. The decree in appeal was passed on July 15 1958 It appears that during the pendency of this appeal No. 47 of 1954 before the learned District Judge the jurisdiction of the Chanasma Court relating to the suits arising from amongst others the Harij area was transferred to the newly constituted Court of the learned Civil Judge Junior Division Harij constituted by relevant notification issued by the State Government on April 2 1957 After the decision dated July 15 1958 in the appeal modifying the decree of the trial Court the original decree-holder who is the respondent in this appeal filed Civil Execution Application No. 10 of 1961 in the Court of the Civil Judge Junior Division at Harij for execution of the said decree. This execution application was filed on July 14 1961 As aforesaid in that application a contention was raised on behalf of the judgement-debtor that the Harij Court had no jurisdiction to entertain the execution application and that the jurisdiction in the matter vested only in the Court passing the decree viz. the Court of the Civil Judge Junior Divisions at Chanasma and the learned Civil Judge at Harij had upheld the contention of the judgment- debtor and dismissed the execution application of the decree-holder by order dated June 18 1962 It is not in dispute that it was on this very day that the decree-holder had rushed to the Court of the Civil Judge Junior Division at Chanasma and filed another civil execution application in that Court which was registered as civil execution application No. 38 of 1962 out of which this second appeal arises. As aforesaid in that civil execution application itself the decree-holder had stated it as a fact that he had earlier filed civil execution application in the Court of the Civil Judge at Harij and that it came to be dismissed by the learned Judge for want of jurisdiction and therefore he was presenting another execution application In the Chanasma Court to execute the same decree. By a specific averment made in the said execution application itself duly verified at the foot the decree-holder had prayed for exclusion of time taken in earlier prosecuting in good-faith another civil execution application in the Harij Court. The exclusion was claimed under sec. 14 of the Indian Limitation Act 1908 (IX of 1908 ). It was stated that excluding the time taken during the proceedings in the Harij Court in the execution application No. 10 of 1961 the present execution application which was filed by the decree-holder on that very day in the Chanasma Court was within time. I may here say that it is not disputed that if the time taken by the decree-holder in prosecuting the civil execution application No. 10 of 1961 in the Harij Court is excluded in computing the period of limitation prescribed for the execution application under the Indian Limitation Act the present execution application No. 38 of 1962 filed in the Chanasma Court is within limitation. This execution application was resisted by the judgment-debtor on the ground that it was Harij Court that had jurisdiction and that the decree-holder ought to have got the decree transferred to the Harij Court as the Harij Court was an independent Court. On these grounds it was contended that the execution application before the Chanasma Court was not filed within limitation. . . . . . . . . . . . . . . . . . . . . . ( 3 ) NOW it is not in dispute before me that if the time taken by decree-holder in prosecuting civil execution application No. 10 of 1961 in the Harij court is excluded for the purpose of computing the period of limitation prescribed in the present civil execution application No. 38 of 1962 which was filed in the Chanasma Court and out of which this second appeal arises will be within the prescribed period of limitation. I need therefore only consider Mr. Karlekars contention that sec. I need therefore only consider Mr. Karlekars contention that sec. 14 of the Indian Limitation Act will have no operation in the matter. ( 4 ) SEC. 14 of the Indian Limitation Act 1968 (Act No. IX of 1908) provides for the exclusion of time of proceeding bona fide in Court without jurisdiction in certain conditions. Sec. 14 (1) provides for such exclusion of time in the case of a suit. Sec. 14 (2) provides for such exclusion of time in the case of any application which would include civil execution application on and reads as under:14 (2 ). In computing the period of limitation 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 of appeal or revision against the same party for the same relief shall be excluded where such proceeding is prosecuted in 800d faith in a Court which from defect of jurisdiction or other cause of a like nature is unable to entertain it. As observed by a Division Bench of the Allahabad High Court in Syed Taimur Ali Shah v. Har Deo Prasad A. I. R. 1960 Allahabad 375 the consensus of judicial opinion is that sec. 14 (2) of the Act applies to execution applications. Indeed there is nothing in the words of sub- sec. (2) to indicate that it did not. ( 5 ) THE next question therefore is whether the decree-holder was prosecuting in good-faith and with due diligence the earlier execution application in the Harij Court which from defect of jurisdiction or other cause of like nature was unable to entertain it. The Courts below have found that the decree-holder acted in good-faith and prosecuted has earlier execution on application in Harij Court with due diligence. These are questions of fact on which the decision of the Courts below is binding on this Court and therefore these findings have to be accepted. Again as aforesaid the learned Civil Judge at Harij had found that it was the Court passing the decree that alone had jurisdiction in the matter and had accordingly dismissed the execution application. The execution application before the Harij Court was admittedly filed within the period of limitation. The decree-holder had obtained the decree in the suit from the Chanasma Court which was the Court passing the decree. The execution application before the Harij Court was admittedly filed within the period of limitation. The decree-holder had obtained the decree in the suit from the Chanasma Court which was the Court passing the decree. However during the tendency of the appeal from the decree passed in the suit a new Civil Court subordinate to the District Court Mehsana at Harij was constituted the local limits of its ordinary jurisdiction comprising the areas within the limits of Same and Harij Mahal as provided in the notification produced at Ex. 22 in the trial Court. The said notification further provided that the whole of Harij Mahal then included within the local limits of the ordinary jurisdiction of the Civil Judge Junior Division Chanasma shall be excluded therefrom. In this situation the question therefore really is whether a litigant who has been authorized to bring his suit in a particular Court and obtain a decree in his favour which he was bound to execute under the Limitation Act was not entitled to apply to the newly constituted Court for the purpose of saving limitation under the Act or whether when he decides to apply for execution at the last moment as in the installs case he is bound to stop and inquire whether in view of the notification issued by the State altering the limits of the territorial jurisdiction of the Chanasma Court and vesting it in the Harij Court whether the Chanasma Court which was the Court passing the decree had the jurisdiction on pain of losing his right to execute the decree if he omits to make these enquiries or comes to a wrong conclusion. I think even if he did not stop and enquire and did assert his right by filing the execution application in the newly constituted Harij Court he could still he said to be prosecuting the application in good faith and with due diligence even while assuming that Chanasma Court alone had the jurisdiction in the matter and Harij Court was a wrong forum. ( 6 ) NOW having regard to the aforesaid notification that was issued by the State constituting a new Court of the Civil Judge at Harij with effect from April 1 1956 and providing that the local limits of the ordinary jurisdiction of the Civil Judge Junior Division Harij shall comprise the areas within the limits of Sami and Harij Mahals and that the whole of the Harij Mahal then included within the local limits of the ordinary jurisdiction of the Civil Judge junior Division Chanasma shall be excluded therefrom the decree-holder had Sled the execution application in the Harij Court. This clearly appears to be under mistake of law which has been considered by a Division Bench of the High Court of Bombay in Sitaram Ramcharan and others v. M. N. Nagrashna and another A I. R. 1954 Bom. 537 at page 541 as a mistake in establishing the rights of the party by going to one forum instead of another. Chagla C. J has observed therein:now as the authorities point out there is a clear distinction between the ignorance and mistake of law. Ignorance of law as understood by the authorities is ignorance of the rights of a party which the law confers upon him. Mistake of law is mistake in establishing those lights by for instance going to one forum instead or another. The party knows his rights he wants to assert them and establish them but through mistake in understanding the provisions of the law he goes to a wrong forum instead of going to the forum which the law had set up for the determination of his rights In cases where there is a mistake of law the Courts have almost uniformly taken the view that the time taken up by asserting the rights in a wrong court or wrong forum should be excused and the courts have largely been influenced by the principle underlying sec. 14 Limitation Actthe learned Chief Justice has further observed:we therefore entirely agree that the principle of ignorance of law is to be applied only to those cases where a party takes no action to assert his right because he does not know his rights and should not be applied to cases where a party knowing his rights asserts them but asserts them in wrong tribunal or before a wrong forum through a mistaken notion of what the law is. Now in the instant case the decree-holder was acting under a mistaken notion of law and so acting he had proceeded in a wrong forum. Applying the aforesaid test this cannot be said to be ignorance of law as disentitling him to the exclusion of the period taken in those proceedings for the purposes of computing the period of limitation as provided under sec. 14 (2) of the Act. In this view of the matter the contention raised by Mr. N. V. Karlekar that the decree-holder was acting under ignorance of law cannot be accepted. ( 7 ) AS regards the question as to whether the decree-holder has satisfied the Court that he was prosecuting the earlier proceedings in the Harij Court in good-faith and with due diligence as aforesaid the learned District Judge has agreed with the finding of the learned Extra Assistant judge that the earlier civil proceeding was prosecuted in good-faith in a Court which was newly constituted and to which the territorial jurisdiction in the matter was transferred. The finding on the question would therefore conclude the question. Furthermore it clearly appears that it was on the very day on which the application was dismissed by the Harij Court on the Court taking the view that it was only the Court passing the decree that can execute the decree that the decree-holder had rushed to the Chanasma Court and filed the present execution application. Their Lordships of the Privy Council have in H. H. Brij Indar Singh v. Lala Kanshi Ram (1917) 19 Bom. L. R. 866 at p. 873 approvingly referred to the general rule laid down in the case of Karm Baksh v. Daulat Ram (1888) P. R No. 183 of 1888 and observed that:their Lordships find it impossible to agree with the view that the case of Karm Baksh v. Daulat Ram laid down no general rule. The case was first taken in Chambers when Plowden J the point being raised. said This class of cases is constantly cropping up and some definite rule should be laid down. Following this view when with another Judge he took up the case in the Divisional Court he referred the matter to a Full Bench. The case was heard before a Full Bench and Plowden J. delivered the judgment. It will be enough to cite two passages from that judgment. Following this view when with another Judge he took up the case in the Divisional Court he referred the matter to a Full Bench. The case was heard before a Full Bench and Plowden J. delivered the judgment. It will be enough to cite two passages from that judgment. After setting forth the terms of sec. 5 of the Limitation Act he says :- all that the section requires in express terms as a condition for the exercise of the discretionary power of admission of an appeal presented after time is _sufficient cause for not presenting the appeal within the prescribed period. If such cause is shown the Court may in its discretion which is of course a judicial and not an arbitrary discretion admit the appeal. We think the true guide for a Court in the exercise of this discretion. is whether the appellant has acted with reasonable diligence in prosecuting his appeal and we think further that he ought ordinarily to be deemed to have acted with reasonable diligence when the whole period between the date of the decree appealed against and the date of presenting the appeal does not after excluding the time spent in prosecution with due diligence a proper application for review of judgment exceed the period prescribed by law for presenting the appeal. And again:- we also agree with the High Court of Allahabad in the case reported in I. L. R. 5 All 591 (Balvant Singh v. Gumani Ram) that the circumstances contemplated in sec. 14 of the Limitation Act should ordinarily constitute a sufficient cause within the meaning of sec. 5. The aforesaid view of the Punjab High Court which has been approved by Their Lordships of the Privy Council in H. H. Brij Indar Singh v. Lala Kanshi Ram (supra) has been referred with approval by P. N. Bhagwati J. as he then was in Kesharibhai Jesinghbhai v. Bai Lilavati and others A. I. R. 1963 Gujarat 119 remarks at p. 123 (IV G. L R. 59 ). These observations which would apply to the facts of the instant case in a way would go to show that the decree-holder must be deemed to have acted with due diligence in the matter in prosecuting the earlier and the present execution applications Besides as aforesaid the averment of the decree-holder in the present execution application that he had prosecuted the earlier execution application in good-faith and the further averment that he had immediately rushed to the Court at Chanasma on the same day on which the Harij Court had dismissed the application have not been controverted by the judgment-debtor. Clearly therefore this is a case in which it could not be said that the learned Judges below were wrong in taking the view that the decree-holder was prosecuting the earlier Civil execution application in the Harij Court with due diligence and in good-faith. Good faith must mean here with due care and attention. The question as to which is the correct forum of the execution application is a purely legal question sometimes of considerable nicety and complexity and no applicant could be expected to have any personal knowledge as to which is the Court in which he had to file the application unless of course he is a lawyer. Moreover in the instant case as I will presently point out there is a conflict of judicial opinion as regards the forum of execution application. The decree-holder must therefore. be deemed to to have acted with due diligence and with due care and attention. The contention of Mr. Karlekar that the decree-holder did not act with due diligence must therefore be rejected in any view of the matter. ( 8 ) AS regards the forum of execution application the question becomes a complicated one as in the instant case when after the date of the passing of the decree of the trial Court and during the tendency of the appeal from the decree passed in the suit as also prior to the date of the application in execution territorial jurisdiction of the Court passing the decree comes to be transferred from the original Court trying the suit to some other Court which is the Harij Court in the instant case. On this question there is a conflict of decisions the Calcutta High Court taking the view that both the Courts namely the Court passing the decree and the other Court to which the jurisdiction is transferred has jurisdiction; the Andhra Pradesh High Court taking the view that it is the Court passing the decree that has the jurisdiction; and the Madras view on the point being in itself not consistent. In a recent Full Bench case of the Punjab High Court in Mehar Singh and another v. Kasturi Ram and others A. I. R. 1962 Punjab 394 the view taken is that where after the passing of the decree by the Court A the territorial jurisdiction is transferred to the Court B the application for execution of the decree could be presented to either Court. In Merla Ramanna v. Nallaparaju and others A. I. R. 1956 S. C. 87 the Supreme Court had an occasion to observe that there was a long course of decisions in the High Court of Calcutta taking the view that when jurisdiction over the subject-matter of a decree is transferred to another Court that Court is also competent to entertain an application for execution of the decree vide Latchman v. Maddan Mohan 6 Cal. 513 Jabar v. Kamini Devi 28 Cal. 238 and Unit Narain v. Mathura Prasad 35 Cal. 974. The Supreme Court has also taken note of the decision in Ramier v. Muthukrishan Ayyar A. I. R. 1932 Mad. 418 (F. B.) where a Full Bench of the Madras High Court has taken a different view and held that absence of an order of transfer by the Court which passed the decree that Court alone can entertain an application for execution and not the Court to whose jurisdiction the subject-matter has been transferred. As observed this view is supported by the decision in A I. R 1942 Cal. 321. However Their Lordships did not consider it necessary to decide which of these two views was correct because in their opinion even assuming that the opinion expressed in Ramier v. Muthukrishna Ayyar A. I. R. 1932 Mad. 418 (F. B ) was correct the case before them was governed by the principle laid down in Balakrishnayya v. Linga Rao A. I. R. 1943 Mad. 449 which has been approvingly referred to. In the latter case it was held that:. . . 418 (F. B ) was correct the case before them was governed by the principle laid down in Balakrishnayya v. Linga Rao A. I. R. 1943 Mad. 449 which has been approvingly referred to. In the latter case it was held that:. . . THE Court to whose jurisdiction the subject-matter of the decree is transferred acquires inherent jurisdiction over the same by reason of such transfer and that if it entertains an execution application with reference thereto it would at the worst be an irregular assumption of jurisdiction and not a total absence of it and if objection to it is not taken at the earliest opportunity it must be deemed to have been waived and cannot be raised at any later stage of the proceedings. Considering these observations of the Madras High Court as the question involved before Their Lordships was the same as in the Madras case Their Lordships kept the further question open. Earlier a Division Bench of the Bombay High Court had an occasion to consider such a question in Jagannath Nathu and others v. Ichharam Naroba Vani A. I R 1925 Bom. 414 In the Bombay case a decree was being executed in the Court of the S. J. at Dhulia against two defendants both of whom had properties within the jurisdiction of the Court. During the pendency of the execution proceedings the property of defendant No. 2 passed under the jurisdiction of the Jalgaon Court. On the question of limitation for an execution application made to the Jalgaon Court it was held that the original application to the Dhulia Court was a step-in-aid of execution. The Division Bench took the view that the Dhulia Court was the Court which passed the decree and after certain territories within its jurisdiction had been transferred to the Court at Jalgaon then under the provisions of sec. 37 the Jalgaon Court would be deemed to be the Court which passed the decree. The Division Bench further held that in any event the lower Court Judge was right in holding that the darkhast was in time. Thus it appears from the decisions of the various High Courts and of the Supreme Court that there is a conflict of judicial opinion on the point. The Division Bench further held that in any event the lower Court Judge was right in holding that the darkhast was in time. Thus it appears from the decisions of the various High Courts and of the Supreme Court that there is a conflict of judicial opinion on the point. If in this situation the decree-holder filed the application to assert his right by going to one forum instead of to another it can only be said to be mistake of law and not ignorance of law. In case of mistake of law as aforesaid the Courts have almost uniformly taken the view that the time taken up by an applicant by asserting the rights in a wrong Court or wrong forum should be excused and the Courts have largely been influenced by the principle underlying sec. 14 Limitation Act. In any event I think the lower Court was right in holding that the execution application was in time. . . . . . . . . . . . . . . . . . . . . . . . . . Appeal dismissed. .