- (1.) Challenge in this appeal is to the order passed by a learned Single Judge of the Karnataka High Court allowing the Second appeal filed by the respondents under Section 100 of the Code of Civil Procedure, 1908 (in short the 'CPC'). The present respondents are the plaintiffs. They had filed the suit for specific performance of the contract on sale which was decreed by the trial court but was dismissed on the ground of limitation by the first Appellate Court and therefore the Second Appeal was filed.
(2.) Background facts in a nutshell are as follows: The plaintiff No.1's husband entered into an agreement of sale of house property No.CTS 2565, Ward No.5, of Mudhol corresponding Municipal No. 536, on 15-11-1974 for consi- deration of Rs.6,000/-. A sum of Rs.1000/- was paid and subsequently two sums of Rs.300/- and Rs.600/- were paid on 21-12-1974 and 13-8-1975. But in the mean time, a suit was filed by the defendant's wife and children in 0. S. No.72/76, wherein the plaintiff's husband was made a party. questioning the agreement of sale, and the suit came to be dismissed on 4-8-1977. The first appeal preferred in R. A.84/77 subsequently numbered as R, A, 83/79 came to be dismissed on 18-8-1979 and the second appeal preferred in RSA No.385/80 also came to be dismissed on 5-6-1980. Therefore the present suit is filed on 15.9.1981 for specific performance of agreement of sale. The defendant contended that the suit house belonged to his deceased father and his deceased father made an oral gift of the suit, property in favour of himself and his wife, and minor children by delivery of possession. As he had no source of income to meet his family needs, the deceased husband of the plaintiff promised to lend him money and the defendant agreed to give the property as security. Under such circumstances he executed the suit agreement and received loan from Modinsaheb. He has not parted with the possession. He further contended that the suit is barred by limitation and the plaintiff was never ready and willing. Ultimately, he resisted the suit by contending that the suit house is the only shelter for him and his family members he cannot be directed to comply with agreement of sale. The trial Court accepted the agreement as to the payment made thereon as correct, and holding that the defendant is not a debtor within the meaning of the relevant Act, granted the decree for specific performance rejecting the plea of non- joinder and loan raised by the defendant. The appellate Court found that the trial court is right in accepting the case of the plaintiff regarding the agreement and parting with the possession by way of part performance and also that no hardship would be caused to the defendant by grant of specific performance as provided under Section 20 of the Specific Relief Act, 1963 (in short 'the Act'). But on the ground of limitation, holding that the pendency of the other suit will not save the limitation within the meaning of section 14 of the Limitation Act, 1963 (in short 'Limitation Act') dismissed the suit. The second appeal was admitted on the following questions of law: "Whether the contention taken that the cause of action for filing the suit arises only, when the other suit questioning the title of his own wife and children, was over as per dictum of Lakshminarayana Reddiar v. Singaravelu Naicker & Anr. AIR 1963 Mad.24". The High Court noticed that as held by the Madras High Court in Lakshminarayan's case (supra) the time taken for redemption wherein the title deed was primarily involved has to be excluded under Section 14 of the Limitation Act. It was held that no contra decision was cited and, therefore, with reference to Section 113 of the Limitation Act, 1908 (in short the 'Old Act') this suit was within time.
(3.) Learned counsel for the appellant submitted that the true import of Section 113 of the Limitation Act has not been kept in view.;