- (1.) THIS appeal by the plaintiff arises out of a suit for recovery of Rs. 600/- from the defendants by sale of the mortgaged property. The plaintiff alleged that the defendants had obtained a loan of Rs. 600/- from him and had executed a deed of usufructuary mortgage mortgaging with possession certain properties detailed and described in the plaint. The mortgage deed was executed on 3-4-1942 and the time fixed for payment under the mortgage was five years. Since the defendants failed to repay the loan a suit for the said relief was filed.
(2.) THE suit was resisted by the defendants on a number of grounds, one of them being that the suit was barred by time. THE trial court held that the suit was filed within limitation, it also accepted the contentions raised by the plaintiff and repelled the allegations made by the defendants. THE suit was accordingly decreed for Rs. 600 against the defendants and a preliminary decree was ordered to be passed accordingly. Against that decision the defendants preferred an appeal. The appellate Court below concurred with the trial court that the defendants had borrowed a sum of Rs. 600 from the plaintiff, but it held that the suit was barred by time. It seems that benefit of Section 14 of the Limitation Act was sought for by the plaintiff. That benefit was allowed by the trial court but was disallowed by the appellate Court below. The appeal was accordingly allowed and the suit was dismissed as being barred by time. The plaintiff has now come up to this court on Second Appeal. For the appellant it was urged that the appellate Court below had erred in holding that the suit was barred by time and it also erred in not giving him the benefit of Sec. 14 of the Limitation Act. The aid of S. 14 aforesaid was resorted to before me as well. Section 14 of the Act provides that in computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable in entertain it.
(3.) IN order to invoke the provisions of S. 14 of the said Act the following conditions have, therefore, to be satisfied :- (i) The plaintiff must be shown to have prosecuted another civil proceeding in another Court against the defendant with due diligence. (ii) The proceedings should relate to the same matter in issue. (iii) The proceeding in the former Court must have been prosecuted in good faith. (iv) The former Court was unable to entertain the suit for want of jurisdiction or other cause of the like nature. In the case in hand the plaintiff had initially filed the plaint in the Court of Munsif North Lucknow on 11-4-1959 against the defendant-respondents. The Munsarim made his report on the said plaint on 11- 4-1959 to the effect that the suit did not lie within the jurisdiction of the Court whereupon an order was passed by the Court on 11-4-1959 for return of the plaint for presentation to proper court as the suit did not tie within the jurisdiction of the Court. There is an endorsement on the plaint to the effect that the plaint was actually returned to the plaintiff on 14-4-1959. Thereafter it was filed by the counsel for the plaintiff in the Court of Munsif South, Lucknow on 14-4-1959. It may be mentioned here that the limitation for filing the suit expired on 13-4-1959. Thus the suit filed in the Court of Munsif South on 14- 4-1959 was barred by one day.;