N.C. Mukherji, J. -
(1.)This Rule arises on an application under Sec. 115 of the Code of Civil Procedure and is directed against the judgment dated January 31, 1974, passed by Sri M.N. Ray, Additional District Judge, Second Court at Hooghly, in Mise. Appeal No. 147 of 1973 reversing the judgment dated August 6, 1973, passed by Sri A.K. Nandi, Subordinate Judge, Second Court, Hooghly, in Misc. Case No. 139 of 1972 arising out of T.S. No. 55 of 1970.
(2.)The facts of the case may briefly be stated as follows:
The Petitioner instituted a suit being T.S. No. 55 of 1970 in the Second Court of the Subordinate Judge, Hooghly, for specific performance of a contract for sale of land with structures and for other consequential reliefs. It appears that the service of summons in the said suit was effected on Sm. Parulbala Das, wife of the opposite party, on August 24, 1970. The said service of summons was accepted by the learned Subordinate Judge and as the opposite party did not appear the suit was decreed ex parte on January 18, 1971. Thereafter, the Petitioner started an Execution Case being Title Execution Case No. 7 of 1971 for having a sale deed in his favour on account of the default of the opposite party to do the same. The said deed executed through Court is dated July 9 1971 and the Execution Case was disposed of on August 17, 1971. The Petitioner thereafter brought another Execution Case being Title Execution Case No. 19 of 1971 for delivery of possession of the property through Court. In the said Title Execution Case the opposite party on February 4, 1972, filed an application under Sec. 47 of the Code of Civil Procedure on the ground that the Title Suit was filed on false and fraudulent statements, that summons and notice were deliberately suppressed. The opposite party or anybody else never received any summons. The decree was obtained fraudulently and the same was put into execution by deliberately suppressing all summons. It was alleged that the opposite party got information about the execution matters through one Prafulla Kumar Dutta, a local friend then he made an application for information on. November 22, 1971 and the information was obtained on December 13, 1971. On the same day when the application was filed another application for stay of delivery of possession was filed till the disposal of the application under Sec. 47 of the Code of Civil Procedure. The said petition was affirmed by Sm. Parulbala Das, wife of the opposite party, Additional objections were filed on September 14, 1972. The Misc. Case No. 9 of 1972 (arising out of the application under Sec. 47) was rejected by the learned Subordinate Judge on October 4, 1972. The opposite party filed an application under Order IX, Rule 13 of the Code together with an application under Sec. 5 of the Limitation Act. On the said applications Misc. Case No. 139 of 1972 was registered. The same grounds were taken in this application. It was further stated that under Sec. 47 the application was filed by Sri S.C. Ghosh and the learned lawyer died during the pendency of the petition. Thereafter, Sri B.B. Banerjee was appointed in his place and Sri Banerjee advised that an application for setting aside the ex parte decree ought to have been filed in the original Court. It was further stated that due to the advice of Sri S.C. Ghosh an application was filed under Sec. 47 and the application under Order IX, Rule 13 could not be filed earlier. The learned Subordinate Judge found that service of summons was not duly served, but he dismissed the Misc. Case as the application under Order IX, Rule 13 was barred by time. Before that the opposite party preferred an appeal against the order rejecting the application under Sec. 47. That appeal was dismissed on March 24, 1973. Being aggrieved by the order dismissing the application under Order IX, Rule 13, the opposite party preferred an appeal being Misc. Appeal No. 147 of 1973. The said appeal was allowed and being aggrieved, the Petitioner has come up before this Court.
(3.)Mr. Saktinath Mukherjee, learned Advocate appearing on behalf of the Petitioner, submits that the very grounds which were taken in the application under Sec. 47 were again taken in the application under Order IX, Rule 13. The additional ground which was taken in the second application is that due to the wrong advice of Sri S.C. Ghosh, learned lawyer, the opposite party filed an application under Sec. 47 of the Code. It was only after his death when a senior lawyer Sri B.B. Banerjee was appointed, he opined that Sec. 47 application was wrongly filed and an application under Order IX, Rule 13 ought to have been filed. After such legal advice was obtained the application under Order IX, Rule 13 was filed on October 5, 1972. Mr. Mukherjee in this connection draws our attention to some important dates. It is the admitted position that the information about the ex parte decree was obtained on the basis of information slip on December 13, 1971. There is, therefore, absolutely no reason why the application under Sec. 47 on the ground that an ex parte decree was obtained fraudulently, could not be filed within 30 days from the date of knowledge. Again, Mr. Mukherjee submits that after the death of Sri S.C. Ghosh, Sri B.B. Banerjee appeared in this case on August 18, 1972. Additional objections were filed by Sri Banerjee on September 14, 1972. But even then Sri Banerjee did not advise the opposite party to file an application under Order IX, Rule 13. Sec. 47 objection was disposed of on October 4, 1972. It is only after the disposal of the said objection that an application under Order IX, Rule 13 of the Code read with Sec. 5 of the Limitation Act was filed on October 5, 1972 The learned Subordinate Judge did not accept the contention of the opposite party that Sri S.C. Ghosh wrongly advised to file an application under Sec. 47. It was also noted by the learned Subordinate Judge that the brief was placed in the hands of an eminent lawyer of Mr. Banerjee's standing on August 18, 1972. Mr. Banerjee ought to have opined earlier that the present Mise. Case should be filed. It is seen that the opposite party proceeded with the Mice. Case through Mr. Banerjee until October 4, 1972, when the same was dismissed and it was only on the next day that an application under Order IX, Rule 13 was filed. The learned Subordinate Judge found that the period intervening between December 13, 1971 and February 4, 1972, remains unexplained both in the petition and in evidence and the intervening period is in excess of permissible one month. There has been no attempt to explain the delay either in the petition or in evidence. The learned Additional District Judge reversed the finding making the following observations:
The learned lawyer for the Petitioner submits that Sri S.K. Ghosh, Advocate, who is no longer in the land of living, would have been the best person to explain the delay between 13.12.71 and 4.2.72. In the circumstances, I find that there is substance in the contention of the learned lawyer for the Petitioner. It is true that after the death of Sri S.K. Ghosh it was continued by Sri B.B. Banerjee. After considering the evidence and materials on record, I find no reason to disbelieve the Petitioner on this point. In my opinion, the Petitioner should not suffer due to wrong advice given by the lawyer. Mr. Mukherjee submits that the learned Additional District Judge acted illegally in the exercise of its jurisdiction by proceeding merely on conjectures and surmises and by allowing the appeal on a case which was neither pleaded nor proved. The question that requires to be decided in this case is whether there is any explanation as to why the application under Sec. 47 could not be filed earlier when the information about the ex parte decree was obtained on December 13, 1971. Secondly, whether the entire period between February 4, 1972 and October 4, 1972, during which Sec. 47 application was being prosecuted can be excluded for calculating the period of limitation under Sec. 5 of the Act. To place before us the legal position on this point Mr. Mukherjee first refers to a decision in Brij Indar Singh v/s. Kanshi Ram and Ors., (1917) 44 I.A. 218. In this case it was held that - -
The time occupied by an application in good faith for review, although made upon a mistaken view o £ the law, should be deemed as added to the period allowed for presenting the appeal.
Mr. Mukherjee submits that this view applies only in a case of review and not in other cases. Mr. Mukherjee submits that there were other remedies open to the opposite party for taking steps against the ex parte decree. The opposite party chose to file an application under Sec. 47 in the Execution Case. He did not take any step for setting aside the ex parte decree under Order IX, Rule 13 or by preferring an appeal against the said decree. It is submitted that when concurrent remedies are available and if a party chooses one of the several remedies, then after being unsuccessful he starts another proceeding, the period obtained in the earlier proceeding cannot be added to the time requisite for starting the subsequent proceeding. In support of his contention Mr. Mukherjee refers to a decision in Abodh Bala Ghosh v/s. Radharani Dasi, I.L.R. 1950 (2) Cal. 252. It was held that - -
The period taken for prosecuting an application under Order IX, Rule 13 of the Code of Civil Procedure, which is dismissed on the merits, cannot be added to the time requisite for preferring an appeal from the ex parte decree itself. It is neither sufficient cause within the meaning of Sec. 5 of the Limitation Act nor is the principle of Sec. 14 of the said Act applicable to such cases.
The same view was taken in a case Uppala Subbaiah v/s. Chitrala Narsimloo, A.I.R. 1956 Hyd. 161. It has been held:
Where a party elects to choose one of the two remedies open to him and having failed therein wants to fall back upon the other remedy he cannot be allowed to invoke Sec. 5 and claim to exclude the period spent in pursuing the remedy that he elected to pursue first.
Mr. Mukherjee also relied on the decision Pokarmal Gurudayal v/s. Sagarmal Bengani, (1972) 76 C.W.N. 486 (507). Their Lordships observed as follows : To sum up the position we may observe that there may be extenuating circumstances justifying the application of Sec. 5 of the Limitation Act when a party is ignorant of his rights; but such circumstances are, indeed, rare. For instance, in the present case, if the Petitioner had stated that it was under the impression that there was no period of limitation for an application under Sec. 17B(1) owing to the impossibility of applying the relevant provisions, the Petitioner's case under Sec. 5 might have deserved careful consideration; but as we have pointed out, the only ground appears to be that the lawyers who were conducting the Petitioner's case before the trial Court, the first appeal Court and the second appeal Court never advised the Petitioner as to its rights under Sec. 17B until the Petitioner came to A.K. Dutt. A plea of this nature is, in our opinion, a plea of mere ignorance of law arising out of the Petitioner's neglect or failure to seek proper legal advice. On this plea we would not be justified in excusing the Petitioner's delay under Sec. 5 of the Limitation Act.