Monjula Bose, J. - (1.) The point of law which arises for determination in this suit, is whether the plaintiff can take advantage of Section 14 of the Lim. Act, 1908 by reason of earlier proceedings and thereby save limitation ?
(2.) The plaintiff instituted this suit on March 21. 1960. The case in the plaint is inter alia that in May 19, 1919, the then Corporation of Calcutta acquired premises No. 12, Naya Katna Lane, Calcutta (hereinafter referred to as the said premises) for development purposes. The predecessor in interest of the defendants the then owners of the said premises, made an application for retention of a portion of the said premises as not being required for the said development purposes under Section 375 (2) of the Calcutta Municipal Act, 1899, then in force. After several proceedings it. appears the owners as directed, elected to pay an annual fee of Rupees 1,641/- and the then Corporation of Calcutta refrained from acquiring the surplus land. It is alleged that the owners failed to pay the said exemption fee from March 24, 1951 till March 23, 1959 and the plaintiff as the successor in interest of the Corporation constituted under the 1899 Act become entitled to a sum of Rupees 13,128.00 p. for the said period with interest thereon at 6% p. a. aggregating to a sum of Rs. 15,884.88 p., which amount the plaintiff seeks to recover in this suit.
(3.) It is contended that no part of the plaintiffs claim is barred by limitation as the plaintiff had been prosecuting an earlier proceeding founded on the same cause of action with due diligence and good faith. A suit, being Suit No. 815 of 1952 was instituted by the Corporation in Feb., 1952 against the defendants for recovery of arrears of exemption fee for a period from March 1939 till March 1957, claiming the same to be a charge on the said premises. A mortgage decree was passed on January 12, 1956 by the trial Court in favour of the plaintiff on the basis that the said fee formed a charge on the said premises. On appeal, the decree was partly set aside on May 13, 1959 by the Appeal Court, which held that the said fee did not form a charge on the said premises.;