GOYAL, J. - (1.) THIS is second appeal filed by the plaintiff-appellant. The parties in this appeal, hereinafter, would be referred as arrayed in the plaint.
(2.) THE plaintiff filed civil suit on 26. 11. 1974 for recovery of Rs. 3,200/- against the defendants, namely, Firm Sita Ram Dinesh Kumar and its partners Sita Ram and Bihari Lal with the averments that the plaintiff advanced Rs. 2,000/- upon interest @ 12% per annum. Two hundies-each for Rs. 1000/- were written in favour of the plaintiff to repay Rs. 1,000/- on 13. 11. 1969 and Rs. 1,000/- on 7. 12. 1969. But the defendants did not make any payment. THE defendants initiated the proceedings under Rajasthan Relief of Agricultural Indebtedness Act, 1957 (in short, `the Act, 1957') in the court of Civil Judge on 12. 12. 1970. THE court of Civil Judge dismissed that application on 1. 3. 1974 observing that the defendants are not agriculturists and the revision preferred against that order was also dismissed on 26. 9. 1974 and thus the suit has been filed within limitation. Vide written statement, all the averments were denied. It was also pleaded that the defendant No. 3 had no concern with the defendant No. 1 firm and the defendant No. 3 died two years ago and in proceedings under the Act, 1957, the plaintiff was not impleaded and thus the suit is barred by limitation. Issues were framed. Evidence was recorded. Vide judgment dated 27. 5. 1980, the learned Munsif, Kota (North) held that the hundi Ex. 2 is said to be signed by the deceased-defendant Bihari Lal, who has not been proved to be a partner of the defendant No. 1 firm and legal representatives of Shri Bihari Lal were not impleaded, hence the defendants are not liable to make any payment against Ex. 2 hundi. As far as amount of Rs. 1,000/- against Ex. 1 Hundi is concerned, it was signed by the defendant Sita Ram and thus he is liable to make the payment. On the issue of interest, the Trial Court allowed 6% interest per annum on the amount of Rs. 1,000/ -. On the issue No. 3 of limitation, it was held that the plaintiff was not made a party in the proceedings under the Act, 1957, hence cause of action cannot be said to have arisen on termination of those proceedings and thus this suit was filed beyond limitation and accordingly the suit was dismissed. The first appeal filed by the plaintiff was also dismissed by learned Additional District Judge, No. 1, Kota vide impugned judgment dated 25. 2. 1984 on the ground that the suit was filed beyond limitation, although the first appellate court set aside the findings of the Trial Court on issues Nos. 1 and 2 by holding that the plaintiff was entitled to Rs. 2,000/- and was also entitled to interest @ 12% per annum. In this second appeal, following substantial questions of law were framed on 18. 7. 1985:- (i) Whether the application of the appellant be taken in view of Section 5 of the Act and whether he can get that period excluded in view of Section 22 of the Act? (ii) Whether the suit of the plaintiff is barred by limitation in view of Section 5 and 22 of the Rajasthan Relief of Agricultural Indebtedness Act, 1957? (iii) Whether in the facts and circumstances of the case, the suit is barred by limitation or whether it is within limitation in view of the provisions of the Act? (iv) Whether the plaintiff-appellant is entitled to get the period excluded in view of Section 14 of the Limitation Act in the facts and circumstances of this case? All the four questions are co-related, hence are taken-up together.
(3.) AS per learned counsel for the plaintiff-appellant, the proceedings of civil suit were bound to be stayed as provided under Section 5 of the Act, 1957 and Section 22 of this Act clearly provides for exclusion of the period during which proceedings under this Act remained pending and this period was to be excluded under Section 14 of the Limitation Act, 1963 also. Per contra, learned counsel for the defendants-respondents contended that the two courts below have taken into consideration the material evidence on record and arrived at concurrent finding that the plaintiff did not initiate any proceeding and he was not shown as a creditor in the proceedings initiated by the defendant Sita Ram under the Act, 1957. Hence, no exclusion of period is permissible. I have considered the rival submissions. Section 5 of the Act, 1957 provides that whenever a suit or an insolvency petition against a debtor shall have been brought or made and pending in a competent court and such debtor or made and pending in a competent court and such debtor or the person who brought or made such suit or petition applies to such court in this behalf, the court shall abate such suit or petition if it is satisfied on affidavit or otherwise that an application to the Debt Relief Court under Section 6 or section 6a has been made admitted and is pending. Admittedly, the present suit was not pending at the time when the defendant Sita Ram filed application to the Debt Relief Court under Section 6 of the Act, 1957. Therefore, Section 5 of the Act, 1957 has no application in this case. ;