P L D 1988 Supreme Court 409 (PLP)

SHAD SAOOD JAN, J.‑‑In execution of a money decree, 8 shops belonging to Raja Muhammad Afzal Khan, predecessor‑in‑interest of the appellants, in Lora Bazar of Tehsil Abbottabad were sold in a public auction. These were purchased by Abdullah Jan, respondent No. l. Raja Muhammad Afzal Khan filed a civil suit for a declaration to the effect that the sale was bad on account of fraud and irregularities. Later, he withdrew the suit and made an application under Rule 90 of Order XXI, Civil Procedure Code, before the executing Court for setting aside the sale. The application was admittedly barred by time. He made a prayer before the executing Court that as provided by section 14(2), Limitation Act, the time which he had spent in prosecuting the civil suit should be excluded in computing limitation. The learned executing Court rejected his prayer and dismissed the application both on merits and on the ground of limitation. He filed an appeal before the District Judge, Abbottabad. After re‑appraising the evidence on record the learned District Judge held that the conduct of the sale was replete with irregularities and also tainted with fraud. He took the view that as fraud had been established, the question of limitation did not arise. Accordingly, he accepted the appeal and set aside the sale. The auction purchaser then filed a second appeal in the High Court. A learned Single Judge upheld the finding of the District Judge on the issue of fraud and irregularities in the conduct of the sale but set aside the judgment of the District Judge on the ground that the application of Raja Muhammad Afzal Khan was barred by time and that he was not entitled to the exclusion of time which he had spent in prosecuting the civil suit. 2.? Leave to appeal was granted in this case to consider whether Raja Muhammad Afzal was entitled under section 14(2), Limitation A Act, to the exclusion of time spent in prosecuting a non‑maintainable suit. 3.? Section 14(2), Limitation Act,. reads as follows:‑ "In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of Appeal, against the same party for the same relief shall be excluded where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it." It will be noticed that in order to take advantage of the provision of this subsection, a litigant has to show that he had been prosecuting another civil proceedings with due diligence and that the other civil proceedings were prosecuted in good faith. Section 2(7), Limitation Act, states that nothing shall be deemed to be done with good faith which is not done with due care and caution. It is true that Raja Muhammad Afzal Khan instituted the civil suit within ten days of the confirmation of the sale and that he did not stand to gain any advantage by instituting an independent suit instead of approaching the executing Court under Rule 90, ibid, for getting the sale set aside. But then this is all that can be said in his favour. On the other hand, it is not disputed by the learned counsel for the appellants that a separate suit for getting the sale set aside was expressly barred by Rule 92(3) of Order XXI, Civil Procedure Code. Apparently, the bar treated by this sub‑rule was entirely overlooked by Raja Muhammad Afzal Khan and his counsel when he B brought the civil suit. It was thus, a case where clear and unequivocal provisions of law were disregarded when the 'other civil proceedings' were initiated. This could, therefore, hardly be treated a case where due diligence was shown in filing the civil suit or one where the suit was prosecuted with good faith in the sense in which this expression has been defined in section 2(7), ibid. It is to be noticed that in his written statement, respondent No. l had expressly objected to the competency Of the suit; yet, Raja Muhammad Afzal Khan persisted with his suit for almost a year before approaching the executing Court, with his application under Rule 90, O.XX1, C.P.C. It may be mentioned that in his application before the executing Court, he did not care to state the circumstances under which he had taken resort to the institution of an independent suit instead of approaching the executing Court immediately after he came to know of the sale. It is, therefore, clear that the preconditions necessary for the applicability of section 14(2) are absent here. In the circumstances, the High Court was right in holding that the application of Raja Muhammad Afzal Khan was barred by time. The appeal is without any merit and is hereby dismissed. There will be no order as to costs. M . B. A. /J‑25 /S????????????????????????????????????????????????????????? Appeal dismissed.