P L D 1962 (W (PLP)

7. It Is common ground that the period of limitation in this case is 3 years, although there is a difference of opinion between the learned counsel appearing for the parties as to Its starting point. Mr. Zamirul Haq, the learned counsel for the respondents, contended that the cause of action arose on the 5th of October 1951, when the goods were re‑sold, whereas Mr. Dingomal sub mitted that the starting date should be taken to be the 8th of November 1951, on which date the appellants submitted their claim amounting to Rs. 41,343‑9‑

3. It is clear to us that the starting point has to be the 5th of October 1951, on which date the goods were re‑sold on the account and risk of the respondents under the terms of the first award dated the 19th of September 1951. The period of 3 years, therefore, expired on the 5th of October 1954, that is before the second reference to arbitration was made on the 30th of March 1955. In other words, the delay is of 5 months and 25 days. Mr. Dingomal has put forward three alternatives regarding the period which should be excluded under section 14 of the Limitation Act: (a) The period from the date of the first award, that is the 19th of September 1951, to the date when the execution applica tion was rejected, that is 15‑2‑55, or (b) the period spent in making the first award a rule of the Court, that is from 19‑9‑51 to 23‑12‑52, or (c) the period spent in pursuing the application for the execution of the decree passed under the first award, that is from the 29th of September 1953, to the 15th of February 1955.

8. If section 14 of the Limitation Act applies to this case, then it is clearly the period mentioned in alternative (c) above which would be relevant for purposes of exclusion. The period spent in making the first award a rule of the Court cannot be considered in the present context for the reason that the cause of action which motivated the first reference to arbitration was not the same as formed the subject‑matter of the second refer ence. In the first case, it was the refusal of the respondents to take delivery of the contracted goods, whereas on the second occasion it was a claim for the recovery of a specified amount of money resulting from the failure of the respondents to carry out the terms of the first award. This was, however, exactly the cause of action of the execution application filed by the appellants. They were making a claim to a specific amount of money as loss sustained by them on the resale of the goods owing to the failure of the respondents to lift the same. It seems to us, therefore, that the time relevant in the present context is the time spent in prosecuting the execution application, namely, from the 29th of September 1953 to the 15th of February 1955, that is a period of one year and nearly 4 months. If this period is allowed to be excluded from the time taken by the appellants to make the second reference to arbitration, the latter would be within time.

9. While dealing with the question of the applicability of section 14 of the Limitation Act, the learned Single Judge has observed as follows: "Section 14 of the Limitation Act is not applicable because it applies where the time occupied could not bear fruit due to a defect of jurisdiction or other cause of a like nature and the Court was found to be unable to entertain it. In the present case there was no defect of jurisdiction and the Court was not unable to entertain the execution application. On the contrary it entertained the application and dismissed it on merits." The learned Judge also repelled an argument advanced on behalf of the appellants that the proceedings under the second reference to arbitration might be deemed to be a continuation of the first arbitration and, therefore, within time. Mr. Dingomal, however, A abandoned this part of the argument in view of the clear pro nouncement on this point by their Lordships of the Privy Council in Ramdutt Ramkissan Dass v. E. D. Sassoon & Co. (AIR 1929 P C 103).

10. Section 14 of the Limitation Act was exhaustively considered by a Full Bench of the Allahabad High Court in Mathura Singh v. Bhawani Singh and others (22 I L R All. 248), and we cannot do better than to refer to certain passages in the various judgments delivered in that case. Strachey, C. J., observed as follows:‑ " . . . It is necessary to bear in mind the essential object of section 14 and the principle which underlies it. The principle is, broadly speaking, the protection against the bar of limitation of a man honestly doing his best to get his case tried on the merits, but failing through the Court being unable to give him such a trial. That Is the principle ; and 1 think it is clearly applicable, not only to cases In which a man brings his suit in the wrong Court, that is, a Court having no jurisdiction to entertain it, but also where he brings his suit in the right Court but is nevertheless prevented from getting a trial on the merits by something, which, though not a defect of jurisdiction, is analogous to that defect. I think that the result of the authorities taken as a whole, and the view which I take of the true principle, may be fairly summarized by saying that if there was an inability in the Court to entertain the former suit produced by any cause not con nected in any way with want of good faith or due diligence in the plaintiff, that cause is of like nature to defect of jurisdiction within the meaning of section 14 of the Act."

11. Benerji, J., made the following remarks in this judgment: "It seems to me that section 14 applies where the plaintiff has acted in good faith and with due diligence, but where he has made some bona fide mistake of law, procedure or fact, which has precluded the Court from considering the issues involved In the case, either by reason of absence of jurisdiction, or by reason of rules of procedure prescribed in the Code of Civil Procedure, or some other cause of a similar nature ; the inability, however, of the Court to consider the case must not be due to wilful neglect or default on the part of the plaintiff."

12. Applying these principles to the case before them, namely, where the plaint had been returned because of misjoinder of plaintiffs and causes of action, their Lordships took the view that the same was covered by section 14 of the Limitation Act.

13. Two other cases were cited by Mr. Dingomal to illustrate the meaning of the phrase "or other cause of alike nature", occur ring in section 14 of the Limitation Act. In Kanhaiya Lal v. Suraj Karan and others (108 I C 134) an execution application under Order XXI, rule 50, C. P. C., was dismissed on the ground that a previous order removing the attachment of the property operated as a bar. The decree‑holder then instituted a fresh suit under Order XXI, rule 63, C. P. C., after the expiry of one year from the date of the removal of the attachment. It was held that‑ "Section 14 is not confined to defects of jurisdiction, but it also mentions "other causes of like nature". We have already pointed out that this Court refused to entertain the application of the 5th May 1919, and to consider the merits of it, on the ground that the order of the 6th September 1918, operated as a bar. If that bar could be removed there could be no difficulty in the application of the 5th May 1919, being maintained. Thus the reason why the application was thrown out was a reason contemplated by section 14, Limitation Act."

14. Again, in Abdul Sattar Choudhury and others v. Abdul Rusan and others (40 C W N 914) the plaintiff's application for the execution of their decree was held to be not maintainable in view of a previous order passed by the Court recording full satisfaction. The plaintiffs thereupon instituted a suit and sought to avoid the bar of limitation by asserting that the plaintiffs had been prosecuting the execution application. The learned Judges upheld the plea and considered that the case fell within the ambit of section 14 of the Limitation Act.

15. It will be seen, therefore, that section 14 of the Limitation Act comes into play if the following conditions are fulfilled: (a) That the plaintiff has been prosecuting another civil proceeding against the defendant ; (b) that he has been prosecuting it with due diligence ; (c) that this proceeding is founded upon the same cause of action ; (d) that it is prosecuted in good faith ; and (e) that it does not bear fruit because the Court is unable to entertain it due to defect of jurisdiction or other cause of a like nature.

16. The phrase "other cause of alike nature" is not capable of being defined with any precision or exactitude and it is no easy to lay down a hard and fast rule or to enumerate all the causes which should be regarded as of alike nature to absence of jurisdiction ; but any cause, unconnected with want of diligence or good faith on the part of the plaintiff, which precludes the Court from hearing the former suit or proceedings of the plaintiff on merits, is a cause which comes within the purview of section 14 of the Limitation Act. It would generally be a cause arising out of a bona fide mistake of law, procedure or fact which precludes the Court from considering on merits the issues involved in the case.

17. Now, in the present case we have already observed that the execution application presented by the appellants on the 29th of September 1953, and dismissed on the 15th of February 1955, was against the present respondents and was founded on the same cause of action, namely, claim for a specified amount of money resulting from the failure of the respondents to lift the goods, thus necessitating their resale by the appellants at a lower price. As regards the good faith of the appellants there is nothing on the record to show that they were acting otherwise. The same is the case with regard to their diligence. The Court refused to entertain the application because the decree relied upon by the appellants was not of an executory nature. Thus, it seems to us, that there was no decision on merits of the issues involved, but on the other hand, the Court observed that it could not entertain the application because it involved doing certain things like ascertaining the market rates and cost of insurance etc., which fell outside its purview while acting as an executing Court. Mr. Zamirul Haq suggested that the appellants should be deemed to be acting without the diligence as they did not follow the remedy provided in sections 15 and 16 of the Arbitration Act for modifying the award, so as to make it capable of execution. We are, however, unable, to subscribe to this view because we think that the circumstances clearly indicate that the appellants were acting bona fide in the belief that the decree in their favour was capable of execution. In other words, all that can be urged against the appellants is that they were acting under a bona fide mistake of law or procedure. This is not a case of want of diligence or good faith. On this view of the matter we have no doubt whatsoever that the present case is briefly one falling within the ambit of section 14 of the Limitation Act.

18. In view of our finding on the question of limitation it is not necessary for us to examine the other contentions raised by Mr. Dingomal. Mr. Zamirul Haq pointed out that the other objections raised by the respondents to the maintainability of the award have not been considered by the learned Single Judge on the original side, and they would need consideration even if the objection on the point of limitation falls.

19. On these considerations we would accept the appeal, set aside the order of the learned Single Judge and remand the case to him for considering the other objections raised by the respondents. The appellants shall have their costs of this appeal from the respondents. K. B. A. Appeal accepted.