91 44 V Civil Revision NoA427 of 1994 4 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 4 Civil Revision NoA427 of 1994 l Dateof OrderSSOctober 2009 l Avta Singhand others Petitioners 1 Versus 0 Sohan Singhand others espondents C I CORAM HONBLE MR JUSTICE RAJIVE BHALLA C5 I Present Mr Arun Jain Senior Advocate with Mr Amit Jain Advocate for the petitioners Z Mr Rahui Sharma Advocate for respondent no Q RAJIVE BtLA J 08 The petitionerschallengean order dated 09 1994 passedby the Sub Judge Ist Class Kapurthala dismissingthe application for 7 Z settingaside the judgmentand decree dated 12 091 990 passedagainst Darshan Singhthe deceasededefendantrl as barred bytime Before prcceediIlgto decide the disputeon ments It WOUId be appropriate to narrate the facts Sohan Singh and Jagtat Singh respondents nol and 2 filed Civil Suit No 43 of 31 1987againsttheir brother Darshan Singh claimingequalrightsin the propertyieft behind iov their father Kabul Singh Darshan Singhcontested the suit byailegingthat Kabul Singhhad executed a will dated 23 J86 bequeathing the entIre property In his favour Duringthe pendencyof the suit Darshari Singh soid a part of the suit Iand to petitioners no to 3 vide sale deeds dated 21 0 1988 and 238 1988 and moi1gaged a parf of the suit Iand vide rnortgage deeds dated 101J21 988 and 141 21 987 to peliiionersnc 8110 . Rashmi 2012.08.09 15: 04 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 92 Civil Revision NoA427 of 1994 A 1 5 Before the suit could be decided Darshan Singh passed away 1 Respondents no 1 and 2 and Resham Kaur widow of Darshan Singh respondentno 8 entered into a compromisewherebytheyagreedthat respondents no 1 and 2 would be owners to the extent of 213dshare and Resham Kaur would be owner to the extent of 113 share of the suit property A decree dated 12091 990 was accordinglydrawn up in terms of this compromise In execution proceedingsinitiatedby respondents nol and 2 0 C warrants for joint possessionwere issued The petitioners filed I C0 obJectionsclaimingthat as theyare bona6depurchasersand mortgagees I without knowledgeof the pendingsuit theyare not bound by the decree Z under execution The executingcourt dismissed the objectionsas not maintainable but held that the remedyif any is to file an applicationfor r being impleadedas Iegal of Darshan Singhin the original I suit a5 The petitionersthereafter filed an applicationunder Order 22 7 Rule 4 as amended bythe Punjaband HaryanaHighCourt prayingthat as theyare Iegalrepresentativesof Darshan Singhdeceased the judgment tl and decree dated 12 09 1990 should be set aside and the suit should be tried on merits The applicationwas accompaniedby an applicationfor condonation of delayunder Sections 5 and 14 of the LimitationAc The petitioners asserted that as theyare bonafide purchasersand inortgagees unaware of the pehdencyof the civil suit theyare not bound bythe decree dated 12091990 which has been obtainedbyabandoning the defence set up by Darshan Singh The respondentsopposed the applicationby assertingthat the applicationIS barred by Iimltation On merits the respondentspleadedthat Darshan Singhand his widow were dulyserved and had filed their written statement It was the duty of ccunsel lor Darshan Singhto inforrnthe Court about the death of Darsrjan Singh lhe . Rashmi 2012.08.09 15: 04 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 93 Civil Revision NoA427 of 1994 3 j petitioners who are vendees pendenteIitefrom Darshan Singhare bound 1bythejudgmentand decree passedagainsttheir vendor The trial court dismissed the applicationby holdingthat though the petitioners can be impleadedas Iegal of Darshan Singhdeceased the applicationIS barred by time The triai court therefore did not consider the prayer for settingaside the judgmentand decree and proceedingwith the suit afresh 0 Counsel for the petitionerssubmits that the trial coun erred in C dismissingthe applicationas barred by time The petitionersfiled I C5 objections on the bonafide advice of their counsel The objectionswere I dismissed as not maintainableand therefore the periodspentin pursuing Z the obJections has to be excludedunder Section 14 of the LimitationAct It A IS further arguedthat the principleof Iis pendensdoes not applyto the C petitioners as respondentNos 1 2 and 8 colluded with one another by abandoningthe defence set up by Darshan Singhwhile obtainingthe a5 decree a Counsel for the respondentshowever submits that the applicationwas admittedlyfiled more than three years after the death of 0 Darshan Singh The petitionerscannot be allowed to exclude the periodof three years spentin pursuingtheir objectionsas subule 61of Rule 41of Order 22 allows condonation of delay under Section 5 but not under Section 14 of the Limitation Act As a consequence the delayeven if occasioned by a bonafide pursuitof a wron9remedycan notbe a ground to condone the delayin the filingof the application It is further submitted that Sections 5 and 14 of the LimitationAct applyto different situations Seclion 5 applieswhere a partyis able to show suHicient cause for delay whereas Section 14 excludes the time spent in the bonafide pursuitof a wrongremedy It is funher arguedthat the error if at ali by their counsel Ill filingobjectionsbefore the ExecutingCourt cannot be held to be the r . Rashmi 2012.08.09 15: 04 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 94 8 Il Civil Revisiorl NoA427 of 1994 4 1 bonafidepursuitof a wrong remedyso as to allow exclusion of this while computing the periodof Iimitation have heard counsel for the partiesand perusedthe impugned order From the argumentsaddressed by counselforthe parties the main questionthat emerges for consideration IS Whether the provisions C2 ofSection 14 of the LimitationAct appiyto an application fiied under Order 22 RuIe 4 subarules641and 51for settingaside a judgmentand decree 0 C passed against a deceased defendant without impleadinghis Iegal I C5 I Order 22 Rule 4 subules 51and 61as amended bythe Z the Punjaband HaryanaHighCourt read as follows Order 22 Rule 4 111 No abatement by partys death if right to sue I survives e Xx Xx Xx C6 21 Xx XX XX 17 31 Where within the time Iimited by Iaw no Z application is made under sub rule l l the suit shall not abate as againstthe deceasedm defendant and judgment be pronounced the death and shall have the same force and effect as lf it had been pronounced before the death took place 41 If a decree has been passedagainsta deceasec defendant a person claimingto be his Iegal representativemay apply for setting aside the decree qua him and if it is provedthat he was not aware of the suit or that he had not interltionally failed to make an applicationto bringhimself on . Rashmi 2012.08.09 15: 04 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 95 Civil Revision NoA427 of 1994 5 the record the Court shall set aside the decree uponsuch terms as to costs or otherwise as thinksfit 51 Before settingaside the decree under suterule the Court must be satisfied primacie that had the Iegai been on the record a i different result mighthave been reached in the suit 0 C3 61 The provisionsof Section 5 of the Limitation Act I 1 C5 1963 shall applyto sub rule 1 I Sub rule 31 prescribesthat where within the time Iimitedby Iaw Z no applicationIS made under subule 1 the suit shall not abate as against the deceasediefendant and judgment be pronounced the death Sub rule 41prescribesthat if a decree has I beeri passedunder sub rule 31 any person claimingto be the Iegal a5 representativeof the deceased defendant may applyfor settingaside the decree qua him andifhe provesthathe was not aware of the suit or that 7 he had not intentionally failed to make an applicationfor beingimpleaded as a party the court shall set aside the decree upon such terms as to costs or otherwise as it thinks6t Sub rule Sl prescribcsthat before setting aside such a decree the court must be satisfied that had the Iegal representatives been on record a differentresult mighthave been reached in the suit Sub rule 61of RuIe 4 postulatesthat the provisionsof Section 5 of the LimitationAct 1963 shall applyto an applicationOled undersube rule It is therefore apparentthat where a judgmentand decree IS 1 passed againsta deceasededefendant his Iegalrepresentatives may prayfor settingaside such a judgmentand decree providedtheysatisfythe ingredientsset out in subules 51and 61of Rule 40f Order 22 of the Code . Rashmi 2012.08.09 15: 04 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 96 Civil Revision NoA427 of 1994 m6 The argumentthat as subule 61permitscondonation of winder Section 5 and not under Section 14 of the LimitationAct the period spent in a bonafide prosecutionof an erroneous remedy cannot be excluded whlle computingIimitationinan applicationfiied under subules 41 and 51of RuIe 40f Order 22 of the code cannot be acceptedit is true that subule 61does not refer to Section 14 of the Limitation Act and 1 C therefore at first blush the argumentthat Section 14 does not applyto an applicationfiied under subles 41appears to be correct However this 0 C argumentmust fail in view of the provisionsof Section 2921 of the I 40 Limitation Act which read as followsl I U29 SavingSe Z 11 Xx XX Xx 21 VVhereany specialor Iocal iaw prescribesfor r any su appealor applicationa periodof Iimitation I different from the periodprescribedby the Schedule 08 the provisionsof section 3 shall applyas if such period W2 were the periodprescribedbythe Schedule and for the purpose of determiningany period of Iimitation prescribedfor any suit appealor applicationby any special or iocal Iaw the provisionscontained 1tl sections 4 to 24 nclusivelshall applyonlyin so far as and to the extent to which they are not expressly excluded bysuch speciaior Iocal Iaw 31 Section 29 21of the LimitationAct postulatesthat whete any special or Iocal Iaw prescribesany periodof Iimitation diHerent from the periodprescribedby the ScheduIe to the LimitationAct the provisionsof Section 30f the LimitationAct 1 the bar of Iimitation shall applyas if the periodhad been prescribedunder the Limitation Act Section 2921 further providesthat Sections 4 to 24 of the . Rashmi 2012.08.09 15: 04 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 97 V 1 Civil Revision NoA427 of 1994 ee7m Limitation Act shall applyto any suit applicationor proceedings l Insofar and to the extent theyare not expresslyexcluded by any specialor Iocal Iaw It would necessarilyfollow that where a specialor Iocal Iaw does not expresslyexclude the applicabilityof Sections 4 to 24 of the Limitation Act these provisionsshall applyto any suit applicationor proceedingsunder the Code A perusalof submrule61discloses that it does not expressly exclude the applicabilityof Section 14 of the Limitation Act The mere 0 C absence of a reference to Section 14 of the LimitationAct in subule I C5 would not raise an inference that Section 14 of the LimitationAct stands I excluded from its applicabilityto an applicationfiled under suberule 41of Rule 40f Order 22 of the Code For this conclusions sustenance nlay be drawn from a Judgmerltof Honble SupremeCourt reportedas GonsoNdated Encneennq Entemnses V Principal Secrety I nation Department and others 2008 S l where while a5 considering a sirnilar questionthoughin the corltext of the provisionsof m The Arbitration and ConciliationAct 1996 the Honbie SupremeCourt held Z as foilowsl 20 Section 2921 of the Limitation Act inter alia providesthat where any specialor Iocal Iaw prescribes for any suit appealor application a periodof Iimitation different from the periodof Iimitationprescribedby the Schedule the provisionsof Section 3 shall applyas if such periodwas the periodprescribedby the ScheduIe and for tho purpose of determiningany period of Iimitationprescribedfor any suit appeol or application by any specialor Iocal Iaw the provisionscontained In Sections 4 tc 24 shall applyonlyinsofar as and to the extent theyare not expresslyexcluded by such special . Rashmi 2012.08.09 15: 04 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 98 Civil Revision NoA427 of 1994 8 3 or Iocal Iaw When any specialstatute certain periodof Iimitation as well as provisionfor extension up to specifiedtimeimit on sufficient cause beingshown then the periodof Iimitationprescribed under the specialIaw shall prevailand to that extent the provisionsof the Limitation Act shall stand 1 excluded As the intentionofthe Iegislature in enacting subsectior31 of Section 34 of the Act is that the 0 3 applicationfor settingaside the award should be made I C5 within three months and the period can be futther I extended on sufficient cause beingshown by another Z periodof 30 daysbut not thereaflcr this court is of the opinion that the provisionsof Section 5 of the Limitation Act would not be applicabiebecause the I applicability of Section 50f the Limitation Act stands a5 excluded because of theprovisionsof Section 2921of the LimitationAct However merelybecause it is held m that Section 50f the LimitationAct is not applicable10 an applIcationfiled under Section 34 of the Act for settingaside an awa one need nct conclude that provisionsof Section 14 of Iho Limitation Act would also not be applicableto an applicationsubmitted under Section 34 ofthe Act of 1996 Il Another judgmentthat may be referred to IS reported as Jude Tod 2006161 SC 125State of G V Mls Western BuiidersI 1 5 But there is no provisionmade in The Arbitration and ConciIiationAct 1996 that if any partyhas bona fidely prosecutedits remedybefore the other forunl which . Rashmi 2012.08.09 15: 04 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 99 4 e4 Civil Revision No4427 of 1994 9m had no jurisdictionthen in that case whether the spent 117prosecutingthe remedybona fidelyin that court can be excluded or not As per the provisionof subvsection 31 of Section 34 which prescribesthe period of Iimitation 3 months for moving the applicationfor settingaside the award before the court that periodof Iimitationwill be applicableand not the period of Iimitation prescribed in schedule under 0 0 Section 3 of the Limitation Act 1963 Thus the I 0 provision of movingthe applicationprescribedIn Limitation Act shall stand excluded by virtue of sul Z section 21 of Section 29 as under this special enactment the periodof Iimitationhas alreadybeen prescribed Likewise the period of condonation of I delayle 30 daysby virtueof proviso a5 18 There is no provisionin whole of the Act which prohibit discretion of the Court Under Section 14 of the 7 Z Limitation Act if the party has been bona fidely m prosecutinghis remedybefore the court which has no jurisdiction whether the period spent In that proceedingsshall be excluded or no Leamed counsel for the respondenthas taken us to the provisionsof the Act of 1996 Iike Section 5 Section 8 11 Section 9 Section 11 sulsectiot4191 and subsection 31of Section 14 Section 27 Sections 34 36 37 3921 41 Section 41 subsectiur21 Section 42 and 43 and tried to ernphasiswith reference to the aforesaid sections that theIegislature whersver wanted to givepower to the court thathas been incorpoatedin . Rashmi 2012.08.09 15: 04 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 400 NoA427 of 1994 1 0 the provisionstherefore no furtherpower should Iie in 1 the hands of the court so as to enable to exclude the period spent Ill prosecutingremedybefore other forum It is true but at the same time there is no prohibitionincorporated in statute for curtailingthe powerof the court under Section 14 of the Limitation 1 r Act Much dependsupon the words used in statue 8 not generalprinciplesapplicableBy vinue of Section 0 C 43 of the Act of 1996 the LimitationAct appliesto the I C5 proceedingsunder the Act of 1996 and the provisions I of LimitationAct can onlystand excluded to the exlent Z wherever different periodhas been prescribedunder the Act 1996 Since there IS 110 prohibitionprovided under Section 34 there is no reason whySectioo 14 of I LimitationAct cant be read in Act of 1996 which will 08 advance the cause of justicef statute is silenl and there is no specificprohibitionthen statute should be 7 Z interpretedwhich advances the cause of justice Our attention was invited to various decisions of this Cou bul we shall refer to a few of them which has some relevance It It is therefore beyonddebate that where a specialstatute does not specificailyexclude the applicability of the provisionsof Sections 4 to 24 of the LimitationAct these provisionswould applyto a suit appealOr application As neither the Code of Civil Procedure nor ttie amended provisions of Rule 4 ie subles 41 51and 161specificallyexclude the applicability of Sections 4 to 24 of the Liinitatiotl Act the pvisions 01 Section 14 would applyto an applicationfiled under sublle of Rule 4 of Order 22 of the Code for settingaside a judgnleritand decree passed t . Rashmi 2012.08.09 15: 04 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 401 t Civii Revision NoA427 of 1994 41 l againsta deceasededefendant withoutimpleading 4 The next questionis an appendageof the first questionCounsel for the respondentshas arguedthat as SecUons 5 and 14 operate Ill differentfields the absence of a reference to Section 14 of the Limitation Act Itl sutrule 61 would necessarilybar a court from entertaining an applicationunder subule 61read with Section 14 of the LimitationAct j There can be no quarreiwith the argumentthat as Sections 5 of the LimitationAct requiresan applicantto show sumcient cause for the delay 0 C whereas Section 14 of the Limitation Act providesfor exclusion of the I C5 period spent in a bonafide prosecutionof a wrong remedydespitethe I exercise of due diligence The diHerence between Sections 5 and 14 wouid not give rise to a conclusion that the absence of a reference to Z Section 14 in Suberule 61 would oust its applicabilityin view of the r provisionsof Section 2921of the LimitationAct I In view of what has been observed in the precedingpart of this a5 judgmentit is held that the provisionsof Section 14 of the LimitationAct would applyto an application Oledunder Order 22 RuIe4 for settingaside a 7 Z judgmentand decree passed againsta deceaseddefendant without impleading his Iegalrepresentatives The next questionthat requiresconsideration is whether in the facts and circumstances of the presentcase the petitionerswho have been held to be the Iegalrepresentativesof Darshan Singhdeceased have satisfied the requirements of Section 14 of the LimitationAct In order to succeed in an application filed under Section 14 of the LimitationAct the applicantwould be requiredto establish due diligence and good faith in prosecutinga wrong remedy Section 14 aHords protectionto Iitigantsagainstthe bar of Iimitation when on accountofa bonafideerror proceedings are institutedbefore a wrong court An element of mistal IS inherent in an applicationfiled unoer Section 14 and . Rashmi 2012.08.09 15: 04 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 402 t Civil Revision NoA427 of 1994 42 0 1 therefore the section providesrelief where a partyselects a wrong 1 account of a bonafide errorFhe wron9advice of a counsel in my consideredopinioncannot be excluded from the scope of Section 14 and if established may be sufOcientto exclude the periodspent in pursuitof a wrongremedy In this regarda reference may be made to paragraph22 of the Judgmentof Honble SupremeCourt in Consolidated Engineeg L Epies v Plincipal Secretarv Irriqation Depament and oth 0 supra 0 22 The policyof section is to afford protectionto a Iitigant I C5 against the bar of Iimitation when he institutes a I proceedingwhich by reason of some technical defect cannot be decided on merits and is dismissecl While consideringthe provisionsof Section 14 of the LimitationAct proper approachwill have to be adopted I and the provisionswill have to be interpreted so as to 08 advance the cause of justicerather than abort the m proceedingst will be well to bear it7 mind that an Z element of mistake is inherent in the invocation of Qm Section 1 ln fact the section is intended to provide relief againstthe bar of Iimitationin cases of mistakcn remedyor selection of a wrong forum On readirIg Section 14 of the Act it becomes clear that the Iegislaturehas enacted the said section to exeml5t a certain period covered by a bonafide Iitigiousactivity Uponthe words used in the section it is not possibleto sustain the that the principleunderlying the said section namely that the bar of Iirnitaticn should not affect a perSonhonestlydoing his best to gel his case tried on merits but failirigbecause lho . Rashmi 2012.08.09 15: 04 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 403 CiviI Revision NoA427f 1994 4 3e 1 court is unable to givehim such a trial would not be 44 applicableto an applicationfiled under Section 34 of the Act of 1996 The principleis clearlyapplicablenot onlyto a case in which a Iitigantbringshis application in the Coutt that is a court havingno jurisdictionto entertain it but also where he bringsthe suit or the application in the wrong ourt in consequence of bona fide mistake or SlC oo Iaw or defect of procedure 0 C Havingregardto the intention of the Iegislaturethis I C5 Coutt is of the firm opinionthat the equityunderlying I Setion 14 should be appliedto its fullest extent and Z time taken diligentlypursuinga remedy in a wrong court should be excludecl I The petitionersurge that the period spent In prosecutingthe 08 objectionsfiled before the Executingcourt has to be excluded as they reposedimplicitfaith in the advice of their counsel and despitethe exercise mm of due diligencewere not aware that his advice was wrong The trial court has held that the wrong advice of the counsel cannot be acceptedas a ground to exclude the period spent in prosecutingthe objectionsfiled before the ExecutingCourt The findingrecorded by the trial coui1 in my considered opinionis flawed A Iitigantinitiatesproceedings cn the implicit fith that the advice profferedby his counsel is correct and bonaOde To hold that the advice of a counsel that IS subsequentlyfound to be erroneous cannot be a groundto exclude the periodspentin prosecuting a wrong remedywould in my considered opinionbe a travenityofjusticeas such a view would deprivea Iitigant of an adjudicatory forum In the present case a counsei advised the petitionersto file objectionsbefore the ExecutingCoun The ExecutingCoun held that the . Rashmi 2012.08.09 15: 04 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 404 Civil Revision No427 of 1994 14 6 j objectionsare not maintainableand made an observation that the correct to file an application for beingimpleaded as Iegal of the deceaseciefendant As stated hereinbefore inherent in a plea raised under Section 14 of the Act is a bonafide but erroneous choice of a jurisdictional forum selected despitethe exercise of due diligence In the present case the error on the part of the counsel Ill advisingthe 1 petitionersto file objectionscannot be held againstthe petitionersIt IS true that ignorance of Iaw is no excuse but courts have often take a 0 C pragmatic view that the wrong advice of a counsel is a groundfor invoking C5 the provisionsof Section 14 of the LimitationAct It has been repeatedly held that a bonafide error made bya counsel should not visit a partywith Z consequences that deprivesuch a partyof an adjudicatory forum In view of what has been stated herein above am satisfied that the filing of objectionsbefore the ExecutingCourt was a bonafide prosecutionof a wrong remedyand therefore the period spent Ill a5 prosecutingthe wrong remedyhas to be excluded while computing iimitationunder subule 61of RuIe 40f Order 22 of the Code of Civil V7 Z Procedure Before partingwith the judgmentit would be necessary to mention that the suit Iandwas sold and mortgaged to the petitionersduring the pendencyof the suit A vendee pendenteIite IS bound by any judgementthat has been passedagainsthis vendor The onlyexception to this rule is where the decree has been obtained by collusior The petitioners have allegedthat respondents no 1 and 2 colluded with the