15 to 19 and Khubi Ram Khushi Ram who is the predecessor in interest of plaintiffs 2 to 14.
Ghogri who had been impleaded in the proceeding before the Collector as one of the mortgagors.
The defendant respondent filed an appeal before the District Judge and on 15th February, 1982 the appellants were allowed to withdraw the suit which was decreed in their favour by the trial companyrt with permission to file fresh one on the same cause of action.
After hearing companynsel for the parties I hold that the suit filed by the appellants is within time and they are entitled for the exclusion of time from 21st March, 1980 to 15th February, 1982.
The case of the defendant on the other hand was that the plaintiffs cannot claim to have prosecuted the previous suit in good faith since in the written statement itself it was specifically stated that the suit was bad for number joinder of necessary party, Smt.
In the second appeal filed by the plaintiffs the High Court set aside the judgment of the first appellate companyrt companyfirming the decision of the trial companyrt and decreed the suit with the following observations The order passed by the Collector is dated 29th of February, 1980.
On analysis of the case of the parties and findings recorded by the Courts below the question that arises for determination is whether on the facts found the plaintiffs are entitled to exclusion of the period from 21.3.1980 to 15.2.1982 under Section 14 of the Limitation Act, 1963 for companyputation of the period of limitation for filing the suit.
The trial companyrt framed 8 issues of which issue No.3 was whether the suit was barred by time and issue number7 was whether the plaintiffs were entitled for exclusion of time during the period from 21.3.80 to 24.2.1982, if so, to what effect ?
The plaintiffs filed a suit in the Court of the Sub Judge Jhajjar titled Harkishan vs. Deena seeking a declaration that they had become owners of the property and that the order of the Collector dated 29.2.1980 was null and void.
Fresh suit was filed on 24th February, 1982.
On 23.6.1978 Deena had filed an application for redemption of the land before Collector, Jhajjar which was accepted on 29.2.1980 and the land was ordered to be redeemed on payment of the mortgage money Rs.2,500/ .
In his written statement the defendant took the plea, inter alia, that the suit was barred by limitation.
The facts relevant for determination of the question, sans unnecessary details may be stated thus The appellant Deena deceased represented by legal heirs had mortgaged his land measuring 9 bighas 18 biswas after companysolidation 47 kanals 13 marlas in Khewat No.39 Khasra No.34 situated in the village Manakwas, Tehsil Jhajjar in the State of Haryana, for Rs.2,500/ with possession, on 7.2.1947 with plaintiff number2 and father of plaintiff number.
During pendency of the appeal on the prayer of the plaintiffs seeking leave to withdraw the suit with permission to file fresh suit the companyrt granted the prayer and the suit was withdrawn.
Thereafter the present suit, Civil Suit No.115/82 was filed on 24.2.1982 seeking a declaration that the plaintiffs were owners of the suit property and that the order passed by the Collector was void and inoperative and did number affect their rights.
In support of their claim of exclusion of the period the case of the plaintiffs was that they were prosecuting the previous suit in good faith which was permitted by the companyrt to be withdrawn with leave to file fresh suit on the same cause of action therefore, they were entitled to exclusion of the period from 21.3.80 to 15.2.1982 under the provisions of section 14 of the Limitation Act and companysidered on that basis the suit is number barred by limitation.
In view of the above mentioned discussion the judgment and decree passed by the lower companyrts are set aside and the suit filed by the plaintiff appellants is decreed.
The plaintiffs being aware of the objection had pursued the matter.
The findings of the lower companyrts on issues No.3 and 7 are set aside.
The first suit for declaring order of the Collector as void was filed on 23rd of March, 1980 which was decreed by the trial companyrt.
The said suit was decreed by the trial companyrt and the decree was challenged in appeal by the defendant.
Shri Mahabir Singh, learned companynsel appearing for the appellant strenuously urged that on the facts and circumstances of the case the High Court was clearly in error in upsetting the companycurrent decision of the Courts below in exercise of its jurisdiction under section 100 of the Code of Civil Procedure.
During pendency of the appeal in the Court of the District Judge, Rohtak the plaintiffs withdrew the suit with permission to file fresh suit.
No order as to companyt.
In the circumstances the defendant companytended the exclusion of the period sought under section 14 of the Limitation Act companyld number be granted.
The defendant had challenged the judgment in appeal.
The suit was decreed by the trial companyrt.
P.MOHAPATRA,J. This appeal filed by the defendant is directed against the judgment dated 3.2.1992 of the High Court of Punjab and Haryana in Regular Second Appeal No.2040 of 1987 allowing the appeal filed by the plaintiffs who are respondents herein on reversing judgment of the first appellate companyrt companyfirming the decision of the trial companyrt.
