JUDGMENT
1. In the former suit there was no prayer for an injunction nor did the Court give an injunction. Therefore, here was nothing in the decree of the District Munsif, the obedience to which involved a restraint on the present plaintiff preventing him from filing the suit earlier. In this respect this case resembles the decision in Putti Sethu Rao v. Seetha Lahshmi Ammal 89 Ind. Cas. 938 : 21 L.W. 716 : A.I.R. 1925 Mad. 1188. It is unnecessary to repeat the reasons given in that case to which one of us was a party. It is true that the decision in the Secretary of State for India v. Zemindarni of Vegayammapeta Estate 59 Ind. Cas. 98 : 12 L.W. 334 has since been reversed by the Judicial Committee on the intimation of the parties “that the Secretary of State for India in Council has now decided not to contest the appeal.” Their Lordships allowed the appeal “without making any pronouncement on the merits of the judgment of the High Court.” The Secretary of State was unwilling to retain tax wrongly collected by relying on the plea of limitation. The Subordinate Judge relies on Nrityamoni Dasi v. Lakhan Chunder Sen 33 Ind. Cas. 452 : 43 C. 660 : 20 C.W.N. 522 : 30 M.L.J. 529 : (1916) 1 M.W.N. 332 : 3 L.W. 471 : 18 Bom. L.R. 418 : 24 C.L.J. 1 : 20 M.L.T. 10 (P.C.). Though the High Court has stated that Section 14 of the Act did not apply and though the Privy Council agreed “generally” with the High Court for holding that there was no limitation, that case was meant to be decided under Section 14. After the decree of Henderson, J., in the first suit and until its reversal, the descendants of Madub Sen must be taken to have been bona fide prosecuting a claim for partition in the first suit. They got a decree for partition and attempted to support the decree in appeal and could not have then filed a suit of their own during the pendency of the appeal.
2. But whatever view may be taken of the decision in Nrityamoni Dasi v. Lakhan Chunder Sen 33 Ind. Cas. 452 : 43 C. 660 : 20 C.W.N. 522 : 30 M.L.J. 529 : (1916) 1 M.W.N. 332 : 3 L.W. 471 : 18 Bom. L.R. 418 : 24 C.L.J. 1 : 20 M.L.T. 10 (P.C.) two points are now clear (i) no such principle of a dependent judgment as was once laid down in Jogesh Chunder Dutt v. Kali Churn Dutt 3 C. 30 : 1 C.L.R. 5 : 1 Ind. Dec. (N.S.) 611 now exists [see Bommadevara Naganna Naidu v. Ravi Venkatappuyya 76 Ind. Cas. 594 : 46 M. 895 : (1923) M.W.N. 554 : 21 A.L.J. 726 : A.I.R. 1923 P.C. 167 : 33 M.L.T. 262 : 45 M.L.J. 657 : 25 Bom. L.R. 1290 : 18 L.W. 913 : 28 C.W.N. 568 : 39 C.L.J. 312 : 50 I.A. 301 (P.C.)], (ii) no equitable grounds for suspension of a cause of action can be added to the provisions of the Limitation Act. We agree with the explanation of Ranee Surno Moyee v. Shoshee Mookhee Burmonia 12 M.I.A. 244 : 2 B.L.R.P.C. 10 : 11 W.R.P.C. 5 : 2 Sar. P.C.J. 424 : 2 Suth. P.C.J. 173 : 20 E.R. 331 : 1 Ind. Dec. (N.S.) 489 (P.C.) given by Walmsley and Mukerjee, JJ., in Sarat Kamini Dasi v. Nagendra Nath Pal 89 Ind. Cas. 1000 : 43 C.L.J. 155 : 29 C.W.N. 973 : A.I.R. 1926 Cal. 65 and generally with the view taken by Mukerji, J. of various decisions particularly of Bassu Kaur v. Dhum Singh 11 A. 47 : 15 I.A. 211 : 5 Sar. P.C.J. 260 : 12 Ind. Jur. 450 : 6 Ind. Dec. (N.S.) 458 (P.C.) which has been relied on before us. The decisions in Huro Pershad Roy v. Gopaul Das Dutt 9 C. 255 : 12 C.L.R. 129 : 9 I.A. 82 : 6 Ind. Jur. 546 : 4 Sar. P.C.J. 363 : 4 Ind. Dec. (N.S.) 820 (P.C.) and Muthuveerappa Chetty v. Adikappa Chetty 59 Ind. Cas. 472 : 43 M. 845 : 12 L.W. 240 : (1920) M.W.N. 505 : 39 M.L.J. 312, belong to the same group as Ranee Surno Moyee v. Shoshee Mookhee Burmonia 12 M.I.A. 244 : 2 B.L.R.P.C. 10 : 11 W.R.P.C. 5 : 2 Sar. P.C.J. 424 : 2 Suth. P.C.J. 173 : 20 E.R. 331 : 1 Ind. Dec. (N.S.) 489 (P.C.). The case in Kunhi Kuttiali v. Kunhammad 73 Ind. Cas. 139 : 44 M.L.J. 179 : A.I.R. 1923 Mad. 347 is like Nrityamoni Dasi v. Lakhan Chunder Sen 33 Ind. Cas. 452 : 43 C. 660 : 20 C.W.N. 522 : 30 M.L.J. 529 : (1916) 1 M.W.N. 332 : 3 L.W. 471 : 18 Bom. L.R. 418 : 24 C.L.J. 1 : 20 M.L.T. 10 (P.C.). The facts of Kartar Singh v. Bhagat Singh 64 Ind. Cas. 454 : 2 Lah. 320 : 4 U.P.L.R. (Lah.) 25 are obscure but that case cannot help the plaintiff.
3. There is nothing in the present case to prevent the filing of the suit on 5th September, 1921. It may be that the District Munsif would have dismissed the suit following his finding in the earlier case on the question of consideration and undue influence. But, on appeal, it would have been reversed along with the other appeal and plaintiff would have got his decree. So long as there was no legal impediment to the filing of the suit earlier, no time can be excluded. The third column of Article 73 operates.
4. We allow the appeal and restore the District Munsif’s decree with costs here and in the lower Appellate Court.
