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Rama Aba Singale and ors. Vs. Sumitrabai and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 728 of 1975
Judge
Reported inAIR1979Bom14
ActsLimitation Act, 1963 - Sections 4 and 5 - Schedule - Article 127; Code of Civil Procedure (CPC), 1908 - Order 21, Rule 89; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 98
AppellantRama Aba Singale and ors.
RespondentSumitrabai and anr.
Appellant AdvocateM.D. Gangakhedkar, Adv.
Respondent AdvocateS.P. Kurdukar, Adv.
DispositionAppeal allowed
Excerpt:
.....4 of the old limitation act, in respect of applications under order xxi rule 89, for which the period of limitation was contained in article 166 of the old limitation act; but when it comes to the practical and execution side of the court, it must include not only the judge who may be available, but the nazir and the other officers and clerks of the court who normally receive the applications and particularly the moneys which are required to be deposited in the course of an application like one under order xxt rule 89. 17. when the court itself said that it could not accept the money under order xxi rule 89, although in a highly technical sense, it may not be 'closed' according to the court calendar for all practical and legal purposes, particularly for receiving moneys, it was..........under article 127, which prescribed a period of 30 days from the date of the sale, as the period of limitation for such an application under order xxi rule 89.5. it must be noted that that article was amended by the c. p. c- amendment act,1976. (act no. 104 of 1976), which came into force, on february 1, 1977, during the pendency of the above first appeal, in this court, by substituting for 30 days, the words 60 days.6. in the meanwhile, the civil judge dismissed the application as time barred under the unamended article 127, purporting to follow the decision in jagu auyaba v. bajarang : air1969bom90 where it was laid down that section 4 of the limitation act, 1908 applied to applications under order xxi rule 89 of the civil procedure code, 1908 and the court had the power to.....
Judgment:

1. The Appellant No. 1 is the husband and the Appellants Nos. 2 to 9 are the members of his family. They have filed the above First Appeal challenging the sale of the family property in execution of the decree, which the respondent No. 1, the wife of the appellant No. 1 had obtained against the appellant No. 1 for maintenance which the husband had failed to pay even after the decree. In execution of the decree the family property was sold to the auction purchaser--respondent No. 1, in Special Darkhast No. 8 of 1974. in the Court of Civil Judge, Senior Division Bhir.

2. The auction purchase took place on March 25, 1975; and instead of depositing the decretal amount and the other requiredamounts, within 30 days from the date of the sale, the appellant No. 1 made an application on May 3, 1975, Exh.; 8, staring that he had brought the amount, on April 25, 1975; but the Court staff was on strike, during the period from April 25, 1975 and was on strike even on that day; and he could not deposit the amount due under the decree and he should, therefore, be permitted to deposit the decretal amount and the auction-sale should be set aside under Order XXI Rule 89 of the Code of Civil Procedure.

3. On that application Exh, 18, the court passed an order; 'Money transactions are stopped due to strike. The Applicant to deposit the amount when the strike is over.' After the strike was over, on April 27, 1975; and the staff joined their duty, the Nazir of the court accepted the moneys, on April 27,1975.

4. Thereafter, on June 16, 1975, the auction purchaser filed an application, Exh. 21, to make the auction purchase absolute in his favour, while referring to the application of the judgment-debtor, of May 3, 1975, contending that the ground of the strike was not a proper ground as the court was not 'closed', though the staff was on strike; and hence his application, Exh. 18, was barred by the law of limitation, under Article 127, which prescribed a period of 30 days from the date of the sale, as the period of limitation for such an application under Order XXI Rule 89.

5. It must be noted that that Article was amended by the C. P. C- Amendment Act,1976. (Act No. 104 of 1976), which came into force, on February 1, 1977, during the pendency of the above First Appeal, in this court, by substituting for 30 days, the words 60 days.

6. In the meanwhile, the Civil Judge dismissed the application as time barred under the unamended Article 127, purporting to follow the decision in Jagu Auyaba v. Bajarang : AIR1969Bom90 where it was laid down that Section 4 of the Limitation Act, 1908 applied to applications under Order XXI Rule 89 of the Civil Procedure Code, 1908 and the court had the power to condone the delay; but that case has no application to the present case because the court itself was not 'closed' when the deposits ought to have been made by the appellant No. 1 under Order XXI Rule 89. In fact even Section 4 had no application for the reason.

7. The learned Judge, however, failed to note that what applied to the present case was the Limitation Act, 1963; and under Sec-tion 5 of the Act, the power of the court to condone the delay is taken away, in respect of the applications under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, which must include, according to the general rules of the interpretation of statutes, any application under Order XXI of the Code of Civil Procedure 1908 as amended from time to time.

8. Jagu's case : AIR1969Bom90 under Section 4 of the old Limitation Act was, therefore, totally irrelevant in the context of the provisions contained in Section 5 of the Limitation Act, 1963. However it seems that, with a view to relieve the hardship of the litigants, caused by the bar of the power to condone delay in filing applications under Order XXI, the Parliament while enacting the amendment of the Civil Procedure Code, Act No. 104 of 1976, also enacted Section 98 of the Code of Civil Procedure (Amendment) Act, 1976 (Act No. 104 of 1976), which runs as follows :--

'98. Amendment of Schedule of Act 36 of 1963 -- (1) In the Limitation Act, 1963, in the Schedule, in the entry in the second column, against Article 127, for the words thirty days' the words 'sixty days' shall be substituted. (2) Where the period specified in Article 127 of the Schedule to the Limitation Act, 1963 (36 of 1963) had expired on or before the commencement of this Act, nothing contained in Sub- Section (1) shall be construed as enabling such application as is referred to in the said Article, to be filed after the commencement of this Act by reason only of the fact- that a longer period there for is specified in the Act aforesaid by reason of the provisions of Sub- Section (I).'

9. As the period under the Limitation Act is essentially with regard to a procedural matter, the Parliament appears to have included these provisions in the amendment of the Code of Civil Procedure. Although the matter is essentially a matter of procedure, for making an application to set aside auction sales, the period is prescribed for making the application.

10. One of the most well-known statements of the rules regarding retrospectivity is contained in the passage from the judgment of R.S. Wright J, in Athlumney, (1898) 3 Q. B. 551 :--

'Perhaps no rule of construction is more firmly established than this that a retrospective operation is not to he given to statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoidedwithout doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.'

(Maxwell on the Interpretation of Statutes, 12th Edition, p. 216).

11. The Parliament has made it clear by ox-eluding the right of the judgment-debtor for making an application after the coming into force of India Act No. 104 of 1976, that if the application under Order XXI Rule 89 was to be made before the coming into force of the Amending Act, on 1st February, 1977, retrospective effect may not be given and the benefit of the amending Article may not bo given in respect of such application.

12. In the present case, there can be no doubt that as the application, under Order XXI Rule 89 was made by the applicant in the present case on May 8, 1975, there was no question of filing an application after February I, 1977; and it was clearly within the time prescribed by the amended Article 127 of the Limitation Act, 1963.

13. As stated already, in Jagu's case : AIR1969Bom90 it was held that the court had the power to condone the delay for sufficient cause, under Section 4 of the old Limitation Act, in respect of applications under Order XXI Rule 89, for which the period of limitation was contained in Article 166 of the old Limitation Act; and this court applied the provisions of Section 4. The decision becomes entirely inapplicable to this case having regard to the express prohibition contained in Section 5 of the new Limitation Act. Nevertheless in view of the amended Article 127, which is similar to Article 166, it must be hold that that article would apply to the application made by the Judgment-debtor in this case.

14. However, as it Is not disputed that there was a strike between the period 1st April 1975 to May 3, 1975; and the court itself passed an order that the money cannot be accepted till the strike was over, although technically speaking the court was open for the purpose of receiving money, it was in, fact, closed.

15. Section 4 of the Limitation Act, runs as follows :--

'Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the clay when the court re-opens.

Explanation -- A court shall be deemed to be closed on any day within the meaning of thissection if during any part of its normal working hours it remains closed on that day.'

(Underlining supplied).

16. A court is not 'open' merely because it is physically open. A court is not merely a building with rooms in it. A Judge in a court may for certain purposes proceed with the matters where the parties could be heard; but when it comes to the practical and execution side of the court, it must include not only the Judge who may be available, but the Nazir and the other officers and clerks of the court who normally receive the applications and particularly the moneys which are required to be deposited in the course of an application like one under Order XXT Rule 89.

17. When the court itself said that it could not accept the money under Order XXI Rule 89, although in a highly technical sense, it may not be 'closed' according to the court calendar for all practical and legal purposes, particularly for receiving moneys, it was 'closed'. This is why the explanation to Section 4 which is new, deals with the situation like the present one, where although the court may not be actually closed, it must be 'deemed' to be closed, if during any part of its normal working hours it remains closed on that day for any particular kind of work.

18. As the court in the present case was not in a position to work on the execution side and accept the money which was required to be deposited under Order XXI Rule 89, it must be held that the situation felt within the ambit of the new explanation added to Section 4 of the Limitation Act, 1963.

19. This new explanation was added by the Joint Committee of Parliament to make it clear that if on any part of its normal working hours it remains 'closed' on that day, the court shall be 'deemed to be closed' on that day.

20. In the present case, though it was not 'closed' for any part of the day for the normal business of the court, generally in my opinion, for the purpose of the application under Order XXI Rule 89, it was 'closed' as the situation was intended to be covered by the deeming Explanation to Section 4.

21. Again, in Dharmsi Morarji Chemical Co. Ltd. v. Ochhavlal Hargovandas Shah, ILR Bom 848 : AIR 1927 Bom 480, it was laid down that when a party has to do something before a certain day and if upon that day or before that day he cannot do that thing by reason of the act of Court, then he is entitled to an extension of time by that period during which he is delayed by the Court's action.

22. In the present case, there can be no doubt, having regard to the order passed onthe application of the judgment-debtor, on May 3, 1975, that the court was 'deemed to be closed' within the meaning of Explanation to Section 4.

23. Moreover, Section 4 -- Explanation must be so interpreted as to the well-known maxim of justice that an act of court shall prejudice no man 'Actus Curiae Neminem Gravabit'.

24. The maxim is founded upon justice and good sense; and affords a safe and certain guide for the administration of law. It cannot be ignored when interpreting a section in a situation viz. strike in the court, which, even as our recent experience showed, prevented the courts from functioning, in many of its branches on account of the absence of the non-gazetted staff on strike, including the clerks and peons, ordinarily indispensible who are parts of the machinery of justice, as it functions on a lower but day to day practical level in our country.

25. For the above reasons I hold that the learned Judge erred in rejecting the application as barred by time under Article 127 ot the Limitation Act, 1963.

26. The second order confirming the auction sale is also set aside. Special Darkhast No. 8/74 and the applications, at Exhs. 18, 21, and the stay at Exh. 26 are, therefore, restored to the file of the Executing Court of the Civil Judge, Bhir, for disposing of the application made by the judgment-debtor on merits., in accordance with law and the observations made hereinabove and in accordance with the finding that the application is within time.

27. The First Appeal is allowed. In thecircumstances of the case, there shall be noorder as to costs.

28. Appeal allowed.


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