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Shidaya Virbhadraya Kodlimath Vs. Satappa Bharmappa Mutgauda - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 866 of 1916
Judge
Reported inAIR1918Bom187; (1918)20BOMLR360; 45Ind.Cas.494
AppellantShidaya Virbhadraya Kodlimath
RespondentSatappa Bharmappa Mutgauda
DispositionAppeal allowed
Excerpt:
.....applied, on the 1st july 1911, to obtain a conciliator's certificate under the provisions of the dekkhan agriculturists' belief act, 1879; and he obtained the same on the 20th may 1913. the fourth application to execute the decree was accordingly made on the 23rd august 1913. it was resisted by the defendant on the ground that the execution of the decree was barred under section 48 of the civil procedure code, 1908 :-;that the application was within time, inasmuch as the plaintiff was entitled, under section 48 of the dekkhan agriculturists' relief act, 1879, to exclude the interval of time occupied in obtaining' the conciliator's certificate. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special..........the decree. the delay, however, is sought to be excused in this way. the suit was governed by the dekkhan agriculturists' relief act, and on the 1st of july 1911, the appellant, the judgment-creditor, applied for a conciliator's certificate, as under the act he was then bound to do. he did not get the certificate till the 29th march 1913, and the only question to be answered in the appeal is whether under section 48 of the dekkhan agriculturists' relief act, he is entitled to exclude this interval of time occupied in obtaining this certificate.2. the learned judges below have both held against the judgment-creditor, but the only ground for their decision is the ruling of this court in dayaram v. laxman (1911) 13 bom. l.r. 234. if that case, however, be road with attention, it will, i.....
Judgment:

Stanley Batchelor, Kt., Acting C.J.

1. This is an appeal in execution, and the only question involved is whether the application to execute is barred by time. The decree was obtained on the 28th October 1899, and was followed by three Darkhasts, all of which must, for the purposes of this appeal, be taken to have been made within the time allowed. The fourth and present Darkhast is dated the 23rd August 1913, that is, more than twelve years after the decree. The delay, however, is sought to be excused in this way. The suit was governed by the Dekkhan Agriculturists' Relief Act, and on the 1st of July 1911, the appellant, the judgment-creditor, applied for a conciliator's certificate, as under the Act he was then bound to do. He did not get the certificate till the 29th March 1913, and the only question to be answered in the appeal is whether under Section 48 of the Dekkhan Agriculturists' Relief Act, he is entitled to exclude this interval of time occupied in obtaining this certificate.

2. The learned Judges below have both held against the judgment-creditor, but the only ground for their decision is the ruling of this Court in Dayaram v. Laxman (1911) 13 Bom. L.R. 234. If that case, however, be road with attention, it will, I think, be recognised that it has no bearing whatever upon the question now in controversy. For the only point in Dayaram's case was whether the phrase 'the period of limitation prescribed' in Section 48 of the Dekkhan Agriculturists' Relief. Act, could cover not only the period of limitation expressly mentioned in an article of the Limitation Act, but also an added section of that Act, namely Section 31, under which a special temporary concession was allowed to mortgagees. The Court hold that the words ' the period of limitation prescribed ' in Section 48 of the Dekkhan Agriculturists' Relief Act must refer only to the period expressly prescribed in the Limitation Act, and could not include the exceptional concession subsequently allowed. With all that, however, we have nothing to do here, where the question which confronts us is totally different, and is this, whether the words ' the period of limitation prescribed' in Section 48 of the Dekkhan Agriculturists' Relief Act, can control or modify the period of time allowed, not in the Statute of Limitation at all, but in Section 48 of the Civil Procedure Code. It is necessary for the judgment-debtor to contend for the negative, but it appears to me clear that the affirmative is the correct answer. In the first place, if it had been the intention of the Legislature to enact that the period of limitation in Section 48 of the Dekkhan Agriculturists' Relief Act should be exclusively that period of limitation to be found within the Limitation Act, nothing would have been easier than to express that intention clearly. So far from this being done, we have a complete omission of any reference to the Limitation Act, and the words a?e general and comprehensive, namely, ' the period of limitation prescribed for any suit or application.' That I take it means the period of limitation prescribed in any law for the time being in force, and it seems to me clear that the intention, of the Legislature in enacting this Section 48 of the Dekkhan Agriculturists' Relief Act was to secure that the judgment-creditor, compelled by the new Act to approach the conciliator for a certificate, was not to be damnified by any lapse of time boforo the conciliator gave him the certificate. But unless the judgment-creditor's argument is to be allowed in this case, it is manifest that grave injustice must often ensue. For, if we suppose that, a week boforo the expiration of the twelve years, the judgment-creditor approached the conciliator for a certificate, and the conciliator then, as he did hero, slept over the matter for the space of two years, the judgment-creditor must inevitably be out of time through no fault of his own. This result, it appears to me, it was the precise intention of the Legislature to avoid by Section 4S of the Dekkhan Agriculturists' Relief Act. And our present case is little less strong than that which I have put, for on the 1st July 1911, when the application to the conciliator was made, it was admittedly in time. This view of the case seems to me to receive direct support from the language employed by the Legislature in Articles 181 and 182 of the Limitation Act of 1908, for those Articles deal with applications provided or not provided for 'by Section 48 of the Code of Civil Procedure,' Clearly, therefore, in the mind of the Legislature Section 48 of the Code of Civil Procedure provided a period of limitation, and I can see no reason for thinking that the period of limitation thus provided falls outside the general words employed by the Legislature in Section 48 of the Dekkhan Agriculturists' Relief Act. On these grounds, I am of opinion that the appeal must be allowed, the lower Court's decree must be reversed, and the Darkhast must be proceeded with as being in time. The appellant to have his costs. It will be open to the respondents, if so advised, to raise a point of limitation as to the earlier Darkhasts.

Shah, J.

3. I agree.


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