L.H. Jenkins, K.C.I.E. C.J.
1. To this item of Rs. 700 the further objection is urged that it is barred, as the suit must be deemed to have been instituted on the 18th September, 1900. The plaintiff on the other hand contends that the suit was instituted on the 14th September, 1900, and that consequently the plea of limitation does not apply. This contest arises from the fact, that the plaint when presented on the 14th of September was written upon paper insufficiently stamped and the requisite stamp was not supplied until the 18th September, 1900. The question therefore arises, whether the suit was instituted when the plaint was first presented, or when the further requisite stamp was Supplied.
2. Section 4 of the Limitation Act provides that every suit instituted after the period of limitation prescribed therefor should be, dismissed, and in the explanation to the section it is said that the suit is instituted in ordinary cases when the plaint is presented to the proper officer. This explanation is in substantial accord with Section 41 of the Civil Procedure Code, which provides that every suit shall he instituted by presenting a plaint to the Court or such officer as it appoints in this behalf. In this case the relief sought was properly valued. The consequence of the insufficient stamping is indicated in Section 54 of the Civil Procedure Code, which provides that the plaint shall be rejected if the relief sought is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff on being required by the Court to supply the requisite stamp paper within the time fixed by the Court fails to do so. Therefore the power of rejection does not arise merely because the plaint is written upon paper insufficiently stamped; there must be the additional circumstance of a failure on the part of the plaintiff to supply the requisite stamp paper within the period fixed. Admittedly no such failure has occurred in this case: the requisite stamp paper was supplied within the time fixed by the Court. Therefore it cannot be said that there has in this case been a legal rejection of the plaint.
3. But then it is said that there has been no such presentation of the plaint as is necessary for the due institution of the suit. But neither the Limitation Act nor the Civil Procedure Code ordains or implies that in the absence of a sufficient stamp there can be no presentation: on the contrary the very power to reject bestowed by Section 54 of the Code implies that the plaint has been presented within the meaning of Section 48 of the Civil Procedure Code and Section 4 of the Limitation Act. This view is no doubt opposed to that entertained in the Allahabad High Court see Balkaran Rai v. Gobind Nath Tiwari (1890) 12 All. 129; Jainti Prasad v. Bachu Singh (1893) 15 All. 65; and Durga Singh v. Bisheshar Dayal (1898) 24 All. 218, but it is in accord with the decisions of the Calcutta High Court Moti Sahu v. Chhatri Das (1892) 19 Cal. 780 and Huri Mohun v. Naimuddin and is supported by the cogent reasoning of Mr.(1892) 20 Cal. 61 Justice Subramania Ayyar in Assan v. Pathumma. In this Court the point is uncovered by a(1899) 22 Mad. 49 4uthority and in the circumstances we hold that on a true reading of the Limitation Act the suit was instituted for the purposes of limitation on the 14th September, nor is this conclusion disturbed by anything contained in the Court Fees Act: see Sections 6 and 38.
4. Next it is objected that interest has been allowed on time-barred debts. This seems to be the fact and we think the objection is well founded. The interest is claimed not by virtue of an independent contract for its payment, but under Act XXXII of 1839 which provides that upon all debts or sums certain payable at a certain time or otherwise, the Court before which such debts or sums may be recovered may, if it shall think proper, allow interest to the creditor. But this does not authorize the allowance of interest where the debt on which it is claimed is irrecoverable. Interest in cases like the present is but an accessory, and when the principal is barred the accessory falls along with it: Hoilis v. Palmer (1836) 2 B N.C. 713. Therefore so much of the claim must be disallowed as is made up of interest on principal sums now time-barred. As the parties cannot agree, this amount must be determined in execution, and then must be deducted. The decree must be varied accordingly. The costs of appeal will be in proportion.