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V.K. Gujar Vs. V.D. Barve - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Judge
Reported in(1878)ILR2Bom673
AppellantV.K. Gujar
RespondentV.D. Barve
Excerpt:
limitation act, ix of 1871, schedule ii, article 158 - application for restitution by a person dispossessed--mode of computing period of limitation. - .....on the 4th the application could not be received on the 5th of the month, or that if the time prescribed had been two days, the application could not be received on the 6th. if this reasoning be extended to longer periods, it will follow that a limitation of thirty days means that the thing to be done--as, for instance, making an application--must be done, when the cause of application arose in june on the same day of july, and when it arose in december, on the day before the same day of january. such a construction appears to us not only the more liberal but the more reasonable one, and it is supported by the latest decision of the high court at calcutta. 'what the act says is that applications shall be dismissed which are made after the period of limitation,--that is, after.....
Judgment:

West, J.

1. The plaintiff Vithu, having been dispossessed of property held by him under a mortgage on the 14th December 1875, applied on the 14th January 1876 for restitution. The 13th having been a Court holiday, the question is,--whether the period of limitation expired on the 12th January 1876, so as to bar an application which but for the holiday might have been made on the 13th

2. According to the rule in the Code of Civil Procedure, Act VIII of 1859, Section 230, a person dispossessed 'might apply to the Court within one month from the date of such dispossession.' These words, it was ruled in Dadu v. Balgouda 5 Bom. H.C. Rep., 39, give to the 'applicant a clear month... exclusive of the day on which he was dispossessed, in which to make his application.' In the Limitation Act, IX of 1871, it is said (section 4) that every 'application made after the period prescribed therefore... shall be dismissed.' And in Schedule II, Article 158, it is provided that in a case of dispossession and an application by the person dispossessed the 'period of limitation' shall be 'thirty days,' and the time when the period begins to run shall be the date of the dispossession.' Section 13 of the Act says that 'in computing the period of limitation provided for any suit the day on which the right to sue accrued shall be excluded.' For an appeal the day on which judgment was delivered is excluded. The District Judge has thought that the express exclusion, in these instances, of the first day on which the right existed, implies its inclusion in other cases, and he refers to the decision of Nundo Coomar Mookerjee v. Issur Chunder Bhattacharjee, 12 B.L.R. 9 Appx. a case of an application for execution on the day three years after decree, as supporting his view. The more recent case of Dhonessur Kooer v. Roy Gooder Sahoy I.L.R. 2 Cal 336 however, adopts a different construction, and with reference to an application for execution determines that the day on which a previous application was made is to be excluded in computing the period under Schedule II, Article 167. If we compare the language of Section 13, already quoted, with the headings of the columns defining the terms for suits in Schedule II, we find that the 'time when period begins to run' being fixed as 'the date of the judgment' or other proceeding or transaction, was not by the Legislature thought inconsistent with the exclusion from the reckoning of the particular day on which the right to sue accrued. The result is to allow, where a limitation of three years is prescribed, a suit to be brought on the 3rd May 1876 on a cause of action that arose on the 3rd May 1873, and we may regard the prima facie discrepancy rather as a matter of interpretation than of contradiction or as a special rule made only for particular cases. Supposing the limitation prescribed had been one day, we think it would be unreasonable to say that for a dispossession on the 4th the application could not be received on the 5th of the month, or that if the time prescribed had been two days, the application could not be received on the 6th. If this reasoning be extended to longer periods, it will follow that a limitation of thirty days means that the thing to be done--as, for instance, making an application--must be done, when the cause of application arose in June on the same day of July, and when it arose in December, on the day before the same day of January. Such a construction appears to us not only the more liberal but the more reasonable one, and it is supported by the latest decision of the High Court at Calcutta. 'What the Act says is that applications shall be dismissed which are made after the period of limitation,--that is, after it has expired, and thirty days beginning on the 14th December extend into the 13th January. If, therefore, the business part of the day at each end of the time be regarded as integral, the application in this case was or would have been made, not after the period of limitation, but coincidentally with the ending of that period. And it is now a received principle that when a certain number of days are allowed for doing any act, the whole of the day to which the computation reaches is available to the person thus limited: see Lester v. Garland, 15 Ves. Jun. 248. Mootham v. Waskett, 1 Mer. 243, Bobinson v. Waddington 18 L.J.Q.B. 250, Weeks v. Wray, L.R. 3 Q.B 212. We must, therefore, reverse the judgment of the lower Court, and direct that the case be disposed of on its merits. Costs to follow the final decision.


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