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Someshwar Bapurao Nilakhe Vs. Nivritti Baburao Gholave - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 863 of 1968
Judge
Reported inAIR1973Bom147; (1972)74BOMLR647; 1972MhLJ916
ActsLimitation Act, 1963 - Sections 18(1); General Clauses Act, 1897 - Sections 9(1)
AppellantSomeshwar Bapurao Nilakhe
RespondentNivritti Baburao Gholave
Appellant AdvocateP.S. Patankar, Adv. for S.C. Pratap, Adv.
Respondent AdvocateB.Y. Deshmukh, Adv. for ;R.S. More, Adv.
Excerpt:
.....of 1963), sections 18(1), 12(1) -- general clauses act (x of 1897),;section 9(1) -- suit for sum of money based on acknowledgment signed by defendant;whether day on which acknowledgment made to be excluded in computing period of limitation.;the plaintiff filed a suit against the defendant on november 5, 1966 to recover a sum of money at the foot of an account, relying on an acknowledgment of liability signed by the defendant on november 5, 1963. on the question whether the suit was barred by limitation:;that as under section 18(1) of the limitation act, 1963, a fresh period of limitation is computed from the time when the acknowledgment was signed, in view of the provisions of section 12(1) of the limitation act and section 9(1) of the general clauses act, 1897, the day on which the..........instituted the suit out of which this petition arises on 5-11-1966. the defendant pleaded that the suit was barred by limitation. this question was taken up for consideration as a preliminary issue by the trial court and it held that the suit was barred by limitation and consequently dismissed it with costs.3. the view taken by the trial court is obviously erroneous. section 12(1) of the limitation act, 1963 provides that in computing the period of limitation prescribed for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded. now, under section 18(1) where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been.....
Judgment:
ORDER

1. The short point that arises on this revision petition by the original plaintiff is whether plaintiff's suit was barred by limitation.

2. Plaintiff is a businessman and defendant-opponent in this revision petition had dealings with him between 3-2-1962 and 1-8-1963 and on account of this dealing the defendant owed a sum of Rupees 373-60 to the plaintiff at the foot of the account. This liability was acknowledged by the defendant on 5-11-1963. The plaintiff instituted the suit out of which this petition arises on 5-11-1966. The defendant pleaded that the suit was barred by limitation. This question was taken up for consideration as a preliminary issue by the trial Court and it held that the suit was barred by limitation and consequently dismissed it with costs.

3. The view taken by the trial Court is obviously erroneous. Section 12(1) of the Limitation Act, 1963 provides that in computing the period of limitation prescribed for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded. Now, under Section 18(1) where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability a fresh period of limitation shall be computed from the time when the acknowledgment was so signed (underlining is mine). Section 1 of the General Clauses Act, 1897, provides that in any General Act or Regulation made after the commencement of this Act, it shall be sufficient for the purpose of excluding the first in a series of days or any other period of time to use the word 'from', and, for the purpose of including the last in a series of days or any other period of time, to use the word 'to'. Since Section 18 91) of the Limitation Act provides that the fresh period of limitation shall be computed 'from' the time when the acknowledgment was so signed, in view of the provisions of Section 12(1) of the Limitation Act and of Section 9(1) of the General Clauses Act, it is clear that the day on which the acknowledgment is made will have to be excluded in computing the period of limitation of three years.

4. It is, therefore, clear that in the present case 5th November, 1963 will have to be excluded from computation and the period of limitation will have to be counted from 6th of November, 1963. If the period of three years is so counted, it is obvious that the suit which was instituted on 5th of November, 1966 was not barred by limitation. This view is supported by the decision in Jainarayan v. Vithoba, AIR 1923 Nag 143. In that case the suit was filed on 13-7-1920, relying on an acknowledgment made in writing on 13-7-1917 by the debtor. It was held that the suit was in time.

5. For these reasons the petition must be allowed. The rule is made absolute, the order passed by the trial Court dismissing plaintiff's suit is set aside and the matter is sent back to the trial Court to proceed further with the suit according to law. The opponent to pay the petitioner's costs of this petition and bear his own.

6. Petition allowed.


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