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Veerappa Channappa Gondi Vs. Iratappa Malagi - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 92 of 1937
Judge
Reported inAIR1938Bom209; (1938)40BOMLR152
AppellantVeerappa Channappa Gondi
Respondentiratappa Malagi
Excerpt:
.....i.l.r. 11 bom. 488, followed.; the british india steam navigation company v. sharafally (1922) i.l.r. 46 mad 938, dissented from. - - but it is said that i cannot interfere in revision under section 115, because the learned judge, though he may have exercised his jurisdiction wrongly, has not failed to exercise that jurisdiction. the section is perfectly plain......and therefore the application made on april 15 would seem to be in time under section 4. the learned judge, however, has held that the application was out of time, because an application might have been made to the collector, to whom execution of the decree had been transferred, and whose court was open on april 11. under rule 16 of the, rules made by the government of bombay in relation to decrees sent to the collector for execution under section 70 of the civil procedure code it is provided, so far as material, that if any application to set aside the sale under order xxi, rule 89, of the civil procedure code, and the deposit as required by that rule, be made within the time limited by law to the collector or other officer aforesaid, he shall accept such application and deposit,.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an application in revision against the judgment of the District Judge of Dharwar. The applicant is a judgment-debtor, and on March 11, 1936, his property was sold tinder the decree. On April 15, he applied to the Court under Order XXI, Rule 89, to set aside the sale. An application of that nature is to be made within thirty days of the sale under Article 166 of the Indian Limitation Act, and therefore, prima facie, the application was out of time. But Section 4 of the Indian Limitation Act provides that ' where the period of limitation prescribed for any suit, appeal or application expires cn a day when the Court is closed, the suit, appeal or application- may be instituted, preferred or made on the day that the Court re-opens.' It is not disputed here that the Court was closed from April 9 to 14 inclusive, and therefore the application made on April 15 would seem to be in time under Section 4. The learned Judge, however, has held that the application was out of time, because an application might have been made to the Collector, to whom execution of the decree had been transferred, and whose Court was open on April 11. Under Rule 16 of the, rules made by the Government of Bombay in relation to decrees sent to the Collector for execution under Section 70 of the Civil Procedure Code it is provided, so far as material, that if any application to set aside the sale under Order XXI, Rule 89, of the Civil Procedure Code, and the deposit as required by that rule, be made within the time limited by law to the Collector or other officer aforesaid, he shall accept such application and deposit, and forward the same to the civil Court. Difficulties formerly arose because the Collector not being a Court, it was held that an application to him did not take the case out of the Indian Limitation Act, and accordingly a rule was framed by this Court, which is Order XXI, Rule 91A, which provides :-

Where the execution of a decree has been transferred to the Collector and the sale has been conducted by the Collector or by an officer subordinate to the Col-lector, an application under Rule 89, 90 or 91, and in the case of an application under Rule 89, the deposit required by that rule if made to the Collector or the officer to whom the decree is referred for execution in accordance with any rule framed by the Local Government under Section 70 of the Code, shall be deemed to have been made to or in the Court within the meaning of Rules 89, 90 and 91.

The learned Judge took the view that inasmuch as the applicant might have made his application to the Collector within thirty days from the date of the sale, therefore he was not entitled to take advantage of Section 4 of the Indian Limitation Act. I am quite unable to concur in that view. Rule 91A is plainly conditional. It provides for what is to be the effect if an application is made to the Collector. But if no application is made to the Collector, the rule never comes into operation at all. There is nothing whatever to compel the applicant to make his application to the Collector, rather than to the Court.

2. On the merits of the application, therefore, I feel no doubt whatever that the learned Judge's view is wrong. But it is said that I cannot interfere in revision under Section 115, because the learned Judge, though he may have exercised his jurisdiction wrongly, has not failed to exercise that jurisdiction. Mr. Joshi for the applicant referred me to the case of The British India Steam Navigation Company v. Sharafally I.L.R. (1922) Mad. 938, in which the view seems to have been taken that where the Court dismisses a suit on the preliminary issue of limitation it fails to exercise jurisdiction. As at present advised that case seems to me to go too far, I prefer the reasoning of Mr. Justice West in Amritrav Krishna Deshpande v. Balkrishna Ganesh Amrapurkar I.L.R. (1887) Bom. 488 that where a Court dismisses a suit on the ground of limitation it does not refuse to exercise jurisdiction. On the contrary it takes cognizance of the suit, and exercises jurisdiction by holding that on a point of law the suit fails. But this case is on rather a special footing. The learned Judge seems to me to have ignored altogether the plain words of Section 4 of the Indian Limitation Act, and to have deprived the applicant of the statutory privilege which that section gives him of presenting his application to the Court on the day when it re-opens. It is not a question of the learned Judge having construed the section in a way which I myself might think to be wrong. The section is perfectly plain. The learned Judge refused to apply it for reasons which seem to me entirely irrelevant. I think the learned Judge having disregarded the plain words of the statute, has exercised his jurisdiction illegally and with material irregularity, and on that ground I can interfere. In my opinion the order of the District Judge must be set aside. It is declared that the application is in time, and it is referred back to the Subordinate Judge's Court to be dealt with on the merits. Respondents to pay the costs of the appeal to the lower Court and to this Court.


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