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Damodar Vithoba Vs. Nainsukh Rajmal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberAppeal No. 20 of 1906
Judge
Reported in(1906)8BOMLR942
AppellantDamodar Vithoba
RespondentNainsukh Rajmal
DispositionAppeal dismissed
Excerpt:
civil procedure code (act xiv of 1882), section 32-joinder of parties-court aiding a new defendant proprio matu-plea of limitation.;where a party is joined to a suit by the order of the court by its own motion under section 32 of the civil procedure code, 1882, it is open to such party to raise in defence the plea of limitation. - - 3. the court of first instance apparently thought that the relations between the plaintiff and this defendant were governed by article 11, schedule ii, of the limitation act, but when he comes to try this case again he may well give this matter further consideration......this suit originally against the persons who were parties to those proceedings under section 278, civil procedure code, in which his rights had been successfully questioned. subsequently however he added as defendant the auction purchaser who had not been a party to the proceedings under section 278, civil procedure code.3. the court of first instance apparently thought that the relations between the plaintiff and this defendant were governed by article 11, schedule ii, of the limitation act, but when he comes to try this case again he may well give this matter further consideration. for it seems to me not at all obvious that because that article governs the relations between the plaintiff and the first five defendants, it must necessarily also govern the relation between the plaintiff.....
Judgment:

Heaton, J.

1. I concur that the order of the lower appellate Court should be confirmed with costs, because the lower appellate Court in the exercise of the discretion vested in it by Section 32, Civil Procedure Code; added the appellant as defendant No. 6, and, in the particular circumstances of the case, I do not think that it exercised its discretion wrongly. I think it desirable to say a few words on a point of limitation, which was argued in this case.

2. The plaintiff brought the suit within the period allowed by Article 11, Schedule II of the Limitation Act, and so far he did what was required of him. He also brought this suit originally against the persons who were parties to those proceedings under Section 278, Civil Procedure Code, in which his rights had been successfully questioned. Subsequently however he added as defendant the auction purchaser who had not been a party to the proceedings under Section 278, Civil Procedure Code.

3. The Court of first instance apparently thought that the relations between the plaintiff and this defendant were governed by Article 11, Schedule II, of the Limitation Act, but when he comes to try this case again he may well give this matter further consideration. For it seems to me not at all obvious that because that Article governs the relations between the plaintiff and the first five defendants, it must necessarily also govern the relation between the plaintiff and this 6th defendant.


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