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Fatimabibi Mahomed Pirjade Vs. ShamsuddIn Hasan Saiba - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberSecond Appeal No. 112 of 1928
Judge
Reported in(1931)33BOMLR618
AppellantFatimabibi Mahomed Pirjade
RespondentShamsuddIn Hasan Saiba
DispositionAppeal allowed
Excerpt:
indian limitation act (ix of 1908), article 181--decree passed but to be drawn up on production of succession certificates--certificate produced after three years--period of limitation.;on june 10, 1921, a decree was passed which provided; 'the decree should be drawn up after the several claimants produce succession certificates and apply for the drawing up of the decree.' the claimants applied in 1923, and again on june 9, 1924, to draw up the decree, but they did not produce succession certificates. they produced a succession certificate in 1926, and applied for drawing up of the decree, when it was contended that the application was barred by limitation:--;(1) that the succession certificate and not an application for drawing up of the decree was the essence of the judgment, the decree..........ilr (1880) cal. 60, sital prasad v. abdur-rashid (1908) 11 o.c. 208, the act certainly does not apply to applications to the court to do what the court has no discretion to refuse : kylasa goundan v. ramasami ayyan (1881) mad. 172, balaji v. kushaba ilr (1906) 30 bom. 415, 8 bom. l.r. 218; nor can the provisions of the act be held to apply to an application to the court to terminate a pending proceeding, the final order in which has been postponed for the benefit of the defendant or for the convenience of the court: puran chand v. roy radha kishen ilr (1891) cal. 132. in cases of this class, it has been suggested that the right to make the application may, indeed, be deemed to accrue from moment to moment; if this view is adopted, any exception on the ground of limitation cannot.....
Judgment:

Madgavkar, J.

1. The question in this appeal is whether the appellants' application for the drawing up of the decree was barred by limitation.

2. The plaintiffs sued on an installment bond passed by defendant No. 1 in favour of the predecessor-in-title of the plaintiffs and defendants Nos. 2 to 7. The trial Court passed a decree in favour of the plaintiffs and defendants Nos. 2 to 7 concluding as follows: 'The decree should be drawn up after the several claimants produce succession certificates and apply for the drawing up of the decree.' This judgment was passed on June 10, 1921. In 1923, the plaintiffs applied, but without certificates. On June 9, 1924, they again applied. That application was kept on the file, and lastly the plaintiffs applied in 1925 and obtained a succession certificate and thereafter asked for a decree to be drawn up. The defendants contended that this application was barred by limitation. The trial Court held that the application was filed in the suit and the Indian Limitation Act had no application, and ordered the decree to be drawn up as prayed. In appeal the lower appellate Court held that Article 181 of the Indian Limitation Act applied, time running from the date of the judgment and dismissed the claim being barred by limitation. The plaintiffs appeal.

3. It is argued for the appellants that Article 181 does not apply to an application such as the present. Secondly, even if it does, the application of 1925 should be taken as a revival of the application of June 9, 1924, which is within three years of the judgment, It is contended for the respondent that Article 181 applies and inasmuch as the judgment expressly directed the plaintiffs to apply and in the absence of any other article, Article 181 as the residuary article for applications applies, and the right accrues from the date of the judgment, and that in any case, the application of 1925 is not a revival of the application of June 9, 1924, which was not accompanied by a succession certificate as the application of 1925 was.

4. All applications as such will not necessarily fall under the second schedule of the Indian Limitation Act. The judgment itself does not specify any definite period within which the claimants such as the plaintiffs-appellants are bound to produce the succession certificates and to apply. And ordinarily speaking and apart from the Indian Limitation Act, a reasonable time will be presumed to have been given by the Court to enable the claimants to obtain the succession certificates and make the necessary application. Again even though the word 'apply' is undoubtedly used, the judgment, to all intents and purposes, entitles the claimants on production of the certificates obtained to have the decree drawn up without any power left in the Court to refuse it. The word ' apply' was really not necessary, it was the production of the succession certificate and not the application without such certificate, on which the Court really insisted. If, for instance, the claimants did not produce the certificate within a reasonable time, it would be open for defendant No. 1-respondent or for the Court suo motu, if it found the suit pending without any ultimate adjudication on its file, to issue notice to the parties to show cause why the Court should not dispose of the suit by a proper decree, and if after such notice the claimants did not produce the succession certificate or explain the delay, it would be open to the Court, for default of such certificates, to decree the dismissal of the suit. Accordingly, I am of opinion that the succession certificate and not an application for drawing up of the decree is the essence of the judgment, the decree necessarily following upon the production of the certificate.

5. It is impossible to enumerate all the applications to which Article 181 applies. The case law on the point has been summed up by Mookerjee J. in Madhabmani Dasi v. Lambert ILR (1910) Cal. 796, where it is observed as follows (page 806):--

In other words, the Limitation Act does not profess to provide for all kinds of application to Courts whatsoever: Govind Chunder Goswami v. Rungunmoney ILR (1880) Cal. 60, Sital Prasad v. Abdur-rashid (1908) 11 O.C. 208, The Act certainly does not apply to applications to the Court to do what the Court has no discretion to refuse : Kylasa Goundan v. Ramasami Ayyan (1881) Mad. 172, Balaji v. Kushaba ILR (1906) 30 Bom. 415, 8 Bom. L.R. 218; nor can the provisions of the Act be held to apply to an application to the Court to terminate a pending proceeding, the final order in which has been postponed for the benefit of the defendant or for the convenience of the Court: Puran Chand v. Roy Radha Kishen ILR (1891) Cal. 132. In cases of this class, it has been suggested that the right to make the application may, indeed, be deemed to accrue from moment to moment; if this view is adopted, any exception on the ground of limitation cannot obviously be supported: Govind Chunder Goswami v. Rungunmoney, Kedarnath Dutt v. Harra Chand Dutt ILR (1882) Cal. 420, Ram Nath Bhattacharjee v. Uma Charan Sircar (1899) 3 C.W.N. 756, Surendra, Keshub Roy v. Khetter Krishto Milter ILR (1903) Cal. 609, Chalavadi Kotiah v. Poloori Alimelammah ILR (1907) Mad. 71, Rahmat Karim v. Abdul Karim ILR (1907) Cal. 672.

6. In the present case the decree was postponed for the benefit of the plaintiffs and defendants Nos. 2 to 7. Again, it is observed in Govind Chunder Goswami v. Rungunmoney ILR (1880) Cal. 60, 'The Legislature did not intend to include in the Limitation Act every application to a Court with reference to its own list of causes' and in Kedarnath Dutt v. Harra Chand Dutt ILR (1882) Cal. 420 that 'The right to apply in a pending suit--i.e., a suit in which no final order has been made,--is a right which accrues from day to day, and therefore the periods of limitation provided in Clauses 171, 171a, and 178 do not apply in an application to revive such a suit.' I am, therefore, of opinion that Article 181 does not apply to the right of the appellants to produce a succession certificate. The suit was pending and no decree had been drawn up. The law allowed and the Court meant that the claimants should produce these certificates within a reasonable time with liberty to the opposite party or to the Court, on proper notice, to end the case if they were not so produced. In this view the decree of the trial Court was, in my opinion, right.

7. The appeal is allowed, the decree of the lower appellate Court is set aside and the decree of the trial Court is restored with costs in this Court and in the District Court on the respondent.


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