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Premchand Manikchand Rathor and ors. Vs. Ramkunwar S/O Ramchandra Choudhari - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai High Court
Decided On
Case NumberAppeal From Order No. 54 of 1979
Judge
Reported in1982(2)BomCR499; 1982MhLJ832
ActsLimitation Act, 1908 - Schedule - Article 145; Limitation (Amendment) Act, 1963 - Sections 30 - Schedule - Article 70
AppellantPremchand Manikchand Rathor and ors.
RespondentRamkunwar S/O Ramchandra Choudhari
Appellant AdvocateS.Y. Lovekar, Adv.
Respondent AdvocateS.C. Bora, Adv.
DispositionAppeal dismissed
Excerpt:
limitation - shorter period - article 145 of schedule to limitation act, 1908 and section 30 and article 70 of schedule to limitation act, 1963 - starting point of limitation under article 70 in respect of suit to recover movable property deposited or pawned is date of refusal after demand - starting point of limitation under article 145 for same suit was 30 years from date of deposit or pawn - starting point under both articles different - cannot be said that period of limitation prescribed under article 70 is shorter than period of limitation prescribed under article 145. - - 1. this appeal raise a short but interesting question regarding limitation, governing the transaction between the parties and it arises in the following manner......as follows :-----------------------------------------------------------------------description of suit period of time from which limitation period begins to run-----------------------------------------------------------------------145. against a depository or thirty years the date of thepawnee to recover movable deposit or pawnproperty deposited or paw-ned.-----------------------------------------------------------------------now, under the new limitation act, 1963, the corresponding provision is in article 70 and it runs as follows :-----------------------------------------------------------------------description of suit. period of time from which limitation period begins to run-------------------------------------------------------------------------70. to recover movable three years.....
Judgment:

S.J. Deshpande, J.

1. This appeal raise a short but interesting question regarding limitation, governing the transaction between the parties and it arises in the following manner.

2. Ramkunwar the present respondent pledged ornaments thrice with the firm of the appellants. The first pledging was on 16-11-1932, second pledging was on 7-1-1933 and the third pledging was on 22-1-1934. The pledging was with Babulal Manikchand Rathor, who is dead and whose heirs and legal representatives are the defendants, who are the appellants before me.

3. The defendants resisted plaintiff's claim, inter alia, on the ground of limitation, and the trial Court framed several issues. Issue No. 4 related to limitation.

4. It appears that it was represented to the trial Court that plaintiff's suit was ex facie barred by limitation and hence the issue of limitation should be decided as a preliminary issue. This request was granted and after hearing the Counsel, the learned trial Judge held that the suit was barred by limitation and so he dismissed the suit with costs.

5. Feeling aggrieved by this decision, the plaintiff preferred Civil Appeal No. 131 of 1975 and the appeal was heard by the learned District Judge, Parbhani. The learned District Judge confirmed the finding of the trial Court so far as the pledging dated 16-11-1932 and 7-1-1933 were concerned. So far as the third pledging dated 22-1-1934 was concerned, the learned District Judge, considering the provisions of section 30 of the new Limitation Act, 1963, and relying on the decision of the Patna High Court in Mani v. Ram Prasad, : AIR1968Pat70 , held that the trial Court will, have to decide the date on which the cause of action arose so far as the last item dated 22-1-1934 was concerned, and so he set aside the order of dismissal so far as the last item was concerned and remanded the suit to the trial Court for decision according to law and in the light of the observations made in his judgment, and directed the parties to bear their own costs of the appeal. Feeling aggrieved by this order of remand, the original defendants have preferred this appeal.

6. Before turning to the submissions made in this respect, it would be worthwhile to state the provisions of the old any new Limitation Act in this respect. The provisions under the old Limitation Act, 1908, were contained in Article 145 of the Indian Limitation Act, 1908. Article 145 runs as follows :

-----------------------------------------------------------------------Description of suit Period of Time from which limitation period begins to run-----------------------------------------------------------------------145. Against a depository or Thirty years The date of thepawnee to recover movable deposit or pawnproperty deposited or paw-ned.-----------------------------------------------------------------------

Now, under the new Limitation Act, 1963, the corresponding provision is in Article 70 and it runs as follows :

-----------------------------------------------------------------------Description of suit. Period of Time from which limitation period begins to run-------------------------------------------------------------------------70. To recover movable Three years The date of property deposited or pawned, after demand.from a depositary or pawnee. refusal-------------------------------------------------------------------------

It would, therefore, be seen that the starting point of limitation in these two articles is different. Under the old law, the starting point of limitation is the date of deposit or pawn and under the new law, the starting point of limitation is the date of refusal after demand. It is in this light we have to deal with the submissions of Shri Lovekar appearing on behalf of the appellants.

7. Shri Lovekar relied upon section 30 of the new Limitation Act, 1963, and the relevant provision on which he placed reliance is as follows :

'Notwithstanding anything contained in this Act, ---

(a) any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908, may be instituted within a period of seven years next after the commencement of this Act or within a the period prescribed for such suit by the Indian Limitation Act, 1908, whichever expires earlier.

Now, this new section itself begins as follows :'Any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1980'.

So, the crucial question for consideration is whether the period of limitation prescribed under the Act of 1963 in this respect can be said to be shorter than the period of limitation prescribed by the old Act of 1908, and this is the whole crux of the matter. I have already pointed out that the starting point of limitation under Article 70 of the new Limitation Act, 1963, is the date of refusal after demand, whereas the starting point of limitation under the old Act of 1908 was 30 years from the date of deposit or pawn. Thus the starting point of limitation for both these items are different and hence, it cannot be said that the period of limitation prescribed under the new Act is shorter than the period of limitation prescribed under the old Act of 1908, and in this view of the matter, section 30 of the new Limitation Act, 1963, would not come into play and, therefore, there would be no force in the submission made by Shri Lovekar. Shri S.C. Bora appearing on behalf of respondent-plaintiff relied upon the aforesaid Patna ruling on which the learned District Judge has place reliance.

8. So, in this case, the crucial question is the date of cause of action and unless that is decided, the question of limitation cannot be decided and that is why the order passed by the learned District Judge is quite correct and it does not require any interference. The appeal is, therefore, dismissed. But in the circumstances, there will be no order as to costs of this appeal.


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