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M. Seshagiri Rao Vs. Chickeeranna and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 108 of 1956
Judge
Reported inAIR1960Kant184; AIR1960Mys184
ActsLimitation Act - Sections 5; Code of Civil Procedure (CPC), 1908 - Order 9, Rule 9; Mysore Code of Civil Procedure (CPC), 1911 - Order 9, Rule 9(3)
AppellantM. Seshagiri Rao
RespondentChickeeranna and anr.
Excerpt:
- wild life (protection) act, 1972 [act no. 53/1972]. sections 9. 39, 40, 44, 49(b) & (c), 50, 51 & schedule-ii, para-i & (a); [dr. k. bhakthavatsala, j] offences punishable under - complaint lodged by sub-inspector of forest cell alleging that accused wrongfully confining kangaroo monkeys - held, as per the notification issued by the government in exercise of the powers conferred by section 55 of the wild life protection act, 1972, all the forest officers of and above the rank of a forester, all the officers of and above the rank of a sub-inspector of police and all the revenue officers of and above the rank of a revenue inspector are the persons authorised under section 55 of the act to lodge the complaint. on facts, held, the complainant is the sub-inspector of forest cell who is not..........act had not been made applicable to the applications made under o. ix, r. 9 of the code of civil procedure, 1908. but the applicant contended that sub-r. (3) of r. 9 of o. ix of the mysore code of civil procedure, 1911-which had made the provisions of s. 5 of the limitation act applicable to applications under o. ix, r. 9, continued to be operative and that therefore he was entitled to claim the benefit of s. 5 of the limitation act. this contention of the applicant was rejected by the learned second munsiff of bangalore. aggrieved by the order of the learned second munsiff, the applicant has preferred the present revision petition.(2) the short point for determination is as to whether after the code of civil procedure, 1908(central act 5 of 1908) came into force in mysore,.....
Judgment:
ORDER

(1) In an application which purported to be under the provisions of O. IX, R. 9 of the C.P.C. and which had been filed long after the prescribed period of limitation, the applicant sought to avail himself of the benefit of S. 5 of the Limitation Act. This application was made in the year 1954 and the provisions of S. 5 of the Limitation Act had not been made applicable to the applications made under O. IX, R. 9 of the Code of Civil procedure, 1908. But the applicant contended that sub-r. (3) of R. 9 of O. IX of the Mysore Code of Civil procedure, 1911-which had made the provisions of S. 5 of the Limitation Act applicable to applications under O. IX, R. 9, continued to be operative and that therefore he was entitled to claim the benefit of S. 5 of the Limitation Act. This contention of the applicant was rejected by the learned Second Munsiff of Bangalore. Aggrieved by the order of the learned Second Munsiff, the applicant has preferred the present revision petition.

(2) The short point for determination is as to whether after the Code of Civil Procedure, 1908(Central Act 5 of 1908) came into force in Mysore, sub-s. (3) of R.9 of O. IX of the Mysore code of Civil Procedure, 1911, can be said to be operative. A similar contention had been raised before the Travancore-Cochin High Court and it was held in the Full Bench decision reported in Pappathi Ammal v. Sivagannam Pillai, AIR 1954 Trav-Co 526, that such a contention was not tenable. In holding that S. 5 of the Limitation Act was not applicable, the lower Court has relied on the said Full Bench decision of the Travancore-Cochin High Court.

(3) By virtue of sub-s. (1) of S. 20 of Act 2 of 1951, as from the date referred to in that sub-section, any law corresponding to the Code of Civil Procedure, 1908 and in force in Mysore immediately before the said date, stood repealed. The Mysore Code of Civil Procedure. 1911 was the law which was in force in Mysore immediately prior to the date referred to in sub-s. (1) of S. 20 of Act 2 of 1951; it was this Mysore Code of Civil Procedure that was the law corresponding to the Code of Civil Procedure, 1908, for purposes of sub-s. (1) of S. 20. The point, now, for consideration is whether sub-r. (3) of R. 9 of O. IX of this Code of Civil procedure 1911, was not part of the law corresponding to the Code of Civil Procedure 1908. There cannot be any doubt that by reason of the amendment effected by Act 2 of 1951 in sub-s. 93) of S. 1 of the Code of Civil Procedure 1908, the whole of that Code including the rules contained in the First Schedule became extended to Mysore as from the date appointed under sub-s. (2) of S. 1 of Act 2 of 1951.

By virtue of the definitions of 'Code' and 'rules' in the Mysore Code of Civil Procedure 1911, the rules contained in the Schedule of that Code were also part of that Code. The rules contained in the First Schedule, of the said Code of Civil Procedure 1911 formed part of the law corresponding to the Code of Civil Procedure 1908, for purposes of sub-s. (1) of S. 20. Therefore, the repeal in sub-s. (1) of S. 20 of Act 2 of 1951 was operative also in respect of sub-r. (3) of R. 9 of O. IX of the Mysore Code of Civil Procedure 1911. There cannot be any doubt that as from the date referred to in sub-s. (1) of S. 20 of Act 2 of 1951, sub-r. (3) of R. 9 of O. IX of the Mysore Code of Civil Procedure 1911, stood repealed as part of the law corresponding to the Code of Civil Procedure 1908.

(4) The view taken by the Lower Court is therefore correct and this revision petition is dismissed with costs.

(5) Revision dismissed.


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