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Lachman Das Vs. Ahmad Hasan - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Judge
Reported inAIR1917All304; (1917)ILR39All357
AppellantLachman Das
RespondentAhmad Hasan
Excerpt:
.....passed by small clause court--small cause court abolished and execution transferred to a munsif--jurisdiction--appeal--act no. ix of 1908 (indian limitation act), section 19--acknowledgement. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals..........until his objection had been decided; in other words, it was merely an objection to the execution of the decree in the manner sought by the decree-holder. it may be said that if he had paid off the debt, or if he had meant that the debt was not due, he would have said so in plain language, and that the natural inference from what he had said was that the debt was due. it seems to me that an acknowledgement must be a clear acknowledgement and not be left only to sheer inference. in the full bench case there was language the meaning of which beyond all doubt was that the debt was due. in the present case there is simply the bare fact that the man did not say that he had paid off the money. such omission cannot be taken as an admission that the debt was due. in my opinion the.....
Judgment:

Tudball, J.

1. Two points are taken: (1) that no appeal lay to the District Judge : (2) that even if it did, the petition of the 5th of February, 1912, did contain an acknowledgement, and that under explanation II of Section 19 of the Limitation Act the pleader was an agent duly authorized by the judgement-debtor to make the statement in that petition. In regard to the question of jurisdiction the decisions of this Court perhaps are a bit conflicting. The later decisions are all against the applicant. In Mangal Sen v. Rup Chand (1891) I.L.R. 13 All. 324 a Bench of this Court held as follows: 'In other words, whatever the intention of the Legislature was, we read Section 35 of Act IX of 18S7, in the same sense that we read the concluding paragraph of Section 25 of the Code of Civil Procedure.' If this view be correct, then the Munsif in the present case acted as a Small Cause Court and no appeal lay. But this decision has not been accepted in Sarju Prasad v. Mahadeo Pande (1915) I.L.R. 37 All. 450, In fact it was distinctly dissented from, and it was also pointed out that in the case of Shiam Behari Lal v. Kali (1914) 12 A.L.J. 109 one of the Judges who was a party to the decision in Mangal Sen v. Rup Chand (1891) I.L.R. 13 All. 324 had himself decided the question of Section 35 of Act IX of 1887 in the opposite way. In Sarju Prasad v. Mahadeo Pande (1915) I.L.R. 37 All. 450 it was pointed out that in the Calcutta and Bombay High Courts the opposite view had also been taken and their view had been followed in the Court in Oudh. It seems to me personally that prima facie the order of the Munsif was passed by him qua Munsif, and, unless there is some express provision of law taking away the right of appeal, it must be held that an appeal did lie. Section 35 of Act IX of 1887, nowhere in clear terms takes away the right of appeal from an order passed under circumstances such as prevailed in the present case. All that it lays down is that 'where a Court of Small Causes, or a court invested with the jurisdiction of a Court of Small Causes, has from any cause ceased to have jurisdiction with respect to any case, any proceeding in relation to the case whether before or after decree, which, if the court had not ceased to have jurisdiction, might have been had therein, may be had in the court which, if the suit out of which the proceeding has arisen were about to be instituted, would have jurisdiction to try the suit.' In the present case the Court of Small Causes having ceased to exist, the decree-holder was bound to apply for the execution of his decree to the court of the Munsif. Section 24 of the Code of Civil Procedure relates to suits transferred or withdrawn. In the present case no suit has in fact been transferred or withdrawn, and Section 24 of the Code Civil Procedure cannot be read into Section 35 of Act IX of 1887, so as to destroy a right of appeal without some express language in the Act. The current of decisions being in my opinion against the applicant, including the latest decisions of this Court, I must hold that an appeal did lie.

2. In regard to Section 19 of the Limitation Act, it is quite clear that the District Judge overlooked Explanation II of that section. If in the petition of the 5th of February, 1912, there is an acknowledgement of the debt, it is clear that that petition was signed by an agent duly authorized by the judgement-debtor to file it and put into it all that it contained. If that document contains an acknowledgement, there can be no doubt that it was an acknowledgement by the judgement-debtor and would save time in favour of the decree-holder. But it seems to me difficult to hold that the language of the petition contains an acknowledgement of a debt due. My attention has bean called to a Full Bench ruling in Ramhit Rai v. Satgur Rai (1880) I.L.R. 3 All. 247. The petition in that case was of a very different nature. In that case the petitioner stated that he had asked the decree-holder to allow him time to make some arrangement for paying off the debt, and in consideration of the property being ancestral the decree-holder had agreed to allow time. There was a clear and distinct acknowledgement of the debt. In the present case all that the judgement-debtor said in his petition of the 5th of February, 1912, was that he objected, to being arrested because he was a poor man and ho asked that the warrant of arrest should not be executed until his objection had been decided; in other words, it was merely an objection to the execution of the decree in the manner sought by the decree-holder. It may be said that if he had paid off the debt, or if he had meant that the debt was not due, he would have said so in plain language, and that the natural inference from what he had said was that the debt was due. It seems to me that an acknowledgement must be a clear acknowledgement and not be left only to sheer inference. In the Full Bench case there was language the meaning of which beyond all doubt was that the debt was due. In the present case there is simply the bare fact that the man did not say that he had paid off the money. Such omission cannot be taken as an admission that the debt was due. In my opinion the petition of the 5th of February, 1912, did not contain an acknowledgement at all, and therefore the application was barred by time. The result is that the application is dismissed with costs.


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