1. This is a defendant's application by way of revision under Section 25, Provincial Small Cause Courts Act, against a decree passed by the Judge, Small Cause Court, Bareilly. At one time, the defendant was a tenant of the plaintiff in respect of a house of which the plaintiff was a possessory mortgagee. It is common ground that on 23rd June 1936, the tenancy was determined but the defendant remained in possession of the house in question from 24th April 1937 to 10th April 1938, without the assent of the plaintiff. The suit out of which this revision has arisen was brought for damages, for use and occupation of the house for this period and for interest thereon. Before the learned Judge in the Court below, the main plea raised in defence was that the suit was barred by limitation. This plea was repelled by the learned Judge and the suit was decreed for a sum of Rs. 400 in respect of the entire period mentioned above. Mr. Hari Prasad Gupta who has argued the case on behalf of the applicant, has contended that the defendant was not an agriculturist and, therefore, the Temporary Postponement of Execution of Decrees Act (10 [X] of 1937) was not applicable to the case. I am not prepared to accede to this contention, as the learned Judge in the Court below has observed that 'the defendant admittedly is an agriculturist' and no ground has been taken in the memorandum of revision challenging the correctness of this observation. Nor is there any material before me which would justify me in holding that no such admission was made on behalf of the defendant in the course of arguments before the Court below.
2. The next point urged by learned Counsel for the applicant is that the Temporary Postponement of Execution of Decrees Act (10 [X] of 1937) is not applicable by reason of the fact that Section 6, and not Section 5, of that Act governed the suit and further that the suit has been brought on the basis of a liability incurred before the passing of the Temporary Postponement of Execution of Decrees Act. In my judgment this submission is erroneous as Section 6 of that Act does not apply to suits. It is necessary to quote Section 5, which runs thus:
(1) In computing the period of limitation prescribed by the Indian Limitation Act, 1908, or any other law for the time being in force, for (a) the institution of a suit in a Civil Court against an agriculturist for money or for foreclosure or sale in enforcement of a mortgage, and (b) the execution of such decree as is referred to in Section 3, and not covered by Section 6, the period during which this Act shall remain in force, shall be excluded.
3. The language of Section 5 is explicit and there can be no question that Clause (a) of this section applies to the present ease. It is manifest that Clause (b) of Section 5 and Section 3, do not speak of a suit and have no relevancy to the matter in controversy.
4. Lastly it is urged on behalf of the applicant that the Article of the Limitation Act which was applicable to the suit was Article 110 and not Article 120. In my judgment, this contention of the learned Counsel for the applicant is also incorrect. The claim in respect of which the suit has been brought cannot be described as one for arrears of rent as the expression 'rent' presupposes the existence of the relationship of landlord and tenant. On the facts stated above, no such relationship can be said to have existed during the relevant period. The landlord had not assented to the continuance of the defendant's possession over the house in question and the defendant remained in possession thereof in defiance of the plaintiff. It was also submitted that Article 115, if not Article 110, would govern the suit. I cannot accede to this contention either. Article 115 could apply only to suits for compensation for the breach of any contract express or implied. On the facts found by the Court below and admitted before me, it is not possible to hold that there was any contract between the parties express or implied, in pursuance of which the defendant could be said to have remained in possession during the period in suit. The result is that there being no Article of the Limitation Act specifically providing for a suit of this nature, the residuary Article, namely, Article 120 'would be applicable.
5. A large number of rulings have been cited before me by learned Counsel for the applicant. I have examined the same and I find that most of them are distinguishable and afford no assistance for the decision of the present case. No authority binding on me, in which a view contrary to the one expressed by me above has been taken, has been cited and I, therefore, do not consider it necessary to discuss those rulings. The result is that I find myself in agreement with the view taken by the Court below and I, therefore, dismiss this' revision with costs.