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Khacheru Mal Vs. Shib Lal - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Reported inAIR1943All296
AppellantKhacheru Mal
RespondentShib Lal
Excerpt:
- 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 filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under..........and therefore the suit was barred by limitation. the section provides as follows: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.2. the cases to which this provision has been applied in the past, were cases of debts incurred before the act came into force, the position in regard to which was that in consequence of the provisions of section 3 of the act a creditor even if he obtained a decree.....
Judgment:
ORDER

Yorke, J.

1. This is an application under Section 25, Provincial Small Cause Courts Act, and raises a point of some interest. The plaintiff-applicant sued to recover Rs. 180 on foot of a bond dated 24th June 1988. The only issue raised was: Is the plaintiff a money-lender? Upon this the learned Judge found that the plaintiff was not proved to be a money-lender, but that Section 5, U.P. Postponement of Execution of Decrees Act (Act 10 of 1937), was not applicable in the case of debts incurred after that Act came into force and therefore the suit was barred by limitation. The section provides as follows:

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.

2. The cases to which this provision has been applied in the past, were cases of debts incurred before the Act came into force, the position in regard to which was that in consequence of the provisions of Section 3 of the Act a creditor even if he obtained a decree would be unable to execute that decree during the period in which the Act might remain in force. The learned Judge of the Small Cause Court interpreted Sub-section (1) of Section 3 of the Act as 'laying down that it applied to decrees and cases in which liability was incurred prior to the passing of the Act.'

3. It is, of course, true that so far as Section 3 is concerned, it does only apply to decrees in respect of such debts; but it is obvious that prima facie Section 5 is in much more general terms. It is, I think, arguable that it might have been the intention of the Legislature to limit the application of Section 5 to cases of debts incurred before the Act came into force. The argument would proceed upon these lines. Act 10 of 1937 does not of itself operate to stay proceedings in suits. Section 8 operates to stay the execution of certain decrees for the benefit of certain grades of agriculturists, if those decrees are in respect of a debt or a liability incurred prior to the passing of the Act. Section 5 permits a creditor to wait until the Act ceases to be in force before filing his suit, apparently for the reason that such a decree if obtained by the creditor would fall within the mischief of Section 3 and be unexeeutable. But the case of a creditor who sues to recover money in respect of a liability incurred after the passing of the Act, stands on a different footing. There is nothing in the Act which operates to prevent him from instituting a suit, and what is more important and differentiates such a creditor from a creditor affected by Section 3 is that when he obtains his decree, there is nothing in Act 10 of 1937 to prevent him from executing it. It may accordingly be argued that such a creditor should not be held entitled to the benefit of Section 5 which is intended to benefit persons whose decrees if obtained would not be executable.

4. Mr. Sanyal for the applicant creditor, on the other hand, contends that this line of argument is not in accordance with the spirit of the Act and that the provisions of Section 5 are general and not limited to cases of liabilities incurred before the passing of the Act. Now, it is certainly true that the Act 'contemplates that it is for the benefit of the debtors that the evil day should so far as possible be postponed and that the creditors should not have any inclination to institute suits or execute decrees against them, the idea possibly being that the longer the institution of the suit or the execution of the decree is postponed, the greater the hope will be of the debtor being in position to meet the debt which he has incurred. If that is the correct view, this Section 5 is not to be regarded as a section which confers a right upon the creditors so much as one which gives a benefit to the debtors by allowing the creditor to postpone by the period during which Act 10 of 1937 remains in force the institution of his suit. There is a certain amount of force in this contention. The second argument which is put forward is that so far as Section 5 itself goes, it is quite general in its terms, leaving out for the moment Clause (b) with which we are not concerned in this case, the section provides that:

In computing the period of limitation prescribed by the Indian Limitation Act, 1908, or any other law for the time being in force, for the institution of a suit in a civil Court against an agriculturist for money etc., the period during which this Act shall remain in force shall be excluded.

5. Prima facie, this section operates to alter the period of limitation for money suits against agriculturists by excluding the period during which the Act remains in force. The answer which is given to this contention by Mr. Gour is that the section is to be read as excluding the whole period during which the Act remains in force, and cannot be read as excluding for any particular suit a portion only of the period during which the Act remains in force. It appears to me on the whole, that the interpretation which is suggested by Mr. Sanyal on behalf of the creditor applicant is (1) not an impossible interpretation and (2) is more in keeping with the general spirit of the Act which, as I have said earlier, aims at postponing the evil day for the agriculturist debtor as long as possible. In my judgment, Section 5 is to be read generally as affecting the Limitation Act and excluding from the period of limitation for suits of the particular kind in question any period during which the Act is in force so far it affects the debt which may be in suit in any particular case. On this view the present suit was not barred by limitation and the creditor should have been permitted to exclude the period from 24th June 1938 to 31st December 1940. There seem to be some other points involved in the case, as for example, questions of instalments and so on. I, therefore, while setting aside the decree of the trial Court, direct that the suit be remanded to that Court to dispose of the suit upon the merits. I make no order as to costs of this application.


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