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Mukat Lal Vs. Gopal Sarup - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Judge
Reported inAIR1918All63; (1919)ILR61All219; 48Ind.Cas.815
AppellantMukat Lal
RespondentGopal Sarup
Excerpt:
act no. ix 0f 1908 (indian limitation act), schedule i, article 2 - execution of decree--sale in execution--tender of decretal amount by judgment--debtor--refusal of sate officer to accept tender--suit for damages--limitation. - - that article provides a period of limitation of ninety days for suits brought for 'compensation for doing or for omitting to do an act alleged to be in pursuance of any enactment in force for the time being in british india,'in the present case if the act of the defendant complained of be the alleged refusal to accept the money due on foot of the decree, the suit is based on the allegation that the defendant omitted to do an act which it was his duty to do under one of the provisions of the code of civil procedure, namely, to receive the decretal money before..........act of the defendant complained of be the alleged refusal to accept the money due on foot of the decree, the suit is based on the allegation that the defendant omitted to do an act which it was his duty to do under one of the provisions of the code of civil procedure, namely, to receive the decretal money before sale. if on the other hand the act complained of be the proceeding to sell the property, again there can be no doubt that the complaint is that the defendant did an act purporting to be under the code, but improperly, namely, to sell the property after the decretal amount had been tendered. the learned district judge dismissed the plaintiff's suit as barred by article 2 of the limitation act (it being admitted that the suit was not brought within ninety days of the alleged act.....
Judgment:

Henry Richards, Kt., C.J. and Pramada Charan Banerji J.

1. This appeal arises out of a suit in which the plaintiff claimed damages against the defendant on certain allegations which are set forth in the plaint. They are as follows:There was a decree out against the plaintiff for a small sum of Rs. 205-13-0. The defendant was the Court Amin whose duty it was to sell the plaintiff's property in execution of the decree. The plaintiff alleges that on the day of the sale he tendered the amount of the decree to the defendant, whose duty it was under Order XXI, Rule 69, to receive the money and not proceed with the sale. The plaintiff goes on to allege that the defendant, being a friend of the decree-holder, refused to accept the money and proceeded with the sale, the result being that the plaintiff had to deposit the full purchase money which the auction purchaser had bid for the property together with 5 per cent. as a condition precedent to getting the sale set aside. The defendant denied that the plaintiff had tendered him the money (and it does seem a little strange that the plaintiff would have allowed the property, which he alleges to be worth about Rs. 5,000, to be attached and advertised for sale sooner than discharge a decree for a trivial sum). However, these questions have not been gone into in the court below. The learned District Judge, instead of allowing the case to be tried by the Munsif, took it on his own file because the conduct of a court official was being challenged by the suit. We think his action in this respect was quite correct. The learned Judge held that the suit was barred by Article 2 of the first schedule to the Limitation Act. That article provides a period of limitation of ninety days for suits brought for 'compensation for doing or for omitting to do an act alleged to be in pursuance of any enactment in force for the time being in British India,' In the present case if the act of the defendant complained of be the alleged refusal to accept the money due on foot of the decree, the suit is based on the allegation that the defendant omitted to do an act which it was his duty to do under one of the provisions of the Code of Civil Procedure, namely, to receive the decretal money before sale. If on the other hand the act complained of be the proceeding to sell the property, again there can be no doubt that the complaint is that the defendant did an act purporting to be under the Code, but improperly, namely, to sell the property after the decretal amount had been tendered. The learned District Judge dismissed the plaintiff's suit as barred by Article 2 of the Limitation Act (it being admitted that the suit was not brought within ninety days of the alleged act of the defendant). As a matter of fact the suit was not instituted until after the expiration of about nineteen months of the act complained of. In appeal to this Court it has been argued that Article 2 does not apply to any case where the act alleged is a wilful act and that the article only applies where the defendant in doing or omitting to do the act bond fide believed that he was acting correctly and in accordance with law; and it is accordingly contended that the court below ought to have determined whether or not the defendant wilfully refused to receive the decretal money from the plaintiff and if it found that he did, it ought to have given a decree against him notwithstanding the suit had been instituted after the expiration of ninety days. In support of this contention a number of authorities have been cited. For the most part they are cases in which the defendant claimed the protection of provisions in various enactments requiring notice of action. In one case, no doubt, the question whether or not Article 2 of the Limitation Act applied did arise, namely, in the case of Ranchordas Moorarji v. The Municipal Commissioner for the City of Bombay (1901) I.L.R., 25 Bom., 387, but it seems to us that the learned Judges who decided that case held that the article of the Limitation Act did not apply by applying the reasoning which formed the basis of the decision in some cases that the defendant could not plead the want of notice of action. It seems to us that the reasons which have been given in several cases for holding that the defendant could not plead want of notice of action do not necessarily apply to a plea of limitation, In the present case the whole foundation of the plaintiff's claim is the alleged omission by the defendant to perform a duty imposed by the Code, The policy of the law is quite clear, namely, that suits of this nature should be brought and investigated as promptly as possible. The issue of fact in the present case would have been whether the plaintiff tendered and the defendant refused to receive the decretal amount. A moment's reflection will show how unsatisfactory it would be that such a matter should be investigated two or three years after the sale. It may not be unreasonable where a defendant pleads as a defence to an alleged illegal act that the act was done in pursuance of a legislative enactment which requires notice of action before the institution of suit, that the defendant should show that he acted bond fide and in the belief that his action was justified. But such reasoning is not equally applicable to a plea of limitation We think that the view taken by the learned District Judge was correct and we accordingly dismiss the appeal with costs.


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