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Birj Mohan Lal Vs. Ram Sarup Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Judge
Reported in2Ind.Cas.632
AppellantBirj Mohan Lal
RespondentRam Sarup Singh and ors.
Excerpt:
limitation act (ix of 1908), sections 2, clause (10) & 31 - appeal filed before the passing of the act--whether section 31 applies to such suit--suit includes appeal--'repugnant in the subject or context.' - - there can be no room for doubt, therefore, that the provisions of section 31 distinctly apply to a case like this. it is to meet cases like these that the section was enacted and to hold otherwise would be to defeat the object of the legislature......court on the ground that according to the recent decision of the privy council it was barred by 12 years' rule of limitation. the plaintiff has preferred this appeal and it is contended on his behalf that having regard to the provisions of section 31 of act ix of 1908 the suit ought to be heard and should not have been dismissed on the ground of limitation. mr. haribans sahai on behalf of the respondent has addressed to us an ingenious argument to the effect that the first paragraph of section 31 does not apply to appeals instituted before the date of the passing of the act. 'we are unable to agree with his contention. the language of the section is very clear. the section provides that no suit for foreclosure or sale instituted within a period of sixty years and pending at the date of.....
Judgment:

1. This appeal arises out of a suit for sale upon a mortgage which was decreed by the Court of first instance but was dismissed by the lower appellate Court on the ground that according to the recent decision of the Privy Council it was barred by 12 years' rule of limitation. The plaintiff has preferred this appeal and it is contended on his behalf that having regard to the provisions of Section 31 of Act IX of 1908 the suit ought to be heard and should not have been dismissed on the ground of limitation. Mr. Haribans Sahai on behalf of the respondent has addressed to us an ingenious argument to the effect that the first paragraph of Section 31 does not apply to appeals instituted before the date of the passing of the Act. 'We are unable to agree with his contention. The language of the section is very clear. The section provides that no suit for foreclosure or sale instituted within a period of sixty years and pending at the date of the passing of the Act 'either in a Court of first instance or of appeal shall be dismissed on the ground that a twelve years' rule of limitation is applicable.' The present suit was instituted within sixty years from the date when the money secured by the mortgage became due and was pending at the date of the passing of the Act in a Court of Appeal, that is, in this Court. There can be no room for doubt, therefore, that the provisions of Section 31 distinctly apply to a case like this. It is true that in Section 2 Clause (10) of the Act it is provided that a suit' does not include an 'appeal' or ' application' but that definition is subject to the rule that there is nothing repugnant in the subject or context. To hold that the word 'suit' in the last clause of Sub-section (1) of Section 31 does not include an appeal would, in our opinion, be repugnant to the context. An appeal is only another stage of a suit. When, therefore, an appeal is pending from a suit the suit must be regarded as pending in a Court of Appeal. It is thus clear that the first paragraph of Section 31 applies to a suit which is pending in the stage of appeal in an Appellate Court. That this was the intention of the legislature is manifest from the terms of the section which in our judgment are not capable of any other interpretation. It is to meet cases like these that the section was enacted and to hold otherwise would be to defeat the object of the legislature.

2. In view of the provisions of Section 31 we must allow the appeal. We, accordingly, set aside the decree of the Court below and remand the case to that Court under Order 41 Rule 23 of the Code of Civil Procedure with directions to re-admit it under its original number in the register and dispose of it according to law. Costs here and hitherto will abide the event and the costs in this Court will include fees on the higher scale.


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