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Mohammad Yunis Vs. Tilok Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtAllahabad
Decided On
Reported inAIR1935All323; 153Ind.Cas.1058
AppellantMohammad Yunis
RespondentTilok Chand and ors.
Cases ReferredNrityamoni Dassi v. Lakhan Chandra Sen
Excerpt:
.....defaults on 31st july 1925 and that the time for filing an application for preparation of a final decree expired on 31st july 1928. it further held that, though the plaintiff-respondent had filed the application for execution in good faith, they were not entitled to the benefit of the provision of section 14(2), limitation act, as the application for execution was not for the same relief within the meaning of that section, for which the present application for the preparation of the final decree was filed. like the schedule the provisions of the limitation act as regards the exclusion of time are exhaustive, and it is not permissible to supplement or to add to those provisions. in other words, the law of limitation does, in many cases, lead to injustice to the defeated party. 244...........for consideration in the case is whether or not the application for the preparation of the final decree presented by the plaintiffs-respondents in the court below was barred by limitation. the court below overruled the plea of limitation raised by the defendant and held that 'under the peculiar circumstances of this case' the application was within time.2. the court below was right in observing that the circumstances that led to the application for the preparation of the final decree filed by the plaintiffs were 'peculiar,' but this fact, in our judgment, was no justification for adding to or supplementing the provisions of the indian limitation act as regards the computation of the period of limitation prescribed for such an application by that act, as the court below has done......
Judgment:

1. This is a defendant's appeal against a final decree in a mortgage suit passed by the Court below under Order 34, Rule 5, Civil P.C., and the so e question for consideration in the case is whether or not the application for the preparation of the final decree presented by the plaintiffs-respondents in the Court below was barred by limitation. The Court below overruled the plea of limitation raised by the defendant and held that 'under the peculiar circumstances of this case' the application was within time.

2. The Court below was right in observing that the circumstances that led to the application for the preparation of the final decree filed by the plaintiffs were 'peculiar,' but this fact, in our judgment, was no justification for adding to or supplementing the provisions of the Indian Limitation Act as regards the computation of the period of limitation prescribed for such an application by that Act, as the Court below has done. The facts are undisputed and are as follows : On 5th September 1916, a decree for sale in terms of a compromise entered into by the parties was passed in favour of the plaintiffs against the defendant. The compromise that was embodied in the decree provided that the defendant:

will pay the entire amount claimed and the coats of the suit, with an instalmsutary payment of Rs. 1,000 a year with interest at the rate of 6 annas per cent per mensem. In case a default is made in respect of two consecutive instalments, the entire decretal amount will be paid in a lump sum with interest at the rate of 8 annas per cent per mensem. The plaintiffs will be entitled to get the entire property sought to be sold by auction noted in the petition of plaint, sold by auction.... The first instalment will stand payable on 21st July 1917, and in the same way each instalment will fall due on 31st July of every year until the entire decretal amount is paid. Hence it is prayed that decree under Order 34, Rule 4, may be passed with the above mentioned instalmentary payment and conditions.

3. Some of the instalments were duly paid by the defendant but default was made in the payment of the instalments that fell due on 31st July 1924, and 31st July 1925, and thus, in accordance with the terms of the com promise decree, the entire remaining decretal amount became payable in a lump sum on 31st July 1925. The plaintiff-decree-holders then filed an application for execution of the decree on 6th July 1927. The defendant-appellant objected to the application for execution, inter alia, on the ground that that compromise decree, being a preliminary decree for sale, was not capable of execution, and that the plaintiffs-decree-holders could not apply for execution without having a final decree prepared. On 22nd March 1928, the execution Court over-ruled the objection preferred by the appellant but, on appeal, this Court on 25th July 1929, gave effect to the objection of the defendant-appellant and dismissed the application for execution. This Court held that the decree passed in terms of the compromise was a decree under Order 34, Rule 4, Civil P.C., and:

The decree-holders therefore were obliged to apply for a final decree before they can proceed to execution and they were debarred from making an application for sale in an execution Court.

4. Then on 5th September 1929, the plaintiffs-respondents filed an application for preparation of a final decree under Order 34, Rule 5 Civil P.C. In this application it was admitted that the right to apply for the preparation of final decree accrued to the plaintiffs on 31st July 1925, by which date default had been made by the defendant in the payment of two consecutive instalments. It would be noted that the application for the preparation of the final decree was filed more than three years after 31st July 1925, but the plaintiffs sought to bring the said application within limitation by alleging that they were entitled, in computing the period of limitation, to exclude the time during which the application for execution was pending in the Court below and in this Court, viz., from 6th July 1927, up to 25th July 1929.

5. The defendant-appellant resisted the application on the ground that it was time barred. He maintained that the plaintiffs-respondents were not entitled to the deduction of any time in computing the period of limitation. The Court below held that there were two consecutive defaults on 31st July 1925 and that the time for filing an application for preparation of a final decree expired on 31st July 1928. It further held that, though the plaintiff-respondent had filed the application for execution in good faith, they were not entitled to the benefit of the provision of Section 14(2), Limitation Act, as the application for execution was not for the same relief within the meaning of that section, for which the present application for the preparation of the final decree was filed. In this connection the Court below relied on the decision of this Court in Maqbul Ahmad v. Pateshri Partab Narain : AIR1929All677 , in which in similar circumstances it was held that:

The relief claimed in the execution of the decree was for the realization of the decretal amount by the sale of the property mentioned, therein, and the application for the preparation of the final decree is not for execution but for the preparation of the final decree which would be the last decree capable of execution. The two reliefs being different Section 14, Clause (2) is not applicable.

6. It however was of the opinion that the decision in Nrtyamoni Dassi v. Lakhan Chandra Sen 1916 P.C. 96 was an authority for the proposition that:

where the plaintiff could not have sued for some relief which had been decreed to him by mistake, his right of action should be considered as suspended and that time during which this right was suspended should be deducted.

7. It therefore held that the time from 22nd March 1928, when the Court below had allowed the application for execution filed by the plaintiffs, to 25th July 1929, when this Court dismissed the application for execution should be deducted 'as the applicants' rights for applying for preparation of final decree were under suspension' during that period. In this view of the matter the Court below granted the application filed by the plaintiffs and passed a final decree.

8. In our judgment the plaintiffs were not entitled to the exclusion of any period in the computation of the period of limitation, and the application for preparation of final decree filed by them was barred by limitation. The Indian Limitation Act is a self-contained and exhaustive Code on the law of limitation. The time from which the period for instituting a suit, preferring an appeal, or making an application begins to run is laid down by the first second and third divisions respectively of Schedule 1 to that Act. The period of limitation for all sorts of conceivable suits and applications has been prescribed by that schedule and, in order to make the schedule excusive, the legislature has prescribed periods of limitation of Articles 120 and 181 of that Schedule for such suits and applications for which no period of limitation is provided elsewhere in t hat Schedule. But the third column of the Schedule that provides the 'time from which period begins to run' is subject to the provisions of Sections 4 to 24 of the Act and, in computing the period of limitation a plaintiff or an applicant is entitled to exclude such time as is provided for by any one of those sections, provided t he case comes within the purview of a particular section. Like the schedule the provisions of the Limitation Act as regards the exclusion of time are exhaustive, and it is not permissible to supplement or to add to those provisions. If a suit or an application does not fall within any one of the sections that prescribe about the exclusion, of certain period in the computation of the period of limitation, the time must be computed from the date prescribed by the third column of Schedule 3, and no principle out side the Limitation Act can be appealed to as a justification for the exclusion of any time. There is no sanction in law to invoke in aid principles of equity to enlarge the period of limitation by excluding some time in computing the period of limitation, for which no authority is to be found within the four corners of the Limitation Act. When the law is clear, it is the duty of the Court to give effect to it irrespective of the fact that the result leads to some injustice to one party or the other. When a Rule has been laid down by the legislature, it has to be followed, and it is not open to the Court to enquire into the reasons for that rule, and to attempt to supplement those rules on equitable grounds.

9. In particular there is no room for the introduction of equitable principles in the administration of the law of limitation. In every case in which a defendant successfully invokes a rule of limitation in bar of a plaintiff's claim who has, apart from the law of limitation, a right to get relief against the defendant with respect to the subject-matter of the suit, the decision must be unjust in the sense that the defendant has, because of the bar of limitation, succeeded in withholding from the plaintiff what in common honesty is due to him. In other words, the law of limitation does, in many cases, lead to injustice to the defeated party. But such injustice, or supposed injustice, cannot be made the ground for enlarging or restricting the scope of a Statute passed by a competent legislature. It is to be remembered that public policy requires that there should be speedy decisions of disputes and adjustments of conflicting claims and that stale claims, should, as far as possible, be discouraged. It is also of cardinal importance for the progress of a civilized society on healthy lines that title should not be left in doubt and the unsettling of apparently settled facts should not be the order of the day. The aims and objects of the law of limitation are to set at rest doubts about title as early as possible and, in the administration of such law, equitable consideration cannot be allowed to come into play. Provisions for the 'exception of time in the computation of the period of limitation for a particular suit or application must be sought within the four corners of the Act and not outside it. It is to be noted that the provisions of Section 3 of the Act that every suit instituted, appeal preferred and application made after the period of limitation prescribed therefor, by Schedule 1 shall be dismissed, are mandatory and so are the provisions of Section 9 of the Act which lays down that where once time has begun to run, no subsequent disability or inability to sue stops it. It follows that, if there is no provision in the Limitation Act that allows the exclusion of any time in the computation of the period of limitation, the time must be computed from the date prescribed by Column 3, Schedule 1 to the Act. The view that we take is in consonance with the decision of their Lordships of the Privy Council in Soni Lal v. Kanhaiyaa Lal (1913) 35 All. 227, and the decision of this Court in Ram Charan Sahu v. Goga : AIR1927All446 . To the same effect are the decisions in Sarat Kamini Dassi v. Nagendra Nath 1926 Cal. 65, M. Satya Narayana Brahman v. M. Seethayya 1927 Mad 597 and Hari Singh v. Muhammad Said 1927 Lah 200.

10. In the case before us the Court below has excluded the time between 22nd March 1928, when the objection of the defendant to the application for execution was disallowed by the execution Court and 25th July 1929, when this Court reversed the decision of the execution Court and dismissed the application for execution. There is no provision in the Indian Limitation Act that warrants the exclusion of this time. Clause 2, Section 14 of the Act had, as held by the Court below, no application to the case as the application for execution was not 'for the same relief' within the meaning of that clause as was the present application for the preparation of a final decree. It may be that the words the same relief, should be given a liberal and not a narrow interpretation, but in view of the Division Bench ruling of this Court reported as Maqbul Ahmad v. Pateshri Partab Narain : AIR1929All667 we must hold that the Court below was right in holding that the case did not come within the purview of Section 14(2). But the Court below excluded the time mentioned above on the ground that the plaintiffs had no right to apply for the preparation of a final decree between the date on which the execution Court allowed the application for execution and the date on which this Court dismissed the application for execution. We consider that the Court below was wrong in assuming that the plaintiffs had not the right to file an application for a final decree during the period mentioned above. The decree passed in their favour was in terms a decree under Order 34, Rule 4, Civil P.C. They were therefore entitled under the law to ask for the preparation of a final decree and the erroneous order of the execution Court dated 22nd March 1928, could not be a bar to the preparation of a final decree on an application being made for the purpose. We hold therefore that time began to run against the plaintiffs from the date of the default in the payment of two consecutive instalments, viz., from 31st July 1925, and the application for the preparation of final decree filed by the plaintiffs was barred by limitation.

11. But it is contended by Mr. Gurtu, the learned Counsel for the respondents that the view taken by the Court below is justified by various decisions of their Lordships of the Privy Council, and we now proceed to notice those decisions. The first case relied upon is the decision in Rauce Surnomoyee v. Shooshee Mokhee Burmonia (1867-69) 12 M.I.A. 244. In that case putnee talook of putneedars was sold for realization of arrears of rent due to the zamindar under Bengal Regulation 8 of 1819 and was purchased by a third person, and out of the sale price the rent due to the zamindar was satisfied. Thereafter the sale was, on a suit being filed by the putneedars against the zamindar and the auction purchaser, set aside on the ground of various irregularities in the proceedings relating to the sale, and it was ordered that possession of the talook be restored to the putneedars, and that the zamindar should return the purchase money with interest to the auction purchaser. After returning the purchase money, the zamindar brought, a suit for the recovery of the rent due to him. The High Court decided that suit, not having been brought within three years from the time the rent first became due, was barred by Section 32 of the Act 10 of 1859. The decision of the High Court was reversed by their Lordships of the Privy Council. Their Lordships held that:

Upon the setting aside of this sale, and the restoration of the parties to possession, they took back the estate, subject to the obligation to pay the rent : and that the particular arrears of rent claimed in this action must be taken to have become due in the year in which that restoration to possession took place.

12. This case, in our judgment, is clearly distinguishable. On the sale of the talook the claim of the zamindar for arrears of rent was satisfied, and., when the sale was set aside and the zamindar had to refund the money realized by him, a new cause of action did, as held by their Lordships, arise for the recovery of the amount that the zamindar had to refund. That this is so is apparent from the fact that their Lordships dissented from the view of the High Court that the zamindar could have sued for the arrears pending the proceedings to set aside the sale and observed that until the sale had been set aside, the zamindar was in the position of a person whose claim had been satisfied and that her suit, if instituted, might have been successfully met by a plea to that effect. In the case before us the amount due to the plaintiffs for which they prayed for a final decree was not, on the application for execution being allowed by the execution Court, paid to them, and therefore their claim for the outstanding amount remained un satisfied all through. In, the case be fore their Lordships, there was no question about the exclusion of any time in computting the period of limitation after the period had begun to run.

13. The second case cited on behalf of the respondent is the decision in Bassu Kuar v. Dhum Singh (1889) 11 All. 47 15 I.A. 211. The question for consideration in that case was whether a debt which at one time was due from the defendant to the plaintiff, and which had never been paid, had been extinguished by lapse of time. It appears that the defendant executed a sale deed of certain property belonging to him in favour of the plaintiff in consideration of the debt due to the plaintiff. But very soon afterwards the plaintiff found, or alleged, that the deed was not in accordance with certain conditions for which it had stipulated, and, declining to complete the purchase, demanded the amount that was due to him. The defendant insisted that the deed was in accordance with, the contract between the parties and filed a suit for specific performance of the contract, praying that the deed might be registered. The suit of the defendant was decreed by the Subordinate Judge but dismissed by the High Court. The plaintiff then filed a suit for recovery of the debt due to him. The suit was filed mure than three years after the debt had originally become due but within three years from the date of the decision of the High Court. The plaintiff claimed that the amount for which the defendant had given credit to him in the sale deed ought to be refunded to him. The defendant resisted the suit on the ground that it was time-barred. Their Lordships overruled the contention of the defendant and observed, that the decree of the High Court in the suit for specific performance of contract 'brought about a new state of things, and imposed a new obligation on' the defendant. They then observed that in view of Section 65, Contract Act, the defendant was bound to restore the advantage that he had received when the contract of sale was declared to be void by the High Court. The advantage received by the defendant under that contract was the retention of the debt due by him to the plaintiff and, accordingly, the cause of action for the recovery of that debt arose on the date of the decision of the High Court. Their Lordships also made reference to Article 97, Limitation Act, (Act 15 of 1877) that provided for an action for money paid upon an existing consideration which afterwards fails. Their Lordships held that the consideration for the retention of the debt by the defendant failed on the date of the decree by 'the High 'Court and the suit, having been brought within three years from that date, was within time. In the case before us there is no question about an agreement having been discovered to be void or a contract having become void or of the failure of any consideration, and therefore the case is clearly distinguishable. Reliance is however placed on behalf of the respondents on the following observations contained in the judgment of their Lordships:

14. It would ho an inconvenient state of the law if it were found necessary for a man to institute a perfectly vain litigation under peril of losing his property if be does not. And it would be a lamentable state of the law if it were fouud that a debtor who for years has been insisting that his creditor shall take payment in a particular mode can, when it is decided that he cannot enforce that mode, turn round and say that the lapse of time has relieved him from paying at all.

15. It is pointed out by the learned Counsel that after the application for execution filed by the plaintiffs was allowed by the execution Court, it was useless for them to apply for the preparation of a final decree and it is accordingly contended that the time from that date till the High Court reversed the decision of the execution Court should be excluded in the computation of the period of limitation. The obvious answer to this contention is that the observations of their Lordships quoted above must be read with reference to the facts of the case before their Lordships and can have no application to cases in which the facts are essentially different. It is needless to observe that the attempt to apply judicial decisions by analogy to cases the facts of which are different re-suits in confusion and must be deprecated.

16. Similarly the decision in Nrityamoni Dassi v. Lakhan Chandra Sen 1916 P.C. 96 is distinguishable. In that case the property in dispute belonged in equal shares to three persons. One of the co-sharers filed a suit for his one-third share and impleaded the remaining two co-sharers as defendants to the suit. The suit was contested by one of the defendants. The other defendant was pro forma and supported the plaintiff's claim and prayed that his one-third share should also be decreed to him. The trial Judge decreed the plaintiff's claim and declared that the pro forma defendant was also entitled to a decree for one-third share in the property. But, on appeal by the defendant who contested the suit, the portion of the decree, which gave relief to the pro forma defendant who had claimed his share in the property was set aside on the ground, among others, that as the suit was one for ejectment and not a partition suit, relief could not be given as between two co-defendants. The pro forma defendant then commenced an action for declaration of his title to his share in the property and for possession. The suit was contested by the defendant on the ground that it was barred by limitation. The trial Judge gave effect to the plea of limitation and dismissed the suit. But on appeal a Bench of the Calcutta High Court decreed the suit. The Bench doubted the applicability of Section 14, Limitation Act, but held that as the decree of the trial Judge in the former suit, so long as it was not reversed on appeal, was capable of execution, the plaintiff (the pro forma defendant in the former suit) could not institute a fresh suit for the reliefs that he sought in the later suit and, accordingly, he was entitled to deduct the period that intervened between the decree' of the trial Judge and the reversal of that decree by the appellate Court. On appeal by the defendant their Lordships of the Judicial Committee 'concurred generally' with the reasons given by the appellate Court for overruling the plea of limitation and observed that limitation:

would equally without doubt remain in suspense whilst the plaintiffs were bona fids litigating for their rights in a Court of Justice.

17. It is true that no reference to Section 14(1), Limitation Act, was made by their Lordships in the course of their judgment, but the observations quoted above do indicate that their Lordships intended to hold that the plaintiff was entitled to the benefit of the provisions of Section 14(1), Limitation Act. Section 14, however as observed above, has no application to the case before us. For the reasons given above, we allow this appeal, set aside the final decree passed by the Subordinate Judge, and dismiss the application for preparation of final decree filed by the plaintiffs with costs here and below.


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