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Kankala Gurunath Patro Vs. D. Dhanu Patro - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 302 of 1978
Judge
Reported inAIR1984Ori173
ActsLimitation Act, 1963 - Sections 4
AppellantKankala Gurunath Patro
RespondentD. Dhanu Patro
Appellant AdvocateB.B. Ratho and ;S.K. Das, Advs.
Respondent AdvocateB.R. Rao and ;B.L.N. Swamy, Advs.
DispositionAppeal allowed
Cases Referred(Amar Chand Inasi v. Union of India
Excerpt:
.....filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the..........it became a holiday. section 4, limitation act, provides that where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens. in a decision reported in air 1973 sc 313 (amar chand inasi v. union of india), their lordships have held that the plaintiff would not be entitled to the benefit of section 4 if the suit is not presented on the reopening day in the proper court. in this case, the court of munsif, berhampur was not the proper court for filing of the suit. therefore, the plaintiff would not be entitled to the benefit of section 4 so as to extend the period of limitation till 2-4-74.10. in view of the aforesaid position of law, the suit.....
Judgment:

P.C. Misra, J.

1. The defendant is the appellant in a confirming judgment.

2. The suit is based on a promissorynote. The plaintiff's case is that on1-4-71, the defendant took a loan of Rupees 3,000/- executing a promissory notein favour, of the plaintiff agreeing to .payan interest of 12 per cent per annum. Asno part of the loan or the interest accruing thereon was repaid by the defendant,the plaintiff filed the suit for realisation of his dues.

3. The defendant's case, in short, was that he had paid back the loan together with interest as agreed to in presence of several gentlemen and the plaintiff did not return the promissory note on some plea or other. According to the defendant, the plaintiff has filed the suit on the basis of the said promissory note. The defendant also took a plea that the suit is barred by limitation.

4. The learned Subordinate Judge after recording the evidence and hearing the parties, negatived the plea of payment by the defendant and decreed the suit with costs. The plea of limitation raised by the defendant was not accepted by the learned Subordinate Judge who found that the suit has been filed within the period of limitation.

5. In appeal (Money Appeal No. 10/78), the learned Additional District Judge, Berhampur, confirmed the judgment and decree of the learned Subordinate Judge and dismissed the appeal with costs.

6. In this Second Appeal, the defendant-appellant challenges the correctness cf the judgments of the Courts below on several grounds, out of which, ground No. 5, was considered to be a substantial question of law at the tirnc of admission. In ground No. 5, the appellant challenges the finding of the Courts below on the question of limitation.

7. The promissory note on the basis of which the suit has been filed was executed 1-4-71. According to Section 12, Limitation Act, 1963, the day from which the period is to be reckoned is to be excluded. Hence the last date of filing the suit was 1-4-74. That day i. e. 1-4-74, being a holiday the suit was required to be filed on 2-4-74 which was the next working day of the Court according to the provisions of Section 4 of the Limitation Act, 1963. The suit according to the appellant was barred by time since it was filed on 4-4-74.

8. On an examination of the record, I find that on 2-4-74 i. e. on the last day of limitation, the suit was filed in the Court of the Munsif, Berhampur. The Munsif, Berhampur found that it was not the proper Court as it lacked pecuniary jurisdiction to entertain the suit. Hence the plaint filed was returned to the plaintiff on 4-4-74. The plaintiff after taking return of the plaint filed it in the Court of the Subordinate Judge, Berhampur, on the very same day i. e. on 4-4-1974.

9. The last day for filing of the suit was 1-4-74. By operation of Section 4, Limitation Act, it became a holiday. Section 4, Limitation Act, provides that where the prescribed period for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the Court reopens. In a decision reported in AIR 1973 SC 313 (Amar Chand Inasi v. Union of India), their Lordships have held that the plaintiff would not be entitled to the benefit of Section 4 if the suit is not presented on the reopening day in the proper Court. In this case, the Court of Munsif, Berhampur was not the proper court for filing of the suit. Therefore, the plaintiff would not be entitled to the benefit of Section 4 so as to extend the period of limitation till 2-4-74.

10. In view of the aforesaid position of law, the suit is bound to be held to be barred by limitation even though the plaintiff had succeeded on merit in both the Courts below. Hence this appeal is allowed and the suit is dismissed as barred by limitation. In the peculiar facts of this case, there would be no order for costs,


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