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Gangadhar Patra and anr. Vs. Dolgovinda Sahu and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 183 of 1952
Judge
Reported inAIR1956Ori193; 22(1956)CLT270
ActsHindu Law; Limitation Act, 1908 - Sections 6, 9 and 19
AppellantGangadhar Patra and anr.
RespondentDolgovinda Sahu and anr.
Appellant AdvocateP. Mohanty, Adv.
Respondent AdvocateG.K. Misra, Adv.
DispositionAppeal dismissed
Cases ReferredVenkataramayyar v. Kothandaramayyar
Excerpt:
.....amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits 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..........the lower appellate court has rightly dismissed the present suit as against the nephews of gopi (defendants 1 and -2) as they are not bound by the handnote executed by gopi.4. before closing the case, i will refer to a point of law which arose during the course of argument: 'whether the plaintiff's suit will be hit by the provisions of section 9, limitation act' which runs as follows;'sec. 9-- where once time has begun to run, no subsequent disability or inability to sue stops it:''prima facie it appeared that where the right to sue had accrued in favour of kshetrabasi during i his life time and the subsequent disability of the heir (bichitrananda) on account of his minority cannot stop limitation to run. but there are consistent judicial pronouncements interpreting the plain.....
Judgment:

Mohapatra, J.

1. This is an appeal against the reversing judgment dated 14-2-1952 of Sri B. Panda, Second Additional Subordinate Judge of Cuttack, arising out of a 'Suit for recovery of money due on a hand-note. The point involved is one of limitation, a few facts relevant for the purpose of appreciating the point of limitation are that the handnote in suit is elated 5-12-1929 executed by one Gopi Patra, the deceased father of defendants 3 and 4 and the uncle of defendants 1 and 2 in favour of one Kshetrabasi Sahu.

The handnote in suit is for a sum of Rs. 1,232/-. It is to be mentioned here that the consideration of the handnote was the renewal of a previous handnote dated 26-11-1923 for a sum of Rs. 800/- executed by Gopi himself. The plaintiffs, in order to save limitation relied upon three endorsements of payments made by Gopi and one of his nephews Bhagirathi (defendant No. 2). The first endorsement is dated 26-11-1932 by Gopi himself acknowledging a payment of Rs. 3/- towards the debt.

The second endorsement is dated 13th November acknowledging a payment of Rs. 5/-, The third endorsement is dated 2-11-193(3 made by defendant 2 Bhagirathi, nephew of deceased Gopi. The plaintiffs further relied upon the position that Kshetrabasi, the original promisee, died on 26-9-1935 leaving behind him a minor son Bichitrananda and his widow, the present plaintiff 2. Bichitrananda who was a minor at the time when Kshetramohan died, also died during his minority on 3-5-1945.

The present suit has been brought by Kshetrabasi's widow stepping in as the mother of Bichitrananda and also by Dolagebinda on the allegation that the money belonged to both Kshetrabasi and Bhaban, who is the ancestor of Dolagobinda. This suit has been instituted on 10-5-1946.

2. The trial Court dismissed the plaintiff's suit on the ground of limitation finding that the endorsements are fictitious endorsements and they have not been proved. He had relied solely to come to this finding on one piece of circumstance that when in the year 1939 in a partition suit an inventory was prepared by a pleader Commissioner appointed by Court, the present endorsements, relied upon the plaintiffs, were not specifically mentioned.

The lower appellate Court has refused to give a final finding merely upon this feature of the case in disregard of the direct evidence and the circumstance. The lower appellate Court on a discussion of the evidence on record has come to the finding that the endorsements are genuine endorsements made by Gopi and Bhagirathi and the payments were actually made. In our view, there is nothing to assail this finding of the lower appellate Court in second appeal, particularly when we find that the defendants' plea seems to be a fantastic one.

The defendants' case in this regard was that the thumb impressions appearing on the back of the handnote as against each endorsement were taken at the time of the execution of the transaction itself to be made use of if the debt would be barred. There is no reason how and why the third thumb impression of Bhagirathi (defendant 2) would be taken at the time of the execution, and the purpose suggested seems to be most unacceptable.

3. Another point was taken before the lower appellate Court that the consideration of the present handnote in suit was the renewal of a barred debt, as the handnote dated 26-11-1923 by Gopi was already barred by the time the present handnote came into existence.

The position is well settled that the father can execute a handnote by giving fresh promise to make payment in respect of a barred debt which will not only be valid against the father but will be binding against the sons. To acknowledge a previous handnote is neither illegal nor immoral according to Hindu conception. The lower appellate Court has rightly dismissed the present suit as against the nephews of Gopi (defendants 1 and -2) as they are not bound by the handnote executed by Gopi.

4. Before closing the case, I will refer to a point of law which arose during the course of argument: 'whether the plaintiff's suit will be hit by the provisions of Section 9, Limitation Act' which runs as follows;

'Sec. 9-- Where once time has begun to run, no subsequent disability or inability to sue stops it:'

'Prima facie it appeared that where the right to sue had accrued in favour of Kshetrabasi during I his life time and the subsequent disability of the heir (Bichitrananda) on account of his minority cannot stop limitation to run. But there are consistent judicial pronouncements interpreting the plain language of Sections 6 and 9 of the Act on very similar facts holding that in cases of this nature the suit cannot be hit by the provisions of Section 9. It will be pertinent here, before we come to the conclusion, to refer to Section 6 which runs as follows:

'Section 6(1) -- Where a person entitled to Institute a suit or make an application for the execution of a decree is, at the time from which the period of limitation is to be reckoned, a minor, or insane, or an idiot, he may institute the suit or make me application within the same period after the disability has ceased, as would otherwise havebeen flowed from the time prescribed therefore in the third column of the first schedule.

(2) Where such person is, at the time from which the period of limitation is to be reckoned affected by two such disabilities, or where, before his disability has ceased, he is affected by another disability, he may institute the suit or make the application within the same period, after both disabilities have ceased, as would otherwise have been allowed from the time so prescribed. ,

(3) Where the disability continues up to the death of such person, his legal representative may institute the suit or make the application within the same period after the death as would otherwise have been allowed from the time so-prescribed.

(4a) Where such representative is at the date of the death affected by any such disability, the rules contained in Sub-sections (1) and (2) shall apply'.

The leading decision on the point is of the Madras High Court reported in 'Venkataramayyar v. Kothandaramayyar', 13 Mad 135 (A). That was a suit to recover dues on a registered bond executed by defendants in favour of the plaintiff's father.

The date of the bond was 20th June 1870; the principal sum was payable on 20th June 1872; the plaintiff's father died in 1875; the defendants made acknowledgments of their liability in June 1877; the plaintiff came of age in 1885 and the suit was brought on 11th August 1887. Manifestly the facts and the point involved are identical. Their Lordships decided that the suit was not barred by limitation. The plaintiff there indeed relied upon Section 19, Limitation Act but we do not find any difference in principle so far as the present case is concerned. Their Lordships observed:

'We observe that Section 19 speaks of a new period of limitation, not an extension of the old period.

X X X XUnder Section 19, Limitation Act the date of acknowledgment will have to be included in computing the new period of limitation, it is evident that the former period, already running, was not extended, but terminated, and that an entirely new period runs from the date of acknowledgment.X X X X

We do not think that Section 9 will take away this privilege since it is not subsequent disability which stops the time already running but the operation of law consequent upon the giving of the acknowledgment. This position has since been followed by many High Courts of India and is standing as good law for this length of time ever since the decision in 13 Mad 135 (A). With respect, we follow the principle laid down by their Lordships of the Madras High Court and followed by other High Courts. We conclude that the plaintiff's case is not hit by the provisions of Section 9.

5. We would however observe that this being a suit based upon a handnote, it is only the promisee or the heir of the promisee who is entitled to a decree and not any one else. Manifestly plaintiff 1 is not entitled to the decree and this is conceded by Mr. Misra, appearing on behalf of the respondents. The decree in favour of plaintiff 2 must therefore stand.

6. Subject to this modification of the judgment and the decree of the lower appellate Court, the appeal is dismissed with costs.

Panigrahi, C.J.

7. I agree.


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