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Arayil Kali Amma and ors. Vs. Palappakkara Manakal and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported in(1910)20MLJ347
AppellantArayil Kali Amma and ors.
RespondentPalappakkara Manakal and ors.
Cases ReferredReg. v. Sorabji Balabhai I.L.R.
Excerpt:
- - 4. it is objected by the respondents that the appeal cannot proceed as against the other respondents as well......section 6 of the general clauses act x of 1897 has no application so as to preserve the older period of limitation which is not a rule of sub-sanative law. the decision in chajmal das v. jagdamba prasad i.l.r. (1889) a. 408 seems to be exactly in point. the fact that in this case an application to bring in the representative would be barred on the very date of the coming into force of the new law fixing the shorter period cannot affect the principle applicable as has been pointed out in the english cases referred to in khusal bhai v. kabhai i.l.r. (1881) b. 26. there is no objection to the application of the new rule on the ground of hardship when the legislature has postponed the coming into operation of the new act to the 1st january 1909, though it was passed on the 7th august.....
Judgment:

1. In this case the 4th respondent died on the 9th December 1907. No application has been made till now to bring his legal representative on the record. The question is whether the second appeal abates under Section 108 read with Order XXII, Rule 11, and Rule 4 of the Code of Civil Procedure. The time provided by the Limitation Act of 1877 was not six months under Article 175 (c) but 3 years under Article 178 according to the ruling of the Full Bench of this Court in Susya Pillai v. Aiyakannu Pillai I.L.R. (1906) M. 529. But this period has been cut down to six months under Article 177 of the Limitation Act of 1908, If this article applies the second appeal must abate as regards the 4th respondent.

2. According to Section 3 of Act IX of 1908 an application to bring in the legal representative now made must be dealt with under this Act. Section 30 of the Act makes a special provision in respect of suits for which a shorter period is provided by the new Act than by the old, giving a further period of two years after the Act when the plaintiff would be barred if the new period were applied. But there is no similar provision in the case of an application. Section 6 of the General Clauses Act X of 1897 has no application so as to preserve the older period of limitation which is not a rule of sub-sanative law. The decision in Chajmal Das v. Jagdamba Prasad I.L.R. (1889) A. 408 seems to be exactly in point. The fact that in this case an application to bring in the representative would be barred on the very date of the coming into force of the new law fixing the shorter period cannot affect the principle applicable as has been pointed out in the English cases referred to in Khusal Bhai v. Kabhai I.L.R. (1881) B. 26. There is no objection to the application of the new rule on the ground of hardship when the Legislature has postponed the coming into operation of the new Act to the 1st January 1909, though it was passed on the 7th August 1908. The facts of the case in Kusalhai v. Kabhai I.L.R. (1881) B 26 are not clear and the principle of that case is distinguishable having regard to the interval of time between the passing of the Act and its coming into force. We agree with the decision in Reg. v. Sorabji Balabhai I.L.R. (1889) B.H.C. 117.

3. We must hold that the second appeal abates as against the 4th respondent.

4. It is objected by the respondents that the appeal cannot proceed as against the other respondents as well. The respondents were Co-Uralans of a Devasom and have obtained a decree for an injunction and damages against the appellants. Co-Uralans are joint trustees of the temple and its properties. It is not open to the appellants to prosecute the appeal against some of the trustees leaving the decree of the District Court intact in favour of the others.

5. We must dismiss the second appeal with costs.


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