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Rolla Subbadu, Minor, by Next Friend Rolla Rogadu and ors. Vs. Somisetti Seshayya Chetti and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1929Mad791; 122Ind.Cas.791; (1929)57MLJ353
AppellantRolla Subbadu, Minor, by Next Friend Rolla Rogadu and ors.
RespondentSomisetti Seshayya Chetti and ors.
Cases ReferredMurugesa Mudali v. Ramasami Chettiar
Excerpt:
- - the question is whether this acknowledgment, dated 6th may, 1909, is a good acknowledgment within the meaning of section 19 of the limitation act. if it is a good acknowledgment then the present suit is in time and the decision of the lower courts on this point will have to be set aside......that the acknowledgment to be effective should have been made before the expiration of the period prescribed for the suit. it is argued by mr. varadachariar for the respondents that the 'period prescribed' in section 19 of the limitation act should be limited to the period prescribed in the first schedule of the act and should not be extended to apply to the special period of two years mentioned in section 31 of the act which has been allowed only as a matter of grace by the legislature to relieve cases of hardship caused by the decision of the privy council in vasudeva mudaliar v. srinivasa pillai . this argument is not without force but it was not accepted by the learned judges of the allahabad high court in harish chandra v. kastola kunwar (1924) 80 i.c. 743 sheo partab singh.....
Judgment:

Madhavan Nair, J.

1. The plaintiffs are the appellants. The question raised in this Second Appeal is one of limitation. The plaintiffs' suit was based upon a hypothecation bond, dated 31st March, 1897, executed by the father of the defendants 1 and 2 and his co-parceners. According to the decision in Vasudeva Mudaliar v. Srinivasa Pillai1 the suit would have been time-barred having been instituted only in 1921, that is, beyond 12 years from the date of the hypothecation bond. By virtue of Section 31 of the Limitation Act the plaintiffs had time to file the suit until 7th August, 1910. Before that date an acknowledgment of liability was made by the 1st defendant in the insolvency schedule filed by him on 6th May, 1909. This ac-kowledgment was made more than 12 years after the date of the bond, that is, beyond the ordinary period of limitation prescribed1 by Article 132 of, the Limitation Act but within the two years extra time allowed by Section 31 for instituting the suit. The question is whether this acknowledgment, dated 6th May, 1909, is a good acknowledgment within the meaning of Section 19 of the Limitation Act. If it is a good acknowledgment then the present suit is in time and the decision of the Lower Courts on this point will have to be set aside.

2. Section 19 of the Limitation Act requires that the acknowledgment to be effective should have been made before the expiration of the period prescribed for the suit. It is argued by Mr. Varadachariar for the respondents that the 'period prescribed' in Section 19 of the Limitation Act should be limited to the period prescribed in the first schedule of the Act and should not be extended to apply to the special period of two years mentioned in Section 31 of the Act which has been allowed only as a matter of grace by the legislature to relieve cases of hardship caused by the decision of the Privy Council in Vasudeva Mudaliar v. Srinivasa Pillai . This argument is not without force but it was not accepted by the learned Judges of the Allahabad High Court in Harish Chandra v. Kastola Kunwar (1924) 80 I.C. 743 Sheo Partab Singh v. Tajammul Husain I.L.R.(1926) A.67 and Abdul Ghani v. Chiraitji Lal I.L.R.(1927) A. 726 all of which are cases directly in point. The head-note of the case in Sheo Partab Singh v. Tajammul Husain correctly represents the view accepted in Allahabad.. It states that 'the period prescribed for the suit' as that expression is used in Section 19 of the Indian Limitation Act, 1908, is not limited strictly to the period prescribed by Schedule I, but will include, in the case of a suit on a mortgage, the extra period of limitation given by Section 31 of the Act, and that 'an acknowledgment of the mortgage debt which is otherwise valid will not, therefore, be the less so if it is given after the period prescribed by Article 132, provided that it is within the additional period allowed by Section 31.' The present question did not arise for decision in any other High Court. In Shevdas Daulatram v. Narayen I.L.R.(1911) B. 268 it was held that the two years' period specified in Section 31 of the Limitation Act was not the period of limitation prescribed within the meaning of Section 4 of the Limitation Act. It would follow from this decision that the extra period mentioned in Section 31 would not be the 'period prescribed' for purposes of Section 19 also. It is not necessary to discuss the other cases of the Bombay High Court, Bai Hemkore v. Masamalli I.L.R.(1902) B. 782 Dayaram v. Laxman : (1911)13BOMLR284 and Visram v. Tabaji (1912) 15 Bom L.R. 348. The decision in Shevdas Daulatram v. Narayen I.L.R.(1911) B. 268. was dissented from in Hira Singh v. Musammat Amarti I.L.R.(1912) A. 375. In Madras, Sadasiva Aiyar and Spencer, JJ., following Hira Singh v. Musammat Amarti and dissenting from Shevdas Daulatram v. Narayen held that Section 4 of the Limitation Act can be invoked in computing the period prescribed by Section 31 of the Limitation Act; if this is so, it must follow that the 'period prescribed' in Section 19 should be extended to apply to the special period of two years specified in Section 31 of the Act and should not be limited to the period prescribed by the first schedule of the Act. In Subbarayan v. Natarajan 10 Spencer : AIR1922Mad268 . expressed the view that the words 'period of limitation' prescribed in Section 15(1) of the Act mean the 'period prescribed by the schedule' and Ramesam, J., stated that 'a period of limitation' does not include a mere period of limitation such as that given by Sections 6 and 8. But in that case neither Section 31 of the Limitation Act nor Section 19 was considered. The view of Reilly, J., in Second Appeals Nos. 824, 926 and 1094 of 1925 lends general support to the appellants' arguments.

3. As already noticed, the only decision of our Court which has a bearing on the present question follows the Allahabad view and dissents from the view expressed in the Bombay High Court. Sitting as a single Judge, I am bound to follow the decision in Murugesa Mudali v. Ramasami Chettiar (1913) 26 M.L.J. 23 which is a decision by a Bench. Applying this decision I would hold that the acknowledgment by the 1st defendant in the present case is a valid acknowledgment under Section 19 of the Limitation Act and the plaintiffs' suit is therefore not barred by limitation.

4. As the other points in the case have not been argued, the case will be posted for fresh arguments at a convenient date.

5. This case coming on for hearing this day, the Court delivered the following Judgment--There is one more question of limitation to be decided in this case. It is contended that the acknowledgment made by Papiah on 6th May, 1909, cannot be operative and binding on the defendants because Papiah made the acknowledgment after he had alienated the property of Ex. I on 22nd February, 1909. This question arises because the defendants how claim title to the property through the purchaser under Ex. T. This point was raised before the Subordinate Judge but the learned District Judge has not dealt with it. He has also not dealt with the other issues in the case, as he disposed of the case only on the question of limitation on which I have reversed his finding.

6. I would therefore set aside the decision of the District Judge and remand the case to the Lower Court for disposing of it according to law after deciding the remaining question of limitation and the other issues in the case. The appellant will get his costs in this Court.

7. The Court-fee will be refunded.

8. Permission granted for Letters Patent Appeal.


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