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

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1930Mad991; (1930)59MLJ881
AppellantSomisetti Seshayya Chetty and ors.
RespondentRolla Subbadu, Minor by Next Friend, Rolla Ragadu and ors.
Cases ReferredMurugesa Mudali v. Ramaswami Chettiar
Excerpt:
.....courts had taken the view that the article applicable was article 147 which gave a period of sixty years' limitation and certain other high courts thought that the -period of limitation was only twelve years under article 132. all doubts on the matter were finally set at rest by the decision of the privy council in vasudeva mudaliar v. that section is perfectly clear and does not give rise to any confusion whatever. 67. a case like the one now under appeal, of acknowledgment of liability, it was held that section 4 does not prescribe any special period of limitation for any kind of suit but only lays down that when the prescribed period of limitation expires on a day when the court is closed then the suit must be instituted on the day when the court re-opens and whilst in full agreement..........hira singh v. musammat amarti i.l.r. (1912) all. 375 there the special period of limitation of two years prescribed by section 31 of the act of 1908 expired on a sunday and it was held that a suit for sale to which section 31 applied instituted upon the following monday was within time. in the opinion of the bench the time fixed for the institution of suits under section 31 was as much pre scribed as if suits instituted under that section found place in the schedule. another allahabad case is harish chandra v. kas tola kunwar (1924) 80 i.c. 743. where it was held that the word 'prescribed' in section 19 of the limitation act means 'prescribed by any law for the time being in force-' and not limited to the period pre scribed in the first schedule of the act. again in abdul ghani v......
Judgment:

1. The defendants in this suit are appellants here. This was a suit based upon a hypothecation bond, dated the 31st March, 1897, executed by the father of defendants 1 and 2 and his coparceners. Admittedly Article 132 of the Limitation Act is the appropriate article in such cases and that provides for a twelve years' period of limitation. The suit in this case was filed on the 2nd February, 1921 and the 12 years' period of limitation provided by Article 132 of the Limitation Act expired on the 31st March, 1909, but in order to get over the bar of limitation raised against the plaintiffs by Article 132, an acknowledgment of liability, dated the 6th May, 1909, is relied on by the plaintiffs. It must be noted that this acknow ledgment was after the period of limitation provided by Article 132 had expired, but the plaintiffs' case is that by virtue of sec tion 31 of the Limitation Act, 1908, which came into force to gether with Section 1 on the 7th August, 1908, the period of limitation was in this case extended by two years from the date of that Act. The appellants' case is that Section 31 does not prescribe a period of limitation and that therefore in the case of suits already time-barred when the Act came into force, no acknowledgment made within the two years provided by sec tion 31 can be availed of by the plaintiffs in such suits. If the plaintiffs' contention is correct, the present suit was filed within time because they would have, under Section 19 of, the Limitation Act, a fresh period of limitation of twelve years from the date of the acknowledgment.

2. We have to consider the effect of Sections 19 and 31 of the Limitation Act, and in doing so it must be stated that it is beyond question that Section 31was enacted on account of a conflict of opinion between the Allahabad High Court and other Courts with regard to what was the period of limitation in suits on simple mortgages. The Allahabad High Court as well as some other High Courts had taken the view that the article applicable was Article 147 which gave a period of sixty years' limitation and certain other High Courts thought that the -period of limitation was only twelve years under Article 132. All doubts on the matter were finally set at rest by the decision of the Privy Council in Vasudeva Mudaliar v. Srinivasa Pillai . which decided that the period of limitation was 12 years under Article 132. The result of this decision was that mortgagees in the United Provinces, through a wrong interpretation of the law which had prevailed there, had lost the right of suit and it was in order to prevent this hardship that Section 31 was enacted. That section allows mortgagees to bring suits on their mortgages within two years from the date of the passing of the Act or within sixty years from the date when the money be came due whichever period expires first. That section applies to cases where the mortgagee's right to sue had become time-barred before the Act was passed. It may also have been intended to apply to suits not already time-barred, but on the point of being so. That section also applies to suit's time-barred and dismissed on that account and also to pending suits. It will be seen, therefore, that Section 31 was designed to embrace only a special class of cases.

3. Mr. Varadachari for the defendants-appellants contends that Section 31 is purely remedial and gives a period of two years from the passing of the Act for the institution of the special class of suits more as a concession dr an act of grace and that Section 31 does not prescribe any period of limitation. There is certainly much force in this contention very ably presented to us by Mr. Varadachari. In support of it he has referred to Sections 3 and 4 of the Limitation Act. The former says that every suit instituted, appeal preferred and application made after the period of limitation prescribed therefor by the first .schedule shall be dismissed. That section is perfectly clear and does not give rise to any confusion whatever. Section 4 provides that where the period of limitation prescribed 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 that the Court re-opens. His contention is that Section 4 does not extend the period of limitation at all, that expires on the last day of the period set out in the schedule, but gives the mortgagee a day or days of grace in which to institute the suit. He contends that Section 19 which is the acknowledgment section saying limitation, limits the acknowledgment to the period set out in the schedule. The opening words of the section are:

Where, before the expiration of the period prescribed for a suit ...an acknowledgment of liability in respect of such property or right has been made....

4. He contends that 'the period prescribed for a suit' means the period prescribed in the schedule. Mr. Chenchiah on the other hand for the respondents in his very able argument con tends that the words 'the period prescribed for a suit' mean not only the period of limitation given in the schedule but such further days as are given to persons by other sections of the Act and that the words in Section 19 do not mean 'prescribed in the schedule' but in their relation to Section 31 mean the further period of two years provided for in Section 31. He points out that in Section 3 the words used are 'every suit in stituted after the period of limitation prescribed therefor by the first schedule,' that there is a definite reference to the schedule and that in Section 4 the words are 'the period of limitation prescribed for any suit,' the words 'in the schedule' being omit ted. Our attention was also drawn to Section 5 where the words are 'the period of limitation prescribed therefor' and other sections and pointed reference was made by him to Section 19 where the words are 'period prescribed for a suit'.

5. This question has been considered by the High Courts of Bombay, Allahabad, Madras and Calcutta. The Allahabad High Court has consistently held the view that Section 31 does pres cribe the period of limitation and I think that the respondents' contention that the Madras High Court has taken the same view as that held in Allahabad is correct. The Calcutta High Court also, in the one case to which we were referred in that High Court, shared the Allahabad opinion. The Bombay High Court on the other hand has taken a different view.

6. In Shevdas Daulatram y. Narayan I.L.R. (1911) Bom. 208. the question arose as to whether a suit for which provision is made under Section 31(1) of the Limitation Act, 1908, if instituted on a Monday, one: day after the period of two years from the date of the passing of the Act has expired, could be taken to have been instituted within the period of two years and it was held that Section 31 of the Limitation Act did not prescribe a period of limitation and that the suit could not be taken to have been in stituted within the period of two years. That Court had not to consider Section 19 of the Limitation Act and is on that ground certainly distinguishable from the present case. An earlier case in the Bombay High Court under the old Act, Bai Hemkor'e v. Masamalli I.L.R. (1902) Bom. 782, was a case of an acknowledgment by the de fendant. That was a case of a suit to recover money due under a bond. The defendant made an acknowledgment of liability during the time that the Courts were closed for the vacation. When the acknowledgment was made the three years' period of limitation provided in the Act had expired although the plaintiffs' right to institute the suit on the date was subsisting under * Section 5 of the old Act 'which is the same as Section 4 of the present Act. In Sheo Partab Singh v. Tajammul Hussain I.L.R. (1926) All. 67. a case like the one now under appeal, of acknowledgment of liability, it was held that Section 4 does not prescribe any special period of limitation for any kind of suit but only lays down that when the prescribed period of limitation expires on a day when the Court is closed then the suit must be instituted on the day when the Court re-opens and whilst in full agreement with the view taken by the Bombay High Court in Bai Hemkore v. Masamalli3 last referred to, they held that that case was dis tinguishable from the case then before them. On page 70, Mears, C.J., and King, J., state as follows:

It has been argued for the respondents that in Section 19 the words 'before the expiration of the period prescribed' must be taken as mean ing before the expiration of the period prescribed in the schedule. We see no reason for limiting the meaning of the words in the manner sug gested. A period for a suit can be prescribed by a section of the Act as well as by an article of the schedule,and in the present case the period of limitation is specially prescribed in Section 31 of the Act.

7. A contrary view to that contended for here by the appel lants was also taken by the Allahabad High Court in Hira Singh v. Musammat Amarti I.L.R. (1912) All. 375 There the special period of limitation of two years prescribed by Section 31 of the Act of 1908 expired on a Sunday and it was held that a suit for sale to which Section 31 applied instituted upon the following Monday was within time. In the opinion of the Bench the time fixed for the institution of suits under Section 31 was as much pre scribed as if suits instituted under that section found place in the schedule. Another Allahabad case is Harish Chandra v. Kas tola Kunwar (1924) 80 I.C. 743. where it was held that the word 'prescribed' in Section 19 of the Limitation Act means 'prescribed by any law for the time being in force-' and not limited to the period pre scribed in the first schedule of the Act. Again in Abdul Ghani v. Chiranji Lai I.L.R. (1927) All. 726., a decision of a single Judge, it was held that an acknowledgment of a debt made after the expiration of the three years' period prescribed by Schedule I of the Limitation Act, 1908, for a suit upon a promissory note but made before a. suit on the note is actually barred by limitation is a good acknowledgment and there was no reason to limit the sense of the expression 'period prescribed' to the period prescribed in the schedule alone. I now turn to the decision of Rankin, C.J., in Debendra Nath Roy v. Kartic Prasad DasI.L.R. (1928) Cal. 1210.. In that case there had been a payment of interest on a simple money bond after the 'expiration of the three years from the date limited for payment when the Court was closed, but it was held that it could not save limitation under Section 20 of the Act if a suit on the bond was not brought on the day the Court re-opened after the vacation. In his judgment Rankin, C.J., dealt with the case in Bai Hemkore v. MasamalliI.L.R. (1902) Bom. 782. and he found himself in agreement with what was there laid down. The case in Sheo Partab Singh v. Tajammul Hussain I.L.R. (1926) A. 67., which is exactly in point here and which distinguished Bai Hemkore v. Masamalli I.L.R. (1902) 26 Bom. 782. was also dealt with by him. He states at page 1214 as follows:

That section was really intended for a limited class of people to amend the schedule to the Limitation Act and substitute for them a longer period than the period which the schedule really mentions.

8. This case clearly supports the view of the Allahabad High Court. The view expressed by the Bombay High Court in Shevdas Daulatram v. NarayanI.L.R.(1911) 36 Bom. 268. was dissented from in Madras in Murugesa Mudali y. Ramaswami Chettiar (1913) 26 M.L.J. 23, where it was held that the benefit of Section 4 of the Limitation Act could be in voked in computing the period prescribed by Section 31 of the Limitation Act. The; reasoning in the judgment in Hira Singh v. Musammat Amarti I.L.R. (1912) A. 375. was adopted but that in Shevdas Daulat ram v. Namyan2 was not followed. In Subbarayan v. Natarajan I.L.R. (1922) M. 785 : 43 M.L.J. 168. a decision of Spencer -and Ramesam, JJ., on Section 48, Civil Procedure Code, in the opinion of Spencer, J., the word 'prescribed' used in Section 15 of the Limitation Act means 'prescribed by the first schedule'to. the Act' though the words 'm the schedule' do not appear in the section as in Sections 3 and 6 of the Act. In Ummathu v. Pathumma I.L.R. (1921) M. 817: 41 M.L.J. 84., a case not really in point, Ramesam, J., appears to think that Bai Hemkore v. Masamalli I.L.R. (1902) Bom. 782. was cprrectly decided but here again that case is distinguishable from this for the reasons already given. In Mari Narasayya v. Peruri Krishnamurthi : AIR1928Mad1255 . reference is made to Murugesa Mudaliar v. Ramaswami Chettiar (1913) 26 M.L.J. 23., where Shevdas Daulatram v. Narayan I.L.R. (1911) 36 Bom. 268. was dissented from but Reilly, J., had not to consider Section 31 at all but the effect of Section 4 of the Act and he held that the period of limitation mentioned there must be understood not only as prescribed in the schedule but also as qualified by., .sections 5 and 22.

9. In our opinion, the correct view of the effect of Section 31 has been taken by the Allahabad High Court in Hira Singh v. Musam-mat Amarti I.L.R. (1912) A. 375. and Sheo Partab Singh v. Tajammul Hussain I.L.R. (1926) A. 67. by this Court in Murugesa Mudali v. Ramaswami Chettiar (1913) 26 M.L.J. 23.. and by the Calcutta High Court and therefore Section 31 of the Limitation Act does prescribe a period of limitation. Courts in dealing with questions of limitation should, as far as possi ble, place upon the Limitation Act a construction favourable to plaintiffs and adopting that principle here, this Letters Patent Appeal must fail and be dismissed with costs.


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