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K.R. Venkatarama Ayyar Vs. Sri Varaguna Pandia Chinnathambiar Avergal Zamindar of Sivagiri - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1947Mad457; (1947)1MLJ173
AppellantK.R. Venkatarama Ayyar
RespondentSri Varaguna Pandia Chinnathambiar Avergal Zamindar of Sivagiri
Cases ReferredWatkins v. Fox I.L.R.
Excerpt:
- - i say reluctantly because i may confess frankly that i do not expect institutions like the court of wards to raise pleas of limitation in bar of suits filed for recovery of fees due to advocates who appear for the estate or estates in their charge. for the same reason, article 115 has no application as there is nothing like compensation for the breach of any contract. article 84 is clearly applicable and the only question is, what is the date from which the three years period commences to run. for certain purposes no doubt the word 'suit' may include execution proceedings, as well as an appeal also. it is seen from the memo exhibit p-3. that he was stipulating for separate fees for separate proceedings in the suit like legal representative petition, commission enquiry at madras etc......date from which the three years period commences to run. it was urged for the appellant that as execution proceedings in the suit are still pending the suit cannot be said to have terminated. for certain purposes no doubt the word 'suit' may include execution proceedings, as well as an appeal also. but this meaning cannot be imported into article 84 where the word 'suit' seems to be used in its ordinary non-technical sense in which a layman would understand it. moreover, under section 2 of the act, 'suit' does not include an appeal or an application. hearn v. bapu saju naikin i.l.r. (1876) bom. 505, sadashiv ganpatrao v. vithaldas nanchand i.l.r. (1895) bom. 198 and gulam mohideen sahib v. md. oomer sahib (1930) 60 m.l.j. 133 were cited for the appellant but they seem to have no.....
Judgment:

Chandrasekhara Aiyar, J.

1. Mr. K.R. Venkatarama Ayyar, a leading advocate of Madura, was engaged by the Zamindar of Sivagiri to defend O.S. No. 3 of 1928, on the file of the Sub-Court, Tinnevelly, in which the Zamindar was the defendant. Ex. P.3 is a memo regarding settlement of fees at Rs. 2,800 and it is dated 18th November, 1935. This sum was made up in the following manner: Rs.500 was balance due up to that date, Rs. 800 was the balance due in respect of a fee of Rs. 1,500 settled for filing a legal representative petition and Rs. 1,500 was the amount then settled for conducting the case from that day till its final disposal, inclusive of the fees for commission enquiry, if any, which may be held at Madras. When the advocate claimed Rs. 3,222 as due to him, a reply was sent to him by the Dewan (Exhibit D-1) on 9th September, 1936, pointing out that that only Rs. 2,000 was due. The advocate wrote to the Dewan Exhibit D-2 on 13th September, 1936, that he had heard from the junior vakil that a compromise had been effected in the suit and that a compromise memo was going to be filed in Court and the fact that he was not consulted about it was of no concern to him, so long as the amount due to him was paid. So he asked for a telegraphic remittance of Rs. 2,100. Exhibit P-4 is a letter from the Dewan dated 30th March, 1937, intimating to the advocate that the Zamindar promised to pay up the arrears in the last week of April.

2. When the estate went under the management of the Court of Wards, the advocate preferred a claim before the Collector of Tinnevelly on 25th June, 1941, for Rs. 2,100+Rs. 222+Rs. 272 + Rs. 254 and interest. The Collector referred to the Subordinate Judge, Tinnevelly the question whether the claim for Rs. 2,000-was in time and not barred by limitation. In making the reference he expressed the opinion that the claim was barred. The Subordinate Judge upheld the Collector's view. On appeal by the advocate, the Subordinate Judge's decision was confirmed. This second appeal has been preferred by the advocate and the only question is whether the claim for Rs. 2,000 fees due to the advocate is within time.

3. Reluctantly do I feel compelled to uphold the view taken by the lower Courts; I say reluctantly because I may confess frankly that I do not expect institutions like the Court of Wards to raise pleas of limitation in bar of suits filed for recovery of fees due to advocates who appear for the estate or estates in their charge. This-however has nothing to do with the decision of the question of law involved in the case. Article 113 has nothing to do with the question. A suit for the recovery of money due for work done cannot be regarded as a suit for specific performance of a contract. For the same reason, Article 115 has no application as there is nothing like compensation for the breach of any contract. Before we go to Article 120 we must see whether there is not any other Article which will apply. Article 84 is clearly applicable and the only question is, what is the date from which the three years period commences to run. It was urged for the appellant that as execution proceedings in the suit are still pending the suit cannot be said to have terminated. For certain purposes no doubt the word 'suit' may include execution proceedings, as well as an appeal also. But this meaning cannot be imported into Article 84 where the word 'suit' seems to be used in its ordinary non-technical sense in which a layman would understand it. Moreover, under Section 2 of the Act, 'suit' does not include an appeal or an application. Hearn v. Bapu Saju Naikin I.L.R. (1876) Bom. 505, Sadashiv Ganpatrao v. Vithaldas Nanchand I.L.R. (1895) Bom. 198 and Gulam Mohideen Sahib v. Md. Oomer Sahib (1930) 60 M.L.J. 133 were cited for the appellant but they seem to have no bearing. In the first case, it was held that the suit did not terminate by a compromise which was entered into between the parties without the knowledge of the solicitor and which was not made through, or certified to the Court which passed the decree. There was no discontinuance by the attorneys of the business which they were conducting for the defendant, nor had that business terminated. In the second case, there was no question of limitation at all involved the point for consideration was whether a vakalatnama continued in force till all proceedings in the suit were ended so far as regards the client and it was held that it was in force. The third case merely lays down that the business for which the attorney was engaged did not terminate in 1924 as was contended in support of a plea that the claim was barred under Article 84. On the other hand, the decision is against the appellant as it was pointed out that Article 84 is restricted to suits. 'What Venl atasubba Rao, J., held was that even assuming that applications are governed by way of analogy, there was no bar.

4. On the other hand, Balakrishna Pandurang v. Govind Shivaji I.L.R. (1883) Bom. 518, is directly in point and is against the appellant. It was there contended for the plaintiff that the termination of a suit means not the result or the decision but the final and entire satisfaction by execution or otherwise of the decree given. This contention was negatived by West, J., who quotes in support of his view the observation of Blackburn J., in Harris v. Quine (1869) L.R. 4 Q.B. 653.

The termination of a suit is when judgment is given in the Court in which the action is commenced.

To the same effect is the decision reported in Watkins v. Fox I.L.R. (1895) Cal. 943, which contains a footnote referring to another decision by Trevelyan, J., who deals with a similar plea as is now put forward on behalf of the appellant in the following words:

It was contended that, for the purpose of the Limitation Act, the suit had not terminated as the attorney might have to appear in the execution proceedings. This contention, if correct, would postpone the attorney's remedy for twelve years.

In my opinion a suit can ordinarily be said to have terminated, when there is nothing more to-be done in it, except execution.

On the facts, there is little scope for holding that the engagement of the advocate was to cover the execution proceedings also. It is seen from the memo Exhibit P-3. that he was stipulating for separate fees for separate proceedings in the suit like legal representative petition, commission enquiry at Madras etc., and his own letter Ex. D-2 gives the clearest indication that he deemed his engagement at an end as soon as the compromise had been put through without reference to him. The advocate himself did not put forward any such comprehensive interpretation on his engagement. There is another difficulty also in his way. If execution proceedings were also in the contemplation of the parties, then the claim for the fee. is obviously premature.

5. The second appeal is dismissed with costs.

6. No leave.


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