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Savada Gounder Vs. Veerappa Gounder - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1610 of 1956
Judge
Reported inAIR1959Mad278
ActsLimitation Act, 1908 - Sections 19 and 20; Debt Laws; Madras Indebted Agriculturists (Temporary Relief) Act, 1954 - Sections 3 and 5; ;Madras Indebted Agriculturists (Repayment of Debts) Act, 1955 - Sections 3 and 8
AppellantSavada Gounder
RespondentVeerappa Gounder
Appellant AdvocateV.C. Srikumaran, Adv.
Respondent AdvocateT.S. Kuppuswami Iyer and ;K.S. Naidu, Advs.
DispositionRevision petition dismissed
Cases ReferredFirm Kamta Prasad v. Gulzari Lal
Excerpt:
.....1951--endorsement of payment on pro-note on 23rd june 1955--suit filed on 14th june 1956--suit in time--acknowledgment valid; in a suit, filed on 14th june 1956, on a promissory note, dated 22nd april 1951, the plaintiff relied upon an endorsement of payment made on 23rd june 1955, three years after the date of promissory note, but within the period during which a suit could not be filed by reason of the madras indebted agriculturists (temporary relief) (act v of 1954) and madras indebted agriculturists (repayment of debts) act (i of 1955). on the question whether the endorsement could be construed as a valid acknowledgment and whether the suit would be within time,; held, it was a valid acknowledgment within the meaning of section 19 of the indian limitation act (ix of 1908), and the..........under the madras indebted agriculturists (temporary relief) act, v of 1954, s. 3 imposes a bar on suits or applications. it stated that no suits for the recovery of a debt shall be instituted against any agriculturist before the expiry of a year from the date of the commencement of that act. that provision was extended further by act i of 1955. section 5 of the act runs thus :"in computing the period of limitation or limit of time prescribed for a suit for the recovery of a debt or an application for the execution of a decree passed in such" suit, the time during which the institution of the suit or the making of the application was barred by section 3 of the ordinance or section 3 of this act, or during which the plaintiff or his predecessor-in-title, believing in good faith that.....
Judgment:
1. This is a revision against the decree in S. C. S. No. 141 of 1956, on the file of the Sub-Court, Dindigul. The defendant is the petitioner. The suit was laid on the basis of a promissory note dated 22-4-1951. On 23-6-1955, there was an endorsement of payment on the back of the promissory note. The suit was filed on 14-6-1956. The defendant did not appear in the lower Court and was set ex parte; a decree was passed against him as prayed for. The defendant has come up in revision.

2. Mr. V. C. Srikumar, learned Counsel for the petitioner, contends that, as the acknowledgment and the endorsement of payment was made three years after the date of the promissory note, it could not avail the creditor for the purpose of saving limitation. The contention on behalf of the respondent is that, by reason of Ordinance 5 of 1953. followed by Acts 5 of 1954 and 1 of 1955 there was a period of one year, six months and twenty-six days, during which a suit could not be filed. The prohibition lasted till 1-7-1955.

The Ordinance and the Act had come into force before the date on which the endorsement of payment was made. If the endorsement on the back of the promissory note is construed as a valid acknowledgment, there is no doubt that the suit will be within time. The contention of Mr. Srikumar is that it cannot be so held notwithstanding the fact that the endorsement was made at a time when that moratorium was in existence.

In support of this contention, learned Counsel refers to the decision in Chidambaram Chettiar v. Venkatasubba Naicker, 1937-1 Mad LJ 262; (AIR 1937 Mad 367), where it was held that the period prescribed by Section 19 of the Limitation Act could not include the extension that is given by Section 4 for filing a suit. In that case, the three year period of limitation for a promissory note expired during the time when the court was closed, and an acknowledgment of the debt was made after that date, but before the reopening of the court.

That was held not to serve as a Fresh starling point of limitation. On the other hand, Mr. T. S. Kuppuswami Aiyar for the respondent refers me to the decision reported in Sambayya v. Pedda Subbayya, 1937-2 Mad LJ 703 : (AIR 1938 Mad 19). In that case, there was a statutory exclusion of time by reason of an insolvency which was later on annulled. The plaintiff sought to escape the bar of limitation by alleging that he was entitled to exclude the whole period, 'during the proceedings in insolvency were pending coupled with an acknowledgment which was given during the pendency of the insolvency proceedings.

It was held that the period prescribed in Section 19 of the Limitation Act was not limited to the period of the First Schedule! of the Act, and that, in computing the period prescribed, the period which a party is entitled to exclude under any law for the time being in force should be taken into account. Under the Madras Indebted Agriculturists (Temporary Relief) Act, V of 1954, S. 3 imposes a bar on suits or applications. It stated that no suits for the recovery of a debt shall be instituted against any agriculturist before the expiry of a year from the date of the commencement of that Act. That provision was extended further by Act I of 1955. Section 5 of the Act runs thus :

"In computing the period of limitation or limit of time prescribed for a suit for the recovery of a debt or an application for the execution of a decree passed in such" suit, the time during which the institution of the suit or the making of the application was barred by Section 3 of the Ordinance or Section 3 of this Act, or during which the plaintiff or his predecessor-in-title, believing in good faith that Section 3 of the Ordinance or Section 3 of this Act applied to such suit or such application, refrained from instituting the suit or mating the application, shall be excluded."

The above provision excludes the period of time during which the previous Ordinance and Act V of 1954 was in force. Section 3 of Act I of 1955 prohibited the filing of a suit before the expiry of four months from the commencement of this Act. Section 8 of that enactment stated that, in computing the period of limitation for a suit for recovery of a debt or an application for the execution of a decree in respect of a debt, the time during which the institution of the suit or the making of the application was barred under S. 3 shall be excluded.

The result of the operation of Section 3 of Act 5 of 1954 and Section 3 of Act I of 1955 read along with Section 5 of the former Act and Section 8 of the latter Act is that a period of one year, six months and twenty-six days should be excluded from the computation of limitation. If the principle of the decision reported in 1937-2 Mad LJ 703 : (AIR 1938 Mad 19) is applied, the acknowledgment in the instant case would save limitation.

A similar case to the present one is the one reported in Firm Kamta Prasad v. Gulzari Lal, (S) (FB), where it was held that, if a Provincial Act has been validly passed and it makes it obligatory on the courts to exclude a period when computing the period of limitation, the courts have to exclude that period, and, if, after excluding that period, a suit or an application could be filed by a certain date, any acknowledgment or payment made in accordance with the provisions of Sections 19 and 20, after the original period of limitation has expired, but within the extended period, should be deemed to be an acknowledgment or payment made within the period prescribed for the filing of the suit or an application.

This decision certainly supports the contention on behalf of the respondent. The object of the legislature is that the acknowledgment should have been made before the claim was barred by limitation and under the Madras Acts 5 of 1954 and I of 1955, the claim bad not become barred by limitation by reason of the extension of time allowed by the enactments by excluding certain period. Any acknowledgment within the period of the extended time would be a valid acknowledgment within the meaning of Section 19 of the Limitation Act. In that view, the decision of the lower Court is correct. This civil revision petition fails and is dismissed with costs.


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