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Sendamarai Animalv Vs. Vijaya Rajagopal Chettiar - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 3385 of 1983
Judge
Reported inAIR1984Mad122; (1984)1MLJ324
ActsLimitation Act, 1963 - Sections 3, 4 to 24, 26(2) and 29(2) - Schedule - Article 62
AppellantSendamarai Animalv
RespondentVijaya Rajagopal Chettiar
Appellant AdvocateRadha Srinivasan, Adv.
Respondent AdvocateS.V. Jayaraman, Adv.
Cases ReferredChocalinga Mudaliar v. Alanivanna
Excerpt:
.....be looked at from another angle as well. ' this decision of the supreme court clearly supports the view that even as regards the union territory of pondicherry, the law of limitation embedded in the french code civil would be a local law within the meaning of s. thirunavukkarasu (1976)2mlj221 ,does .not therefore hold good......court below as a preliminary issue. the court below took the view that as the provisions of french code civil would continue to apply, a longer period of limitation than that prescribed under the provisions of the limitation act, 1963, would be available in pondicherry territory and that even if the claim under the mortgage had become barred in 1981 under art. 62 of the limitation act 1963, since the mortgage deed contained a personal covenant to pay the mortgage money, art. 113 of the limitation act 1963, would apply and the suit instituted on 28-6-1982, would still be in time. accordingly, the preliminary issue relating to limitation was answered in favour of the respondent. it is the correctness of this order that is challenged in this civil revision petition.2. the principal question.....
Judgment:
ORDER

1. The defendant in 0. S. No. 207 of 1982 on the file of the Court of the First Additional Subordinate Judge, Pondicherry, is the petitioner in this civil revision petition which is directed against the finding recorded by the Court below on the preliminary issue regarding limitation. That suit was laid by the respondent herein for the recovery of a sum of Rs. 12,860 with subsequent interest on the basis of a simple mortgage for Rs. 5000 executed by the petitioner on 21-5-1969 agreeing to repay the principal amount with interest at 12 per cent per annum.. The suit was instituted on 28-6-1982. In the written statement filed by the petitioner, she raised a plea that the suit is barred by limitation and prayed for the dismissal of the suit.. On that plea so raised by the petitioner. an issue was framed regarding the bar of limitation and that issue was tried by the Court below as a preliminary issue. The Court below took the view that as the provisions of French Code Civil would continue to apply, a longer period of limitation than that prescribed under the provisions of the Limitation Act, 1963, would be available in Pondicherry territory and that even if the claim under the mortgage had become barred in 1981 under Art. 62 of the Limitation Act 1963, since the mortgage deed contained a personal covenant to pay the mortgage money, Art. 113 of the Limitation Act 1963, would apply and the suit instituted on 28-6-1982, would still be in time. Accordingly, the preliminary issue relating to limitation was answered in favour of the respondent. It is the correctness of this order that is challenged in this civil revision petition.

2. The principal question that arises for consideration is whether the, suit instituted by the respondent on 28-6-1982 for the recovery of the amount due under the mortgage dated 21-5-1969 executed by the petitioner is in time. On the footing that the provisions of the Limitation Act 1963, would apply, the relevant Article applicable would be Art. 62, which runs as under:

'62 To enforce payment of money secured by a mortgage or otherwise charged upon immovable

The language employed in the last column 'when the money sued for becomes due' would depend upon the terms of instrument in each case and obviously refers to the point of time flowing from the contract between the parties as the date fixed for in the mortgage as the date by which the amount should be repaid. In paragraph III of the plaint, while giving details of the terms of the simple mortgage sued upon, the respondent has stated that the petitioner borrowed the sum of Rs. 5000 from him by executing a simple mortgage over certain properties agreeing to repay the Principal with interest at 12 percent per annum within a period of three years. Therefore, as per the terms of the deed of mortgage between the parties, the date fixed for repayment was 21-5-1 1972 and it was on that date that the money sued for became due and the suit having been instituted on 211-1-1982 within 12 years from the date when the money became due, the suit would be in time, even if Art. 62 of the Limitation Act 1963 is applicable.

3. The matter may be looked at from another angle as well. After the de juremerger of the erstwhile French Indian Territory took place on 16-8-1962, under S. 4 of the Pondicherry (Administration) Act 1962, which came into force on 6-12 1962, all the laws formerly in force in that territory were continued. In other words, the Local law of limitation, which was in force in Pondicherry territory, continued to remain as such. Under S. 3(1) of the Limitation Act, subject to the provisions contained in Ss. 4 to 24 (inclusive), every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. S. 32 of the Limitation Act 1963 repealed the Limitation Act 1908 and not any other law. In S. 29(2) of the Limitation Act 1963. provision has been made to the effect that where any special or local law prescribes for any suit, appeal or application, a period of limitation different from the period prescribed by the Schedule, the provisions of S. 3 shall apply, as if suit period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in S. 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which they are not expressly excluded by such ape of 4 cial or local law. By S. 0. 3118 the Ministry of Law, Legislative department, dated 29-10-1963, the First. of January 1964 was appointed as the date on which the Limitation Act 1963, shall come into force. Even with reference to the Union Territory of Pondicherry which had by the Fourth Amendment to the Constitution, which came into force on 28-121962, had become part of India, the provisions of the Limitation Act 1963, applied even to such a territory, as under cl. (2) of S. 1 of the Limitation Act it was provided that it extended to the whole of India, excepting the State, of Jammu -and Kashmir. The cumulative effect of S. 3 and S. 29(2) of the Limitation Act 1963 is that where any special or local law prescribed for a proceeding a period of limitation different,. from the provision made in that regard !in the Schedule, then S. 3 shall be applicable, as if such period were the period prescribed by the Schedule and for ascertaining the period of limitation prescribed for any proceeding by any special or local law, Ss. 4 to 24 shall be applied to the extent to which there is no express exclusion of their applicability by such special or local law. Vie wed in this light, it is clear that S. 29(2) read with S. 3 of the Limitation Act, 1963 would operate to preserve the period of limitation earlier available under the local law, viz., French Code Civil. It was not disputed that the period of limitation under the local law was 30 years and if that be so, the suit instituted on 28-6-1982 was in time. That S. 29(2) read with Sec. 3 of the Limitation Act 1963 would have the effect of preserving the period of limitation made available earlier under the French Code Civil had been the subject matter of a few decisions. Goodman and Co. v. R. S. Thirunavukkarasu, : (1976)2MLJ221 - had occasion to consider this question. there, the suit was laid for 4.tle recovery of possession of a radio set or a sum of Rs.'.450 being the value thereof. The cause of action for the suit arose in July 1965, but the suit was instituted on 23-2-1971. Relying upon Arts. 14 and 68 of the Limitation Act 1963, the trial Court dismissed the suit as barred by time. On appeal, Maharajan J. while considering the question of limitation, pointed out that the French Code Civil is a local law or special law within the meaning of S. 29 of the Limitation Act 1963 and that the saving provisions in the Limitation Act 1963 made it clear that all French enactments relating to limitations, which,, were in force in the Union Territory of Pondicherry, at the time the Limitation Act 1063. came into force, continued to be in force with this difference, viz., that the periods of limitation prescribed in the local law must continue to apply as if such periods were the periods prescribed by the schedule to the Limitation Act 1963, and for purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Ss. 4 to 24 (inclusive) shall apply on condition that those provisions are not expressly excluded by such special or local , law as has been-in force in the Union Territory of Pendicherry. Balasubrahmanyan J.in Chockalinga Mudaliar: v. Manivanna Pillai 1978 2 MTZ 544 considered the identical question. The suit in that. ease was based on a sale bill dated 24-1-1967 and the suit was filed on 23-6-1971 relying upon an endorsement of part payment dated 25-6-1968. The endorsement was denied by the defendant who also pleaded that. the claim was barred by time. That plea was upheld and the suit was dismissed. Ca appeal, an objection was raised that the question of limitation should be considered under the French Code Civil and not under the .Limitation Act 1963. This was rejected by the learned District Judge who was of the view that the French Code civil stood repealed by the Limitation Act, 1963, and it could not be invoked in respect of suits filed subsequent to 1-11964. In considering the correctness of .this, the learned Judge was of the view .that the Articles of Limitation laid down 'in the French Civil Code would answer the description of 'local law' in S. 29(2) of the Limitation Act, 1963 and it was held that by- reason of S. 4 (1) of the Pondicherry (Administration) Act 1962 read with S. 3 and S. 29(2) of the Limitation Act, 1963, the limitation law embedded in the French Civil Code in Pondicherry would be preserved. In doing %o, the learned Judge besides referring to Goodman and Co. v. Thirunavukkarasu, : (1976)2MLJ221 , relied upon two other decisions in J. A. Da P. Barreto v. A. V. de Fonseca, AIR 1969 Goa 124, and Christina D'Souza v. Zurana Pereira, AIR 1970 Goa 28. Against the decision in J. A. De P. Barreto v. A. V. De Fomseca, AIR 1969 Goa 124, an appeal was preferred to the Supreme Court and the decision of the Supreme Court is reported in Justiniano Augusto de Piedade Barreto v. Antonio Vicente Da Fonseeg : [1979]3SCR494 . In dealing with the applicability of the provisions of the Limitation Act 1963 with reference to the territory of Goa, Daman and Diu incorporated as a Union Territory by the Constitution (Twelfth Amendment) Act 1962, with effect from 20th Dec. 1961, the Supreme Court pointed out that there is only one general law of limitation for the entire country and it is i he Limitation Act 1963, and all other, laws would be either special or local laws and that the body of provisions in thi Portuguese Civil Code dealing with the subject of limitation of suits etc, In the Union Territory of Goa, Daman and Diu is only a local law. In son holding, the Supreme Court observed, as follows (at p. 999) -

'Now there is only one general law of limitation for the entire country and it is the Limitation Act 1963. All other laws prescribing periods of limitation are either special or local laws. They . are special laws if they prescribe periods of limitation for specified cases. They are local laws if their applicability is confined to specified areas. If. S. 32 and S. 29(2) of the Limitation Act 1963, are read together, it becomes clear that the only law of limitation that is repealed is the Limitation Act 1908 and all other aws dealing with limitation, special or local are saved and are to be read into the Limitation Act, 1963.

We, therefore. arrive at the conclusion that the body of provisions in the Portuguese Civil Code dealing with the subject of limitation of suits etc., and in force in the Union Territory of Goa, Daman and Diu only is 'local law within the meaning of S. 29(2) of the Limitation Act 1963. As stated earlier these provisions have to be read into the Limitation Act 1963, as if the Schedule to the Limitation Act is amended mutatis mutandis. No question of repugnancy arises. We agree with the Judicial Commissioner that the provisions of the Portuguese Civil Code relating to Limitation continue to be in force in the Union Territory of Goa, Daman and Diu.'

This decision of the Supreme Court clearly supports the view that even as regards the Union Territory of Pondicherry, the law of limitation embedded in the French Code Civil would be a local law within the meaning of S. 29(2) and the provisions thereof have to be read into the Schedule to- the Limitat,on Act mutatis mutandis. Sourasamv Imacule Josephine v. Maria Joseph Rock : (1980)1MLJ255 , also had occasion to deal with this question. The~ point that arose was whether. with reference to the cause of action stated to have arise in 1966, after the coming into force of the Limitation Act 1963, Art. 57 of the Limitation Act 1963 could be applied in bar of the suit, and Art. 2262 of the French Code Civil providing for a period of 30 years, could not be relied on to save the suit. Though the trial court disposed of the issue relating to limitation ' by saying that no material was forthcoming, the appellate Court took the view that after the Action the adoption deed on 2-1- 1962, the Limitation Act 1963 had come into force in Pondicherry with effect from 1-1-1964 and as per Art. 57 of the Limitation Act only 3 years time was available to file a suit and the suit not having been so filed, was barred by limitation. In upholding the view taken by the appellate Court, it was pointed out that the cause of action for the suit arose only in 1966 and the Limitation Act 1963 would apply and not the French Code Civil and that different considerations may arise if the cause of action had arisen before the Limitation Act 1963 had come into force. R is unfortunate that the decisions in Chockalinga Mudaliar v. Manivanna Pillai, 1978 2 MLJ 544 and Justiniano Augusto De Piedade Barreto v. Antonia Vicente Da Fonseca,- : [1979]3SCR494 , which had been rendered earlier had not been brought to the notice of the Court. The claim to the, applicability of Art. 2262 Of the French Code Civil was negatived on the ground that the cause of action arose only in 1966 when the Limitation Act, 1963 governed the right to institute the Suit and not French Code Civil. With respect, this does not appear to be the right approach to the question of the applicabilitv of the provisions of the Limitation Act 1963, with reference to the areas where local laws of limitation had been in force which have been saved under S. 29(2) of the Limitation Act 1963. It is pointed out that different considerations may arise if the cause of action had arisen before the Limitation Act 1963 had come into force and to such a situation, the decision in Goodman and Co. v. Thirunax ukkansu : (1976)2MLJ221 may apply so that the period of limitation prescribed in the local taw will continue to apply as if that was the period prescribed by- the Schedule to the Limitation Act 1963. Even in the case referred to above, the cause of action arose in July -1965 long after the coming into force of the provisions of the Limitation Act to the whole of India with effect from 1-1-1964. Similar w= the position in Chockalinga Mudallar v. Manivanna. PHIA 1978-2 Mad W 344. The distinction pointed out with reference to the applicability of the in Goodman and Co., v. Thirunavukkarasu : (1976)2MLJ221 , does . not therefore hold good. in view therefore of the decisions in Goodman and Co. v. Thirunavukkarasu, 1976 2 MLJ 22 Chocalinga Mudaliar v. Alanivanna pillai 1978 2 MLJ 544 and Justiniano Augusto De Piedade Barret Y. Antonia Vicente Da Fonseca, : [1979]3SCR494 , the conclusion is irresistible that S. 29(2) of the Limitation Act, 1963 would operate to preserve the law of limitation embodied in the French Code Civil even after the passing of the Limitation Act, 1963, and that would mean that a period of 30 years would be available to the respondent to institute the suit for the recovery of the a un due under the mortgage dated 21-5-1969 executed by the petitioner. It is necessary to point out that the court below was to error in proceeding to apply the residuary Art. 113 of the Limitation Act 1963. The residuary Article can be applied only in the event of the inapplicability of any other Article and the circumstance that the mortgage deed contains personal covenant to pay cannot enable the court to invoke Art. 113 of the Limitation Act even at this stage. In any event, the question relating to the applicability of Art. 113 of the Limitation Act is really not very material in the view expressed earlier with reference to the preservation of Law of Limitation embodied in the French Code Civil and the earlier period of limitation being still available to the respondent to institute the suit. Therefore, looked at from any point of view, the court below was quite court in the view it took that the suit is in time. Consequently, the civil revision Petition fails and is dismissed. There will be no order as to costs.

4. Before parting with this case the Court places on record the valuable assistance rendered by Thiru S. V. Jayaroman who appeared as amicus curiae and placed all the relevant materials.

5. Petition dismissed.


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