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In Re: Thokkudubivyanu Immaniyelu and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1948Mad521; (1948)1MLJ49
AppellantIn Re: Thokkudubivyanu Immaniyelu and ors.
Cases ReferredLtd. v. Sharafally
Excerpt:
- .....after its recess. this is clear from section 4 of the limitation act which 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 reopens.3. the proposition now before us has been settled by decisions of this court. in nachiyappa mudali v. ayyasami aiyar i.l.r.(1882) mad. 189 it was notified that a district and sessions court would be closed from monday the 23rd may to saturday the 23rd july, both days inclusive, but the notification proceeded, that the court would be open at specified hours on tuesdays and fridays during the recess for the reception of plaints, petitions and other miscellaneous papers. there the.....
Judgment:

Frederick William Gentle, C.J.

1. The sole question for consideration is whether a petition for review of the judgment in Appeal Suit Nos. 26 and 78 of 1945 was presented in time or beyond the period prescribed by the Limitation Act. The judgment was delivered on the 25th January, 1947 and the limitation period during which the petition for review of it could be presented expired on or about the 22nd June, 1947. That date occurred during the period when this Court was in recess. The notification regarding the summer vacation in 1947 of this Court prescribed that the Court would be closed from the 28th April until the 4th July, 1947, both dates inclusive. The first day on which the Court was not closed, but was open, was Saturday the 5th July, when it is not in dispute, the office was open and plaints, appeals, petitions and other proceedings were presented and could have been presented. That was the first day on which the Court was open after the expiration by effluxion of time of the limitation period during which the petition for review in the present instance expired. The petition was not presented on the 5th July but on Monday, the 7th July. The question is, has it been presented within time or is the petition now barred by the provisions of the Limitation Act?

2. On behalf of the applicant-petitioner, it was contended that, although the office of this Court was open on the 5th July, there were no actual sittings, no judicial work was carried out and no Judges sat to adjudicate. Consequently, it was contended, that the Court was not open on the 5th July, and the first day on which it was open was the 7th July, when the Judges first sat to discharge judicial duties. It is manifest that the petition should have been presented on the first day when the Court was reopened after its recess. This is clear from Section 4 of the Limitation Act which 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 reopens.

3. The proposition now before us has been settled by decisions of this Court. In Nachiyappa Mudali v. Ayyasami Aiyar I.L.R.(1882) Mad. 189 it was notified that a District and Sessions Court would be closed from Monday the 23rd May to Saturday the 23rd July, both days inclusive, but the notification proceeded, that the Court would be open at specified hours on Tuesdays and Fridays during the recess for the reception of plaints, petitions and other miscellaneous papers. There the period of limitation in respect of an appeal expired on the 1st July, when the Court was closed, and the appeal was presented on the 22nd July whilst the Court was still closed. Between the date of the expiration of the limitation period and the presentation of the appeal, the Court had been open on several days for the reception of plaints, petitions and other miscellaneous papers. It was held, by four of the five Judges, that the appeal was barred, that it should have been presented on the first day after the expiration of the limitation period when the Court was open for reception of appeals and other papers. That decision was followed in the British India Steam Navigation Co., Ltd. v. Sharafally (1922) 44 M.L.J. 100 : I.L.R. Mad. 938 a decision of a Division Bench. It is manifest from the two decisions immediately referred to that on the days during the Court's recess, when the office was open for the reception of institutions, no Judge sat in the Court. Nevertheless the decision was to the effect as already stated.

4. In the present instance, there is no question of the Court being open oh a day during which the Court was in recess. But the question is whether, when the Court reopened on the 5th July, it was the date when the petition in this instance should have been presented. It seems to me an a fortiori case in the light of the above two decisions that the petition should have been presented on the day the Court reopened. I say it is an a fortiori case inasmuch as, in the two decisions quoted, a petition which was presented during the Court's recess but on a day later than that when it should have been presented to the office when open for that purpose during the recess was held to be barred by limitation. During the argument, reference was made by learned Counsel for the petitioner to two decisions reported in Short Notes of (1935) 69 M.L.J. 22 (C.M.P. No. 4070 of 1934, Stodart, J.) and Short Notes of (1936) 43 L.W. 58 (S.R. No. 633 of 1936, King, J.). Each decision was a single Judge. I do not think it necessary to say anything further than that I am unable to agree with those decisions which are in conflict with the earlier ones, to which reference has been previously made, and they cannot be taken as pro-nouncements which should be followed regarding the date when an appeal, petition or other proceeding can be instituted, during or at the conclusion of a recess of any Court.

5. In my opinion for the reasons given, the petition in this case was presented too late and is affected by the bar of limitation. The papers will be rejected and returned.

Satyanarayana Rao, J.

6. I agree.


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