Skip to content


Srinivasa Ayyangar and Two ors. Vs. the Secretary of State Foe India Represented by the Collector of Tanjore and Two ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Judge
Reported in(1915)ILR38Mad92
AppellantSrinivasa Ayyangar and Two ors.
RespondentThe Secretary of State Foe India Represented by the Collector of Tanjore and Two ors.
Cases ReferredMussumat Phoolbas Koonwur v. Lalla Jogeshur Sahoy
Excerpt:
limitation - limitation act (ix of 1908), section 15(2), applicability of--suits under special acts--madras revenue recovery act (ii of 1864), section 59, suits, under. - - they claim the benefit of section 15, clause (2). if this claim be well-founded, the suit would be within time. 'the starting point of limitation and the period of limitation are clearly distinguished as distinct factors in the various statutes of limitation act xiv of 1859, act ix of 1871, act xv of 1877 and act ix of 1908. section 3 of act xiv of 1859 provided a limitation of one year to set aside sales for arrears of government revenue from the date of the confirmation of the sale......clause 3 of section 16 of act xiv of 1859 we must conclude that the legislature intended that the period prescribed in section 59 of act ii of 1864 should be subject to the general provisions of the limitation act for the time being in force which might have the effect of postponing the starting point of limitation or of excluding any time in the computation of the period of limitation. the question of the construction to be placed on section 59 cannot be affected by section 29 of the limitation act ix of 1908. what effect section 29 would have upon provisions in special acts which could not be construed as subjecting any special period of limitation prescribed therein to any provisions of the limitation act, it is unnecessary to consider in this case. we feel strengthened in this.....
Judgment:

1. This is a suit to set aside a sale held for arrears of revenue on the ground of fraud. The suit has been dismissed by the lower Courts on the ground that it is barred by limitation. Section 59 of Madras Act II of 1864 provides a period of six months for such a suit from the date on which the cause of action arose. There are several ways in which the plaintiffs attempt to get rid of the bar. We consider it sufficient to deal with one of their contentions 'as we have come to the conclusion that it must succeed and that the suit must be held to be not barred. Section 15, Clause (2) of the Limitation Act enacts that' in computing the period of limitation prescribed for any suit...of which notice has been given in accordance with the requirements of any enactment for the time being in force, the period of such notice shall be excluded.' This clause did not exist in the previous statute, Act XV of 1877. The six months provided by Section 59 of Act II of 1864 elapsed on the 31st December 1908. The Court was closed on that day for the Christmas holidays and reopened only on the 4th January 1909. On the 1st January 1909 the present Limitation Act came into force; that is before the suit was barred. The plaintiffs are therefore entitled to have the question of limitation decided in accordance with the provisions of the present statute. They claim the benefit of Section 15, Clause (2). If this claim be well-founded, the suit would be within time. The question argued is whether the provision in question is applicable to suits governed by Section 59 of Act II of 1864, it being conceded that the period of limitation for the suit is that provided by Section 59 of that Act and not Article 12 of the Limitation Act, which has provided a period of one year for a suit to set aside a sale for arrears of Government revenue. The respondent's contention is that Section 15, Clause (2) and other general provisions enacted in Sections 4 to 25 of the Limitation Act are not applicable to suits for which a special period of limitation has been provided by a local or special act, and reliance is placed on Section 29 which lays down that nothing in the Limitation Act 'shall affect or alter any period of limitation specially prescribed for any suit, appeal or application by any special or local law now or hereafter in force in British India' and on a Pull Bench decision of this Court in Abu Backer Sahib v. Secretary of State for India (1911) 34 Mad. 505. The appellant on the other hand contends that case which decided that Section 12 of Act XV of 1877, allowing a deduction of the time requisite for obtaining a copy of the judgment and decree of the lower Court in computing the period of limitation for an appeal in a case decided under the Indian [Madras?] Forest Act V of 1882, should not govern this case and that it is in conflict with another Full Bench decision of this Court in Venkata v. Chengadu (1889) 12 Mad. 168 and the decision of a Division Bench in Seshama v. Sankara (1889) 12 Mad. 1 which were not overruled by or noticed in that judgment. In Abu Backer Sahib v. Secretary of State for India (1911) 34 Mad. 505, the question whether Section 12 of the Limitation Act was applicable, arose with respect to an appeal presented against the decree of the District Court on an appeal against an order of the Forest Officer under the Forest Act of 1882. The Full Bench composed of three learned judges held that it was not. The learned Chief Justice based his judgment on three grounds: (1) that the provisions of the Forest Act showing that the power to extend the period of limitation in cases coming within that Act was vested in the Governor-in-Council must be taken to indicate that the general provisions of the Limitation Act having the effect in certain cases of extending the period of limitation should not be applicable; (2) that the application of those general provisions would have the effect of affecting the period of limitation prescribed by the Forest Act within the meaning of Section 6 of Act XV of 1877 (3) that Section 12 of the Limitation Act could not be applied to cases where the law did not render it necessary for an appellant to produce a copy of the decree and judgment of the lower Court for the valid presentation of an appeal. Wallis and Miller, JJ., the other members of the Court proceeded purely on the language of Section 6 of Act XV of 1877 which in their opinion was plain and unambiguous and held that the application of the general sections of the Act would have the effect of affecting the period of limitation prescribed by special or local Acts and was therefore disallowed by Section 6. Those learned judges did not refer to the earlier decisions of this Court in Venkata v. Chengadu (1889) 12 Mad. 168 and Veeramma v. Abbiah (1895) 18 Mad. 99. According to those decisions the question whether the general provisions of the Limitation Act should be applied to cases where a special period of limitation is prescribed by a special or local Act, would depend on whether the provisions of such Act should be regarded as enacting a complete body of provisions with regard to the limitations of suits coming within the purview of the Act. In other words, the question would be whether the special or local Act should be construed as excluding the applicability of the general provisions of the Limitation Act. Each case would have to be decided on the construction of the particular statute which provides a special period of limitation. The learned Chief Justice's judgment also makes no reference to Venkata v. Chengadu (1889) 12 Mad. 168. He refers to the observations of Shephard, J., in Veeramma v. Abbiah (1895) 18 Mad. 99 as supporting the view that Section 6 would make the provisions of the Limitation Act inapplicable to any suit coming within a local or special Act. Shephard, J., in that case based his judgment in part at least on the construction he placed on the provisions of the Registration Act, which in his opinion excluded the applicability of any of the sections of the Limitation Act, although he also expressed the opinion that the language of Section 6 of the Limitation Act rendered the general provisions of the Act inapplicable to cases coming under special or local Acts. In Haji Ismail Sait v. Trustees of the Harbour, Madras (1900) 23 Mad. 389, he accepted Veeramma v. Abbiah (1895) 18 Mad. 99 as authority for the proposition that Section 5 of the Limitation Act would be applicable to cases under the Forest Act-see page 397-although he was also prepared to apply to the principle of Section 5 on general grounds. In Venkata v. Chengadu (1889) 12 Mad. 168, four learned judges took part. Two of them, Muthuswami Aiyar and Kernan, JJ., held that Section 18 of the Limitation Act was applicable to a suit falling under Section 59 of Act II of 1864. It was, however, not necessary to decide the question as the application of the sections would not save the suit from limitation. Parker and Wilkinson, JJ., cannot in our opinion be taken to have expressed any opinion on the point, although Mr. Rangachariar contends that they intend to do so. In a later case Iswara Pattar v. Karuppan (1893) 3 M.L.J 255, Collins, C.J., and Davies, J., applied Section 18 to a suit under Section 59 of the Revenue Recovery Act. In Seshama v. Sankara (1889) 12 Mad. 1, Collins, C.J., and Muthuswami Aiyar, J., applied Section 14 of the Limitation Act to a suit under the Madras Boundary Act XXVIII of 1860. They observed: 'The true construction of Section 6 then is that save as to the period of limitation, the other provisions of the General Act of limitations are applicable to cases falling under special or local law.' We do not consider it necessary for the purpose of this case to consider whether Section 29 of the present statute corresponding to Section 6 of Act XV of 1877 may not render the general sections of the Limitation Act inapplicable to special and local Acts generally. We think that Abu Backer Sahib v. Secretary of State for India (1911) 34 Mad. 505 cannot be regarded as overruling the decisions in Venkata v. Chengadu (1889) 12 Mad. 168 and Iswara Pattar v. Karuppan (1893) 3 M.L.J. 255 which laid down the law with regard to suits coming under Section 59 of Act II of 1864. They were not considered or dissented from in that case. We are of opinion that on a construction of Act II of 1864 the conclusion can be arrived at that the period of six months was intended to be subject to the general provisions of the Limitation Act. Abu Backer Sahib v. Secretary of State for India (1911) 34 Mad. 505 would not preclude us from giving effect to that conclusion.

2. Act II of 1864 was enacted when the General Limitation Act in force was Act XIV of 1859. Section 16, Clause (3) of that Act provided that 'where by any law now or hereafter to be in force a shorter period of limitation than that prescribed by this Act is specially prescribed, such shorter period shall be applied notwithstanding this Act. 'The starting point of limitation and the period of limitation are clearly distinguished as distinct factors in the various statutes of Limitation Act XIV of 1859, Act IX of 1871, Act XV of 1877 and Act IX of 1908. Section 3 of Act XIV of 1859 provided a limitation of one year to set aside sales for arrears of Government revenue from the date of the confirmation of the sale. The period was liable to be shortened by any special statute. In Mussumat Phoolbas Koonwur v. Lalla Jogeshur Sahoy (1876) 3 I.A. 7 the Judicial Committee of the Privy Council held that Clause 11 of Section 16 of Act XIV of 1859 postponing the starting point of limitation in cases of disability on account of minority was applicable to suits provided for by Section 246 of the Civil Procedure Code, Act VIII of 1859. Referring to Acts VIII and XIV of 1859 their Lordships observed: 'The object of the first was to enact a general code of procedure for the Courts of Civil Judicature not established by Royal Charter. The object of the second was to establish a general Law of Limitation in supersession both of the regulations which had governed those Courts, and of the English Statutes which had regulated the practice of the Courts established by Royal Charter. Looking to the 5th sub-section of the 1st section '(providing a period of one year for suits to alter or set aside summary decisions and orders of Civil Courts)' and the 3rd and 11th sections '(providing a limitation of one year for suits to set aside sales under decrees or for arrears of Government revenue, and a limitation of twelve years to suits for the recovery of immoveable property) of Act XIV of 1.859, their Lordships have no doubt that the intention of the Legislature-was that the period of limitation resulting from the 246th section of Act VIII should in the case of a minor be modified by the operation of the 11th section of Act XIV: and that this construction has obtained in the Courts of India appears from Huro Soonduree Chowdhrain v. Anundnath Roy Chowdhry (1865) 3 W.R. 8.' The above passage shows that their Lordships based their decision on the construction of Section 246 of Act VIII of 1859, whether it excluded or not the provisions of the Limitation Act of 1859. Their Lordships distinguished an earlier decision of theirs in Mohummad Buhadoor Khan v. The Collector of Bareilly . There certain property belonging to A was taken possession of by B. Some years later B was convicted and executed as a rebel and all the property in his possession was confiscated including the property of A. The sons of A sued for the recovery of the lands of which they had been dispossessed by the rebel. The suit was brought more than a year after the younger plaintiff came of age and more than a year after the passing of Act IX of 1859 which allowed only one year to sue and did not save the rights of persons under disability. Their Lordships held that the claim was barred by limitation. They, observed: 'The words are perfectly plain,-no suit brought by any party in respect of forfeited property shall be entertained unless it be instituted within the period of a year from the date of seizure. It is true that this limitation is introduced by way of proviso. But their Lordships think that, looking at the various parts of Act; and gathering the purpose and intention of the Legislature from the whole, this was a substantive enactment; and that, although it appears under the form of a proviso, it was a limitation intended by the Legislature to apply to all suits brought by any persons in respect of forfeited property.' With respect to the argument that a saving with regard to parties under disability must be taken to be by equitable construction implied in this case and that the clause in Act XIV of 1859 relating to disabilities might be imported into the Act, their Lordships held that it could not be done. They observed: 'This Act is of a special kind and does not admit of those enactments being annexed to it.' This seems to show that their Lordships' judgment was based on the construction of the special Act in question. Referring to this decision their Lordships observed in Mussumat Phoolbas Koonwur v. Lalla Jogeshur Sahoy : 'It arose upon a very special statute, and upon that ground the judgment rests.' Then they refer to the passage cited above and point out: 'And they proceeded to observe that the application of the statute (if it did apply) would not assist the appellants who would not even in that case have brought their suit in proper time.' It is clear that their Lordships were disposed to regard the pronouncement in the earlier case as a dictum not necessary for the decision of the case. The learned Government Pleader argues that the decision in Mussumat Phoolbas Koonwur v. Lalla Jogeshur Sahoy proceeded on the ground that the two statutes, Acts VIII and XIV of 1859 were passed in the same year, a fact to which their Lordships no doubt refer; but we cannot agree that any stress was intended to be laid upon that circumstance. The basis of the decision, as we understand it, was that the provisions of the general Code of Procedure should be regarded as subject to those of the general Code of Limitation. We do not think any distinction can be drawn with respect to the applicability of the general provisions of the Code of Limitation between suits for which a special period of limitation is prescribed by the Civil Procedure Code and those for which a special period is prescribed by some other statute. Both the decisions of the Privy Council proceeded upon the construction placed upon the particular statute in question in each case. We must take it that the Legislature in Madras was not unaware of the provisions of Act XIV of 1859 when it enacted Section 59 of Act II of 1864. In our opinion it did not intend to do anything more than shorten the period of one year given by the Limitation Act to suits to set aside sales for arrears of revenue, and having regard to the language of Clause 3 of Section 16 of Act XIV of 1859 we must conclude that the legislature intended that the period prescribed in Section 59 of Act II of 1864 should be subject to the general provisions of the Limitation Act for the time being in force which might have the effect of postponing the starting point of limitation or of excluding any time in the computation of the period of limitation. The question of the construction to be placed on Section 59 cannot be affected by Section 29 of the Limitation Act IX of 1908. What effect Section 29 would have upon provisions in special Acts which could not be construed as subjecting any special period of limitation prescribed therein to any provisions of the Limitation Act, it is unnecessary to consider in this case. We feel strengthened in this conclusion by the decisions of this Court already referred to above relating to the limitation for suits coming within Section 59 of Act II of 1864. We hold therefore that the suit in the present case is not barred by limitation and reversing the decrees of the Courts below remand the suit for disposal on the merits to the Court of first Instance. The costs of this and in the Lower Appellate Court will abide the result.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //