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Brojo Kishore De Vs. Krishna Das Adhardas - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Reported inAIR1947Cal389
AppellantBrojo Kishore De
RespondentKrishna Das Adhardas
Cases ReferredPeary Mohan Mukherji v. Norendra Nath
Excerpt:
- .....(amendment) act, for relief as against the decree-holder. the decree-holder was cited as the idol represented by the shebait, lalit mohan de. this application was dated 1-4-1943.3. applications under section 37a, of the amending act, have to be made within one year of the date upon which the act came into force and this application was within a period of one year. unfortunately, however, the shebait, lalit mohan de, had been dead since 14-2-1940, and therefore the application was against an idol unrepresented by anybody. an idol is a juristic person and can sue and be sued, but it must bring a suit or it must be sued through a representative, usually the shebait. as the idol cannot act itself a suit against the idol except through a representative would be meaningless. in the.....
Judgment:
ORDER

Harries, C.J.

1. This is a petition for revision of an order of a District Judge reversing an order of an Appellate Officer and holding that an application under Section 37A, was properly constituted.

2. The decree-holder was an idol and an application was made by the debtor under Section 37A, Bengal Agricultural Debtors (Amendment) Act, for relief as against the decree-holder. The decree-holder was cited as the idol represented by the shebait, Lalit Mohan De. This application was dated 1-4-1943.

3. Applications under Section 37A, of the Amending Act, have to be made within one year of the date upon which the Act came into force and this application was within a period of one year. Unfortunately, however, the shebait, Lalit Mohan De, had been dead since 14-2-1940, and therefore the application was against an idol unrepresented by anybody. An idol is a juristic person and can sue and be sued, but it must bring a suit or it must be sued through a representative, usually the shebait. As the idol cannot act itself a suit against the idol except through a representative would be meaningless. In the present case, the application under Section 37A, could mean nothing at all as the idol was not represented by anyone, the shebait named being' dead years previously.

4. Later an application was made to amend the petition under Section 37A, by substituting the name of the then shebait, in place of the name of the deceased shebait. This application to amend was made on 9-11-1944, more than a year after the amending Act came into force. A point was taken that the application was out of time.

5. If this was a mere question of correcting representation I should be inclined to hold that the application was not barred by limitation. That seems to be clear from a decision of their Lordships of the Privy Council in Peary Mohan Mukherji v. Norendra Nath ('10) 37 I.A. 27.

6. In the present case however the idol is represented for the first time in this suggested amendment, In fact the amendment makes the application for the first time competent, as there could be no application against the idol unrepresented. As I have said, if the idol had been wrongly or incorrectly represented much could be said for the argument that an amendment need not be within time. But the amendment asked for here brought into being for the first time an effective application, and that being so, it appears to me that that application would have to be within limitation. It was not, and therefore the application to amend ought to have been rejected.

7. In the result therefore the order of the District Judge is set aside and the order of the Appellate Officer is restored. The Rule is made absolute with costs. Let the counter affidavit filed to-day be kept on the record.


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