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Abdul Rahman Vs. Amir Ali - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1907)ILR34Cal612
AppellantAbdul Rahman
RespondentAmir Ali
Cases ReferredSuput Singh v. Imrit Tewari
Excerpt:
limitations - parties, substitution of--new plaintiff--assignment--assignee substituted after period of limitation--civil procedure code (act xiv of 1882) section 372--limitation act (xv of 1877) section 22. - .....they are bound by the case set up by their assignor and are carrying on by leave of the court the suit instituted by him, they are not new plaintiffs.6. if this argument were sound there would be no need for the proviso to section 22 which declares an exception to the rule laid down in the first paragraph of the section. it enacts that when a plaintiff dies and the suit is continued by his legal representative, it shall, as regards him, be deemed to have been instituted when it was instituted by the deceased plaintiff. the personal representative of a deceased plaintiff is just as much bound by the original plaintiff's case as is an assignee and if an express proviso was necessary to take the personal representative out of the section then an express proviso was equally necessary to.....
Judgment:

Francis W. Maclean, C.J.

1. The question submitted to us are the following: (i) 'Whether when the name of an assignor is removed from the record of a suit, and that of an assignee is substituted in its place, the provisions of Section 22 of the Limitation Act are applicable? (ii) Whether the case of Harak Chand v. Deonath Sahay (1897) I.L.R. 25 Calc. 409, or that of Suput Singh v. Imrit Tewari (1880) I.L.R. 5 Cal. 720 has been correctly decided?' I think that the first question ought to be answered in the affirmative, and that as between the two oases referred to in the second question, the decision in Harak Chand v. Deonath Sahay (1897) I.L.R. 25 Calc. 409 ought to prevail. If a person who has not been on the record is substituted as a plaintiff in the place of the original plaintiff under Section 372 of the Code of Civil Procedure, the person so substituted must be taken to be brought on the record subject to the law of limitation applicable to the case. There is nothing in Section 372 of the Code to exclude the operation of Section 22 of the Limitation Act, and if we look at the latter section we find that if a new plaintiff is substituted, which must mean a person who has not before been a plaintiff 'the suit shall, as regards him, be deemed to have been instituted when he was made a party.' The language of the section is perfectly clear and unequivocal. The only exception is that contained in the two provisos which refer to the legal representatives of a deceased plaintiff or defendant, as the case may be. There is no exception in the case of an assignee. By the provisos the Legislature has pointed out that the legal representative of either a deceased plaintiff or defendant shall not be regarded as a new plaintiff or defendant: this, by implication, in dicates, that in all other cases the person substituted is to be regarded as a new plaintiff. As the case of an assignee does not fall within the provisos, I think that Section 22 of the Limitation Act is applicable, and that the question should be answered in the manner I have indicated.

Harington J.

2. In this case a suit was instituted on a mortgage bond 11 days before the expiry of the period of limitation.

3. Long after the period of limitation had expired, the plaintiff assigned his rights under the mortgage bond to Dr. Abdul Rahman and Shaikh Yad Ali and their names have been substituted for that of the original plaintiff which has been struck off the record.

4. The question is Are the substituted plaintiffs barred by limitation?

5. Under Section 22 of the Limitation Act when after the institution of a suit a new plaintiff is substituted, the suit shall as regards him be deemed to have been instituted when he was so made a party. But it is contended for the plaintiff that 'new plaintiff' in this section means a plaintiff who can set up a new case, and that inasmuch as they are bound by the case set up by their assignor and are carrying on by leave of the Court the suit instituted by him, they are not new plaintiffs.

6. If this argument were sound there would be no need for the proviso to Section 22 which declares an exception to the rule laid down in the first paragraph of the section. It enacts that when a plaintiff dies and the suit is continued by his legal representative, it shall, as regards him, be deemed to have been instituted when it was instituted by the deceased plaintiff. The personal representative of a deceased plaintiff is just as much bound by the original plaintiff's case as is an assignee and if an express proviso was necessary to take the personal representative out of the section then an express proviso was equally necessary to take the assignee out of the section.

7. Next it is argued, that Section 372 of the Civil Procedure Code overrides Section 22 of the Limitation Act. No intention that it should override Section 22 Limitation Act, is expressed and a comparison of the other sections shows that it does not.

8. For example, Section 365 lays down the procedure to be followed in case of the death of a plaintiff and directs that the Court shall enter on the record the name of the legal representative in place of the deceased plaintiff, and proceed in the suit.

9. This section clearly does not override Section 22; if it did, there would have been no need for the proviso. A fortiori Section 372 which provides that a suit may be continued with the leave of the Court by the assignee cannot be said to override it.

10. In effect, the plaintiff contends that an assignee is qua Section 22 of the Limitation Act in the same position as the representative of a deceased plaintiff. This cannot be, as the proviso to that section which saves limitation in the case of the personal representative of a deceased plaintiff does not confer that benefit on an assignee.

11. For these reasons, I am of opinion that the suit is barred by limitation, and I think that the case of Harak Chand v. Deonath Sahay (1897) I.L.R. 25 Cal. 409. was rightly decided. The case of Suput Singh v. Imrit Tewari (1880) I.L.R. 5 Cal. 720. is not inconsistent with that case because in it the plaintiffs were added, not substituted, for the original plaintiff. The suit therefore could not be dismissed as barred by limitation, for the original plaintiffs, who ex-hypothesi had sued within time, remained upon the record. The case, therefore, is distinguishable from Sarah Chand's case (1897) I.L.R. 25 Cal. 409.

Brett J.

12. I agree in answering the questions in the manner in which the learned Chief Justice has answered them and for the reasons given in his judgment.

Mitra J.

13. I agree.

14. Geidt J.

14. So do I.

15. Maclean C.J.

15. The result is that the appeal must be dismissed with costs including the costs of this reference.


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