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Sati Prasad Sen Vs. Jogesh Chandra Sen - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1904)ILR31Cal681
AppellantSati Prasad Sen
RespondentJogesh Chandra Sen
Cases ReferredMohima Chunder Bhuttacharjee v. Nobin Chunder Roy
Excerpt:
limitation act (xv of 1877) article 136 and article 138 - transferee of auction-purchaser--possession--'vendor,' meaning of. - .....and consistent. it is contended for the respondent that article 138 does not apply, because the auction-purchaser alone is mentioned, and not a transferee from him, and that the latter comes within the strict language of section 136. undoubtedly the case of an auction-purchaser falls within article 138, and the question is, whether his assignee, who stands in his shoes, is not in the same position. i think he is: and that the expression 'vendor' in art 136 means a vendor other than the auction-purchaser, mentioned in article 138. in this way, effect is given to both articles. it may be said that this construction necessitates the introduction into article 136 of wards which are not there, hut looking at articles 136, 137 and 138, and reading them together, i think that article 138.....
Judgment:

Francis W. Maclean, C.J.

1. The question which has been referred is whether in the circumstances of the present case, Article 136 or Article 138 of the Limitation Act applies. There is a decision of this Court, Mohima Chunder Bhuttacharjee v. Nobin Chunder Roy (1895) I.L.R. 23 Calc. 49 in favour of the view that Article 136 applies, whilst there are decisions in the High Courts of Madras and Bombay to the opposite effect. I quite subscribe to the view enunciated by the learned vakil for the Respondent that, in construing the Limitation Act, we must construe it strictly; hut in construing an Act such as the present, where there are a variety of articles dealing with a variety of particular oases, we must try so to construe those articles as to make them harmonicas and consistent. It is contended for the Respondent that Article 138 does not apply, because the auction-purchaser alone is mentioned, and not a transferee from him, and that the latter comes within the strict language of Section 136. Undoubtedly the case of an auction-purchaser falls within Article 138, and the question is, whether his assignee, who stands in his shoes, is not in the same position. I think he is: and that the expression 'vendor' in Art 136 means a vendor other than the auction-purchaser, mentioned in Article 138. In this way, effect is given to both articles. It may be said that this construction necessitates the introduction into Article 136 of wards which are not there, hut looking at Articles 136, 137 and 138, and reading them together, I think that Article 138 applies to the case of a person claiming through the auction-purchaser, and not merely to the auction-purchaser alone.

2. The result is that the appeal must be allowed and the suit dismissed with costs in all Courts, including the costs of this reference.

Prinsep, J.

3. I am of the same opinion.

Harrington, J.

4. I agree.

Brett, J.

5. I agree.


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