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Rabindra Nath Dutt Vs. Abdul Ahad and Co. - Court Judgment

LegalCrystal Citation
Subject Civil; Limitation
CourtKolkata
Decided On
Reported inAIR1925Cal781
AppellantRabindra Nath Dutt
RespondentAbdul Ahad and Co.
Excerpt:
- .....of one rabindra nath dutt applies for the admission of the plaint under order 37 of the code of civil procedure, the suit being one purporting to be laid under o.37 of the code of civil procedure.2. the cause of action has arisen on nonpayment of principal and interest due on a promissory note executed by the defendant so far back as the 29th july 1922. the executant of the promissory note undertook to repay the principal with interest at the rata of 12 per cent. per annum on demand. the master, before whom the plaint was presented in the first instance, refused to admit it as a plaint under order 37 on the ground that the suit has not been brought within six months from the date when the debt became due and payable, and he accordingly held that the plaint could not be admitted. as i.....
Judgment:
ORDER

C.C. Ghose, J.

1. In this matter a point of some novelty has arisen. Mr. P.C. Basu counsel on behalf of one Rabindra Nath Dutt applies for the admission of the plaint under Order 37 of the Code of Civil Procedure, the suit being one purporting to be laid under O.37 of the Code of Civil Procedure.

2. The cause of action has arisen on nonpayment of principal and interest due on a promissory note executed by the defendant so far back as the 29th July 1922. The executant of the promissory note undertook to repay the principal with interest at the rata of 12 per cent. per annum on demand. The Master, before whom the plaint was presented in the first instance, refused to admit it as a plaint under Order 37 on the ground that the suit has not been brought within six months from the date when the debt became due and payable, and he accordingly held that the plaint could not be admitted. As I understand the matter, the Master raised no objection to the admission of the plaint as a suit brought in the ordinary manner on a negotiable instrument, the period of limitation in respect of which is three years.

3. Mr. Basu urges that the suit should be treated as one under Order 37 of the Code of Civil Procedure and he argues in the following manner. He says that under Article 5 of the Limitation Act of 1877, the period of limitation in respect of suits under Chap. 39 of the Code of Civil Procedure 1882 (which corresponds to Order 37 of the present Code of Civil Procedure) was six months from the date on which the debt became due and payable, but that there has bean a material alteration in the language of Article 5 of the present Limitation Act and that the effect of the alteration is that the period of six months prescribed therein is applicable now only to suits instituted under the summary procedure referred to in Section 128 (2) (f) of the present Code of Civil Procedure and cannot be made applicable to suits under Order 37. In other words Mr. Basu's contention is that the period of limitation under the old Limitation Act in respect of suits coming within the category of suits referred to under Order 37, of the Code has now been done away with and at present there being no other Article in the Limitation Act specifically applicable to suits under Order 37, suits under Order 37 must now be taken to be covered by the ordinary period of limitation, viz., a period of three years. As I have said the point is of considerable novelty and although the Limitation Act was passed at the same time as the present Code of Civil Procedure and although as far as I am aware it has never been suggested up to the present moment that the limitation in respect of suits under Order 37 of the Code is other than six months it is clearly incumbent upon me to examine Mr. Basu's contention having regard to the changes made in the Limitation Act.

4. Section 128 of the Code of Civil Procedure which relates to rules which may be made by the High Courts in respect of matters therein set forth occurs in Part X of the Code, and the first section in that Part, viz., Section 121, enacts that 'the rules in the first schedule shall have effect as if enacted in the body of this Code until annulled or altered in accordance with the provisions of this Part.' It would therefore seem to follow prima facie that the rules made under Section 128 of the Code of Civil Procedure could only refer to amendments of the First Schedule to the Code and in particular to rules in respect of certain matters therein sat forth. It would seem to follow further that rules made under Section 128 (2) (f) of the Code of Civil Procedure cannot have reference to suits referred to in Rule 2 of Order 37 in respect of which rules for summary procedure have been made by the Legislature itself and in respect of which no rules have been made by the High Courts under the rule-making power vested in them. That being so, in my opinion, subject to what may be urged by the defendant when he appears in this suit, Article 5 of the present Limitation Act cannot refer to suits under Order 37 of the Code of Civil Procedure. It seems to me however that it was the intention of the Legislature when they amended Article 5 of the Limitation Act to prescribe a period of limitation of six months to all summary suits but that the intention of the Legislature has not been expressed in clear and apt words in Article 5 of the present Limitation Act with the result that, strictly speaking and subject to what I hear further in the course of the suit, suits under Order 37 are not now governed by Article 5 of the present limitation Act. I am therefore compelled to say that I have no other alternative but to admit this plaint under Order 37 of the Code of Civil Procedure. The plaint will therefore be so admitted.

5. I think the matter requires serious consideration by the Legislature; I have been just now informed that the matter is awaiting consideration by the Legislature.

6. The plaintiff must pay his own costs of this application.


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