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Peary Mohun Aich Vs. Anunda Charan Biswas - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1891)ILR18Cal631
AppellantPeary Mohun Aich
RespondentAnunda Charan Biswas
Cases Referred and Khoshelal Mahton v. Gunesh Dutt I.L.R.
Excerpt:
execution of decree - transfer of decree for execution--civil procedure code (act xiv of 1882), sections 223 and 230--limitation act (xv of 1877), sections 5 and 6--extension of time when court is closed. - .....the application from being barred.3. it is contended before us that the period of limitation (12 years) being prescribed by the code of civil procedure and not by the limitation act, section 5 of the latter act is not applicable so as to modify the strict provisions of section 230 of the code. the judgment-debtor relies upon section 6 of the limitation act, and upon a series of decisions cited in the recent full bench case of nagendro nath mullick v. mathura mohun parhi i.l.r. 18 cal. 368 in which it was held that the provisions of the limitation act were not applicable to suits under act x of 1859.4. we are of opinion, however, that section 6 of the limitation act has no application to the present case. the code of civil procedure is neither a special nor a local law. it may be that.....
Judgment:

W. Comer Petheram, Kt., C.J. and Beverley, J.

1. This second appeal arises out of an application to execute a decree made by the Munsif of Sealdah on the 7th September 1877. After various attempts to execute the decree, the judgment-creditor on the 2nd September 1889 applied for the transfer of the decree to the Bagirhaut Court under Section 223 of the Code. An order for transfer was made, and on the 9th September the Court having been closed from the 3rd to the 8th (inclusive) on account of the Mohurrum holidays, the decree-holder applied to the Munsif of Bagirhaut for execution of the decree under Section 230. Upon that application being made, the judgment-debtor objected, inter alia, that the application ought not to be granted, as it had been made more than 12 years from the date of the decree sought to be enforced (Section 230, Code of Civil Procedure).

2. Both the Lower Courts have held that the Court having been closed from the 3rd to the 8th September, and the application having been made on the 9th, the day on which the Court re-opened, Section 5 of the Limitation Act operates to prevent the application from being barred.

3. It is contended before us that the period of limitation (12 years) being prescribed by the Code of Civil Procedure and not by the Limitation Act, Section 5 of the latter Act is not applicable so as to modify the strict provisions of Section 230 of the Code. The judgment-debtor relies upon Section 6 of the Limitation Act, and upon a series of decisions cited in the recent Full Bench case of Nagendro Nath Mullick v. Mathura Mohun Parhi I.L.R. 18 Cal. 368 in which it was held that the provisions of the Limitation Act were not applicable to suits under Act X of 1859.

4. We are of opinion, however, that Section 6 of the Limitation Act has no application to the present case. The Code of Civil Procedure is neither a special nor a local law. It may be that the word 'prescribed' in Section 5 is intended to be read as 'prescribed by this Act;' but whether that be so or not, it seems to us that the decree-holder is entitled to the benefit of the rule laid down in that section upon the broad principle referred to in the case of Shooshee Bhusan Rudro v. Gobind Chunder Roy I.L.R. 18 Cal., 231, that where the parties are prevented from doing a thing in Court on a particular day, not by any act of their own, but by the act of the Court itself, they are entitled to do it at the first subsequent opportunity. This principle has been followed in several cases viz. Behari Loll Mookerjee v. Mungolanath Mookerjee I.L.R. 5 Cal. 110 Golap Chand Nowluckha v. Khristo Chunder Dass Biswas I.L.R. 5 Cal 314 Hossein Ally v. Donzelle I.L.R. 5 Cal. 906 and Khoshelal Mahton v. Gunesh Dutt I.L.R. 7 Cal. 690 and it has been recognized (as regards future enactments) by Section 7 of the General Clauses Act, I of 1887.

5. We hold, then, that the Court having been closed on the day when this application might have been lawfully granted within the 12 years, and the application having been made on the day the Court re-opened, it must be taken to have been made within time. We accordingly dismiss the appeal with costs.


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