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SreenaraIn Kayan Vs. Bhagwandas Churiwalla - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Reported inAIR1940Cal210
AppellantSreenaraIn Kayan
RespondentBhagwandas Churiwalla
Cases ReferredPrabappa Chetti v. K. Desikachari
Excerpt:
- .....clear from expl. 3, section 19 that the section as a whole does not cease to operate on decree. it applies to execution proceedings. the proviso contained in the third column against item 183 is no doubt in different terms. it provides for certain things not in section 19. it is in some ways wider than section 19 in other ways narrower; for instance, it seems to provide that an acknowledgment must be made to the creditor and not otherwise. as regards section 19 that is not the law in india. it is to be noticed that the proviso relates directly to the fixing of the terminus a quo for the period of limitation mentioned in the preceding column. section 19 is general. i do not myself see why or how section 19 is to be controlled or limited by the language of the proviso to col. 3 item 183......
Judgment:
ORDER

Ameer Ali, J.

1. I am much indebted to Mr. Sett for his argument but my view is otherwise. The decree in this case is dated 9th March 1927. The application for execution is dated 15th May 1939. Hence, in the absence of any extension, the application is barred. The fact relied upon for such extension is an entry of this debt in the list of creditors signed by the defendants who applied to the Official Assignee on 18th August 1927. If Section 19 applies and that is to be treated as an admission, the application would be within time. In my view, this is an admission within the meaning of Section 19, Limitation Act. The only question is whether Section 19 applies. Mr. Sett's contention is that by reason of the special language of the proviso in the third column to the schedule against item 183, Section 19 must be excluded. I do not so read the Act. It is clear from Expl. 3, Section 19 that the Section as a whole does not cease to operate on decree. It applies to execution proceedings. The proviso contained in the third column against item 183 is no doubt in different terms. It provides for certain things not in Section 19. It is in some ways wider than Section 19 in other ways narrower; for instance, it seems to provide that an acknowledgment must be made to the creditor and not otherwise. As regards Section 19 that is not the law in India. It is to be noticed that the proviso relates directly to the fixing of the terminus a quo for the period of limitation mentioned in the preceding column. Section 19 is general. I do not myself see why or how Section 19 is to be controlled or limited by the language of the proviso to col. 3 item 183. No doubt the two matters may be independent but it does not follow that the scope of Section 19 should be narrowed by the proviso. I have not considered the question whether, even under the proviso to item 183, an acknowledgment made in this form can be treated as an acknowledgment made to the creditor. I have proceeded on the assumption that it is not. In my view Section 19 applies. There is here an acknowledgment within Section 19 and the applicant is entitled to execution. Mr. Sett has been good enough to cite to me two cases, one in Tuganmull v. Ladhu Lal (1931) 18 A.I.R. Pat 218, which appears to treat the provision I have referred to independent of Section 19 and also the case in Prabappa Chetti v. K. Desikachari (1925) 12 A.I.R. Mad. 1131, which latter case does not seem to give us very much assistance on the point. The application therefore is allowed. The applicant will add his costs to his claim. Certified for Counsel.


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