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Sm. Meghmala Debi W/O Nibaran Chandra Chakravarti Vs. Saday Parhya and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Reported inAIR1938Cal577
AppellantSm. Meghmala Debi W/O Nibaran Chandra Chakravarti
RespondentSaday Parhya and ors.
Cases ReferredS.R.M.M.A. Firm v. Maung Po Saung
Excerpt:
- .....remedy open to the unsuccessful party by way of regular suit one may necessarily conclude that the application in revision was a mala fide one. i am not prepared to go to the length as the rangoon high court has done and cannot consider that the application for revision made by the plaintiff was not a bona fide one. i have my doubts however as to whether the expression 'court of appeal' as used in section 14(1), limitation act would include a court of revision. assuming that the words are wide enough to include a court of revision, i think that the plaintiff cannot have an extension of time under section 14(1), limitation act as this court was not unable to entertain the revision petition from defect of jurisdiction or any cause of a like nature. in my opinion this court was quite.....
Judgment:

B.K. Mukherjea, J.

1. This is an appeal on behalf of the plaintiff and it arises out of a suit commenced by her under Order 21, Rule 103, Civil P.C. following an adverse decision in a claim case under Order 2.1, Rule 100, Civil P.C. The facts are not disputed and the whole controversy centres round the point whether the plaintiff's suit is barred by limitation. Both the Courts below have concurrently held that Article 11-A, Limitation Act operates as a bar to the plaintiff's suit, she having not instituted the suit within one year after the order was passed against her in the claim proceedings. It is admitted that the order in the claim proceedings was passed on 25th July 1933. Against that order there was a petition in revision presented by the plaintiff to this Court upon which a rule was issued on 14th November 1933. The rule was ultimately discharged on 29th January 1935 and on 1st March following, the present suit was started. Mr. Banerjee who appears on behalf of the appellant has raised a twofold contention before me. He has argued in the first place that time under Article 11-A would run from the date when the order was passed by this Court in revision on 29th January 1935, and secondly that in any view of the case he is entitled under Section 14(1), Limitation Act to exclusion of the period during which he was prosecuting the revision case in this Court.

2. Now, so far as the first point is concerned, Mr. Banerjee relies upon a decision of the Madras High Court in Venugopal Mudali v. Venkatasubbiah (1916) 3 AIR Mad 883. That decision held, and in my opinion rightly, that the word 'order' in Article 11-A, Limitation Act should be construed as meaning the final or subsisting order in the case. In that case however, there was a judgment in the claim ease pronounced by a single Judge of the High Court against which an appeal was taken under the Letters Patent. The Court held that the period of one year did run under Art, 11, Limitation Act from the time when the Appellate Court passed its order. The learned Judges in that case pertinently pointed out that a somewhat different consideration would apply if a revision petition presented by an unsuccessful party in a claim proceeding is rejected by the superior Court. If the High Court in the exercise of its powers under Section 115, Civil P.C. refuses to interfere in a claim case, it merely amounts to an abstention from exercising jurisdiction and the only final order that remains subsisting is the order passed by the trial Court. It may be otherwise where the High Court interferes in revision with the original decision. In the present case, if the plaintiff had succeeded in the revisional petition which she presented to this Court, the time so far as the defendants are concerned, would certainly have run from the date when this Court passed its order. In my opinion, the only subsisting order against the plaintiff was the order that was passed by the trial Court on 25th July 1933, and as the suit was not commenced within a period of one year after that, it is barred by limitation under Article 11- A, Limitation Act.

3. The next point that arises for consideration is whether the plaintiff can get an extension of time under Section 14(1), Limitation Act. The Court of Appeal below has refused to extend time primarily on the ground that the plaintiff's application for revision to this Court could not have been a bona fide application in view of the fact that she had another remedy open to her under the law, and in support of this decision the District Judge has relied upon the case in S.R.M.M.A. Firm v. Maung Po Saung (1929) 16 AIR Rang 297. It is true that the High Court would not ordinarily interfere in revision with orders made in claim cases. But I do not think that the High Court has no power to interfere in such cases, or simply because there is another remedy open to the unsuccessful party by way of regular suit one may necessarily conclude that the application in revision was a mala fide one. I am not prepared to go to the length as the Rangoon High Court has done and cannot consider that the application for revision made by the plaintiff was not a bona fide one. I have my doubts however as to whether the expression 'Court of Appeal' as used in Section 14(1), Limitation Act would include a Court of revision. Assuming that the words are wide enough to include a Court of revision, I think that the plaintiff cannot have an extension of time under Section 14(1), Limitation Act as this Court was not unable to entertain the revision petition from defect of jurisdiction or any cause of a like nature. In my opinion this Court was quite competent to exercise jurisdiction in this case and it has not refused to entertain the application on any point akin to want of jurisdiction. Under these circumstances, the plaintiff is not entitled to extension of time under Section 14(1), Limitation Act and this appeal must stand dismissed. I make no order as to costs.


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