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Fuckoruddeen Mahomed Ahsan Vs. Mohima Chunder Chowdhry and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1879)ILR4Cal529
AppellantFuckoruddeen Mahomed Ahsan
RespondentMohima Chunder Chowdhry and ors.
Excerpt:
limitation act (ix of 1871), schedule ii, articles 100 and 118 - suit for contribution. - .....act ix of 1871.3. it appears that the plaintiff' contended before the munsif that, although in the plaint the date of this cause of action was stated to have been the 7th of june 1873, the date of the auction-sale, yet, as a matter of fact, his cause of action arose at a much later date, that is to say, when the sale-proceeds were paid away to the decree-holder. the munsif, however, refused to go into this matter. he held that upon the face of the plaint it was clear that the plaintiff's claim was barred by limitation, and he therefore rejected it.4. on appeal, the subordinate judge, taking the same view of the question of limitation, has confirmed the decision of the munsif.5. we think it is doubtful whether article 100 of the second schedule of act ix of 1871 applies to the facts of.....
Judgment:

Mitter, J.

1. We think that in this case the judgments of the lower Courts are not correct. The plaintiff sues for contribution on the allegation that he and the defendants were jointly liable under the decree, and that in execution of that decree, his property alone was sold on the 7th June 1878. He brings this suit on the ground that as he and the defendants were jointly liable under the decree, and as the decree has been satisfied solely by the sale of his property, he is entitled to compel the defendants to contribute their share of the sum thus realized by the decree-holder.

2. The plaint was first filed on the 5th June 1876, but it was returned by the Munsif on the 14th June, in order that the plaintiff might specify the sums that the was entitled to get from each of the defendants, and he was directed to refile it within one week. The amended plaint, however, was not filed until the 17th July 1876. It was rejected by the Munsif on the ground that the claim was barred by limitation on the face of the plaint under Article 100 of the second schedule of Act IX of 1871.

3. It appears that the plaintiff' contended before the Munsif that, although in the plaint the date of this cause of action was stated to have been the 7th of June 1873, the date of the auction-sale, yet, as a matter of fact, his cause of action arose at a much later date, that is to say, when the sale-proceeds were paid away to the decree-holder. The Munsif, however, refused to go into this matter. He held that upon the face of the plaint it was clear that the plaintiff's claim was barred by limitation, and he therefore rejected it.

4. On appeal, the Subordinate Judge, taking the same view of the question of limitation, has confirmed the decision of the Munsif.

5. We think it is doubtful whether Article 100 of the second schedule of Act IX of 1871 applies to the facts of this case. That article provides for contribution by a party who has paid the whole amount due under a joint decree, or by a sharer in a joint estate who has paid the whole amount of revenue due from himself and his co-sharers. The date from which limitation begins to run is three years from the date of the plaintiff's advance in excess of his own share. In the present case nothing was paid by the plaintiff. Therefore it is a question, whether that article or Article 118 applies to this case? Article 118 is to the effect that a suit for which no period of limitation is provided elsewhere in this schedule may be brought within six years from the time when the right to sue accrues.

6. However, without expressing any decided opinion on this point, and assuming that Article 100 applies, we think that the plaintiff was not bound absolutely by the statement made in his plaint that his cause of action arose on the date of the auction-sale. Upon the facts stated in the plaint, it is clear that the cause of action in the present case arose when the sale-proceeds were drawn out of Court by the decree-holder.

7. We think, therefore, that the lower Courts are not right in holding that the plaintiff's claim is barred without ascertaining the date when the sale-proceeds were paid to the decree-holder. The lower Courts are, therefore, wrong in dismissing the suit as barred by limitation without taking evidence upon that point. The decree of the lower Courts must be set aside, and the case remanded to the Court of first instance for trial. Costs to abide the result.


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