1. This is an application under Rule 67, Chapter XXXVIII of our Rules, by Messrs. G.C. Chunder and Co., a very well-known firm of Attorneys of this Court.
2. One Lattulal Mullick was a client of that firm which conducted a suit on his behalf, being Suit No. 56 of 1912. Lattulal died on the 9th February 1913. The bill of costs was taxed on the 4th September 1913. It was after that that Mr. B.K. Bose was taken in as a partner in that firm on 1st January 1914. Mr. G.C. Chunder, the senior member of that firm, died on 3rd July 1914, his son Babu Raj Chunder Chunder, who was also a partner, died on 5th July 1915, and Babu Lakhi Narain Khetri, another partner of the firm, died on 5th August 1917.
3. The summons for this application was taken out on 10th May 1918 for hearing on 15th May 1918. The present members of the firm are Mr. B.K. Bose and two others, who were not originally members of that firm. When the application came before me, the representatives of Lattulal appeared and contested the application on two grounds, viz., that the application was barred under Article 181 of the present Limitation Act and that the present firm of G.C. Chunder and Co. was not entitled to make the application under Rule 67. On the first day of the hearing time was taken by the applicants to meet the case of limitation, so far as I remember, on the ground that there had been an acknowledgment of the debt by the representatives. Further affidavits have now been put in by the applicant firm in which the case presented before me is that the representatives promised to pay and that it was in fact a novation. In support of the contention of the representatives of Lattulal, it was stated that Article 181 of the Limitation Act is now in a form which makes it very general and that it ought not to be restricted to applications under the Civil Procedure Code. As against this contention Mr. Justice Davar's ruling in Wadia, Gandhy Co. v. Purshotam Sivji 32 B. 1 ; 9 Bom. L.R. 508 was relied upon. The provisions of Article 181 were first introduced by the Limitation Act of 1877. Article 178, where the words were, 'by the Code of Civil Procedure, Section 230.' The present Civil Procedure Code is an Act of 1908 and the Article now stands with the words 'by Section 48 of the Civil Procedure Code, 1908.' There is practically no difference between the two Articles. It was held under the old Article that the general words must be construed with some limitation, having regard to the words that follow, viz., the words above quoted, and that the applications there dealt with were, therefore, applications ejusdem generis. A large number of decisions of this Court and of other Courts support this view, but the case of Chand Monee Dasya v. Santo Monee Dasya 24 C. 707 ; 1 C.W.N. 534 ; 12 Ind. Dec. (N.S.) 1140 indicates a somewhat different view. It deals with an application under Section 173 of the Bengal Tenancy Act, but holds that Article 178 of the Limitation Act, 1877, is applicable. Article 166 of Act IX of 1871 (which was the previous Limitation Act) referred to the execution of orders of Revenue Courts. In the Act of 1877 there is no section corresponding to Article 166, yet it was held that Section 178 was applicable in the case above referred to. With the exception of that case practically all the other cases take the same view, but I do not want to discuss the matter at any great length. The question before me is whether Article 181 applies to applications under our Rule 67, Chapter XXXVIII. In the Bombay case Wadia, Gandhy &c; Co. v. Purshotam Sivji 32 B. 1 ; 9 Bom. L.R. 508 it has been held that that Article does not cover applications of this kind. It follows an earlier Bombay case, Abba Haji Ishmail v. Abba Thara 1 B. 253 ; 1 Ind. Dec. (N.S.) 168. The decision of Davar, J., is of 1907 and since we have taken our rule from the Bombay Rules, I think it is only right to follow the decisions governing this matter of the Bombay Court, especially, as the same view has been taken there for over 40 years. I, therefore, bold that Article 181 of the Limitation Act does not cover applications of this character, but it is a very different proposition whether unlimited time can be given to a party making an application under that section. If there is no special rule of limitation, discretion has to be exercised in granting applications of this character which are of a summary nature. The rule itself provides an alternative relief viz., relief by suit, and such a suit can only be instituted within the time given in the Limitation Act, Article 84, and it, therefore, seems to me that in exercising discretion with regard to such applications where a question of lapse of time is raised, it must be considered whether the time allowed by Article 84 ought not to cover applications of this character.
4. The next point is as regards the position of the present firm of G.C. Chunder & Co. It seems to me that an application of this character for payment can only be acceded to in a summary procedure where there is no contest or doubt that the parties applying are capable of giving a full discharge for the amount claimed. Lakhi Narain Khetri is dead and has left executors who represent his estate. It is stated in the affidavits relied upon by the applicants that the representatives of Lakhi Narain are agreeable to join in giving a discharge to the representatives of Lattulal, but it is a matter which clearly involves an enquiry. An order made under this rule has the effect of a decree and if there is any contest between the parties which involves an enquiry, it ought hardly to be dealt with in a summary manner. In addition to that, the case now made is one of novation. In the case decided by Davar, J., relied upon by the applicants, I find the following passage:
The rule itself makes a distinct provision for referring the parties to a suit and this course the Judge in Chambers would, I apprehend, adopt if the client set up some special contract or arrangement with the solicitor which the solicitor denied or where, for instance, the client pleaded payment or satisfaction which was not admitted or where, generally speaking, the client disclosed a defence in showing cause which would necessitate the taking of oral evidence.
5. I do not think that I can go into the question of novation in a summary application of this character and, therefore, I refer the applicants to a suit and cannot accede to the present application. Having regard to the fact that there is a sum of money still due to that firm, I will make no order for costs against them.