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Assrup Koer and ors. Vs. Luchmi NaraIn Singh - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal43
AppellantAssrup Koer and ors.
RespondentLuchmi NaraIn Singh
Cases ReferredKoylash Chunder Paul Chowdhry v. Preonath Roy Chowdhry I.L.R.
Excerpt:
limitation act (ix of 1871), schedule ii, article 15; and (xv of 1877), schedule ii, article 11 - suit to recover property sold in execution--civil procedure codes (act viii of 1869), section 246 and (act x of 1877), sections 280, 281, and 282. - .....of law have been argued before us: 1st, that the plaintiff 's suit is barred because a previous suit brought by her was dismissed. it appears that the previous suit referred to was dismissed not upon the merits, but upon the ground that the form in which that action was brought was not the correct form. she had alleged that she was in possession of the property in dispute, the court found that she was not in possession, and simply upon this ground that suit was dismissed; therefore it cannot be said that that decision is any bar to the present suit under section 13 of the procedure code. neither is it a bar under section 43. section 43 is not applicable here, because the first suit was brought before the present procedure code was passed, and the rule of law laid down in section 43 is.....
Judgment:

Mitter, J.

1. We do not think that there is any ground for interference in this case. The Courts below have found that the plaintiff 's husband was separate from the defendant No. 2, and that, after her husband's death, she was in possession of the disputed property until dispossessed. There is no ground upon which this finding can be questioned in second appeal. We must, therefore, accept it as correct. These two questions of law have been argued before us: 1st, that the plaintiff 's suit is barred because a previous suit brought by her was dismissed. It appears that the previous suit referred to was dismissed not upon the merits, but upon the ground that the form in which that action was brought was not the correct form. She had alleged that she was in possession of the property in dispute, the Court found that she was not in possession, and simply upon this ground that suit was dismissed; therefore it cannot be said that that decision is any bar to the present suit under Section 13 of the Procedure Code. Neither is it a bar under Section 43. Section 43 is not applicable here, because the first suit was brought before the present Procedure Code was passed, and the rule of law laid down in Section 43 is laid down with reference to suits to be brought under the new Procedure Code. Under Section 7, Act VIII of 1859, the plaintiff was bound to include the whole of her claim arising out of the cause of action upon which the first suit was brought, and there is no question that in the first suit she had included the whole of her claim. Therefore, there is no force in this contention. The next point of law that has been raised is, that the claim as regards a portion of the disputed land is barred because there were two orders passed under Section 246 against the plaintiff on the 3rd of March 1873 and 6th of September 1873 respectively, and the present suit is not brought within one year from either of those two dates. It is contended before us that the present suit, being governed by the Limitation Act of 1877, is barred; but the article to which reference is made, viz., Article 11, does not refer to an order passed under Section 246, but to an order passed under the corresponding section of the Act of 1877. The Limitation Act must be construed strictly; and we cannot therefore say that, under Article 11, the present suit is barred. Then as regards the question whether it was barred under the Act of 1871, the District Judge follows the decision of this Court in Koylash Chunder Paul Chowdhry v. Preonath Roy Chowdhry I.L.R. 4 Cal. 610. Beyond citing some contrary decisions of the High Court of Bombay, nothing has been urged before us from which we could say that the decision upon which the District Judge relies is not in accordance with law. Under the circumstances, we will follow the decision of our own Court.

2. We dismiss this appeal with costs.

Maclean, J.

3. The decision of this Court in Koylash Chunder Paul Chowdhry v. Preonath Roy Chowdhry I.L.R. 4 Cal. 610 and others to the same effect are, no doubt, in conflict with some of the Bombay decisions, and I am by no means certain that I do not agree with the latter. But I am not at present disposed to dissent formally from the view of the law laid down in our Court. I, therefore, concur in dismissing the appeal.


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