1. The property which forms the subject of this suit was attached in execution of a decree against the defendant No. 3. The plaintiff preferred a claim under Section 246 of Act VIII of 1859 in respect of this property. This claim was disallowed on the 7th of September 1876. The plaintiff now seeks to establish his right to, and obtain possession of the property which formed the subject of that claim. The present suit was instituted on the 9th of October 1879, that is more than three years after the order disallowing the claim, which order was made under Section 246 of Act VIII of 1859.
2. The Munsif was of opinion that the limitation law applicable to this case is Act XV of 1877, and he refers to Article 11 of Schedule ii of that Act. Applying that article, he was of opinion that this suit ought to have been brought within one year from the 7th of September 1876, and that, having been brought more than a year after the date of the order disallowing the claim, it was barred by limitation under the article just mentioned.
3. It is now contended before us in appeal that Article 11 cannot be read as applicable to Section 246 of Act VIII of 1859. Article 11 is as follows: 'By a person against whom an order is passed under Section 280, 281, 282, or 335 of the Code of Civil Procedure, etc.' The Code of Civil Procedure here referred to was the Code which was in force when Act XV of 1877 was passed, that is Act X of 1877. Section 3 of Act X of 1877 provides as follows: 'When in any Act, Regulation, or Notification passed or issued prior to the day on which this Code comes into force, reference is made to Act VIII of 1859, Act XXIII of 1861, or the Code of Civil Procedure, or to any other Act hereby repealed, such reference shall, so far as may be practicable, be read as applying to this Code or the corresponding part thereof.' There is, however, no provision that when, in any Act passed after the passing of Act X of 1877, reference is made to Act X of 1877, or the Code of Civil Procedure, that reference shall be read as applying to the old Code, Act VIII of 1859, or the corresponding part thereof; and in order to make Article 11 of the Limitation Act applicable to the present case, we would have to import into the law such a provision as that which has been just mentioned, and which has not been specifically made by any Act of the Legislature. We think that we cannot import a provision of this nature more especially in construing the Limitation Act, to which the rule of strict construction is applicable according to the practice of the Courts. The result is, that Article 11 of the present Limitation Act is not applicable to the present case.
4. Then arises the question, what period of limitation is applicable? It has been decided in the case of Koylash Chunder Paul Chowdhry v. Preonath Roy Chowdhry I.L.R. 4 Cal. 610; S.C. 3 C.L.R. 25 that, in consequence of the repeal of the last twelve words of Section 246 of Act VIII of 1859 by Act IX of 1871, the period of limitation applicable to a suit such as that which the plaintiff has here brought is twelve years. The decision in that case has been followed in a number of cases decided by other Benches of this Court. See Matonginy Dassee v. Chowdhry Junmunjoy Mullick 25 W.R. 513; Joy Ram Loot v. Paniram Dhoba 8 C.L.R. 54 and Raj Chunder Chatterjee v. Shama Churn Garai 10 C.L.R. 435. It has been contended before us by the vakil for the respondents that these decisions are not correct, and that, upon the true construction of the law, the period of limitation is one year; and that it has been so decided by the Bombay High Court and the Madras High Court.1 Having regard to the fact that this question was not raised in the Courts below, that it was there assumed that, unless Article 11 of the second schedule of Act XV of 1877 is applicable, the period of twelve years would apply, which is in accordance with several decisions of this Court, and that no cross-objection has been taken on appeal to this Court, we think it unnecessary to enter into this question upon the present occasion. We think, therefore, that this appeal must be decreed with costs, and the case must be remanded for trial on the merits.
1See Krishnaji Vithal v. Bhaskar Rangnath I.L.R. 4 Bom. 611; Venkapa v. Chenbasapa I.L.R. 4 Bom. 21; Jetti v. Sayad Husein I.L.R. 4 Bom. 23.