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Sm. Kamala Sundari Dassi and ors. Vs. Sridam Chandra - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata High Court
Decided On
Case NumberAppeal No. 38 of 1951
Judge
Reported inAIR1954Cal569,58CWN401
ActsCode of Civil Procedure (CPC) , 1908 - Order 22, Rule 4(1) and 4(3); ;Limitation Act, 1908 - Section 4 - Schedule - Article 177
AppellantSm. Kamala Sundari Dassi and ors.
RespondentSridam Chandra
Appellant AdvocateA.C. Bhabra, Adv.
Respondent AdvocateA.K. Mukerji, Adv.
DispositionAppeal allowed
Cases ReferredJohurimull Jugal Kishore v. Kashi Prosad Jhajharia
Excerpt:
- .....for the reasons i am presently going to state, decision of no such question is necessary.4. the time limited for making the application for substitution was due to expire on july 12, that is to say, the day on which the application was made ready. that day happened to be a saturday on which the court does not sit. late in the afternoon, the solicitor for the applicants made an attempt to obtain an engage-ment, first from my lord mr. justice s. r. das gupta and then from myself, but without success. as they were under the impression that by reason of the application not having been made within the time limited by law, the appeal had abated, they made an application on the 14th, that is to say, on the very next day on which the court was sitting for setting aside the abatement and for.....
Judgment:

Chakravartti, C.J.

1. This application raises a point of limitation which in another case was described by Mr. Justice Panckridge as 'an interesting and a not unimportant point.'

2. The application before us is for setting aside an abatement of an appeal pending in this Court and to that application is appended a previous application for the substitution of the legal representatives of the deceased respondent. The circumstances in which two applications came to be made are the following:

3. It appears that on 12-7-1952, the petitioners got an application prepared for the legal representatives of the deceased respondent in the appeal to be substituted and in the body of that application they stated the necessary facts. The facts stated were that the respondent, Sreedam Chandra Mullick, had died interstate on April, 13 last and that the information of his death had first been conveyed to the applicants by a letter, dated 26-4-1952, written to the solicitor for the petitioners by the solicitor for the deceased. The application went on to explain why it could not have been made earlier. It would have been necessary to consider the merits of the explanation if we had to decide whether an abatement ought to be set aside, but for the reasons I am presently going to state, decision of no such question is necessary.

4. The time limited for making the application for substitution was due to expire on July 12, that is to say, the day on which the application was made ready. That day happened to be a Saturday on which the Court does not sit. Late in the afternoon, the solicitor for the applicants made an attempt to obtain an engage-ment, first from my Lord Mr. Justice S. R. Das Gupta and then from myself, but without success. As they were under the impression that by reason of the application not having been made within the time limited by law, the appeal had abated, they made an application on the 14th, that is to say, on the very next day on which the Court was sitting for setting aside the abatement and for directing the substitution of the legal representatives after the abatement had been set aside. To this second application the first application, made simply for substitution, was attached as an annexure. I should add that the notice of motion stated, 'inter alia' that the Court would be asked for an order that the abatement of the appeal as against the heirs of the legal representatives of the deceased respondent be set aside.

4a. When, however, the application came to be moved, Mr. Bhabra submitted to us that in fact the appeal had not abated and that the application made on July 14 was a good application for substitution made within time. In support of that contention, he referred us to three decisions of this Court, namely, -- 'Khi-rode Chandra v. Rarnani Mohan' : AIR1937Cal454 ; -- 'K. P. Sinha v. Jatindra Nath' 41 Cal WN 4S2 (B), and lastly -- 'Nur Mohammed v. S. M. Solaiman' 49 Cal WN 10 (C). All these cases lay down that when the time limited for making an application expires on a day on which the Court or the Registrar, as the case may be, is not sitting an application made on the next day the Court is first sitting is an application made within time.

Particular reference may be made to first of the three cases cited, which was a case of an application for substitution. The application had to be made before the Registrar and although the period of limitation had expired on 3-4-1937, it was made and moved on April 5, which was the first date after the close of the Easter holidays on which the Registrar was sitting. In those circumstances, it was held by S. K. Ghose and R. C. Mitter JJ. that the application had been made within time and their Lordships relied upon the decision in -- '41 Cal WN 492 (B)'. The facts in the case last-named were that the period of limitation expired on a Saturday when the Courts were not sitting and therefore the facts Were exactly as in the present case.

5. On behalf of the respondent, however, it was argued by the learned Counsel that although it might be open to the applicants to make their application on the next day on which Courts were first available, the abatement of the appeal would nevertheless, not be averted by reason of the provisions of Order 22, Rule 4, Sub-rule (3), Civil P. C. That rule provides that where within the time limited by law no application is made under Sub-rule CD, the suit shall abate as against the deceased defendant. Sub-rule (1) speaks of an application for causing the legal representatives of the deceased defendant to be made parties and there can be no question that the provisions of the rule apply to appeals as well.

6. What was contended on behalf of the respondent is that authority for making an application on the day on which a Court re-opened, although the period of limitation had expired during the period the Court was closed, was to be found only in Section 4, Limitation Act; but that section did not extend the period of limitation. All that the section did was to enable the applicant when he found the Courts closed on the last day of the limitation, to make an applica-tion on the day on which he next found the Courts open. But if, in the meantime, his remedy had become barred by reason of some other provision, the liberty given to him by Section 4 would avail him for nothing.

It was pointed out that under the provisions of Order 22, Rule 4, Sub-rule (3), which were mandatory a suit or an appeal would abate whenever no application for substitution was made within the time limited by law. The time limited by law, it Was argued, was not extended in any way by Section 4, Limitation Act and, therefore, if in the present case no application had been made on or before 12-7-1952, when the time limited by law expired, an abatement of the appeal ensued forthwith and thereafter the applicants could no longer make an application for a simple substitution of the legal representatives, but would have to make an application for setting aside the abatement, as they had in fact done.

In support of his argument the learned Counsel for the respondent referred us to the decision of Panckridge J. in the case of -- 'Johurimull Jugal Kishore v. Kashi Prosad Jhajharia' : AIR1942Cal566 . In my opinion the case relied upon by the learned Counsel is plainly distinguishable, but if it is not distinguishable, we are not prepared to follow it. The facts in that case were that an award was filed and a notice of riling the award was served on 21-11-1941. The period of thirty days prescribed by Article 158, Limitation Act for an application to set aside the award expired on 21-12-1941, which was a Sunday.

On 22nd December, that is to say, the following Monday, an application was made for a judgment upon the award and a judgment was pronounced. Later on the same day, another party appeared and presented a petition for setting aside the award and obtained a direction from the learned Judge that it should be noted as made on that date. Subsequently the point taken was that inasmuch as under Section 17, Arbitration Act, a judgment upon the award would not be pronounced unless the time for making an application for setting aside the award had expired or alternatively, such application having been made, the Court had refused it, the learned Judge had no jurisdiction to pronounce judgment on the award as he had done on 22nd December, inasmuch as the whole of that day was open to the party dissatisfied with the award for making an application to set it aside.

Mr. Justice Panckridge repelled that contention. He held that although by reason of the provisions of Section 4. Limitation Act, it might be open to a party desiring to have the award set aside to make an application on 22nd December, nevertheless that section did not extend the period in cases where the last day of limitation was a day on which the Court was closed and, therefore, since no application for setting aside the award had been made within thirty days which had expired on 21st December, a judgment on the award could rightly be pronounced on 22nd December.

7. It would be noticed that in the case before Panckridge J., before any application was made for setting aside the award, a judgment thereon had already been pronounced. It was only later in the day, apparently after the expiry of the time when petitions are normally presented, that the party desiring to have the award set aside came forward with a petition and had it noted. In those circumstances, one can understand the learned Judge holding that on 22nd December he had rightly taken up the matter for decisionas to whether a judgment on the award should be pronounced or not and since up to that time no application for setting it aside had been made, nor any application having been made, refused, there was nothing to bar him from pronouncing judgment on the award.

The case is thus distinguishable on the fact that a judgment had already been pronounced. But even assuming that the facts are not distinguishable, I would not be prepared to agree with the learned Judge if, in fact, he intended to hold that although Section 4 authorised an application to be made on the day on which the Court first re-opened after having remained closed for some time, where the period of limitation had expired during the time the Court had remained closed, still if some result had followed by reason of the application not having been made within the period prescribed by the Limitation Act that result could no longer be interfered with.

8. In my opinion, to take such a view would be to make the provisions of Section 4, Limitation Act wholly nugatory in most cases.

9. If Section 4 will not save limitation and will not, for purposes of limitation, maintain the 'status quo', it is difficult to understand what purpose it is intended to serve. To take the present case as an illustration, if, as contended by the learned Counsel for the respondent, an abatement took place on 13-7-1952, by reason of no application having been made on or before the lath, it is not intelligible of what benefit S, 4 would be to the applicants, if it did not make an application for substitution made on the 14th a valid application. The whole effect of Section 4, in my view, is indirectly to extend the period of limitation, although the section may not in terms say so. If it does not extend the period for any practical purpose, then I cannot see any utility in the section at all.

It may be said that there are cases where an original application has to be made within a certain period and since in those cases no particular result would follow by reason of some other provision, if the application was not made within the time limited by law, Section 4 would enable the party concerned to make an application on the next following day, if he found the Court closed on the last day. I do not however, think that the operation of Section 4 can be so limited. In terms, the section makes no exception at all and whether or not there is a specific provision somewhere else, barring a remedy or giving rise to any specific result. Some result must always follow by reason of an application not having been made within time wherever a period for making an application is prescribed.

10. In my opinion, the true view is to take the period of limitation prescribed by the Articles in the Limitation Act along with Section 4, as the time limited by law, wherever Section 4 may apply. The time limited by law would, therefore, be the time prescribed by the relevant Article, as extended or enlarged by Section 4, by reason of no Court being available on the day when the period prescribed by the Article expires. To revert to the present case, the provision in Sub-rule (1) of Rule 4 of Order 22 is that where a defendant dies and the right to sue survives, the Court may cause the legal representative of the deceased defendant to be made a party on an application made in that behalf.

Sub-rule (3) of that rule then provides that where within the time limited by law no application is made under Sub-rule (1) the suit shall abate. It is obvious that what Sub-rule (3) con-templates by the expression 'within the time limited by law' is the time limited for making the application mentioned in Sub-rule (1). But it is precisely to the making of that application that Section 4, Limitation Act applies in cases wherethe period prescribed expires on a day on which the Court is closed. It is that application which can properly be made on the next day that the Court is first open.

It seems to me, therefore, to be abundantly clear that, in such a case, the time limited by law for making the application contemplated by Order 22, Rule 4, Sub-rule (1) is the time prescribed by Article 177, Schedule 1 to the Limitation Act, as extended by Section 4 of the same Act, that is to say, as extended up to the day on which a Court is first available, when the period of limitation expires during a time that the Court is closed. In that view of the matter, it appears to me to be perfectly plain that the application in the present case, when made on 14-7-1952, was made within the time limited by law and therefore no question of the appeal having abated under Order 22, Rule 4, Sub-rule (3) arises.

It must follow that the second application made toy the petitioners was misconceived and relief can be given to them on the first application. I accordingly hold that an application for substitution, if made on 14-7-1952, would be within time and since such an application was annexed to the application for setting aside an abate-ment, which was the application in fact made, we can make suitable orders on the actual state of facts disclosed.

11. I accordingly allow the application made on 14-7-1952, in terms of prayers (1), (3) and (4).

12. As I have already stated, the notice of motion was taken out in respect of the application for setting aside the abatement and it was that notice which the respondent came to meet. In those circumstances I think that the respondents are entitled to their costs of this application irrespective of the result of the appeal.

13. There will be an order accordingly.

S.R. Das Gupta, J.

14. I agree.


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