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Rabindra Nath Dutt Vs. Abdul Ahad and Co. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtKolkata
Decided On
Judge
Reported in(1925)ILR52Cal954
AppellantRabindra Nath Dutt
RespondentAbdul Ahad and Co.
Excerpt:
limitation - period of limitation for suite instituted under order xxxvii of civil procedure code, 1908--limitation act (ix of 1908), article 5, whether applicable--civil procedure code (act v of 1908) sections 121, 128. - .....of rabindra nath dutt, applies for the admission of the plaint under order xxxvii of the code of civil procedure, the suit being one purporting to be laid under order xxxvii of the code of civil procedure.2. the cause of action has arisen on non-payment of principal and interest due on a promissory note executed by the defendant so far back as the 29th july, 1922. the executant of the promissory note undertook to repay the principal with interest at the rate of 12 per cent, per annum on demand. the master, before whom the plaint was presented in the first instance, refused to admit it as a plaint under order xxxvii on the ground that the suit has not been brought within six months from the date when the debt became due and payable and he accordingly held that the plaint would not be.....
Judgment:

Ghose, J.

1. In this matter a point of some novelty has arisen. Mr. P. C. Basu, counsel on behalf of Rabindra Nath Dutt, applies for the admission of the plaint under Order XXXVII of the Code of Civil Procedure, the suit being one purporting to be laid under Order XXXVII of the Code of Civil Procedure.

2. The cause of action has arisen on non-payment of principal and interest due on a promissory note executed by the defendant so far back as the 29th July, 1922. The executant of the promissory note undertook to repay the principal with interest at the rate of 12 per cent, per annum on demand. The Master, before whom the plaint was presented in the first instance, refused to admit it as a plaint under Order XXXVII on the ground that the suit has not been brought within six months from the date when the debt became due and payable and he accordingly held that the plaint would not be admitted. As I understand the matter, the Master raised no objection to the admission of the plaint as a suit brought in the ordinary manner on a negotiable instrument, the period of limitation in respect of which is three years.

3. Mr. Basu urges that the suit should be treated as one under Order XXXVII of the Code of Civil Procedure and he argues in the following manner. He says that under Article 5 of the Limitation Act of 1877, the period of limitation in respect of suits under Chapter 39 of the Code of Civil Procedure, 1882 (which corresponds to Order XXXVII of the present Code of Civil Procedure) was six months from the date on which the debt became due arid payable, but that there has been a material alteration in the language of Article 5 of the present Limitation Act and that the effect of the alteration is that the period of six months prescribed therein is applicable now only to suits instituted under the summary procedure referred to in Section 128(2) (f) of the present Code of Civil Procedure and cannot be made applicabe to suits under Orders XXXVII. In other words, Mr. Basu's contention is that the period of limitation under the old Limitation Act in respect of suits coming within the category of suits referred to under Order XXXVII of the Code has now been done away with and at present there being no other article in the Limitation Act specifically applicable to suits under Order XXXVII, suits under Order XXXVII must now be taken to be covered by the ordinary period of limitation, viz., a period of three years. As I have said the point is of considerable novelty and although the Limitation Act was passed at the same time as the present Code of Civil Procedure and although as far as 1 am aware it has never been suggested up to the present moment that the limitation in respect of suits under Order XXXVII of the Code is other than six months, it is clearly incumbent upon me to examine Mr. Basu's contention having regard to the changes made in the Limitation Act.

4. Section 128 of the Code of Civil Procedure which relates to rules which may be made by the High Courts in respect of matters therein set forth occurs in Part X of the Code, and the first section in that Part, viz., Section 121 enacts that 'the rules in the first schedule shall have effect as if enacted in the body of this Code until annulled or altered in accordance with the provisions of this part.'

5. It would, therefore, seem to follow prima facie that the rules made under Section 128 of the Code of Civil Procedure could only refer to amendments of the first schedule to the Code and in particular to rules in respect of certain matters therein set forth. It would seem to follow further that rules made under Section 128 (2) (f) of the Code of Civil Procedure cannot have reference to suits referred to in Rule (2) of Order XXXVII in respect of which rules for summary procedure have been made by the Legislature itself and in respect of which no rules have been made by the High Courts under the rule-making power vested in them. That being so, in my opinion, subject to what may be urged by the defendant when he appears in this suit, Article 5 of the present Limitation Act cannot refer to suits under Order XXXVII of the Code of Civil Procedure. It seems to me however that it was the intention of the Legislature when they amended Article 5 of the Limitation Act to prescribe a period of limitation of six months to all summary suits but that the intention of the Legislature has not been expressed in clear and apt words in Article 5 of the present Limitation Act with the result that, strictly speaking, and subject to what I hear further in the course of the suit, suits under Order XXXVII are not now governed by Article 5 of the present Limitation Act. I am, therefore, compelled to say that I have no other alternative but to admit this plaint under Order XXXVII of the Code of Civil Procedure. The plaint will therefore be so admitted.

6. I think the matter requires serious consideration by the Legislature and I have just now been informed that the matter is awaiting consideration by the Legislature.

7. The plaintiff must pay his own costs of this application.


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