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AnisuddIn Ahmed Vs. Kalipada Roy Chowdhury - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1931Cal785
AppellantAnisuddIn Ahmed
RespondentKalipada Roy Chowdhury
Cases ReferredBai Hemkore v. Masamalli
Excerpt:
- .....of section 4, limitation act, the acknowledgment must be held also to have been made within the period prescribed for the suit. section 19, limitation act, so far as is material runs as follows:where, before the expiration of the period prescribed for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing .... a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.2. it is argued for the petitioner that the words 'prescribed for a suit' must refer to the period prescribed for the suit in the schedule to the limitation act. that seems to me to be the correct contention for in order to find out what the period is which is prescribed for a suit one.....
Judgment:

Mitter, J.

1. This rule was obtained by the defendant and was issued under Section 25, Provincial Small Cause Courts Act, for the revision of the judgment and decree of the Court of Small Causes at Sealdah decreeing the plaintiff's suit. The plea of the defendant was that the suit was barred by the statute of limitation. This plea was negatived by the Small Cause Court Judge who decreed the plaintiff's suit as has already been stated. In order to consider the soundness of the contention raised in this rule by the petitioner it is necessary to give a few facts. The suit was brought by the plaintiff on a hand-note said to have bean executed by the defendant on 30th Chaitra 1331 B. S. The period of limitation prescribed for the suit is three years of the date when the hand-note was executed. On 1st Baisak 1335 B. S., beyond the period [of throe years, there was an acknowledgment by the defendant of his liability under the hand-note and the contention before ma is that as the acknowledgment of the liability was after the expiry of the period of limitation the plaintiff cannot save limitation by such acknowledgment. The Munsif held that as the Court was closed on 30th Chaitra 1334 B. S. and that the suit, if any instituted on the hand-note would not have been barred by the statute of limitation as well on 1st Baisak 1335 B. S. having regard to the provisions of Section 4, Limitation Act, the acknowledgment must be held also to have been made within the period prescribed for the suit. Section 19, Limitation Act, so far as is material runs as follows:

Where, before the expiration of the period prescribed for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing .... a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.

2. It is argued for the petitioner that the words 'prescribed for a suit' must refer to the period prescribed for the suit in the schedule to the Limitation Act. That seems to me to be the correct contention for in order to find out what the period is which is prescribed for a suit one has to look into the schedule to the Limitation Act. It is argued for the opposite party by Mr. Panna Lal Chatterji that the word proscribed for the suit must refer to the period which is prescribed for the suit not merely by Schedule 1 to the Act but by Schedule 1 read with the provisions under Sections 4 to 25 of the Act, and in support of this contention reliance has been placed on a decision of Lal Gopal Mukerji, J. of the Allahabad High Court in the case of Abdul Ghani v. Chiranaji Lal : AIR1927All577 where the learned Judge states that if it was intended that the words 'period prescribed' referred to the 'period prescribed in the schedule alone' adequate words would have been used for that purpose. This decision undoubtedly supports the contention of the opposite party. But I am unable to agree with this contention seeing that Section 4 is a special provision which saves limitation in suits where the last date of limitation falls on a holiday and the reasoning underlying the provisions of Section 4 which are made applicable to suits, appeals or applications is that it is not possible for a litigant to file a suit or an appeal or an application on a date on which the Court is closed. That argument certainly does not apply to the case of an acknowledgment, for an acknowledgment can be made on a Sunday or on days which are dies non. On a true construction of the language of Section 19 of the Act I have no doubt that the words 'period prescribed for a suit' can have reference only to the period prescribed at the end in the schedule. In Section 4 similar language is used. Section 4 of the Act states:

Where the period of limitation prescribed for any suit expires on a day the Court is closed, . .

3. The words 'period prescribed for any suit' it is conceded must refer to the period prescribed at the end in the schedule. Special provision which has been made applicable to suits by reason of the Courts being unable to entertain a suit, an application or an appeal on a day the Court is closed cannot be made applicable to acknowledgment under Section 19 of the Act. It is satisfactory to note that this view has been adopted in a Bombay case by Sir Lawrence Jenkins who was then the Chief Justice of the Bombay High Court and his opinion is entitled to very great weight. In that case, namely, in the case of Bai Hemkore v. Masamalli : AIR1927All577 the learned Chief Justice was dealing precisely with the point which is in controversy in the present rule and it was pointed out that the period referred to in Section 19, Limitation Act, is a period which must be determined by Schedule 2 to the Act and that though the right of suit might have been subsisting on the day by reason of that day being a holiday in the sense that the suit could under the circumstances have been instituted on the particular day that was; not because the period of limitation prescribed for the suit had not expired, but because notwithstanding the expiration of that period, there is a special right under the provisions of Section 5 of the Act, 1877 which corresponds to Section 4 of the present Act to institute a suit on the day on which the Court reopened. Following the view taken by the learned Chief Justice of the Bombay High Court and Aston, J. I hold that this rule must be made absolute and the plaintiff's suit must be dismissed.

4. There will however be no order as to costs in this rule.


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