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Probodh Chandra Haldar and anr. Vs. Bani Charan Kundu and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1942Cal289
AppellantProbodh Chandra Haldar and anr.
RespondentBani Charan Kundu and anr.
Excerpt:
- .....september 1939. on 19th september 1939, when the claim had become barred, the plaintiffs filed a review application. this application was allowed by the appellate officers and this case was dismissed (for the second time) on 18th june 1940. the present suit was filed on that day. the plaintiffs rely upon section 52, bengal agricultural debtors' act, to save limitation. the relevant words are these:the time during which such proceedings continued and the time during which the person interested in such debt was debarred by any provision of this act from making or instituting the suit shall be excluded. 2. now, the plaintiffs were not debarred from instituting their suit on any day between 13th and 18th september, inclusive. they can, therefore, only succeed if they can show that these.....
Judgment:
ORDER

Henderson, J.

1. This rule has been obtained by the defendants and raises a difficult point of limitation which involves an interpretation of Section 52, Bengal Agricultural Debtors' Act. The suit is to recover money due on an admitted account (Mablakbandi). It is common ground that the last date for filing the suit was 27th February 1939. On 20th February 1939, when there were still six days to go, the plaintiffs applied to a Debt Settlement Board at Chatmohar. A similar application was made by the defendants to a Debt Settlement Board at Malgram on 4th April 1939. The two cases were consolidated in the office of the Board at Malgram on 8th August 1939., An order of dismissal was passed on 12th September 1939. On 19th September 1939, when the claim had become barred, the plaintiffs filed a review application. This application was allowed by the appellate officers and this case was dismissed (for the second time) on 18th June 1940. The present suit was filed on that day. The plaintiffs rely upon Section 52, Bengal Agricultural Debtors' Act, to save limitation. The relevant words are these:

The time during which such proceedings continued and the time during which the person interested in such debt was debarred by any provision of this Act from making or instituting the suit shall be excluded.

2. Now, the plaintiffs were not debarred from instituting their suit on any day between 13th and 18th September, inclusive. They can, therefore, only succeed if they can show that these dates are included in the time during which the proceedings continued. In opposing the rule, Mr. Lahiri contended that the proceedings continued from 20th February 1939, until 18th June 1940, when the application was finally dismissed. In this case the proceedings have been unusually protracted. First of all, there were the ordinary proceedings which culminated in the dismissal of the case. Then there was a review ending in dismissal. Then there was an appeal. As a result the review was restored and the petition was again finally rejected. Now, this interpretation is certainly possible and it is necessary to examine it. Now there is no period of limitation for an application for review under Section 44 of the Act. One extraordinary and apparently mischievous result of this interpretation would be that a creditor, can revive a time-barred debt merely by pushing in review application and then allowing it quietly to be dismissed for default. To get over the difficulty, Mr. Lahiri suggested that the proceedings referred to in Section 52 are bona fide proceedings. In my judgment, it is impossible to read any such qualification into the section. Either the proceedings continued during these crucial days or they did not. In my opinion, this interpretation ought only to be given effect to even if any other interpretation would render the second provision redundant. As a matter of fact, the second provision is wider in its effect than the former. In this connection a reference may be made to Section 35 which in certain circumstances bars proceedings in a Court although there were no proceedings pending before a Board.

3. In my judgment, the section should be strictly construed. The time during which these proceedings continued means any period during which something in connection with the proceedings was going on. It does not include a period during which nothing was pending on the file at all. On this interpretation it makes no difference whether the original proceedings, the review matter, the appeal and the rehearing are to be considered separate proceedings or one continuous proceeding from start to finish. I would, therefore, exclude both the period between the dismissal of the case and the filing of the application for review and the period between the dismissal of the review application and the filing of the appeal. The result is that the rule must be made absolute and the decree of the lower Court is set aside. I, however, make no order as to costs.


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