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Kumud Charan Roy Vs. Sambhu Chandra Ghosh and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in90Ind.Cas.827
AppellantKumud Charan Roy
RespondentSambhu Chandra Ghosh and ors.
Excerpt:
limitation act (ix of 1908), section 3, schedule i, article 11-a - civil procedure, code (act v of 1908), order xxi, rules 100 and 108--execution of decree--sale--possession delivered to auction-purchaser--application for restoration of possession, dismissal of--suit for possession--limitation--appeal--suit discovered to be barred by time--appellate court, duty of. - .....therefore, to consider the other points raised in the appeal.5. the result is that this appeal is allowed, the decree of the lower appellate court set aside and the plaintiff's suit dismissed with costs in all the courts.duval, j.6. i agree.
Judgment:

Suhrawardy, J.

1. In this appeal by the defendant two points have been taken: (1) that the plaintiff's suit is barred by limitation and (2) that the learned Subordinate Judge of the Court of Appeal below has not considered the question raised and decided by the Trial Court with regard to the identity of the land in suit with the jama alleged to have been purchased by the plaintiff.

2. With regard to the first point, the defendant in his written statement took the plea of limitation on the ground that the defendant had been in possession for more than 12 years and also on the ground that the suit was not brought within one year after the dismissal of the claim case. On these pleadings the 4th issue raised in the Trial Court was.--Is the suit barred by the law of estoppel. In deciding that issue the learned Munsif observed as follows: This suit has been brought within one year from the order under Order XXI, Rule 100, C.P.C. He, however, dismissed the plaintiffs' suit upon other grounds one of which was that the plaintiff was out of possession for more than 12 years and also on the ground of special limitation of two years as the landlord had through other tenants kept the plaintiff out of possession for more than that period. On appeal the learned Subordinate Judge considered the question of limitation only with reference to the finding of the lower Court of the plaintiff not being in possession within 12 years of the suit and having come to the conclusion that the plaintiff succeeded in proving his possession within the statutory period and also finding title in favour of the plaintiff decreed the plaintiff's suit. The question of limitation on the ground that the suit was brought more than one year after the decision of the claim case does not appear to have been raised in the Court of Appeal below. But it has been argued before us that we ought to consider this question as it is a pure question of law. We have accordingly gone through the papers and they no doubt show that the present suit is barred by limitation. According to the plaint filed in this case it appears that the defendant took possession through Court of the property in suit as purchaser of the jama in execution of a rent-decree against another person. He obtained delivery of possession through Court on the 3rd May 1918. The plaintiff, therefore, made an application under Order XXI, Rule 100 which was registered as Miscellaneous Case No. 52 of 1918. That application was dismissed on the 23rd December 1918 and the present suit was instituted on the 2nd January 1920.

3. It is argued on behalf of the appellant that under Article 11-A of the Limitation Act the suit ought to have been instituted within one year from the date of dismissal of the plaintiff's application under Order XXI, Rule 100, namely, on or before the 23rd December 1919 and it not having been done so it is barred by limitation. I think this contention ought to prevail. Under Article 11-A of, the Limitation Act a suit has to be brought under Order XXL, Rule 103 within one year from the date of the order upon an application by any person dispossessed of such property in the delivery of possession thereof to the decree-holder or purchaser to establish the right which he claims to the present possession of the property comprised in the order. By a year as we find in the General Clauses Act of 1897, is meant a year according to British Calendar. Under Section 12 of the Limitation Act in computing the period of limitation prescribed for any suit, the day from which such period shall be reckoned shall be excluded; so that the date of the order, namely, the 23rd December 1918 should be excluded and time should be computed from the 2,4th December 1918. The calendar year commences from the 24th December 1918 as the first day of the year and will end on the 23rd December of the following year. The learned Vakil for the respondent, however, argues that as the year was completed on the, midnight of the 23rd December, the following day, namely, the 24th December should be the last day for the institution of the suit and the Court being closed from that date till the 1st January, he was in time in filing the suit on the 2nd January 1920. This argument to my mind is groundless and no authority has been cited in support of it. It is clear that the order having been passed on the 23rd December 1918 a calendar year ended on the 23rd December 1919 on or before which date the suit should have been brought. The 23rd December 1919 was not a close day. It is, however, argued on behalf of the respondent that this point was not raised in any of the Courts below and, therefore, we should not entertain it. I have referred to the observation of the learned Munsif on this point; but as it is a question of limitation which we are bound to take cognizance of under Section 3 of the Limitation Act, I have gone into the facts of the case in determining this question. Section 3 says that every suit instituted after the period of limitation shall be dismissed, although limitation has not been set up as a defence. This suit, according to our judgment was instituted after the period of limitation and, therefore, we are bound to dismiss it.

4. It is next argued that this question involves some consideration of fact, namely, it is possible that the plaintiffs' application was dismissed for default or non-prosecution and, therefore, Article 11-A should not apply. Without deciding whether or not Article 11-A is applicable if the plaintiff's application under Order XXI, Rule 100 was dismissed for default or not I find that the allegations in the plaint are quite explicit on this point. In para. 1 the plaintiff states that on the defendant taking unlawful possession of the property in execution of the decree, the plaintiff filed an application under Order XXI, Rule 100 to recover back his possession which was registered as claim Case No. 52 of 1918, but owing to his misfortune that claim case was rejected in a summary trial. That being so, there is no question of fact involved which may necessitate a remand to the lower Appellate Court. In this view I hold that the suit instituted by the plaintiff was barred by limitation. It is not necessary, therefore, to consider the other points raised in the appeal.

5. The result is that this appeal is allowed, the decree of the lower Appellate Court set aside and the plaintiff's suit dismissed with costs in all the Courts.

Duval, J.

6. I agree.


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