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Badial Alam Vs. Abdul Hakim and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in38Ind.Cas.609
AppellantBadial Alam
RespondentAbdul Hakim and anr.
Excerpt:
limitation act (ix of 1908), schedule i, article 138, applicability of - purchaser in, execution of mortgage-decree, rights of, as against purchaser from mortgagor prior to mortgage--statute of limitation, retrospective effect of. - .....suit is barred by limitation. clearly it is not barred by limitation if article 138 of the present limitation act applies. it is said, however, that the former limitation act applies because the plaintiffs have got a vested right under the provisions of the old code. that is clearly not so. the privy council has laid down that the statute of limitation in force when the suit is brought is not that which was in force when the cause of action accrued. it is quite true that that rule broadly stated has received a qualification in respect of oases where the effect of giving that construction would be to take away the plaintiff's right of suit altogether. but such a case does not arise in the present instance, because the plaintiffs had ample time, whether the old or the new act.....
Judgment:

1. This is an appeal from a decision of the learned Subordinate Judge of Chittagong, dated the 10th May 1915, reversing the decision of the Munsif at Patiya. The suit was brought to recover possession of a plot of land which the plaintiffs alleged they had purchased from a purchaser at a sale in execution of a mortgage-decree. The defendant No. 2 set up a claim by a purchase from a purchaser from the mortgagor prior to the date of the mortgage. That claim has been found to be false. This defendant has, however, been found to be in possession of 10 gundas of land and he has been given a decree for possession of that share. The only point raised in this appeal is that the plaintiffs' suit is barred by limitation. Clearly it is not barred by limitation if Article 138 of the present Limitation Act applies. It is said, however, that the former Limitation Act applies because the plaintiffs have got a vested right under the provisions of the old Code. That is clearly not so. The Privy Council has laid down that the Statute of Limitation in force when the suit is brought is not that which was in force when the cause of action accrued. It is quite true that that rule broadly stated has received a qualification in respect of oases where the effect of giving that construction would be to take away the plaintiff's right of suit altogether. But such a case does not arise in the present instance, because the plaintiffs had ample time, whether the old or the new Act applies, within which they could bring the suit. We think that the learned Judge of the lower Appellate Court rightly applied Article 138 of the present Limitation Act in this case. In that view the plaintiffs' suit was brought within time. The appeal is, therefore, dismissed with costs.


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