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HARVARD    LAW    I.IIIkAin 


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-.-  THE 


Cf 


LAW  OF  LIMITATION 

IN  INDIA, 


BT 


CUDDALORE     RAMACHENDRI ER, 

Acting   Head  Assistant  Collector,  Trichinopoly  ; 

Author  op  the  Manual  of  Malabar  Law 

And  thb  Indian  Registration  Act, 

With  Notes. 


i   »   i 


3K<t6ras: 
PRINTED  BY  VEST  AND  COMPANY, 

5,  6,   7  &  8,   MOUNT  ROAD. 


l887.  )    '  "   • 


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APR  17  1909 


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TO 

THE    HONORABLE 

P.    P.    HUTCHINS,    B.L., 

MEMBER  OF  THE   LEGISLATIVE  COUNCIL  OF  MADRAS. 

THIS  VOLUME 

is 
(H8b  hinb  Remission) 

VERY    RESPECTFULLY    DEDICATED. 


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PREFACE. 


-XxX- 


Y  OBJECT  in  publishing  this  book  is  to  place  within 
the  reach  of  the  Judges  and  the  Practitioners  of 
India  the  decisions  of  all  the  High  Courts  in  the 
country  on  the  Law  of  Limitation,  arranged  under 
their  appropriate  Sections  and  Articles.  Wherever  there  was 
a  conflict  in  the  decisions  of  the  Courts  upon  any  point,  I  have 
enumerated  them,  as  I  have  done  in  my  Registration  Act,  with 
notes,  bearing  in  mind  the  direction  of  each  High  Court  to  its 
subordinate  tribunals  to  follow  its  own  decisions,  notwithstanding 
the  decisions  of  the  other  High  Courts  to  the  contrary.  With  a 
view  to  facilitate  reference  to  the  rulings  without  putting  readers 
to  the  necessity  of  referring  to  the  Law  Reports  for  information, 
I  have  stated  briefly  the  facts  of  cases,  many  as  abstracts  and  a 
few  as  extracts,  and  added  any  important  observations  made  by 
Judges  on  questions  of  construction  and  application.  To  render 
the  volume  a  book  of  reference  complete  in  itself,  I  have 
inserted  as  foot-notes  sections  of  the  Civil  Procedure  Code  and 
provisions  of  other  Acts  to  which  reference  has  been  made  in 
some  of  the  sections  and  Articles  of  the  Limitation  Act. 

The  amendments  proposed  by  Bill  No.  23  of  1886,  even  if 
it  becomes  law,  will  in  no  way  detract  from  the  value   of  this 
publication,  for  they   consist  mainly  in  the  repeal  of  Articles . 
171,  171-a  and  172-6  of  the   second  schedule,  and  the  proposed 
alterations  will  be  found  noted  in  their  appropriate  places. 

This  book  would  have  been  published  at  an  earlier  date 
had  it  not  been  for  the  untimely  and  lamented  death,  on  the  5th 
of  January,  1887,  in  my  residence,  at  Madras,  of  my  younger 
brother,  C.  Subbaroya  Iyer,  b.a.,  b.l.,  for  several  years  one  of 
the  Judges  of  the  Sudder  Court  of  Cochin  Circar.  Referring 
to  his  death,  the  Dewan  of  the  State  says: — "My  grief  is 
shared  by  all  his  friends  in  these  parts,  and  almost  all  who 
knew  him  deplore  his  death.  In  him,  the  Circar  has  lost  a 
valued  officer,  and  I  have  lost  a  sincere  friend." 

My  thanks  are  due  to  my  brother,  Mr.  C.  Mahadava  Iyer, 
b.a.,  B.L.,  a  Vakil  of  the  Madras  High  Court,  for  his  having,  in 
addition  to  his  professional  work,  undertaken  to  correct  the 
proof  sheets,  and  for  a  few  valuable  suggestions  as  to  the 
general  arrangement  of  the  contents  of  the  book. 

Madras,  March,  1887.  C.  R. 


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CONTENTS. 

XxX 

Pbsambls. 

^>jls,i?  i. 

PEBLIMINAEY. 

SECTIONS. 

1.— Short  title. 

Extent  of  Act. 

Commencement. 
2.— Repeal  of  Act  IX  of  1871. 

References  to  Act  IX  of  1871. 

Saying  of  titles  already  aoquired. 

Saving  of  Act  IX  of  1872,  Section  25. 

Suite  for  which  period  prescribed  by  this  Act  is  shorter  than  that  pre- 
scribed by  Act  IX  of  1871. 
8. — Interpretation-clause. 


PABT   II. 
LIMITATION  OF  SUITS,  APPEALS  AND  APPLICATIONS. 

4. — Dismissal  of  suits,  Ao.,  instituted,  Ac.,  after  period  of  limitation. 
6. — Proviso  where  Court  is  closed  when  period  expires. 

Proviso  as  to  appeals  and  applications  for  review. 
6. — Special  and  local  laws  of  limitation. 
7. — Legal  disability. 

Double  and  successive  disabilities. 
Disability  of  representative. 
8. — Disability  of  one  joint-creditor. 
9. — Continuous  running  of  time. 

10. — Suits  against  express  trustees  and  their  representatives. 
11. — Suits  on  foreign  contracts. 
Foreign  limitation  law. 


PABT   HI- 
COMPUTATION  OF  PERIOD  OF  LIMITATION. 

12. — Exclusion  of  day  on  which  right  to  sue  accrues. 

Exclusion  in  case  of  appeals  and  certain  applications. 
13. — Exolusion  of  time  of  defendant's  absence  from  British  India. 


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VI  CONTENTS. 

Sections. 

14. — Exclusion  of  time  of  prooeeding  bond  fide  in  Court  without  jurisdiction. 
Like  exclusion  in  case  of  order  under  Civil  Procedure  Code,  Section  20. 
Like  exclusion  in  case  of  application. 
15. — Exclusion  of  time  during  which  commencement  of  suit  is  stayed  by  in- 
junction or  order. 
16. — Exclusion  of  time  during  which  judgment-debtor  is  attempting  to  set 

aside  execution-sale. 
17. — Effect  of  death  before  right  to  sue  accrues. 
18.— Effect  of  fraud. 

19. — Effect  of  acknowledgment  in  writing. 
20. — Effect  of  payment  of  interest  as  such. 
Effect  of  part-payment  of  principal. 
Effect  of  receipt  of  produce  of  mortgage  land. 
21. — One  of  several  joint  contractors,  Ac.,   not  chargeable  by  reason   of 

acknowledgment  or  payment  made  by  another  of  them. 
22. — Effect  of  substituting  or  adding  new  plaintiff  or  defendant. 
Proviso  where  original  plaintiff  dies. 
Proviso  where  original  defendant  dies. 
23. — Continuing  breaches  and  wrongB. 

24. — Suit  for  compensation  for  act  not  actionable  without  special  damage. 
25. — Computation  of  time  mentioned  in  instruments. 


&JLJ&T   IV. 
ACQUISITION  OP  OWNERSHIP  BY  POSSESSION. 

26. — Acquisition  of  right  to  easements. 

27. — Exclusion  in  favor 'of  reversioner  of  servient  tenement. 

28. — Extinguishment  of  right  to  property. 


FIRST  SCHEDULE. 
Enactments  Repealed. 


SECOND  SCHEDULE. 

I. — First  Division,  Suits. 
II. — Second  Division,  Appeals. 
III.— Third  Division,  Applications. 


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INTRODUCTION. 

>oo< 

Regulation  III  of  1793,  section  14,  introduced  the  limi-  old    Regufo- 
tation  of  twelve  years  in  Bengal ;  clanse  2,  section  3,  Regula-   n-J^i 
tion  II  of  1805,  allowed  60  years  for  all  claims  of  Govern-   Regulation 

'  J  proscribed 

ment,  and  clause  4  excluded  from  the  Regulation  relating  twelve  years  for 
'  6  °    suite.  60  yean 

to  limitation,  suits  for  redemption  of  property,  moveable  or  f?Fi<^ovelJdme,1.t 

immoveable.     The  provisions  of  clause  4,  section  3  of  Regu-  SudeiL]?demp" 

lation  II  of  1805,  were  "  provided  further  that  no  length  of 

time  shall  be  considered  to  establish  a  prescriptive  right  of 

property  or  to  bar  the  cognizance  of  a  suit  for  the  recovery 

of  property  in  case  of  mortgage  or  deposit,  wherein  the 

occupants  of  the  land  or  other  property  may  have  acquired 

or  held  possession  thereof  as  mortgagee  or  depositary  only, 

without  any  proprietary  right :   nor  in  any  other  case 

whatever,  wherein  the  possession  of  the  actual  occupant 

or  of  those  from  whom  his  occupancy  may  have  been 

derived  shall  not  have  been  under  a  title  bond  fide  believed 

to  have  conveyed  a  right  of  property  to  the  possessor." 

2.     Clause  4,  section  18,  Regulation  II  of  1802,  of  Madras,  Madras 
prescribed  one  uniform  period  of  twelve  years  for  suits,  prescribed1 
whether  to  recover  possession  of  lands  or  debtn,  but  did  ^riod  of 'twelve 
not  affect  suits  for  redemption  or  claims  on  mortgages  whether^ 
which   were  left  to  be  determined  by  the  laws  of  the  b^did'nofaJl 
country.     Clause  4  of  the   said  Regulation  ran  as  fol-  s^te^o^lsimui 
lows  :— "  The  Courts  of  Adawlut  are  prohibited  from  hear-  °*  mort**»- 
ing,  trying  or  determining  the  merits  of  any  suit  what- 
ever, against  any  person  or  persons,  if  the  cause  of  action 
shall  have  risen  twelve  years  before  any  suit  shall  have 
been  commenced  on  account  of  it,  unless  the  complain- 
ant can  show  by  clear  and  positive  proof  that  he  had 
demanded   the  money  or  matter  in  question,  and  that 
the  defendant  had  admitted  the  truth  of  the  demand,  or 
promised  to  pay  the  money ;  or  that  he  directly  preferred 
his  claim  within  that  period,  for  the  matter  in  dispute  to  a 
court  of  -competent  jurisdiction  or  person  having  authority 


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V1U  INTRODUCTION. 

(whether  local  or  otherwise  for  the  time  being)  to  hear 

such    complaint,   to  try  the   demand,  and   shall  assign 

satisfactory  reasons  to  the  court  why  he  did  not  proceed 

in  the  suit,  or  shall  prove  that  either  from  minority,  or 

other  good  and  sufficient  cause,  he  was  precluded  from 

obtaining  redress.     But  from  this  rule  are  excepted,  all 

claims  founded    on  bonds  which  shall  have  been  in  a 

course  of    payment    by    instalments,  or  of  which    any 

proportion  shall  have  been  paid  within  twelve  years 

previous   to   the   institution  of  the  suit;    and  also  all 

claims  and  mortgages,  the  period  for  rendering  which 

absolute  and  unactionable  is  to  be  determined  by  the  laws 

of  the  country." 

when  the  above       3.     When  the  above  Regulation  was  in  force,  the  twelve 

to^roe^eWe  years'  rule  was  applied  to  mortgagees  not  in  possession, 

appHedtoemort  an<*  *°  *  mortgagor  allowing  time  to  lapse  after  the  debt 

possession!  and  na^  been  discharged  by  the  usufruct  and  mortgagee's 

to^SS^I  %  refusal   to  surrender.     Suit  by  mortgagor  was  held  to 

ch^fe^'debt  date  not  ^TOm  mortgage,  but  from  time  limited  for  re- 

mortSSSs*"*  demption.     The  right  of  redemption  of  a  usufructuary 

refusal  to  sur.  mortgage  was  held  not  affected  by  the  Statute,  and  the 

mortgagee  in  possession,  where  no  time  for  payment  was 

specified,  was  held  not  limited  to  time  in  suing  for  his 

debt.     These  were  the  decisions  of  the  late  Sudder  Court. 

Vide  Sloan's  Code,  page  12. 

4.     In  Mukkani  v.  Manan/1)  the  Madras  -High  Court 
held   that,  prior  to  1859,  there  was  no  limitation  for 
redemption  suits.  • 
Bombay  5.     In  Bombay,  Regulation  V  of  1827,  section  1,  was  law 

i827twasLawof  both  of  Limitation  and  prescription.  It  laid  down  30 
prescription.  years  as  the  period  within  which  a  suit  for  immoveable 
property  might  be  brought.  It  also  provided  that  30 
years'  adverse  possession  gave  the  possessor  of  such  pro- 
perty proprietary  right  except  in  case  of  fraud. 
Allahabad.  6.  In  Dia  Chand  v.  Sarafaraz,<2)  the  Allahabad  High 
Court  have  observed  that  there  was  no  limitation  to  suits 
for  redemption  of  mortgage  of  landed  property  prior  to 
Act  XIV  of  1859. 

(1)  I.  L.  R.,  5  Mad.,  182.      |         (2)  I.  L.  B.,  1  All.,  425. 


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INTRODUCTION.  IX 

7.  In  the  Towns  of  Calcutta,  Madras  and  Bombay,  the  BngUsh  statute 
Law  of  Limitation  in  force  in  1852  was  the  English  Sta-  Town*  of  Oai- 

outta.  Madras 

tute,  21,  Jas.  I.,  o.  16,  and  it  continued  to  be  in  force  till  andBombay 

until  XTV  of 

it  was  repealed.  The  Statute  21,  Jas.  I.,  e.  16,  was  185»  began  to 
intitled;  "An  Act  of  Limitation  of  actions,  and  for 
avoiding  suits  in  law,"  and  the  words  used  in  section  3, 
were  "  that  all  actions  for  account,"  "  all  actions  of  debt 
grounded  upon  any  lending  or  contract  without  specialty," 
Ac.,  should  be  brought  within  six  years  next  after  the 
cause  of  such  actions.  The  Statute  of  James  I.  remained 
in  force  in  the  said  three  Towns  till  the  passing  of  Act 
XIV  of  1859.  Abba  Hajilshmailv.  Abba  Thara.0)  In  Her 
Highness  Buckmaboyee  v.  Lulloobhoy,W  the  Privy  Coun- 
cil recognised  that  the  English  Statute  of  limitations 
extended  to  India  and  applied  to  Hindus  and  Mahomedans 
as  well  as  Europeans,  in  civil  actions,  in  the  Supreme  Court. 

8.  Act  XIV  of  1859  was  passed  on  the  5th  of  May,  AetxiVofiaw 

providing  "  for 

1869,  and  it  was  to  have  operated,  by  section  18,  from  May,  the  limitation  of 

1861,  but  the  operation  was  postponed  to  1st  January,  operate  from 

1862,  by  Act  XI  of  1861,  which  was  passed  on  the  1st  May,   ism. 
1861.     The  preamble  of  the  Act  recited  that  "  it  is  ex- 
pedient to  amend  and  consolidate  the  laws  relating  to  the 
limitation  of  suits,"  and  the  Act  prescribed  the  several 
periods   of  1,  3,  6,  12,  30  and  60  years  for   suits   of  it  prescribed 

.    ,         .      .  '  .       .  .the  several  pe- 

several  descriptions.    One  year  for  suits  for  pre-emption,  rtodaof  i,8,M*» 

t'  ix-  £         j  x       i*  _x_.  •  1.1      »and«0  years 

for  penalties,  for    damages    not    affecting    immoveable  for  suite  of 

-  °  several  descrip- 

property,  for  wages,  and  for  setting  aside  sales  effected  tions. 
in  execution  of  decrees  of  court  and  for  arrears  of 
Revenue  and  for  setting  aside  summary  orders;  three 
years  for  suits  for  money  lent,  for  breaches  of  contract 
unregistered,  for  rents,  for  hire  and  for  recovery  of 
property  comprised  in  possessory  awards ;  six  years  to 
all  suite  not  specially  provided  for,  twelve  years  for  suits 
relating  to  immoveable  property  and  for  specialties 
governed  by  English  Law  and  to  suits  for  legacies.  All 
suits  for  redemption  instituted  from  1st  of  January,  1862, 
were  governed  by  the  limitations  contained  in  clause  15, 
section  1  of  this  Act,  which  provided  for  redemption  of 
(1)  I.  L.  B.,  1  Bom.,  253.  |  (2)  6  Moore  Ind.  App.,  284. 
1-B 


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X  INTRODUCTION. 

moveable  and  immoveable  property  within  30  and  60 

years  respectively,   from  the  time  of  the  mortgage  or 

from  the  date  of  the   acknowledgment  of  the  mortga- 

ed^meto^to  fi>orB **^e-     ^ec.  ^  gave  unlimited  time  to  snits  against 

against  trustees  trnstees  and  their  representatives   for  breach  of  trust. 

for  breach  of  r 

trust,  it  pres-  The  Act  also  provided  for  extension  of  time   in  favor 

oribed  for  an  r 

J^wjonof        of  the   plaintiff  in  the  following  oases.      (1),  written 

of  a  plaintiff  in  acknowledgment  of  liability  to  pay   a  debt  or  legacy 

signed  by  the  defendant,  section  4  ;  (2),  concealed  fraud 

of  the  defendant,  section  9 ;  (3),  legal  disability  of  the 

plaintiff  including  married  woman  in  oases  to  be  decided 

by  English  Law,  minors,  idiots  and  lunatics,  section  XI ; 

(4),  defendant's  absence  from  British  India,  section  XIII ; 

and  (5),  ineffectual  proceedings  of  a  suit  prosecuted  bond 

fide  but  in  a  wrong  court  or  in  a  court  which    had  no 

lt  Act  F  i?1*    jurisdiction,  section  14.     This  Aot  was  purely  an  Act  of 

tation  only.        Limitation  only. 

to'iEnSS*!?1  Section  24  of  the  above  Act  provided  for  the  Act  taking 
and  began  to      effect  throughout  the  Presidencies  of  Bengal,  Madras  and 

operate  in  Pre-  °  ,    « 

•idenoy  Towns.  Bombay,  including  the  Presidency  Towns  and  Straits 
Settlement.  This  Act  superseded  the  Bengal  and  Madras 
Regulations  and  as  it  prescribed  a  shorter  period  of  limi- 
tation, namely,  twelve  years  for  suits  relating  to  immove- 
able property,  while  the  Bombay  Regulation  Y  of  1827, 
laid  down  30  years  as  the  period,  the  Act  was  held  to 
repeal  by  implication  the  Regulation  so  far  as  it  related  to 
limitation.  The  Privy  Council  in  Fattehsangji  v.  Desai 
Kallianraiji/1)  observed  that  the  Regulation,  so  far  as  it 
related  only  to  the  acquisition  of  a  title  by  positive 
prescription,  seemed  to  be  unaffected  by  Act  XIV  of  1859, 
it  did  not  ex-  and  to  stand  unrepealed  in  the  Presidency  of  Bombay. 
rignt.  Act  XIV  of  1859  did  not  extinguish  the  right. 

Act  nc  of  1871,  9  Act  IX  of  1871  repealed  Act  XIV  of  1859,  and  came 
tion  of  "suite  into  force  on  the  1st  of  July,  1871.  The  preamble  recited 
piirposeB"came  that  "  it  is  expedient  to  consolidate  and  amend  the  law 
the°is°JaVn  relating  to  the  limitation  of  suits,  appeals  and  certain 
1    l*  applications  to  courts ,v   Bayley,  J.,  in  Abba  Haji  Ishmail,(*> 

observes :    "  These  words  are  more  comprehensive  than 
(1)  L.  R.,  1  Ind.  App-,  34,  SI.  |         (2)  I.  L.  R.,  1  Born.,  258. 


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AotUVoflM©. 


INTRODUCTION.  XI 

those  need  in  Act  XIV  of  1859,  which,  no  doubt,  is  to  be 
accounted  for  by  the  fact  that,  when  Act  IX  of  1871  was   B»yiej,  j.,  ob- 
passed,  the  Civil  Procedure  Code  was  in  force,  and  the  opTo.  wu^ 
High  Courts  had  been  established.     We  should  therefore  ix  of  lsn  ni 
naturally  expect  to  find  greater  reference  to  the  phraseo-  S^  to  &&&& 
logy  of  the  Civil  Procedure  Code  in  Act  IX  of  1871  than  SSJTtJTiS^1" 
in  Act  XIV  of  1859,  and  so  we  find  reference  to  *  suits,  ftoSStSntn 
appeals  and  applications1  in  the  preamble,  and  again  in 
section  4.    Thus,  again,  the  second  schedule  of  the  Act 
embraces  three  distinct  divisions,  viz,,  suits,  appeals  and 
applications.     The   first  division  contains   150  descrip- 
tions of  suits." 

10.  Act  IX  of  1871  introduced  amendments  suggested  Act  n  of  lan 
by  the  decisions  of  Courts  upon  the  Act  of  1859,  and  the  amendment* 

.  .  suggested  by 

Legislature,  for  the  purpose  of  facilitating  the  application  court's  ded- 
of  the  law,  appended  to  the  Act  three  schedules,  containing  pended  three 
respectively,  the  different    sorts  of  suits,  appeals  and  suits,  appeals 

and  applioa- 

applioations,  together  with   their  respective   periods  of  tions  respec- 

limitation  and  the  points  of  time  from  which  such  periods  litate  the  appiL 

i  cation  of  the 

were  to  run.     Amendments  relating  to  acknowledgments  law. 

and  payments  were  introduced  by  sections  20  and  21,  by 
providing  that,  in  order  to  give  a  new  starting  point, 
acknowledgment  must  be  made  before  the  expiry  of  the 
period  of  limitation,  while  section  4  of  Act  XI V  of  1859  did 
not  require  such  acknowledgment  to  be  made  within  the 
statutory  period.  Part  V  of  schedule  2  introduced  a  limi- 
tation of  two  years  for  suits  for  compensation  for  losing 
or  injuring  goods,  Ac.,  and  for  saits  for  the  recovery  of  a 
wife  and  for  the  restitution  of  conjugal  rights. 

11.  This  Statute  (IX  of  1871),  enacted  for  the  first  time  let  ix  of  im9 
two  sets  of  provisions,  whioh  are  in  their  nature  distinct,   distinct  sete'of 
One  related  to  the  limitation  of  suits,  and  prescribed  the  ofSKaSonT16 
limitation  of  time  for  bringing  suits  after  the  right  to  sue  prescription. 
had  arisen,  while  the  other  set  related  to  the  manner  of 
acquiring  title  and  rights  by  possession  and  enjoyment. 

The  latter  provisions  were  contained  in  Part  IV  of  the 

Act,  and  were  introduced  under  the  heading  "  acquisition 

of  ownership  by  possession."     The  object  of  the  Statute  The  object  of 

was  to  make  more  easy  the  establishment  of  rights  by  to  make  mora* 


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Xii  INTRODUCTION. 

easy  the  estab-    allowing  an  enjoyment  of  20  years  if  exercised  under  the 

liahment  of  ,.T^  .,     ,  ,      ,,      \    L    A        .  .Al_      x 

rights  by  so  conditions  prescribed  by  the  Act,  to  give,  without  more,  a 
mentunder  the  title  to  easements.  The  Lords  of  the  Privy  Council  in 
cribed  by\Ee  Maharanee  Rajroop  Eoer  v.  Syed  Abdool  Hossein,<l> 
observe  :  "  The  Statute  is  remedial,  and  is  neither  prohibi- 
Aet  does  not  tory  nor  exhaustive.  A  man  may  acquire  a  title  under 
titles  or  modes  it  who  has  no  other  right  at  all,  but  it  does  not  exclude 

of  acquiring  0  .   . 

easements.  or  interfere  with  other  titles  and  modes  of  acquiring 
This  Act  forthe  easements."  This  Act  for  the  first  time  provided  that 
ded  for  extino-  the  right  to  land  or  hereditary  office  shall  be  extinguish- 

tion of  right  at       _        °  _  m     _  J  .    _    #  "      . 

the  expiry  of    ed  at  the  expiry  of  the  statutory  period  for  a  suit  for 

the  statutory  , .  „ 

period.  possession  thereof. 

state  of  the  12.     Up  to  the  introduction  of  Act  IX  of  1871,  which  for 

upTto  the  intn>  the  first  time,  by  section  29,  provided  for  the  extinction  of 
ixonsn?  Act  right  to  land  after  the  statutory  period,  and  which  ex- 
pressly repealed  the  Bombay  Regulation  V  of  1827,  the 
Btate  of  the  law  in  Bombay  was  this, — a  person,  who, 
without  title  had  been  in  adverse  possession  of  any  real 
property  for  twelve  years  could,  under  Act  XIV  of  1859, 
resist  any  suit  brought  to  recover  it  from  him ;  but  no 
such  possession  short  of  30  years  could  create  a  title  in 
Twelve  years'    his  favor  under  Regulation  V  of  1827,  section  1.     The 

adverse  posses-  .,»..,  i      * ,         *  5 .  •«        ,,  ... 

sion  did  not  ex-  proprietor  s  title  therefore  did  not  become  extinguished 

tinguish  right.      ,  ,  ° 

by  twelve  years  adverse  possession  of  another,  though  his 
right  of  suit  against  that  other  became  barred  by  Act 
XIY  of  1859.     If  such  person  happened  to  lose  his  posses- 
sion and  the  proprietor  to  regain  it,  the  former,  unless  he 
sued  within  six  months  for  possession  simply  on  the  ground 
of  improper  dispossession,  must  fail  in  any  suit  to  eject,  the 
in  Bengal  do-    latter  having  no  title  to  stand  upon.     But  in  Bengal,  the 
such  possession  Privy  Council  held  that  twelve  years'  adverse  possession 
thetftie  also,      not  only  barred  the  remedy,  but  extinguished  the  title  be- 
cause there  was  no  such  Regulation  prevailing  there  as  in 
Bombay.      See  Rambhat  Agnihotri  v.  The  Collector  of 
Poona/2)  which  was  instituted  in  1872  to  recover  lands 
which  originally  belonged  to  H.  H.  Scindia,  and  which  was 
proved  to  have  been  in  plaintiff's  family  actually  and 
constructively  from  1841  to  1863,  when,  by  mistake,  it 
(1)  Suth.  P.  C.  Vol.  Ill,  p.  816.  |       (2)  L  L.  R.,  1  Bom.,  692. 


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INTRODUCTION.  xili 

passed  into  the  possession  of  Scindia  and  remained  with 
His  Highness  till  1872,  when  it  passed  into  the  possession 
of  the  British  Government  hy  exchange. 

13.     Section  1  provided  against  the  application  of  the  Postponement 
provisions  contained  in  sections  2  and  3,  or  in  Parts  II  and  visions  of  sees. 
III  to  suits  instituted  before  the  1st  of  April,  1873.     This  n  and  rfi,  of 
postponement,  which  was  intended  to  give  timely  notice  to  1st  April, 
of  its  provisions,  led  to  conflicting   decisions  as  to  the  oonnioting 
application   of  the  new  Act  after  1st  of  April,  1873.     In 
Chinnasami   Iyengar   v.   Gopalacharya,*1)   plaintiff  sued 
on  the  26th  January,  1874,  on  a  Pro-note  of  16th  Janu- 
ary,   1871,    payable   on   demand.     The   claim   had   not 
been    barred  under    Act    XIV  of  1859,  on    the  1st   of  Decisions  of 
April,    1873,    when  Act    IX  of  1871  came  into    force.   courtunpSed 
The  Madras  High  Court  held  that  the  period  of  limitation   was  not  apnii- 
ought  to  be  computed  as  it  would  have  been  under  Act  brought  after 
XIV  of  1859,  from  the  date  of  the  note  and  not  from  the  if  founded  on 
time  of  demand  under  Article  72  of  Act  IX  of  1871.     This  accrued  before 
implied  the  principle  that  Act  IX  of  1871,  was  not  applica- 
ble to  suits  although  instituted  since  the  1st  of  April,  1873, 
if  founded  upon  causes  of  action  which  accrued  before 
that  date.     Dissenting  from  that   decision   the  Bombay 
High  Court  in  Abdul  Karim  v.  Manji  Hans  raj,  W  held  that 
Act  IX  of  1871  was  from  the  1st  of  April,  1873,  applicable 
to  suits  subsequently  brought  upon  causes  of  action  which 
had  accrued  previous  to  that  date,  and  which  had  not  been 
barred  under  the  previous  enactment,  as  well  as  to  suits 
upon  causes  of  action  which  accrued  afterwards. 

14.    In  Teagaroya  Mudaly  v.  Mariappa  Pillay/8)  plaintiff  Subsequent 
sued  in  September,  1874,  for  money  secured  on  a  registered  sions  in  suits 
bond  of  August,  1867,  repayable  on  the  10th  of  April,  Act^v  bad 
1868.     The  plaintiff  pleaded  payment  of  interest  by  de-  swept  away, 
fendant  in  November,  1868,  and  April,  1870.     The  Lower 
Court  rejected  the  suit  as  barred  by  Act  XIV  of  1859, 
holding  that  payment  made  before  Act  IX  of  1871  could 
not  be  treated  as  payment  under  section  21  of  the  Act, 
which  had  no  retrospective  effect.     The  High   Court, 

(1)  7  M.  H.  C.  R.,  802.  |        (2)  I.  L.  R.,  1  Bom.,  804. 

(8)  I.  L.  R.,  1  Mad.,  264. 


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XIV  INTRODUCTION. 

referring  to  Chinnasami  Iyengar/1)  held  in  March,  1877, 
that  the   payments  were  sufficient,  as  the  Act  did  not 
expressly  require  that  such  should  have  been  made  after 
it  began  to  operate,  and  that  it  was  a  mode  of  extending 
the  period  under  that  Act.     In  Madhavan  v.  Achuda,(2> 
plaintiff   sued    in    November,    1875,    on  a   Pro-note   of 
November,  1871,  payable  on  demand.     The  District  Judge 
rejected  the  suit  as  barred.     The  suit  was  instituted  after 
1st  April,  1873,  when  Act  IX  of  1871  had  come  into  full 
operation,  and  the  old  law   had  been  altogether  swept 
away,  and  the  only  guide  as  to  the  survival  of  the  remedy 
by  action  was  section  4  of  Act  IX  of  1871,  and  its  ap- 
pendix, schedule  2,  which  allowed  to  a  Pro-note  on  demand 
three  years'  time  counted  from  the  date  of  demand. 
Act  xv  of  1877       15.     Act  IX  of  1871  was  superseded  by  Act  XV  of  1877, 
nPof  1871  was   which  came  into  force  from  the  first  day  of  October,  1877. 
the*  1st  day  of   A  few  alterations  were  made  by  Act  XII  of  1879,  and  VIII 
'       "      of  1880,  which  received  the  assent  of  the  Governor-Gene- 
ral on  the  29th  July,  1879,  and  12th  March,  1880,  respec- 
tively.    The  former  substituted  a  new  Article  for  161, 
xn  of  1879  and   added  a  few  words  to  Articles  166  and  171,  inserted  newly 
made  a  few  ai-   Articles  171 -a,  171-6  and  171-c,  and  substituted  a  few  words 
terati0M-  in  Article  179.     The  latter  Act,  VIII  of  1880,  simply  cor- 

rected a  clerical  error  in  column  3  of  Article  171-a. 
Three  statutes  16.  So  there  have  been  three  Statutes  of  Limitations  in 
in  26  years.  26  years,  each  containing  provisions  differing  considerably 
from  those  of  its  predecessor.  The  general  terms  used  in 
Act  xiv  of  i860  Act  XIV  of  1859  led  to  much  uncertainty  and  litigation, 
certainty  and  and  in  order  to  avoid  such  uncertainty,  Act  IX  of  1871 
avow  which  Act  was  enacted,  providing  for  defined  periods  from  which 
passed.  time  should  run,  and  the  Act  of  1877  is  only  a  reproduc- 

tion of  its  predecessor,  but  with  certain  alterations  and 
improvements  suggested  by  the  decisions  of  courts.  Act 
IX  of  1871  contained  no  provision  similar  to  that  of  the 
2nd  clause  of  section  2  of  Act  XV  of  1877  which  dis- 
tinctly provides  against  any  title  acquired  or  any  right 
to  sue  barred  under  Aot  IX  of  1871,  or  its  predecessor 
being  affected  or  revived. 

(1)  7  M.  H.  C.  R.,  392.      I       (2)  I.  L.  B.,  1  Mad.,  302. 


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INTRODUCTION.  .  X* 

17.  Even  before  Act  XV  of  1877  began  to  operate,  the  Claim  once  bar- 

rod  cannot  do 
courts,  looking  to  the  great  confusion  that  would  arise  revived. 

from  holding  that  rights  which  were  supposed  to  be 

barred  were  again  revived  by  the  new  provisions  of  the 

new  Statute,  held  that  a  claim  once  barred  could  not  be 

revived  by  a  change  in  the  Law  of  Limitations. 

18.  Up  to  the  introduction  of  Act  IX  of  1871,  Statute  Act  lXof  isn 

,  for  the  first  time 

of  Limitations  was  supposed  to  bar  the  remedy,  but  not  to  provided  that 
extinguish  the  right.     By  section  29  of  Act  IX  of  1871,  it  riod  extin- 

♦      goiabod  right  to 

was  provided  for  the  first  time  that  at  the  expiration  of  any  property, 
the  statutory  period  for  a  suit  for  possession  of  land  or 
hereditary  office,  the  right  thereto  shall  be  extinguished. 
Section  28  of  Act  XV  of  1877  extinguished  such  right  to 
any  property.  Gunga  Gobind  Mundnl  v.  The  Collector 
of  the  24-Pergunnah8,<1>  first  established  the  principle 
that  where  a  suit  for  possession  of  land  is  barred  by  a 
Statute  of  Limitation,  the  right  is  extinct. 

19.  After  several  conflicting  decisions  on  the  question  Limitation  Ac* 
whether  the  Limitation  Acts  extinguished  the  debt,  the  bat  do  not  ox. 
Calcutta  High  Court  in  Mohesh  Lai  v.  Busunt  Kumaree,<*)  debt, 
finally  held,  concurring  in  the  decisions  of  the  Madras  High 

Court  in  Yalia  Tamburatti  v.  Vira  Ray  an,  W  and  Madha- 
van  t>.  Achuda,<*)  that  the  Limitation  Act  did  not  extin- 
guish the  debt.  In  Nursing  Doyal  v.  Hurryhur  Shaha,<6) 
Pontifex,  J.,  observes  :  "  We  are  of  opinion  that  neither 
the  Limitation  Act  of  1871,  nor  that  of  1877,  extinguishes 
a  debt.  These  Acts  only  bar  or  discharge  the  remedy. 
This  we  think  is  clear  from  the  language  of  the  Acts,  and 
particularly  from  sections  12  and  29  of  the  Act  of  1871, 
and  sections  11  and  28  of  the  Act  of  1877." 

20.  "  The  difference  between  these  Acts  and  the  Bng-  Difference  be- 
liah  Limitation  Law  is,  that  in  India,  Limitation  need  not  dian  and  Bng- 
be  set  up  as  a  defence  (section  4  of  the  Act  of  1871  and  Acta.  °° 
section  4  of  the  Act  of  1877)  while  in  England  the  defen- 
dant must  expressly  claim  the  operation  of  the  Statute. 

Section  60  of  the  Contract  Act,  which  was  passed  after 

(1)  11  Moore,  I.  A.,  846.         I      (8)  I.  L.  R.,  1  Mad.,  228. 

(2)  I.  L.  R.,  6  Calc,  840.       |      (4)  I.  £.  R.,  1  Mad.,  801. 

(6)  I.  L.  R.,  6  Calc,  897. 


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XVI 


INTRODUCTION. 


The  Statute  if 
an  Act  of  Li- 
mitation and 
prescription. 


Act  V  of  1881 
repealed  defini- 
tion of  Base- 
ment and  sec- 
tions 26  and  27 
of  the  Limita- 
tion Act  in  the 
Territories  of 
Madras,  the 
Central  Pro- 
vinces and ' 
Ooorg. 


Seasons  why 
the  Legislature 
passed  the  Sta- 
tute of  Limita- 
tions. 


the  Limitation  Act  of  1871,  also  shows  that  the  debt  is  not 
extinguished,  but  may  be  insisted  on  for  certain  purposes ; 
so  likewise,  if  the  creditor  had  a  lien  on  the  goods  of  his 
debtor  on  a  general  account,  he  would  be  entitled  to  hold 
the  goods  for  a  debt,  the  recovery  of  which  was  barred 
by  the  Limitation  Act.  And  probably  it  would  be  held 
that  an  executor  would  be  allowed  to  retain  out  of  a 
legacy  a  debt  owing  by  the  legatee  to  the  testator,  though 
its  recovery  was  barred  by  the  Act." 

*21.  The  Statutes  of  Limitations  in  this  country  have 
been  not  only  Statutes  regulating  the  practice  of  the 
forum  and  Statutes  affecting  the  right,  but  have  also 
become  Statutes  of  prescription.  Such  was  the  Law  of 
Limitation  up  to  1st  of  July,  1882,  when  Act  V  of  1882, 
the  Indian  Easements'  Act  which  received  the  assent  of 
the  Governor-General  on  the  17th  of  February,  1882, 
began  to  operate.. 

22.  Its  operation  being  restricted  to  the  Territories 
respectively  administered  by  the  Governor  of  Madras  in 
Council,  and  the  Chief  Commissioners  of  the  Central 
Provinces  and  Coorg,  and  by  section  3,  it  repealing  sec- 
tions 26  and  27,  and  the  definition  of  easement  contained 
in  the  Limitation  Act,  and  enjoining  that  all  references 
in  any  Act  or  Regulation  to  the  said  sections,  or  to  sections 
27  and  28  of  Act  IX  of  1871,  shall,  in  the  Territories  to 
which  the  Act  extends,  be  read  as  made  to  sections  15  and 
16  of  the  Indian  Easements'  Act,  the  Statute  of  Limita- 
tions in  the  said  Territories  has  become  purely  an  Act  of 
Limitation.  The  rules  of  prescription  applicable  to 
easements  which  formed  a  part  of  the  Law  of  Limitation 
have  now  to  be  found  for  such  Territories  in  the  Indian 
Easements'  Act. 

23.  The  Statutes  of  Limitations  are  Laws  of  Peace  and 
Justice :  when  property  has  been  so  long  in  the  possession 
of  a  family  that  it  has  passed  to  the  children  and  grand- 
children of  those  who  first  acquired  it,  and  they,  uncon- 
scious of  any  defect  of  title,  have  formed  their  habits  and 
plans  of  life  according  to  the  income  that  the  property 
produces,  it  would  be  cruel  to  deprive  them  of  it.     The 


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IflTBODTTCTION.  XVU 

members  of  tlie  family  from  which  it  came  (never  having 
enjoyed  it)  suffer  bat  little  from  its  loss.  After  a  great 
lapse  of  time,  it  is  impossible  to  get  at  truth,  so  as  to  do 
•justice  upon  any  case.  Ton  have  some  documents,  bnt 
you  may  not  have  all  that  relate  to  the  title,  and  those  m 
which  are  lost  might  have  explained  or  perhaps  done 
away  entirely  the  effect  of  those*which  remain.  Although 
some  documents  may  be  preserved,  the  witnesses  neces- 
sary to  make  the  account  of  the  transaction  complete  and 
for  a  decision,  cannot.  White  v.  Paruther  (1.  Knap.  p. 
227)  cited  in  Norton's  Topics  of  Jurisprudence,  page  36. 

24.  The  Statute  of  Limitations  protects  persons  who,  observations  of 
having  paid  their  debts,  would  be  liable  to  be  called  on  to  case  decided  i» 
pay  them  a  second  time,  in  consequence  of  the  loss  of  # 
vouchers.     In  Adnam  r.  Earl  of  Sandwich  (2.  Q.  B.  Div. 

489)  Field,  J.,  observes  :  "  The  legitimate  object  of  all 
Statutes  of  Limitation  is  no  doubt  to  quiet  long  continued 
possession,  but  they  all  rest  upon  the  broad  and  intelligi- 
ble principle  that  persons  who  have  at  some  anterior  time 
been  rightfully  entitled  to  land  or  other  property  or  money, 
have,  by  default  and  neglect  on  their  part  to  assert  their 
rights,  slept  upon  them  for  so  long  a  time  as  to  render  it 
inequitable  that  they  should  be  entitled  to  disturb  a 
lengthened  enjoyment  or  immunity  to  which  they  have 
in  some  sense  been  tacit  parties.'9 

25.  Mr.  Justice  Story  has  remarked  on  the  Statute  of  Mr.  Justice 
Limitations  that  "  it  was  intended  to  be  a  Statute  of  repose,  mwb. 

It  is  a  wise  and  beneficial  law,  not  designed  merely  to 
raise  a  presumption  of  payment  of  a  just  debt  from  lapse 
of  time,  but  to  afford  security  against  stale  demand  after 
the  true  state  of  the  transaction  may  have  been  forgotten, 
or  be  incapable  of  explanation  by  reason  of  the  death  or 
removal  of  the  witnesses.1'     Statutes  of  Limitations  are  in  observation  of 
their  nature  strict  and  inflexible  enactments.     The  object  cii.   nVJ 
of  the  Legislature  in  passing  them  is  to  quiet  long  posses- 
sion and  to  extinguish  stale  demands.     Such  legislation 
has  been  advisedly  adopted  in   India  as  it  has  been  in 
this  country. 
1-c 

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xvm 


INTRODUCTION. 


Parties  to  a  con- 
tract  cannot,  by 
agreement, 
avoid  the  effect 
of  the  Law  of 
Limitation. 


Interpretation 
of  Statutes. 
When  "must" 
and  "shall" 


26.  The  Indian  Law  of  Limitation  imposes  upon  the 
courts  an  obligation  to  dismiss  all  suite,  appeals  and 
applications  made  after  the  period  of  limitation  as  pre- 
scribed in  the  schedules,  although  limitation  has  not  been  - 
set  up  as  a  defence.  Peacock,  0.  J.,  in  Krishna  Kamal 
Singh  v.  Hiru  Sirdar/1)  observes :  "  A  man  may  bind  him- 
self not  to  execute  a  decree  of  court,  or  he  may  bind 
himself  not  to  execute  a  decree  of  court  within  a  certain 
period,  but  he  cannot,  by  binding  himself  not  to  execute 
the  decree  for  a  certain  period,  add  to  the  time  which  the 
law  allows  him  to  execute  it.  If  a  man  haying  a  cause  of 
action  against  another  to  recover  immoveable  property,  or 
to  recover  money,  or  to  recover  damages  for  a  trespass 
upon  his  land,  or  for  an  assault,  should  say  to  that  person 
4 1  will  not  sue  you  for  20  years,'  he  would  not  acquire  a 
right  to  sue  after  the  period  of  limitation  fixed  by  law. 
If  he  binds  himself  not  to  sue  within  a  stated  period,  and 
does  not  intend  to  give  up  his  right  to  sue  at  all,  he  must 
take  care  not  to  bind  himself  beyond  the  time  .within 
which  the  Law  of  Limitation  allows  him  to  sue.  So,  in 
the  case  of  a  decree,  if  a  man  binds  himself  not  to  execute 
a  decree  within  a  certain  period,  he  must  take  care,  if  he 
wish  to  execute  the  decree  at  all,  not  to  bind  himself  not 
to  execute  the  decree  for  a  longer  period  than  that  within 
which  the  law  would  allow  him  to  execute  it."  In  East 
India  Company  v.  Oditchurn  Paul/2)  the  Lords  of  the  Privy 
Counoil  have  observed,  "  there  might  be  an  agreement 
that  in  consideration  of  an  inquiry  into  the  merits  of  a 
disputed  claim,  advantage  should  not  be  taken  of  the 
Statute  in  respect  of  the  time  taken  in  the  inquiry,  and  an 
action  might  be  brought  for  breach  of  such  agreement ; 
but  if  to  an*  action  for  the  original  cause  of  action  the 
Statute  of  Limitation  is  pleaded,  proof  being  given  that  the 
action  did  clearly  accrue  more  than  six  years  before  the 
commencement  of  the  suit,  the  defendant,  notwithstanding 
any  agreement  to  inquire,  is  entitled  to  judgment." 

27    In  Delhi  and  London  Bank  Limited  v.  Orchard/3) 

„      (1)  4  Ben.,  L.  B.,  105,  P.  B.  |         (2)  5  Moore,  I.  A.,  44. 
(3)  I.  L.  R.,  8  Calc,  47. 


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INTRODUCTION.  X« 

the  Privy  Council  observe  that  in  interpreting  Statutes,  may  be  sobsti- 

*  r  tuted  for  the 

the  words  "must'*  and  "shall"  may,  in  some  cases,  be  word  "may." 
snbstituted  for  the  word  "  may,"  but  only  for  the  pur- 
pose of  giving  -  effect  to  the  intention  of  the  Legislature. 
In  the  absence  of  proof  of  such  intention,  the  word  "  may"  . 
should  be  taken  as  used  in  its  natural,  i.e.,  in  a  permissive, 
*and  not  in  an  obligatory  sense.     The  Privy  Council  in  Ordinary  rule* 
Luchmee  Buksh  Boy  v.  Bunjeet  Bam  Panday/1)  observe :  tion  mutt  pre- 
"  Statutes  of  Limitation,  like  all  others,  ought  to  receive 
such  a  construction  as  the  language  in  its  plain  meaning 
"imports,"  and   "in  construing  these  Statutes  the  or- 
dinary rules  of  interpretation  must  prevail." 

28.  The  Limitation  Act  is  a  disabling  Act,  and  no  court  Language  of 

.      .      , .«    ,   .  .    .  i  ,    .  i    tbe  Act  should 

is  justified  in  straining  its  language  beyond  its  natural  not  be  strained. 
meaning  in  order  to  take  away  from  any  one  the  rights 
which,  but  for  it,  he  would  possess.     There  is  little  in  the 
general  framing  of  the  Act  to  throw  light  upon  particular      # 
provisions."    Bobarts  v.  Barrison.W 

29.  Innes,  J.,  in  Kunohi  v.  Seshagiri,(8)  observes :  "The  should  be  so 

construed  as  to 

right  to  execute  a  decree  has  been  much  curtailed  by  the  prevent  defeat 
*  of  bondjuu  en- 

provisions  of  section  230  of  the  Civil  Procedure  Code,  and  deavoursof  ore- 

*  ditorsto  exe- 

the  provisions  of  the  Limitation  Act  should  be  construed  cute  decrees. 

as  far  as  possible  so  as  to  prevent  the  defeat  of  bond  fide 
endeavours  to  secure  the  fruits  of  a  decree  once  obtained. 
In  cases  of  doubt  an  Act  of  Limitation  ought  to  be  con-  should  be  con- 
strued in  the  manner  most  favorable  to  the  person  whose  favorably  in 
right  is  the  subject  of  the  limitation.      Lallubhai  v.  °      ° 
Naran.<*>  In  Adnam  v.  Earl  of  Sandwhich,<*>  Field,  J., 
observes,  as  the  effect  of  the  Statute  3  and  4,  Wm.  IV, 
C.  27,  which  is  now  relied  upon  by  the  plaintiff,  is  to 
divest  the  estate  of  the.  rightful  owner  and  convey  it  to 
the  wrong-doer  without  compensation  to  the  former,  to 
hold  that  such  a  transfer  takes  place  in  cases  where  the 
rightful  owner  has  been  guilty  of  no  neglect  or  default, 
would  work  such  an  injustice  to  him  as  to  induce  us  to 
resort  to  any  reasonable  construction  of  the  Statute  which 


8 


1)  13,  Ben.  L.  R.,  182.       I    (3)  I.  L.  R.,  5  Mad.,  141. 
1)  LLB.,7  Calc.,  338.     |    (4)  I.  L.  R.,  6  Bom.,  784. 
(5)  2  Q.  B.  Div.,  480. 


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XX  INTRODUCTION. 

should  avoid  so  unjust  a  result.  And  we  think  that  the 
language  of  the  Statute  is  fairly  open  to  such  a  construc- 
tion." 
observ^ionBof  30.  In  Abley  v.  Dale  (11  C.  B.  378,  see  p.  391) 
Jervis,  C.  J.,  in  delivering  judgment  in  a  case  turning  on 
the  construction  of  a  Statute,  said  :  "  If  the  precise  words 
are  plain  and  unambiguous  in  our  judgment,  we  are  bound 
to  construe  them  in  their  ordinary  sense,  even  though  it 
does  lead,  in  our  view  of  the  case,  to  an  absurdity  or 
manifest  injustice.  Words  may  be  modified  or  varied 
where  their  import  is  doubtful  or  obscure.  But  we 
assume  the  functions  of  legislators  when  we  depart  from 
the  ordinary  meaning  of  the  precise  words  used,  merely 
because  we  see,  or  fancy  we  see,  an  absurdity  or  manifest 
injustice  from  an  adherence  to  their  literal  meaning." 
Abba  Haji  Ishmail  v.  Abba  Thara.<l> 
What  statutes  "31.  Statutes  limiting  rights  and  interests  are  not  to  be 
the  Sovereign,  construed  to  embrace  the  Sovereign  or  the  Government, 
unless  the  same  be  expressly  named  or  intended  by  neces- 
sary implication.  (Kent,  Lecture  20,  p.  507.)  In  England, 
the  Crown  is  not  bound  by  Statutes  of  Limitation,  unless 
named.  ( Willberforce,  p.  38.)  In  Ganpat  Putaya  v.  the 
Collector  of  Kanara/2)  the  question  was  whether. Crown 
judgment-debt  was  entitled  to  precedence.  West,  J., 
observes :  "  It  is  a  universal  rule  that  prerogative  and  the 
advantages  it  affords  cannot  be  taken  away  except  by  the 
consent  of  the  Crown  embodied  in  a  Statute.  This  rule  of 
interpretation  is  well  established,  and  applies  not  only  to 
the  Statutes  passed  by  the  British,  but  also  to  the  Acts  of 
the  Indian  Legislature  framed  with  constant  reference  to 
the  rules  recognized  in  England.  And  the  rule,  as  applied 
to  the  present  case,  is  not  an  unreasonable  one."  In  the 
case  of  The  Secretary  of  State  in  Council  of  India  v.  The 
Bombay  Landing  and  Shipping  Company/5)  a  Crown  debt 
was  held  to  be  entitled  to  the  same  precedence  in  execu- 
tion as  a  like  judgment  in  England  in  the  absence  of  a 
statutory  enactment  to  the  contrary. 

U)  I.  L.  B.,  1  Bom.,  268.        1  (2)  I.  L.  B.,  1  Bom.,  7. 

(8)  5,  Bom.  H.  C.  Bep.,  28  Q.  C.  J. 


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INTRODUCTION.  Xxi 

•  • 

32.  In  Shaikh  Omed  Ali  v.  Nidhee  Bam/1)  Conch,  C.  whether  nin*. 
J.,  in  July,  1874,  observed,  with  reference  to  the  illustra-  empiify  the 
tion  of  section  102  of  Act  I  of  1872,  "  the  Illustrations  law  or  eon- 
are  only  intended  to  assist  in  construing  the  language  meaning  of  the 
of  the  Act."     In   Peerun   v.  Field/2)  with  reference   to  •eotoon 

the  illustration  (a)  under  section  27  of  the  Criminal  Pro- 
cedure Code  of  1872,  which  relates  to  jurisdiction,  Phear, 
J.,  observes :  "  Now,  under  the  words  of  this  section  alone,  it 
would  be  impossible  to  hold  that  an  offence  which  was 
committed  locally  in  the  neighbourhood  of  Allahabad, 
and  unquestionably  far  outside  of  the  District  of  Howrah, 
could  be  entertained  by  the  Magistrate  of  the  District  of 
Howrah.     Bat  there  is  a  certain  enlargement  of  the  words 
of  this  section  applicable  to  the  case  which  is  now  before 
us,  effected  by  the  Illustration  (a),  which  is  appended  to 
the  section.     This  illustration  is  the  first  of  several  illus-  it  has  been  ob- 
trations  appended  to  the  section,  and  may  be  reasonably  illustration  (a) 
taken  as  a  rider  to  the  first  paragraph  of  the  section  itself,  the  o.  p.  c.  is 
This  illustration  is  plainly  larger  than  the  first  paragraph   Sian anyenact. 
or  any  other  enacting  portion  of  the  section  itself,  aud  we  t&SeecUonitseif 
ought  not  therefore  to  carry  it  further  than  its  own  words  &%£ 'carried0* 
go.     It  is  directed  to  meet  a  particular  difficulty,  which  own^ordsgo!* 
is  very  analogous  to,  but  not,  strictly  speaking,'  compre- 
hended within  those  covered  by  the  general  description  of 
the  section."     In  Kylas  v.  Puddo/3)  Garth,  C.  J.,  observes,  observations  of 
that  although  the  illustrations  may  serve  to  exemplify  ' 

the  meaning  of  the  law,  they  'ought  never  to  be  allowed 
to  control  the  plain  meaning  of  the  section  itself,  and  cer- 
tainly they  ought  not  to  do  so  when  the  effect  would-be 
to  curtail  a  right  which  the  section  in  its  ordinary  sense 
would  confer. 

33.  In  Dubey  Sahai  v.  Oaneshi,  Lai/4)  Stuart,  C.  J.,  observations  of 
observes  :  "  But  I  confess   I  have  not  derived  much  assis-  * 
tance  from  Act  IX  of  1871 .    The  sections  of  that  Act  which 

bear  on  £he  subject  are  sections  4  and  5,  and  appended  to 
section  4  are  two  illustrations,  the  latter  of  which  (b)  is 
in  the  following  terms  : — *  An  appeal  presented  after  the 

(1)  22  W.  R.,  867.  I  (3)  8  C.  L.  R.,  277,  288. 

(2)  21  W.  R.,  Gr.  R.,  67.       |  (4)  1.  L.  R.,  1  All.,  34  &  36. 


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XXli  INTRODUCTION. 

• 

prescribed  period  is  admitted  and  registered.  The  appeal 
shall,  nevertheless,  he  dismissed.'  This  appears  to  meet 
the  present  case,  showing  clearly,  as  it  does,  that,  in  the 
opinion  of  the  person  who  prepared  it,  such  a  preliminary 
illustration*  do  objection  as  the  present  might  be  entertained.     Bat  it  is 

not  in  legal  ., 

strictness  form  a  mere  illustration,  and  not  binding  as  law,  and  I  can  find 

apart  of  the  '  ©  > 

Acts  and  are     no  direct  authority  for  it  in  either  of  the  sections  referred 

not  absolutely  " 

binding  on  the  to.     In  Nanak  Ram  v*  Mehin  Lai/1)  Stuyt,  C.  J.,  observes : 
*  "These  illustrations,  although    attached    to,  do  not   in 

legal  strictness  form  part  of  the  Acts,  and  are  not  abso- 
lutely binding  on  the  courts.     They  merely  go  to  show  the 
intention  of  the  framers  of  the  acts,   and  in  that  and  in 
other  respects  they   may   be  useful,  provided   they  are 
correct.     In  this  country,  where  the  administration  of  the 
law  is  for  the  most  part  conducted  by  persons  who  are  not 
only  not  professional  Lawyers,  but  who  have  had  no  legal 
education  or  training  in  any  proper  or  rational  sense  of 
the  term,  the  Legislature  acts  with  wisdom  and  salutary 
consideration  for  the  interests  of  justice  by  putting  into 
the  hands  of  judicial  officers  appliances,  such  as  the  illus- 
trations in  question,  for  their  guidance  and  direction  in 
Pleaders  and     the  performance  of  their  duties.     But,  for  myself,  I  can 
courts  regard      truly  say  I  have  never  experienced  their  utility,  and  I 
more  than  the  fear  they  sometimes  mislead,  and  I  observe  they  are  more 
Act  iteeif.  regarded  in  the  Subordinate  Courts  in  these  provinces,  and 

even  by  the  Pleaders  of  this  High  Court,  than  is  the 
paramount  language  of  the  Act  itself,  of  which,  however, 
as  I  have  remarked,  they  strictly  speaking,  form  no  part." 
For  the  High         34     ".To  be  of  real  service  to  those  for  whose  assistance 
country  iiins-     these  illustrations  are  intended,  they  ought  to  be  pellu- 
oniv  not  requir-  cidly  clear  in  their  phraseology,  and,  if  possible,  I  had 
frequently  the    almost  said  infallibly,  sound  in  their  law.     But  for  the 
barrassmen?."      purposes  of  the  High  Courts  of  this  country  these  illus- 
trations are  not  only  not  required  in  any  sense,  but  they 
are  frequently  the  cause  of  embarrassment,  andj[  would 
infinitely  prefer  to  have  the  bare  and  simple  language  of 
the  Act  itself,  without  any  appendages  of  the  kind.    I  am 
afraid,  too,  that  they  are  open  to  the  objection  of  being 
(1)  I.  L.  B.,  1  All.,  487  A  496. 


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INTRODUCTION.  XX1U 

opposed  to  the  canons  of  construction  which  prevail  in 

the  English  Courts  for  the  interpretation  of   Statutes. 

Thus  it  has  been  ruled  in  England,  that   '  the  intention 

of  the  Legislature  must  be  ascertained  from  the  words 

a  Statute,  and  not  from  any  general  inferences  to  be  drawn 

from  the  nature  of  the  objects  dealt  with  by  the  Statute.' 

Fordyce  t>.  Bridges,  (1,  H.  L.  Cas.  1 ;  S.  C.  11  Jur.  157) ; 

and  *  the  court  knows  nothing  of  the  intention  of  an  Act, 

except  from  the  words  in  which  it  is  expressed  applied  to 

the  facts  existing  at  the  time.'    Logan  v.  Courtown  (Earl) 

(13  Beav,  22 ;  S.  C.  20,  L.  J.  Chano,347)  ;  the  language  of  Language  of  a 

a  Statute  taken  in  its  plain  ordinary  sense,  and  not  its  in  its  plain 

policy  or  supposed  intention,  is  the  safer  guide  in  con-  andnoTits"* 

struing  the  enactments' — Philpott  v.  St.  Georges'  Hospital  Sos^iSention 

(6  H.  L.  Cas.  338 ;  S.  C.  3,  Jur.  N.  S.  1269.)     In  Reg.  t>.  jJLu&  "afer 

RahimatW     West,  J.,  observes:    "The  illustrations  to  observations  of 

the  Penal   Code   rank  as  cases    decided  upon  its   pro-  illustration  to 

visions  by  the  highest  authority.     But  as  every  authority 

may  sometimes  err,  we  are  justified  in  asking  whether 

this  may  have  happened  in  the  present  instances."     The  Indian  Legisia- 

Indian  Legislature  appear  to  consider  illustrations  as  parts  pear  to  consider 

of  the  enactments  themselves,  and  this  is  to  be  presumed  part  of  the  en- 

from  the  fact  of  the  schedule  of  Act  11  of  1882  repealing 

the  first  illustration  of  section  12  of  Act  1  of  1877. 

35.  Beg  v.  Dorabii,(2>  the  court  held  that  an  Act  of  Should  not  be 

*  construed  re- 

Limitation  being  a  Law  of  Procedure  governs  all  proceed-  trospectiveiy. 

ings  to  which  its  terms  are  applicable  from  the  moment 

of  its  enactment,  except  so  far  as  its  operation  is  expressly 

excluded  or  postponed.      In   Khusalbhai  v.   Kabhai,<8>    Observations  of 

Melville,  J. 

Melville,  J.,  observes :  "  The  above  general  rule  must  admit 
of  the  qualification  that,  when  the  retrospective  applica- 
tion of  a  Statute  of  Limitation  would  destroy  vested 
rights  or  inflict  such  hardship  or  injustice  as  oould  not 
have  been  within  the  contemplation  of  the  Legislature, 
then  the  Statute  is  not,  any  more  than  any  other  law, 
to  be  construed  retrospectively." 

36.  In  a  suit  brought  on  the  12th  March,  1880,  on  a  a.  h.  held  wai- 

ver before  IX  of 

(1)  I.  L.  B.  1  Bom.,  147.     |        (2)  11  Bom.,  O.  Hep.,  117.  rSo^Uv^ 

(S)  I.  L.  B.,  6  Bom.,  2ft. 


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XXIV  INTRODUCTION. 

registered  bond  dated  24th  May,  1866,  which  provided 
that  in  default  of  payment  of  any  instalment,  the  whole 
amount  should  be  due,  the  first  default  was  made  on 
the  28th  June,  1866.  No  payment  was  made  after  Act 
IX  of  1871  came  into  force.  It  was  held  that  limitation 
began  to  run  from  first  default,  and  that  no  waiver  before 
Act  IX  of  1871  came  into  force  could  affect  the  suit  on 
such  a  bond :  Ahmed  AH  t>.  Hafiza  Bibi.W 
Limitation  Acts       37,     The  Limitation  Acts  do  not  explain  or  define  the 

ao  not  define  * 

"to1?0™"01*  words  "  immoveable  property,"  "  moveable  property,"  and 
'  "jovfftbie  pro-  «  interest  in  immoveable  property" ;  sections  5  and  6  of  the 
•interest  in        General  Clauses  Act    I  of  1868,  state  what  immoveable 

immoveable 

property."  property  shall  include  and  moveable  property  shall  mean. 
The  term  "  any  interest  in  immoveable  property"  occurs 
in  Article  144,  and  what  it  is  has  to  be  determined  with 
reference  to  the  subject  in  dispute  in  each  case.  This  is 
very  important,  because  if  the  subject-matter  of  a  suit  is 
immoveable  property  or  any  interest  in  immoveable  pro- 
perty it  will  have  twelve  years  under  Artiole  144  But  if 
it  be  moveable  property  it  will  have  only  six  years  under 
Article  120,  in  the  absence,  in  either  case,  of  any  special 
provision  in  the  Act.  With  reference  to  the  decision  of 
the  Privy  Council  holding  that  Todagaras  Hak  was  im- 
moveable property,  and  the  decisions  of  the  Bombay  High 
Court  holding  that  right  to  the  hereditary  office  of  Joshi, 
and  claim  to  an  annual  cash  allowance  granted  to  a 
Hindu  Tern  pie,  were  immoveable  property,  the  Legislature, 
by  its  subsequent  more  fully  developed  legislation  (Act 
IX  of  1871)  assigned  the  twelve  years'  limit  to  suits  for 
hereditary  office  (Article  124)  for  periodically  recurring 
right  (Article  131),  and  Haks,  and  Malikanas.  (Article 
132).  The  decisions  which  induced  the  Legislature  to 
class  such  cases  with  suits  for  real  property  will  not  be 
out  of  place  here,  and  will  help  the  disposal  of  the  question 
whether  or  not  the  subject-matter  of  any  suit  is  real 
property. 
Todagaras  Hak  38.  The  Privy  Council  in  the  Todagaras  case,<*>  would 
hereditary  appear  to  have  approved  of  the  decisions  of  the  Bombay 

a? taS^SuS  (1)  I.  L.  R.,  3  All.,  614.  |  (2)  L.  E.,  I.  A.,  34, 


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INTRODUCTION.  *xf 

High  Court  in  Krishnabhat  v.  Kapabaht,(i>  and  Bal-   K'SJSiiSrfSj 
vantrao  v.   Purshotam,**)  in  which  right  to  the  here-  of  Act  xrv  cS 

•  •  1869 

ditary  office  of  Joshi   was   held  iramoveable  property. 
Their  Lordships  observed  that  the  rule  laid  down  by 
Westropp,  C.  J.,  for  the  interpretation  of  Act  XIV  of 
1859,  section  1,  clanse  12,  is  shortly  this,  viz.,  that  inas- 
much as  the  term  "  immoveable  property,"  is  not  denned 
by  the  Act,  it  must,  when  the  question  concerns  the  rights 
of  Hindus,  be  taken  to  include  whatever  the  Hindu  Law 
classes  as  immoveable,  although  not  such  in  the  ordinary 
acceptation  of  the  word.     To  the  application  of  this  rule 
within  proper  limits,  their  Lordships  see  no  objection. 
The  question  must  in  every  case  be  whether  the  subject 
of  the  suit  is  in  the  nature  of  immoveable  property,  or  of 
an  interest  in  immoveable  property,   and  if  its  nature  and 
quality  can  only  be  determined  by  Hindu  Law  and  usage,   Hindu  Law 
the  Hindu  Law  may  properly  be  invoked  for  that  pur-   bfLv^lTto 
pose.  Thus,  in  the  two  cases  on  which  the  appellant  relies,  Sji%>ilSj2E 
Hindu  texts  were  legitimately  used  to  show  that  in  the  ter  of  a  suit  is 
contemplation  of  Hindu  Law,    hereditary  offices  in  a  "*  prope  y' 
Hindu  community,  incapable  of  being  held  by  any  person, 
not  a  Hindu,  wq§e  of  the  nature  of  immoveables." 

39.  The  Privy  Council,  while  holding  independently   p.  c.  held  im- 
of  Hindu  law,  that  the  right  to  a  Todagaras  Hak  was  an  ™0^omp£ 
interest  in  "  immoveable  property"  within  the  meaning  "e™  b^reaf* 
of  Act  XIV  of  1859,  ruled  that  the  determination  of  the  property  ac- 
question  depended  upon  general  construction  to  be  given  SSah^aw  and 
to  the  term   "immoveable  property"  and   "interest  in  P*^"*** 
immoveable  property"  as  used  by  the  Indian  Legislature, 

and  that  the  term  "  immoveable  property"  comprehends 
certainly  all  that  would  be  real  property  according  to 
English  Law  and  possibly  more.  They  further  observe 
that  in  some  foreign  systems  of  law  in  which  the  techi- 
nical  division  of  property  is  into  moveables  and  immove- 
ables, as  e.*<7-,  the  Civil  Code  of  France,  many  things 
which  the  Law  of  England  would  class  as  incorporeal 
hereditaments  fall  within  the  latter  category." 

40.  In  the  Collector  of  Thana  t\  Hari  Sitaram,<3>  the  Cash  allowance 

question  was  .whether  a  claim  to  annual  cash  allowance  £taduTempie 

granted  by  a  Hindu  Sovereign  to  a  Hindu  Temple  was  ™*  ^j^."1" 

of  the  nature  of  immoveable  property  or  of  an  interest  moveable  pro- 

perty. 


(1)  6  Bom.  H.  0.  R.,  A.  C.  J.,  137.    |  (2)  9  Bom.  H.  C.  R., ! 
(3)  I.  L.  R.,  6  Bom.,  546. 
1-D 


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XtVl  INTRODUCTION. 

therein.  The  facts  were,  that  the  Peshwa,  by  a  Saonad 
of  1790,  granted  to  a  Hindu  Tempi*  an  annual  sum  of 
Rs.  350  in  cash,  out  of  certain  extra  assessments,  levied  to 
meet  local  charges,  and  candies  of  rice  out  of  aoae  extoa 
assessment  in  kind  collected  on  lands.  The  'Collector  of 
Than  a  stopped  the  allowances  in  1859,  when  the  plain- 
tiffs, in  1871,  claimed  to  have  the  right  established  to  the 
Observations  of  benefit  of  the  above  grant.  Westropp,  C.  J.,  observes : 
westropp,  c.  J.  <t  Looking  to  tlie  facfc  tbat  tlie  in(iian  Legislature,  which 

passed  Act  XIV  of  1859,  has  not  given  any  explanation 

or  definition  in  that  Act  as  to  the  scope  of  the  phrase 

'  immoveable  property,'  bnt  left   suitors  to  their  former 

ideas  on  tbat  subject,  it  would  be  very  hard  upon  them 

to  draw  the  line  very  tightly  for  tliey  had  no  guifa 

furnished  to  them  which  could  have  led  them  to  suppose 

that  "  immoveable  property"  according  to  the  Act  meant 

anything  less  than  what  they  had  previously  known  as 

such." 

i*nd  includes        41.     In  Jee  Jagrani  Bibi  v.  Ganeshi,^  which  was  asuit 

trees.  for  B{x  mangoe  trees,  the  Lower  Appellate  Court  refected 

the  suit  on  the  gvound  that  the  plaintiff  oouid  not,  hj 

twelve  years'  adverse  possession,  acquky  *  title  to  trees 

which,  not  being  land},  section  29  of  Act  IX  of  1671  was 

not  applicable.    It  was  held  that  land  oompi'ehevds  wfcftt 

it  covers  and  would  include  immoveable  property   as 

recognized  and  defined  in  section  2  of  Act  I  of  1868. 

Debt  charge         42.     In  Jineswar  Dass  v.  Maha  Beer  Singh,<2)  plaintiff 

SropSS^^an  Bued  *°  realize  money  due  upon  a  mortgage  deed  by  the 

interest  in  im-    saie  0f  the  mortgaged  lands.    It  was  held  that  the  clam 

perty."  was  in  substance  a  suit  for  the  recovery  of  immoveable 

property  or  an  interest  in  immoveable  property  within 

the  meaning  of  clause  12,  section  1,  Act  XIV  of  1859. 

Review  of  the         43.     Up  *°  tne  l8^  <*ay  of  January,  1862,  no  length  of 

the  limitation    **m6  Dan*ed  suits  *  or  redemption  of  property,  moveable  or 

Acts  bearing     immoveable  (clause  4,  section  3,  Regulation  II  of  1805  of 

on  suits  for  re-    _>  .        ,     v         .  '  _  _      '         f     .  ■  ,rt~~ 

demption.  Bengal ;  clause  4,  section  18,  Regulation  II  of  1802  of 

ActxiVQfitw.  Madras.)  Redemption  suits  instituted  after  that  date 
were  governed  by  clause  15,  sectional  of  Act  XIV  of  1859, 
which  provided  for  redemption  of  moveable  property 
within  30  years,  and  immoveable  property  within  60  years 
from  the  time  of  the  mortgage.  If,  in  the  meantime,  the 
mortgagee  or  some  person  claiming  under  him  had  ac- 

(1)  I.  L.  R.,  3  All.,  435.         |        (2)  I.  L.  B.,  1  Calc,  163. 

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INTRODUCTION. 


xxvH 


bftwleclfea  in  writing  signed  by  liim,  the  mortgagor's 
title  op  his  right  to  redeem,  the  mortgagor  had  60  years  from 
the  date  of  such  acknowledgment.  With  reference  to  this 
provision  of  the  Act  it  was  contended  in  Luchmee  Buksh 
Boy  v.  Bnnjeet  Ram  Panday,0)  which  was  a  Privy  Council 
case,  that  a  limitation  which  ran  from  the  time  of  the 
mortgage  could  not  apply  to  a  usufructuary  mortgage  in 
which  the  possession  was  consistent  with  the  original 
intention  of  the  parties  until  the  mortgage  debt  was  paid 
off.  Their  Lordships  observe  :  "  Legislature  has  enacted 
this  limitation  in  the  most  general  terms,  and  in  language 
sufficiently  large  to  embrace  every  kind  of  mortgage. 
There  can  be  no  doubt  it  was  deliberately  done,  and  that 
the  provision  found  in  the  4th  clause  of  the  3rd  section  of 
Regulation  II  of  1805,  which  excluded  cases  of  mortgages 
or  deposit  from  the  Regulations  relating  to  limitation,  was 
designedly  set  aside,  a  different  policy  prevailing  with 
tfcoftft  by  whom  the  recent  Act  was  passed.  Their  Lord- 
ships  therefore  think  that  this  mortgage  is  clearly  within 
Act  XIV  of  1859." 

44.  In  Vanneri  Purushothaman  Nambudri  v.  Paka- 
nattil  Kjiigh  Menavan,^2)  the  plaintiff  sued  to  recover  land 
alleged  to  have  been  mortgaged  in  1760,  stipulating  that 
the  produce  should  extinguish  interest.  The  Lower  Appel- 
late Court  rejected  the  suit  on  the  ground  that  cause  6f 
action  had  arisen  more  than  twelve  years  before  the  passing 
of  the  Regulation  II  of  1802,  and  that  the  exception  as  to 
mortgages  did  not  apply  to  this  case.  The  High  Court 
observe :  "  The  possession  of  the  mortgagee  for  10,000 
years  upon  such  a  transaction  as  the  present  would  be  per- 
fectly consistent  with  the  continuance  of  the  relation  of 
mortgagor  and  mortgagee,  because  the  contract  simply 
amounts  to  this :  "  I  lend  the  money,  and  you  the  land.  If 
either  of  us  wants  that  which  he  has  lent,  he  shall  restore 
that  which  was  lent  to  him."  It  is  quite  obvious  that  no 
opportunity  and  necessity  for  interposing,  that  is  no  cause 
of  action  accrued,  until  something  was  done  to  render 
the  friendly  possession  hostile.*'  This  case  was  not  decid- 
ed under  Act  XIV  of  1859,  as  the  suit  was  filed  in  1861. 

45.  In  cases  where  the  contract  of  mortgage  was  en- 
joyment of  the  property  by  the  mortgagee  for  a  term  fixed, 
it  was  held  that  the  mortgagor  should  not  redeem  the 


Legislature  has 
enacted  this 
limitation  to 
embraoe    every 
kind  of  mort- 
gage. 


Madras  High 
Court  held  suit 
to  redeem  a 
mortgage 
twelve  yean 
before  Beg.  II 
of  1808  not  bar- 
red. 


Case?  where 
mortgagor  held 
not  entitled  to 
redeem  before 
the  term. 


(1)  13  B.  L.  E.,  177. 


(2)  2  M.  H.  0.  R.,  382. 


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Xxviii  INTRODUCTION, 

land  nor  discharge  the  debt  until  the  expiry  of  the  term. 
Sri  Rajah  Setrucherla  Ramabadura  Raju  Bahadur/1)  In 
Malabar  Otti  and  Kanom  mortgages  which  entitle  the 
holder  thereof  to  possession  for  twelve  years  from  the  date 
of  the  mortgage,  cannot  be  redeemed  until  it  has  expired, 
and  to  such  stipulation  it  was  held  that  effect  should  be 
given.  Keshava  v.  Keshava^) 
SSon1©?  let"  ^'  ^c^  ^  of ,1871,  like  its  predecessor,  made  the  date 
xnr  of  1668  was  of  mortgage  the  starting  point,  but  by  Article  148,  modi- 

modified  by  Act    n    j  ?      ,v  •   •  x       ru      !•  -x"L«  !.•  il 

ix  of  1871.  ned  only  the  provision  as  to  the  time  within  which 
acknowledgment  of  mortgagor's  title  should  have  been 
made  to  entitle  him  to  a  new  period.  The  modification 
was  that  the  acknowledgment  in  writing  of  the  mortga- 
gor's title  or  right  of  redemption,  which  gave  a  new 
period  of  limitation,  should  be  made  within  the  period  of 
limitation  originally  prescribed,  and  reckoned  from  the 
date  of  the  mortgage,  and  this  alteration  was  made  rather 
.to  remove  ambiguity  in  the  construction  of  the  words 
"in  the  meantime"  used  in  clause  15,  section  1  of  the 
former  enactment,  than  to  give  full  effect  to  section  29  of 
Act  IX  of  1871 ,  which,  for  the  first  time,  provided  for  the 
extinguishment  of  right  to  land  at  the  expiration  of  the 
prescribed  period  ;  under  both  enactments  an  acknowledg- 
ment by  the  mortgagee  or  some  person  claiming  under 
him  of  the  title  of  the  mortgagor  made  in  writing  to  a 
third  party  was  held  a  sufficient  acknowledgment  to  give 
a  fresh  period  of  limitation. 
Change  made  47.  Act  IX  of  1871  was  repealed  by  Act  XV  of  1877, 
llwf1*  XY  ot  which  came  into  force  on  the  1st  day  of  October,  1877, 
Article  145  required  redemption  of  moveables  within  30 
years  from  the  date  of  pledge.  Article  145  provides  for 
redemption  of  immoveable  property  within  60  years  from 
the  time  that  the  right  to  redeem  accrues.  Under  Article 
147,  a  mortgagee's  suit  for  foreclosure  or  sale  should  be 
instituted  within  60  years  from  the  time  that  the  mort- 
gage debt  becomes  due.  Article  135  allows  twelve  years  to 
a  mortgagee's  suit  in  the  Mof ussil  for  possession  of  immo- 
veable property  mortgaged  from  the  time  that  the  right 
of  mortgagee's  possession  determined,  while  Article  146 
gives  to  the  like  suits  instituted  in  courts  established  by 
a  Royal  Charter,  30  years  from  the  date  of  the  last  pay- 
ment of  any  part  of  the  principal  or  interest.    An  acknow- 

(1)  X.  L.  E.,  2  Mad.,  314.       |      (2)  I.  L.  R.,  2  Mad.,  44. 

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1NTR0DTJCTI0H. 


XXIX 


ledgment  satisfying  the  conditions  of  section  19  of 
the  Act  gives  to  the  above  suite  a  new  period  of  limita- 
tion from  the  date  of  the  acknowledgment  which  is  to 
be  in  writing  "  signed  by  the  party  against  whom  snch 
property  or  right  is  claimed  or  by  some  person  through 
whom  he  derives  title  or  liability."  The  terms  of  this  en- 
actment regarding  mortgages  are  considered  more  equit- 
able. The  following  Table  will  exhibit  in  one  view  the 
different  provisions  in  the  three  enactments  regarding 
the  nature  of  acknowledgment  of  a  mortgagor's  title  or 
right  to  redeem. 


11 


Act  XIV  of 
18o9T  Section 
1,  Clause  15 


Act  IX  of  1871 
came  into 

force  on  the 
1st  July,  187L 

Article  148. 


Act  XV  of  1877  came  Into  force  on  the 

1st  October,  1877,    Article  14S 

and  Section  19. 


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xxx  nrTRODFcnoif. 

No  projuton         4g.    Neither  Act  XIV  of  1859,  nor  IX  of  18*1,  provide* 

for  aait  for  tore-  '  . 

flo\ho  Acts**  *ar  8n^  ^7  a  mortgagee  for  foreclosure  or  sale,  for  which 
i8N«idi87L      Article  147  of  the  last  enactment  XV  of  1877  contains 
t         distinct  provision. 

49.  Section  4  of  the  Act  XIV  of  1859,  which  corres- 
ponds to  section  19,  does  not  require  admissidns  to  be 
made  within  the  prescribed  period,  and  therefore  the 
question  in  redemption  suits  was  whether  the  acknow- 
ledgment of  the  mortgagor's  title  must  have  been  made 
before  the  expiration  of  the  period  of  limitation. 

The  words  "in       50.     In    Vasudevan    Nambudri    v.    Mussa    Kuttr.W 

tbe  meantime" 

inciAusei5,Beo-  Madras  High  Court  held  that  the  words  "  in  the  mean- 

xrv  of  i860,     time"  used  in  clause  15,  section  1  of  Act  XIV  of  1859, 

M.  h.  to  mean  implied  that  an  acknowledgment  of  a  mortgagor's  title  or 

nutation  and     right  to  redeem  must  be  given  before  and  not  after  the 

not  the  time  °  °  a 

between  mort-  expiry  of  the  period  of  limitation,  and  that  the  words 
could  not  import  the  time  between  the  creation  of  a 
mortgage,  and  the  bringing  of  the  action  ;  but  the  Allaha- 
bad High  Court  which  had  adopted  the  same  view  in  May, 
1871,  in  Mahomed  Abdool  Buzzah  v.  Syud  Asif  AH  Sha,<*> 
subsequently  held  in  Daia  Chand  v.  Sarfraz  Ali,<3)  that  an 
acknowledgment  made  in  1841,  in  a  certain  settlement 
record,  was  sufficient  to  satisfy  the  requirement  of  the 
clause  in  Article  148,  schedule  2,  Act  IX  of  1871,  modi- 
fying the  provisions  of  clause  15,  section  1,  Act  XIV  of 
1859,  and  that  inasmuch  as  before  the  latter  enactment 
there  was  no  limitation  to  suits  for  redemption  of  mort- 
gage of  landed  property,  it  was  not  necessary  to  enquire 
and  ascertain  when  the  mortgage  acknowledged  in  1841 
was  actually  made.  Even  after  this  decision,  the  Madras 
High  Court  followed  their  own  in  Mukkani  v.  Manan,*4) 
which  was  a  suit  to  redeem  a  mortgage  of  1761,  on  the 
strength  of  an  acknowledgment  made  in  1839.  The 
High  Court  observe,  that  as  section  18  of  Act  XIV  of 
1859  allowed  two  years'  time  for  parties  who  relied  on  the 
old  rule  of  limitation  to  institute  their  suits,  any  suit 
brought  between  1862  and  1871,  after  60  years  from  the 

(1)  6  M.  H.  0.  R.,  138.  |      (3)  1  I.  L.  R.,  All.,  425. 

(2)  3  N.-W.  P.  H.  0.  R.,  119.    |      (4)  I.  L.  R.,  5  Mad.,  182. 


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IXTBODCCTIOK. 

date  <rf  the  mortgage  or  on  fcfce  strength  .of  An  Acknow- 
ledgment not  made  within  60  years  from  the  date  of 
the  mortgage  would  have  been  unquestionably  barred,  and 
that  aeitirer  Aot  IX  of  1871,  nor  Act  XY  of  1877,  was 
designed  to  revive  amy  right  which  had  become  previ- 
ously jbarred.  It  has  been  further  observed  that  the  term 
"  the  period  prescribed"  used  in  those  Acts  refers  to  the 
period  prescribed  by  the  Act  which  governs  the  suit,  and 
not  the  period  prescribed  by  the  law  which  existed  at  the 
date  of  the  acknowledgment. 

51.  As  to  whether  Article  132  applies  to  enforcement  Jtppttcatkm  <rf 
©f  personal  remedies  on  mortgage  bonds,  simple  or  usufruc-  ii7. 
tuaiy,  against  the  persons  of  mortgagors,  the  decisions  of 
the  High  Courts  are  conflicting.  Equally  so  are  the 
decisions  on  the  question  whether  Article  132  applies  to 
suits  to  enforce  lien  on  real  property  secured  by  an  instru- 
ment of  hypothecation  or  whether  it  is  intended  that  such 
suits  should  have  the  extended  period  of -60  years  provided 
for  "by  Article  147  of  Act  XV  of  1877.  (See  Notes  under 
Articles  132  and  147.) 

"52.  1  shall  now  proceed  to  refer  shortly  to  the  sections  nw&mm  +t* 
and  Articles  which  bare  appeared  to  the  High  Courts  to  dered  by  tfc» 
work  hardship  and  to  require,  consequently ,  modification,  require  modi* 

53.  The  2nd  clause  of  section  5  allows  to  the  courts  a  sections,  claw* 
discretionary  power  to  admit  any  appeal,  or  any  application  admitJnjr^p" 
for  review,  after  time.  The  Calcutta  High  Court,  holding  Kttona  forPS" 
that  the  terms  of  the  section  do  not  admit  of  the  same  ew  *^*" 
indulgence  .feeing  shown  to  an  applicant  for   leave   to 

appeal  as  a  pauper,  observe  that  it  is  strange  that  the 
indulgence  should  not  be  shown  to  him  jvhile  ha  may 
apply  for  a  review  of  judgment  with  the  same  indulgence 
as  to  delay  in  making  the  application  as  a  person  who  is 
not  a  pauper.    {See  Note  T,  under  section  5,  p.  35.) 

54,  Section  13  does  not  provide  for  the  case  of  joint-  Section  is.  Ex. 

.       .  .  .  ,     elusion  of  time 

contractors  of  whom  one  may  be   absent  from  British  of  defendant's 
India  After  the  accrual  of  the  cause  of  action.     In  such  a  British  indi». 
case,  a  creditor  has  to  choose  between  remedy  against  an 
insolvent  debtor,  and  having  his  debt  barred.    A  judgment 
obtained  against  one  of  several  joint- contractors  bars  2nd 


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XXXll  INTRODUCTION. 

suit  against  any  of  the  others.  Garth,  C.  J.,  observes, 
that  the  rule  leads  to  hardship  when  one  of  several  joint- 
contractors  is  absent  beyond  seas,  and  that  it  has  been 
remedied  in  England  by  Statute.  He  says  :  "  This  is  an 
"  injustice  which  the  Legislature,  if  they  so  pleased,  could 
"  easily  remedy."  (See  Note  L,  under  section  13,  p. 
93,  94.) 

SSion  If*  tfme  *****  Section  15  does  not  apply  to  decrees,  the  enforce. 
SSSInSient  ment  of  which  may  have  been  stayed  by  injunction.  The 
J£8injunct5md  word  "  8aft"  does  Bofc  include  an  application,  and  when 
or  order.  execution  of  a  decree  is  stayed  by  an  injunction  pending 

the  disposal  of  a  suit,  difficulty  is  felt  if  the  suit  happen 
to  be  disposed  of  after  the  expiry  of  the  time  for  enforce- 
ment of  the  decree.  The  Calcutta  High  Court  observe : 
"  It  might  thus  happen  that  if  the  injunction  remained 
in  force  for  three  years,  execution  could  be  absolutely 
barred.  This  appears  to  be  the  present  state  of  the 
law."  (See  Note  A  and  E>  under  section  15,  pp.  114-116.) 
Section  21.  Ef-  56.  Under  section  21,  acknowledgment  by  one  of  seve- 
ledgment  by  "  ral  mortgagees  does  not  give  a  new  period  of  limitation 
joint-contrac-  as  regards  a  share  of  the  mortgaged  property;  such 
acknowledgment  under  the  Indian  Act  is  wholly  ineffec- 
tual while  the  English  Statute  provides  for  breaking  up 
a  mortgage  into  portions  to  give  effect  to  the  acknowledg- 
ment of  one  of  several  mortgagees.  (See  Note  J,  under 
section  21,  pp.  190,  191.) 

Section  23.  Ef-  57.  Section  22  relates  to  the  effect  of  substituting  or 
tuting  or  add-  adding  new  plaintiff  or  defendant.  It  does  not  give  to 
tin*  or^en?"  the  courts  the  discretion  which  the  Common  Law  Pro- 
daBU  cedure  Act  of  1852  gives  to  the  Courts   in  England. 

Under  the  said  Procedure  Act,  if  the  court  had  reason  to 
believe  that  all  the  plaintiffs  had  not  been  joined  for 
some  improper  motives,  the  amendment  would  be  refused, 
but  if  it  considered  that  the  non- joinder  was  a  bond  fide 
mistake  it  would  allow  the  amendment  for  the  express 
purpose  of  protecting  the  plaintiffs'  interests  and  prevent- 
ing the  Limitation  Act  from  working  injustice.  But  the 
policy  of  the  Legislature  in  this  country  has  been  to  make 


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nrraoDucTiON.  xxxm 

the  Law  of  Limitation  much  more  strict  than  in  England, 
and  to  take  away  as  far  as  possible  any  discretion  from 
the  courts  to  modify  its  strictness.  (See  Note  0,  under 
section  22,  pp.  197-198.) 

58.  Article  11  refers  to  sections  280, 281, 282  and  335,  Article  n.  Suit 

by  unauooesS" 

bnt  not  to  332,  which  refers  to  claims  of  persons  disposses-  tui  claimants 

.  r  r  under  sections 

sea  of  property  in  execution  of  a  decree  disputing  the  »*>.  mi,  2«,  or 
right  of  the  decree- holder  to  be  put  in  possession.  Un- 
successful claimants  under  the  sections  expressly  named 
are  subject  to  the  special  limitation  of  one  year,  while 
those  under  section  332  avail  themselves  of  the  ordinary 
period  of  limitation.  The  Madras  High  Court  observe  : 
"It  is  possible  and' was  probable  that  mention  of  section 
"  332  of  the  Code  of  Civil  Procedure  was  omitted  by  over- 
"  sight  from  this  clause."  (See  Note  0,  under  Article  13, 
p.  327.) 

59.  Article  161  relates  to  the  issue  of  notice  under  sec-  Article  lei.  Ap- 
tion  258  of  C.  P.  C,  to  show  cause  why  the  payment  or  §obtor°U)  nave 
adjustment  nfkde  out  of  court  should  not  be  recorded  as  w^cerSflei' 
certified.     This  Article  allows  only  20  days  from  the  date 

of  payment.  The  Calcutta  High  Court  observe  that  the 
shortness  of  time  renders  the  provisions  of  section  258 
nugatory  as  the  debtors  who  are  ignorant  of  law  receive 
the  first  intimation  of  fraud  of  their  creditors  only  when 
they  proceed  to  execute  their  decrees.  (See  Note  A,  under 
Article  161,  p.  611.) 

60.  Article  179  provides  for  enforcement  of  decree  or  Article  179. 
order  which  directs   payments  to  be  made   at  a  certain  relating  to  exe- 
date.     Decrees  for  money  are  frequently  passed  on  the  con-  ^rees?  °!  **" 
sent  of  both  parties  allowing  payment  of  the  decree 

amount  by  monthly  or  yearly  instalments,  and  entitling  the 
creditor,  in  default  of  any  one  instalment,  to  realize  the 
whole  debt  due  under  the  decree.  It  is  doubtful  whether 
such  decrees  were  contemplated  by  Article  179,  and  the 
decisions  of  the  High  Courts  on  this  point  are  conflicting. 
The  Bombay  High  Court  observe  that  in  the  clause  of  Arti- 
cle 179  relating  to  enforcement  of  decrees  payable  by  instal- 
ments, there  is  no  provision  similar  to  that  in  Article  75, 
which  relates  to  promissory  notes  or  bonds  payable  by 
instalments  providing  that  if  default  be  made  in  payment 
of  one  instalment,  the  whole  shall  be  due.  (See  Note  M, 
under  Article  75,  p.  412.) 

1-B 

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LIST   OF   CASES. 


A,  PAGE. 

Abba  Haii  Ishmail  v.  Abba  Than  4,  270 

418 
Abdnl  Earim  v.  Manji  Hansarj  7,  8, 194 
Abhoy  Charan  Dntt  v.  Haco  Chan* 

dra  Das  Banik  ...  888 

Abhoy  Churn  Pal  v.  Rally  Pershad 

Chatterjee  ...  504 

Abboya  Churn  Chnckerbntty  v.  Gonr 

Mohan  Dntt  ...  105 

Abnl  Hassan  v.  Cheranji  ...  889 

Abnl  Mnnsoor  v.  Abdool  Hamid  ...813 
Aobnl  Mahta  v.  Bajnn  Mahta  ...  222 
Adimnlam  v.  Pit  Barnthan  ...  584 

Administrator-General  v.  Hawking...  267 
Aga  Mahomed  Hamadani  v.  Cohen...  809 
Ahamndeen  v,  Grish  Chnnder  Sha- 

mnnt  ...  641 

Ahmad  Ali  v.  Hafiza  Bibi  ...  409 

Ahmad  Hossein  Khan  v.  Nihalnddin 

Khan  .ft  514 

Ahmed  Mahomed  Pattel  v.  Adjoin 

Dooply  74, 458 

Ahaan  Khan  v.  Oanga  Bam  90,  98 

A  joodhya  Pershad  ^BisheshnrSahai  101 
Akilandammal  v.  Periasami  PDlai ...  868 
Akflandammal  v.  8.  Venkatachella 

MndaH  ...  241 

Alemas  Banee  v.  Mahomed  Bnja  ...  211 
Alexander  Watson  v.  Aga  Mehedee 

Sherazee  ...  420 

AH  Muhammad  v.  Lalta  Baksh  ...  697 
Ali  Muhammad  Khan  v.  Gnr  Prasad  674 
Aliba  v.  Nann  514,  592 

Alliance  Bank  of  Simla  v.  Carey  ...  82 
Ambioa  Perabad  Singh  v.  Snrdhari 

Lai  ...  672 

Amirto  Lai  v.  Bajoneekant  Mitter...  542 
Amirnnessa  Khatoon  v.  The  Secre- 
tary of  State  ...  818 
Ammn  v.  Bamakrishna  Sastri  ...  698 
Amrit  Lai  v.  Balbir  ...  848 
Anaji  Dattuahet  v.  Mnrnshet  Bapn« 

shet  ...  216 

Anand  Coomari  v.  Ali  Jamin  ...  526 

Anando  Kishore  Dase  v,  Anando  Ki. 

shore  Bose  640,  648 

Anandrav  Chimnji  Avati  v.  Thakar* 

ohand  ...  689 


A,  rial, 

Anantharama  Ayyan  v.  Karappanan  44 
Andarji  Kalyanji  v.  Dnlabh  Jeevan  158 
Andi  Konan  v.  Yenkata  Snbbaiyan  277 
Ankamma  v.  Bama  ...  178 

Annaji  Apaji  v.  Bamji  Jivaji  ...  689 

Annamalai  v,  Bongasami  ...  694 

Annnd  Moye  Dabi  v.  Grish  Chnnder 

Myti  ..,    62 

Annndo  Moyee  v.  Dhonendro  557,  595 
Appasami  v.  Aghilanda  ...    18 

Appaya  v.  The  Collector  of  Yisaga- 

patam  28,  608,  686,  655 

Appnndy  Ibram  Sahib  *,  Mrs.  Maria 

Setn  Sam  ..»  928 

Ami  Jagirdar  «.  Secretary  of  State 

for  India  ...  285 

Arnnachalla  «.  Bamaaami  69,  886 

Arnnaohella  v.  Zamindar  Sivagiri  ..,  566 
Aryan  v.  Bakhal  Chnnder  Boy  Chow- 

dhry  220,268 

Ashik  Ali  *.  Mathnra  Kandn  ...  282 
Ashootoah  Dntt  v.   Doorga  Churn 

Chatterjee  ...  701 

Askar  v.  Bam  Manflc  Boy  ...  241 

Asmntnllah  Dalai  «,    Kally  Chnrn 

Mitter  178,  185,  697 

Atmaram  v.  fialkishen  ...  194 

Ankhil  Chnnder  Chowdhry  v,  Mirza 

Debwar  Hossein  ,.,  868 

Ayyasami  v.  Samiya  ...  298 

Axam  Bhnyan  v.  Faisaddin  Ahamed  589, 

547 
Azroal  Sing  v.  Lalla  Gopenath      ...  140 


Babaji  v.  Nana  ...  541 

Baban  Mayacha  v.  Nagn  Shravncha  249 
Baboo  Hnr  Gopal  Doss  v.  Bam  Gopal 

Sahee  ...  817 

Baboo  Kishen  Bnllub   Mahatab  v. 

Boghoonnndnn  Thakoor  ...  814 

Baboo   Lnchmee    Pershad    Narain 

Singh  v.  Tilnckdharee  Singh  ...  228 
Baboo  Lall  Doss  v.  Jamal  Ally  ...  447 
Baboo  Pertab  Chnnder  v.  Baboo  Bro- 

jo  Lall  ...  804 

Bagram  v.  The  Collector  of  Bullooa  251 
Bahar  Shah  v.  Pero  Shah  •••  505 


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XII VI 


LIST  OF  CASES. 


B  PAGE. 

Bai  Ka8hi  v.  Baijamna  ...  322 

Bsi  Jamna  v.  Bai  Iohha  ...  296 

Bai  Manekbai  v.  Manekji  Kavaaji  2,  633 
Baiva  Khan  Dand  Khan  v.  Bhiku 

Sazba  ...    19 

Baldeo  v.  Biamillah  Begum  892,  624 
Baldeo  Panday  v.  Gokal  Rai  ...  518 

Balkrishna  Gopal  v*  Bai  Joshi  Sada- 

shivoJoshi  ...  624 

Balkrishna    Pandurang   v.    GoYind 

Shiraji  ...  419 

BaU  v.  Sfcowell  411,  401 

Balvantrav  v.  Purahotram  Sideahrar  697 
Balvant  Santaram  v.  Babaji  ...  618 

Balwant    Rao   Biahwant    Chnndra 

Choi1  v.  Purun  Mai  Ghanbi  51,  68 
Balwant  Singh  v.  Gumani  Bam  ...  32 
Balwant  Rao  v.  Puran  Mai  ..*  490 

Bandey  Karim  v.  Romeah  Ohunder 

Bundopadhya  ...  646 

Bandi  Bubbayya  v.  Madalapalli  Su- 

banna  ...    19 

Bani  Madhub  Mitter  v.  Matungini 

DasBi  M    86 

Banner  v.  Berridge  ...    77 

Bannoo  v.  Kashee  Ram  M.  494 

Bansi  Dhar  v.  Har  Sahai  ...    19 

Barkat  v.  Daulat  ..*    56 

Baroda  Sundari  Dabia  v.  Ferguaaon.  641 
Baaant  Lai  v.  Batul  Bibi  119, 688, 684,  686 
Basant  Lall  v*  Najrannnissa  Bibi  ...  670 
Baaapa  v.  Marya  ...  634 

Baaapa  v.  Lakahmapa  ...368 

Baakaraaaml  v*  Sivaaami  ...  315 

Beake  *.  Daris  47,  92 

Beoharam  Chowdhry  v.  Punubnath* 

jha  ...  238 

Beoharam  Dutta  v.  Abdul  Wahfcd  ...  12 
Beer  Ohunder  Joobraj  v.  Ram  Gutty 

Dutfc  ...  864 

Behari  Lai  v.  Salik  Ram  ...  655 

Behary  Lall  vt  Goberdhun  Lall  ...  11 
Bejoy  Chunder  Banner jee  v.  Kally 

Proaunno  Mookerjee  555,  576 

Beni  Madhab  Daa  v.  Ramjay  Rokh  . . .  227 
Benode  Mohini  Ghowdhrain  v.  Sharat 

Ohunder  Dey  Chowdhry  ...  626 

Beaaessur  Bhugutv.  Murli  Sahu  289,  476 
Bhaguji  v.  Aniaba  and  others  ...  368 
Bhagwan  Sahai  v.  Bhagwan  Din  ...  601 
Bhal  Singh  v*  Muaammat  Gauri  ...  102 
BhalaNahana  v.  Parbhu  Hari  267, 545, 548 
Bhaobuneaaury  v*  Judobendra  Nara- 

in  teullick  •  ...  614 

Bhaoni  v.  Maharaj  Singh  ...  360 

BhavaniBhankar  Shevak  Ram  1>.  Pur* 
-  -  -  -aadri  KaUdaa  463,  484 


Bhavath  Radan  v.  Rama  ...  277 

Bhawani  Kuar  v.  Rikhi  Ram  '  ...  387 
Bhawani  Daa  v.  Daulat  Ram  ...  691 

Bhawani  Prasad  Singh  v.  Biaheahar 

Prasad  Miar  430,  456 

Bhawan  Sahai  v.  Bhagwan  Din  ...  519 
Bheema  Char  In  v.  Danti  Murti  ...  333 
Bhekhan  Dobey  v.  Rajroop  Kooer  ...  398 
Bhikambhat  v.  Joseph  Fernandez  ...  13 
Bhikha  v.  Sakarlal  ...297 

Bhojraj  v.  Gulahan  Ali  ...  200 

Bholi  v.  Imam  Ali  ...  281 

Bhoobun  Chunden  Sen  v.  Soonder 

Surma  Mozoomdar  ...  318 

Bhoot  Nath  Chutterjee  v.  Kedamath 

Banerjee  ...  650 

Bhoyrub  Daas  Johurry  v.  Doman 

Thakoor  2,  639 

Bhubaneswari  Debi  v.  Dinanath  ...  183 
Bhujang  Mahadev  v.  The  Collector 

of  Belgaum  ...  880 

Bhyrub  Chunder  v.  Mohendro  Chuo- 

kerbutty  ...  837 

Bibee  Solomon  v.  Abdool  ...  141 

Bibi  Sahodra  v.  Rai  Jang  Bahadur  644,  564 
Birj  Mohan  Singh  w.  The  Collector 

of  Allahabad  ...  471 

Bijai  Ram  v.  Kallu  ,.,  279 

Bisbfcn  Chand  v.  Ahmad  Khan  ,..  32 
Biahumber  Dey  Poddar  v.    Hung- 

aheahur  Mookerjee  ...  399 

Biaaambur  Shaha  v.  Shib  Chunder 

Shaha  ...  289 

Biaaea8uree  Doasee  v.  Kalee  Eoomar 

Boy  ...  866 

Bissessuri  Dabeea  v.  Baroda  Santa 

Roy  Chowdry  ...  630 

Biswa  Sonan  Chunder  GoBayamy  v. 

Binanda  Chander  Dibingar  Ad- 

hikar  Go8ayamy  ...  664 

Bodri  Prasad  v.  Muhammad  Yuauf  290, 

293 
Boiddonath  Shah  v.  Laluniaaa  Bibee.  378 
Bonomi  v.  Backhouse  ...  207 

Bowen  v.Hall  ...342 

Boydonath  Bag  v.  Gri8h  Ohunder  Roy  197 
Brammamayi  Daai  i>.  Abhai  Charan 

Chowdhry  ...  881 

Brammoyi  Daaee  v,  Kristo  Mohun 

Mookerjee  ...  639 

Brindabun  Chunder  Roy  v.  Tara- 

chand  Bundopadhya  ...  261 

British  Linen  Company  v.  Drummond  82 
Brojo  Lai  Singh  v.  Gour  Charan  Sen  614, 

591 
Brojonath    Koondoo    Chowdhry  v. 

Khelut  Chunder  Ghose  ••'.  687 


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LIST  OF  CA8E0. 


xxrni 


S  PAGE. 

Brojendro  Coomar  Boy  ...    85 

Bromhomoyi    Dasi   v.    Jugobundhu 

Ghose  ...  621 

Brown  v.  Butherford  ...  880 

Budha  Singh  v.  Hira  ...  436 

Bukshi  Bam  Pergash  Lai  v.  Sheo 

Pergash  Tewari  ...  291 

Burdick  v.  Garriok  74,  75 

Burma  Moye  Dassee  Q.  Dinobundhoo 

Ghose  ...  573 

Buti  Begam  v.  Nihal  Chand        119,  637 
Bygnath    Suhaye  v.    Brohmo    Deo 

Narain  ...  142 

Byjnath  Sahoo  v.  Lalla  Seetul  Per- 

shad  ...  816 

Byjnath  Pershad  Badhoo  Singh    ...  451 
B.  I.  S.  N.  Company  v.  Hajee  Maho- 
med Esaok  and  Company    345,  458 


Chagan  Lai  and  others  v.  Bapn  Bhai 

409,515 
Chander  Kant  Mitter  v.  Bam  Narain  190 
Chandi  Dasi  v.  Janakiram  ...  109 

Chandi  Prasad  Nandi  v.  Baghnnath 

Dhar  ...  116 

Chandmal  v.  Baohra]  ...  681 

Chandra  Bhnsan  Gangapadhya    v. 

Bam  Kanth  Banerji  ...  297 

Cham  Sornokar  v.  Dokonri  Chunder 

Thakoor  ...  223 

Chathuv.Aku  ...  265 

Chatur  Jagsi  v.  Tnlsi  153,  170 

Chatur   Knshal  Chand    v.  Mahadn 

fehagaji  ...  686 

Cheigu  Nangiah  v.  Pidatala  Venka- 

tuppah  ...  105 

Chengaya  v.  Appasami  ...  690 

Cheni  Bash  Shaha  v.  Kadum  Mnndol  407 
Chetham  v.  Hoare  ...  147 

Chhiddn  v.  Narpat  ...  609 

Chinnasami  Iyengar  v.  Gopalaoharya  8,  9 
Chinnaya  v.  Gurunatham  ...  164 

Chittro  Narain  v.  The  Asst.  Comr.  of 

the  Sonthal  Pergnnnahs  ...  829 

Chowdhry  Wahed  Ali  v.  Miresamut 

Jnmaee  ...  133 

Chnndee  Churn  Boy  v.  Shib  Chunder 

Mundul  23, 246 

Chunder  Coomar  Boy  v.  Bhogobutty 

Prosonno  Boy  655,  685 

Chunder  Jaleah  v.  Bam  Churn  Moo- 

kerjee  ...  251 

Chunder  Madhub  Chuckerbutty  v. 

Bissessuree  Debea  99,  110 

Chunder  Mohun  Boy  f .  Bhubon  Mo- ' 

hmiDabea  ...    25 


C  page. 

Chunder  Doss  v.  Boshoon  Lall  Sooknl  83 
Chunder  Nath    Chowdhry  v.  Thir- 

thanund  Thakoor  ...  435 

Chunder  Sikhur  Bundopad-hya   v. 

Obhoy  Churn  Bagchi  ...  472 

Chunee  Mul  Johary  v.  Brojo  Nath 

Boy  Chowdhry  ...  492 

Collector  of  Broach  v.  Desai  Baghu- 

nath  ...  147 

Collector  of  Broach  v.  Baja  Bam 

Laldas  ...  147 

Collector  of  Furreedpore  v.  Gooroo- 

dassBoy  ...  272 

Collector  of  Kheda  v.  Hari  Shankar 

Tikam  ...  256 

Collector  of  South  Arcot  v.  Thatha 

Charry  ...     28 

Collector  of  Shahjahanpur  «.  Surjan 

Singh  ...  659 

Collector  of  Surat  9.  Daji  Jogi  ...  254 
Constantino  v.  Drew  ...  416 

Corporation  of  the  Town  of  Calcutta 

v.  Anderson  ...     86 

Court  of  Wards  v.  Gaya  Prasad    ...  193 


Dadabhai  Narsidas  v.  The  Sub-Col- 
lector of  Broach  ...  274 
Dadoba  v.  Krishna  532,  558 
Dagdusa  Tilakchand  *.  Shamad  ...  396 
Daia  Chand  v.  Sarfraz  155,  167 
Danmull    v.    British    India    Steam 

Navigation  Company  ...  346 

Dattu*.  Kasai  ...    24 

Davani  Ammal  v.  Batna  Chetti  ...892 
Davani  v.  Batna  610,  518 

Dawkins  v.  Penrhyn  ...  551 

Debi  Prasad  v.  Jafar  AH  826,  471,  563 
Degamber  Mozumdar  v.  Kallynath 

Boy  ...    85 

Denonath    Chuckerbutty    v.  Lallit 

Coomar  Gangopadhya  ...  679 

Deo  Prasad  Sing  v.  Pertab  Kairoo  ...  107 
Deo  Karun  v.  Nawab  Syud  Maho- 
med Ali  Shah  ...  604 
Deo  Nundun  v.  Deshbutty  ...  443 
Desai  Kalyanraya  t>.  The  Govern- 
ment of  Bombay  ...  255 
Desai  Maneklal  Amratlal  v,  Desai 

Shivlal  Bhogilal  ...  386 

Dharanamma  v.  Subba  ...  672 

Dharma  Vithal  v.  Govind  Sadvalkar  165 
Dharm  Singh  v.  Hurpershad  Singh..  665 
Dhondiba  Krishnaji  Patel  t>.  Bam- 

chandra  Bhagvat  ...  871 

Dhonessur    Koorer  t>.  Boy  Gooder 
Sahoy  84,276 


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xxrau 


LIST  09  CASES. 


D  PAGE. 

Dhum  Singh  9.  Ganga  Bam  ...  39# 

Dhunput  Sing  v.  Buhoman  ...  141 

Dianat-ullah  Beg  v.  Wajid  Ali  Shah  671 
Dildar    Hossein   v.  Mujeedunnissa  641, 

...  647 
Dinomoney  Dabea  v.  Doorga  Persad 

Monzoomdar  532, 568 

Doe  d.  Seebristko  v.  The  East  India 

Company  ...  251 

Domun  v.  Sndnnkolah  ...    89 

Don  v,  Lippmann  ...     79 

Doorga  Churn  Dhor  v.  Kally  Coomar 

Sen  ...  230 

Dubey  Sahai  v.  Ganeshi  Lai  ...  608 

Dukhi  Sahu  v.  Mahomed  Bikhn  ...  393 
Dulabh  Vahuji  v.  Bansi  Dharrai  ...  386 
Dular  Chand  v.  Balram  Das  ...  199 

Dulari  v.  Mohan  Singh  ...  620 

Dulsook    Battanchand    v.  Chngon 

Narrun  412,  699 

Dorga  v.  Haidar  Ali  ...  476 

Dnrga  v.  Mangal  *      ...  869 

Durga  Prasad  v.  Asa  Earn  ...     56 

Dnrga  Fershad  v.  Ghosita  Goria  ...  477 
Dnrga  Prasad  v.  Shambhn  Nath  ...  560 
Dnrgaram  Maniram  v.  Shripati  112,  682 
Dnrgaram  Boy  v.  Baja  Narsing  Deb  299 
Dntto  Singh  v.  Dosad  Bahadur  Singh  631 


Eathamu  Kala  Snbbammah  v.  Bagiah  377 
Edward  James  Daniell  v.  James  Sin- 
clair ...  438 
Ellappa  v.  Annamalai  ...  178 
Elliott  v.  Bhoobnn  Mohun  ...  216 
Ellis  V.  M'Henry  ...  80 
Empress  v.  Jyadulla  ...  608 
Erajulu  v.  Mayan  ...  38 
Erskine  v.  Gholam  Eheznr  ...  103 
Eshan  Chnnder  Bose  v.  Prannath 

Nag  ...  651 

Eshan  Chnnder  Boy  v.  Monmohini 
Dassi  478, 506 


Fakharuddin  Mahomed  Ahsan  v.  The 

Official  Trustee  of  Bengal        ...  433 
Faki  v.  Khotu  ...  161 

Fakir  Chand  Bhose  v.  Madan  Mohan 

Ghose  184,  652 

Fakir  Muhammad  v.  Ghulam  Hu- 

sain  644, 679 

Fakirapa  v.  Pandurangapa  ...  483 

Fateh  Muhammad  v.  Gopal  Das    ...  174 
Fazil  Imam  v.  Metta  Singh  ...  678 

Fazal  Muhammad  v*  Phulkuar        ...    88 
jFishexv.  Pearse  ...  195 


r  pao«. 

Foley  v.  Hill  ...  881 

Forbes  v.  8ree  Lai  Jha  ....  552 

Fuckoruddeen  Mahomed  Ahsan  v. 

Mohima  Chnnder  Chowdhry  442,  479 
Futtehsangji  Jaswantsangji  v.  Desai 

Kalliansangi  Hukoomut  Baiji.  597 
Fuzloor  Rahman  v.  Altai  Hossein...  655 


Ganapathi  v.  Balasundara  ...  702 

Ganesh  Krishn  v.  Madhavrav  Bavji  399, 
401,  457,  460 
Ganesh  Sadashiv  ...    49 

Gangadhar  r.  Zahnrriya  ...  347 

Gangathara  v.  Rathabai  ...  690 

Ganga  Pershad  Sahu  v.  Gopal  Singh  308 
Ganpat  Pandnrang  v.  Adarji   Dad- 

abhai  196,  391,  517,  588 

Gauri  Shankar  v.  Surju  ...  460 

Gaya  Prasad  v.  Sikri  Prasad  630,  640 
Gend  Lall  Tewari  v,  Denonath  Bam 

Tewari  290, 293 

Ghaseeram  v.  Monohor  Doss  ...  420 

Ghansham  v.  Mukha  673,  674 

Ghinarain  Dobey  v.  Bam  Monaruth 

BamDobey  ...  521 

Ghose  v.  Sreemutty  ...  540 

Gibbs  v.  Grield  ...  143 

Gillon  v.  Boddington  ...  210 

Gobind  Chnnder  Sein  v.  The  Collector 

of  Dacca  ...  586 

Gobind  Lall  Seal  v.  Debendro  Nath 

Mulliok  549,  550,  672 

Gobindo  Coomar  o.  Manson  ...  102 

Gocool  Chundes  Gossamee  v.  Admi- 

nistrator.General  of  Bengal  ...625 
Gogaram  v.  Kartick  Chnnder  Singh.  323 
Golabolee  v.  Kootoobootlah  Sircar...  552 
Golam  Nabi  e.  Biswanath  Kar  ...  275 
Golap  Chand  Nowluckha  v.  Krishto 

Chnnder  Dass  Biswas  30,  88 

Golnck  Chnnder  Chowdhry  v.  Taxi- 
nee  Churn  Chuckerbutty  ...  227 
Golnck  Chandra  My  tee  v,  Hara  Priah 

Debi  ...  692 

Goluck  Monee  Dossee  v.  Huro  Chnn- 
der Ghose  ...  482 
Good  Title  Parker  v.  Baldwin  ...  254 
Grooroo  Churn  Gooni.  Gunga  Gobind 

Chatterjee  ...  225 

Gooroo  Doss  Boy  v.  Bishtoo  Churn...  553 
Gopal  Kashi  v,  Bamabai  Saheb  Pat-    • 

▼ardhan  ...  197 

Gopala  v.  Paramma  ...  407 

Gopal  Chandra  Lahiri  v.  Solomon  ...  30 
Gopal  Chnnder    Mitter  v,  Mohesh 

Chnnder  Boral  289. 290 


Digitized  by 


Google 


LIST  OF  CASBS. 


XXXIX 


G  PAGE. 

Gopal  Narain  Mosoomdar  v.  Muddo- 

mutty  Guptee  ...  163 

Gopal  Pandey  v.  Pnrshotam  Das  ...  594 
Gopal  Sahu  Deo  v.  Jbyram  Tewary...  664 
Gopal  Sitaram  Gone  v.  Desai  ...  598 
Gopal  Chandra  Dey  v.  Pemu  Bibi  ...  436 
Gopaul  Chnnder  Gliose  v.  Raj  Chun- 

der  Dutt  ...  121 

Gopaul  Chnnder  Chuckerbutty  v.  Nil- 
money  Hitter  ...  652 
Gopee  Chand  Setia  v.  Bhoobnn  Mo- 

hnn  sen  ...  223 

Gopee  Kishen  Goshamee  v.  Brinda- 

bnn  Chnnder  Sircar  ...  170 

Gopee  Kishen  Gossamy  v.  Thakoor 

Dass  Gossamy  ....  506 

Gopi  Nath  Chobey  v.  Bhugwat  Per- 

shad  364,  505,  573 

Gora  Chand  Dutt  v.  Lokenath  Dntt  176 
Gosain  v.  Gosain  ...     69 

Gossain    Dass    Chnnder    e.     Issnr 

Chnnder  Nath  ...  263 

Gout  Mohan  Chowdry  v.  M.  Mohnn 

Chowdry  ...  206 

Government  of  Bombay  v.  Gossame 

Shri  Girdharlaji  ...  255 

Govind  Chnnder  Goswami  v.  Bnngnn 

Money  2,  639 

Govind  Lakshnman  o.  Narayan  ...  117 
Govind  Bhaichand  v.  Kalnak  613,  592 
Govind  Bagnnath  v,  Govinda  Jagoji.  526 
Govind  Shanbhog  v.  Appaya  ...  657 

Govindan  Pillai  v.  Chidambara  Pillai  498 
Grown  Prosad  Knndn  v.  Bam  Batan 

Sircar  324,  387 

Green  Chnnder  Ghose  v.  Mackintosh    63 
Greender  Chnnder  Ghose  v.  Mackin- 
tosh 130,  478 
Gregory  v.  Hnrrell  ...     89 
Griah  Chnnder  Chowdhry  v.  Abdul 

Selam  ...  492 

Gnjar,  V.  K.  v.  V.  D.  Barve  85,  270 

Gnlab  Das  v.  Lakshman  Narhar  620,  627 
Gnlab  Rai  v.  Mangli  Lai      -  27,  671 

Gnlab  Singh  v.  Amar  Singh  ...  280 

Gnlam   Hosen   Mahamed  e.   Sayad 

Mnsa  Miya  Hamad  Ali  ...     29 

Gnmna  Dambershet  v.  Bhikn  Hariba 

and  another  408,  700 

Gnnesh  Dass  v.  Gondonr  Koormi  ...  476 
Gnneshee  Lall  r.  Mnssnmat  Teknm 

Kooer  ...  362 

Gunga  Govind  Mnndul  v.  The  Col- 
lector of  the  24-Pergunnahs  261,  265 
Gunga  Dass  Dey  r.  Ramjoy  Dey    27,  86 
Gunga  Pershad  Bhoomick  v.  Debi 
Sundari  Dabea  675,  678 


G  PAGE. 

Guracharya  r.  The  President  of  the 
the  Belgaum  Town  Municipality 

38,111 

Gurudas  Pyne  v.  Bam  Narain  Sahu.  370, 

390,  474 

Gurupadapa  Basapa  v.  Virbhadrapa 
Ifsangapa  ...  681 

Gurushid  Gavda  Bim  Rndra  Gavda 
v.  Budra  Gavda  Tikam  Dyam- 
angavda  ...  490 

Gya  Persad  v.  Heet  Narain  ...  544 


Habibnllah  v.  Achaibar  Pandey  ...  197 
Hafizunissa  v.  Bhyrab  Chnnder  ...  97 
Hajarimal  v.  Krishnarav  ...  380 

Hajee  Syud  Mahomed  v,  Mussamut 

Ashrufoon-nissa  ...  422 

Haji  v.  Atharaman  312,  629 

Hanmantmal  Motichand  v.  Bambabai  179 
Hanmantram     Sadhuram    Pity  v. 

Arthur  Bowles  43,  47,  92,  409 

Hanmantrav  Pandurang  Joglekar  v. 

Subaji  Girmaji  ...  635 

Hansji  Chhiba  v.  Valabh  Chhiba  ...  493 
Harbhag  v.  Gumani  ...     70 

Harender  Kishore  Singh  v.  The  Ad- 

ministrator-Genl.  of  Bengal  460,  461 
Hargopal  Premsuckdas  v.  Abdulkhan 

Haji  Muhammad  ...  170 

Hari  r.  Maruti  ...  496 

Haridas  Nandi  v.  Jadunath  Dutt  ...  227 
Hariette  A.  King  v.  J.  8.  King  ...  82 
Harinarayan  Maiti  v.  Ajodhya  Ram 

Shi  ...  338 

Hari  Ramchandra  9.  Vishnu  Krish- 

naji  ...  106 

Harmukhgauri  v.  Harisukh  Prasad  386 

515 
Harprasad  v.  Jafor  Ali  ...  613 

Harrington  v.  Goneeh  Roy  ...     90 

Harrison  v.  The  Delhi  and  London 

Bank  448,472 

Harry    Charn    Bose    v.    Subaydar 

Sheikh  •  ...  661 

Hassaji  v.  The  East  India  Bailway 

Company  345, 468 

Hazari  Lai  v.  Jadaun  Singh  427,  562 
Hearn   and   others    v.    Bapu    Saju 

Naikin  ...  418 

Heera  Lall  Mookhopadhya  v.  Dhun- 

put  Singh  152,  267 

Hem  Chnnder  Chowdhry  v.  Brojo- 

soondury  Debee  641,  678 

Hemangini    Dasi   v.    Nobin   Chand 

Ghose  56,  485,  487 

Hemchand  Kuber  f .  Yohora  Raji  Haji  157 


Digitized  by 


Google 


LIST  OF  CASES. 


S  PAGE. 

Hemendro  Coomar  Mullick  v.  Rajen- 

dro  Lall  ...     94 

Hempammal  v.  Hanuman  ...  377 

Himmat  Lai  v.  Shivaji  Rav  ...  463 

Hingan  Lall  v.  Debee  Perahad  ...  380 
Hirada  Karibasappah  v.  Gadigi  Mud- 

dappa  ...  390 

Hiralal  v.  Badri  Das  ...     99 

Hodgson  v.  Williamson  ...     75 

Holloway,  P.  H.  v.  Mahomad  AH  ...  239 
Hori  v.  The  Administrator-General  426 
Hossain  v.  Syed  Tassaddack  ...  143 

Huber  v.  Steine  ...     80 

Huber  v.  Steiner  ...     79 

Hare©    Madhub    Lahiree    v.    Hem 

Chunder  Gossamee  ...  239 

Hnasini  fiegam  v.  The  Collector  of 

Mozaffarnagar  ...  609 

Hulasi  v.  Maiku  ...  670 

Huriram  v.  Dinapal  ...  452 

Hur  Lai  Roy  v.  Sooruj  Narain  Eoy  359 
Huro  Chunder  Roy  v.  Surnamoyi  ...  607 
Hurmuzi  Begum  v.  Hirday  Narain  517 
Hurro  Chunder  Roy  r.  Shoorodhonee 

Debia  ...  100 

Hurro    Coomaree    Dossee  v.  Taini 

Churn  Bysack  ...     61 

Hurro  Pershad    Roy    Chowdry     v. 

Bhupendro  Narain  Dutfc  ...  649 

Hurronauth    Roy    v.    Maheroollah 

Moollah  ...  408 

Hurronath  Bhunjo  v.  Chunni  Lall 

Ghose  ...  682 

Husain  Ali  Khan  v.  Hafiz  Ali  Khan  460 
Husain  Bakhsh  v.  A.  D.  Madge  ...  672 
H.  H.  Azim-u-nissa  Begum  *.  Cle- 
ment Dale  50, 70 
H.  H.  Ruckmaboyee  v.  Lulloobhoy    78 


Ibrahim  Ali  v.  Hadi  Ali  ...  361 

Ichha  Shankar  r.  Killa  17,     19 

Ikram  Singh  v.  Intizam  Ali         430,  530 
Imdad  Ali  v.  Nijabad  Ali  ...  202 

Imam    Bnksh    Mondul    v.    Mora  in 

Mondul  ...  553 

Imam  Bundee  Begum  v.  Sheo  Dyal 

Ram  ...  242 

Imam  Ali  v.  Dasaundhi  Ram  ...  667 

Imbiohi  Roya  v.  Kakunnat  Upakki...  299 
Ishan  Chander  Roy  2,  634 

Ishwardas  Jagjivandas  v.  Dosibai  ...  633 
Isri  Dut  Koer  v.  Hansbutti  Koerain.  491 
Issurree  Dasseo  v.  Abdool  Khalak  ...  672 
Isswr  Chunder  Doss  v.  Juggut  Chun- 
der Shaha  371,  486 
Igsuridutt  Singh  v.  Ibrahim  ...  495 


Z  PAGE. 

Iswar  Perahad  Gurgo  v.  Jai  Narain 

Gin  ...  527 

Iyyasami  v.  Samiya  ...  327 


Jackson  v.  Ogg  ...  378 

Jadoonath  Chowdhry  v.  Radhomonee 

Dassee  ...  300 

Jagadamba  Chaodhrani  v.  Dakhina 

Mohun  Roy  Chaodhri  ...  466 

Jagan  Nath  9.  Lalman  ...    35 

Jagan  Nath  v.  Baldeo  ...  526 

Jagan  Nath  Panday  v.  Prag  Sing  ...  502 
Jageshar  Singh  v.  Jawahir  Singh  ...  279 
Jaggabandhu  Bose  v.  Srimati  Sachyi 

Bibi  ...  298 

Jagjivan  Amirchand  v.  Hasan  Abra- 
ham ...  44 
Jagjivan  Jay  herd  as  V.  Gulam  Jilani 

Chaudri  300,  344,  470 

Jagrani  Bibi  v.  Gamshi  ...  263 

Jai  Kuar  v.  Heera  Lai  ...    48 

Jaikaran  Rai  v.  Ganga  Dhari  Rai  ...  280 
Jamal  Saheb  v  Murgaya  Swami  ...  568 
James    Hills    v.  The  Magistrate  of 

Nuddea  ...  331 

Jamna  Das  and  others  v.  Lolitaram 

and  others  ...  656 

Jan  Ali  v.  Jan  Ali  Chowdhry  ...  305 

Janaki  v.  Kesavalu  2,  634 

Janardan  Yithal  v.  Anant  Mahadev.  625 
Janki  Prasad  Ghulam  Ali  173,  186 

Jawahir  Lai  v.  Narain  Das  ...     88 

Jay  Prokash  Singh  v.  Ameer  Ally  ...  216 
Jeaunissa    Ladli    Begum    Saheb    v. 

Manikji  Kharsotji  ...  404 

Jekisan  Bapuji  v.  Bhowsar  Bhoga- 

jetha  ...  158 

Jeoni  v.  Bhagwan  Sahai  ...  293 

Jetti  v.  Sayad  Husein  ...  289 

Jhabhu  Sing  ...     88 

Jhotee    Sahoo    v,    Omesh  Chunder 

Sircar  34,  606 

Jhoti  Sahu  v.  Bhubun  Gir  ...  653 

Jibhai  Mahipati  v.  Parbhu  Bapu  ...  10 
Jivan  Singh  v.  Sarnam  Singh  ...  90 
Jivi  v.  Raraji  ...  500 

Jogul  Kishore  v.  Mulchand  ...  201 

Johuri    Mahton    v.    Thakoor    Nath 

Lukee  ...  385 

Joitaram  Bechar  v.  Bai  Ganga  ...  104 
Jokhu  Ram  v.  Ram  Din  ...  692 

Jonardun  v.  Haradhun  ...  274 

Joogul  Lai  v.  Mussumat  Jasoda  Bebee  220 
Joy  Doorga  Dossia  v.  Juggernath  Roy  225 
Joykiahen  Mookerjee  v.  Ataoor  Roho- 

man  606,  630 


Digitized  by 


Google 


iteT  or  oisbs; 


xH 


J  PAGE. 

Jodhister  Patro  v.  Nobin  Chandra 

Khela  ...  698 

Juggessur  Singh  v.  Nnnd  Lall  Singh  222 
Juggobundhu  Mokerjee  v.  Ram  Chun- 

der  Bysack  629,  649,  675 

Juggobundhoo  Shaha  v.  Promotho- 

nathEoy  ...  246 

Jugmohun    Mahto    t.  Luchmeshur 

Singh  17,    44 

Jnneewar  Dass  ♦.  Mahabeer  Singh...  608 


Kabari  Pari  v.  Eatan  Chand  ...  882 

Kadar  Bacha  Sahib  v.  Rangasami ...  116 
Kadarsa  Ran  tan  v.  Raviah  Bibi  ...  508 
Kalee  Kishen  Paul  Chowdhry  v.  Mus- 

samut  Juggut  Tara  ...  425 

Kallee  Prosunno  Mookerjee  v.  Sree- 

nutty  Toylash  Moonee  Debia  ...  821 
Kali  Kishore  Roy  v.  Dhunnjoy  Roy.  492 
Kali  Kriahna  Pal  Chowdhry  v.  Srimati 

Jagattara  ...  126 

Kali  Mohun  Chnokerbutty  v,  Ananda- 

moni  Dabee  ...  310 

Kalichorn  Hitter  v.  Mahomed  Soleem  278 
Kallida  Pershad  Dutt  v.  Bam  Hari 

Chnokerbutty  ...  558 

KaKfljuy  Kevaldas  v.  Nathu  Bhagvan.  198 
Kalidas    Mullick   v.  Kanhaya    Lai 

Pundit  ...  664 

Kalley  Churn  Shaw  v.Dukhee  Bibi...  576 
Kallu  v.  Muhammad  Abdul  ...  681 

KallyChurnShawv.DukheeBibee...  425 
Kally  Prosunno  Biswas  v.  Mungala 

Dassee  ...     85 

Kally  Prosonno  Hazra  v.  Heera  Lai 

Mundle  170,  171,  185 

Kally  Cham  Sahoo  v.  The  Secretary 

of  State  for  India  in  Council  ...  569 
Kalova  Kon  Bhujangray  v.  Padapa 

Valad  Bhujangray  ...  470 

Kalu  Ram  Maigraj  v.  The  Madras 

Railway  Company  ...  346 

Kalyanbhai  Dipohand  v.  Ghanasham 

Lai  Jadunathji  116,  118,  638 

Kamal  Singh  v.  Batul  Fatima  72,  520 
Kanchan  Singh  v.  Sheo  Prasad  ...  696 
Kandasami  Pillai  v.  Moiden  Saib  ...  463 
Kangali  Churn  Sha  v.  Zomur  Rudo- 

nissaKhatoon  ...  369 

161 
562 
568 

58 
814 

99 


Kanhaya  Lai  v.  Stowell 
Kanaan  v.  Nilakandan 
Karan  Singh  v.  Bakar  Ali  Khan 
Karimshah  v.  Nattan 
Karuppa  v.  Vasudeva 
Karuppan  Chetti  v,  Yeriyal 

1-F 


X  PAG*. 

Kashikant  Bhuttaoharji  v.  Rohini- 

kant  Bhuttaoharji  ...  451 

Kasu  Munnissa  Bibee  v.  Nil  Ratna 

Bose  ...  678 

KavaajiSorabjiv.BarjorjiSorabjil08, 196 
Kebul  Ram  v.  The  Government  828,  330 
Kedarnath    Nag   v.    Khettur    Paul 

Sritirutno  347,  477 

Kedarnath  Dutt  v.  Harra  Chand  Dutt.  625 
Kesava  Pillai  v.  Peddu  Reddy  ...  227 
KeshavHarkhav.GanpatHiraChand  220 
Keval  Kuber  v.  The  Talukdari  Settle- 
ment Officer  263,  601 
Kewal  Ram  v.  Khadim  Husain  ...  674 
Khairunnissa  v.  Gaurishan  Kar  680,  686 
Kbaja  Pathanji  ...  632 
Khasro  Mandar  v.  Premlal  ...  212 
Khem  Karan  v.  Har  Dayal  ...  27 
Khemji  Bhagvandas  Gujar  v.  Ra- 
ma 512,  598 
Kherodemoney    Dossee    v,  Doorga-* 

money  Dossee  *  52,    63 

Khetter    Mohun    Chuckerbntty    v. 

Dinabashi  Shaha  88,  111 

Khodabux  v.  Budree  Narain  Singh  43,  44 
Khoodee  Ram  Dutt  v.  Kishen  Chand 

Golecha  *  ...  187 

Khoshelal  Mahton  v.  Guneah  Dutt ...  81 
Khunni  v.  Nasir-ud-din  Ahmad  ...  460 
Khushalo  v.  Behari  Lai  ...  161 

Khwaja  Muhammad  Janula  v.  Yen* 

katarayar  and  another  ...  158 

Kifayat  Ali  v.  Ram  Singh  110,  650 

Kinmond  v.  Jackson  ...  354 

Kirath  Chand  v.  Ganesh  Prasad  390,  478 
Kishen  Chunder  Dass  v.  Mahomed 

Aizul  ...  366 

Kishen  Lai  v.  Kinlock  899,  461 

Kishen  Sahai  v.  The  Collector  of  Al- 
lahabad ...  664 
Koji  Ram  v.  Ishar  Das                   ...  441 
Komathi  v.  Gurunada  Pillai  ...  219 
Koonjo  Mohun  Dass  v.  Nobo  Coomar 

Shaha  ...  628 

Kowar  Poresh  Narain  Roy  v.  Watson 

and  Co.  ...  144 

KoyalashbaBhini  Dossee  v.  Gocool- 

moni  Dossee  482,  602 

Koylash  Chunder  Dutt  v.  Gubur  Ali.  482 
Koylash  Chunder  Ghose  v.  Sonatum 

Chung  Barooie  223,  230 

Koylash  Chunder  Paul  Chowdhry  r. 

Preonath  Roy  Chowdhry      288,  290 
Koylash  Dhunder  Dass  v.  Boykoonto 

377,  406 
Krishna  v.  Rayappa  Shanbhaga  ...  228 
Krishna  Chetty  v.  Rami  Chetty     ...  117 


Digitized  by 


Google 


xiii 


LIST  OF  OASIS. 


Krishna   Chandra    Chuekerbutty  v. 

Krishna  Chandra  fcanik  ...  227 

Krishna  Gobind  Dhur  v.  Hari  Churn 

Dhnr  559,  566 

Krishna  Lall  Dntt  v.  Kadha  Krishna 

Snrkhel  ...  529 

Krishnabhatbin  Husgange  v.  Kapa- 

bhatbin  Mahalbhat  ...  697 

Krishna  Mohun  Bose  v.  Okhilmoni 

Dossee  ...  265 

Krishna  Rau  v.  Lakshmana  Shan- 

bhogue  ...  290 

Krishnaj  Vithal   v.  Bhaskar  Rang- 

nath  289,  291, 

Krishnaj  i    Raghnnath    Kothavle  v. 

Anandrav  Ballal  Kolhalkar     ...  684 
Krishnamma  v.  Achayya  ...  331 

Krishnan  v.  Nilakandan  ...  648 

Krishnanand    v.    Kunwar    Partab 

Narain  Singh  ...  450 

Krishnasami  Mappanar  v.  Sankara 

Row  Peshnr  ...     40 

Krishnayyar  v.  Venkay  Iyer  t. . .  660 

Kristna  Ayyan  v.  Yencatachella  Ma- 

dali  ...  237 

Kristna  Row  ...  509 

Kristo  Chnnder  Sandel  Chowdhry  v. 
Shama  Soonderee  Debia  Chow- 
dhrain  ...  363 

Kristo  Chunder  Sundyal  v.   Kashee 

Kishore  Roy  Chowdhry  ...  362 

Kristo  Coomar  Nag  v.  Mahabat  Khan.  665 
Kristo    Inder  Roy  Chowdhry    v. 

Roopinee  Bebee  ...  103 

Kristo  Comul  Mitter  v.  Suresh  Chnn- 
der Deb  ...  557 
Kristodass  Knndoo  v.  Ramkant  Raj 

Chowdry  ...  324 

Knmarasami  v.  Subbaraya  ...     66 

Kumarasami  Nadan  v.  Pala  Nagappa 

Chetti  ...  162 

Kundun  Lai  v.  Bansi  Dhar  385,  471 

Kan  hi  Komapen  Knrnpu  v.  Chem- 

bata  Ambn  ...  273 

Knnhi  v.  Seshagiri  643,  675 

Knrupam  Zamindar  v.  Merangi  Ze- 
mindar ...  236 
Kushalo  r.  Behari  Lai  •  ...  421 
Knthath  Haji  v.  P.  P.  Bavtti  Haji...  659 
Kuvarji  Premchand  v.  Baijaver  ...  220 
Kylasa  Gonndan  v.  Ramaswami  Ay- 
yan 4,  633 
Kylasanada   Moodelly  v.  Armugum 

Moodelly  ...  462 

Lachman  Singh  v.  Kesri  ...  400 

Lachman  Bibi  v.  Patni  Ram  ...  658 

Lachman  v.  Thondi  Ram  ...  674 


Jb  paoi. 

Lachmi  Narain  Lai  v.  Sheoamber  Lai  279 
Ladji  Naik  v.  Mnsabi  848,  388 

Laknarain   Singh   9,   Ranee  Myna 

Kooer  ...  320 

Lakshman  Dada  Naik  v.  Ramohandra 

DodaNaik  ...  104 

Lakshmi  v.  Ananta  Shanbaga        ...    35 
Lakshmi  v.  Kuttunni  ...  616 

Lakshmi  v.  Sri  Devi  621,  623 

Lalchand    Ambaidas    v.    Sakharam 

Valad  Chandrabhai  ...   300 

Laljee  Sahoo  v.  Raghoo  Nnndnn  Lall 

Saboe  159,  393,  421 

Lallnbhai  v.  Mankuvarbai  50,    68 

Lallubhai  v.  Naran  ...  609 

Lamb  v.  Walker  ...  208 

Latehman  Pnndeh  v.  Maddan  Mohun 

Shye  ,     ...  672 

Lawless  v.  Calcutta   Landing   and 

Shipping  Co.,  Limited  126,  425 

Lee  Morris,  G.  *.  Sapamtheetha  Pillay  100 
Lee  Morris,  6.  v.  Sivaramayyan  and 

others  •        104 

Lilln    Bin    Baghnshet    f.    Annaji 

fcarashram  ...  866 

Lokenath  Mulliok  v.    Odoy  Churn 

Mulliok  ...  488 

Lopes  v.  Maddan  Mohun  Thakoor  ...  669 
Loseby  v.  Carr  ...  889 

Luchinarain  Mittar  p.  Khettor  Pal 

singh  Roy  ...  101  ■ 

Luchmee  Buksh  Roy  v.  Runjeet  Ram 

Panday        *  ...  HJ5 

Lachmi  Narain  Singh  v.  Assrup  Koer  288 
Luchman  Persad  Singh  v.  Kishun 

Pershad  Singh  ...  702 

Luchmon  Sahai  Chowdhry  f.  Kanchan 

Ojhain  ...  329 

Lutchmeeput    Singh   v,    Sadaulla 

Nnshyo  ...  248 

Lutful  Huq  v.  Sumbhadin  Pattack  116, 

119,  666 
Luyar  Chunilal  Iohharam  v.  Luvar 

Tribhovan  Laldas  ...  155 


Macgregor  v.  Tarni  Churn  Sircar  ...  651 
Mackenzie  v.  Tiruvangadathan  178,  411 
Madon    Mohun   Poddar     v.    Porno 

Chundr  Pnrbot  ...  629 

Madanmahan  Sen  v.  Chandrakumar- 

Mookerjee  ...  229 

Madda  v.  Sheo  Bakhsh  ...  459 

Madhava  v.  Narayana  ...  667 

Madhavan  v.  Achuda  9,  266 

Madhub    Chunder    Giree    v.   Sham 

Chand  Giree  ...  274 


Digitized  by 


Google 


Liar  or  oasis. 


zliii 


M  PA61. 

Madrara  v.  Shagranta  ...  600 

Magalori  Garndiah  v.  Narayana  Bun- 

gtah  ...  461 

Mahalakshmi  v.  Lakshmi  ...  118 

Mahalakwhinibai  v.  The    Firm  of 

Nageshwar  Pnrshotam  ...  167 

MaHarajah  Jay  Mongol  Singh  v.  Lall 

Rong  Pal  Singh  ...  212 

Maharajah  Jogotendor  v.  Dindyal ...  97 
Maharana    Fatten    Sangi    Jaswant 

Hangji    v.   Desai  Kollian  Baiji 

Hakoomntroiji  ...  614 

Maharanee  Brojosoondery  Debia  v. 

Banee  Luchmee  Koonwaree    ...    68 
Maharanee    Shibessouree    Debia  v. 

Mothooranath  Acbarjo  ...     69 

Maharani   of   Bordwan  v.  Parikhit 

Rawtra  ...  108 

Maharani  Bajrnp  Koer  v.  Syed  Abdul 

Hossain  222,  286 

Mahomed   Abdool   Bozzah  v.  Syud 

Asff  AK  .:.  168 

Mahomed  Abdor  Bahim  v.  Birjosahu.  219 
Mahomed  Ali  t\  Jogal  Ramohandra  242 
Mahomed  Ali  Khan  v.  Khaja  Abdol 

Gunny  ...  662 

Mahomed  Bahadur  Khan  v.  The  Col- 

lector  of  Barielly  41,  1064  604 

Mahomed  Elahee  Buksb  v.  Brojoki- 

ahoreSen  ...  212 

Mahomed  Ghore  v.  Muster  Ally  ...  483 
Mahomed  Mnseeh-ood-deen  v.  Mo- 

aeeh-ood-deen  ...    89 

Mahomed  Sayad  Phaki  v.  Navroji 

Balabhai  ...  812 

Mahomed  Hoeaein  v.  Inodeen  ...  609 
Mahomed  Hossein  v.  Kokil  Singh  ...  616 
Mahomed  Hoasein  v.  Purondor  Mahto  647 
Maidin  Saiba  v.  Nagapa  681,  668 

MaJnathKuariv.DebiBakhshBai...  680 
Makondi  Knar  v.  Balakiahen  Das  ...  391 
Malohand  v.  Girdhar  ...  170 

ManaUy    Ghenna    Kesavaraya   v. 

Mongadu  Yaidelinga  264,  490 

Mangal  Praahad  Dischit  v.  Thanea 

Ban  to  Lai  Hiry  Chowdhry      ...  645 
Manga  Lai  v.  Kandhai  Lai  ...  113 

Maaickarelu  Mudali  v.  Arbuthnot 

and  Co.  ...     66 

Hfgjpk  Lai  Atmaram  v.  Manchershi 

51,  52,  519 
Manishanfrar  Har  Govan  v.  Trikam 

Nam  ...  220 

Manly  v.  Patterson  ...595 

Manni  Kaaaondhan  v.  Crooke     195,  472 
Mohan    Ghose  v.   Mothura 

Mohan  Boy  ...  669 


X  pagi. 

Manohar  v.  Gebiapa  112,  682 

Mansok  Das  v.  Bangayya  Chetti  ...  400 
Mathnra    Das  Nandvalabh    v.    Bai 

Amthi  ...  217 

Mathura  Doss  v.  Baho  Lai  ...  168 

Mathuranath    Kundu  v.    Debendra 

Nath  Kondu  ...  440 

Mayabhai  Prembhai  v,  Tribhuvandas 

Jagjivandas  ...  702 

Mayandi  v.  McQuhae,  Vice-President 

of  the. Madura  Municipality  ...  272 
Meda  Bibi  v.  Imaman  Bibi  ...  431 

Meer  Mahomed  Karem  v.  Forbes  ...  348 
Merwanji    Hormusji  v.    Bustomji 

Burjorji  65,  138,  448 

Merwanji  Nowroji  v.  Ashabai  ...  488 
Miller  v.  Bunga  Nath  Mouliok  ...  611 
Mina  Konwari  v.  Jnggat  Setani  647,  676 
Minakumari  Bibee  v.  Jagat  Sattani 

Bibee  ...  307 

Mir  Ajmuddin  v.  Mathura  Das  ...  117 
Mir  Mahar  Ali  v.  Amani  ...  446 

Mina  Bedar  Bukht  Mohammed  Ali 

Bahadoor    v.    Mirza    Khurrum 

Bukht  Yahya  Ali  Khan  Bahadoor  446 
Modho  Kooery  v.  Tekeit  Bum  Chunder 

Singh  ...  533 

Modun  Mohum  Chowdhry  v.  Ashad     * 

Ally  Beparee  ...  622 

Mohabat  Ali  v.  Ali  Mahomed'  ...  48 
Mohan    Lai    Jeohand   v.    Amratlal 

Bechardas  ...  240 

Mohan  Sing  Cbawan  v.  Henry  Conder  345 
Mohesh  Lai  v.  Busunt  Kumaree    6,  155, 

265 
Mohima  Chunder  Chuckerbotty  v. 

Baj  Coomar  Chnckerbutty  858,  361 
Mohima  Chunder  Boy  Chowdhry  v. 

Bam  Kishore  AcharjeeChowohry  540 
Mohin  Chundee  v.  Chunder  Churn...  216 
Mohnn   Chunder  Koomdo  v.  Azam 

Gazee  ...  107 

Mohun  Lall  v.  Sheik  Noor  Ahmud...  242 
Mohun  C  bonder  Kurmokar  v.  Mo- 
hesh Chunder  Kurmokar  ...  '660 
Mokund  Lall  v.  Chotay  Lall  ...  458 

Monickya  Moyee  v.  Boroda  Prosad 

Mookerjee  ...  192 

Mon  Mohun  Bucksee  v.  Gunga  Soon- 

dery  Dabee  ...     44 

Moonshi  Golam  Arab  v.  Cnrreembox 

Shaikjee  ..  483 

Morgan  v.  Kirby  ...  243 

Moshaullah  v.  Ahmedullah  ...     33 

Moti  Bibi  v.  Bikanu  ...     36 

Moula    Bukflh    Khan  v.  Koshoram 

Pandey  -.*  864 


Digitized  by 


Google 


xliv 


LIST  OF  CA81S. 


Mozuffur  Ali  v.  Grish  Chunder  Dobs  862 
Mrinmoyee  Dabea  v.  Bhoobunmoyee 

Dabea  ...  468 

Mt.  Bunnoo  v.  Moulvie  Ameeroodeen  601 
Mudvirapa    Kulkarni  v.  Fakirapa 

Eenardi  836,  352,  371 

Mohammad  Bakh&h  v.  Mohammad  Ali  438 
Muhammad  Habihullah  Khan  v.  Saf- 

dar  Hnaain  Khan  390,  475 

Mnhammad  Husain  v.  Bam  Samp  ...  674 
Muhammad  Umar  v.  Kamila  Bibi . . .  660 
Mnhammed  Gaki  v.  Ghatkn  611,  614 
Muhiuddin  Ahmad  Khan  v.   Majlis 

Rai  455,  561 

Mukkanni  f.  Manan  ...  168 

Mula  Baj  v.  Debi  Dihal  ...  638 

Mullick  Abdool  Guffoor  v.  Muleka ...  280 
Mullick  Ahmed  Zumma  v,  Mahomed 

Syed,  668,  670 

Mnllins  Beddy  163,  267 

Mumford  v.  Peal  ...  408 

Mnngamuru  Ananta  Lakshminarusu   . 

Pantalu  v.  Srimant  Raja  Yarla- 

gedda  Ankavid  Bahadur  ...  145 

Mungina  Khatook  v.  The  Collector  of 
Jessore  ...  317 

Mongol    Prashad  Dichit  v.  Shama 

^^Kanto  Lahory  Chowdhry     170,  185 

Mungul  Pershad  Dichit  v.  Grija  Kant 

Lahiri  10,  11,  659,  677 

Municipal  Commissioners  of  the  Sub- 
urbs of  Calcutta  v.  Mahomed  Ali.  226 

Manjunath   Badra  Bhat  v.  Venka- 
teah  Govind  Shanbhog  ...  646 

Musammat    Sharafat-un-nissa    v. 

Lachmi  Narain  ...  803 

Musharraf  Begam  «.  Ghalib  Ali      ...  6 

Mussamut  Aleo-Unissa  v.   Buldeo 

Narain  Singh  ...  327 

Mussamut  Amjudee  Begum  t\  Syud 

Ahmed  Hossein  ...  239 

Mussamut    Mulleeka   v.  Mussamut 
Jumeela  ...  445 

Mussamut  Moomeedunnissa  v.  Ma- 
homed  Ali  ...  825 

Mussamut  Mnnna  v.  Laljee  Boy     ...     98 

Muasamat  Nona  v.  Dhoomun  Dass...  106 


Naohiyappa v.  Ayyaaami  ...     82 

Nahanibai  v.  Nathu  Bhau  156,  897 

Nallatambi  Mudaliar  v.  Ponnusami 

Pillai  463 

Nanda  Bai  v.  Baghunandan  Singh...  659 
Nandvallabh  v.  Allibhai  Isyagani  ...  48 
Narain  Babu  v.  GouriPersad  Biais  401,-406 


M  m  P1GB. 

Naraina  Khootiar.  Lokenath  Khootia  18, 

498 
Naraina  Singh  and  others  v.  Shim- 

bho  Singh  and  others  ...  628 

Narain  Das  v.  Lajja  Bam  ...  622 

Narasimma  v.  Ragupathi  200,  860,  354 
Naranappa  v.  Nanna  Ammal  ...*117 
Narayana  v.  Champion  ...  419 

Narayan  Das  v.  Maharajaof  Burdwan  74 
Narayan  Rao  v.  Ramabai  ...  499 

Narayan  Visaji  v.  Lakshuman  Bapuji  248 
Narotam  Bapu  v.  Ganpatrav  Pandu- 

rang  ...  216 

Narrandas    Hemraj    v.  Vissandaa 

Hemraj  ...  421 

Narronji  Bhimji  v.  Mugnirum  Chan- 

daji  47,  91 

Narsingh  Das  v.  Narain  Das  ...  668 

Narsingh  Sewak  Singh  v.  Madho  Das  664 
Nasir  Bin  Abdul  v.  Dayabhai  Itcha 

Chand  ...  381 

Nath  Prasad  v.  Ram  Paltan  Ram  281,  480 
Natha  Hira  v.  Janardhan  Ramohan- 

dra  ...  405 

Natha  Sing  v.  Jodah  Singh  809,  487 
Nathu  v.  Badri  Das  804,  668 

Nawab  Oomrao  Begum  ...  509 

Navuib    Sidhee    Nazir   Alikhan   v. 

Djoodhiyaram  Khan  ...  817 

New  Beebhoom  Coal  Co.,  v.  Buloram 

Mahata  .  .  468 

Nijabutoola  v.  Wazir  Ali  ...    31 

Nilakandan  v.  Thandamma  ...  808 

Nilkanth  v.  Dattatraya  ...  212 

Nilmadhub  Chuckerbutty  v.  Ramso- 

doy  Ghose  ...  698 

Nilmadhub  Surnokar  v,  Kristo  Doss 

Surnokar  ...     98 

Nilo  Ramohandra  v.  Govind  Ballal 

and  others  ...  497 

Nistariny     Dossee    v.    Anundmoye 

Dossee  ...  483 

Nito  Kallee  Debee  v.  Kripanath  Roy.  804 
Nitta  Kolita  v.  Bishunram  Kolita  ...  299 
Nit  to  Gropal  Ghose  v.  Mackintosh  ...  277 
Nobin  Chunder  v.  Kenny  ...  277 

Nobin     Chunder     Chuckerbutty  v. 

Guru  Persad  Does  638,  642 

Nobin    Chunder     Chuckerbutty    v. 

Issur  Chunder  Chuckerbutty  686, 647 
Nobin  Chunder  Kurr  v.  Rojomoye 

Dossee  ...  110 

Nobo  Coomar  Mookhopadhya  v,  Siru 

Mullick  ...  460 

Noooor  Chunder  Bose  v.  Kally  Coo- 
mar Ghose  16,  265 
Normal  v.  Pookeraul  ...  424 


Digitized  by 


Google 


LIST  OF  CAfllS. 


Xlt 


M  FAOI. 

Norotamdas  Bhagtan  Das  v.  Daya- 

bhai  Iohhachand  ..,  424 

Noyes  *.  Crawley  ...  551 

Nujuf  Ali  v.  Patterson  ...  834 

Hand  Lall  Bob©  v.  Meer  Aboo  Maho- 
med 890,  478 
Nund  Ram  v.  Sita  Ram  ...  668 
Nund  Ram  v.  Ram  Prasad             ...  898 
Nuncio  Kiahore  Lall  v.  Musst.  Ram* 

sookheeKooer  ...  160 

Nora  Bibi  v  Jagat  Narain  ...  601 

Nnr-ul-Hasan  v.  Mohammad  Hasan.  668 
Nursing  Doyal  v.  Hnrryhor  Saba  17,  266 
Nothoo  Lall  Chowdry  v.  Shoukee  Lall    94 


Obedul  Hoesein  v.  Golook  Chnnder...  338 
Obboy  Churn  Ghose  v.  Gobind  Chnn- 
der Dey  ...  493 
Obhoy  Chnrn  Nnndi  v,  Krithartha 

MoyiDossee  109,  194 

Oodoyessnree  s.  Hnro  Kiahore  Dutt   353 
Opender  Narain  Mookerjee  v.  Gudad- 

hor  Dey  ...  435 

Oriental  Bank  Corporation  s.  Chrariol     8, 

p  639 

PaHiagatha  Ummer  Kntti  v.  Abdul 

Kadar  ...  180 

Pancham  Singh  v.  AH  Ahmad        ...  602 
Faadah  Gam  v.  Jennnddi  850,  869 

Papaya  v.  Ramana  ...  489 

Faram  Singh  v.  Lalji  Mai  ...     58 

Paran  Singh  v.  Jawahir  Singh       ...  677 
Paranjpe  v.  Eanade  ...  617 

Paras  Ram  v.  Gardner  ...  688 

Parbati  Charan   Mookerjea  v.  Ram* 

narayan  Matilal  ...  881 

Parbntty  Chnrn  v.  Ram  Narain     ...  586 
Parbntty   Nath  Roy   Chowdhry  v. 

Mndho  Paroe  206,  246 

Parekh  Ranohor  v.  Bai  Vakhat     ...  539 
Parell  Spinning  and  Weaving  Com- 
pany, Limited  v.  Manek  Haji  452,  481 
Parmeshari    Proshad  Narain  Singh 

v.  Mahomed  Synd  ...  232 

Parry  and  Co.,  v.  Appasami  Pillai  ...  113 
Parshadi  Lai  v.  Muhammad  Zain-ul- 

Abdin  ...  805 

Parnshmath  Misser  v.  Shaikh  Bun* 

dah  Ali  ...  508 

Pasnpati  Latchmia  v.  Pasnpati  Mu- 

thambhatln  6,  13 

Patankar  v.  Devji  185,  611 

Pearee  v.  Sootoher  ...  252 

Pearee  Mohan  Bose  v.  Gobind  Chnn- 
der ...  508 


F  FAOI. 

Pennballi  Snbbaramareddi  v.  Bhima* 

raja  Ramaya  *  ...  142 

Pepin  v.  Chander  See  Knr  Mookerjee  416 
Periandi  v.  Angappa  ...  599 

Pershad  v.  Chednlall  ...  491 

Pershadi  Lai  v.  Chnnni  Lall  680,  635 
Pestonji  Bezonji  v,  Abdool  Rahiman 

Bin  Shaik  Bndoo  509,  510 

Petambar  Baboo  v.  Nilmony  Singh 

Deo  ...  602 

Phillips  v.  Byre  ...    80 

Phoolbas    Koonwur   v.    Lalla    Ja* 

gheshnr  Sahoy  41,    43 

Piarey  Lai  v.  Saliga  71,  520 

Pichandi  v.  Eandasami  ...  180 

Pirjade  v.  Pirjade  109,  650 

Pogose  v,  Bebee  Dishkoon    Waris 

Calchnck  ...  127 

Ponnwsawmi  Tevarv.  The  Collector 

of  Madnra  201,  215,  227,  258,  858 
Poorno  Chnnder  Chatteriee  v.  Shu- 
rut  Chnnder  Bhuttacharjee     ...  242 
Poorno  Chnnder  Coondoo  v.  Proson- 

na  Coomar  Sikdar  ...  613 

Poresh  Narain  Roy  v.  Kassi  Chnnder 

Talnkdar  505,  588 

Potter  v.  Brown  ...     80 

Prabhacararow  v.  Potannah  18,  645,  656 
Prag  Chanbey  v.  Bhajan  Chandhri...  288 
Pragi  Lai  v.  MaxweU  874,  415 

Pranjivan  Dass  v.  Mayaram  216,  218 
Premabhai  Hemabhai  v.  T.  H.  Brown  187 
Premchand  Kybutta  v.  Hnrree  Doss 

Kybutta  ...  275 

Premji   Ludha  v.  Dossa   Doonger* 

sey  187,  188 

Prem  Snkh  Das  tf.  Phnpia  ...  538 

President  of  the  Municipal  Commis- 
sion, Guntnr  v.  Srikakulapu 
Padmarazn  276,  476 

President  of  the  Municipal  Com- 
mittee of  Moradabad  v.  Chatri 
Singh  ...  472 

Prosonna    Nath    Roy    Chowdry  v. 

Afzolonnessa  Begum  ...  357 

Prosonno  Chnnder  v.  Gyan  Chunder  486 
Prosunno  Chunder  Bhuttaoharjee  t\ 

Kristo  Chytunno  Pal  ...  128 

Prosunno    Coomar    Sircar  v.   Ram 

Coomar  Parooey  ...  248 

Protab  Chunder  Chowdhry  v.  Bro- 

jalal  Shaha  ...  300 

Protap  Chunder  Chowdhry  v.  Shnk- 

hee  Soonduree  Dassee  ...  601 

Provabutty  Dabee  v.  Mohendro  Lall 

Bose  ...  217 

Pan  ja  Knyarji  f .  Bai  Kuvar  200, 286,  240 


Digitized  by 


Google 


XIYJ 


UST  OP  CAII8. 


W  PAGE. 

Pureeag  Singh  v.  Shib  Bain  Chander 

Mundul  368,  861 

Purmanand  Das  Jiwandas  v.  Jama- 

nabai  ...  620 

Puma  Narain  Adhikar  r.  Hemokant 

Adhikar  ...  469 

Parran  Chunder  Ghose  ».  Hatty  Lall 

Ghose  Jahira  ...     39 

Pursut  Koer  v.  Pal  at  Boy  ...  643 

Pa  tali  Mehetiv.  Tnlja  ...  108 

Pylwan   Jarkan  Sahib  Vasthath  v. 

Jenaka  Baja  Tevar  ...  276 


Queen  Empress  v.  Lingaya 


88 


Badanath  Doss  v.  Gisborne  and  Co.  620' 

657 
Badhabai  and  Bam  Chandra  Konher 
v.   Anantrav   Bhagrant    Desh- 
pande  ...  541 

Badha  Kissore  Bose  v.  Aftab  Chan- 
dra Mahatab  ...  683 
Badha  Kristo  Balo  v.  Bap  Chander 

Nandi  ...  443 

Badhanath    Bose  v.    Bama   Churn 

Mookerjee  389,  685 

Badhanath  Dutt  v.  Govind  Chunder  141 
Badhanath  Sugraoharji  v.  Baidonath 

SealKabirag  ...  226 

Badha  Perahad  Singh  v.  Bam  Jee- 

wun  Singh  ...  359 

Badha  Prasad  Singh  v.  Bhagwan  Bai  698 
Badha  Prosad  Singh  v.  Sundur  Lall 

12,  671 
Badha  Proshad  Singh  r.-The  Collec- 
tor of  Shahabad  ...  572 
Bagava    Pishardi  v.    Ayuman   Jiri 

Mankal  Thupan  ...  118 

Bagho  Govind  Paranjpe  v.  Dipchand  409 
Baghoji  v.  Abdul  Karim  153, 169 

Baghoo  Pandey  v.  Kassy  Parcy  ...  596 
Baghubar  Dayal  v.  Laohmin  Shankar  510 
Baghubans  Gir  v.  Shoesaran  Gir  ...  637 
Baghubar  Dyal  Sahu  v.  Bhikya  Lai 

Misser  ...  564 

Baghumoni    Adhikari    v,    Nilmoni 

Singh  Deo  ...  884 

Baghunath  Gopal  v.  Nilu  Nathaji  ...  33 
Baghunath  Pershad  v.  Abdul  Hye...  667 
Bahmani  Bibi  v.  Hulasa  Kuar  ...  165 
Baiji  Manor  v.  Desai  Kallianrai  ...  608 
Raj  Bahadur  v.  Birmha  Singh  ...  340 
Baj    Bahadur    Singh  v.    Aohambit 

Lai  430,  469,  630 

Baj  Kumar  Banerji  v.  Baj  LakhiDabi  644 


X  PA<HL 

Baj  Chander  Ohatterjee  v.  Modhoo- 

soodun  Mookerjee  ...  284 

Baj  Chandra  Chuokerbutty  9.  Kinoo 

Khan  ...  315 

Baj  Krishto  Boy  v.  Beer  Chander    • 

Joobrag  ...  100 

Baja  Bahadur  Singh  v.  Aohambit  Lall  466 
Baja  Bnayet  Hossainv.GirdhariLall  656 
Baja  Iovara  Das  v.  Biohardson  ...  176 
Baja  Kaundan  ...  509 

Baja  Bam  Tewary  v.  Laohmun  Per- 
shad 480,  402 
Bajah  Bijoy  Keshub  Boy  v.  Abhoy 

Churn  Ghose  ...  216 

Bajah  Borodakant  v.  Sookmoy  ...  98 
Bajah    Saheb    Perhlad  v.  Bajendro 

Kishore  Singh  ...  858 

Bajah  Sahib  Perhlad  Sein  v.  Maha- 
rajah Bajender  Kishore  Singh...  651 
Bajaram  v.  Band  ...    46 

Bajendra  Nafch  Haldar  v.  Jagendra 

Nath  Haldar  ...  468 

Bajendro  Kishore  Singh  v.  Bulaky 

Mahton  ...  109 

Bajrup  Koer  t>.  Abul  Hossein  202, 

234,  852 
Bajubalu  v.  Krishnarai  ...  203 

Rama  v.  Venkatesa  ...  174'. 

BamAnuj  Sewak  Singh  v.  Hingu  Lai  652 
Bamakratna^D.LakshmiDevamma  100 
Raman  r.  Krishna  ...  168 

Raman  v.  Vairavan  ...  156 

Bamanadan  Chetti  v.  Periatambi  110,  668 
Bamausar  Pandey  v.  Baghubar  Jati 

857,428 
Bamanada  Sastri  v.  Minatohi  Ammal  620 
Bamasami  v.  Sesha  ...  658 

Bama  Sekara  r.  Dharma Baya  ...  618 
Bambhau  Bapushet  v.  Bhai  Bapushet  216 
Bambhat  Agnihotri  9.  The  Collector 

of  Punu  ...  263 

Bamohendra  Ganesh  v.  Devba  ...  181 
Bam   Chunder    Ghosaul  v.  Juggut 

Mon  Mohiney  Dabee  266,  878,  687 
Bam  Coomar  Kur  v.  Jakur  Ali  171,  676 
Bam  Das  v.  Birjnundu  Das  ...  167 

Bam  Dass  v.  Watson  ...  101 

Bamdhun  Satra  v.  Nobin  Chunder...  552 
Bamdinv.  Kalka  Prasad  ...  611 

Bamdoyal    Khan  v*  Ajoodhia  Bam 

Khan  ...  140 

Bam  Dutt  Singh  9 .  Horakh  Narain 

Singh  443,  516 

Rameahar  Chanbey  v.  Matabhikh  ...  370 
Rameshar  Singh  v.  Bisheshar  Singh  624 
Rameshwar    Mandal  v.  Bamohand 

Boy  376,  457 


Digitized  by  CjOOQIC 


Mst  of  ckBtn. 


ilvii 


B  paos. 

Bamosnui  Dasaee  ...  616 

Bamessur  Persaft    Narain  Sing   t*. 

Koonj  Behari  Pattuk  ...  232 

Barney  v.  Broughton  87,  605 

Bamhit  Bai  v.  Satgur  Bai  172,  675 

Bamit  Singh  v.  Banwari  Lai  Sahu...  529 
Bamji  v.  Dharma  162,  393 

Bamjiwan  Mai  v.  Chand  Mai  ...  449 
Bam   Kishan  r.  Bhawani  Das  324, 

326,  887 
Bam  Kisto  Boy  v.  Muddun  Gopal  Boy  382 
Bam  Kristna  Gastrulu  v.  Darba  Lak- 

8hmi  devamma  ...  108 

Bam  Lakhi  v.  Durga  Charan  Sen  496,  525 
Bam  Lai  v.  Harrison  ...     26 

Bam  Lai  v.  Jagan-nath  ...  670 

Bam  Lai  v.  Tula  Bam  ...  341 

Bamnad  Zamindar  9.  Dorasami  ...  505 
Bamphul  Sahoo  v.  Misree  Lall  ...  201 
Bamphul  Singh  v.  Deg  Narain  Singh  4^2 
Bam  Prosad  Janna  «.  Lakhi  Narain 

Pradhan  524,  565 

Bam  Sahai  v.  Gaya  ...  284 

HuTinMLlnti  Sing  v.  Mani  Bam  ...     26 

Bamsebnk  v.  Bam  Lall  Koondoo  176,  197 
Bam  8ingh  Mohapattnr  v.  Bhottro 

Manjee  Sonthal  ...  344 

Bam-soonder  Sandyal  v.    Gopessur 

Mostofee  ...  685 

Bam  Snbhag  Das  v.  Gobind  Prasad  107 
Bam  Snkh  Bhnnji  v.  Brohmoji  Dasi  381 
Banchhod  Varajbhai  v.  The  Munici- 
pality of  Dakor  ...  272 
Banchodji  r.  Lallu  ...  34 
Banee  Khajooroonnissa  v.  Mirza  Sai- 

foollaKhan  ...  446 

Banjit  Singh  v.  Sheo  Prasad  Bam  ...  193 
Baaik  Lai  v.  Gajraj  Singh  282,  480 

Batanji  Hormasji  Bottlewalla  v.  Ed- 

alji  Hormasji  Bottlewalla        ...  219 
Batan  Erishen  Poddar  v.  Baghoo- 

nath  Shaha  ...  629 

Batansi  Kalian ji  and  6  others  .  6,  12 
Beg  t\  Kastya  Bama  ...251 

Bobarts  v.  Harrison  3,  631 

Robert  and  Charriol  v.  Lombard  146,  339 
Bobinsonv.AyyaKrishnamachariyar  238 
Budra  Bant  Surma  Sircar  v.  Nobo 

Kishore  Surma  Biswas  ...     45 

Rung  Lall  Misser  v.  Tokhun  Misser.  614 
Bongo  Bujaji  v.  Babaji  ...  211 

Kongo  Lall  Mundul  v.  Abdool  Guf  - 

foor  ...  532 

Bupa  Jagshet  v.  Krishnaji  Govind  620, 

...  562 
Bup  Kishore  v.  Mohni  ...     19 

Bup  Singh  v.  Mukhraj  Singh         ...  671 


8  page. 

Sabhanatha  v.  Lakshmf  *..  668 

Sabapathi  Chetti  v.  Subraya  Chetti.  274 
Sabapati  Chetti  v.C  hedumbara  C  hetti  19 
Sadagopa  v.  Jamuna  Bhai  804,  305 

Sadha  v.  Mnssumat  Bhagwani  ...  564 
Sah  Mukhun    Lall  Panday  v.    Sah 

Koondun  Lall  ...  297 

Sakharam  Dikshit  v.  Ganesh  Sathe...  484 
Sakharam  Govind  Kale  v.  Damodar 

Akharam  Gngar  ,  ...  617 

Sakharam  Vithal    Adhikari  v.  The 

Collector  of  Batnagiri  ...  319 

Sama  Bayar  o.  Annamalai  Chetti  ...  463 
Sangram  Singh  v.  Bnjharat  8ingh...  667 
Saniivi  v.  Errapa  378,  404,  474 

Sankara  Aiyan  v.  Lingam  Aiyan  ...  163 
Saroda  Pershad  v.  Pahali  Mohan ti...  212 
Saroda  Pershad    Chatto   Padhya  v. 

Brojonauth  Bhnttachargee      69, 479 
Saroda  Soondury  Dossee  v.  Doyamo- 

yee  Dossee  496,  546 

Sarubaikom  Jistmal  v.  Bapu  Narhar 

Sohoni  ...  216 

Satoowree  Singh  v.  Kristo  Bangal  ...  374 
Seagram  v.  Tuck  ...    77 

Seetul    Chunder    Bhuttaoharjee    v. 

Judoonath  Bose  ...  273 

Seetul  Singh  Sooruj  Buksh  Singh...  606 
Seru  Mohun  «.  Bhagoban  Din  Pan- 

dey  ...  627 

Seshav.  Seshaya  ...  178 

Sethu  v.  Nayana  ...  407 

Settiappan  v.  Sarat  Singh  294,  301 

Sevu  v.  Muttusami  ...  526 

Shadee  Lai  v.  Musumat  Bhawanee...  330 
Shaikh  Ewas  v.  Mokuna  Bibi  ...  284 
Shaikh  Mahomed  Ansur  v.  Shaikh 

Sefatoollah  ...  24$ 

Shaik  Moosa  v.  Shaik  Essa  130, 132, 166 
Shambhu  Nath  Nath  v.  Bam  Chan- 
dra Shaha  ...  166 
Sham    Churn    Auddy    v.    Tariney 

Churn  Banerjee  ...  224 

Shami  Mohammed  v.  Mohammed  Ali 

Khan  ...    28 

Sham  Kant  Banerjee  v.  Baboo  Go- 

pallal  Tagore  ...  108 

Sham  Karan  v.  Piari  ...  637 

Sham  Lai  v.  Kanahia  Lai  ...  652 

Shapurji  Jahangirji  v.  Superinten- 
dent of  Poona  City  Jail         417,  437 
Shapurji  Nowroji  Pochoji  v.  Bhikaiji    60 
Sharat  Sundari  Dabia  v.  Bhoba  Per- 
shad Khan  Chowdhuri  ...  569  ' 
Sheikh  Akbar  v.  Sheikh  Khan        ...  394 
Sheikh  Golam  Ali  v.  Kazi  Mahomed 
Zahur  Alam                           ...  220 


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xMii 


LIST  09  CAStS. 


8  PAGi. 

Sheikh  Khoor  Shed  Hosseinv.  Nub- 
bee  Fatima  ...  649 
Sheo  Gholam  Sahoo  v.  Rahut  Hob- 

sein  ...  650 

Sheo  Partab  Narain  Singh  v.  Sheo 

Gholam  Singh  84,  85 

Sheo  Prasad  v.  Anrndh  Singh  119,  665 
Sheo  Prasad  v.  Udai  Singh         455,  524, 

561,566 
Sheo    Sohye    Boy    v.  Luohmeshur 

8ingh  530,  549 

Sheth  Kahandas  Narandas  v.  Dahi- 

abhai  98, 109, 110 

Shib  Dat  v.  Kalka  Prasad  172,  412,  696 
Shib  Lai  v.  Ganga  Prasad  514,  589,  691 
Shib  Lai  v.  Eadha  Kishen  ...  681 

Shiboo  Narain  Sing  v.  Madden  Ally  295 
Shiro  Kamari  Debi  v.  Govind  Shaw 

Tanti  ...  561 

Shivagunga  537, 539 

Shiyalingaya  v.  Nagalingaya  ...  126 

Shivaram  v.  Narayan  and  others  ...  868 
Shootenath    Mookerjee    v.    Obhoy 

Nund  Boy  528,  615,  618 

Shrinivas  Udpirao  v.  Reid  ...  219 

Shumbhoo    Nath    Shaha    v.    Guru 

Churn  Lahiri  ...     16 

Shunmugam  v.  Moidin  ...  116 

Shurnomoyee  v.  Pattarri  Sirkar  350, 400 
Shurnomoyee  Dasi  v.  Srinath  Das...  523 
Siddhessur  Dutt  v.  Sham  Chand  ...  468 
Sidhojirav  v.  Naikojirav  ...498 

Sied  Mohidin  Sahib  ...     40 

Sikher  Chund  v.  Dnlputty  Singh  321, 428 
Sirdar  Khan  v.  Buldeo  Singh  ...  517 
Sirdar  Sainey  v.  Piran  Singh  ...     72 

Sitaram  Yasudey  v.  Khanderav  Bal 

Krishna  7, 262 

Sitla  Din  v.  Sheo  Prasad  ...  673 

Sivarama  v.  Rama  ...  628 

Sivarama  v.  Subramanya  ...  295 

Sivarama  Pillai  «>.  Turnbull  ...  277 

Skinner  v.  Orde  ...     26 

Sobhag  Chand  Gulab  Chand  v.  Bhai 

Chand  ...  656 

Sobha  Pandey  v.  Sahodra  Bibi  ...  428 
Sohan  Lai  v.  Karim  Bakhsh  ...  691 

Soshi  Bhusan  Chand  v.  Grish  Chun- 

der  ...  623 

Sondaminee  Dossee  v.  Maharaja  Dhe- 

raj  Mahatab  Chand  Bhadoor  ...  86 
Sreedhur  Dey  v.  Adoyto  Kurmokar.  226 
Breekishen  v.  Ram  Kristo  ...  196 

Sreemant  Lall  Ghose  v.  Shama  Soon- 

duree  Dossee  ...  317 

greemutty  Chundermonee  Dassee  v. 

Santo  Moonee  Dassee  ...  334 


B  PAGB. 

Sreenath  Chatterjee  v.  Kylash  Chun- 

der  Chatterjee  ...  681 

Sreenath  Gooho  v.  Yusoof  Khan  698, 693 
Srihary    Mundul  v.  Murari    Chow- 

dhry  ...  646 

Srinath     Gangopadhya    v.     Mahes 

Chandra  Roy  ...  467 

Srinath    Kur  v.  Prosunno   Kumar 

Ghose  538, 54S 

Sri  Raja  Satraoherla  v.  Sri  Raja  Se- 

tarama  ...  40S 

Sri   Yiswambhara    v.    Sri    Saradhi 

Charana  201, 353 

Stephen  v.  Stephen  ...  498 

Stowell  v.  Billings  ...  696 

Subramaniam  Chetti,  K.  v.  T.  Subra- 

maniam  Chetti  ...  544 

Subramaniya  Ayyer  v,  Ramaohan- 

dra  Rau  201,  206 

Sukh  Nandan  v.  Renniok  ...  129 

Sukho  Bibi  v.  Ram  Sukh  Das  ...  455 
Sunkur  Pershad  v.  Goury  Pershad...  882 
Sunraj  Kauri  v.  Ambika  Prasad  ...  618 
Suput  Singh  v.  Imrit  Tewari  ...  194 

Surju  Prasad  Singh  v.  Khwahish  Ali  46 
Suryanna  v.  Durgi  303, 304,  311 

Syad  Mahomed  v.  Syad  Abedoollah.  652, 

661 
Syud  Shah  Alleh  Ahmed  v.  Mussa- 
mut  Pibee  ...    69 


Tammirazu    Ramalogi    v.   Pantina 

Narsiah  ...  489 

Tanner  v.  Heard  ...     76 

Tapling  v.  Jones  ...219 

Taraohand    Megradj   v.    Kashinath 

Trimbak  ...  651 

Taranath  Dutt  v.  The  Collector  of 

Sylhet  ...  271 

Tarini  Das  Bandyopadbya  v.  Bishtoo 

Lai  Mukhopadaya  ...  678 

Tarini  Prasad  Ghose  v.  Ram  Krish- 
na Banerjee  ...  381 
Tata  v.  Ramaohandra                      ...  653 
Tawangar  Ali  v.  Kura  Mai             ...  431 
Teagaraya  Mudali  v.  Mariappa  Pil- 

lai  8,  177 

Thackersey  Dewraj  r.  Hurbhum  Nur- 

sey  ...    68 

Thakoor  Kapilnauth  Sahai  Deo  v. 

The  Government  ...     89 

Thakur  Das  v.  Shadilal  ...  661 

Thakur  Prasad  v.  Partab  385,  495 

Thakurya  v.  Sheo  Singh  ...  894 

Thir  Sing  v.  Venkataramier  81,    40 


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LIST  OF  CASES. 


xli 


Tillak    Chand-Hindumal  v.  Jitamal 

Sudaram  153  267, 

Timal  Kuari  v.  Ablakh  Rai  ...  105 

Tiruchurna  Perumal  Nadan  v.  San- 

guvien  ...  583 

Titn  Bibi  v.  Mohesh  Chunder  Bag- 

chi  ...  482 

Tonoo   Ram    Gossain   r.     Mohessur 

Gossain  ...  304 

Toolsee  Ram  Doss  v.  Mahomed  Afzul  305 
Tor  Abali  Khan  v.  Nilruttun  Lai  ...  383 
Toree  Mahomed  v.  Mahomed  Mabood 

Bnx  171,  676,  679 

Treepoorasoondery  Dosse  v .  Deben- 

dronath  Tagore  ...  485 

Trilochnn  v.  Nobokishore  Gnttuck...  433 
Tribhovan  Gangaram  v .  Amina  ...  397 
Trimalrav  Raghavendra  v.  The  Muni- 
cipal Commissioners  of  Hubli...  452 
Trimbak  Bawa  v.  Narayan  Bawa  ...  311 
T.  Sivithri  Andarjanom  v.  M.  Vasu- 

devan  Nambudripad  ...  429 

Tnkaram  v.  Satvaji  Khanduji  ...  632 
Tukaram  v.  Sujangir  Guru  ...     64 

Udit  Narain  Singh  v.  Harogouri  Pro- 
sad  ...  624 


Udit  Singh  v.  Padarath  Singh  283,  480 
Ugrah  Nathtf.  Laganmani  413,  688 

Uma  Shankar  v.  Kalka  Prasad  430,  435, 

529 
Umbicka  Churn  Goopta  v.  Madhub 

Ghosal  ...  576 

Umesh  Chunder  Roy  v.  Raj  Bullubh 

sen  ...  292 

Ummer  Kutti  v.  Abdul  Kadar  ..  180 

Umr-un-nissa    v,    Muhammad    Yar 

Khan  ...  556 

Unkar  Das  v.  Narain  ...  281 

Unnoda  Churn  Dass  Biswas  v.  Mo- 

thura  Nath  Dass  Biswas  ...  482 

Unnoda  Persad  Roy  t\  Sheikh  Koor- 

pan  Ally  10,  644 

Unnoda  Persaud  Mookerjee  v.  Kristo 

Coomar  Moitro  ...  106 

Upendra  Lai  Mukhopadhya  v.  The 

Collector  of  Rajshahye  ...474 


Vadlamudi  Pichina   v.  Tanuru  Ap- 

padu  ...  178 

Yalia  Tamburatti  v.  Vira  Rayan  177,  206 
Vane  v.  Vane  ...  148 

Vasndeva  v.  Chinnasami  ...     85 

Velayuthan  v.  Laksmana  ...  291 

Vellayaf.  Jaganatha  ...  673 


Vencataramana  v.  Srinivasa  ...  169 

Vencatasawmy  Naidu  v.  Vencataraju 

Naidu  ...  101 

Venkapa  v.  Chenbasapa  ...  289 

Vencatachala  v.  Appathorai  287, 290,  298 
Venkata  Narasiah  v.  Subbamma  304,  312 
Venkatapathi  v.  Subramanya  ...  816 
Venkatarayalu  r.  Narasimha  666,  678 
Venkatarayudu  r.  Nngadu  ...  605 

Venkata  Reddy  r.  Lister  ...  2-fct 

Venkatasubbaramayya  v.  Surayya...  489 
Venkatasubha  Pattar  r.  Giri  Ammal  89 
Venkateswara  lyen  v.  Shekhari  Var- 

ma  ...   139 

Venkatrav  Bapu  v.  Bijesing  Vithal 

Sing  ...  171 

Venubai  The  v.  Collector  of  Nasick..  603 
Vijayasami  v.  Periasami  ...  546 

Virapillay  v.  Muruga  ...     48 

Viraragava  v.  Krishnasami  437,  440 

Virarama  v.  Annasami  . . .  694 

Virasami  v.  Athi  672,  686 

Virasami  v.  Lubba  ...     58 

Virasami   Mudali  v.  Ramasami   Ma- 

dali  379,  456 

Viravsami  Naik  v.  Sayambabay  Sahi- 

ba  ...  277 

Visalatchi    Ammall  v.   Sivasankara 

Taker  ...  694 

Vithal  Janardanr.  Vithojirav  Putla- 

jirar  4,  633 

Viziarama  Razu  r.  The  Secretary  of 

State  for  India  in  Council       ...     67 
V.  K.  Gujar  r.  V.  D.  Barve  85,  270 

Vythilinga  Pillai  r.  Thetchanamurti 

Pillai  399,  457,  460,  461 


Wajibun  r.  Kadir  Bnksh  ...  268 

Watson  r.  Woodman  ...    189 

Wazir  Mahton  v.  Lulit  Sinprh  ...  603 

Webor  Ali  v.  Gaddai  Behari  ...  389 

Whitehouse  r.  Fellowes  ...204 
Womesh    Chunder    Goopto    v.   Raj 

Narain  Ray  ...  483 
Wooma  Moyee  Burmonya   v.   Ram 

Bufesh  Chettangee  ...  323 


Yeknath    Ramchandra    v.    Waman 

Brahmadev  ...     46 

Yonng  v.  Mangala  Pilly  Ramaiya  ...  159. 
Yusuf  v.  Sirdar  ...688 

Zahur  Khan  v.  Bakhtawar  ...  653 

Zaibulnissa  Bibi  v.  Kulsum  Bibi    ...     33 
Zulfikar  Husain  v.  Munna  Lai.        20,393 


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ACT  No.  XV  OF  1877. 

As  amended  by  Acts  Ho.  Ill  of  1879  and  Ho.  Till  of 


Passed  by  the  Governor  General  of  India  in  Council. 

(Act  No.  XV  of  1877  received  the  assent  of  the  Governor 
General  on  tlie  19th  of  July,  1877 :  Act  No.  XII  of 
1879  received  the  assent  of  the  Governor-General  on 
the  29th  of  My,  1879,  and  Act  No.  VIII  of  1880 
received  the  assent  of  the  Governor-General  on  the 
12th  of  March,  1880.) 


An  Act  for  the  Limitation  of  Suits,  and  for  other 

purposes. 

Whereas  it  is  expedient  to  amend  the  law  preamble, 
relating  to  the  limitation  of  suits,  appeals  and 
certain  applications*  to  courts  ;  and  whereas  it 
is  also  expedient  to  provide  rules  for  acquiring 
by  possession  the  ownership  of  easements  and 
other  property ;  It  is  hereby  enacted  as  fol- 
lows : — 

(a)  The  above  preamble  distinctly  shows  that  the  The  Act  is  not 
Act  is  not  intended  to  apply  to  all,  but  to  certain  appli-  ply  to  all  *pp& 
cations   to   courts.     The  third   division  of   Schedule  II 

*  By  bill  No.  23  of  1886,  introduced  into  the  Imperial  Council  on 
the  1st  September  1886,  it  has  been  proposed  to  repeal  Articles  171, 
171*,  171*  of  the  second  schedule  and  to  modify  Article  171*  by 
substituting  "  or  section  582  of  the  Code  of  Civil  Procedure"  for  "of 
the  same  code."  The  bill  also  proposes  to  extend  the  provisions  of 
section  5  applicable  to  an  appeal,  to  the  objection  and  notice  by 
respondent  under  section  561  of  the  C.  P.  C.  and  also  to  extend  the 
provisions  of  the  Limitation  Act  applicable  to  an  application  and 
order  under  section  103  of  the  C.  P.  C,  to  an  application  for  am 
order,  and  to  an  order,  for  setting  aside  a  dismissal  under  section 
381  of  the  C.  P.  0.  The  repeal  of  the  words  "  within  30  days  from 
the  date  of  the  order"  in  sections  599  and  601,  has  also  been  proposed. 


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2  PREAMBLE. 

which  deals  with  applications,  shows  that  every  Article 
therein  contained,   No.   178  only  excepted,   specifically 
relates  to  some  case  pending  or  already  decided.     Article 
178  must  be  construed,  with  reference  to  the  wording  of 
the  other  articles,   and  can  relate  only  to  applications 
Does  not  apply  ejusdem  generis,  and  therefore  not  to  an  application  for 
wonf  or  probate!  probate.      In  the  previous  Limitation  Acts  XIV  of  1859, 
and  IX  of   1871,  there  was  no  such  Article  as  178.     It  is 
observed,  that,  had  the  Legislature  intended  to  apply  for 
the  first  time  a  period  of  limitation  to  such  applications, 
there  would  have  been  some  provision  in  regard  to  them 
similar  to  that  contained  in  section  2,  in  respect  of  suits 
for  which  the  new  Act  prescribes  a  shorter-  period  of 
limitation  than  was  previously  allowed.     In  the  matter  of 
the  petition  of  Ishan  Chunder  Roy.W 
Does  not  apply       (b)     In  Janaki  v.  Kesavalu,*2)  Turner,  C.  J.,  observes, 
Religious  En-      that  the  Limitation  Act  could  not  have  been  intended  to 
and  appoint-       apply  to  an  application  for  probate,  an  application  under 
trustee*.  the  Religious  Endowments  Act,  an  application  for  appoint- 

ment of  new  trustees,  Ac,  and  that,  if  it  was  held  that 
Article  178  would  apply  to  all  applications  for  which  no 
period  of  limitation  is  provided,  it  would  lead  to  most 
inconvenient  results.     This  was  in  accordance  with  the 
decision  of  the  Bombay  High  Court  in  Bai  Manekbai  v. 
Manekji  Kavasji/3)  in  which  Westropp,  C.  J.,  observes, 
that  an  examination  of  the  schedule  relating  to  "  Appli- 
cations" shows,   that  the    applications   therein  contem- 
plated are  such  as  are  made  under  the*  Civil  Procedure 
Code. 
Application  to       (o)     In  Bhoyrub  Dass  Johurry  v.  Doman  Thakoor,(4> 
and roitoreit  to   it  was  held,  in  May,  1879,  that  the  application  of   the 
the  board.  legal  representative  of  a  deceased  plaintiff  for  the  revival 

of  the  suit  was  governed  by  Article  178,  and  had  three 
years.  In  March,  1880,  the  same  question  had  to  be  dealt 
with  in  Govind  Chunder  Goswami  v.  Rungun  Money  <5> 
in  which,  decree  dated  6th  December,  1869,  established 

(1)  I.  L.  E.,  6  Calo.,  707.       I      (3)  I.  L.  R.,  7  Bom.,  213. 

(2)  I.  L.  E.,  8  Mad.,  207.       |      (4)  I.  L.  E.,  5  Calc,  139. 

(6)    I.  L.  E.,  6  Calc,  60. 


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PRBAJtfiLX.  d 

tbe  will  and  declared  that  the  trusts  ought  to  be  per- 
formed, and  directed  certain  enquiries  to  be  made  for  the 
purpose  of  settling  a  scheme  by  which  to  cany  out  the 
trust.  Before  the  scheme  was  finally  approved  and 
settled  and  while  the  proceedings  were  pending  the 
case  was  struck  off  the  board  for  want  of  prosecution,  on 
the  14th  August,  1875.  No  steps  were  taken  to  have  it 
restored.  In  1879  both  the  plaintiff  and  defendant 
died.  In  the  same  year,  the  heirs  of  the  plaintiff  insti- 
tuted a  suit  against  the  administrator  of  the  defendant 
for  the  purpose  of  having  the  decree  in  the  original 
suit  carried  out.  This  suit  was  dismissed  by  the  court 
of  first  instance  under  section  13  of  the  Code  of  Civil 
Procedure,  but  the  appellate  court,  holding  that  the 
original  suit  was  subsisting  and  might  be  reconstituted, 
directed  that  the  plaintiffs  should  be  allowed  to  amend 
their  plaint  by  putting  it  into  the  form  of  a  petition 
under  section  372  of  the  code.  On  a  petition  by  the 
plaintiffs  praying  that  the  original  suit  might  be  re- 
vived and  restored  to  the  board,  it  was  held  that  the 
legislature  did  not  intend  to  deal  with  such  applications 
under  the  Limitation  Act,  and  that  even  if  Article  178 
was  applicable,  the  application  would  not  be  barred, 
limitation  running  from  the  time  when  the  suit  was 
allowed  to  be  reconstituted. 

(d)  In  the  above  case,  the  court  observe  that  the   Does  not  affect 

.  .  .  applications  for 

legislature  did  not  intend  to  include  in  the  Limitation  change  of  attor- 

.  »  ney,  «c,  and 

Act   every  application    to  a  court  with  reference  to  its  court's  power 

to  add  parties. 
own  list  of  causes,  such  as  applications  to  transfer  a  case 

from  one  board  to  another,  to  transfer  a  case  to  the  bottom 
of  the  board,  change  of  attorneys,  and  so  forth.  In  the 
Oriental  Bank  Corporation  v.  Chariol,^)  it  was  held  that 
the  court's  power  to  add  parties  is  not  affected  by  limita- 
tion. 

(e)  In  Robart  t>.  Harrison/2)  Wilson,  J.  observes,  "  The  The  act  of  an 

.  _  _    arbitrator  in 

preamble  deals  only  with  '  applications  to  courts,  and  I  handing  an 
think  the  act  is  limited  accordingly.     It  is  also  legitimate,  Pj^J^1110"  *° 

application 
(1)  I.  L.  B.,  12  Calc,  642.      |      (2)  I.  L.  E.,  7  Calc,  888.  wifhin  this  Act. 


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4  PREAMBLE. 

I  think,  to  consider  the  character  of  the  series  of  appli- 
cations enumerated,  in  order  to  ascertain  what  an  appli- 
cation means :  see  Be  Ishan  Ch under  Boy  (8,  C.  L.  R., 
52).  Now,  in  the  case  of  all  the  other  applications 
mentioned  in  the  schedule,  the  application  is  one  which 
the  court  has  to  deal  with  judicially  by  making  an  order 
in  accordance  with  the  application  or  dismissing  it.  I 
think  I  should  have  to  do  great  violence  to  the  ordinary 
meaning  of  words,  and  to  disregard  all  the  indications 
afforded  by  the  Act  itself,  if  I  were  to  hold  that  the  act 
of  an  arbitrator,  in  handing  an  award  to  the  proper  officer 
to  be  filed,  was  an  application  within  the  meaning  of  the 
Limitation  Act." 
Attorney's  ap-         (f)     In  Abba  Haii  Ishmail  v.  Abba  Thara,*1*  an  attor- 

plicationto  r* 

court  calling      ney  made  an  application  under  Rule  149  of  the  Common 

show  cause  why  Law  Rules  of  the  Supreme  Court  of  Bombay,  that  his 

pay  hi«  bill  of     client  should  show  cause  why  he  should  not  pay  the 

tected  by  any"    balance  shown  by  the  Taxing  Master's  allocatur  to  be  due 

tion.  in  respect  of  his  bill  of  costs,  and  why  in  default  of  such 

payment,  attachment  should  not  issue  against  his  person 

and  property.     It  was  held  that  such  an  application,  not 

being  a  suit  within  the  meaning  of  Act  IX  of  1871,  was 

not  barred  by  any   law  of   limitation  in  British  India. 

This  ruling  is  dated  July,  1876. 

Limitation  Act        The  Bombay  High  Court,  following  the  decision  of  the 

does  not  apply  «r        -o  »  o 

to  application     Madras   High   Court,   held   that  the  provisions  of  the 

for  sale  certifl-  °  ... 

cate  and  to  ap-    Limitation  Act  do  not  apply  to  applications  to  a  court  to 

plications  to  do  .    _  .  5  ,. 

what  the  court    do  what  it  has  no  discretion  to  refuse,  nor  to  applications 

has  no  discre-  .  ,  ... 

tion  to  refuse,  for  the  exercise  of  functions  of  a  ministerial  character,  and 
that  Article  178  is  not  applicable  to  applications  for 
certificates  of  sale.  Vithal  Janardan  v  Vithojirav  Putlaji- 
rav>(2)  Kylasa  Gounden  v  Bamasami  Aiyan.(8> 

(1)  I.  L.  R.,  1  Bom.,  258.      |      (2)  I.  L.  R.,  6  Bom.,  586. 
(3)  I.  L.  R.,  4  Mad.,  172. 


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SBC.  1]  PART  I. — PRELIMINARY.  5 

PART  I. 

PRELIMINARY. 

1.  This   Act  may  be   called   "The   Indian  shontitie. 
Limitation  Act,  1877  :" 

It  extends  to  the  whole  of  British  India  ;  but  Extent  of  Act. 
nothing  contained  in  sections  two  and  three  or 
in  Parts  II  and  III  applies — 

(a)  to  suits  under  the  Indian  Divorce  Act,* 

or 
(6)  to  suits  under  Madras  Regulation  VI 
of  1831 ;  t 
and  it  shall  come  into  force  on  the  first  day  commence- 

*  ment. 

of  October,  1877. 

(a)     This  Act  came  into  force  on  the  1  st  day  of  October,   Generally  all 

suits  and  pro- 

1877,  from  which  date  Act  IX  of  1871  ceased  to  operate,   ceedingscom- 

~.  ,.        „  _  _.  ,     .  .  menced   after 

(xenerally  all  suits  and  proceedings  commeoced  after  that   i&t  October  1877 

-ii  ..  -i-i, i  *  v        ii  must  be  govern- 

date  must  be  governed  by  the  new  Act.     *•  In  all  matters  ed  by  the  Act 

of  substantive  law,  the  law  of  limitation  in  force  at  the 

period  of  the  arising  of  the  right,  governs.     In  all  cases 

of  adjective  law,  the  law  of  limitation  in  force  at  the 

period  of  enforcement,  governs.     In  some  cases,  questions 

of  substantive  law  appear  in  the  disguise  of  questions  of 

adjective  law.     Execution   however  is  a  proceeding  to 

enforce  a  decree  of  a  court,  and  comes  under  the  head  of 

purely  adjective  law.     Such  being  the  case,  clearly  the 

*  The  Indian  Divorce  Act  (IV  of  1869)  relates  to  Christians  and 
applies  to  marriages  contracted  under  Act  III-  of  1872.  Unreason- 
able delay  in  presenting  a  petition  for  dissolution  of  marriage  is  a 
ground  for  disallowing  the  petition  under  the  Divorce  Act. 

f  Madras  Regulation  VI  of  1881  is  intended  to  prevent  misappro- 
priation of  emoluments  annexed  by  the  State  to  hereditary  village 
and  other  offices  in  the  Revenue  and  Police  Departments ;  and  to 
maintain  the  due  efficiency  of  those  offices.  Claims  to  such  offices 
or  to  emoluments  annexed  thereto  are  cognisable  by  the  revenue 
authorities  (Sloan's  Code,  page  46%.) 


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0  PART  I. PRELIMINARY.  [8EC.   1 

law  prevailing  at  the  time  of  the  application  must  govern." 
Pasupati  Latchmia  v.  Pasupati  Muthambhatlu.W  The  law 
of  limitation  governing  a  suit  for  debt  is  that  law  which 
is  in  force  at  the  date  of  its  institution.  Mohesh  Lai  t?. 
Busunt  Kumaree.t2) 

(b)  Tiie  Civil  Procedure  Code  X  of  1877,  which 
came  into  force  on  the  1st  October,  1877,  contained  a 
clause  to  the  effect  "nothing  herein  contained  shall 
affect  the  procedure  prior  to  decree  in  any  suit  instituted 
or  appeal  presented"  before  October,  1877.  In  order  to 
arrive  at  the  true  construction  of  the  new  Civil  Pro- 
cedure Code,  it  was  considered  necessary  to  keep  in  view 
the  provisions  of  section  6  of  the  General  Clauses  Act  I  of 
1868,  which  provides  that  "  the  repeal  of  any  Statute, 
Act,  or  Regulation,  shall  not  affect  anything  done,  or  any 
offence  committed,  or  any  fine  or  penalty  incurred,  or  any 
proceedings  commenced  before  the  repealing  Act  shall  have 
come  into  operation." 
Observations  of  (c)  In  the  matter  of  the  petition  of  Ratansi  Kalian ji 
on  the  erfect  oi  and  6  others/8)  Westropp,  C.  J.,  observes,  "  so  far  as  the 

the  saving  . 

clause  in  the  re-  enactment  preserves  'anything  done  previously  to  the 
repealing  Act  taking  effect,  it  merely  embodies  the  law 
as  previously  declared  by  eminent  judges  :  for  example, 
Lord  Tenterden  in  Surtees  v.  Ellison  (9  B.  and  C,  750 ; 
see  p.  752)  said  : — *  It  has  long  been  established  that, 
when  an  Act  of  Parliament  is  repealed,  it  must  be 
considered  (except  as  to  transactions  past,  and  closed)  as  if  it 
had  never  existed.  That  is  the  general  rule ;  and  we  must 
not  destroy  that  by  indulging  in  conjectures  as  to  the 
intention  of  the  legislature.'  That  statement  of  the 
rule  is  adopted  in  totidem  verbis  by  Lord  Justice  Turner 
in  Grisewood  and  Smith's  case.  (4  De  G.  and  J.  544 ; 
see  p.  557).  The  same  clause  in  the  General  Clauses  Act 
in  preserving  •  proceedings  commenced'  before  repealing 
Acts  come  into  operation,  seems  to  have  been  penned  in 
the  spirit  of  the  doctrine  laid  down  in  1837  by  Lord 

(1)  I.  L.  R.,  1  Mad.,  62.       |      (2)  I.  L.  R.,  6  Calc,  340. 
(3)  I.  L.  R.,  2  Bom.,  162. 


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SEC.  1]  PART  I. — PRELIMINARY.  7 

Denman  and  his  colleagues  of  the  King's  Bench  in 
Hitchcock  v.  Way  (6  A  and  E  943,  951),  when  they  said 
that  they  were  •  of  opinion  in  general  that  the  law  as  it 
existed  when  the  action  was  commenced  must  decide  the 
rights  of  the  parties  in  a  suit,  unless  the  legislature 
expresses  a  clear  intention  to  vary  the  relation  of  litigant 
parties  to  each  other.'  " 

(d)  To   apply   the    new    Limitation   Act   as   if    its  Repeal^*  a  sta- 
predecessors  had  not  existed,  would  lead  to  injustice  and  away  vested 
deprive   persons   of   their   vested   rights,    and  the   Act 
therefore  should  not  be   given  any   retrospective  effect. 

The  repeal  of  a  statute  cannot,  without  express  words,  or 
clear  implication  to  that  effect  in  the  repealing  Act, 
take  away  a  right  acquired  under  the  repealed  statute  or 
other  enactment  while  it  was  in  force.  Act  IX  of  1871 
contained  no  provision  similar  to  those  to  be  found  in  the 
second  clause  of  section  2  of  Act  XV  of  1877,  saving 
titles  already  acquired  by  the  repealed  Acts.  Still  the 
Bombay  High  Court  in  Sitaram  Vasudev  v.  Khanderav. 
Bal  Krishna^)  held  that  although  Act  IX  of  1871,  section 
2,  expressly  repealed  Regulation  V  of  1827,  it  did  not 
affect-  any  prescriptive  right  or  title  which  had  been 
acquired  under  that  regulation  before  Act  IX  of  1871 
was  passed. 

(e)  Act  IX  of  1871  came  into  force  on  the  1st  of  July,  Postponement 
1871,  and  section  1  provided  against  the  application  of  the  and  3  and  Paru 
provisions  contained  in  sections  2  and  3  or  in  Parts  II  Actixof  i87i 
and  III  to  suits  instituted  before  the  1st  of  April,  1873.  led  to  conflict- 
Postponement  of  the  operation  of  the  new  Act  was  in- 
tended to  give  timely  notice  of  its  provisions,  and  it  futher 
indicated  that  from  that  day,  namely,  1st  of  April  1873, 

the  Legislature  intended  that  the  new  Act  should  govern 
all  suits  and  causes  of  action  which  had  accrued  before 
that  day.  Section  2  of  Act  IX  of  1871  unconditionally 
repealed  its  predecessor,  X1Y  of  1859,  except  section  15, 
from  the  1st  day  of  April,  1873.  The  Bombay  High 
Court  in  Abdul  Karim  v.  Mauji  Hansraj(*)  observe  that 

(1)  I.  L.  B.,  1  Bom.,  886.      |      (2)  I.  L.  B.,  1  Bom.,  807. 

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8  PART  I. — PRELIMINARY.  [8KC.   1 

the  law  of  Limitation  applicable  to  suits  subsequently 
brought  upon  causes  of  action  which  had  acorued 
previously  to  the  day  to  which  the  operation  of  Act  IX 
of  1871  stood  deferred,  and  which  had  not  been  barred 
under  previous  enactments  as  well  as  to  suits  upon  causes 
of  action  which  accrue  afterwards,  is  Act  IX  of  1871. 
Bombaj  High  (f)  In  Chinnasami  Iyengar  v.  Gopalacharya/1)  suit  was 
from  the  Mad-  filed  on  the  26th  January,  1874,  on  a  pro-note  of   16th 

ras  High  Court. 

January,  1871,  payable  on  demand.  The  High  Court  held 
that  the  suit  was  barred  because  the  period  of  limitation 
ought  to  be  computed  as  it  would  have  been  under  Act 
XIV  of  1859,  from  the  date  of  the  note  and  not  from  tht 
time  of  demand,  as  prescribed  by  Article  72  of  Act  IX  of 
1871.  The  claim  in  this  case  had  not  been  barred  under  Act 
XIV  of  1859  on  the  1st  of  April,  1873,  when  Act  IX  of 
1871  came  into  force,  as  it  had  been  the  case  in  the  cases 
reported  at  pages  283,  288  and  298  of  the  same  volume,  in 
all  of  which  the  plaintiff's  claims  had  become  barred  before 
the  1st  of  April,  1873,  and  each  defendant  had  already 
acquired  a  right  under  Act  XIV  of  1859  to  treat  the 
claim  against  him  as  barred.  Westropp,  0.  J.,  in  Abdul 
Karim,*3)  observes  with  reference  to  the  ruling  in  Chin- 
nasawmi  Iyengar's  case  "  it  is,  indeed,  in  a  certain  sense, 
true,  that  when  once  time  has  commenced  to  run  under  a 
law  of  limitation,  it  cannot  be  stopped.  But  that  rule  is 
dependent  on  the  continuance  in  force  of  the  enactment 
under  which  time  has  been  running.  If  the  statutory 
pressure  be  removed  by  the  total  repeal  of  the  Act,  there 
is  nothing  to  cause  time  to  run  against  the  creditor,  un- 
less the  legislature  re-enact  the  old,  or  substitute  some 
new  rule  of  limitation.  The  latter  course,  we  think,  it 
did  adopt  for  such  suits  as  that  of  Chinnasami  Iyengar  v. 
Gopalacharya  by  the  72nd  Article  of  Schedule  II  of  Act 
IX  of  1871." 
Subsequent  de-       (ft)     In  Teagaraya  Mudali  v.  Mariappa  Pillai/8)  plain- 

cisionsofthe  .2  j    •       o      x        ,  van  a      *  x 

Madras  High      tiff  sued  in  September,  1874,   for  money  secured  on  a 


Court. 


(1)  7  Mad.,  H.  C.  Rep.,  392.      |      (2)  I.  L.  E.,  1  Bom.,  803. 
(3)  I.  L.  R.,  1  Mad.,  264. 


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SIC.  1]  PART  I.— PRELIMINARY.  9 

registered  bond  of  August,  1867,  repayable  on  the  10th 
April,  1868.     The  plaintiff  admitted  payment  of  interest 
by  defendant  in  November,  1868,  and  April,  1870.     The 
Lower  Appellate  Court  rejected  the  suit  as  barred  by  Act 
XIV  of  1869,  holding  that  payments  made  before  Act  IX 
of  1871  came  into  force  would  not  give  a  new  period 
under  section  21,  which  had  no  retrospective  effect.     The 
High  Court,  referring  to  Chinnasami  Iyengar  v.  Gopala- 
charya/1)  held  in  March,  1877,  that  as  Act  IX  of  1871  did 
not  expressly  require  that  the  payment  should  have  been 
made  after  the  date  on  which  it  came  into  force,  payment 
of  interest  made  before  that  date,  which  was  a  mode  of 
extending  the  period  under  that  Act,  was  sufficient  to  take 
the  case  out  of  the  statute.     In  Madhavan  v.  Achuda,**) 
plaintiff  sued  in  November,  1875,  on  a  pro-note  of  Novem- 
ber, 1871,  payable  on  demand.   The  District  Judge  rejected 
the  suit  as  barred.     The  suit  was  instituted  after  1st  of 
April,  1873,  when  Act  IX  of  1871  had  come  into  full  ope- 
ration, and  the  old  law  had  been  altogether  swept  away, 
and  the  only  guide  as  to  the  survival  of  the  remedy  by 
action  was  section  4  of  Act  IX  of  1871,  and  its  Appendix, 
schedule  II,  which  allowed  to  a  pro-note  on  demand  three 
years  time  counted  from  the  date   of  demand.     Innes, 
Offg.    C.  J.,    observes,    "In  the  face  of  this    positive 
rule  of  law,  being  the  only  existing  rule  at  the  date  of 
the  institution  of  the  suit  to  guide  the  court  in  deter- 
mining  whether  the  action  was  barred  or  not,  it  appears 
to  me  that  there  is  no  room  for  the  discussion  of  theories 
as  to  whether,  when  time  has  once  begun  to  run,  the 
course  of  it  can  be  interrupted  by  a  new  enactment,  and 
the  term  prescribed  by  the  old  law  made  to  give  place  to 
a  new  term  springing  from  a  fresh  starting  point." 

(h)     With  regard    to  applications   for  execution  of  What  Limita- 
decrees  presented  after  1st  of  April,  1873,  and  up  to  the  govern*  exeou- 
introduction  of  the  new  Act  of  1877  in  suits  instituted  trans,  presented 
before  that  date,  it  was  doubted  whether  they  were  govern-  1878,  and  after 
ed  by  Act  XIV  of  1859  or  IX  of  1871.     It  was  also  doubted  was  repealed  in 


(1)  7  Had.,  H.  C.  B.,  892.      |      (2)  I.  L.  B.,  1  Had.,  302. 


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10  PART  I. PRELIMINARY.  [8*C*  1 

whether  applications  for  execution  presented  in  such 
suits  after  the  introduction  of  the  Act  of  1877  were 
governed  by  that  Act  or  by  Act  XIV  of  1859,  while  the 
special  provisions  contained  in  section  1  of  Act  IX  of 
1871  had  been  repealed.  On  this  point  the  decisions  of 
the  High  Courts  have  been  conflicting,  and  it  was  owing  to 
the  construction  put  upon  the  ruling  of  the  Privy  Council, 
dated  June,  1881,  in  Mungul  Pei-shad  Dichit,^)  that  a 
thing  which  applies  to  an  application  in  a  suit,  applies 
to  the  suit,  and  that  an  application  for  the  execution  of  a 
decree  is  an  application  in  the  snit  in  which  the  decree 
was  obtained,  and  that  as  regards  suits  instituted  before 
the  1st  of  April,  1873,  all  applications  therein  are  excluded 
from  the  operation  of  Act  IX  of  1871.  This  ruling  was 
based  entirely  on  the  special  provisions  of  Act  IX  of  1871. 
Even  after  this  Act  was  repealed  by  Act  XV  of  1877,  which 
contained  no  such  provision,  the  Calcutta  High  Court  held 
in  some  cases  that  execution  applications  made  after  XV 
of  1877,  in  decrees  passed  before  it  came  into  operation, 
were  governed  by  Act  IX  of  1 871  which  applied  to  the 
suit,  while  the  Madras  High  Court  held  otherwise, 
c.  h.  held  in  (i)     In  Unnoda  Persad  Roy  i?.  Sheikh  Koorpan  Ally/*) 

thS^Act  ix  of  application  for  execution  was  made  in  June,  1869,  and 
exec§Son  appii-  again  in  August,  1872,  after  IX  of  1871  was  in  force. 
daring  its  oper-  ftotice  under  Section  216  of  Act  VIII  of  1859  was  issued 
upon  the  judgment  debtor.     When  a  third  application  was 
made  in  June,  1875,  it  was  held  on  the  plea  of  the  judg- 
ment debtor  that  the  decree  had  been  barred  when  the 
second  application  was  made  in  August,  1872.     Follow- 
Bombav  do-        ing  the  decision  in  Jibhai  Mahipati  v.  Parbhu  BapuW  it 
comber  1876.       was  further  held  that  the  limitation  prescribed  by  Article 
167   of   Act  IX  of   1871  governed  all  applications  for 
execution  made  during  the*  time  that  Act  was  in  force. 
In  the  Bombay  case,  West,  J.,  observes,  "  It  may  be  rather 
hard  upon  the  judgment  creditor,  in  this  case  that,  although 
he  was  doing  all  that  the  old  law  required  until  the  new 

(1)  I.  L.  B.,  8  Calc,  51.        |      (2)  I.  L.  R.,  3  Calo.,  518. 
(3)  I.  L.  R.,  1  Bom.,  59. 


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BMC.  1]  FABT  I. PRELIMINARY.  U 

htw  came  into  force,  and,  indeed,  for  some  time  afterwards, 
he  should  suddenly  find  himself  barred  by  a  provision 
of  a  much  more  stringent  character  than  that  of  the  old 
law,  bnt  the  change  was  no  doubt  made  advisedly ;  and 
in  an  analogous  case,  Abel  v.  Lee.  (L.  R.  VI.,  C.  P.  365), 
Willes,  J.,  said  : — '  I  utterly  repudiate  the  notion  that  it  is 
competent  to  a  Judge  to  modify  the  language  of  an  Act 
of  Parliament  in  order  to  bring  it  into  accordance 
with  his  views  as  to  what  is  right  or  reasonable.'  " 

(j  )     In  Mungul  Pershad  Dichit  v.  Grija  Kant  LahiriW    JJJJ.  *g»  ^ 
the  decree  was  dated  July.  1851,  and  it  was  under  ezecu-  execution  appii- 

J  '  cation  in  salt 

tion  from  May,  1861,  and  the  last  application  for  execution  SfXmeA°riL 
was  dated  22nd  September,  1877.     The  High  Court  held  £^*£  g* 
that  the  application  of  the  5th  September,  1874,  brought  Limitation  Act 

which  governed 

the  case  under  the  provisions  of  Act  IX  of  1871.     The  S*  •uit»  •*•- 

*  XTv  of  1669. 

Privy  Council  reversing  the  decision  in  May  and  June, 
1881,  held  that  a  thing  applying  to  an  application  in  a 
suit  applied  to  the  suit,  and  that  an  execution  application 
was  an  application  in  the  suit  in  which  the  decree  was 
obtained,  and  that  as  regards  suits  instituted  before  the 
1st  of  April,  1873,  all  applications  therein  are  excluded 
from  the  operation  of  Act  IX  of  1871.  With  regard  to 
several  cases  in  which  applications  for  execution  in  suits 
instituted  before  1st  of  April,  1873,  have  been  treated 
as  governed  by  Act  IX  of  1871,  their  Lordships  remarked 
that  the  point  was  assumed  rather  than  decided. 

The  above  ruling  was  based  entirely  on  the  special 
provisions  of  section  1  of  Act  IX  of  1871,  that  nothing 
contained  m  section  2  or  in  Part  II  should  apply  to  suits 
instituted  before  the  1st  of  April,  1873. 

(k)     Iu  Behaiy  Lall  v.  Goberdhun  LallW  the  decree  Nerertheiei* 
holder  first  sought  to  execute  his  decree,  dated  January,  the  ruiingof  p. 
1877,  by  an  application  dated  May,  1878.     He  made  his  to  *an  appuS 
second  application  in  June,  1881.     Mitter,  J.,  held  that  when  Act  n'ot 

IftTl     Yutfl    tinmi 

although  the  Act  of  1877  contained  no  provision  corres-  repealed,  to  exe- 
ponding  to  that  of  section  1  of  the  Act  of  1871,  the  Privy  janl^'IaV* 
Council    having    ruled   that  all   applications    for   exe- 

(1)  I.  L.  B.,  8  Cak>.,  61.         |      (£)  I.  L.  E.,  9  Calc,  446. 


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12  PART  I. — PRELIMINARY.  [iBEC.  1 

cation  are  applications  in  the  suit  which  resulted  in  the 
decree,  the  application  of  2nd  June,  1881,  must  be  con- 
sidered to  have  been  made  in  a  proceeding  which  com- 
menced before  Act  XY  of  1877  came  into  operation,  and 
that  under  section  6  of  Act  I  of  1868  (the  General  Glauses 
Act),  the  repeal  of  the  Act  of  1871  by  the  Act  of  1877  cannot 
affect  any  proceeding  commenced  before  the  repealing 
Act  came  into  operation.  He  further  observed  that  the 
rule  that  Acts  relating  to  procedure,  from  the  nature  of 
their  subject,  apply  to  all  pending  proceedings  from  the 
date  of  their  operation,  is  confined  only  to  procedure  in 
courts  of  justice,  no  way  prejudicing  any  of  the  parties  to 
the  suit.  In  holding  so,  he  followed  the  decision  of 
Westropp,  0.  J.,  in  Batansi  Kalianji<1>  in  which  a  majority 
of  the  Full  Bench  held,  in  October  1877,  that  a  judgment 
debtor  imprisoned  in  satisfaction  of  decree  against  him 
under  Act  VIII  of  1859,  which  entitled  the  decree  holder 
to  incarcerate  him  for  two  years,  is  not  entitled  to  be 
released  on  Act  X  of  1877  coming  into  operation,  which 
provided  against  incarceration  for  more  than  six  months. 
Mitter,  J.  doubt-       (\)    When  in  March,  1883,  the  same  question  arose 

ed  the  correct-        x  '  . 

nees  of  his  own  before  another  Division  Bench  (Mitter  and  Field,  J.  J.),  in 

decision  in  the 

above  case,  in      Radha   Prosad    Singh  v.  Sundur   Lall  (*)  it  refused  to 

March  1888. 

determine  the  question  whether  after  the  passing  of  Act 
XV  of  1877,  Act  XIV  of  1859  could  be  deemed  to  still 
govern  the  execution  of  any  decree  whatsoever,  though 
Mitter,  J.,  doubted  whether  the  ruling  of  the  Privy 
Council  would  apply  to  a  case  in  which  application  for 
execution  was  filed  after  the  Act  of  1871  had  been  repeal- 
ed. In  this  case  the  application  was  made  on  the  28th 
March,  1881,  to  execute  a  decree,  dated  4th  August,  1870, 
passed  in  a  suit  filed  before  1st  July,  1871. 
Another  Divi-        (m)    When    another    Division  Bench   (Prinsep   and 

•ion  Bench  held 

in  September,    Macpherson,  J.  J.),  had  to  deal  with  the  same  question  in 
Act  of  1877         September,  1884,  in  Becharam  Dutta  v.  Abdul  Wahed<3) 

governed  all 

execution  appii-  it  dissented  from  Behary  Lall  v.  Ooverdhun  Lall,  and  held 

cations  made  ' 

after  its  opera- 

ti<m'  (1)  I.  L.  R.,  2  Bom.,  148.       ]      (2)  I.  L.  R.,  9  Calo.,  644. 

(3)  I.  L.  R.,  11  Calo.,  6». 


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SIC.  1]  PART  I. — PRELIMINARY.  13 

that  Act  XV  of  1877  governed  all  applications  made  from 
the  date  of  its  operation.  In  this  case,  last  application 
-was  made  in  March,  1883,  to  execute  a  decree  dated 
January,  1872. 

(n)  In  Pasnpati  Latchmia  v.  Pasnpati  Mntham  m.  h.  execution 
Bhatln,^)  decree  holder  sought  in  1875  to  execute  a  coming  under 
decree  in  a  suit  instituted  before  the  1st  April,  1872,  the  jectire  law  are 
last  application  for  execution  having  been  made  in  Feb-  Sw  prevailing 
ruary,  1872.  Although  more  than  three  years  had  elapsed  the  application, 
from  the  date  of  the  last  application,  the  District  Judge 
being  of  opinion  that  the  old  Limitation  Act  was  appli- 
cable, held  that  the  application  was  in  time,  more  than 
three  years  not  having  elapsed  from  the  close  of  the  last 
proceedings.  Holloway,  J.,  held  in  appeal,  that  Act  IX  of 
1871  governed  the  application.  He  observes  "The 
ordinary  rule  is  very  plain.  In  all  matters  of  substan- 
tive law,  the  law  of  limitation  in  force  at  the  period  of 
the  arising  of  the  right,  governs.  In  all  cases  of  adjec- 
tive law,  the  law  of  limitation  in  force  at  the  period  of 
enforcement,  governs.  In  some  cases,  questions  of  sub- 
stantive law  appear  in  the  disguise  of  questions  of  adjec- 
tive law.  Execution,  however,  is  a  proceeding  to  enforce 
a  decree  of  a  court  and  comes  under  the  head  of  purely 
adjective  law.  Such  being  the  case,  clearly  the  law  pre- 
vailing at  the  time  of  the  application,  must  govern. 
Here  that  law  is  the  new  Limitation  Act,  and  the  pro- 
ceeding is  therefore  barred.' '  In  Prabhacararow  v.  Potan- 
nahW  it  was  held  in  July,  1878,  that  Act  IX  of  1871 
governed  applications  for  execution  of  decrees  passed 
before  April  1873. 

(O)  In  Bhikambhat  v.  Joseph  Fernandez  W  the  ap-  b.  h.  held  in 
pellant  obtained,  on  the  13th  July,  1872,  a  decree  under  sec-  thatanapptfca- 
tion  53  of  Act  XX  of  1866,  on  a  bond  specially  registered  tion  inSepteml 
under  section  52  of  that  Act.  He  applied  for  the  execution  force  a  decreed 
of  it, — first  on  the  2nd  September,  1872,  and  again  on  the  gorornedbTAot 
18th  August,  1875.    The  court  made  an  order  on  the  15th 


(1)  I.  L.  B.,  1  Mad.,  52.      |      (2)  I.  L.  E.,  2  Mad.,  1. 
(8)  1. 1*  B.,  5  Bom.,  678. 


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14  TAET  I. — PRELIMINARY.  [SEC.  2 

NoTember,  1875,  dismissing  the  proceedings  on  his  second 
application  for  execution.  The  decree  not  being  folly 
satisfied,  he  again  applied  for  its  execution  on  the  11th 
September,  1878.  The  court  following  the  ruling  of  the 
Privy  Council  in  Mungul  Pershad  Dichit  v.  Grija  Kant 
Lahiri  Chowdhry,  held  that  Act  XIV  of  1859,  and  not 
Act  IX  of  1871,  applied  to  applications  in  suits  instituted 
before  the  1st  of  April,  1873. 

Repefti  of  aou.  2.  On  and  from  that  day,  the  Acts  mentioned 
in  the  first  schedule  hereto  annexed  shall  be  re- 
pealed to  the  extent  therein  specified. 

^•JS^lS.         But  all  references  to  the  Indian  Limitation 

Act  IX  of  1871. 

Act,  1871,  shall  be  read  as  if  made  to  this  Act ; 

and  nothing  herein  or  in  that  Act  contained 

e»Tinff  of  titi«  shall  be  deemed  to  affect  any  title  acquired,  or 

already  aoqnir-  #  #  J  ^  ' 

Act  ncoiPisTi,  *°  revive  any  right  to  sue  barred,  under  that 
»ec.  ss.  ^c^  or  jmfl^  any  enactment  thereby  repealed ; 

and  nothing  herein  contained  shall  be  deemed 
to  affect  the  Indian  Contract  Act,  section  25.* 


Agreement   without   ©on-        25*     An  agreement  made  without  con- 
sideration void—  consideration  is  void  unless 

(1.)     it  is  expressed  in  writing  and  registered  under  the  law 

unless    it    is  in    writing     for   the   thne    teing  m  f OTOe    for    the 
and  registered,  registration  of  assurances  and  is  made 

on  aooount  of  natural  lore  and  affection  between  parties  standing 
in  a  near  relation  to  each  other  5  or  unless 

(2.)  it  is  a  promise  to  compensate  wholly  or  in  part  a  person 
or  is  a  promise  to  oompen-  who  haB  d™*!  voluntarily  done  some- 
sate  for  something  done,  thing  for  the  promisor  or  something 
which  the  promisor  was  legally  compellable  to  do  ;  or  unless 

(3.)  It  is  a  promise,  made  in  writing  and  signed  by  the  person 
to  be  charged  therewith,  or  by  his  agent 
debt  barred°1bye  UmitaZon  generally  or  specially  authorised  in  thai 
**w«  behalf,  to  pay  wholly  or  in  part  a  debt  of 

which  the  creditor  might  have  enforced  payment  but  for  the  law  for 
the  limitation  of  suits. 

In  any  of  these  oases,  such  an  agreement  is  a  contract. 


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sxa  2] 


PABT  I.—- PEELIM1HAET. 


15 


Notwithstanding  anything  herein  contained,  8^,or  ***{* 
any  suit  mentioned  in  No.  146  of  the  second  £  !&*£?££ 
Schedule  hereto  annexed  may  be  brought  with-   b^Ltixof*!! 
in  five  years  next  after  the  said  first  day  of 
October,    1877,  unless  where  the  period  pre- 
scribed for  such  suit  by  the  said  Indian  Limita- 
tion Act,  1871,  shall  have  expired  before  the 
completion  of  the  said  five  years  ;  and  any  other 
suit  for  which  the  period  of  limitation  prescribed 
by  this  Act  is  shorter  than  the  period  of  limita- 
tion prescribed  by  the  said  Indian  Limitation 
Act,   1871,  may  be  brought  within  two  years 
next  after  the  said  first  day  of  October,  1877, 
unless  where  the  period  prescribed  for  such  suit 

Explanation  1. — Nothing  in  this  section  shall  affect  the  validity, 
as  between  the  donor  and  donee,  of  any  gift  actually  made. 

Explanation  2. — An  agreement  to  which  the  consent  of  the 
promisor  is  freely  given  is  not  void  merely  because  the  consideration 
is  inadequate ;  bnt  the  inadequacy  ef  the  consideration  may  be 
taken  into  account  by  the  Court  in  determining  the  question 
whether  the  consent  of  the  promisor  was  freely  given. 

Illustrations. 
(*.)    A  promises  for  no  consideration  to  give  H  Rs.  l.eoo.    This  is  a  void 


(ft.)  A,  for  natural  love  and  affection,  promises  to  give  his  son,  B, 
Bs.  1,000 ;  A,  pots  his  promise  to  B  into  writing  and  registers  it.  This  is  a 
contract. 

(«.)  A  finds  B's  purse  and  gives  it  to  him.  B  promises  to  give  A  Bs.  60. 
This  is  a  contract. 

(&)  A  supports  B's  infant  son.  B  promises  to  pay  A's  expenses  in  so 
doing.    This  is  a  contract. 

(#.)  A  owes  BBs.  1,000,  but  the  debt  is  barred  by  the  Limitation  Act.  A 
signs  a  written  promise  to  pay  B  Bs.  §00  on  account  of  the  debt.  This  is  a 
contract. 

(/.)  A  agrees  to  sell  a  horse  worth  Bs.  1,000  for  Bs.  10.  A's  consent  to  the 
agreement  was  freely  given.  The  agreement  is  a  contract  notwithstanding  the 
inadequacy  of  the  consideration. 

iff.)  A  agrees  to  sell  a  horse  worth  Bs.  1,000  for  Bs.  10.  A  denies  that  his 
consent  to  the  agreement  was  freely  given.  The  inadequacy  of  the  considera- 
tion is  a  fact  which  the  Court  should  take  into  account  in  considering  whether 
or  not  A's  ooneemt  was  freely  given. 


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16 


PART  I. — PRELIMINARY. 


[8EC.  2 


Provisions  of 
clause  2  are 
new. 


A  pro-note  of  . 
1880  barred 
under  XIV  of 
1850,  iield  not 
revived  by  IX 
of  1871. 


"Any  right  to 
sue"  held  to  be 
used  in  widest 
signification 
to  extend  to 
all  applications 
invoking  aid  of 
Court. 


by  the  same  Act  shall  have  expired  before  the 
completion  of  the  said  two  years* 

(a)  The  provisions  contained  in  the  second  clause  of 
this  section  are  new,  and  they  have  been  enacted  with  re- 
ference to  the  decisions  of  the  courts,  on  the  question, 
whether  a  statute  of  limitations  repealing  its  predeces- 
sor would  revive  a  right  to  sue  barred  tinder  it. 

(b)  In  Nocoor  Chunder  Bose  v.  Kally  Coomar  GnoseM* 
plaintiff  sued  in  1875  on  a  pro-note  of  5th  August, 
1869,  payable  on  demand,  on  the  ground  that  he  de- 
manded payment  in  November,  1875.  Admittedly  no 
payment  had  been  made,  either  for  principal  or  interest. 
Under  Act  XIV  of  1859,  which  was  silent  as  to  the  date 
of  the  accrual  of  cause  of  action  on  a  pro-note  on  demand, 
the  cause  of  action  had  been  held  to  be  the  date  of  the 
note.  But  Act  IX  of  1871,  repealing  Act  XIV  of  1859, 
provided  for  the  computation  of  period  from  the  date  of 
demand.  The  court  held  that  as  a  suit  on  it  would  have 
been  barred  before  IX  of  1871  began  to  operate,  the  subse- 
quent repeal  of  the  former  Act  would  not  revive  the 
right  to  sue. 

(C)  The  words  in  this  section,  "  nothing  herein  shall 
be  deemed  to  revive  any  right  to  sue,"  should  be  used  in 
their  widest  signification,  and  will  include  any  application 
invoking  the  aid  of  the  court  for  the  purpose  of  satis- 
fying a  demand.  In  Shumbhoo  Nath  Shaha  v  Guru- 
churn  LahiriW  the  judgment  creditor  first  sought  to 
execute  his  decree  in  March,  1873,  again  in  July,  1876.  and 
again  in  February,  1878.  The  contention  was,  that  the 
application  of  July,  1876,  having  been  barred  by  Article 
167  of  Act  IX  of  1871,  the  third  application  was  not 
entertainable.  The  lower  court  rejected  the  application. 
In  appeal  it  was  contended  that,  as  section  2  of  the 
Limitation  Act  (XV  of  1877)  declares  that  nothing  in 
that  Act  shall  be  deemed  to  affect  any  title  acquired,  or 
to  revive  any  right  to  sue  barred  under  Act  IX  of  1871, 


(1)  I.  L.  R.,  1  Calc,  328.         |      (2)  I.  L.  E.,  5,Calo.,  894. 


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BBC.  2]  PART  I. — PRELIMINARY.  17 

applications  to  execute  decrees  which  do  not  come  within 
those  terms,  and  which,  under  Act  IX  of  1871,  are  in- 
capable of  execution,  became  revived,  the  more  so  as,  by 
section  3  of  Act  XV  of  1877,  in  thejdefinition  of  the  term 
"  suit,"  an  application  is  expressly  distinguished  from  a 
suit.  It  was  held  that  it  was  not  the  J  intention  of  the 
legislature  by  this  Act  to  revive  decrees  which  were 
dead  under  the  previous  laws  of  limitation,  and  that  the 
Act  cannot  be  applied  to  any  thing  which,  at  the  time  of 
its  becoming  law,  was  barred  by  the  law  of  limitation 
which  it  replaced,  unless  it  can  be  shown  that  such  was 
the  express  intention  of  the  legislature,  and  that  such  an 
inference  would  be  opposed  to  the  principles  of  the  law  of 
limitation.  This  was  followed  in  Nursing  Doyal  v.  Hurry- 
hur  Saha,*1)  in  which  the  creditor  advanced  the  very  same 
argument  that  was  put  forth  in  the  former  case.  Pontif ex, 
J.,  observes,  "  No  doubt  there  is  some  foundation  for  this 
argument  from  the  imperfect  language  used  in  the  Act ; 
but  we  think  that  section  2  at  least  indicates  the  policy 
of  the  Act,  and  in  our  opinion  the  word  *  revive  any  right 
to  sue'  used  in  that  section  should  have  their  widest 
signification,  which  we  think  would  include  any  appli- 
cation invoking  the  aid  of  the  court  for  the  purpose  of 
satisfying  a  demand.  It  is  by  no  means  an  uncommon 
form  of  speech  to  say  'sue  out  in  execution.' "  As  to 
this  point,  Hitter,  J.,  in  Jugmohun  Mahto  v.  Luchmeshur 
Singh**)  while  expressing  his  concurrence  in  the  above 
view,  observes  he  concurs  in  that  view  not  because  "  right 
to  sue"  means  "  right  to  sue  out  execution"  but  because 
from  this,  and  other  sections  in  the  Act,  it  is  clear  that 
the  legislature  intended  to  extend  the  provisions  of  this 
section  to  proceedings  in  execution  also. 

(d)     Clause  3,  section  2.     The  object  of  this  clause  is,  Clauses  extends 
as  stated  by  Melvill,  J.,  in  Ichha  Shankar  v.  Killa,(8)  to  the  benefit  of 
extend  for  two  years  the  benefit  of  the  old  law  in  cases  in 

a)  I.  L.  B.,  5  Culc,  807. 

(2)  I.  L.  R.,  10  C»lc,  748. 

(3)  I.  L.  B.,  4  Bom.,  87. 


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18  PART  I. — PRELIMINARY.  [SEC.  2 

which  a  plaintiff  would  he  prejudiced  by  the  application 
to  his  case  of  the  provisions  of  the  new  law. 
"The  period  of       (9)     In  Appasami  v.  Aghilanda/1)  plaintiff  sued  in 

limitation  pros* 

oribed"  in-  November,  1878,  on  a  note  payable  on  demand,  dated  July, 
where  time  is,  in  1870.  He  alleged  that  he  demanded  payment  in  Sep- 
ed  by  altering-  tember,  1876.     It  was  held  that  "  shorter  period"  includes 

the  starting  ,  .    _  ,. 

point.  also  the  point  at  which  the  period,  according  to  the 

schedule  of  the  old  Act,  would  terminate,  and  within 
which  suit  might  have  been  brought  under  it  had  it  been 
in  force,  and  that  this  suit  was  not  barred.  The  court 
observe  that  the  language  of  Acts  IX  of  1871,  and  XV 
of  1877,  leads  to  the  conclusion,  that  by  each  of  these 
enactments  the  starting  point  and  period  given  in  its 
schedule  were  to  take  the  place  of  those  given  by  the 
Aot  which  preceded  it,  in  the  case  of  all  suits  instituted 
after  the  date  of  the  Act  coming  into  force,  and  that 
the  expiration  of  the  period,  calculated  with  reference  to 
the  Act  in  force  at  the  date  at  which  the  note  was  exe- 
cuted, does  not  necessarily  affect  the  remedy. 

Time  for  suit  to       /f)     Narain  Khootia  v.   Lokenath  Khootia<2>  was  a 

share  in  joint  x   ' 

family  property  BUit  to  recover  one- third  share  of  the  joint  family  pro- 
is  shortened  bjr  *  *   r 

this  Act,  by  al-  perty.     It  was  held  that  this  Act  shortened  the  period 

tering  the  start-    r       *  r 

ing  point.  by  making  it  to  run  from  the  time  when  the  exclusion 

first  became  known  to  the  plaintiff,  while  the  correspond- 
ing Article  of  Act  IX  of  1871  allowed  it  to  run  from  the 
time  the  plaintiff  claimed,  and  was  refused  his  share. 

Act  xv  of  1877       (<r)     Under  the  Limitation  Act  IX  of  1871,  the  period 

shortens  the  xo/  .  .  >  r 

pertod  to  suit      of  limitation  for  suits  to  recover  possession  of  property 
^£5%,Si  from  Purcna8e^  from  a  mortgagee  depended  upon  the  good  faith 
a  mortgagee.       of  the  purchaser.    A  suit  against  a  purchaser  in  good 
faith  was  barred  after  twelve  years  from  the  date  of  the 
purchase,  under  Article  134  of  sohedule  II.     In  other 
.  cases,  a    suit  might  be  brought  against  the  purchaser 
within  sixty  years  from  the  date  of  the  mortgage  under 
Article  148  of  Sohedule  II.     Article  134  of  the  later  Limi- 
tation Act  XV  of  1877,  by  the  omission  of  the  words  "  in 
good  faith,"  makes  twelve  years  from  the  date  of  the 

(1)  I.  L.  R.,  2  Mad.,  113.         |      (2)  I.  L.  R.,  7  Calc,  461. 

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SEC.  2]  PART  I. — PRELIMINARY.  19 

purchase  the  period  of  limitation  for  all  such  suits, 
without  reference  to  the  question  of  good  faith  on  the 
part  of  the  purchaser.  The  result  is  that,  in  cases  of  a 
purchase  not  in  good  faith  from  a  mortgagee,  the  period  of 
limitation  allowed  by  Act  XV  of  1877,  for  a  suit  to 
recover  property,  is  shorter  than  the  period  allowed  by 
Act  IX  of  1871.  This  was  followed  in  Baiva  Khan 
Daud  Khan  v.  Bhiku  Sazba.W 

(h)     In   Eup   Kishore  v.   Mohni,t*>  plaintiff  sued  in  Suit  on  notes 
August.  1879,  on  a  bond  of  December,  1869,  payable  on  mand  executed 

°  .      r  J  before  the  Act 

demand.  It  was  held  that,  under  the  provisions  of  this  of  1877. 
section,  the  suit  having  been  instituted  within  two  years 
from  the  date  that  the  Act  came  into  force,  was  within 
time,  as  this  Act  shortened  the  period  prescribed  by  its 
predecessor.  The  Bombay  High  Court  took  the  same 
view  in  Ichha  Shankar  v.  Killa<*)  in  which  the  plaintiff 
sued  on  the  21st  June,  1878,  upon  a  bond  dated  20th  April, 
1875,  promising  payment  on  demand.  The  Madras  High 
Court  held  so  in  Bandi  Subbayya  v.  Madalapalli  Suban- 
na<4)  which  was  a  suit  brought  in  April,  1879,  upon  two 
pro-notes,  dated  December,  1874,  payable  on  demand. 
Demand  was  said  to  have  been  made  in  September,  1877. 
The  same  view  was  adopted  in  Sabapati  Chetti  v.  Che- 
dumbara  Chetti. W 

(i)     In  Bansi  Dhar  v.  Harsa  Hai,  W  plaintiff  sued  on  a  Act  xv  of  lsn 
registered  bond  of  2nd  March,  1870,  payable  on  demand,  suit  on  a  regie- 
alleging  that  demand  was  made  on  the  5th  January,  1879.  ind March,  1870, 
Under  Act  XIV  of  1859,  plaintiff  had  only  six  years  from  mend, 
the  date  of  the  bond,  while  under  Act  IX  of  1871,  which 
came  into  force  before  that  period  expired,  he  had  three 
years  from  the  date  of  demand.     It  was  held,  that,  as  the 
cause  of  action  and  the  institution  of  the  suit  occurred 
after  the  repeal  of  the  Act  IX  of  1871,  the  claim  was 
barred,  as  either  under  Act  XIV  of  1859,  or  XV  of  1877, 
limitation  began  to  run  from  the  date  of  suoh  bond. 


(\)  I.  L.  R.,  9  Bom.,  476.       I      (4)  I.  L.  R.,  8  Had.,  96. 
(2)  I.  L.  R.,  3  AIL,  415.  (5)  I.  L.  B.,  2  Mad.,  397. 


(4)  I.  L.  R.,; 

(5)  I.  L.  B.,  \ 

(6)  I.  L.  R.,  i 


(3)  I,  L.  R.,  4  Bom.,  87.         I      (6)  I.  L.  R.,  8  All.,  840. 

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20  PART  I. — PRELIMINARY.  [SEC.  3 

"Titieaoquind"       (j)     In  Zulfikar  Husain  v.  Munna  Lai/1)  account  stated 

in  this  section  x•,, 

doea not  include  when  Act  IX  of  1871  operated,  was  neither  signed  by  the 

a  right  to  sue.  r  * 

defendant  nor  his  agent.     The  snit  having  been  brought 

after  the  passing  of  Act  XY  of  1877,  the  account  stated 

did  not  come  within  Article  64  of  schedule  II,  but  the 

plaintiff  affirmed  that  his  right  to  sue  acquired  under  the 

former  Act  was  not  affected  by  Act  XV  of  1877.     It  was 

held  that  the  words  "  nothing  herein  contained  shall  be 

deemed  to  affect  any  title  acquired"  did  not  save  the 

plaintiff's  right  to  sue  on  the  account  stated,  a  right  to 

sue  not  being  meant  by  or  included  in  the  term,  "  title 

acquired,' '  that  term  denoting  a  title  to  property,  and 

being  used  in  contradistinction  to  a  right  to  sue. 

interpretation        3.     In  this  Act,  unless  there  be  something 

clause.  m  '  o 

repugnant  in  the  subject  or  context — 

c  plaintiff*  includes  also  any  person  from  or 
through  whom  a  plaintiff  derives  his  right  to 
sue ;  '  applicant'  includes  also  any  person  from 
or  through  whom  an  applicant  derives  his  right 
to  apply ;  and  *  defendant*  includes  also  any 
person  from  or  through  whom  a  defendant  de- 
rives his  liability  to  be  sued : 

€  easement*  includes  also  a  right,  not  arising 
from  contract,  by  which  one  person  is  entitled 
to  remove  and  appropriate  for  his  own  profit 
any  part  of  the  soil  belonging  to  another,  or 
anything  growing  in,  or  attached  to,  or  sub- 
sisting upon  the  land  of  another  : 

c  bill  of  exchange*  includes  also  a  hundi  and 
a  cheque : 

€  bond*  includes  any  instrument  whereby  a 
person  obliges  himself  to  pay  money  to  another, 
on  condition  that  the  obligation  shall  be  void  if 

(1)  I.  L.  R.,  3  AIL,  148. 


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SBC.  3]  PART  I. — PRELIMINARY.  21 

a  specified  act  is  performed,  or  is  not  performed, 
as  the  case  may  be  : 

c  promissory  note*  means  any  instrument 
whereby  the  maker  engages  absolutely  to  pay  a 
specified  sum  of  money  to  another  at  a  time 
therein  limited,  or  on  demand,  or  at  sight : 

c  trustee'  does  not  include  a  bendmiddr,  a 
mortgagee  remaining  in  possession  after  the 
mortgage  has  been  satisfied,  or  a  wrong-doer  in 
possession  without  title : 

'  suit'  does  not  include  an  appeal  or  an  appli- 
cation : 

*  registered*  means  duly  registered  in  British 
India  under  the  law  for  the  registration  of 
documents  in  force  at  the  time  and  place  of 
executing  the  document,  or  signing  the  decree 
or  order,  referred  to  in  the  context : 

c  foreign  country*  means  any  country  other 
than  British  India; 

and  nothing  shall  be  deemed  to  be  done  in 
€  good  faith*  which  is  not  done  with  due  care 
and  attention. 

(a)     Section  3*  of  Act  Y  of  1882  repeals  the  definition 

•  8.    Sections  26  and  27  of  the  Indian  Limitation  Act,  1877,  and 
Repeal  of  Act  XV  of  1877     ***e  definition  of  "  easement"  contained 
eectUms  96  and  27.  '    in  that  Act,  are  repealed  in  the  territories 

to  which  this  Act  extends.  All  references  in  any  Act  or  Regulation 
to  the  said  sections,  or  to  sections  27  and  28  of  Act  No.  IX  of  1871, 
shall,  in  such  territories,  be  read  as  made  to  sections  fifteen  and 
sixteen  of  this  Act. 

CHAPTER  I. 

Of  Basements  Generally. 
4.    An  easement  is  a  right  which  the  owner  or  occupier  of  certain 
land  possesses,  as  snch,  for  the  beneficial 
enjoyment   of    that    land,  to    do    and 


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22  PART  I. — PRELIMINARY.  [SEC.  3 

of  "  Easement"  in  this  section,  and  sections  26  and  27  of 
this  Act  (XV  of  1877)  in  the  territories  of  Madras,  Coorg, 
and  the  Central  Provinces,  and  defines  that  term  for  the 
said  territories  by  section  4. 
The  word  (b)    Act  IX  of  1871  did  not  define  the  word  "Ease- 

has  a  much       ment,"  but  the  word  as  interpreted  in  this  section  (3,  of 
Haeaninf?  than    Act  XV  of  1877,)   has  a  very   much  more  extensive 
u»h  Law.        *  meaning  than  the  word  bears  in  the  English  Law,  for  it 
includes  any  right  not  arising  from  contract  by  which 
one  person  is  entitled  to  remove  and  appropriate  for  his 

continue  to  do  something,  or  to  prevent  and  continue  to  prevent 
something  being  done,  in  or  upon,  or  in  respect  of,  oertain  other  land 
not  his  own. 

The  land  for  the  beneficial  enjoyment  of  which  the  right  exists  fa 
Dominant   and    servient     caUed  the  dominant   heritage,   and  the 
heritages  and  owners.  owner  or  occnpier  thereof  the  dominant 

owner;  the  land  on  which  the  liability  is  imposed  is  called  the 
servient  heritage,  and  the  owner  or  occupier  thereof  the  servient 
owner. 

Explanation. — In  the  first  and  second  clauses  of  this  section,  the 
expression  "  land"  includes  also  things  permanently  attached  to  the 
earth  :  the  expression  "  beneficial  enjoyment"  includes  also  possible 
convenience,  remote  advantage,  and  even  a  mere  amenity ;  and  the 
expression  "  to  do  something"  includes  removal  and  appropriation 
by  the  dominant  owner,  for  the  beneficial  enjoyment  of  the  domi- 
nant heritage,  of  any  part  of  the  soil  of  the  servient  heritage  or 
anything  growing  or  subsisting  thereon. 

Illustrations. 

(a.)— A,  as  the  owner  of  a  certain  house,  hat  a  right  of  way  thither  ever  his 
neighbour  B's  land  for  purposes  connected  with  the  beneficial  enjoyment  of 
the  house. .  This  is  an  easement. 

(ft.)— A,  as  the  owner  of  a  certain  house,  has  the  right  to  go  on  his  neigh- 
bour B's  land,  and  to  take  water  for  the  purposes  of  his  household  out  of  a 
spring  therein.    This  is  an  easement. 

(<?.)— A,  at  the  owner  of  a  certain  house,  hat  the  right  to  conduct  water 
from  B's  stream  to  supply  the  fountains  in  the  garden  attached  to  the  house. 
This  is  an  easement. 

(<*.)— A,  at  the  owner  of  a  oertain  house  and  farm,  has  the  right  to  grace  a 
certain  number  of  his  own  cattle  on  B's  field,  or  to  take,  for  the  purpose  of 
being  used  in  the  house,  by  himself,  his  family,  guests,  lodgers  and  servants, 
water  or  fish  out  of  O's  tank,  or  timber  out  of  D's  wood,  or  to  use,  for  the  pur- 
pose of  manuring  his  land,  the  leaves  which  have  fallen  from  the  trees  on  B's 
land.    These  are  easements. 

(*.)— A  dedicates  to  the  public  the  right  to  occupy  the  surface  of  oertain  land 
for  the  purpose  of  passing  and  repassing.    This  right  is  not  an  easement. 

</.)— A  is  bound  to  cleanse  a  water-coarse  running  through  his  land  and 
keep  it  free  from  obstruction  for  the  benefit  of  B,  a  low  riparian  owner.  This 
is  not  an  easement. 


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BBC.  3]  PART  II. — PEELIMINABY.  23 

own  profit  any  part  of  the  soil  belonging  to  another,  or 
anything  growing,  or  attached  to,  or  subsisting  upon  the 
land  of  another.  An  easement  therefore  under  the  Indian 
Law,  embraces  what  in  English  Law  is  called  a  profit  a 
prendre, — that  is  to  say,  a  right  to  enjoy  a  profit  out  of 
the  land  of  another. 

(c)     A  prescriptive  right  of  fishery  is  an  easement  as  Prescript!™ 
defined  by  this  section.     White,  J.,  observes,  "The  legal  u  an  Element. 
meaning  of  land  is  not  only  dry  land,  but  also  land  cover- 
ed by  water ;  aud  I  see  no  reason  for  holding  that  the 
word  *  land,'  as  used  in  section  3,  bears  other  than  the 
legal  meaning  which  ordinarily  attaches  to  the  word. 
Taking  '  land'  to  have  this  meaning,  fish  may  properly 
be  said  to  grow  or  subsist  upon  it."     The  language  of 
the  proviso,  contained  in  section  27  of  the  Act,  makes 
it  clear  that  the  profit  arising  from   water,  as  well  as 
from  land,  was  in  the  contemplation  of  the  legislature. 
Bight  of  fishery  is  one  of  the  most  common  classes  of  Snoh  right  is 
property  enjoyed  in  the  Bengal  Presidency.    Chundee  gal. 
Churn  Boy  v.  Shib  Chunder  Mundul.W 

(1)  I.  L.  B.,  *  Calo.,  946. 


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24   PART  II. — LIMITATION  OF  SUITS,  APPEALS,  AND  APPLICATIONS.    [SEC.  4 


PART  II. 

LIMITATION  OP  SUITS,  APPEALS  AND 
APPLICATIONS. 

SlS^kuiti.  4.  Subject  to  the  provisions  contained  in 
plnod of Smita.  sections  five  to  twenty-five  (inclusive),  every 
suit  instituted,  appeal  presented,  and  appli- 
cation made  after  the  period  of  limitation 
prescribed  therefor  by  the  second  schedule 
hereto  annexed,  shall  be  dismissed,  although 
limitation  has  not  been  set  up  as  a  defence. 

Explanation. — A  suit  is  instituted  in  ordinary 
cases  when  the  plaint  is  presented  to  the  proper 
officer ;  in  the  case  of  a  pauper,  when  his  ap- 
plication for  leave  to  sue  as  a  pauper  is  filed ; 
and  in  the  case  of  a  claim  against  a  company 
which  is  being  wound  up  by  the  court,  when 
the  claimant  first  sends  in  his  claim  to  the 
official  liquidator, 

nUwtrations. 

fa,) — A  suit  is  instituted  after  the  prescribed  period  of  limitation. 
Limitation  is  not  set  up  as  a  defenoe  and  judgment  is  given  for  the 
plaintiff.  The  defendant  appeals.  The  appellate  court  must  dis- 
miss the  suit. 

(b.J — An  appeal  presented  after  the  prescribed  period  is  admitted 
and  registered.    The  appeal  shall,  nevertheless,  be  dismissed. 

The  wording  of  this  section  and  its  proviso  is  exactly 
similar  to  the  corresponding  section  of  Act  IX  of  1871. 
The  obligation  (a)  In  Dattn  v.  KasaW  the  Plaintiff's  suit,  to  recover 
Court  to  reject  certain  lands,  was  dismissed  by  the  Conrt  of  first  instance, 
not  laid  on  each  and  by  the  Lower  Appellate  Conrt,  bnt  on  second  appeal, 
courts.  was   remanded  for   determination  of  plaintiff's  alleged 

right  of  perpetual  cultivation  of  the  land.    On  remand, 

(1)  I.  L.  R.,  8  Bom.,  535. 

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8*0.  4]  PABT  II. — LIMITATION  09  SUITS,  APPEALS  AND  APPLICATIONS.     25 

the  District  Judge  gave  a  decree  in  favour  of  the  plaintiff. 
The  defendant  appealed  to  the  High  Court,  and  then  for 
the  first  time  raised  the  point  of  limitation.  It  was  held 
that  the  objection  was  taken  too  late.  The  defendant 
had  the  opportunity  of  raising  his  objection  under  the 
Limitation  Act,  and  if  necessary,  of  getting  any  question 
on  which  it  depended  tried  by  the  courts  below  ;  and  as 
he  took  no  steps  to  this  end,  he  should  be  taken  to  have 
waived  his  right  to  raise  the  objection.  The  omission  of 
the  court  of  first  instance  to  reject  the  claim,  if  erroneous, 
gave  the  defendant  a  right  of  appeal,  which  he  might 
renounce,  and  virtually  did  renounce.  The  obligation 
resting  on  the  court  of  first  instance  to  reject  a  plaint, 
which  on  the  face  of  it  is  barred  by  limitation,  is  not  ex- 
pressly laid  on  each  successive  court  whenever  the  objec- 
tion comes  to  view,  and  ought  not  to  be  assumed  by 
inference.  The  High  Court  have  held  "  the  duty  of  re- 
jecting the  suit  under  such  circumstances  as  the  present 
is  not  expressly  laid  on  the  High  Court  and  ought  not, 
we  think,  to  be  assumed  by  inference." 

(b)    In  ChunderMohunRoy  v  Bhubon  Mohini  Dabea/1)         o.  h. 
a  petition  to  sue  in  fdrmd  pauperis,  put  in  within  the  time  cant  daring 
specified  in  the  Limitation  Act  for  the  suit,  was  rejected  appScadon, 

for  the  appellant's  failure  to  appear  and  give  evidence,  petition  with 

stamp  duty  re* 

At  the  petitioner  s  instance,  the  case  was  re-opened,  and  a  quired  for  the 

.  «uitf  held  not 

day  fixed  for  her  appearance.    Two  days  prior  to  this  date,  entitled  to  have 

ths  date  of  first 

bnt  some  time  after  the  expiry  of  the  period  fixed  by  the  petition  treated 

.  .  .  .  .     »•  ***  of  insti- 

Limitation  Act  for  the  suit,  the  petitioner  put  in  a  peti-  tntion  of  suit. 

.  .  (April  1877.) 

tion  stating  that  the  suit  be  tried  in  the  ordinary  way, 
and  paid  in  the  regular  amount  of  stamp  duty  for  an 
ordinary  suit.  The  question  was,  whether  the  plaint 
should  be  considered  to  have  been  filed  on  the  day  that 
such  application  was  made,  or  whether  the  petitioner  can 
take  advantage  of  the  clause  in  this  section,  which  says, 
that  a  suit  in  the  case  of  a  pauper  is  instituted  when 
his  application  for  leave  to  sue  as  a  pauper  is  filed.  It 
was  held  that  the  petitioner,  having  put  in  the  petition 

(1)  I.  L.  B.,  2  Calc,  889. 

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26     PAET  II. — LIMITATION  OF  SUITS,  APPHALS  AND  APPLICATIONS.   [8EC.  4 

electing  to  proceed  as  an  ordinary  suitor  and  not  as  a 
pauper,  stood  merely  in  the  same  position  as  if  she  had 
filed  her  suit  on  that  date,  and  that  the  suit  was  barred, 
and  that  in  order  to  give  her  the  benefit  of  that  expla- 
nation, it  was  necessary  that  her  original  application  to 
sue  as  a  pauper  should  have  been  granted,  and  the  appli- 
cation numbered  and  registered  as  a  suit. 
t*  *  p;  a  (c)     In  Skinner  v.  Orde,^    a  Division  Bench  of  the 

Date  of  presen-         x    '  ' 

tation  ofappii-  Allahabad  High  Court,  held  on  the  29th  May,  1876,  that, 

cation,  and  not  °  '  •"  '  ^ 

date  of  pay-  where  a  pauper  application  is  numbered  and  registered, 
2on°to  applica"  not  on  P1"00*  °*  pauperism,  but  in  consequence  of  the  appli- 
paaper,  is  date  cant  abandoning  his  claim  to  sue  as  a  pauper,  and  paying 
auit.  (May  1876.)  court  fee  required  for  the  suit,  the  date  of  such  payment 
and  not  the  date  of  application  must  be  taken  in  comput- 
ing the  period  of  limitation  to  be  the  date  of  the  insti- 
tution of  the  suit.  When  the  matter  went  in  appeal  be- 
fore the  Privy  Council,  their  Lordships  reversed  the 
decision  of  the  High  Court,  and  held  that  the  suit  must 
be  deemed  to  be  instituted  when  the  application  was  filed 
and  not  when  the  proper  stamp  was  affixed. W  In  Ram- 
sahai  Sing  v.  Mani  Bam/8)  The  High  Court  on  revision 
permitted  an  applicant  who  wished  to  sue  as  pauper  to 
renew  his  application  to  the  Lower  Court  which  rejected 
it.  The  Sub-judge  verbally  rejected  the  second  applica- 
tion, stating  he  would  deliver  a  written  judgment.  Before 
it  was  delivered,  the  applicant,  offering  to  pay  the  court 
fee,  asked  the  court  to  take  the  petition  as  a  plaint  filed 
on  the  date  of  the  first  application,  but  it  was  refused. 
The  High  Court  declining  to  interfere  with  the  order, 
observe,  that  at  the  time  the  Sub-judge  passed  the  order, 
Skinner's  case  had  not  come  out  to  this  country,  and  that 
at  any  rate  it  does  not  appear  that  it  was  brought  to  the 
Judge's  attention. 
Return  for  (d)    In  Bam  Lai  v.  Harrison/4)  plaint  for  money  due  on 

amendment  and  _  _  nn    ,    _T  , 

re-presentation    an  instrument  of  hypothecation,  dated  23rd  November, 
tute  fresh  in."  1866,  was  presented   on  the  21st  November,  1878 :  the 

stitution.  r  r 

(1)  I.  L.  E.,  1  All.  230.  I      (3)  I.  L.  E.,  5  Calc,  807. 

(2)  I.  L.  E.,  2  AH.,  241.  |      (4)  I.  L.  E.,  2  All.,  832. 


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SBC.  4]  PART  II. — LIMITATION  OF  SUITS,  APP1ALB  AND  APPLICATIONS.     27 

plaint  also  sought  to  hold  the  property  liable*     The  plaint 
was  returned  for  correct  description  of  property,  and  was 
re-presented  on  the  8th  January,  1879.    The  Lower  Appel- 
late Court  being  of  opinion  that  the  claim  to  enforce  a 
charge  must  be  taken  to  have  been  instituted  on  the  date  of 
re-presentation,  rejected  it  as  barred.     It  was  held,  that 
the  return  of  a  plaint    for  amendment  and  subsequent 
presentation  and  acceptance  by  the  court,  will  not  consti- 
tute a  fresh  institution,  though  the  substitution  or  addi-    Bait  already 
tion  of  a  person  as  new  plaintiff  or  defendant,  some  time    treated  as  new, 
after  the  institution  of  the  suit,  shall  make  the  suit  as   since  added, 
regards  him  to  be  treated  as  instituted  when  he  was  so 
made  a  party. 

(6)     Khem   Karan  v.   Har  Dayalt1)  was  a  suit  to   Suit  against 
enforce  pre-emption,  instituted  against  the  vendor  and  ted  when  plaint 

was  presented 

the  purchasers  who  were  minors,  on  the  1st  June,  1880.   and  not  when 

appointment  of 
Sale   Deed  was   registered  on   9th   June,   1879.     After  guardian  ad 

the  institution  of  the  suit,  plaintiff   discovered  that  the 

vendees  were  minors,  and  obtained  on  the  15th  June,  1880, 

an   order  appointing  a  guardian.     It  was   argued  that 

no  suit  was  in  reality  instituted   until  the  date  of  the 

guardian's  appointment.     It  was  held  that  the  suit  was 

instituted  on  the  day  the  plaint  was  presented. 

(f )  In  Oulab  Rai  v.  Mangli  Lai,  W  it  was  held,  that  Order  rejecting 

•  i  ,  Appeal  Memo. 

an  order  rejecting  a  memorandum  of  an  appeal  as  barred  as  barred  is  a 

i  .  i  .  decree  appeal- 

by  limitation  is  a  decree  withm  the  meaning  of  section  2  able. 
of  the  Civil  Procedure  Code,  and  it  is  therefore  appeal- 
able, and  not  open  to  revision  by  the  High  Court  under 
section  622  of  the  Code.  In  Gunga  Dass  Dey  v.  Bamjoy 
Dey<8>  it  was  held,  that  an  order  dismissing  an  appeal 
as  presented  out  of  time  under  this  section,  is  "  a  decree 
passed  in  appeal1'  within  the  meaning  of  section  584  of 
the  Civil  Procedure  Code  of  1882,  and  a  second  appeal 
will,  therefore,  lie  from  such  order. 

(g)  In  Mahomed  Hossein  v.  Purundur  Mahto,(4>  the*  This  Section 

Lower  Appellate  Court  was  of  opinion  that  as  the  court  away  the 

executing  the  decree  had  no  jurisdiction  to  entertain  the  diction  in  res- 
pect of  an  ap- 
8)  I.  L.  R.,  4  All.,  37.  I      (3)  I.  L.  R.,  12  Oalc,  30.  plication  in  any 

)  I.  L.  R.,  7  All.,  42.  |      (4)  I.  L.  R.,  11  Calc,  287. 


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28     PART  n. — LIMITATION  OF  SUITS,  APPEALS  AND  APPLICATIONS.   [8EC.  4 
way.  Erroneous  decree-holder's  application  for  the  sale  of  the  disputed 

decision  that  an  .  . 

application  is      property  in  consequence  of  the  decree  being  barred  by 

notbarredisnot    f.     f      .  ,  ,  *  .  ,        -r*.    f 

a  nullity  until  limitation,   the   sale    itself  was   a  nullity.     The   High 
set  aside.  _, 

Court  observe  "  section  4  of  the  Limitation  Act  directs 

that  an  application  made  after  the  period  prescribed  in 

the  Act  shall  be  dismissed.     This  direction  in  the  section 

in  question  does  not  take  away  the  jurisdiction  of  the 

court  in  respect  of  the  application  in  any  way.     If  the 

court  erroneously  holds  that  the  application  is  not  barred, 

the  order  of  the  Court,  though  erroneous  and  liable  to  be 

set  aside  in  the  way  prescribed  in  the  procedure  law,  is 

not  a  nullity,   but'  remains  in  full  force  until  set  aside. 

Therefore,  the  sale  held  in  this  case  was  a  valid  sale 

until  it  was  set  aside." 

Government  In  Shami  Mohammed  v.  Mahommed  All  Khan/1)  it  was 

were  held  not 

entitled  to  ex-  held  in  January,  1869,  that  the  right  of  Government  to 

ttxnltation  as  to  recover  stamp  fees  in  pauper  suits  under  section  309  of 
applications. 

Act  VIII  of  1859,  was  not  affected  by  the  limitation 
contained  in  section  20  of  Act  XIV  of  1859,  as  section  17 
exempted  public  claims  from  that  Act.  In  the  Collector 
of  South  Arcot  v.  Thatha  Charry/*)  five  years  after  the 
dismissal  of  a  pauper  suit,  Government  sought  recovery 
of  the  stamp  duty  by  attachment  and  sale  of  the  pauper's 
property.  It  was  held  in  April,  1875,  that  the  claim  was 
not  barred.  In  Appaya  v.  The  Collector  of  Vizagapa- 
tam/3>  which  was  an  application  by  Government  under 
section  411  of  the  Code  of  Civil  Procedure,  to  recover  the 
amount  of  court  fees  due  under  a  decree  from  the  defen- 
dant, it  was  held  that  the  Government  were  not  entitled 
to  any  exemption  from  the  provisions  of  the  Limitation 
Act  of  1877,  relating  to  applications.  The  court  observe, 
"  We  are  of  opinion  that  the  Government  is  not  entitled 
to  any  exemption  from  the  provisions  of  the  Limitation 
Act  relating  to  applications.  If  the  maxim  on  which  the 
counsel  for  the  crown  relies  applies  to  this  country — and 
the  Crown  is  not  bound  by  the  provisions  of  any  Act 

(1)    2  B.  L.  B.,  App.,  22.       |      (2)  8  Mad.,  H.  C.  E.,  40. 
(8)  I.  L.  E.,  4  Mad.,  155. 


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8EC.  5]  PABT  II. — LIMITATION  OF  SUITS,  APPEALS  AND  APPLICATIONS.     29 

unless  they  are  expressly  declared  binding  on  the  Crown 
— it  may  be  inferred  1  rom  the  circumstance  that  this  Act 
contains  provisions  prescribing  a  Limitation  to  the  Go- 
vernment for  the  institntion  of  snits  and  presentation 
of  criminal  appeals,  that  the  legislature  contemplated 
thai  the  Crown  should  be  subject  to  the  provisions  of  the 
Act,  and  should  enjoy  a  privilege  to  the  extent  expressed 
and  no  further." 

5.     If  the  period  of  limitation  prescribed  for  JJjjJ^  ^Jjjj 
any  suit,  appeal  or  application  expires  on  a  day  j^p**10***- 
when  the  court  is  closed,  the  suit,  appeal  or 
application    may  be  instituted,  presented,  or 
made  on  the  day  that  the  court  re-opens  : 

Any  appeal  or  application  for  a  review  of  ?££^*% 
judgment  may  be  admitted  after  the  period  of  ^T*  for  **" 
limitation  prescribed  therefor,  when  the  appel- 
lant or  applicant  satisfies  the  court  that  he  had 
sufficient  cause  for  not  presenting  the  appeal  or 
making  the  application  within  such  period.  * 

(a)     The  discretionary  power  allowed  to  Courts  by  the  The  second 
second  clause  of  this  section  does  not  extend  to  applica-   inapplicable  to 

an  applicant  to 
tions  other  than  an  application  for  review.     It  has  been  eneae  pauper. 

held  that  the  language  of  the  section  does  not  permit 
of  the  indulgence  provided  for  in  the  second  clause 
being  shown  to  an  applicant  for  leave  to  appeal  as  a 
pauper,  while  a  pauper  may  apply  for  a  review  of  judg- 
ment availing  himself  of  the  indulgence,     (vide  Note  T.) 

(l>)     In  Gulam  Husen  Mahamed  v  Say  ad  Musa  Miya   Pendency  of 

Hamad  Ali.P)    the   original  decree   of    the   Subordinate   and  ignorance 
'  of  legal  effect  of 

Judge  was    modified    on  the  21st  March,  1882,   by  the  judgment  no  ex- 

^  *  case  for  delay 

(1)  I.  L.  E.(  8  Bom.,  260.  in  applying  for 


review. 


*  Bill  No.  23  of  1886,  introduced  into  the  Imperial  Council  on  the 
1st  September,  1886,  proposes  the  extension  of  the  provisions  of  this 
section  of  the  Limitation  Aot  applicable  to  an  appeal,  to  the  objec- 
tion and  notice  under  section  661  of  the  Civil  Procedure  Code  of 
1882.  The  bill  also  proposes  amendment  of  the  first  proviso  to  the 
first  paragraph  of  section  561. 


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30     PART  II. LIMITATION  OF  SUITS,  APPEALS  AND  APPLICATIONS.   [8EC.  5 

District  Judge  by  the  reduction  of  the  amount  of  cess  ille- 
gally levied,  and  the  High  Court,  on  the  23rd  June,  1882, 
dismissed  the  second  appeal  on  the  ground  that  the  Lower 
Courts  had  no  jurisdiction  as  the  suit  was  a  Small  Cause 
suit.  In  July,  1882,  when  the  plaintiff  brought  another 
suit  to  recover  the  cess  illegally  levied  since  the  former 
suit,  the  Judge  held  that  the  defendant  was  estopped 
from  disputing  the  plaintiff's  claim.  On  the  18th 
November,  1882,  the  defendant  applied  for  a  review  of 
the  District  Court's  decree,  dated  21st  March,  1882,  and 
the  District  Judge  granted  it.  It  was  held  by  a  Division 
Bench  that  the  circumstances  did  not  justify  the  admission 
of  the  application  for  review  after  the  expiration  of  the 
ninety  days  allowed  by  the  Limitation  Act,  and  that  the 
pendency  of  an  appeal  is  not  "  a  sufficient  cause"  for  not  ap- 
plying earlier  within  the  meaningof  this  section,  and  that 
an  applicant  for  review  cannot  plead  his  ignorance  of  the 
effect  of  the  judgment  as  a  justification  for  his  delay. 
Counsel's  (c)     In  Gopal  Chandra Lahiri  v.  Solomon/1)  judgment 

a  deed  is  not     was   given  on  the  5th   of  February,    1885,  the   decree 
cause"  within      was  signed  on  the  25th  day  of  February,  1885  ;  but  the 
this  section.        application  for  review  was  not  made  until  the  9th  of 
April,  long  after  the  20  days  prescribed  by  the  Limita- 
tion Act  had  expired.     That  counsel  did  not  read  the 
deed  until  the  30th  of  March,  when  he  did  so  for  the 
purpose  of  a  proceeding  in  another  suit,  was  said  to  be 
"  sufficient  cause"  within  the  meaning  of  this  section  for 
not  making  the  application  within  20  days.     Garth,  C.  J., 
held  that  there  was  no  "  sufficient  cause,"  observing  that 
if  this  was  a  sufficient  excuse  it  would  be  an  equally  good 
excuse  for  delaying  for  a  year  or  more  whenever  the 
learned  counsel  might  happen  to  read  its  contents. 
This  section  »p-       (d)     Golap  Chand  Nowluokha  v.  Krishto  Chunder  Dass 
limitation  pro-    Biswas/2)  was  a  suit  brought  to  recover  money  or  obtain 
other  Acts  for     papers  or  accounts  from  an  agent,  and  it  was  to  be  insti- 
tuted under  section  30  of  the  Bengal  Act  VIII  of  1869, 
within  one  year  from  the  determination  of  the  agency. 

(I)  I.  L.  R.,  13  Calo.,  62.      |      2)  I.  L.  E.,  5  Oalo.,  814. 


suits. 


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SEC.   5]    PART  II. — LIMITATION  OF  SUITS,  APPEALS  AND  APPLICATIONS.   81 

As  on  the  last  day  of  such  year,  the  courts  were  dosed, 
it  was  filed  on  the  first  day  of  the  re-opening  of  the  court. 
It  was  held  that  the  plaintiff  was  entitled  to  the  benefit 
of  this  section.  This  was  followed  in*1)  Khoshelal  Mahton 
v.  Gunesh  Dutt. 

(e)  Thir  Sing  v.  Venkataramier(2>  was  brought  to  set  m.  h.  held  this 
aside  the  decision  of  a  Revenue  Settlement  officer  passed  oniTr°£>  caaee  y 
on  the  12th  September,  1876,  under  section  25  of  Act  28  of  the  general  Act 
1860  (Madras)  and  for  possession  of  the  hill  in  dispute. 
The  decision  of  the  Settlement  Officer  was  confirmed  in 
appeal  on  the  23rd  October,  1876.  As  the  12th  November 
was  Sunday,  this  suit  was  brought  on  the  13th  November, 
1876.  According  to  the  true  construction  of  section  25, 
the  decision  against  which  an  appeal  is  allowed  in  the 
form  of  a  regular  suit  is  the  original  decision  of  the 
Settlement  Officer  and  not  that  of  his  superior  passed  on 
revision  ;  and  unless  time  is  extended  by  the  Governor-in- 
Council,  the  appeal  must  be  brought  within  two  calendar 
months  from  the  date  of  the  original  decision.  It  was 
held  that  the  exceptions  contained  in  section  5  of  Act  IX 
of  1871,  which  has  been  reproduced  in  the  Act  of  1877, 
apply  only  to  cases  dealt  with  under  the  General  Act  of 
Limitation,  and  that  in  the  absence  of  a  special  provision 
applicable  to  special  laws,  the  general  rule,  that  when 
limitation  once  begins  to  run,  it  continues  to  run  and  its  ' 
operation  is  not  liable  to  be  suspended  either  on  Sundays, 
holidays,  or  during  the  recess  of  courts,  is  applicable. 

(f)  In  Nijabutoola  v.  Wazir  Ali,(8>  which  was  a  Thk  section  ap. 
suit  under  the  Indian  Registration  Act,  it  was  held,  that  under  Registry 
the  interpretation  of  this  section  considered  along  with 
section  6,  is  that,  except  as  defined  in  section  6,  the 
general  provisions  of  the  Limitation  Act  are  applicable  to 
cases  for  which  periods  of  limitation  are  specially  pro- 
vided by  local  or  special  laws  ;  and  that  therefore  section 
5  oi  the  Limitation  Act  ought  to  have  been  allowed  to 
operate  in  the  present  case. 

(1)  I.  L.  E.,  7  Calc,  690.        |      (2)  I.  L.  R.,  3  Mad.,  92. 
(3)  I.  L.  B.,  8  Calc,  910. 


tion  Act. 


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32   PAST  IL — LIMITATION  OP  SUITS,  APPEALS  AND  APPLICATIONS.    [SRC.    5 

if  office  was  (g)     Where  a  District  Court  »was  adjourned  for  two 

tionof  appeals,  months,  but  the  notification  stated  that  the  court  would 
journment,  be  open  twice  a  week  for  the  reception  of  plaints,  petitions, 
closed.  and  appeals,  it  was  held  that  the  court  was  not  closed  till 

the  last  day  of  the  adjournment  within  the  meaning  of 
this  section  so  as  to  allow  an  appellant  to  present  his 
appeal  on  the  day  the  court  re-opened  after  the  adjourn- 
ment, the  appeal  time  having  expired  during  the  adjourn- 
ment.    Nachiyappa  v.  Ayyasami/1) 
Party  can  de-        (h)    Where  the  period  of  limitation  prescribed  for  a 
the  Court  was  suit  expired  when  the  court  was  closed  for  a  vacation, 
r©-opened  on  a  and  the  court,  instead  of  re-opening  after  the  vacation 
y'  on  the  day  that  it  should  have  re-opened,  re-opened  on  a 

later  day,  and  the  suit  was  instituted  when  it  did  re-open ; 
it  was  held  that  the  suit  was  instituted  within  time,  since 
the  section  does  not  refer  to  vacation  or  holidays.     Bishan 
Chand  v.  Ahmad  Khan.<2> 
Appeal,  if  time       (i)     In  Hariette  A.  King  v.  J.  S.  King/8)   it  was  held, 
vacation,  may    that  where  the  period  of  limitation  for  the  filing  of  an 
the  reopening    appeal  has  expired  during  vacation,  a  party  to  a  suit  has 
a  right  under  the  provisions  of  the  Limitation  Act  XV  of 
1877,  to  have  his  appeal  admitted  on  the  day  the  court 
re-opens,  and  the  Prothonotary  of  the  High  Court  has 
power  to  receive  aud  file  a  memorandum  of  appeal  on  that 
day. 
circumstance  f\\    In  Balwant  Singh  v.  Gumani  Ram,W  appeal  was 

contemplated  in         *J'  °  ,, 

section  i«  is  suf-  presented  one  day  after  the  time,  and  the  appellant  pleaded 

not  presenting  that  he  was  engaged  down  to  the  last  day  in  making  an 
appeal  in  time.  °   ;*  m  ....  .  . 

application  in  re  visional  jurisdiction  which  was  rejected 

for  want  of  jurisdiction  to  entertain  it  in  revision.  It  was 
•  held  that  section  14  was  limited  to  courts  of  original  juris- 
diction merely  because  this  section  had  given  larger  and 
unfettered  power  in  the  same  behalf  to  Appellate  Courts 
and  that  the  circumstances  contemplated  in  section  14 
would  ordinarily  constitute  a  sufficient  cause  in  the  sense 
of  this  section  for  not  presenting  an  appeal  within  time. 

(1)  I.  L.  R.,  5  Mad.,  189.        I      (3)  I.  L.  R.,  6  Bom.,  487. 

(2)  I.  L.  R.,  1  All.,  263.  |      (4)  I.  L.  R.,  5  All.,  591. 


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SBC.  5]   PAET  H. — LIMITATION  OF  SUITS,  APPEALS  AND  APPLICATIONS.     88 

fk)     In  Moshaullah  v.  AhmedullahW  original  decree  Towtr  is  no* 

v     '  "sufficient    ex- 

was  passed  on  the  27th  September,  1883.     The  plaintiff  cose"    for  ad- 

mitting    appeal 

applying  for  a  review  on  the  12th  December,  1883,  obtained  aftiVtW 
a  decree  in  his  favor  on  the  27th  February,  1884. 
Defendant  applied  to  the  High  Court  for  leave  to  appeal 
in  forma  pauperis  and  on  the  6th  of  January,  1885,  an 
est-parte  order  was  passed  that  the  appeal  be  registered  on 
payment  of  the  court  fee.  When  the  appeal  came  on  for 
hearing,  it  was  held,  on  the  objection  of  the  respondent, 
that  poverty  was  not  "sufficient  cause'*  within  the  meaning 
of  this  section,  and  that  the  appeal  was  barred. 

(1)     An  Appellate  Court  should  not  admit  an  appeal  Court  should  re- 
after  the  period  of  limitation  prescribed  therefor,  without  admitting  »p- 

peal  after  time. 

recording  its  reasons  for  being  satisfied  that  there  was 
sufficient  cause  for  not  presenting  it  within  time.  In 
Zaibulnissa  Bibi  t>.  Kulsum  Bibi,W  the  Lower  Appel- 
late Court  admitted  the  appeal  presented  one  day  beyond 
the  period  allowed,  recording  that  it  should  excuse  the 
delay  which  the  appellant  verbally  stated  was  the  result 

of  miscalculation.     It  was  held  that  an  error  in  the  calou-  Error  in  calcu- 
lation is  not 
lation  was  not  sufficient  cause  for  the  delay.  sufficient  cause. 

(m)     In  Raghunath  Gopal  v.  Nilu  Nathaji,W  suit  was  Should  aieo  re- 
rejected    on    the    21st    December,  1882.     On   plaintiff's  diamiasing :ap- 
application  for  review  on  the  1st  February,  1883,  the  court 
thought  that  the  proper  course  was  to  appeal.     On  the 
3rd  June,   1883,  the  plaintiff  appealed,  but  the  District 
Judge  rejected  it  as  barred  without  recording  his  reasons. 
The  High  Court  discharged  his  order  and  directed  him  to  Order  discharge 
make  a  fresh  order  with  due  regard  to  the  observations  cording  reaeona 
they  had  made  in  the  judgment. 

(il)    In   Chunder  Doss  v.  Boshoon  Lall  Sookul,(4>   it  High  Court  in 

,,,.,,.,  .       .    •  .       _,    ,     „  .      2nd  Appeal  can 

was  held,  that  it  was  competent  for  the  High  Court  in  examine  the 
second  appeal  to  look  into  grounds  which  a  judge  has  ground*  for  ad- 
given  for  admitting  an  appeal  after  the  lapse  of  the  period  aftertfcne. 
limited  for  the  purpose. 

(1)  I.  L.  R.,  18  Calo.,  78. 

(2)  LLB.,1  AH.,  260. 
(8)  I.  L.  R.,  10  Bom.,  452. 
(4)  I.  L.  R.,  8  Gale,  251. 


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34    PABT  II. — LIMITATION  OF  SUITS,  APPEALS  AHD  APPLICATIONS.     [SBC.  5 

Sub-Judge  can-  (o)  In  Jhbtee  Sahoo  v.  Omesh  Chancier  Sircar/1)  it 
District  Judge's  was  held  that  a  Sub- judge  could  not  override  the  order  of 
appeal.  a  District  Judge  admitting  an  appeal,  and  that  he  had 

only  jurisdiction  to  hear  the  appeal  on  its  merits. 
b.  h.  declined        (p)     In  Ranchodji  v.  Lallu  ,<*>  it  was  held  that  where 

Interference  vtf'  J  ' 

with  District      the  law  leaves  a  matter  within  the  discretion  of  a  court, 

Judge's  refusal 

after enquiryto  and  the  court,  after  a  proper  enquiry  and  due  considera- 
after  time.  tion,  has  exercised  the  discretion  in  a  sound  and  reasonable 

manner,  the  High  Court  would  not  interfere  with  the 
conclusion  arrived  at,  even  though  it  would  itself  have 
arrived  at  a  different  conclusion,  and  that  consequently, 
where  a  District  Judge,  after  due  enquiry,  refused  to  admit 
an  appeal  presented  after  time,  the  High  Court  would  not 
interfere  with  his  order.  In  this  case,  the  District  Judge 
found  that  the  appellant  appeared  to  have  endeavoured 
to  mislead  him  by  falsehood  or  at  least  by  prevarication. 
Appeal  held  as       (fl)     In   Sheo  Partab  Narain  Singh  t>.  Sheo   Gholam 

preferred  when       t  . 

memorandum      Singh,  W  appellant    presented    the  appeal  on  the  23rd 

was  first  pre* 

sented  and  not     June,  1879,  within  the  time.     On  the  5th  July,  the  Lower 

when  represent- 

jd  on  return  for  Appellate   Court  returned  it  for  insufficiency  of  stamp 
j£^p  wttfcot-t    without  fixing  time  for  representation.     On  the  18th  July, 
1880,  the  party  represented  it,  but  the  Lower  Court  rejected 
it  as  barred.     It  was  held,  that  for  the  purpose  of  limita- 
tion, an  appeal  is  preferred  when  the  memorandum  of 
appeal  is  presented  to  the  proper  officer  and  hot  when, 
where  the  memorandum  of  appeal  is  insufficiently  stamped 
and  is  returned  in  order  that  the  deficiency  may  be 
supplied,  it  is  again  presented,  and  that  the  court  should 
fix  a  time  for  representation, 
so  an  appeal         (p)    Where  an  appellant  presented  an  appeal  within 
sented  on  return  the  period  of  limitation   prescribed  therefor,    and    the 

for  amendment  * 

without  fixing  Appellate  Court  returned  the  memorandum  for  amend- 
ment without  fixing  time  for  the  purpose,  the  memo- 
randum represented,  some  days  after  the  period  of  limita- 
tion, was  held  as  presented  within  time,  the  date  of  its 
presentation  being  the  date  it  was  first  presented.    The 

(1)  I.  L.  R.,  5  Oalc.,  1.    J      (2)  I.  L.  R.,  6  Bom.,  804. 
(ft)  1. 1*  R.,  2  A&,  87S. 

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8SC.  5]     PART  II.— LIMITATION  OF  SUITS,  APPEALS  AND  APPLICATIONS.     85 

Appellate  Court  should  specify  the  time  for  such  correction.  . 
JaganNatht?.  Lalman-W   This  was  followed  in  Sheo  Partab 
Narain  Singh  v.  Sheo  Gholam  Singh.  <*> 

(g)     In  Degamher  Mozumdar  t>.  Kallynath  Roy/8)   it  ^SSSi'doL  not 
was  held  in  July,  1881,  that  the  7  days'  time  within  which  jg1*1?^^^ 
a  notice  of  objection  to  a  decree  by  a  respondent  under  motion  mi  of 
section  561  of  the  Code  must  be  given,  is  not  a  period  to  1877.  '       ' 
which  the  provisions  of  paragraph  2  of  section  5  of  the  isse  proposes 

r  i         or  extension  of  mo* 

limitation  Act  can  be  extended,  and  the  court  has  no  tion  6  of  the  Li. 

.       mitatkm  Act 

discretion  to  extend  the  period.     This  was  followed  in  applicable  to 
Kally   Prosunno  Biswas  t>.  Mungala  Dassee,<*>  in  which  nowSTnnder 

J  °  section  Ml  of 

it  was  held  that  the  provision  of  the  2nd  clause  does  not  the  c.  p.  c.  of 
apply  to  anything  except  an  appeal  or  application  for 
review  of  judgment. 

(t)     In  Lakshmi  v.  Ananta  Shanbaga,<6)   the   decree  The  terms  of 
was  dated  21st  December,  1877,  and  the  application  for  not  admit  of  the 

rxr  indulgence 

leave  to  appeal  as  a  pauper  was  not  made  till  25th  July,  therein  prorid- 
1878.     There  was  a  delay  of  66  days   after  deducting  30  shown  to  an  ap- 

*  J  plicant  for  leave 

days  allowed  by  Article  170,  and  the  date  of  the  judgment  to  appeal  as  a 

and  the  time  occupied  for  obtaining  a  copy  of  the  decree 

under  section  12  of  the  Limitation  Act.    In  section  4,  suits, 

appeals,  and  applications  are  separately  mentioned,  while, 

in  section  12,  an  appeal,  an  application  for  leave  to  appeal 

as  a  pauper,  and  an  application  for  a  review  of  judgment 

are  separately  named,  and  the  language  used  does  not 

leave   room   for  the  suggestion  that  it  was  intended  to 

class  an  application    for  leave  to  appeal  as   a  pauper 

under  the   head  of  appeals.     The    court  rejecting  the 

application    under    section  4,  on   the  ground  that  the 

indulgence  shewn  to  an  ordinary  applicant  in  this  section 

is  not  extended  to  an  application  for  leave  to  appeal  as  a 

pauper,  observe: — "Although   it    may    appear    strange  strange  that  the 

that  the  same  indulgence  should  not  be  shown  to  a  pauper  should  not  be 

applying  for  leave  to  appeal  as  to  an  ordinary  appellant,  pauper  apply- 

and   that,   while  a  pauper  may  apply  for  a  review  of  appeal. 

judgment  with  the  same  indulgence  as  to  delay  in  making 

(1)  I.  L.  R.x  1  All.,  260.      !      (3)  I.  L.  R„  7  Cmlc,  664. 


(2)  I.  L.  R.,  2  All.,  8f  5.      |      (4)  I.  L.  R.,  9  Calo„  631. 
(5)  I.  L.  B.,  2  Mad.,  £30. 


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36     PAET  II. — LIMITATION  OP  SUITS,  APPRAL8  AND  APPLICATIONS.   [SIC.  5 

the  application  as  a  person  who  is  not  a  pauper,  yet,  in 
making  his  application  for  leave  to  appeal,  similar  indul- 
gence is  not  extended  to  him ;  the  language  of  the  Act 
precludes,  we  think,  any  other  construction  of  it  upon  this 
question  than  that  contended  for." 
Negligence  of         (\i)     In   The  Corporation  of  the  Town  of  Calcutta  v. 

an  appellant  s 

attorney  ie  not  Anderson/1)  the  plaintiff  sued  to  recover  damages  from 

sufficient   cause     ,-.,-,...—  .  . 

under  this  sec-  the  Calcutta  Municipal  Corporation,  the  contractor  under 
them  and  the  Secretary  of  State.  The  lower  Court 
decreed  the  plaintiff's  claim  as  against  the  Corporation 
and  the  contractor,  and  dismissed  the  claim  as  against 
the  Secretary  of  State,  with  costs.  Against  this  decision, 
dated  27th  June,  1883,  the  Municipal  Corporation  appealed 
on  the  20th  July,  1883,  giving  notice  of  the  same  to  the 
plaintiff's  attorney  on  the  same  date.  On  the  8th 
January,  1884,  plaintiff's  attorney  filed  an  affidavit  of 
delay,  alleging  that,  till  then,  he  did  not  notice  that  the 
Secretary  of  State  was  not  a  party  to  the  appeal,  and 
prayed  for  permission  to  allow  him  to  appeal  against  the 
Secretary  of  State.  It  was  held  that  mere  negligence  on 
the  part  of  the  appellant's  attorney  is  not  a  sufficient 
explanation  of  delay  under  this  section. 

Appeal  by  one       (y)     In  Moti  Bibi  v.  Bikanu,<2)  B  sued  M  and  T  for 

memorandum  v     ' 

against  first  money  due  on  a  bond,  and  on  the  27th  April,  1877, 
time  and  second  obtained  a  decree  against  T ;  the  suit  against  M  being 
view,  admitted    dismissed.     T  applied  for  a  review   of  judgment,   and 

by  the  lower  **  J       °  ' 

^ected  bMthe"  ^  a*so  ma<*e  a  8*milar  application.  On  the  25th  May, 
jlguia^  *•  1877,  Ty8  application  was  granted,  and  on  the  16th  July, 
&a^ne.)a  1877'  F*  was  »j«*tei  On  the  29th  June,  1878,  the 
court  re- heard  the  suit  against  T  and  dismissed  it.  B 
appealed,  making  T  and  M  respondents,  and  impugning 
in  his  memorandum  of  appeal  the  decree  of  the  27th 
A  pril,  1877,  as  well  as  that  of  the  29th  June,  1878.  The 
Appellate  Court  assuming  that  the  appeal  was  one  from 
the  decree  ci  the  27th  April,  1877,  preferred  beyond  time, 
admitted  it  after  time,  and  after  hearing  the  case  on  its 
merits,  gave  a  decree  against  M  and  dismissed  the  suit 

(1)  I.  L.  R.,  10  Calc,  446.      |      (2)  I.  L.  R.,  2  All.,  772. 

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8EC.  6]  PART  n. — LIMITATION  OP  SUITS,  APPEALS  AND  APPLICATIONS.     37 

as  regards  T.  It  was  held  that  the  Appellate  Court 
erred  in  assuming  that  the  appeal  was  from  the  decree  of 
the  27th  April,  1877,  and  that  it  was  at  liberty  to  admit  it 
beyond  time,  the  appeal  being  from  the  decree  of  the 
29th  June,  1878,  that  decree  being  the  one  which  had 
brought  B  before  that  court  as  an  appellant,  and  that  the 
Appellate  Court  was  not  competent  on  an  appeal  from  the 
decree  of  the  29th  June,  1878,  to  reconsider  the  merits  of 
the  case  against  M,  the  appeal  from  the  decree  of  the  27th 
April,  1877,  being  barred  by  limitation,  and  that  decree 
and  the  decree  of  the  29th  June,  1878,  being  separate  and 
distinct,  and  not  appealable  in  one  memorandum  of  appeal 
from  the  latter  decree.  The  High  Court  observe,  that  if 
the  plaintiff  was  desirous  of  appealing  from  the  decree  of 
April,  1877,  he  might  have  done  so  within  the  time 
allowed  by  law,  or  if  under  any  misapprehension  he  had 
allowed  that  period  to  run  by,  he  should  have  presented 
his  memorandum  of  appeal,  assigning  reasons  for  not 
presenting  his  appeal  within  such  period.  Had  he  done 
so,  the  court  under  this  section  might  have  admitted  the 
appeal  after  time  if  satisfied  that  the  appellant  had 
sufficient  cause  for  not  making  hie  application  within 
time.     This  course  the  plaintiff  did  not  adopt. 

6.     When,  by  any  special  or  local  law  now  special  and 
or  hereafter  in  force  in  British  India,  a  period  of  ,imitation- 
limitation  is  specially  prescribed  for  any  suit, 
appeal  or  application,  nothing  herein  contained 
shall  affect  or  alter  the  period  so  prescribed. 

(a)     This    section    allows    the   period  of    limitation         c.  H. 

provided  for  by  any  special  or  local  law  to  remain  un-  sionlTof  t£e°Li- 

affected,  while  the  corresponding  section  of  the  old  Act  1877  were  hefd 

to  apply  to  cases 

for  which  lixni- 
Bengal  Act  VIII  of  '69,  was  repealed  by  the  Bengal  Tenancy  Act   tation  is  provid- 

YIII  of  1886.  The  Legislature,  with  a  view  to  avoid  all  doubts  and  Jjefial  taw?  " 
uncertainties  as  to  the  extent  of  the  application  of  the  general  provi- 
sions of  the  Limitation  Act  to  suits  under  that  Act,  prescribed,  by 
Schedule  III,  special  limitation  of  six  months,  one,  two,  three  years 
for  suits  expressly  named  therein,  and  thirty  days  for  appeals  and 
three  years  for  execution  of  decrees,  providing  at  the  same  time  by 


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38     PART  II. — LIMITATION  OF  8UITS,  APPEALS  AMD  APPMCATION8.    [SIC.  6 

IX  of  1871,  provided,  "  nothing  herein  contained  shall 
affect  such  law."  In  the  wording  of  this  section  there  is 
nothing  to  forbid  the  application  of  the  general  provisions 
for  computing  the  period  of  limitation  contained  in  Part 
III  of  this  Act  to  special  and  local  Acts  providing  special 
limitation  to  suits  and  applications.  In  Golap  Ohand 
Nowluckba  v.  Erishto  Chnnder  Dass  Biswas/1)  which  was 
a  suit  under  section  30  of  the  Bengal  Act  VIII  of  1869, 
plaintiff  was  held  entitled  to  the  benefit  of  section  5  of 
this  Act.  In  Nijabutoola  t;.  Wazirali,W  which  was  a  suit 
under  the  Indian  Registration  Act,  it  was  held,  that  the 
general  provisions  of  the  Limitation  Act  are  applicable  to 
cases  for  which  periods  of  limitation  are  specially  provided 
j  by  local  and  special  laws.  In  Khetter  Mohun  Chucker- 
butty  v.  Dinabashi  Shaha,(8>  which  was  a  suit  under  the 
Registration  Act,  plaintiff  was  held  entitled  to  the  benefit 
of  section  14  of  the  Act. 
Bombay  High         (b)     In  Guracharya  v.  The  President  of  the  Belgaum 

Court  alto  field  ,,..,.,      iv        ,  .  ,  .  ,  - 

so.  Town    Municipality/4/    which   was    a    suit    under    the 

Bombay  Municipal  Act  VI  of  1873,  the  Bombay  High 

Court,  following  the  above  decisions  of  the  Calcutta  High 

Court,  held  that  the  plaintiff  was  entitled  to  the  benefit  of 

section  14  of  the  Act. 

m.  h.  held  in       (o)     In   Erajalu  v.  Mayan, <«>  plaintiff  sued  before  a 

ooffnisabie  bv     Village  Munsif  on  the  17th  November,  1884,  for  money 

are  not  excluded  due  on  a  bond  which  had  become  payable  on  the  14th 

from  the  Limita-  *    J 

tionActofi877.  November,  1880.  The  Village  Munsif  decreed  the  suit. 
The  District  Judge,  being  of  opinion  that  the  decision  was 
illegal,  inasmuch  as  the  Limitation  Act  contained  no  such 

(1)  I.  L.  R.,  5  Calc,  814.        I      (3)  I.  L.  R.,  10  Gale,  265. 

(2)  I.  L.  R.,  8CaIc,.  910.        |      (4)  I.  L.  R.,  8  Bom.,  629. 

-  (E)  1.  L.  R.,  9  Mad.,  118. 

section  184,  for  dismissal  of  suits,  appeals  and  apptioations  instituted 
after  the  period  of  limitation  prescribed  by  the  eohednle.  Section  186 
makes  sections  7, 8  and  9  of  the  Limitation  Act  of  '77  inapplicable  to 
the  snits  and  applications  named  in  section  184 ;  but  Clans©  2  of  that 
section  provide*  for  the  application  of  the  provisions  of  the  Limi- 
tation Act  of  1877  to  all  suits,  appeals  and  applications  mention- 
ed in  section  184,  subject  to  the  provisions  of  sections  184  and 
Clause  I  of  186. 


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8KC.  6]   PAKT  II. — LIMITATION  OF  SUITS,  APPEAL8  AHD  APPLICATIONS.      39 

exception  as  in  section  6  of  the  C.  P.  C,  referred  the  case 
to  the  High  Court  for  orders.  Hutch  ins,  J.,  observes,  "  It 
is  tme  that  Section  6  of  the  Limitation  Act  provides  that 
nothing  contained  in  the  Act  shall  alter  or  affect  a  period 
specially  prescribed  by  any  special  or  local  law  for  any 
suit,  appeal  or  application,  but  section  5,  Regulation 
IV  of  1816,  can  hardly  be  said  to  prescribe  a  period  of 
limitation  for  any  particular  suit  or  class  of  suits.  It 
simply  prohibits  a  Village  Munsif  from  taking  cognisance 
of  any  suit,  whatever  its  nature,  unless  the  cause  of  action 
has  arisen  within  twelve  years.  It  would  be  unreasonable 
to  suppose  that  when  prescribing  different  periods  of 
limitation  for  different  suits  according  to  their  nature 
the  legislature  intended  to  preserve  a  rule  of  limitation 
applicable  only  to  a  particular  class  of  tribunals,  and 
which  would  entirely  defeat  their  object  in  regard  to  all 
suits  which  might  be  brought  before  such  tribunals." 

(d)  Thakoor  Kapilnauth  Sahai  Deo  v.  The  Govern-    c.  h.  held  Act 
w,v  -xx  *  _       A    ,.        ix  of  1871  la- 
ment*1' was  a  suit  to  recover  property  confiscated  under   applicable  to 

m  .  niti  instituted 

Act  XXV  of  1857  relating  to  the  seizure  of  property  of   under  Act  xxv 

of  1M7  aimI  Bun* 

the  rebels.  Section  9  of  the  Act  provided  for  the  institu-  sal  Act  vm  of 
tion  of  a  suit  within  one  year  from  the  seizure  of  the 
property.  Although  that  Act  had  been  repealed,  it  was 
held  that  as  there  was  no  exception  in  the  Act  (XXV  of 
1857)  in  favor  of  infants,  the  plaintiff  was  not  entitled  to 
deduct  the  time  during  which  he  was  under  the  disability 
of  minority.  In  Purran  Chunder  Ghose  v.  Mutty  Lall 
Ghose  Jahira,<*>  which  was  a  suit  for  rent  under  section 
29  of  the  Bengal  Act  VIII  of  1869,  filed  the  day  following 
the  last  day  of  the  term  which  was  a  close  holiday,  it  was 
held  that  Act  IX  of  1871  cannot  be  applied  for  relaxing 
the  term,  although  the  general  law  of  limitation  contain- 
ed in  Act  IX  of  1871  were  not  the  same  as  they  were  in 
Act  XIV  of  1859. 

(e)  The  Allahabad   High   Court  observed  that  the  a.  h.  observed 

.      .      .  m  f  _  rtfc»rt  section  IS  of  Act 

plaintiff  in  a  suit  brought  under  Act  XVIII  of  18 73,  sec-  ix  of  lsn  inap- 

.  ^  _  plioabletoaeuit 

tion  95,  for  possession  was  not  entitled  to  the  benefit  of  under  local  law. 


(1)  18  B.  L.  B.,  445.  I      (2)  I.  L.  B.,  4  Calc,  50. 


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40     PART  II. — LIMITATION  OF  SUITS,  APPEALS  AND  APPLICATIONS.  [SIC.  6 

section  15  of  Act  IX  of  1871.    In  holding  so,  they  followed 

the  rulings  of  the  Privy  Council  to  the  effect  that  the 

corresponding  section  14  of  Act  XIV  of  1859  did  not 

apply  to  suits  under  Act  X  of  1859.     (vide  Note  F.  under 

section  14.) 

M.  H.  held  sec-       (f)     In  Thir  Sing  v.  Venkataramier/1)  which  was  an 

of  1871  inftppii-   appeal  allowed  in  the  form  of  a  regular  suit  under  the 

under  local^   Madras  Boundary  Act  XXVIII  of  1860,  it  was  held  that 

the  exceptions  contained  in  section  5  of  Act  IX  of  1871 

applied  only  to  cases  dealt  with  under  the  general  act  of 

limitation,  and  that  in  the  absence  of  a  special  provision 

applicable  to  special  laws,  the  general  rule  that  when  • 

limitation  once  begins  to  run,  it  continues  to  run  and  its 

operation  is  not  liable  to  be  suspended  either  on  Sundays, 

holidays  or  during  the  recess  of  courts,  was  applicable. 

In  Be  Sied  Mohidin  Sahib,(2>  the  Madras  High  Court 

doubted  whether  the  provisions  of  Act  IX  of   1871,  for 

excluding  the  time  requisite  for  obtaining  a  copy  of  the 

decree,  could  be  applied  to  appeals  binder  the  Madras 

Rent  Act  VIII  of  1865,  but  in  Krishnasami  Muppanar  v. 

Sankara  Row  PeshurW   they  held  that  the  provisions 

were  not  applicable  to  appeals  under  the  Madras  Rent 

Act. 

p.  c.  on  Act         (g)     Certain  property,  in  the  actual  possession  of  a 

The  saving      rebel,  was  confiscated  by  the  Government  in  1858.     In  a 

pect  to  minors  suit  brought  on  1st  May,  1865,  to  recover  the  property,  it 

and  parties  uu-  *  /'  *  *     *       J> 

der  disability  to  appeared  that  the  plaintiffs  were   the  sons  and  heirs  of 
Act  xiv  of  1869  one  Af,  who  died  in   1854,  legally  entitled  to,  though  not 

held  inapplica-    .  .  _J       •  x-  xi.    x     x  il 

bie  to  a  suit      in  possession  of  the  property  in  question ;  that  at  the 

ment  under  Act  date  of  his  death,  and  at  the  date  of  the  confiscation,  the 

possession  of     plaintiffs  were  minors,  and  that  they  came  of  age  in  1861 

perty.  and  February  1864,  respectively.     It  was  held  that  the 

suit  not  having  been  brought  within  one  year  from  the 

date  of  the  confiscation,  was  barred  by  section  20,  Act 

IX  of  1859.     There  is  no  saving  clause  in  Act  IX  of  1859 

with  respect  to  minors  or  parties  under  disability  to  sue, 

and  such  saving  cannot  be  held  to  be  implied  upon  any 

(1)  I.  L.  B.,  8  Mad.,  92.      |      (2)  8  Mad.,  H.  0.  B.,  44. 
(3)  Mad.,  L.  B.,  271. 


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SEC.  7]    PART  II. — LIMITATION  O*  SUITS,  APPEALS  AND  APPLICATIONS.    41 

principle  of  equitable  construction;  nor  can  the  saving 
clauses  contained  in  the  General  Limitation  Act  XIV  of 
1859  be  imported  into  a  special  enactment.  Mahomed 
Bahadur  Khan  v.  The  Collector  of  Bareilly.<U 

(h)     In  Phoolbas  Koonwur  v.  Lalla  Jogeshur  Sahoy,W   s.  8.  n  and  u 
the  Privy  Council  observed,  that  looking  to  the  third  and  i860  held  to  ap- 
eleventh  sections  of  Act  XIV  of  1859,  there  was  no  doubt  Uian  under  s^ 
that  the  intention  of  the  legislature  was  that  the  period  of  i860. 
of  limitation  contained  in  section  246  of  Act  VIII  of  1859, 
should  in  the  case  of  a  minor  be  modified  by  section  11  and 
12  of  Act  XIV  of  1859.     From  this  case  they  distinguish- 
ed Mahomed  Bahadur  Khan  on  the  ground  that  it  was. 
decided  on  an  act  of  a  very  specical  nature. 

7.  If  a  person  entitled  to  institute  a  suit  or  Legaidiaabuity. 
make  an  application  be,  at  the  time  from  which 
the  period  of  limitation  is  to  be  reckoned,  a 
minor,  or  insane,  or  an  idiot,  he  may  institute  the 
suit  or  make  the  application  within  the  same  . 
period,  after  the  disability  has  ceased,  as  would 
otherwise  have  been  allowed  from  the  time  pre- 
scribed therefor  in  the  third  column  of  the  second 
schedule  hereto  annexed. 

When  he  is,  at  the  time  from  which  the  period  Double  and  sue- 

*  cesaive  diaabili- 

of  limitation  is  to  be  reckoned,  affected  by  two  Ue<l- 
such  disabilities,  or  when  before  his  disability 
has  ceased,  he  is  affected  by  another  disability, 
he  may  institute  the  suit  or  make  the  appli- 
cation within  the  same  period  after  both  dis- 
abilities have  ceased  as  would  otherwise  have 
been  allowed  from  the  time  so  prescribed. 

When  his  disability  continues  up  to  his  death, 
his  legal  representative  may  institute  the  suit 
or  make  the  application  within  the  same  period 


(1)  18  B.  L.  R.,  292.  |      (2)  I.  L.  R.,  1  Gale,  226. 

6 


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42     PART  H. — LIMITATION  Of  SUITS,  APPEALS  AND  APPLICATIONS.   [8EC.  7 

after  the  death  as  would  otherwise  have  been 
allowed  from  the  time  so  prescribed. 
Disability  of  w>-  When  such  representative  is  at  the  date  of 
prewntative.  ^  ^eath  affected  by  any  such  disability,  the 
rules  contained  in  the  first  two  paragraphs  of 
this  section  shall  apply. 

Nothing  in  this  section  applies  to  suits  to 
enforce  rights  of  pre-emption,  or  shall  be 
deemed  to  extend,  for  more  than  three  years 
•from  the  cessation  of  the  disability  or  the  death 
of  the  person  affected  thereby,  the  period  with- 
in which  any  suit  must  be  instituted  or  appli- 
cation made. 

Illustrations. 

(a.) — The  right  to  sue  for  the  hire  of  a  boat  accrues  to  A  during 
his  minority.  He  attains  majority  four  years  after  such  accruer. 
He  may  institute  his  suit  at  any  time  within  three  years  from  the 
date  of  his  attaining  majority. 

(b.) — A,  to  whom  a  right  to  sue  for  a  legacy  has  accrued  during 
his  minority,  attains  majority  eleven  years  after  such  accruer.  A 
has,  under  the  ordinary  law,  only  one  year  remaining  within  which 
to  sue.  But  nnder  this  section  an  extension  of  two  years  will  be 
allowed  him,  making  in  all  a  period  of  three  years  from  the  date  of 
his  attaining  majority,  within  which  he  may  bring  his  suit. 

(e.) — A  right  to  sue  accrues  to  Z  during  his  minority*  After  the 
accruer,  but  while  Z  is  still  a  minor,  he  becomes  insane.  Time  runs 
against  Z  from  the  date  when  his  insanity  and  minority  cease. 

(d.) — A  right  to  sue  accrues  to  X  during  his  minority.  X  dies 
before  attaining  majority  and  is  succeeded  by  Y,  his  minor  son. 
Time  runs  against  Y  from  the  date  of  his  attaining  majority. 

(e.) — A  right  to  sue  for  an  hereditary  office  accrues  to  A,  who  at 
the  time  is  insane.  Six  years  after  the  accruer,  A  recovers  his 
reason.  A  has  six  years,  under  the  ordinary  law,  from  the  date  when 
his  insanity  ceased  within  which  to  institute  a  suit.  No  extension 
of  time  will  be  given  him  under  this  section. 

(/•) — A  right  to  sue  as  landlord  to  recover  possession  from  a 
tenant  accrues  to  A,  who  is  an  idiot.  A  dies  three  years  after  the 
accruer,  his  idiocy  continuing  up  to  the  date  of  his  death.  A's  re- 
presentative in  interest  has,  under  the  ordinary  law,  nine  years  from 
the  date  of  A's  death  within  which  to  bring  a  suit.  This  section 
does  not  extend  that  time,  except  where  the  representative  is  him* 
self  under  disability  when  the  representation  devolves  upon  him. 


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SIC.  7]   PART  II. — LIMITATION  OP  8UITS,  APPIALfl  AND  APPLICATIONS,     43 

(a)  Inability  referred  to  in  Section  9  mnst  be  held  also  Personal  disabi- 
to  be  a  personal  inability  affecting  the  plaintiff  Bimself  tion  has  refer- 
sncb  as  the  legal  disabilities  referred  to  in  this  section,  in  section  o. 
Hanmantram  Sadhuram  Pity  v.  Arthur  Bowles.*1) 

(b)  This  section  is  in  substance  similar  to  sections  11  Benefit  of  this 

section  applies 

and  12  of  Act  XIV  of  1859,  under  which  it  was  held  that  also  to  the 

.  .  ,.  period  thatdis- 

the  benefit  of  the  above  two  sections  is  not  limited  to  the  ability  con- 
tinues. 
period  when  the  disability  of  minority  has  ceased,  but 

applies  also  to  the  period  during  which  the  disability 

continues,  and  that  a  minor,  who  through  his  guardian  a  minor  after 

^°  °  one  year  from 

preferred  a  claim  petition  under  section  246  of  Act  VIII  dismissal  of 
of  1859,  might,  after  the  expiration  of  one  year  from  the  bjr  guardian 
date  of  dismissal,  bring  a  regular  suit  by  his  guardian  guiar  suit  by 
whilst  the  disability  of  infancy  continues.     It  was  held 
that  sections  11  and  12  of  Act  XIV  of  1859  do  apply  to  the 
246th  section  of  Act  VIII  of  1859.    Phoolbas  Koonwur  v. 
Lalla  Jogeshur  Sahoy.W 

(C)     In  Khodabux  v.  Budree  Narain  Singh,**)  a  minor  Suit  by  guar- 

j.  j  ^   i_.       *  .  .    .  «  ,  .  ,     dian  being  that 

was  dispossessed  of  his  share  in  certain  property  which  of  the  minor  u 
had  been  sold  in  execution  of  a  decree.    An  application  mitation  appu- 
made  by  the  then  guardian  of  the  minor  under  section  268   (iwi). 
of  Act  VIII  of  1859  to  obtain  possession  of  the  share  in 
September,  1877,  was  rejected  in  November  1877 ;  subse- 
quently, after  one  year  from  the  date  of  the  order,  on  the 
22nd  January,  1879,  a  suit  was  brought  by  another  guardian 
of  the  infant  duly  appointed  to  obtain  possession.     It  was 
held  that  such  suit  was  not  barred  by  limitation ;  the  right 
to  sue  being  that  of  the  minor  and  that  it  might  be  exer-  As  regards  ap- 
cised  by  any  one  duly  appointed  on  his  behalf  during  his  rights  are  not 

minority,  or  by  the  infant  himself  within  the  time  limited  ©epted  as  in  the 

case  of  suits. 
by  this  section  after  attaining  majority.     The   Judges 

observe,  that  the  law  may  be  different  as  regards  appeals, 
because  a  minor's  rights  are  not  specially  excepted  in  this 
respect. 

(d)     Following  the  principles  of  the  above  decision,  the  b.  h.  held  pro- 
Bombay  High  Court  in  Jagjivan  Amirchand  v.  Hasan  section  to  appij 


decree  (1883). 


(1)  I.  L.  R.,  8  Bom.,  569.      |      (2)  I.  L.  R.,  1  Calo.,  226. 
(3)  I.  L.  R.,  7  Calc.,  138. 


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44     PART  II. — LIMITATION  OP  SUITS,  APPEALS  AND  APPLICATIONS.   [SEC.  7 

Abraham,^)  in  which  a  widow  as  guardian  and  adminis- 
tratrix of  her  minor  sons  obtained  a  money  decree  in 
August,  1874,  and  applied  for  execution  in  February,  1875, 
which  was  struck  off  in  July,  1875,  as  no  property  of  the 
debtor  was  found.  She  died  on  the  16th  June,  1881.  Fol- 
lowing Khodabux  v.  Budree  Narain  Singh'2)  it  was  held 
that  the  application  made  by  one  of  the  sons  in  October, 
1882,  soon  after  attaining  his  majority,  was  not  time-barred 
as  the  period  of  limitation  began  to  run  against  the  ap- 
plicant from  the  date  of  his  attaining  majority. 
m.  h.  also  held  (9)  In  Anantharama  Ayyan  v.  Karuppanan,*8)  a 
minor's  grand-mother,  as  guardian,  obtained  a  decree  in 
April,  1873.  In  October,  1875,  the  minor's  natural  father, 
who  was  then  his  guardian,  took  certain  steps  in  execution 
and  died.  The  minor  having  attained  his  majority  in 
1878,  applied  for  execution  on  the  29th  November.  The 
District  Judge  in  appeal  rejected  the  application  as  barred. 
It  was  held  that  the  application  was  saved  from  limitation 
by  the  provisions  of  this  section,  and  that  although  for 
a  season  the  minor  was  represented  by  a  guardian  who 
made  the  first  application  on  his  behalf,  this  circumstance 
did  not  remove  the  disability  of  the  minor, 
c.  h.  also  held  (f)  In  Mon  Mohun  Buksee  v.  Gunga  Soondery  Dabee/4* 
it  was  held  that  the  application  of  the  guardian  is  the 
application  of  the  infant.  The  minor  is  under  disability 
during  the  whole  period  of  his  minority.  His  disability 
does  not  cease,  because  he,  through  his  guardian,  makes 
two  or  more  applications  for  execution,  however  long  the 
interval  between  them,  provided  they  are  all  made  during 
his  minority. 
pUoatioiTof  (8)  In  Jugmohun  Mahto  v.  Luchmeshur  Singh, <*> 
to  Penfor<S1^-  oer*a"1  proceedings  taken  in  execution  of  a  decree  dated 
1862  whe^phe '  -^Pril>  1862»  terminated  in  September,  1866,  when  the  exe- 
^J?^'  heid  cution  case  was  struck  off  the  file.     Between  that  date  and 

not  barred  as  he 

SnWnSe"^-  ^e  25th  September,  1882,  no  further  proceedings  were 

ber,  1879. 

(1)  I.  T*.  R..  7  Bora.,  179.       I      (3)  I.  L.  R.,  4  Mad.,  119. 

(2)  1.  L.  It.,  7  Calc,  137.        |      (4)  I.  L.  R.,  9  Calc.  181. 

(5)  I.  L.  R.,  10  Calc,  748. 


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8JSC.  7]  PART  II. — LIMITATION  OP  SUITS,  APPEALS  AND  APPLICATIONS.      45 

taken.  On  the  latter  date  an  application  was  made  for 
execution.  The  decree-holder  was  a  minor  when  the  decree 
was  passed  and  did  not  attain  his  majority  till  the  25th 
September,  1879.  It  was  held,  therefore,  that  as  Act  XIV 
of  1859  was  applicable  to  the  case  previous  to  the  date  on 
which  Act  XV  of  1877  came  into  operation,  and  as  under 
section  11  the  decree- holder  was  entitled  to  have  the  time 
during  which  he  was  a  minor  deducted  from  the  period 
during  which  limitation  was  running  against  him,  his 
right  to  execution  was  not  barred  when  Act  XV  of  1877 
came  into  force,  and  that  being  so,  and  the  present  appli- 
cation being  made  within  3  years  of  the  date  on  which  he 
attained  his  majority,  execution  of  the  decree  was  not 
barred. 

(ll)     A  minor  who  was  entitled  to  certain  lands  was   Assignment  of 
dispossessed  during  his  minority.    On  attaining  his  major-   minor  on  attain- 

..  .  iiigr  age   or  as* 

ity  he  assigned  his  interest  to  the  plaintiff,  who  brought   sign  me  nt  of 

.  .  •  ,  .         -i  -      ,        minor's  interest 

a  suit  to  recover  possession  withm  three  yaars  of  the   by  court  sale 

.         »  ii  i-irt  0        *      docs  not  «ntitl* 

minor  s  coming  of  age,  but  more  than  12  years  after  the   the  assignee  to 

,  \  ,     .  the   benefit  of 

dispossession.     In  another  case,  the  minor  s  interest  was  this  section. 

sold  in  execution  of  a  money  decree  against  the  minor, 

and  the  assignee,*  during  the  minor's  minority,  sued  for 

possession  within  three  years  of  the  assignment.     In  both 

the  cases  it  was  held  that  the  assignees  cannot  claim  the 

exemptions  accorded  to  the  minor  by  this  section,  but  is 

subject  to  the  ordinary  law  of  limitation.     Garth,  G.  J., 

observes,  "  that  the  fact  of  the  minor's  representative  in 

interest  being  expressly  allowed  by  that  section  a  certain 

time  for  bringing  his  suit,  in  those  cases  where  the  minor 

dies  during  the  disability,  seems    clearly  to  indicate  the 

intention  of   the   legislature    that   in     other  cases   the 

assignee  of  a  minor  is  to  have  no  special  privilege."     It  Provisions  re- 

°  #  .  .  lieving  minors 

was  held  that  the  provisions  of  the  Act  which  relieve  «**  purely  per- 

*  sonal  and  do  not 

minors  are  purely  personal  exemptions,  and  must  be  consi-  attach  to  their 
dered  as  attaching  to  the  person  only,  and  not  to  the  pro- 
perty or  the  title  of  those  who  are  under  disability.     Budra 
Kant  Surma  Sircar  v.  Nobo  Kishore  Surma  Biswas.*1 

(1)  I.  L.  E.,  9  Calc,  668. 

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46     PART  II. — LIMITATION  OP  SUITS,  APPEALS  AND  APPLICATIONS.   [8BC.  8 


Disability    of 
one  joint  credi- 
tor. 


This  section  ap-  (i)  In  Bajaram  v.  Bansi/1)  it  has  been  observed  that 
emptor's  auit1^  the  provisions  of  section  7  of  Act  IX  of  1871  are  appli- 
emption.  cable  in  computing  the  period  of  limitation  in  suits  to 

enforce  a  right  of  pre-emption. 

8.  When  one  of  several  joint  creditors  or 
claimants  is  under  any  such  disability,  and  when 
a  discharge  can  be  given  without  the  con- 
currence of  such  person,  time  will  run  against 
them  all :  but  where  no  such  discharge  can  be 
given,  time  will  not  run  as  against  any  of  them 
until  one  of  them  becomes  capable  of  giving 
such  discharge  without  the  concurrence  of  the 
others. 

Illustrations. 

(a.) — A  incurs  a  debt  to  a  firm  of  whioh  B,  C  and  D  are  partners. 
B  is  insane  and  C  is  a  minor.  D  can  give  a  discharge  of  the  debt 
without  the  concurrence  of  B  and  C.  Time  runs  against  B,  C  and  D. 

(6.) — A  incurs  a  debt  to  a  firm  of  which  E,  F  and  G  are 
partners.  E  and  F  are  insane,  and  G  is  a  minor.  Time  will  not  run 
against  any  of  them  until  either  E  or  F  becomes  sane  or  G  attains 
majority. 

(a)  In  Surju  Prasad  Singh  v.  Khwahish  Ali,W  during 
the  plaintiff's  minority  the  manager  of  the  family  lent 
money  on  behalf  of  the  family  to  the  defendant.  The 
plaintiff  after  attaining  his  age  and  after  three  years 
from  the  date  of  the  loan,  sued  for  the  money,  relying  upon 
the  saving  provisions  of  this  section.  It  was  held  that 
during  the  period  of  three  years  from  the  date  of  the  loan, 
as  there  were  several  adult  members  of  the  family  who 
could  give  a  discharge,  the  plaintiff  was  not  entitled  to 
the  benefit  of  this  section,  and  that  the  suit  was  barred. 

(b)  In  Teknath  Ramohandra  t>.  Waman  Brah- 
madev,(3>  the  plaintiff  having  attained  majority  on  the 
11th  March,  1882,  sued  the  defendant  within  3  years  from 
that  date  upon  a  bond  obtained  in  1872  by  his  mother 


A  Hindu  suing 
for   money  ad- 
vanced during 
his  minority  by 
manager    held 
not  entitled  to 
the  benefit   of 
thifl  section,  as 
there    were 
adults   who 
cculdgive  a  dis- 
charge. 


Minor  plain- 
tiff's fbrother  is 
not  competent  to 
give  a  discharge 
when  loan  bond 
stood  in  plain- 
tiff's name. 


(1)  I.  L.  R.,  1  All.,  207.  |      2)  I.  L.  R.,  4  All.,  512. 

(8)  I.  L.  R.,  10  Bom.,  241. 


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SEC.  9]  PART  H. — LIMITATION  OP  SUITS,  APPEALS  AND  APPLICATIONS.     47 

and  guardian  in  the  plaintiff's  name  alone.  The  defen- 
dant contended  that  the  plaintiff's  brother,  who  was 
capable  of  giving  a  valid  discharge  to  his  debtors,  having 
failed  to  sue  within  proper  time,  the  suit  was  barred.  On 
reference  to  the  High  Court,  it  was  held  that  the  suit  was 
not  barred.  The  plaintiff's  brother  not  being  a  party  to 
the  bond,  this  section  would  not  apply.  The  bond  was 
passed  to  the  plaintiff  alone  and  the  right  of  action 
accrued  to  him  on  the  8th  July,  1873.  Being  then  a 
minor,  time  did  not  begin  to  run  until  he  attained  his 
majority. 

9.     When  once  time  has  begun  to  run,  no  continue™. 

running  of  time. 

subsequent  disability  or  inability  to  sue  stops 
it: 

Provided  that  where  letters  of  administration 
to  the  estate  of  a  creditor  have  been  granted  to 
his  debtor,  the  running  of  the  time  prescribed 
for  a  suit  to  recover  the  debt  shall  be  suspended 
while  the  administration  continues. 

(a)     In  Beake  v.  Davis/1*  it  was  held  that  section  18  This  section 
of  the  Limitation  Act  was  m  no  way  affected  or  qualified  or  qualify  sec- 
by  this  section,  and  that  its  scope  and  intention  was  to 
save  creditors  suing  their  debtors,  after  the  accrual  of  the 
cause  of  aqtion,  the   period  during  which  such  debtors 
have  been  absent  from  British  India.     In  following  this 
decision,  Birdwood,  J,  in  Hanmantram  Sadhuram  Pity  v. 
Arthur  Bowles/2)  observes  that  this  section  must  be  read 
with  the  immediate  context,  and  having  regard  to  the 
context,  viz.,  section  7,  referring  to  certain  legal  disabili-  inability  refer- 
ties  of  plaintiff,  the  inability  referred  to  in  this  section  section  mu*t  be 
must  be  held  also  to  be  a  personal  inability  affecting  the  sonai  inabfiity 
plaintiff  himself  and  not   to  the  circumstances  of  the  tiffnimseif. 
person   against  whom  he  is  entitled  to  institute  a  suit. 
This  decision  overruled  the  decision  in  Narronji  Bhimji  v. 
Mngnirum  ChandajiW  on  the  original  side  of  the  High 


(1)  I.  L.  B.,  4  All.,  580.  |      (2)  I.  L.  E.,  8  Bom.,  669. 

(3)  I.  L.  B.,  6  Bom.,  103. 


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48     PART  II  — LIMITATION  OP  SUITS,  APPEALS  AND  APPLICATIONS.  [SEC.    9 

Court,  in  which  it  had  been  held  that  the  absence  of  the 
defendant  after  the  accrual  of  the  cause  of  action  could 
not  avail  the  plaintiff. 
Minor  suing  on       (b)    In  Mohabat  Ali  t\  Ali  Mahomed, (l>  it  was  held  that 
tion  accrued  to   under  section  11,  Act  XI V  of  1859,  the  subsequent  dis- 
claim no  deduc-   ability  of  an  heir  will  not  save  a  suit  instituted  after  a 
lapse  of  twelve  years  from  the  date  of  cause  of  action,  when 
such  cause  of  action  arose  during  the  life-time  of  the  an- 
cestor.   In  Virapillay  v.  Muruga,W  plaintiff  sued  in  1864, 
six  months  after  he  attained  his  majority,  on  a  loan  bond 
held  by  his  father,  who  died  in  July,  1882.     The  loan  was 
re-payable  in  February,  1860.     It  was  held  that   under 
Act  XIV  of  1859,  section  11,  the  period  of  the  plaintiff's 
legal  disability  by  reason  of  minority  cannot  be  deducted. 
Courts  being  (c)     "  When  the  time  has  once  begun  to  run  it  will 

closed  owing  to 

rebellion  does      continue  to  do  so,  even  should  subsequent  events  occur 
tion.  which  render  it  an  impossibility  that  an  action  should  be 

(English  esse). 

brought.     This  rule  holds  good  alike  of  all  the  statutes 

of  limitation.     So  inviolable  is  this  principle  that  it  was 

decided  in  Prideaux  t\  Webber,  (1  Lev.,  31)  that  a  plaintiff 

was  barred  by  time,  although  during  the  latter  part  of 

the  six  years  the   courts  were  closed  in  consequence  of 

the  rebellion."     (Darby  and  Bosanquet,  p.  17.) 

Presenting        (d)     In  Nandvallabh  v.  Allibhai  Isyagani/8)  a  plaint 

kun  in  charge  was  presented  to  a  karkun  left  in  charge  of  a  court  during 

vacation  will      vacation,  and  the  cause  of  action  on  which  the  suit  was 

statute.  brought  became  barred  before  the  vacation  ended.     It  was 

held,  that  as  the  judge  was  the  proper  person  to  receive 

plaints,  the  presentation  to  the  karkun  was  invalid,  and 

did  not  prevent  the  period  of  limitation  from  running. 

Presenting  (o)     In  Jai  Kuar  v.  Heera  Lal,<4>  it  was  held  that  the 

plaint  to  Mun-  ,     . .  „  ,..,,,  .       , 

sifl  in  his  pri-     presentation  of  a  plaint  at  the  private  residence  of  the 

▼ate  residence       ■»«••  —  ,  «.    .       .     . 

held  insufficient  Munsiii  was  not  a  sumcient  institution  of  the  suit,  and 
1874).        '        that  it  must  be  held  as  instituted    on  the  opening   of 
the  Court  on  the  following  day  when  the  Munsiff  passed 
an  order  directing  the  plaint  to  be  registered. 

(1)  3  B.  L.  R.,  App.,  80.      I      (3)  6  Bom.,  H.  C.  A.  0.,  254. 

(2)  2  Mad.,  H.  C,  340.        |      (4)  7  N.-W.  P.  H.  C,  5. 


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OTC.  10]  PABT  II. — LIMITATION  OP  SUITS,  APPBALS  AND  APPLICATIONS.   49 

(f)     In  the  Petition  of  Ganesh  Sadaehiv/1)  plaintiff  PjJJ^fts- 
presented  a  plaint  to  the  District  Court,  the  Munsiffs  JJ^^J^J^ 
Court  in  which  he  ought  to  have  presented  it  being  then  8^uw?be6a 
temporarily  closed.     It  was  held  that  the  date  on  which  the  closed  held  suf- 


plaint  was  presented  to  the  District  Judge  should  be 
considered  as  the  date  of  presentation  to  the  proper  court. 

(g)     The  proviso  to  this  section  refers  to  the  case  of  a  The  proviso 

*°'  *  does  not  extend 

debtor  obtaining  letters  of  administration  to  his  creditor's  *?**•  «we  of  * 

°  debtor  becom- 

estate  either  before  or  after  limitation  has  commenced  to  in«  Ms  crea- 
tor's executor 

run  and  makes  no  mention  of  cases  of  a  debtor  becoming  and  creator  be- 

©    QQjujng  debtor*! 

the  executor  of  his  creditor  and  a  creditor  becoming  the  «*ecut<*. 
executor  of  his  debtor's  estate. 

The  grant  of  letters  of  administration,  not  being  an 
act  of  the  parties,  operates  as  a  suspension  of  the  remedy. 
But  where  a  creditor  appoints  his  debtor  an  executor,  and 
the  latter  accepts  the  executorship,  this  being  an  act  of 
the  parties,  the  debt  is  extinguished  on  the  supposition  of 
its  being  paid  by  the  executor  to  himself,  and  thus  becom- 
ing assets  in  his  hands  for  which  he  is  accountable.  Sec- 
tion 87  of  the  Indian  Trusts  Act  II  of  1882,  which  does 
not  extend  to  Bengal  and  Bombay,  enacts  "where  a 
debtor  becomes  the  executor  or  other  legal  representative 
of  his  creditor,  he  must  hold  the  debt  for  the  benefit  of 
the  persons  interested  therein."  This  is  probably  the 
reason  why  the  proviso  does  not  extend  to  the  case  of  the 
debtor  becoming  executor  to  his  creditor.  In  the  case  of  a  Executor's  right 
creditor  becoming  the  executor  of  his  debtor  the  creditor  tends  to  debts 
may  pay  himself  out  of  the  assets  which  he  has  to  ad-  statute, 
minister  though  the  debt  is  barred.  W  He  cannot  bring 
a  suit  for  the  purpose  of  making  himself  pay  the  debt. 

10.    Notwithstanding  anything  hereinbefore  suits  against 

.         "  .  ,  express  trustees 

contained,  no  suit  against  a  person  in  whom  ^t2fv1J^epre" 
property  has  become  vested  in  trust*  for  any 

(1)  5  Bom.,  H.  G.  A.  C,  117.   |  (2)  Darby  and  Bosanquet,  p  16. 

*  Definition  of  trust  in  Aot  II  of  1882,  section  3.    "  A  trust"  is  an 

obligation  annexed  to  the  ownership  of  property,  and  arising  ont  of  a 

confidence  reposed  in  and  accepted  by  the  owner,  or  declared  and 

acoepted  by  him,  for  the  benefit  of  another,  or  of  another  and  the 

7 


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50  PAST  II.— LIMITATION  OF  SUITS,  APPEALS  AND  APPLICATIONS.  [SEC.  10 

specific  purpose,  or  against  his  legal  represen- 
tatives or  assigns  (not  being  assigns  for  valu- 
able consideration)  for  the  purpose  of  following 
in  his  or  their  hands  such  property,  shall  be 
barred  by  any  length  of  time. 

The  word  "  ex-       (a)     The  word  "express"  occurring  in  the  marginal  note 
used  in  the  Act  of  this    section  and  also  in  the  corcesponding  section 

Of  I860. 

of  Act  IX  of  1871,  was  not  to  be  found  in  section  2  of 

Act  XIV  of  1859.     In  Lallubhai  t>.  Manknvarbai/1)  the 

question  was  whether  resulting  trust  was  such  a  trust  as 

was  contemplated  by  section  2  of  Act  XIV  of  1859.     The 

word  "  express"  occurring  in  the  English  statute  3  and  4, 

Wm  :  IV  o.  27,  section  25  not  being  found  in  the  above 

Under  Act  xiv  Indian  Enactment,  it  was  held  that  an  executor,  who  by 

trustee*  by  will  the  will  is  made  an  express  trustee  for  certain  purposes 

was  held  trustee  is,  as  to  the  undisposed  of  residue,  a  trustee  within  the 

ed  of  residue.08"  scope  of  section  2  of  Act  XIV  of  1859,  for  the  heir  or 

heirs  of  the  testator. 
Bittiestone,  J.,       (V%    In  H.  H.  Azim-u-nissa  Begum  v.  Clement  DaleW 

on  the  word  "re- 

gresentativeM      Bittiestone,  J.,  observes,  "  in  my  opinion  the  word  "  re- 
i  section   2of  .'  ,  ,,. 

Act  xrv  of  1869.  presentative"  means,  the  person  who,  as  heir  or  executor, 
(1)  I.  L.  R.,  2  Bom.,  388.      |  (2)  6  Mad.,  H.  C.  R. 

owner :  the  person  who  reposes  or  declares  the  confidence  ia  called 
the  "  author  of  the  trust" :  the  person  who  accepts  the  confidence  is 
called  the  "  trustee ;"  the  person  for  whose  benefit  the  confidence  ia 
accepted  is  called  the  beneficiary. 

"  Following  trust  property."  Section  68  provides  for  the  recovery 
of  property  originally  intrusted  to  the  trustee  being  found  in  the 
hands  of  a  third  person  inconsistently  with  the  trust  or  for  the  re- 
covery of  property  or  money  which  the  trustee  may  have  re- 
ceived for  the  trust  property  he  has  disposed  of,  provided  it  is 
capable  of  being  traced  in  the  hands  of  the  trustee  or  his  legal  re- 
presentative. 

The  words  "  good  faith"  occur  in  section  96.  Section  96  of  the 
Indian  Trusts  Act  saves  the  rights  of  bond  fide  purchasers  by  pro- 
viding that  the  rights  of  transferees  in  good  faith  for  consideration 
shall  not  be  affected  or  impaired.  But  the  Act  does  not  affect  the 
rules  of  Mahomedan  law  as  to  Waqf,  or  the  mutual  relations  of  the 
members  of  an  undivided  family  as  determined  by  any  customary  or 
personal  law,  or  applies  to  public  or  private,  religious  or  charitable 
endowments. 


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8EC.  10]  PAST  U. — LIMITATION  OF  8UITS,  APPEALS  AND  APPLICATIONS.   51 

or  administrator,  represents  the  estate  of  a  deceased 
trustee ;  and  who  has  received,  as  such  representative,  the 
specific  property  which  is  the  subject  of  the  trust." 

(o)     The  Privy  Council  in  Balwant  Rao  Bishwant  p.  c.  on  the  ex- 
Chandra  Chor,  v.  Pnrun  Mai  Chanbi/1)  has  interpreted  the  the  purpose  of 
expression "  for  the  purpose  of  following  in  his  or  their  or  theirhand* 

,        ,  .  ,     ,,     JL     .    _       ,  ,  .  ......  each  property." 

hands  such  property.  Their  Lordships  say  that  it  means 
"  for  the  purpose  of  recovering  the  property  for  the  trusts 
in  question  :  that  when  property  is  used  for  some  purpose 
other  than  the  proper  purpose  of  the  trusts  in  question,  it 
may  be  recovered  without  any  bar  of  time  from  the 
hands  of  the  persons  indicated  in  the  section." 

(d)     The  words  "  good  faith"  used  in  the  explanation   The  words 
to  section  10  of  Act  IX  of  1871,  and  in  Articles  133  and   used  in  Act  ix 
134  of  the  second  schedule  of  that  Act  have  been  omit-  been  omitted  in 
ted  in  the  Act  of  1877.     This  appears  to  have  been  made 
probably  with  reference  to  the  observations  of  Green,  J., 
in  Manik  Lai  Atmaram  v.  Manchershi/2)  in  which  he  has 
compared  the  "Indian  Limitation"  Act  with  statute  III 
and  IV,  Wm.  IV,  c.  27,  and  remarked  that  the  former,  viz.. 
Act  IX  of  1871  was  less  liberal  in  the  protection  of  a  pur- 
chaser for  value  than  the  latter.     For,  under  Act  IX  of  Act  tk  of.ien 
1871,  a  purchaser  from  a  trustee  or  mortgagee  claiming  chaser  from 
protection  of  the  Limitation  Act  was  required  to  show  not  that  purchase 

•  was  6o»<f  jW#. 

only  that  he  gave  value,  but  that  the  purchase  was  bond 

fide,  while  under  the  English  Limitation  Act  such  pur-  Lapse  of  time 

chaser  was  protected  by  the  lapse  of  the  statutory  period  Ssh  Act  protect 

of  limitation,  whether  there  was  bond  fide  or  not  on  the  purchase 


pure 

part  of  the  purchaser.  The  Judge  referring  to  Peter  v.  jw«or.n 
Peter  (1.  Drew,  371)  observed,  "  I  may  add  that,  in  my 
opinion,  there  is  nothing  in  the  Indian  Limitation  Act 
excluding  from  its  benefit  those  asserting  their  right  to 
claim  under  a  bond  fide  purchase  for  value,  by  reason  that 
those  claiming  against  them  are  the  objects  of  a  chari- 
table trust  imposed  on  such  property." 

(e)     "  Every  trustee  must  be  a  trustee  for  a  specific  pur-  Obserrations  of 
pose  in  the  sense  that  a  purpose  can  be  indicated  to  which   "  specific  pur. 

r  r      r  pose"  in  Act  IX 

of  1871. 
(1)  L.  R^  10  Ind.  Ap.,  96.      |      (2)  I.  L.  B.,  Bom.,  Vol.  1,  281. 


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52  PART  H. — LIMITATION  O?  SUITS,  APPEALS  AND  APPLICATIONS.  [SEC.  10 

the  property  held  by  the  trustee  must  be  applied  by  him. 

But  I  think  the  words  u  specific  purpose"  were  intended  as 

Means  purpose  words  of  restriction,  and  the  conclusion  I  have  come  to  is, 

specified  by  the 

creator  of  the  that  by  "  specific  purpose"  must  be  meant  as  a  purpose 
which  has  been  specified  by  the  person  who  created  the 
trust.  I  am  not  prepared  to  say  that  the  word  "  specific" 
in  the  Indian  Act  of  Limitations  corresponds  exactly  to 

"Express"         the  word  "  express"  in  the  English  Act.     Express  trusts 

trust  in  the  r  ° 

English  Act  in-  include,  besides  direct  trusts,  implied  trusts  and  resulting 

dudes  implied  '  .  , 

and  resulting     trusts,  but  not  constructive  trusts,  using  those  words  as 

trust  but  not  ... 

constructive       defined  by  Mr.  Lewin  at  p.  86  of  the  fifth  edition  in  the 

trust.  *  * 

notes.     That  language,  and  that  classification  of  trusts, 

however,  are  scarcely  applicable  in  a  country  where,  by 

the  word  "trusts,"   we  indicate  relationships  differing 

from  that  of  trustee  and  cestui  que  trust  under  the  English 

law,  and  where  such  relationships  may  be  created  by  parol. 

It  may,  I  think,  well  be,  that  the  Indian  legislature  did 

not  think  it  desirable,  after  a  certain  lapse  of  time,  to 

enforce  trusts  which  had  to  be  gathered  from  the  tenor  of 

a  conversation  and  had  not  been  declared  by  any  specific 

Section  10  of       words.     The  trust  which  it  is  now  sought  to  enforce  had 

was  held  not  to  not  been  specified  by  the  testator,  and  I  therefore  think 

not  specified  by  that  section  10  does  not  apply  to  this  case,  and  that  the 
testator.  . 

ordinary  rules  of  limitation  must  apply.     Kherodemoney 

Dossee  v.  Doorgamoney  Dossee."^) 

whether  a  suit        (f)     Maniklal  Atmaram  v.  Manchershi  Dinsha  Coach- 

diafflrn^the       man/2)  was  a  suit  brought  by  a  trustee  to  annul  -the  act 

of™predeoes8or  of  a  former  trustee,  under  which  the  defendant  claimed 

son  claiming  by  to  hold  certain  property  as  vendee.    In  this  case,  a  Hindu, 

Act  would  lie.     by  a  will,  dated  1802,  bequeathed  a  house  to  his  wife  for 

her  life  in  trust,  to  allow  the  impersonations  of  valabh  to 

reside  in  it,  and  appointed  four  executors,  but  made  no  gift 

over  of  the  house  to  those  executors  or  any  one  else.     In 

June,  1820,  the  widow  claiming  as  executrix  obtained  an 

Widow  as  exe-     order  for  probate  to  her  as  well  as  to  the  executors  who 

cutrix  of  the  .,,,.,  ,  .,  .       - 

testator  sold  in  retired,  and  the  widow  who  was  in  sole  management  of 

1862  property 

to  defendant       the  testator's  estate  sold  the  house  in  1862  for  its  full 

who  knew  of  the 

trUBt'  (1)  I.  L.  E.,  4  C*lc.,  4/71.     |      (2)  I.  L.  B.,  1  Bom.,  *6fc   * 

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SIC-  10]  PAET  II. — LIMITATION  0?  SUITS,  APPEALS  AND  APPLICATIONS.  53 

value  to  the  defendant,  who  had  notice  of  the  trust.     The 

widow  died  in  1870,   and  in  1871  the  High  Court,   on 

the  application   of  the   plaintiff's   father,  granted    him 

letters  of   administration  revoking  the   probate  to  the 

widow,  but  without  prejudice  to  any  act  done  by  her  in 

the  course  of  administration.     The  plaintiff's  father  died   Plaintiff  who 
•     irk***       t     ^r         .nN„    .,        -i    .    ,-—  ,t  t  i    had  also  become 

in  1873.     In  May,  1875,  the  plaintiff,  as  the  only  son  and  sole  heir  of  tes- 

i     •       *  -i  •      #   ,  i  ii  *   ,  i  totor  °y  release 

heir  of  his  father,  sued  to  recover  possession  of  the  pro-  riven  him  by 

perty  from  the  defendant.     The  plaintiff  was  also  one  of  suedasadminis- 

the  surviving  heirs  of  the  testator,  and  became  the  sole  deceased 

surviving  heir  by  virtue  of  a  release  given  him  by  the  perty  inwS'to 

other  heirs.     The  plaintiff  claimed  the  house  to  hold  it  trust.6  ** 

for  the  purpose  of  giving  effect  to  the  trust  created  by  the 

will.     He  obtained  letters  of  administration  in  1876,  and 

based  his  claim  thereon.     It  was  held  that  the  plaintiff  it  was  held  that 

had  no  ground  of  action  as  administrator  of  the  testator  ;  adnSSStraton* 

that  as  the  trusteeship  vested  in  all  the  surviving  heirs, 

the  release,  though   it  would  vest   the  legal  estate  in 

the  plaintiff  alone,  could  not  vest  the  trusteeship  in  him 

exclusively  ;  and  that  even  if  the  other  heirs  had  joined 

as  plaintiffs,  still  the  suit  would  not  lie,  as  it  is  one  by 

trustees  to  disaffirm  the  completed  act  of  a  predecessor 

against  the  person  claiming  by  virtue  of  such  act.     Green.    Green  J.,  ob- 

.  ii.      •  «.»  .   .        •      serves,- such  snit 

J.,  observes,  "  in  whatever  way  the  plaintiff  s  position  is   is  not  maintain- 

'  .        -  ,  \  .    .      .  ableintheform 

looked  at,  it  comes  to  that  of   one,  claiming  to  act  as   in  which  it  has 

trustee  under  a  will,  seeking  to  undo   an  act  of  one  who 

was  also  trustee  under  the  same  instrument.    If  Rajkuver 

had,  in  her   life- time,   filed  a  suit  against  the  present 

defendant,   saying,  "true,     I  have  conveyed  this  house 

to  you  (the  defendant),  and  you  have  paid  to  me  Us.  13,000 

as  purchase  money,  and  have  since  laid  out  as  much 

again  upon  it ;  but  the  conveyance  by  me  was  a  breach  of 

trust,  and  you  had  the  means  of  knowing  that  it  was  so, 

and  you   must,  therefore,  restore  me  the  property  and 

resign  yourself  to  the  loss  of  the  purchase  money  and 

expenditure/'   I  apprehend    such  a  suit  would   not  be 

listened  to.     A  trustee,  as  between  himself  and  one   to 

whom  he  has  conveyed  trust-property,  is,  I  apprehend, 

as  much   concluded  by  his  own  completed  act  as  any 


been  laid. 


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54  PAET  II. — LIMITATION  OF  SUITS,  APPEALS  AND  APPLICATIONS.  [SEC.  10 

Completed  act  other  vendor.  So,  again,  I  apprehend,  the  completed  act 
trustee*™  econ-  of  a  former  trustee,  though  in  itself  a  breach  of  trust,  is 
su^^r^seek-  as  conclusive  against  a  successor  in  the  trusteeship, 
wiSter-  where  it  is  the  successor  who,  in  a  suit  against  one 
Sidersnch'act.  claiming  under  and  by  virtue  of  such  act,  is  seeking  to 
There  are  cases  disaffirm  and  annul   it.     We  find,   no  doubt,   cases  of 

of  one  trustee 

suing  oo-tmstee  one  trustee  who  has  been  innocent  of  any  breach  of  trust 
its  value,  suing  a  co-trustee,  or  the  representatives  of  a  deceased 

of  etttui  qu$      trustee,  to  restore  property  disposed  of  by  breach  of  trust, 

trust  suing 

trustee  and  his   or  its  value.     There  are  also  many  cases  to  be  found  of 

perty.  cestui  que  trust  suing  a  trustee  who  has,  in  breach  of 

his  trust,  disposed  of  property,  and  joining  as  defendant 

in  such  suit  the  party  who  has  purchased  the  property 

with  notice  of  the  breach  of  trust.    But  in  these  cases  the 

act  sought  to  be  annulled  is  not  the  act  of  the  plaintiff  or 

his  predecessor  in  estate,   and  has  no  similarity  to  the 

case  of  a  trustee  seeking  to  disaffirm  his  own  act,  or  that 

of  a  predecessor,  %a  against  the  person  claiming  by  virtue 

But  no  prece-     of  such  act.    This  difficulty  in  the  plaintiff's  way  occurred 

a  trustee  sees:-  to  me  early  in  the  course  of  the  hearing  of  the  present 

his  predeces-      case.     The  defendant's  counsel,  in  stating  the  case  of  the 

person    defendant,  maintained  that  no  precedent  could  be  found 


•uchAcl  y  of  a  suit  of  the  nature  of  the  present  one,  and  the  plain- 
tiff's counsel  did  not  profess  to  have  found  any,  though 
such  precedent  was  called  for  early  in  the  course  of 
a  hearing  which  lasted  several  days.  Without  saying 
anything  as  to  the  probable  fate  of  this  suit,  had  it  been 
instituted  by  the  Advocate- General  on  behalf  of  imper- 
sonations of  valabh  visiting,  or  who  might  visit  Bombay, 
it  cannot,  in  my  opinion,  be  maintained  in  its  present 
form." 
Alienation  of  (g)     Green,  J.,  observes,  "  there  is  no  such  principle  of 

per^by^rustee.  law  that  the  alienation  of  charity  property  by  the  trustees 
SseifTl*  not  a  is,  standing  by  itself,  a  breach  of  trust.  The  Court  of 
'  Chancery  in  many  cases  authorizes  such  alienations,  and 
according  to  Lord  Langdale's  judgment,  in  Attorney 
General  v.  South  Sea  Company  (4  Beav.  453,  see  p.  458), 
"  that  which  the  Court  might  have  done  upon  its  own 
consideration  of  what  would  have  been  beneficial  to  the 


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SIC.  10]  PABT  D.— LIMITATION  OF  SUITS,  APPEALS  AND  APPLICATIONS.   55 
charity,  might  have  been  done  by  the  trustees  upon  their  On  considers 

Vr^.,        .       Al_  •  *    xi_    •      i         i  »    tion  of  benefit 

own  authority  in  the  exercise  of  their  legal  powers,     to  charity. 
Looking  at  the  circumstances  of  the  present  case,  and  sell  trust  pro- 
having  regard  to  the  principles  to  be  found  in  a  number  perty* 
of  decisions  of  English  Courts  of  Equity,  (of  which  I  may 
mention,  Attorney-General  v.  Warner,   (2,  Swanst,  291), 
Attorney-General  v.  Pembroke  Hall,  (2  Sim.  and  St.  441, 
S.  C.  I.  R.  &  M.  751),  Attorney-General  v.   Hungerford, 
(2  CI.  and  Fim.  357)  and  Attorney- General  v.  The  South 
Sea  Company,  (4  Beav.,  453),  I  should  have  been  inclined,  u  neoeasarythe 
had  it  been  necessary  in  the  present  case  distinctly  to  case  would  hold 
decide  the  question  to  uphold  the  sale  by  Rajkuver  as  as  executrix 
being  a  proper  and  reasonable  exercise  of  her  office  as  of  trust, 
trustee,  and  to  have  held  it  not  to  have  been  a  breach  of 
trust  at  all.     But  I  say  nothing  as  to  the  question  whether 
her  application  of  the  proceeds  to  building  or  completing 
a  temple  and  dharmsala  at  Gogo  can  be  sustained.     But, 
in  my  opinion,  the  proper  person  to  institute  any  suit  Proper  person 
against  the   estate  of  Bajkuver,  if  any  suit  at  all  be  of  the  widow  in 
maintainable,  in  respect  of  her  application  of  the  purchase  plication  of 
money  received  from  the  defendant,  would  be  the  Advo-  oeeds feAdvch 
cate-General  on  behalf  of  the  Maharajas,  and  not  the  cate* 
present  plaintiff."     "  It  has  been  decided  by  the  highest  Vendee  with 
tribunal  in  England,  in  the  case  of  the  President  and  might  rely  upon 
Scholars  of  the  College  of  St.  Mary  Magadalen,  Oxford  v. 
The  Attorney-General,  (6  H.  L.,  Ca.  189),  that  the  pur- 
chasers for  value  of  lands  devoted  to  charity,  namely,  the 
poor  of  certain  parishes,  were  entitled  to  rely  on   the 
English  Statute  of  Limitations  as  a  defence,  though  they 
purchased  with  notice  of  the  charity," 

(ll)     A,  by  his  last  will  and  testament,  gave  his  pro-  o.  h. 

perty  to  trustees,  partly  in  trust  for  religious  and  other  might  compel 
purposes,  and  partly  to  pay  thereout  to  certain  persons  nSSeter  trust*" 
and  their  heirs  for -ever  certain  annuities,  being  fixed  por-  [tough  their 
tions  of  the  net  profits  of  a  certain  estate  called  the  Hurro  p^/undfcl 
Estate.    A  died  in  November,  1863.   On  the  11th  of  August,  $£££** 
1879,  the  heir  of  one  of  the  annuitants  instituted  a  suit 
claiming  a  share  under  the  will,  and  asking  for  a  partition 
of  that  share.     The  plaintiff  alleged  besides,  that  certain 


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56   PART  II. — LIMITATION  OF  SUITS,  APPEALS  AND  APPLICATIONS.   [SBC.  10 

of  the  trusts  and  provisions  in  the  will  were  invalid  in 
law  ;  that,  consequently,  a  large  portion  of  the  testator's 
property  remained  undisposed  of  at  his  death,  and  she 
claimed  a  share  of  this  residue  as  one  of  the  heirs  of  the 
testator.  It  was  held  that,  under  the  circumstances,  the 
gift  of  the  share  of  the  rents  and  profits  amounted  to  a 
gift  of  a  share  in  the  corpus  of  the  estate ;  and  that,  in- 
respect  of  that  portion  of  the  plaintiff's  claim,  the  suit 
was  not  barred  by  limitation.  It  was  further  held  that 
where  an  estate  is  given  by  will  to  trustees  for  religious 
and  other  purposes,  some  of  which  are  invalid  or  fail,  the 
heirs  of  the  testator  may  be  barred  by  limitation  from  re- 
covering the  portion  undisposed  of,  though  they  might 
still  bring  a  suit  against  the  trustees  to  compel  them  to 
properly  administer  the  trusts  which  had  not  failed. 
Hemangini  Dasi  v.  Nobin  Chand  Ghose.W 
A.  H.  (i)     In  Barkat  v.  Daulat/2)  plaintiffs,  as  heirs  of  certain 

trustee,  it  must  co-sharers  of  a  village  who  had  abandoned  their  share  for 
press" words  *"  60  years,  sued  the  defendants  for  surrender  of  the  shares 
owner  entrust-  on  receipt  of  the  Revenue  paid  by  them.  The  defendant, 
discharge  a  par-  when  obtaining  possession  in  1838,  on  payment  of  Revenue 
tion.  due  by  plaintiffs'  father,  had  attested   a  village  paper 

agreeing  to  restore  the  land  if  the  latter  returned  and  paid 
him  the  Revenue.  The  village  Administration  Report 
of  1862  also  stated  that  co-sharers  might  recover  their 
shares  on  payment  of  arrears  of  Revenue.  It  was  held 
that  such  documents  did  not  prove  any  express  trust,  and 
that  in  order  to  make  a  person  an  express  trustee  within 
the  meaning  of  this  section,  it  must  appear  either  from 
express  words,  or  clearly  from  the  facts  that  the  rightful 
owner  has  entrusted  the  property  to  the  person  alleged  to 
be  a  trustee  for  the  discharge  of  a  particular  obligation. 
a.  h.  (j)     In  Durga  Prasad  t?.  Asa  Ram,<8)  the  defendant  and 

strwstive^trust"  bis  father  were  jointly  entitled  to  a  moiety  of  certain  pro- 
band iimit£  Per*7»  while  his  uncle  and  uncle's  son  were  entitled  to  the 
apply.6    not  to  other  moiety.     In  1840,  the  defendant  and  his  father  were 

(1)  I.  L.  R.,  8  Calc,  788.      |      (2)  I.  L.  R.,  4  All.,  187. 
(3)  I.  L.  R.,  2  All.,  362. 


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SIC.  10]  PAST  II. — LIMITATION  OF  SUITS,  APPEALS  AND  APPLICATIONS.   57 

transported  for  life,  and  their  wives  who  were  alive  The  owe  was 
at  the  time  since  died.  The  defendant's  uncle's  son  red  the  courts " 
mortgaged  the  entire  shop  on  the  30th  May,  1873,  to  the  Sfrenoe  tc/the*" 
plaintiff,  who,  obtaining  a  decree  for  sale  in  November,  ** 
1876,  purchased  it  in  auction  in  April,  1879.  The  defen- 
dant, who  had  in  the  end  of  1877  returned  from  trans- 
portation under  a  free  pardon,  having  disputed  the  plain- 
tiffs right,  the  plaintiff  brought  a  suit  in  1878  to  recover 
possession ;  it  was  alleged  by  the  defendant  that  he  had 
transferred  his  moiety  of  the  shop  to  his  uncle  in  trust 
and  that  he  continued  payment  of  the  income  to  his  wife 
till  her  death,  which  occurred  9  or  10  years  before  the 
suit.  The  Lower  Appellate  Court  rejected  the  suit  on  the 
ground  that  the  defendant's  right  was  extinguished. 
From  the  proceedings  taken  in  1867,  the  defendant's 
uncle  appeared  to  have  claimed  the  property,  claiming  to 
succeed  the  defendant's  wife  at  her  death,  and  the  judg- 
ment in  that  case  showed  that  the  claim  proceeded  on  the 
assumption  that  the  defendant  was  dead.  Straight,  J., 
being  of  opinion  that  the  case  was  such  that  required  the 
court  to  exercise  its  powers  of  equitable  interference  to 
the  fullest  extent,  held,  that  the  court  was  justified  in  Held  court  wm 

justified  in  hold- 

holding  that  a  constructive  trust  existed  in  the  defen-  ing  that  a  con- 

°  #  structive  trust 

dant's  uncle  and  his  son,  from  the  day  the  imprisonment  existed  in  this 
of  the  defendant  and  his  father  commenced,  and  that  no 
limitation  could  affect  the  rights  of  the  defendant,  and  he 
was  entirely  justified  in  setting  them  up  against  the  plain- 
tiff's claim  to  the  extent  of  his  own  interest.     "  A  person  a  pcrson'may 

declare  trust 

may  declare  a  trust  either  directly  or  indirectly :  indirect-   either  directly 

or  indirectly. 

ly  by  evincing  an  intention  which  the  court  will  effec- 
tuate through  the  medium  of  an  implied  trust."     Lewin, 
6th  edition,  p.  95.     Again  "  constructive  trusts  are  those  Constructive 
which  the  court  elicits  by  a  construction  put  on  certain  which  court  en- 
acts of  parties."     "  No  time  will  cover  fraud  so  long  as  it  parties. 
remains  concealed ;  for  until  discovery,  or  at  all  events 
until  the  fraud  might  with  reasonable  diligence  have  been 
discovered,  the  title  to  avoid  the  transaction  does  not  pro- 
perly arise."     Lewin,  6th  edition,  p.  710. 
8 

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58    PART  II. — LIMITATION  OP  SUITS,  APPEALS  AND  APPLICATIONS.   [SEC.  10 


M.  H. 

Claim  to  vindi- 
cate one's   per- 
sonal rights  of  a 
trustee  to  pos- 
session against 
anotVr  claim- 
ing1 right  as  such 
does  not  fall  un- 
der this  section. 


No  length  of 
time  bars  suit 
for  property 
against  dismis- 
sed trustee. 


P.O. 

Suit  to  fall 
within  this  sec- 
tion must  be 
brought   to   re- 
cover trust  pro- 
perty for  the 
benefit  of  the 
trust. 
(1883.) 


(k)  In  Karimshah  v.  Nat  tan/1)  plaintiff,  who  was 
brother  of  the  1st  defendant's  deceased  husband,  sought  to 
recover  certain  property  granted  for  a  charitable  and  re- 
ligions institution,  alleging  that  the  1st  defendant  had 
been  in  wrongful  possession  and  that  the  other  defendants 
held  under  her.  The  2nd  defendant  claimed  to  be  in 
possession  as  trustee  under  a  will  of  the  1st  defendant's 
husband  for  upwards  of  twelve  years.  The  Lower  Appel- 
late Court  rejected  the  suit  as  barred.  A  Division  Bench, 
(Turner,  C.  J.,  and  Muthusawmy,  Aiyar  J.,)  held  that  the 
case  was  governed  by  the  decision  of  the  Judicial  Com- 
mittee in  Balwant  Rao  Bishwant  Chandra  Chor  v.  Purun 
Mai  Chaube,(*)  in  which  it  was  held  that  a  claim  to  vindi- 
cate the  personal  right  of  a  trustee  to  the  possession  of 
immoveable  property  against  another  person  claiming 
that  right  in  the  same  character  was  not  governed  by  sec- 
tion 10  of  the  Limitation  Act. 

(!)  Virasami  v.  Lubba^  was  a  suit  by  the  trustees 
of  a  temple  to  recover  the  property  appertaining  to  it 
from  an  ex-trustee  dismissed  from  the  office  by  the  temple 
committee.  It  was  held  under  this  section  that  no  length 
of  time  would  bar  a  suit  and  that  this  case  was  distin- 
guishable from  Param  Singh  v.  Lalji  Mai/4)  in  which  the 
appellant  was  not  a  trustee  in  the  sense  of  the  Limitation 
Act,  for,  "  trustee"  by  section  3  of  that  Act  does  not  in- 
clude a  benamidar. 

(m)  In  Balwant  Rao  v.  Puran  Mal,(5>  plaintiff  sued  to 
be  recognized  as  chief  manager  with  power  to  dismiss 
and  appoint  a  sub-manager  and  to  obtain  possession 
of  the  temple  property  by  ejectment  of  the  defendant, 
alleging  that  his  ancestor  founded  the  temple,  and,  dedi- 
cating the  plaint  property  to  it,  entrusted  the  management 
of  the  service  and  worship  to  the  defendant's  grandfather, 
and  that  the  mother  of  the  defendant,  who  was  a  minor, 
refused  to  render  an  account  of  the  income  when  de- 


(1)  I.  L.  R.,  7  Mad.,  417.  I      (3)  I.  L.  E.,  6  Mad.,  54. 

(2)  I.  L.  R.,  10  Ind.  Ap.,  90.      |      (4)  I.  L.  R.,  1  All.,  403. 

(5)  I.  L.  R.,  6  All.,  1. 


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SIC.  JO]  PAKT  II. — UMITATION  OF  8UITS,  APPEAL*  AND  APPLICATIONS.    59 

mended  in  1865.     Their  Lordships  of  the  Privy  Council 

held  that  the  plaintiff  sued  to  enforce  his  own  personal 

right   to   manage  the  endowment,   that  there  being  no 

question  whether  or  not  the  property  was  being  applied 

to  the  purposes  of  the  endowment,  section  10  of  Act  IX 

of  1871  was  not  applicable  to  the  suit,  that  a  suit,  in 

order  to  fall  within  that  section,  must  be  brought  for  the 

purpose  of  recovering  the  trust  property  for  the  benefit  of 

the  trust,  and  that  the  section  means  that  when  trust  May  be  recover- 

property  is  used  for  some  purpose  other  than  that  of  the   in  whom  it  has 

trust,  it  may  be  recovered  without  any  bar  of  time  from  trust. v 

the  hands  of  those  in  whom  it  has  been  vested  in  trust. 

It  was  further  held   that  the   suit  might    fall  within 

Article  123,  or  145  of  Act  IX  of  1871,  which  was  in  force 

when  the  suit  was  brought,  and  had  it  fallen  within 

neither  of  the  above,  it  would  be  barred  under  Article  118. 

(D.)     In  a  suit  brought  by  a  divided  son,  who  had  ob-   Father,  divided 
tained  a  decree  against  his  father  and  brother  for  a  third   ing  family  debt 
share  of  family  estate  and  of  a  debt  due  to  the  family,    trustee. 
to  recover  his  share  of  the  debt  which  the  debtor  paid 
after  the  decree  to  his  father,  who  since  died,  it  was  held 
that  the  money  received  by  the  father  was  not  held  in 
trust  for  a  specific  purpose  within  the  meaning  of  this 
section,  bat   that  the  plaintiff's  share  received  by  the 
father  was  money  received  to  plaintiff's  use  under  Article 
62.     Arunachalla  v.  Ramasami.W 

(O)    In  Saroda  Pershad  Chatto  Padhya  v.  Brojo  Nauth  r-  h. 

Bhutta  Charges/2'  plaintiff  alleged  that  his  father  had,    ^/ru*  against 
before  his    death,  placed  in  the  hands    of  defendant  a  account  does 

not  fall  under 

certain  sum  of  money,  and  had  also  transferred  to  him  this  section. 
(defendant)  his  landed  property  upon  trust,  that  he, 
(defendant)  should,  during  ijhe  minority  of  plaintiff,  hold 
the  money  and  manage  the  property  for  the  benefit  of 
plaintiff  and  maintain  him,  and  should,  on  the  plaintiff's 
attaining  his  majority,  make  over  to  him  the  property 
and  so  much  of  the  money  as  should  then  be  unexpended, 
and  that  defendant  had  accepted  the  trust,  but  upon 

(1)  I.LR.,6  Mad.,  402.         |      (2)  I.  L.  R.,  5  Calc,  910. 

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60  PART  II. — LIMITATION  OP  SUITS,  APPEALS  AND  APPLICATIONS.  [SBC.  10 

plaintiff's   coming   of  age,  had    refused  to  render  any 
account.      Plaintiff    accordingly  brought  a  suit  for   an 
account.     Defendant  pleaded  that  plaintiff  had  attained 
his  majority  at  a  much  earlier  period  than  he  alleged, 
and  that  the  suit  was    barred  by   limitation.     Plaintiff 
replied  that  under  section  10  of  Act  XV  of  1877,  his  suit 
Held  such  suit  could  not  be  barred  by  any  length  of  time.     It  was  held 
if  not  brought  that  section  10  of  Act  XV  of  1877  did  not  apply  to  such 
from j>iatntiff's  a  case,  and  that  plaintiff's  suit  would  be  barred  if  not 
majo     .  brought  within  six  years  from  the  time  when  he  attained 

his  majority  and  became  entitled  to  demand  an  account. 
In  India,  suits  between  a  '  cestui  que  trust*  and  trustee  for 
an  account  are  governed  solely  by  the  Limitation  Act, 
(Act  XV  of  1877)  and  unless  they  fall  within  the  exemp- 
tion of  section  10,  they  are  liable  to  become  barred  by  some 
one  or  other  of  the  articles  in  the  second  schedule  of  the 
To  claim  the      Act.     To  claim  the  benefit  of  section  10,  a  suit   against 
section,  suit        a  trustee  must  be  for  the  purpose  of  following  the  trust 
low  trust-pro-     property  in  his  hands.     If  the  object  of  the  suit  is  not  to 

perty  in  trus-  , 

tee's  hands.  recover  any  property  m  specie,  but  to  have  an  account  of 
the  defendant's  stewardship,  which  means  an  account  of 
the  moneys  received  and  disbursed  by  the  defendant  on 
plaintiff's  behalf,  and  to  be  paid  any  balance  which  may 
be  found  due  to  him  upon  taking  the  account,  it  must  be 
brought  within  six  years  from  the  time  when  the  plaintiff 
had  first  a  right  to  demand  it.  Even  in  England  the  Judi- 
cature Act  (36  and  37  Vict,  C.  66,  section  25,  clause  2) 
enacts,  that  "  no  claim  of  a  cestui  que  bust  against  his 
trustee  for  any  property  held  on  an  express  trust,  or  in 
respect  of  any  breach  of  such  trust,  shall  be  held  to  be 
barred  by  any  Statute  of  Limitation." 
b.  h.  (p)     The  Bombay  High  Court  followed  the  above  de- 

This  section  •   •        •      m  ••  vr  ••   r*     *     ••  ^  ..     ...  ...    _ 

does  not  apply  cision  in  Snapurji  Nowroji  Pochaji  v.  Bnikaiii.W  In  this 

to  suit  for  an 

account  against  case,  testator  died  in  1865,  leaving  a  will  of  which  his 

executor  or  his  -r»  i     «  * 

representative,    nephews   P  and  S  were  the  executors.     His  will  pro- 

(FebruaJry  1886)  * 

vided  that  after  payment  of  all  debts,  Ac.,  the  residue  of 
his  property  should  remain  in  the  hands  of  the  executors, 

(1)  I.  L.  B.,  10  Bom.,  242. 


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8IC.  10]  PAET  n. — LIMITATION  OF  SUITS,  APPEALS  AND  APPLICATIONS.    61 

who  were  "  to  maintain  the  family  in  the  same  manner 
as  I  used  to  maintain  the  family  in  my  house."  After 
the  death  of  both  the  executors,  the  residue  was  to  be 
apportioned  among  the  children  of  his  nephews  in  equal 
shares.  On  the  death  of  the  testator,  P  took  possession 
of  the  estate,  and  died  on  the  10th  January,  1876.  8 
remained  passive  until  the  27th  August,  1884,  when  he 
took  out  probate  of  the  testator's  will.  On  the  23rd 
January,  1885,  he  filed  the  present  suit  against  the  defen- 
dant as  widow  and  administratrix  of  P,  praying  for  an 
account  of  the  estate  of  the  testator  that  had  como  to  the 
hands  of  P,  and  also  for  an  account  of  the  estate  of  P. 
The  plaintiff  contended  that  the  testator's  estate  came 
into  the  hands  of  P  as  a  trustee,  that  the  suit  was  to 
recover  the  property  for  the  purposes  of  the  trust,  and 
that  section  10  of  the  Limitation  Act  (XV  of  1877) 
applied.  The  defendant  alleged  that  all  the  moneys 
belonging  to  the  testator's  estate,  which  had  come  into 
the  hands  of  P,  had  been  expended  in  paying  the  testator's 
debts,  and  that  there  was  no  residue  left  for  the  purposes 
of  the  trusts  of  the  will,  and  she  contended  that  the 
suit  was  barred  by  limitation.  It  was  held  that  the  suit  Held  that  the 
was  barred  by  Article  120  of  schedule  II  of  the  Limitation  by  article  120, 
Act  XV  of  1877,  being  primarily  not  a  suit  to  follow  one  to  ascertain 
trust  property  in  the  hands  of  a  representative  of  a  trustee,  trust  remained 
but  really  to  ascertain  whether  any  trust  remained  to  be  tered  after  pay- 
administered  after  the  testator's  debts  and  funeral  ex-  Ac. 
penses  Have  been  paid.  No  breach  of  trust  was  alleged. 
The  suit  was  merely  for  an  account  against  the  executor 
or  his  representative.  To  such  a  suit  this  section  of  the 
act  does  not  apply.  ' 

(q)     In  Hurro  Coomaree  Dossee  v.  Taini  Churn  By-   But  suit  to 
sack/1)  a  certain  lady  left  a  will  of  which  she  appointed  one   with  trust  as 
Ay  since  deceased,  sole  executor,  and  directed  by  the  will    for  an  account. 
that  the  income  of  certain  houses  should  be  applied  towards   under  this  see- 
the performance  of  the  worship  of  an  idol,  and  that  the   (April  isss.) 
balance  should  be  divided  between  certain  persons  named 

(1)  I.  L.  R.,  8  Calc,  766. 


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62    PAET  II. — LIMITATION  OF  SUITS,  APPEALS  AND  APPLICATIONS.    [SBC.  10 

in  the  will.  The  executor  left  a  will,  of  which  he  had 
appointed  two  executors  who  acted  in  the  trusts  of  the 
will.  After  certain  litigations,  the  defendants  in  this  case 
were  declared  as  fit  and  proper  persons  to  perform  the 
trust.  The  plaintiffs  in  this  case  charged  the  defendants 
with  various  breaches  of  trust  and  for  an  accouut.  It  was 
held  that  a  suit  against  trustees  for  the  purpose  of 
charging  certain  property  with  the  trusts  declared  by  the 
author  of  the  trust  in  respect  of  that  property  and  for  an 
account,  is  a  suit  to  follow  property,  and  as  such  is  not 
barred  by  any  lapse  of  time. 
a  ;te*tator  (r)     In  Anund  Moye  Dabi  v.  Grish  Chunder  Myti/1) 

cuiar  property  1st  defendant  was  a  minor  and  his  father  was  2nd  defen- 
cuiarydebf ar  *  dant.  The  1st  defendant's  maternal  uncle  borrowed  from 
the  2nd  defendant  Rs.  15,000 ;  and  in  May,  1868,  executed 
a  will  in  favour  of  the  infant  defendant,  bequeathing  to 
him  his  properties  and  directing  him  to  pay  off  the  2nd 
defendant's  debt  out  of  the  properties  for  which  lie  (the 
testator)  had  obtained  a  decree  against  a  third  party. 
The  decree  was  then  in  the  Privy  Council  in  appeal. 
After  it  was  disposed  of,  the  2nd  defendant,  as  guardian 
of  his  son,  executed  the  decree  and  obtained  possession  of 
all  the  properties  included  in  it,  and  realized  a  certain 
sum  of  money.  Subsequently  the  plaintiff's  husband 
obtained  a  decree  against  the  2nd  defendant  and  caused 
his  right  to  receive  his  debts  to  be  sold  in  execution  and 
purchased  it  himself  in  September,  1875.  This  suit  for 
money  was  not  instituted  until  more  than  3  years  after 
that  date.  The  defendants  pleaded  limitation,  and  the 
Lower  Court  rejected  it  on  that  ground.  It  was  held  thai 
Charge  of  debts  a  charge  of  debts  generally  by  a  testator  upon  his  pro- 
testator  on  his  perty  or  any  part  of  it  will  not  affect  limitation,  because 
not  affect  Umi-  it  does  not  at  all  vary  the  legal  liabilities  of  the  parties, 
or  make  any  difference  with  respect  to  the  effect  and 
operation  of  the  statute  itself.  The  executors  take  the 
estate  subject  to  the  claim  of  the  creditors,  and  are  in 
point  of  law  trustees  for  the  creditors,  and  such  a  charge 

(1)  I.  L.  R.,  7  Calc,  772. 

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SBC.  10]  PART  II. — LIMITATION  OF  SUITS,  APPEALS  AND  APPLICATIONS.  63 


H. 

This  section 
does  not  apply 
to  trust  of  a  ge- 
neral nature, 
such  as  the  law 
imposes  on  exe- 
cutors and 
others  holding 
fiduciary  posi- 
tion. 


adds  nothing  to  their  legal  liabilities.     But  the  case  is  dif-   But  when  he 
ferent  when  particnlar  property  is  given  upon  trust  to  pay  cuiar  property 
a  particular  debt  or  debts.     In  such  a  case  the  trustee  has  lardebt  It  impo- 
a  new  duty,  not  the  ordinary  duty  of  an  executor  to  pay  on  trustee. 
debts  generally  out  of  property  generally,  but  a  duty  to 
apply  a  particnlar  property  to  secure  a  particular  debt ; 
and  there  is  a  trust  within  the  meaning  of  this  section. 

(8)  Greender  Chunder  Ghose  v.  Mackintosh^1)  was 
brought  in  November,  1876,  by  creditors  of  the  estate  of 
A  on  behalf  of  themselves  and  all  the  other  creditors  of 
the  estate  against  the  executor  of  the  will  of  A  and  also 
against  the  mortgagee  who  had  obtained  the  mortgage 
from  the  executors  in  1863.  The  object  of  the  suit  was 
to  follow  in  the  hands  of  the  mortgagee  the  property 
mortgaged.  It  was  contended  that  if  the  property  in  the 
hands  of  the  mortgagee  is  in  fact  chargeable  with  the 
payment  of  debts,  it  has  then  become  vested  in  him  for 
the  specific  purpose  of  paying  those  debts.  Following 
the  decision  in  Kherode  Money  Dossee  t\  Doorgamoney 
Dossee/*)  it  was  held  that  the  suit  was  not  governed  by 
this  section,  and  that  the  words  "  in  trust  for  a  specific 
purpose"  are  intended  to  apply  to  trusts  created  for  some 
defined  or  particular  purpose  or  object  as  distinguished 
from  trusts  of  a  general  nature,  such  as  the  law  imposes 
upon  executors  and  others  who  hold  recognized  fiduciary 
positions.  It  was  further  held  that  the  suit  was  barred 
by  article  118  of  Act  IX  of  1871,  corresponding  to  Article 
120  of  Act  XV  of  1877.  This  case  was  distinguished 
from  Lallubhai  Bapubhai  v.  Mankuvar  Bai,(8)  which  was 
decided  under  section  2  of  Act  XIY  of  1859,  which  would 
appear  to  apply  to  all  trustees,  and  which  contains  no 
words  restricting  the  scope  of  the  section  to  trusts  for  a 
specific  purpose. 

(t)  In  Thackersey  Dewraj  v.  Hurbhum  Nursey,W 
plaintiffs,  who  were  members  of  a  caste  and  worshippers  at 
caste  temple,  sought  to  make  the  defendants,  who  were 


(1)  I.  L.  R.,  4  Calc,  897. 

(2)  I.  L.  R.,  4  Calc,  465. 


(3)  I.  L.  R.,  2  Bom.,  388. 

(4)  I.  L.  R.,  8  Bom.,  482. 


Suit  to  make  de- 
fendant liable 
for  money  lost 
to  caste  and  tem- 
ple through  de- 
fendant's mis- 
conduct fell 
under  this  see. 


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64  PART  n. — LIMITATION  OF  SUITS,  APPEALS  AND  APPLICATIONS.   [SBC.  10 


Possession  of 
plaintiff's   land 
by  the  Peshwa's 
Government,  by 
attachments 
from  1806  and 
British  Govern- 
ment from  1866 
to  1870,  was  held 
as  possession  by 
constructive 
trustees  in  a 
suit  by  plain- 
tiff, to  elect 
tenant  after 
restoration. 


trustees  liable  in  respect  of  the  moneys  lost  to  the  caste 
and  temple  funds,  by  their  misconduct  and  improper 
dealing  with  them,  and  prayed  for  the  appointment  of 
new  trustees  and  for  the  settlement  of  a  scheme.  It  was 
held  that  under  the  provisions  of  this  section  the  defen- 
dant's liability  for  losses  from  1867  was  not  barred,  inas- 
much as  the  money  could  be  traced  to  the  hands  of  the 
trustees,  and  the  losses  were  caused  by  their  misconduct 
and  improper  dealing  with  it. 

(u)  In  Tukaram  v.  Sujangir  Guru/1)  the  Peshwa's  Go- 
vernment attached  certain  vatan  lands  of  the  plaintiffs 
family,  in  1806-1807,  and  the  British  Government  which 
succeeded  it  resumed  them  or  made  them  khalsa  in  1866. 
The  defondant  in  the  meantime  entered  upon  the  land 
as  tenant  to  the  Government,  and  paid  assessment  there- 
on. The  plaintiff  obtaining  an  order  for  the  restoration 
of  the  lands  in  1871,  brought  a  suit  against  their  co- 
parceners for  partition  and  obtained  a  decree.  The 
defendant  having  obstructed  the  execution  of  the  decree, 
the  plaintiff  sued  in  1881  to  eject  him.  The  Lower  Court 
held  that  the  plaintiffs  were  entitled  merely  to  such 
assessment  as  might  remain  after  payment  of  judi  to  Go- 
vernment, and  that  the  defendant's  possession  had  become 
adverse,  as  the  suit  was  not  brought  within  12  years  from 
the  resumption  by  Government  in  1866.  The  Lower  Ap- 
pellate Court  rejected  the  suit  as  barred.  It  was  held 
that  after  attaching  the  lands,  the  Peshwa's  Government 
held  the  same  as  constructive  trustees  for  the  plaintiff,  and 
the  same  relation  continued  when  the  British  Government 
succeeded  it.  The  British  Government,  having  succeeded 
to  the  trust  continued  to  hold  as  trustee  for  the  family  of 
the  plaintiff;  their  possession,  therefore,  could  not  be  made 
adverse  by  limitation,  or  notice  to  the  plaintiff.  It  was 
not  found  that  the  defendant  held  the  lands  before  the 
attachment  by  the  Peshwas.  The  plaintiff's  right,  having 
never  been  extinguished,  had  the  same  legal  force  in  1870, 
when  the  lands  were  restored,  as  it  had  before  attach. 


(1)  I.  L.  R.,  8  Bom.,  685. 


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SKC.  10]  PAST  II.— LIMITATION  OF  SUITS,  APPEALS  AND  APPLICATIONS.  65 

ment  in  1806,  and  as  the  suit  waa  brought  within  the  term 
computed  from  1871,  it  was  not  barred,  the  inability  of 
the  plaintiffs  to  sue  before  1871  falling  within  the 
purview  of  the  maxim  "contra  non  valentem  agere  non 
cwrrit  prcescriptio." 

(V)    In  Merwanji  Hormusji  v.  Rustomji  Burjorji/1*    Aar<JJ5?a^Lir' 
plaintiff,  as  representative  of  his  deceased  father,  who  was  •"**  for  a  share 
a  partner  with  the  1st  defendant,  sued  on  the  16th  of  July,  m«*  recovered 
1880,  for  a  moiety  of  the  amount  realized  by  the  1st  de-  fog  partner, 
fendant  by  selling  to  the  2nd  defendant  a  claim  which   under  this  see- 
the 1st  defendant's  firm  had  against  another  company. 
The  firm  of  the  1st  defendant  and  the  plaintiff's  father 
ceased  to  do  business  at  the  end  of  1862,  but  no  formal 
dissolution  of  the  partnership  took  place.     In  1869,  the 
1st  defendant  in  his  own  name  and  that  of  the  plaintiff's 
father,  filed  a  suit  against  the  company  indebted  to  them, 
and  in  March,  1870,  a  commissioner  was  appointed  to  take 
account.    In  December,  1872,  plaintiff's  father  died,  and  in 
February,  1873,  the  1st  defendant   assigned  for  17,000 
rupees,  the  claim  of  his  firm  to  the  2nd  defendant,  who 
paid  to  the  1st  defendant  in  January,  1878,  rupees  1,000 
and  in  September,  1879,  rupees  6,000,  and  at  the  hearing 
of  this  suit  paid  into  court  10,000  rupees,  for  which  he  Bat  it  wm  held 
had  executed  a  promissory  note.    It  was  held  that  the  recover  if°ne 
plaintiff  was  entitled  to  recover  if  the  suit  was  brought  time  though  his 
within  the  period  of  limitation  prescribed  therefor,  al-  partnership  ■!£ 
though  right  to  bring  a  suit  to  take  partnership  accounts  hare  been  bar- 
generally  would  hare  been  barred.     Latham,  J.,  in  his 
judgment,  observes,  "  it  is  admitted  by  Mr.  Starling  that 
his  client  cannot  claim  the  benefit  of  section  10  of  the 
Limitation  Act  XV  of  1877,  and  I  think  that  the  admis- 
sion is  clearly  right." 

(w)     In  Manickavelu  Mudali  v.  Arbuthnot  and  Co./2)    (Sembie)  Re- 

.  salting  trust 

plaintiffs,  as   representatives    of  the  original   creditor,   not  expressly 
claimed  to  participate  in  the  dividends  set  apart  for   not  fail  under 
creditors  in  1840,  on  the  ground  that  they  were  not 
claimed  by  those  creditors  and  were  in  the  hands  of  the 


(1)  LL.B.,6  Bom.  62a      |      (2)  I.  L.  R.,    4  Mad.,  404. 
9 


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66   PART  II. — LIMITATION  OF  SUITS,  APPEALS  AND  APPLICATIONS.   [SEC.  10 

Plaintiff  Bued to  defendants,   though   their   suit   originally   was  to  have 

the  unclaimed    the  net  balance  due  to  the  estate  of  the  deceased  debtor, 

apart  for  other  ascertained  and  administered  under  the  court's  direction. 

might  can  upon  The  defendants  pleaded  that  all  the  available  assets  were 

time  for  pay-    divided  among  the  creditors  up  to  1840,  and  that  they  had 

in  their  hands  only  monies  belonging  and  payable  to  the 

other  creditors  of  the  estate,  and  that  their  firm  did  not 

take  upon  themselves  the  burden  of  the  trusts,  but  were 

employed  upon  the  usual  agency   commission   terms  to 

Such  creditors    close  the  affairs  of  the  trust.  Kei-nan,  J.,  observes,  "  I  am 

not  being  par- 
ties to  this  suit,    inclined  to  think  that  the  trustees,  who  are  only   con- 
defendants  can 
get  no  relief  as   structive  trustees  by  virtue  of  having  possession  of  the 

against  them  by  J  * 

an  account.        trust  funds  and  of  having  acted  in  trust,  and  who  are  not 
representatives  of  the  original  trustees,  are   not  persons 
in  whom  the  property  is  vested  for  a   specific  purpose 
under  section  10,  Limitation  Act  1877,  inasmuch  as  the 
trust  now  sought  to  be  established  and  administered  is  a 
resulting  trust  not  expressly  declared.     The  specific  pur- 
Such  unpaid       pose  was  to  pay  dividends  to  all  the  creditors  then.     No 
ed  in  the  defend-  specific  purpose  to  re-distribute  was  declared.     But  the 
specific  purpose  defendants  received  no  general  funds  :  they  only  received 
creditors  only,    dividends  set  apart  for  particular  creditors,  and  those 
specific  pur-      dividends  are  vested  iu  them  for  the  specific  purpose  of 

pose  of  the  .  . 

general  estate,     paying  those  creditors  only,  and  not  for  the  specific  pur- 
pose of  the  general  estate.     However,  it  is  not  necessary 
to  decide  the  question  of  Limitation." 
Words  "you  (x)    In  Kumarasami  v.  Subbaraya,*1)  plaintiffs  are  two 

brothers,  their    of  the  brothers  of  one  deceased  Krishna  Moodelly,  who 
children,  ac-      died  in  September,  1882.     The  deceased,  by  a  will,  made 
wishes'  do  not  several  bequests  and  gave  several  directions  as   to  his 
There  is  noth-    property,  but  there  was  no  bequest  to  the  executors  who 
^hat  would        took  no  benefit  under  the  will.     The  executors   having 
cient  compu-   "  renounced  their  office  by  a  deed  in  March,  1883,  adminis- 
direction! the      tration  with  the  will  annexed  was,  with  the  plaintiff's 
consent,  granted  to  defendant  No.  1  in  British  Burmah. 
There  was  a  clause  in  the  will  to  the  following  effect : 
"  you  should  give  my  brothers,  Kumarasami  Mudaliar, 

(1)  ILR.,9  Mad.,  325. 


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SEC.  10]    PART  H. — LIMITATION  OF  SUITS,  APPKAL8  AND  APPLICATIONS.    67 

Subbaroya  Mudaliar,  and  Vyapuri  Mudaliar,  their  wires 
and  (sons)  children,  according  to  your  wishes.  Yon  shonld 
defray  the  expenses  of    the  marriages  of  Ramasawmi 
Mudaliar's  four  daughters  ;   you  should  pay  for  the  edu- 
cation, &c.»  of  the  aforesaid  persons,  (two)  sons,  what  may 
be  required."    The  plaintiff  sued  to  have  the  trusts  of  the 
will  carried  out.     Kernan,  J,  on  the  original  side  of  the 
High  Court  declared  that  the  said  three  brothers,  their 
wives  and  sons  were  entitled  to  the  residue  of  the  estate, 
and  ordered  that  it  be  divided  into  three   shares.     On 
appeal,  a  Division  Bench,  Brandt  and  Parker,  J.  J.,  held 
that  no  trust  was  created  by  the  words  "  you  should  give 
my  brothers,  their  wives  and  children,  according  to  your 
wishes."   Parker  J,  observes,  "  a  trust  is  not  created  unless  a  trust  is  not 
the  words  are  imperative  and  the  subject  and  objects  are  the  words  are 
certain  ;  Knight  v.  Knight.    (3  Beav.,  148.)    Even  had  the  the  subject  and 
estate  been  bequeathed  to  the  executors  and  vested  in  tain. 
them  on  probate,  it  seems  very  doubtful  whether  these 
words  could  have  been  construed  as  creating  a  trust  for 
the  benefit  of  the  three  brothers  of  the  testator  and  their 
families  over  the  whole  of  the  residue  of  the  estate.     Mus- 
soorie  Bank  v.  Raynor.     (I.  L.  R.,  4  All.,  500).  If  the  no  trust  win 
words  communicate  a  mere  discretion  no  trust  will  arise   w^rdsVomnm- 
(Lewin,  7  ed.,  ch  :   VIII,  S.  2  (7)  and  notes),  and  in  this   disCTetion?e^, 
case  there  is  nothing  whatever  to  show  what  would  have 
been  a  sufficient  compliance  with  the  direction." 

(y)     In  Viziarama  Razu  v.  The  Secretary  of  State  for  Government 
India  in  Council, W  plaintiff  sued  the  Secretary  of  State  session  of°an 
for  possession  of  a  Zamindari  and  also  for  an  account  of  claim  offav  * 
the  rents  and  profits  from  September,  1828.     The  plain-  z£i?w{o 
tiff's  father  died  in  1828,  leaving  Kurmarazu,  Viziarama-  &0iPt<nT^u?t 
razu,  and  Niladri  Narendra,  his  three  sons.     In  conse-  £f  Zv^  iror"* 
quence  of  the  reports  of  the  Collector  made  in  1828,  and  $2£fiopui> 
again  in  1829,  Kurmarazu  was  recognized  as  heir,  the 
Court  of  Wards  in  the  same  year  having  taken  charge  of 
the  estate.    Kurmarazu  having  come  of  age  in  1832,  was 
put  into  possession.     Disturbances  then  occurring  in  the 

(1)  I.  L.  R.,8  jfvl.,53*. 

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68   PART  II. — LIMITATION  OF  SUITS,  APPEAL8  AND  APPLICATIONS.    [SEC.  10 

villages,  amounting  to  rebellion,  Martial  law  was  pro- 
claimed under  the  provisions  6f  Regulation  Vll  of  1808. 
Kurmarazu  having  been  tried  by  court-martial,  was  found 
guilty  of  complicity  in  the  rebellion,  and  sentenced  to  death, 
which  sentence  was  commuted  to  one  of  imprisonment. 
The  Zamindari  of  Palkonda  was,  under  the  same  regu- 
lation, declared  to  be  forfeited  to  the  Government,  which 
took  possession  of  it,  making  proclamation  to  that  effect 
in  1835.  Kurmarazu  had  died  a  State  prisoner  in  1834. 
Niladri  died  manyyears before  these  proceedings.  It  was 
contended  that  the  Government,  who  came  into  possession 
.  under  a  claim  of  forfeiture  from  Kurmarazu,  who  had 
been  let  into  possession  by  the  Court  of  Wards,  are  a 
person  in  whom  the  property  had  become  vested  in  trust 
for  a  specific  purpose,  and  that  this  suit  was  brought  for 
the  purpose  of  following  that  property.  It  was  held  that 
the  Government  was  not  placed  in  the  position  of  a  person 
in  whom  property  had  become  vested  for  a  specific  pur- 
.  pose,  and  that  the  above  section  was  not  applicable  to 
prevent  the  operation  of  the  law  of  limitation  under  Act 
XV  of  1877,  which  barred  the  suit  brought  by  another  of 
the  sons,  alleging  title  to  the  Zamindari. 
Enrohuer  of  (z)  In  Maharanee  Brojoeoondery  Debia  v.  Ranee 
name  of  idol,    Luchmee  Koonwaree/1)  the  plaintiff  sued  as  the  Sebait 

when  not  dedi- 
cated to  the  idol,  of  a  certain  idol  to  recover  possession  of  a  Zamindari  by 

and  the  pro-  setting  aside  an  alienation  thereof  effected  by  his  grand- 
mother, on-  the  ground  that  it  was  debutter  property 
dedicated  to  the  idol,  and  consequently  inalienable.  It 
appeared  that  the  property  in  dispute  was  purchased  by 
the  grandfather  of  the  plaintiff  in  the  name  of  the  idol, 
which  was  set  up  merely  for  his  private  worship  in  his 
own  house  without  any  priest  to  perform  regularly  any 
religious  service  for  the  public  benefit  of  Hindus,  and 
that  the  property  had  been  dealt  with  all  along  as  his 
own  private  property.  It  was  held  that  it  was  a  mere 
nominal  endowment  and  consequently  the  alienation 
thereof  was  not  invalid.     It  was  further  held  that  a  pro- 

(1)  15  B.  L.  B.,  176. 


SIC.  10]   PART  II. — LIMITATION  OF  SUITS,  APPBAL8  AND  APPLICATIONS.    69 

perty  purchased  by  a  man  in  the  name  of  his  own  idol,   Property  pnr- 
which  no  one  except  himself  has  the  power  or  right  to  son  in  the  name 

.  of  his  own  idol 

worship,  is  not  the  property  of  the  idol,  but  the  property  which  no  others 
of  the  person  who  purchased  it.     The  suit  was  dismissed  worship  is  his 

1111...  T       i  .  1T31.1        property  and 

as  barred  by  limitation.  In  this  case  the  Lords  of  the  not  the  idols. 
Privy  Council  have  referred  to  the  case  of  Mahatab  Chand 
Q.  Mir  dad  Ali,  in  which  it  was  held  that,  when  an  endow- 
ment is  merely  nominal,  and  indications  of  personal 
appropriation  and  exercise  of  proprietary  right  are  found, 
a  sale  of  the  property  is  valid  under  the  Hindu  law. 
They  also  allude  to  the  case  of  Gosain  v.  Gosain/1)  in 
which  it  was  held  that  if  a  Hindu  purchase  property  in 
the  name  of  his  son,  the  property  is  not  vested  in  the  son, 
but  in  the  father  who  purchased. 

(2-a)     In  Maharanee  Shibessouree  Debia  v.  Mothoora-  Sehait  of  a 
nath  Acharjo,W  it  was  held  by  the  Privy  Council,  in  De-  held  not  a 
cember,  1869,  that  lands  which  were  dedicated  for  religious  property. 
services  of  an  idol  and  managed  by  a  Sebait  of  the  endow* 
ment,  cannot  be  alienated  by  the  Sebait,  but  the  Sebait  can 
create  derivative  tenures  and  estates  conformable  to  usage. 
Phear,   J.,   in   Syud   Shah  Alleh  Ahmed  v.  Mussamut 
Pibee/*)  observes  that  this   decision   u  merely  affirms  a 
doctrine  which  has   always  been  held  in  this  court,  that 
an  idol  itself  under  Hindu  law  is  a  person  capable  of  idol  itself  is 
holding  and   enjoying  property,  and  that  the  Sebait  is  ing  and  enjoy- 
merely  the  manager  for  the  time  being  of  that  property, 
and  not  the  proprietor." 

(2-b)    la    Syud    Shah    Alleh   Ahmed  v.   Mussamut  Person  in  whom 

h  .  .    .  _       ,  _  .  .  property  vesta 

Pibee,<*)  it  was  held  that  where  property  is  vested  in  a  partly  for  ehari- 
person  partly  for  charitable  purposes  and  partly  for  the  be-  for  otherfihene- 
nefit  of  others,  and  he  is  bound  to  use  it  for  such  purposes  and  trustee  under 
not  for  his  own  advantage,  he  is  a  trustee  within  the  mean- 
ing of  Act  XIV  of  1859,  section  2.     Phear,  J.,  observes  "  it 
Would  seem  that  the  defendant  has  necessarily  some  pro- 
perty in  the  subject  of  suit  which  is  dedicated  first  to 
certain  charitable  purposes,  and  then  the  remainder  is  to 

(1)  6  Moor  I.  A.,  68.        I      (3)  21  W.  R.,  415. 

(2)  IS  Moor.,  270.  |      (4)  21  W.  K.,  416. 


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70    PART  IT. — LIMITATION  OP  SUITS,  APPEALS  AND  APPLICATIONS.   [SBC.  10 

go  to  the  plaintiff  and  other  persons.     There  is  no  other 
person   in   whom   the  property  can  reside  unless  it  be  tbe 
defendant ;  and  he  is  bound  to  use   such  property  as  he 
has  in  it, -not  for  his  own  advantage,  but  for  the  purposes 
of  carrying  out  tbe   trusts  of  the  deed  under  which  he 
took   it."     "The  plaintiff   is   entitled   to   call   upon   the 
defendant  as  a  trustee  for  an  account;  and  as  it  does  not 
appeal*  that  any  accounts  have  been  settled  between  the 
trustee  and  the  plaintiff,  or  any  predecessor  of  the  plain- 
tiff, the  account  must  be  taken  from  the  period  mentioned 
in  the  plaint.' ' 
a  suit  against        (2-C)     Bittlestone,  J.,  observes   "  it  is  very  reasonable 
tive  of  a  trustee   that  no  lapse  of  time  should  be  allowed  to  bar  a  suit 
the  loss  out  of  against  a  trustee  who  has  committed  a  breach  of  trust ; 
tate,  does  not       and  even  after  his  death  if  the  property  which  is  the 
section.   See       subject  of  the  trust  has  passed  into  the  hands  of  his  re- 

Article  98  which  .  ... 

allows  s  years  presentatives  as  part  of  his  estate,  it  is  equally  reasonable 
from  trustee's     that  the  cestui  que  trust  should,  after  any  lapse  of  time,  be 

death  or  date  of 

loss.  permitted  to  recover  from  the  hands  of  the  representatives 

that  specific  property.  That  if  the  property  has  been 
sold  by  the  trustee  in  his  lifetime,  or  has  in  any  way  dis- 
appeared and  can  no  longer  be  traced,  and  the  suit  is 
brought  against  the  representatives  to  make  good  the  loss 
out  of  the  general  estate,  the  legislature  has  thought  the 
same  reason  no  longer  applicable  and  has  provided  that  in 
such  case  the  proper  period  of  limitation  according  to  the 
preceding  section  should  be  computed  from  the  death  of  the 
trustee."  H.  H.  Azim-u-nissa  Begum  v.  Clement  Dale.*1) 
A  h.  (2-d)     Harbhag  t?.  Gumanit2)  was  a  suit  for  possession 

nistratSn-pa-  *  of  certain  property  said  to  have  belonged  to  the  plain- 
forsurren^to  tiff  s  ancestors,  who  had  left  the  village  some  30  years 
holders  on  their  before  the  suit.  The  plaintiff  relied  upon  a  clause  of  the 
Srnwivheidby  village  administration-paper,  dated  January,  1869,  which 
constitute  valid  provided  for  the  surrender  to  absent  share-holders  on  their 
actuaJ^occu^  return  to  the  village,  of  the  lands  formerly  held  by  them, 
piers.  Yxti  <jid  not  contain  any  declaration  of  trust  as  existing 

between  such  absent  share-holders  and  the  occupiers  of 

(1)  6  Mad.,  H.  C.  R.,  455.      |      (2)  I.  L.  R.,  2  AIL,  493. 


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SBC.  10]   PABT  IL — LIMITATION  OF  SUITS,  APPEALS  AND  APPLICATIONS.    71 

their  lands  at  the  time  when  such  administration-paper 
was  framed.  It  was  held  that  the  administration-paper 
could  not  be  regarded  as  evidence  of  a  pre-existing  trust 
between  such  persons,  nor  as  an  admission  of  such  a  trust 
by  such  occupiers.  The  declaration  is  general  that  any 
absconding  parties  returning  to  and  settling  in  the  village, 
shall  immediately  be  put  in  possession,  and  the  occupant 
shall  not  object  to  relinquish  their  holdings.  It  was  held 
that  the  paper  does  not  necessarily  constitute  a  valid 
trust  in  favour  of  the  absent  share -holders  although  it 
may  be  evidence  of  such  a  trust. 

(2-6)     In  Piarey  Lai  v.  Saliga,^)  certain  persons  who  in  u  suit  against 

had  absconded  from  the  village  before  wajib-ul-arz  was  a  co-sharer  who 

framed,  sued  to  enforce  its  clause  against  the  purchaser  of  of  the  property 

their  property  from  the  co-sharer  who  had  taken  possession  tiff's  ancestor's 

of  it  on  their  absconding,  and  who  was  no  party  to  such  was  held,  that 

wajib-ul~arz  (village  administration-paper),  alleging  that  sharer  could  be 

their  property  had  vested  in  such  a  co-sharer  in  trust  for  held  as  trustee 

them.     It  was  held,  that  before  sucb  co-sharer  could  be  evidence  that  be 

taken  to  have  held  their  property  as  a  trustee,  there  must  trust. 
be  evidence  that  he  accepted  such  trust,  and  this  fact 
could  not  be  taken  as  proved  by  the  wajib-ul-arz.     It  was 

further  held  that  assuming  the  trust  to  be  established,  as  Even  if  trust 

the  purchaser  had  purchased  in  good  faith  for  value  and  purchaser  not 

without  notice  of  the  trust,  and  was  not  the  representative  tative  of  such 

of  such  co-sharer  within  the  meaning  of  section  10,  Act  held  protected 

IX  of  1871,  and  bad  been  more  than  12  years  in  possession,  limitations. 
the  suit  was  barred  by  limitation. 

(2-f)     In  1840,  the  purchasers  and  recorded  proprie-  statement  in 

tors  of  a  four  biswas  share  of  a  certain  village  caused  a  cord-of-rights 

.  .„  ,      -     .  that  purchaser 

statement  to  be  recorded  in  the  village  record-of -rights,  of  four  shares 

°  •  wa8  willing  to 

to  the  effect  that  B  claimed  to  be  the  proprietor  of  a  release  two 

,     .  .  shares  if  plain- 

moiety  of  such  share,  and  that  they  were  willing  to  admit  tiff's  father  who 

J  *  *  °  claimed  them  as 

his  riirht  whenever  he  paid  them  a  moiety  of  the  sum  his  paid  a 

,  .  ,      ,         ,,         .,.  ,,  j.  moiety  of   the 

which  they  had  paid  in  respect  of  the  arrears  of  revenue  arrears  of  reve- 

.  nue  due  thereon 

due  on  such  share.     In  1843,  M  purchased  such  share  held,  would  not 

.  ,  show   that 

and  became  its  recorded  proprietor.     In  1877,  K,  the  son  shares  vested 

in  the  purchaser 


(1)  I.  L.  R.,  2  All.,  394. 


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72   PART  II. — LIMITATION  OF  SUITS,  APPEALS  AND  APPLICATIONS.  [SIC.  10 

in  trust  to  but-  of  By  sued  the  representative  of  M  fpr  possession  of  a 

plaintiff's  nioiety  of  snch  share,  alleging,  with  reference  to  the  state- 

heirs.  ment  recorded  in  the  record-of -rights,  that  such  moiety 

had  vested  in  M ys  assignors  in  trust  to  surrender  it  to 

B  or  his  heirs  on  payment  of  a  moiety  of  the  sum  they 

had  paid  on  account  of  revenue,  and  paying  into  court  a 

moiety  of  such  sum.    It  was  held  that  that  statement  could 

not  be  regarded  as  evidence  of  the  alleged  trust,  and  that, 

However,  suit    assuming  that  the  alleged  trust  existed,   the  suit  was 

chaser  was  held  barred  by  limitation,  M  having  purchased  without  notice 

of  the  trust  and  for  valuable  consideration.    Kamal  Singh 

v.  Batul  Fatima-d) 

The  terms  «o-        C2-g)     In  Sirdar  Sainey  v.  Piran  Singh/2)  8  and  his 

held  to  strongly  brother  owned  an  eight  annas  share  of  a  village,  and  H 

aSon  of  such  a  and  D  owned  the  other  eight  annas  share :  the  parties 

trust  that  the    . 

absentees  from  being  related  to  each  other  by  blood.     In  1865,   (Sambat 

the  village  con-    ,  _  y 

tended  for,  and  1921)  at  the  settlement  of  the  village,  the  following  state- 

the  court  re- 

manded  the  suit  ment  was  recorded  by  the  Settlement  officer  in  the  wajib- 

to  ascertain 

whether  the  pro-  uUarz  at  the  instance  of  H  and  D,  with  whom  the  settlement 

perty  was  held 

m  trust  on  a-    was  made,  S  and  his  brother  being  absent  from  the  village 
turn  it  when    and  having  been  absent  for  some  10  years  :   "  We,  H  and 

claimed*  . 

D  are  equal  sharers  of  one-eight  annas,  and  8  and  (his 
brother)  of  the  other  eight  annas  in  the  village  according 
to  descent.  Ten  years  ago,  8  and  (his  brother)  went 
away  into  Orai ;  their  present  residence  is  not  known ;  they 
have  not  left  woman,  child,  or  heir  of  any  kind  in  the 
village  :  on  that  account  the  entire  sixteen  annas  of  the 
village  are  in  possession  of  us,  H  and  D.  At  the  time  of 
the  preparation  of  the  khawat,  we  made  a  gift  of  four 
annas  of  our  own  eight  annas  to  P,  and  have  given  him 
possession  of  four  annas  of  the  eight  annas  belonging  to  S 
and  (his  brother),  keeping  the  remaining  four  annas  in 
our  own  possession  :  when  S  and  (his  brother)  returned 
to  the  village,  we  three  who  are  in  possession  shall  give  up 
the  eight  annas  shareo  f  the  aforesaid  persons."  In  March, 
1880,  S  sued  P  for  possession  of  the  four  annas  mentioned 
in  the  wajib-ul-arz,  as  having  been  made  over  to  him  by 

(1)  I.  L.  R.,  2  All,  460.      |      (2)  I.  L.  R.,  8  All.,  468. 

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8*C.  10]  PART  II. — LIMITATION  OF  8UIT8,  APPEALS  AND  APPLICATIONS.    73 

Hand  D out  of  the  eight  annas  share  belonging  to  8  and 
(his  brother).  He  based  his  suit  upon  the  waQxb-ul-ar*, 
but  did  not  expressly  state  that  the  share  in  suit  had  been 
intrusted  to  H  and  D  on  the  understanding  that  it  should 
be  returned  to  him  when  he  reclaimed  it.  The  Lower 
Appellate  Court  dismissed  the  suit  as  barred  by  limitation, 
on  the  ground  that  P's  possession  of  the  share  in  suit 
became  adverse  in  1866  or  1867,  more  than  12  years  be- 
fore the  institution  of  the  suit,  when  8,  having  returned 
to  the  village,  had  claimed  the  share  and  P  had  refused  to 
surrender  it.  On  second  appeal,  it  was  contended  by  &, 
that  under  the  terms  of  the  wajib-ul-arz,  P's  possession 
was  that  of  a  trustee,  and  his  possession  could  not  be  held 
to  be  adverse.  Spankie,  J.,  was  of  opinion  that  the  suit 
was  barred  by  limitation,  inasmuch  as  such  a  trust  that 
the  plaintiffs  contended  for  could  not  be  implied  from  the 
terms  of  the  wajib-uUarz.  Pearson,  J.,  was  of  opinion 
that  although  no  mention  was  made  in  the  wajib-ul-ar* 
of  such  a  trust  as  was  contended  for,  yet  the  terms  of  that 
document  strongly  suggested  the  creation  of  such  a  trust. 
Having  regard  to  the  terms  of  the  wajib-ul-arz  and  to 
the  fact  that  8  and  (his  brother)  were  not  strangers  to  H 
and  D,  nor  merely  co-sharers,  but  mere  blood  relation, 
probably  residing  together  on  the  same  premises  and  part- 
ners in  agricultural  labors,  further  inquiry  should  be  made 
with  the  view  of  elucidating  the  nature  of  the  acquisition 
of  Hand  D  of  the  share  and  of  their  subsequent  possession. 

(2-h)     In  1860,  certain   shares  in    a  company    then  A  person  hav- 

f      "  ing  allowed  al- 

f ormed,  were  allotted  to  S.  on  the  understanding,  as  the  lotment  to  him 

^  '  °*  of  certain  shares 

plaintiffs  alleged,  that  one  hundred  and  twenty  of  such  b>  » .  company 

shares  should,  on  the  amount  thereof  being  paid  to  8,  be  transfer  them 

.  °  r  to  plaintiff  on 

transferred  to  and  registered  in  the  books  of  the  company  payment  for 
in  the  names  of  the  plaintiffs.     In  1862,  the  plaintiffs  fog  after  pay- 

/-,.  -,*  i    ment  paid  plain- 

Completed  the  payment  to  8  in  respect  of  the  shares,  and  tiffs  dividends 

during  his  lifetime  received   dividends  in  respect  of  the  wooid  not 

amount  to    I 

said  shares.     8  died  in  1870,  leaving  a  will,  probate  of  tmstforany 

.-.       specific  pnr« 
which  was  granted  to  the  defendant  as  his  executor.     In   pose." 

a  suit  brought  by  the  plaintiffs   after  demand  of  the 

shares  from  the  defendant  and  refusal  by  him  to  deliver 

10 


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74   PABT  II  — LIMITATION  OF  SUITS,  APPEALS  AND  APPLICATIONS.  [&LC.  10 

them,  to  compel  the  defendant  to  transfer  the  shares  to 
the  plaintiffs  and  register  the  same  in  their  names,  the? 
plaintiffs'  case  was,  that  the  shares  had  been  held  in  trust 
for  them,  and  that,  consequently,  their  suit  was  not 
barred  by  lapse  of  time.  Held,  that  the  transaction* 
between  S  and  the  plaintiffs  did  not  amount  to  u  a  trust 
for  any  specific  purpose"  within  the  meaning  of  section 
Plaintiff  mipht  10  of  the  Limitation  Act,  or  to  a  trust  at  all,  but  to  ail 

claim  specific  . 

performance  of  agreement  of  which  the  plaintiffs  were  entitled  to  specific 
the  agreement.        °  ■ *    #  * 

performance,  and  the  limitation  applicable  *  as  that  pro- 
tided  by  clause  113  of  schedule  2,  Act  IX  of  1871,  and 
therefore  the  suit  was  not  barred.  Nor  were  the  plaintiffs 
disentitled  to  relief  by  reason  of  any  laches  or  delay  in 
bringing  the  suit.  Ahmed  Mahomed  Pattel  v.  Adjeiri 
Dooply.d) 
Salt  against  (2-i)     In  Narayan  Das  v.  Maharaja  of  Burdwan,W 

balance  of  plaintiff  advanced  certain  sums  of  money  on  different  occa- 

ed  for  erecting  sions  to  his  servant  By  for  the  purpose  of  erecting  buildings, 
for  plaintiff  "'  <&c->  for  the  plaintiff.  When  the  plaintiff  claimed  the 
e^b/umita^  balance,  the  servant  pleaded  that  the  suit  so  far  as  it 
tion*  related  to  sums  advanced  to  him  more  than  three  years 

before  the  suit,  was  barred.  It  was  held  under  Act  XI V" 
of  1859,  that  the  matter  was  of  the  nature  of  a  trust,  and 
Entrusting  limitation  would  not  apply.  Where  an  agent  was  in- 
lands to  be  em-  trusted  with  funds  for  the  purpose  of  being  employed  in 
tiouiar  manner  a  particular  manner  in  purchase  of  land  or  stock,  it  was 
tmst.  held  that  there  was  an  express  trust  to  which  the  Statute 

of  Limitation  did  not  apply.     Burdick  v.  Garrick. W 
Limitation  can-       (2-j  )    A  fund  was  established  at  Bombay  by  the  Conve- 

not  be  pleaded  ,     ,'        ._  _,  *  .%       ^         »■..•» 

against  a  mem-  nanted  Civil  Servants  of  the  East  India  Company  serving 

berofafnndad-    .,,,_.,  „  ,.  .  ,  ... 

vancing  claim  in  that  Presidency,  for  granting  pensions  and  annuities 
to  members,  their  widows  and  children.  By  the  original 
articles  certain  persons  were  appointed  managers,  and 
they  were  declared  to  be  "the  Trustees  of  the  fund,"  and 
the  property  was  vested  in  them.  It  was  held,  that  they 
were  not  mere  trustees  for  the  association,  but  "  trustees" 

(1)  I.  L.  R.,  2  Calc,  323.    |    (2)  1  b.  L.  R.,  S.  &.,  11. 
(8)  L.  R.,  5.  Ch,  23S. 


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BBC.  10]   PABT  II  —LIMITATION  OP  SUITS,  APPEALS  AND  APPLICATIONS.    75 

properly  so  called,  and  that  the  members  of  the  fund  were 
the  beneficiaries,  so  that  the  defence  of  the  Statute  of 
Limitations  could  not  be  set  up  against  a  claimant  on  the 
fund  merely  on  account  of  lapse  of  time.*1* 

(2-k)    la  Hodgson  t?.  Williamson,^)  it  was  held  that  Money  advanc- 

•  j  ,    °         ,  .  .,.  .       .        edforthesup- 

momes  advanced  by  a  stranger  in  providing  necessaries  for  port  of  a  mar- 

.  ried  woman 

the  support  of  a  married  woman  living  separate  from  her  being  debt  pay- 
husband  are  debts    binding  her  separate  estate ;  and,  funds  held  in 

.  trust  for  her 

being  debts  payable  out  of  funds  held  in  trust  for  her  separate  use  is 

not  barred* 
separate  use,  are  not  barred  by  the  Statute  of  Limitations. 

Bacon,  V.  C,  observes,  "  now,  the  only  manner  in  which 
a  married  woman  can  contract  is  by  Charging  her  separate 
estate,  and  the  remedy  of  the  creditor  is  not  at  law,  but 
in  equity  against  the  trustee  of  her  separate  estate ;  and, 
unless  I  depart  from  plain  and  well-established  principles, 
I  must  hold  that  a  charge  was  created  on  her  separate 
estate  for  the  re-payment  of  the  money  expended'in  pro- 
viding her  with  necessaries — absolute  necessaries — and 
that  the  Statute  of  Limitations  does  not  apply  and  cannot 
now  be  pleaded." 

<2-l)     In  Burdick  v.  Garrick/*)  Lord  Hatherley  says,  Lord  Hather- 
•*  it  would  indeed  be  a  strange  thing  if  this  court  should  shews  their  may 

•         •fi.iiij.il*!*  #.,  be  an  express 

be  obliged  to  hold  that  if  a  person,  for  instance,  were  trust  without 
to  deposit  plate  or  jewels  with  his  bankers,  intending:  pression  in 

A      i_        i         x    *  i  *  x  ,  -  words  when 

to  be  absent  from  home  for  a  greater  number  of  years,  property  or 

and  those  chattels  were  converted  by  his   bankers   to  posited  for  de- 

their  own  use  in  fraud  of  the  owner,  and  the  owner  were  fit. 

to  come  back  after  the  end  of  seven  or  eight  years,  he 

is  utterly  remediless,  either  in  the  shape  of  an  action  Reason  why  a 

at  law  or  of  a  suit  in  this  court,  because  the   dealing  trustee  while  a 

with  his  property  has  been  in  the  nature  of  an  agency,  is  a  trustee. 

I  apprehend  that  the  true  rule  applicable  to  these  cases 

is  to  be  found  in  the  case  of  Foley  v.  Hill  (2  H.  L.  C. 

£&35),   where   it  is  clearly  stated  by  Lord  Cottenham, 

who  distinguishes  between  the  confidence  reposed  in  a 

factor  or  agent,  and  the  confidence  reposed  in  a  person 

(1)  1  App.  Ca*.,  281       |    (2)  L.  B.  Ch.  D.  15,  p.  87. 
(3)  L.  ft.  Ch.  D.  6  p.  p,  238,  239. 


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76   PART  II. LIMITATION  OF  SUITS,  APPEALS  AND  APPLICATIONS.    [BBC.  10 

A  banker  is  not  who  is  merely  in  the  position  of  banker.     A  mere  banker 

in  any  fiduciary 

relation  to  cos-  who  takes  charge  of  his  customer's  money  is  not  in  any 

particular  coins  fiduoiarj  relation  whatever  to  him  with  respect  to  the 

•4.  particular  coins  or  notes   deposited,  because  it  is   the 

ordinary  course  of  trade  to  make  use  of  them  for  his  own 

profit.     He  does   make  use  of  them   and  he  invests   the 

money  deposited  with  him ;  and  his  customer  does  not 

require  from   him   those   very  coins  or   exchequer  bills 

which  he  deposited  with  him.     But  in  the  present  case 

we  have  an  agent  who  is  intrusted  with  those  funds,  not 

for  the  purpose  of  being  remitted  when  received  to  the 

principal,  but  for  the  purpose   of  being  employed  in  a 

An  agent  en-     particular  manner  in  the  purchase  of  land  or  stock,  and 

trusted  with         * 

money  to  be  em-  which  monies  the  factor  or  agent  is  bound  to  keep  totally 
ticuiar  manner,  distinct  and  separate  from  his  own  money ;  and  in  no 
keep  it  separate  way  whatever  to  deal  with  or  make  use  of  them.  How 
from  his  own  a  person  who  is  intrusted  with  funds  under  such  circum- 
money.  stances  differs  from  one  in  an  ordinary  fiduciary  position 

I  am  unable  to  see.    That  being  so,  the  Statute  of  Limita- 
tion, appears  to  me  to  have  no  application  to  the  case." 
First  mortgagee       (2-m)     In  Tanner  v.  Heard,<x>  the  first  mortgagee  of  a 

selling  mortgag.         v~         \  ,  _ 

edtproperty        ship,  with  the  sanction  and  authority  of  tbe  second  mort* 

with   the  sane-  .  ,  . 

tionof2nd  gagee,   sold  it,   and   received  the  sale  proceeds,  which 

accountable  for  exceeded  the  amount  due  to  him.    It  was  held,  that  the  first 

the   surplus  as 

trustee.  mortgagee  was  accountable  to  the  second  mortgagee  in  the 

character  of  trustee.  Master  of  the  Bolls,  observes,  "lam 
of  opinion  that  this  is  not  a  case  in  which  the  principles 
which  obtain  in  a  suit  between  mortgagees  are  applicable ; 
I  think  it  distinguishable.  It  is  a  case  of  this  descrip- 
tion :  The  defendant  was  first  mortgagee  of  a  ship ;  the 
plaintiff  was  the  second.  The  defendant  with  the  sanction 
and  authority  of  the  plaintiff,  sold  it  at  Amsterdam,  and 
received  the  proceeds  of  the  sale.  Being  entitled,  in  the 
first  place,  to  the  amount  due  on  his  mortgage  and  the 
expenses  of  the  sale  of  the  ship,  and  there  being  a 
surplus,  he  was  bound  to  account  to  the  plaintiff  in  the 
character  of  trustee. 

(1)  28  Bear.,  555. 

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SBC.  10]  FART  II. LIMITATION  OF  SUITS,  APPEALS  AND  APPLICATIONS.    77 

(2-n)     In  Banner  v.  Berridge/1)  the  second  mortgagee   First  mortgagee 
of  a  ship  claimed  an  account  against  the  first  mortgagee  Sort^eed8 
who  had  sold  the  vessel  upon  the  mortgagor  becoming  tte  statutor^ 
bankrupt.     Defendant  offered  to  pay  a  specific  amount.  £pr£e*£2*|£ 
The  action  having  been  commenced  more  than  six  years  tor  ***  BnrPXtm* 
after  the  sale,  the  defendant   pleaded  the  Statute  of 
Limitations.     The  plaintiff  set  up  au   express  trust  as  a 
bar  to  the   Statute.     It  was   held    that  there   was   no 
express  trust ;  tbat  in  case  of  an  ascertained  surplus  the 
first  mortgagee  might  be  constructively  a  trustee  of  the 
surplus,  but  after  six  years,  evidence  could  not  be  adduced 
to  prove  a  surplus. 

(2-0)     Iu  Seagram  v.  Tuck/*)  it  was  held,  that  money    A  receiver 
not  accounted  for  and  due  from  a  receiver  under  the  court  is  a  trustee. 
is,  by  his  recognizance  made  a  debt  of  record,  although  the 
balance  due  has  not  been  ascertained.     The  receiver  is  a 
trustee  of  such  money  for  the  persons  entitled  thereto, 
and  cannot,  as  against  them,  avail  himself  of  the  Statute  of 
Limitations,  although  his  final  accounts  have  been  passed 
and    the    recognizances  vacated.     Kay,  J.,   observes  "  I 
should  be  strongly  inclined  to   hold  that    as    to    any 
money  due  from  a  receiver  and  not  brought  into  account, 
either  through  mistake  or  through  fraud,  he  would  be  a 
trustee  for  the  persons  entitled  to  that  money.     It  is 
important  to  hold  the  position  of  a  receiver  to  be  one  in 
which  liability  to  account  would  not  easily  be  barred,  and 
so  long  as  he  was  living  he  must  be  held  to  have  been  a  so  long  as  he 
trustee  of  the  money.     Therefore,  in  whichever  way  it  is  trustee  of  the 
taken,  whether  the  debt  is  held  to  be  of  record  or  to  be  into  his  hands. 
due  on  a  trust  either  would  be  an  answer  to  the  defence 
of  the  Statute  of  Limitations. 

(2-p)     "  It  seems  clear  from  all  the  cases  that  have  where  the  trus- 
been  decided  on  this  subject,  that  the  only  ground  on  <»«*»•  *««  tmat 
which  cestui*  que  trustent  are  allowed  a  direct  remedy 
against  a  person  who  is  under  a  legal  obligation  to  pay  a 
trust  fund  is  either  that  he  is  a  party  to  the  trust,  or  privy 
to  a  breach  of  trust.     Therefore,  where  neither  of  these 


is  also  barred. 


(1)  L.  B.,  Ch.,  18  p.  264.   |    (2)  L.  R.,  Ch.,  P.  18  p.  296. 


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78    PART  II. — LIMITATION  OP  SUITS,  APPEALS  AND  APPLICATIONS.  [BBC.  11 

grounds  exist,  their  only  remedy  against  each  person  is 
by  action  brought  in  the  name  of  the  trustees  ;  and  when 
the  right  of  the  trustees  to  bring  such  an  action  is  barred 
by  the  Statute,  the  cestui*  que  tnwtent  are  necessarily  en- 
tirely without  remedy  against  him,  whatever  their  remedy 
against  the  trustees  themselves  may  be."  (Darby  and 
Bosanquet  p.  186.) 

suite  on  foreign      11,     Suits    instituted   in   British  India  on 

contract*. 

contracts  entered  into  in  a  foreign  country  are 
subject  to  the  rules  prescribed  by  this  Act, 
Foreign  limit*.      No  foreign  rule  of  limitation  shall  be  a  de- 

tionlaw.  & 

fence  to  a  suit  instituted  in  British  India  on 

a  contract  entered  into   in  a  foreign  country, 

unless  the  rule  has  extinguished  the  contract, 

and  the  parties  were  domiciled  in  such  country 

during  the  period  prescribed  by  such  rule. 

This  section  re-       (a)     This   section  refers  to  suits  instituted  only  on 

contracts  only    contracts  entered  into  in  a  foreign  country  and  is  silent 

to  suits  for  pro-  as  to  suits  regarding  property  or  for  enforcement  of  rights 

of  other  kinds,    of  other  kinds.     The  second   clause   saves   prescription 

acquired  under  the  foreign  rule  of  limitation. 

in  matters  of  (b)     Their  LordshipB  of  the  Privy  Council  in  Lopez  v. 

aliens  and  liege  Burslew/1)  have  observed,  that  in  matters  of  procedure, 

bound  by^the     all  mankind,  whether  aliens  or  liege  subjects,  are  bound 

forum.  by  tbe  law  of  the  forum.     The  reasons  of  the  rule  as  given 

by  Story  in  his  Conflict  of  Laws  are,    "  Courts  of  law  are 

maintained  by  every  nation  for  its  own  convenience  and 

benefit,  and  the  nature  of  the  remedies  and  the  time  and 

manner  of  the  proceedings  are  regulated  by  its  own  views 

of  justice  and  propriety,  and  fashioned  by  its  own  wants 

and  customs/1     "  It  is  not  obliged  to  depart  from  its  own 

notions  of  judical  order  from  mere  comity  to  any  foreign 

nation".    (Story  on  the  Conflict  of  Laws,  section  581). 

Law  of  limita-         (c)     They  observe  in  H.  H.  Ruckmaboyee  v.  Lulloo- 

latingtopro-      bhoy.W     "  In  truth,  it  has  become  almost  an  axiom   in 

oedure  having 

reference  to  the 

l**  fo*.  (1)  4  Moo.  P.  0.  C,  300.      |      (2)  5  Moore,  L  A.  206. 


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SEC.  11]  PAET  II. — LIMITATION  OP  SUITS,  APPEALS  AND  APPLICATIONS.    79 

jurisprudence,  that  a  law  of  prescription,  or  law  of  limi- 
tation, which  is  meant  by  that  denomination,  is  a  law 
relating  to  procedure  having  reference  only  to  the  lex 
fori."  This  axiom  will  apply  in  its  integrity  only  when 
the  law  of  limitation  affects  the  remedy,  but  does  not  ex- 
tinguish the  right.  The  above  Privy  Council  case  was 
tried  in  the  late  Supreme  Court  of  Bombay  when  the 
English  Statute  of  Limitations  was  in  force  in  the  Presi- 
dency towns.  It  was  held  that  the  Statute  applied  to 
Hindus  and  Mahomedans,  although  the  charter  provided 
that  all  suits  between  them  should  be  determined  by  their 
respective  laws  and  usages  or  by  such  laws  and  usages  that 
a  Native  Court  would  adopt  if  it  happened  to  try  the  suit. 
In  Don  v.  Lippmann/1)  action  was  brought  in  Scotland 
upon  bills  which  were  drawn  and  accepted,  and  became 
due  in  France,  but  the  acceptor,  a  Scotchman,  before  such 
bills  became  due,  returned  to  Scotland,  and  there  con- 
tinued till  his  death.  It  was  held  that  the  law  of  a 
country,  where  a  contract  is  to  be  enforced,  must  govern 
the  enforcement  of  such  contract,  and  that  more  than  six 
years  having  elapsed  between  the  time  of  the  bills  becom- 
ing due  and  the  action  being  brought,  the  Scotch  Law  of 
prescription  applied,  and  that  its  effect  was  not  prevented 
by  the  fact  that  the' payee  had  taken  legal  proceedings  in 
France  during  the  absence  of  the  debtor,  and  had  obtained 
judgment  against  him. 

(d)     Huber  v.  Steiner<2>  was  a  suit  in  England  upon   Defendant's 

.  i     •     -n  *  ,*  •    7.         plea  of  foreign 

a  promissory-note  made  in  France,  where  the  prescription  rule  of  umita- 

-       t       *       x/       •     -n      i       -i       m.  -x  j-       tion  which  does 

is  shorter  than  m  England.     The  suit  was  commenced  in  not  extinguish 

riffhC    was  held 

England  after  the  expiration  of  the  French  prescription,  but  a  bad  plea. 
within  six  years.  The  defendants  pleaded  the  French  pre- 
scription. The  question,  was  whether  it  was  a  good  plea. 
The  rule  being  that  the  Statute  of  Limitation  of  a  parti- 
cular country  barring  the  remedy  and  extinguishing  the 
right  may  be  set  up  in  any  other  country  to  which  the 
parties  remove,  by   way  of  extinguishment,   the  court, 

(1)  Tudor*  a  Leading  Gases  on  Mercantile  Law,  288. 

(2)  Smitk's  Loading  Cases,  vol.  I,  p.  658. 


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80   PART  II. — LIMITATION  OF  SUITS,  APPEALS  AND  APPLICATIONS.   [8EC.  11 

upon  examination  of  the  French  law  of  prescription, 
thought  that  its  effect  was  not  to  extinguish  the  right,  but, 
as  in  England  only  to  bar  the  remedy,  and  held  therefore 
that  the  defendant's  plea  was  a  bad  one. 
if  foreign  law  (6)  In  Phillips  v.  EyreG>  Willes  J.,  observed,  "  As  to 
the  riRht,  it  is  &  foreign  laws  affecting  the  liability  of   parties  in  respect 

bar  to  an  action       .    _°  x  "  .        ,  .         ,  x,     .    .-    A, 

as  if  the  extin-   of   by -gone    transactions,    the  law   is  clear,  that  if   the 

Been  by  a  re-    foreign  law  touches  only  the  remedy  or  procedure  for 
lease   of  the  .    °.         xl  ,  ,.      x.  .      A,  *  ,. 

£arty  or  the      enforcing  the  obligations,  as  m  the  case  of  an  ordinary 
w  of  the  court    _,  *     _  .     .       ?  ,    ,         .  ,  . 

in  which  the ac-   Statute  of  Limitations,  such  law  is  no  bar  to  an  action  in 

tion  is  brought. 

this  country,  but  if  the  foreign  law  extinguishes  the  right, 
it  is  a  bar  in  ibis  country  equally  as  if  the  extinguishment 
had  been  by  a  release  of  the  party  or  an  act  of  our  own 
legislature.  This  distinction  is  well  illustrated  on  the  one 
hand  by  Huber  v.  Steine/*)  "  "  and  on  the  other  hand  by 
Potter  v.  Brown.M(8)  In  Ellis  v.  M'Henry,<*)  Boville,  C.  J., 
observes,  "  In  the  first  place,  there  is  no  doubt  that  a  debt 
or  liability  arising  in  auy  country  may  be  discharged  by 
the  laws  of  that  country,  and  that  such  a  discharge,  if  it 
extinguishes  the  debt  or  liability,  and  does  not  merely 
interfere  with  the  remedies  or-  course  of  procedure  to 
enforce  it,  will  be  an  effectual  answer  to  the  claim,  not 
only  in  the  courts  of  that  country,  but  in  every  other 
country.  This  is  the  law  of  England  ;  and  is  a  principle 
of  private  international  law  adopted  in  other  countries." 
The  authority  (f)     "  But  although  Statutes  of  Limitation  or  prescrip- 

on  this  point,  tion  of  the  place  where  the  suit  is  brought  may  thus 
properly  be  held  to  govern  the  rights  of  parties  in  such 
suit,  or,  as  the  proposition  is  commonly  stated,  the  re- 
covery must  be  sought  and  the  remedy  pursued  within 
the  times  prescribed  by  the  lex  fori,  without  regard  to  the 
lex  loci  contractus,  or  the  origin  or  merits  of  the  cause ; 
yet  there  is  a  distinction  which  deserves  consideration, 
and  which  has  been  often  propounded.  It  is  this.  Suppose 
the  Statutes  of  Limitation  or  prescription  of  a  particular 
country  do  not  only  extinguish  the  right  of  action,  but 

(1)  40  L.  J.  Q.  B.,  28.  I      (3)  6  Bast,  124. 

(2)  2  Beng.  N.  C,  202.       |      (4)  40  L\  J.  G.  p.  114. 

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8BC.  11]  PABrtl. — LIMITATION  OP  SUITS,  APPEAL8  AND  APPLICATIONS.    81 

the  claim  or  title  itself,  ipso  facto,  and  declare  it  a  nullity 
after  the  lapse  of  the  prescribed  period,  and  the  parties 
are  resident  within  the  jurisdiction  during  the  whole  of 
that  period,  so  that  it  has  actually  and  fully  operated 
upon  the  case ;  under  such  circumstances,  the  question 
might  properly  arise,  whether  such  statutes  of  limitation 
or  prescription  may  not  afterwards  be  set  up  in  any  other 
country  to  which  the  parties  may  remove,  by  way  of  ex- 
tinguishment or  transfer  of  the  claim  or  title.  This  is  a 
point  which  does  not  seem  to  have  received  as  much  con- 
sideration in  the  decisions  of  the  common  law  as  it  would 
seem  to  require.  That  there  are  countries  in  which  such 
regulations  do  exist  is  unquestionable.  There  are  States 
which  have  declared  that  all  right  to  debts  due  more 
than  a  prescribed  term  of  years  shall  be  deemed  extin- 
guished ;  and  that  all  titles  to  real  and  personal  property 
not  pursued  within  the  prescribed  time  shall  be  deemed 
for  ever  fixed  in  the  adverse  possessor.  Suppose,  for  in- 
stance, (as  has  occurred)  personal  property  is  adversely 
held  in  a  State  for  a  period  beyond  that  prescribed  by  the 
laws  of  that  State,  and  after  that  period  has  elapsed  the 
possessor  should  remove  into  another  State  which  has  a 
longer  period  of  prescription,  or  is  without  any  prescrip- 
tion ;  could  the  original  owner  assert  a  title  there  against 
the  possessor,  whose  title  by  the  local  law  and  the  lapse  of 
time  had  become  final  and  conclusive  before  the  removal  ? 
It  has  certainly  been  thought  that,  in  such  a  case,  the 
title  of  the  possessor  cannot  be  impugned.  If  it  cannot, 
the  next  inquiry  is,  whether  the  bar  of  a  statute  extin- 
guishment of  a  debt,  lege  loci,  ought  not  equally  to  be 
held  a  peremptory  exception  in  every  other  country. 
This  subject  may  be  deemed  by  some  persons  still  open 
for  future  discussion.  It  has  however  the  direct  authority 
of  the  Supreme  Court  of  the  United  States  in  its  favour ; 
and  its  correctness  has  been  recently  recognised  by  the 
Court  of  Common  Pleas  in  England.  In  the  American 
Courts  other  than  the  Supreme  Court  it  does  not  seem 
hitherto  to  have  obtained  any  direct  approval  or  recog- 
nition. But  in  all  the  cases  in  which  the  question  might 
11 


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82   PART  II.— LIMITATION  OP  SUITS,  APPEALS  AND  APPLICJ<PPNS.   [SEC.  11 

have  been  incidentally  discussed  in  these  courts,  the  sta- 
tutes under  consideration  did  not  purport  to  extinguish  the 
right,  but  merely  the  remedy."     (Story  on  the  Conflict  of 
Laws,  sec  582). 
Obligor  of  a  (g)     In  the  British  Linen  Company  v.  Drummond/D 

in  one  country  (10  B.  &  C,  903)  plaintiff  sued  in  England  upon  a  contract 
another  can  made  in  Scotland.  The  defendant  pleaded  the  Statute 
the  shorter  limi-  21,  James  1,  C.  16,  which  prescribed  a  shorter  period, 
latter.  It  was  held  that  the  plea  was  a  good  one  though  the 

contract  might  in  Scotland  have  been  put  in  suit  at  any 
time  within  forty  years.  "  The  rule,"  said  Tindel,  C.  J., 
delivering  judgment  in  the  case  of  Trimbey  v.  Vignier, 
(1  Bing,  N.  C,  151)  "  which  applies  to  the  case  of  con- 
tracts made  in  one  country,  and  put  in  suit  in  the  courts 
of  law  of  another  country,  appears  to  be  this,  that  the 
interpretation  of  the  contract  must  be  governed  by  the 
law  of  the  country  where  the  contract  was  made :  the 
mode  of  suing,  and  the  time  within  which  the  action  must 
be  brought,  must  be  governed  by  the  law  of  the  country 
where  the  action  is  brought.,, 
Case  where  (h.)     The  Alliance  Bank  of  Simla  v.  Carey*2)  was  a 

held  entitled  to  suit  brought  in  England  on  a  bond  to  secure  re-payment 
limitation  to  a  of  14,000  Rupees  and  interest  executed  in  India  in  1871. 
England  on  a™  The  defendant  pleaded  that  the  debt  was  barred,  as  more 
in  India.  than  three  years  had  elapsed  since  payment  of  instalments 

or  interest.  Specialty  debts  in  India  have  no  higher 
legal  value  nor  greater  efficacy  than  simple  contract 
debts ;  and  the  same  period  of  limitation,  viz.,  three  years, 
bars  the  remedy  for  both,  but  it  was  held  by  Lopez,  J., 
that  where  an  action  on  a  bond  executed  in  India  is 
brought  in  England,  the  bond  cannot  be  treated  as  a 
simple  contract ;  and  therefore,  as  the  English  Statutes 
of  Limitation  apply,  the  remedy  is  not  barred  until  after 
the  lapse  of  the  period  of  twenty  years  prescribed  by  3 
and  4,  Wm.  4,  c  42,  S  3,  as  the  limitation  for  actions  on 
contracts  under  seal.    The  Judge  observes,  "  if  this  action 

(1)  Smith's  Leading  Cases,  vol.  1,  p.p.  667.  668. 

(2)  L.  R.,  6  C.  P.  D.,  429. 


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SEC.  11]  PART  II. — LIMITATION  OP  8I7IT8,  APPEALS  AND  APPLICATIONS.    83 

had  been  brought  upon  this  bond  in  India,  the  plea  of  the 
Statute  of  Limitations  as  pleaded  would  have  been  a  good 
answer."  "  The  question  is  one  of  procedure,  and  as  such 
must  be  determined  by  the  law  of  the  country  where  the 
action  is  brought." 

(i)     "  In  the  case  of  the  legislature  of  the  United  King-   An  English  oer- 
dom  making  laws  which  will  be  binding  upon  her  Colonies   ruptcy  was  held 
and  dependencies,  a  discharge  either  in  the  Colony  or  in  the   to  &  debt  arising 
mother-country  may,  by  the  Imperial  Legislature,  be  made   sued  for  .in  the 
a  binding  discharge  in  both,  whether  the  debt  or  liability   there!"1* 
arose  in  one  or  the  other,  and  a  discharge  created  by  an 
Act  of  Parliament,  here  would  clearly  be  binding  upon  the 
courts  in  this  country,  which  would  be  bound  to  give  effect 
to  it  in   an   action  commenced  in   the  English  Courts. 
In  Edwards  v.  Bonald  (Knapp.  P.  C,  259)  it  was  decided 
that  an  English  certificate  in  bankruptcy  was  a  good  answer 
to  a  debt  arising  in  Calcutta  and  sued  for  in  the  Supreme 
Court  there.     In  Lynch  v.  M'Kenny  (2  H.  Black,  554,) 
a  defendant  who  was  sued  in  England  for  a  debt  contracted 
in  Ireland  was  considered  as  discharged  by  an  English  cer- 
tificate.   In  the  Royal  Bank  of  Scotland  v.   Cuthbert, 
(Hose,  462,  486)  it  was  held  by  the  Court  of  Session  that 
an  English  certificate  was  a  bar  in  the  Scotch  Courts  to  a 
debt  contracted  in  Scotland.    And  in  Sidaway  v.  Hay, 
(3  B.  &  C,  12)  a  discharge  under  a  Scotch  sequestration 
in  pursuance  of  an  Act  of  the  Imperial  Parliament,  was 
held  to  be  a  good   answer  to  an  action  in  the   Eng- 
lish Courts  for  a  debt  contracted  in  England.    Ellis  v. 
McHenry."<i> 

(1)  40  L.  J.,  C.  P.,  p.  114. 


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84  PART  III. — COMPUTATION  OP  PERIOD  OP  LIMITATION.       [SBC.  12 


PART   III. 

COMPUTATION  OP  PERIOD  OP  LIMITATION. 
Excision  of         12.  In  computing  the  period  of   limitation 

day  on  which  r  o  r 

right  to  sue  ac-  prescribed  f  or  any  suit,  appeal  or  application,  the 
day  from  which  such  period  is  to  be  reckoned 
shall  be  excluded. 

Exclusion  in         In  computing  the  period  of  limitation  pre- 

case  of  appeals  x  °  *  * 

putatfo^11  ap"  scribed  for  an  appeal,  an  application  for  leave  to 
appeal  as  a  pauper,  and  an  application  for  a 
review  of  judgment,  the  day  on  which  the  judg- 
ment complained  of  was  pronounced,  and  the 
time  requisite  for  obtaining  a  copy  of  the  decree, 
sentence  or  order  appealed  against  or  sought  to 
be  reviewed,  shall  be  excluded. 

Where  a  decree  is  appealed  against  or  sought 
to  be  reviewed,  the  time  requisite  for  obtaining 
a  copy  of  the  judgment  on  which  it  is  founded 
shall  also  be  excluded. 

In   computing  the  period  of  limitation  pre- 
scribed for  an  application  to  set  aside  an  award, 
the  time  requisite  for  obtaining  a  copy  of  the 
award  shall  be  excluded. 
The  words  "ap-       (a)     The  words  "  appeal  or  application"  in  this  section 
cation"  were"    had  not  been  included  in  the  corresponding  section  13  of 
section  13  of  Act  Act  IX  of  1871,  and  consequently,  in  Dhonessnr  Kooer  v. 
Boy  G-ooder  Sahoy/1)  an  application  for  execution  made  on 
the  8th  January,  1875,  the  last   preceding  application 
haying  been  made  on  the  8th  January,  1872,  was  rejected 
by  the  Lower  Court  as  barred  on  the  ground  that  the  day 

(1)  I.  L.  R.,  2  Calc,  886. 


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SEC.  12]       PART  HI. — COMPUTATION  OP  PERIOD  OF  LIMITATION.  86 

from  which  the  period  was  to  be  reckoned  could  not  be 
excluded.  Garth,  G.  J.,  reversing  the  decision  of  the 
Lower  Court  held,  that  it  was  obviously  the  intention 
of  the  legislature  to  give  the  decree-holder  three  years, 
and  not  less,  from  the  time  of  his  former  application,  and 
that  the  only  way  of  carrying  out  that  intention  is  by  stui  the  day 

i    j-        it     j  *.-   i_^i_     *  i.     x.  upon  which  tne 

excluding  the  day  upon  which  the  former  application  was  former  appiica- 
made.  With  reference  to  these  remarks,  probably  the  wa  sexciuded. 
words  "appeal  or  application"  have  been  inserted  in 
section  12  of  Act  XV  of  1877.  The  above  decision  was 
followed  in  V.  K.  Gujar  v.  V.  D.  Barve,^)  in  which  West, 
J.,  observes,  "  it  is  now  a  received  principle  that  when  a 
certain  number  of  days  are  allowed  for  doing  any  act, 
the  whole  of  the  day  to  which  the  computation  reaches 
is  available  to  the  person  thus  limited." 

(b)     In  calculating  the  period  allowed  by  the  Indian  The  time  that  a 
Limitation  Act,  1877,  for  presenting  an  appeal,  the  time  pending  can 

,      .  ,  .         '  \-     jf      *  •  m    •    \  j.   -      not  be  excluded 

during  which  an  application  for  review  of  judgment  is  as  a  matter  of 

right  in  calcu- 

pending  cannot  be  excluded  as  a  matter  of  right.     But,   lating  time  for 
if  an  application  for  review  has  been  presented  with  due 
diligence,  and  admitted,  and  there  was  a  reasonable  pros- 
pect that  the  petitioner  would  obtain  by  the  review  all  he 
could  obtain  by  appeal,  the  court  would  be  justified  in 
admitting  an   appeal   presented  out  of  time.     Where  a 
District  Court  admitted  an  appeal  presented  out  of  time 
on  the  ground  that  the  appellant,  having  filed  an  appli-  Such  time  ex- 
cation  for  review  within  the  time  allowed  for  an  appeal,  triot  Judge  was 
was  entitled  to  exclude  the  time  occupied  in  prosecuting  with  by  H.  o. 
the  review,  it  was  held  that  the  High  Court  could  not 
interfere  on  revision.    Vasudeva  v.  Chinnasami.(2)     In  the 
petition  of  Brojendro  Coomar  Roy<8>  it  was  held  that  in 
computing  the  period  within  which  an  appeal  may  be 
preferred,  the  time  during  which   an    application   for 
review  was  pending  is  to  be  excluded.    When  an  appli-  in  the  case  of 
cation  to  review  a  judgment  is  rejected   by  the  High  Sme  runs  from 
Court,  the  six  months  allowed  for  appeal  to  Her  Majesty  ment°andUnot 


of  review  peti- 

(1)  I.  L.  B.,  2  Bom.,  678.    |    (2)  I.  L.  B.,  7  Mad.,  684.  tion* 

(8)  B.  L.  B.,  Sup.,  728. 


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86  PART  III.— COMPUTATION  OP  PERIOD  OP  LIMITATION.       [8EC.  12 

in  Council  runs  from  the  date  of  the  judgment,  and  not 

from  that  of  the  order  rejecting  the  review.     Sondaminee 

Dossee  v.  Maharaja  Dheraj  Mahatab  Ghand  Bahadoor.W 

p.  b.  (c)     In  Bani  Madhnb  Mitter  v.  Matungini  Dassi,(*>  it 

C.  H.  held  ap-        N    '  «. 

peiiant  entitled  was  held,  that  where  a  suitor  is  unable  to  obtain  a  copy  of 

to  exclude  time  # 

between  deli-     a  decree  from  which  he  desires  to  appeal,  by  reason  of  the 

very  of  judg-  rr  * 

ment  and  dgn-  decree  being  unsigned,  he  is  entitled  under  section  12 
(May  1886.)        of  the  Limitation  Act  to   deduct  the  time  between  the 
delivery  of  the  judgment  and  that  of  the  signing  of  the 
decree  in  computing  the  time  taken  in  presenting  his 
appeal.     In  this  case  judgment  was  pronounced  on  the 
17th  July,  1883.     Decree  was  signed  on  the  23rd  July. 
Appellant  applied  for  copy  on  the  3rd  August,  and  obtain- 
ed it  on  the  11th.     It  was  held  that  the  fact  that  the 
decree  was  not   in  existence  until  the  23rd  July,  that  is, 
six  days  after  the  date  that  it  bears,  entitles  the  appellant 
to  deduct  those  six  days  in  addition  to  the  eight  days. 
Time  occupied        (d)     In  Gunga  Dass  Dey  t?.  Bamjoy  Dey,W  a  decree 
requisite  num-    was  passed  on  the  22nd  September,  and  application  for  a 
a  copy  cannot    copy  was  made  not  until  29th,  and  then  with  insufficient 

be  deducted  ex-         .  *■■-,«■  •  «^.<. 

cept  when  delay  folios,  and  the  court  was  closed  for  the  vacation  from  30th 
is  unavoidable. 

September  to  1st  November,  the  deficient  folios  being  filed 

on  the  day  it  re-opened,  2nd  November;  the  copy  was 

delivered  on  the  6th,  and  the  appeal  filed  on  the  14th,  and 

the  appellant  claimed  to  be  entitled  to  a  deduction  of  the 

time  occupied  in  ascertaining  what  the  requisite  number 

of  folios  was.    It  was  held,  that  the  appellant  was  not 

entitled  to  a  deduction  of  that  time  and  that  the  appeal 

was  out  of  time.    The  court  observe,  that  although  partieB 

should  not  be  allowed  to  extend  the  period  prescribed  for 

appeal  by  any  unnecessary  delay  in  putting  in  the  requi- 

Oan  be  deduct-  site  stamps,  it  would  be   grossly  unfair  to  disallow  the 

were  not  pro-    application  if  requisite  papers  were  not  procurable,  or  if  a 

curable  or  if  a        .,   .  j      •  i      i  *•        xi  r.         .    i_      . 

mistake  was      mistake  were  made  in  calculating  the  number  of  Bheets 

tftft/ift  in  oalcu-  .      _  ,    -  _ 

latingthe  num-  required,  and  that  each  case  must  be  decided  on  its  own 

ber  of  sheets  re-  T      ,-  .  ..  _    ,_     .    ,, 

merits.    In  this  case  it  was  argued  that  the  paper  was 

(1)  B.  L.  E.,  Sup.,  685.      |     (2)  I.  L.  R.,  18  Calo.,  104. 
(3)  I.  L.  R.,  12  Cab.,  80. 


oh  case  must 
be  decided  on  its 
own  merits. 


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SEC.  12]       PAET  m.— COMPUTATION  OF  PERIOD  OF  LIMITATION.  87 

not  procurable  on  the  29th  September,  and  that  it  was  put 
in  on  the  next  court  day,  2nd  November.  The  High  Court 
observe:  "These  facts,  however,  would  be  before  the 
Judge,  who  was  in  a  better  position  than  this  court  can 
be,  to  say  whether  the  omission  to  file  the  paper  on  Sep- 
tember 29th  was  unavoidable  or  intentional.  The  con- 
tention before  the  Judge  apparently  was,  not  that  the 
paper  could  not  be  procured,  but  that  the  appellant  was 
entitled  to  a  deduction  of  the  time  requisite  for  ascertain- 
ing the  number  of  folios  required." 

(e)  In  Barney  v.  Broughton,*1)  plaintiff,  wishing  to  Appeal  rejected 
appeal  from  a  decision  passed  against  him  on  the  original  of  time  as  plain- 
side  of  the  High  Court,  dated  16th  August,  1883,  pre-  count  for  delay. 
sented,  for  filing,  his  memorandum  of  appeal  to  the  Regis- 
trar on  the  5th  September,  1883,  but  by  reason  of  the 
decree  not  having  been  signed  on  that  date  no  copy  of 
the  decree  was  presented  therewith.  The  Registrar 
refused  to  accept  the  appeal.  On  the  6th  September, 
the  decree  was  signed,  and  on  the  7th  an  office  copy  was 
obtained  by  the  defendant's  attorney,  who,  on  the  8th 
September,  served  a  copy  at  the  office  of  the  plaintiff's 
attorney.  On  the  12th  September,  the  plaintiff  applied 
for  an  office  copy,  which  he  obtained  on  the  13th,  and  on 
the  15th  tendered  such  copy  and  his  memorandum  of 
appeal  to  the  Registrar.  The  Registrar  refused  to  accept 
the  appeal  unless  under  an  order  of  court,  it  being  in 
his  opinion  out  of  time.  On  the  6th  December,  1883,  a 
Judge  sitting  on  the  original  side  admitted  the  appeal. 
The  appeal  subsequently  came  on  for  hearing,  when  the 
defendant  contended  that  the  appeal  was  barred,  it  not 
having  been  filed  within  twenty  days  from  the  date  of 
the  decree.  The  court  held  that  the  appeal  was  barred. 
It  was  held  upon  a  review,  that  the  plaintiff  having 
allowed  five  days  to  expire  after  the  decree  was  signed 
before  applying  for  a  copy,  and  not  having  filed  his  appeal 
after  so  obtaining  a  copy  at  the  earliest  opportunity 
possible,  such  a  delay,  being  entirely  unaccounted   for, 


(1)  I.  L.  E.,  10  Calo.,  652. 


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88  PART  III. — COMPUTATION  OP  PERIOD  OP  LIMITATION.       [81C.  12 

could  not  be  held  to  'be  "  time  requisite  for  obtaining  a 
copy  of  the  decree,"  and  that,  therefore,  the  appeal  was 
out  of  time. 
This  section  (f)     Jawahir  Lai  v.  Narain  Das*1)  was  an  application 

held  not  to  sp-         x   '  .  .  rr 

ply  to  Privy      for  leave  to  appeal  to  the  Privy  Council  from  a  decree  of 
peSs?    ap*       the  High  Court  dated  20th  August,  1877.     The  applica- 
tion was  preferred  on    the  27th  February,  1878,   or   7 
days  after  the  time.     It  was  contended  that,  under  this 
section,  the  seven  days*  time  required  for  obtaining  a  copy 
of  the  judgment  should   be  excluded.     It  was  held  by 
Stuart,  C.  J.,  that  this  section  does  not  apply  to  Privy 
Council  appeals,  and  that  chapter  45  of  the  Code  of  Civil 
Procedure  contained  no  express  provision  requiring  a  copy 
of  judgment  appealed  against. 
Appeal  under         (g)     In  Fazal  Muhammad  v.  Phulkuar,(2)  it  was  held 
Letters  Patent    that  in  calculating  the  period  of  limitation  prescribed  for 

!iuire  copy  of    an  appeal  under  clause  10  of  the  Letters  Patent,  the  time 
udgment.  and  .  .  - 

ime  requisite      requisite  for  obtaining  a  copy  of  the  judgment  cannot  be 

for  copy  cannot     _    * 

be  deducted.        deducted. 

Time  in  obtain-       (h.)     In  the  matter  of  Jhabhu  Singh/8)  certain  accused 

judgment  ex-      persons  were  convicted,  on  the  29th  February,  1884,  and 

eluded  in  allow-  ,,,.„,  ,.      . .         -  *  ^       .    j  r 

tag  a  Criminal  made  their  first  application  for  a  copy  of  the  judgment 
on  the  25th  March,  tendering  stamped  paper  for  such 
copy  on  the  26th  and  29th  March.     The  copy  was  pre- 
pared on  the  30th,  and  the  prisoners,  who  had  been  admit- 
ted to  bail  on  the  5th  March,  presented  their  appeal  on 
the  7th  April,  1884,  which  was  rejected  as  being  out  of 
time.    It  was  held  that  the  appeal  ought  to  have  been 
admitted. 
T»m«  taken  **       (i)     *n  Queen  Empress  v.  Lingaya/4)  it  was  held  that 
pjjaogw's  ap-     in  computing  the  period  of  limitation  prescribed  for  an 
copy  and  trans-  appeal  from  a  sentence  of  a  Criminal  Court  by  Article  154 

mittimr  copy  to 

the  jaS  exclud-  of  schedule  II  of  the  Indian  Limitation  Act,  1877,  the 
ecU  . 

time  taken  in  forwarding  an  application  by  a  prisoner  for 

a  copy  of  the  judgment  and  in  transmitting  the  same 

from  the  court  to  the  jail  must  be  excluded,  and  that  in 

(1)  I.  L.  B.,  1  All.,  644.    I    (3)  I.  L.  B.,  10  Calc,  642. 

(2)  I.  L.  B.,  2  All.,  192.    |    (4)  I.  L.  R.,  9  Mad.,  258. 


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8J5C.  13]       PAET  m. — COMPUTATION  OP  PEBIOD  OP  LIMITATION.  89 

the  case  of  such  appeals,  presentation  of  the  petition  of  Presenting  to 

appeal  to  the  officer  in  charge  of  the  jail   is,   for  the  charge  of  the 

purpose  of  the  Limitation  Act,  equivalent  to  presentation  ing  to  the  court. 
to  the  court. 

13.     In  computing  the  period  of  limitation  Exclusion  of 

r  o  r  time  0f  defen- 

prescribed  for  any  suit,  the  time  during  which  ^VSH?1* 
the   defendant  has  been  absent  from  British 
India  shall  be  excluded. 

It  is  to  be  observed  that  the  concluding  words  of  the 
corresponding  section  in  the  Act  of  1871,  limiting  the 
application  of  the  section  to  cases  where  the  defendant 
cannot,  during  his  absence,  be  served  with  summons, 
have  been  omitted  in  this  Act  of  1877. 

(a)     In  Venkatasubha  Paitar  v.  Giri  Animal/1)  it  was   Plaintiff's  vo- 
luntary or  invo» 
held  in  June,  1864,  that  the  plaintiff's  voluntary  absence  in  luntwrv  absence 

a  foreign    country  after  he  had  attained  his   majority  prevent  opera- 

•  tion   of  limita* 

could  not  bar  the  operation  of  the  Act.     In  Domun  t?.  tion. 
Sudunkolah,(2>  Peacock,  C.  J.,  observes  there  is  no  excep- 
tion in  the  Limitation  Act  with  regard  to  plaintiffs  who 
are  beyond  seas,  whether  voluntarily  or  involuntarily,  in 
consequence  of  transportation. 

(I))     Defendant's  mere  entry  within  the  British  juris-  Defendant's  re- 
diction  for  a  temporary  purpose,  such  as  by  touching  in  porary  purpose 
a  vessel  at  Bombay,  may  not  be  a  sufficient  termination  natenisab- 
of  his  absence  from  British  India  (Banning,  87.)     If  a 
defendant,  who  is  beyond  seas  when  the  cause  of  action  plaintiff's  i*no- 
arises,  returns  to  England  for  ever  so  short  a  time,  even  ant's  return  will 
without  the  plaintiffs  knowledge,  the  time  begins  to  run.  tion. 
Gregory  v.  HurrellW. 

(c)  In    Mahomed   Mnseeh-ood-deen   v.    Museeh-ood-  ignorance  of 
deen/4)  it  was  held,  that  ignorance  of  defendant's  residence  sidencedoes  not 

suspend  limit** 

does  not  fall  within  any  of  the  provisions  of  the  Limitation  tion. 
Act  extending  the  periods  of  limitation  prescribed  by  that 
Act. 

(d)  Suit  and  application  in  this  Act  are  separately  This  section 

does  not  apply 
to   applications 

2  Mad,  H.  C,  113.       I      (S)  S  B.AC..M1.  for  execution. 

"  B.  L.  B,  S.  N.,  25.    I      (4)  2  N.-W.  P.,  H.  C.  R,  173. 


(1)2 
(2)  1 


12 

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90  PART  III.— COMPUTATION  OF  PERIOD  OT  LIMITATION.      [SBC.  13 

treated  as  would  appear  from  clause  §,  section  4,  and 
consequently  the  word  "  suit"  in  this  section  does  not  mean 
and  include  an  application  for  execution.  Section  3  of  the 
Act  defines  that  the  word  "  suit"  does  not  include  an  appeal 
or  application.  The  word  "suit,"  in  section  15  of  Act  IX 
of  1871,  has  been  so  construed  by  a  Full  Bench  in  Jivan 
Singh  v,.  Sarnam  Singh. &)  Ahsan  Khan  v.  Oanga  Ram.(2> 
?hte8Sitidefaf"       ^®)     This  section  is  in  no  way  affected  or  qualified  by 

danto  who  may   section  9,  and  the  intention  of  the  legislature  is  to  give 
be  absent.  m  . 

the  plaintiff  the  benefit  of  adding  to  the  prescribed  period 

the  time   during  which  the   defendant  may  have  been 

absent  after  the  accrual  of  the  cause  of  action,  otherwise  a 

debtor  by  leaving  India  immediately  after  his  debt  became 

payable,  could  deprive  his   creditor  of  his  legal   remedy 

by  staying  away  for  three  years.     Although  the  Bombay 

High  Court,  in  a  suit  on  its  original  side,  first  held  that 

this  section  must  be  read  in  connection  with  section  9,  and 

Subsequent  ab-  that  consequently  defendant's  absence  subsequent  to  the 

senoe  of  a  de-  ,  .  ,         -,         >«• 

fendant  can  be  accrual  of  the  cause  of  action  cannot  avail  the  plaintiff, 
excluded. 

they  have,  in  a  subsequent  case,  overruled  it,  and  held  that 

subsequent  absence  of  a  defendant  can  be  excluded. 

No  provision  (f)    This  section  does  not  provide  for  the  case  of  several 

for  tbe  case  of 

joint  contrac-    defendants  one  of  whom  only  has  been  absent  from  British 

tors  of  whom  ' '  ,  ,-r^. , 

one  may  be  ab-  India  after  the   accrual  of  the  cause  of  action.     (Vide 
Notes,  L.  and  M.) 
<^H.  (g)    Harrington  v.  Gonesh  Roy  <3>  was  a  suit  governed  by 

does  not  apply  section  27,  Bengal  Act  VIII  of  1869,  and  instituted  on  the 

to  a  case  of  de-  '  °  ' 

fendant  navinp  25th  May,  1881,  against  Mr.  Crowdy,  who  was  the  manager 
tuted  agejt  in  and  mookhtar  of  the  defendant  in  charge  of  a  factory,  to 
(February  1884)  recover  land  said  to  have  been  forcibly  taken  away.  Mr. 
Crowdy,  on  the  14th  June,  represented  that  the  land  apper- 
tained to  the  factory  and  that  he  was  simply  the  manager 
of  the  proprietor  who  was  in  England.  The  plaintiff  when 
asked  whether  he  sued  Mr.  Crowdy  as  manager  or  as  pro- 
prietor, amended  the  plaint  on  the  16th  June,  by  putting 
in  the  place  of  the  defendant  *  E.  T.  Harrington,  pro- 
prietor, by  W.  S.  Crowdy.'    On  the  above  date,  more  than 

(1)  I.  L.  R.,  1  AIL,  97.  |     (2)  I.  L.  R.,  3  All.,  185. 

(3)  I.  L.  R.,  10  Caic,  440. 


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BBC.  13]       PAET  in.— COMPUTATION  OPPEBIOD  OP  LIMITATION.  91 

one  year  having  elapsed  from  the  date  of  dispossession, 

viz.,  10th  June,  1880,  it  was  held  that  the  suit  was  barred 

on  the  ground  that  this  section  does  not  apply  to  a  case 

when,  to  the  knowledge  of  the  plaintiff,  the  defendant,  in  this  case 

though  not  residing  in  British  India,  is  represented  by  a  agent  within 

duly  constituted  agent  and  mookhtar,  and  that,  if  the  knowledge. 

interpretation  of  the  section  be  otherwise,  there  would  be 

no  limitation  at  all  as  against  a  proprietor  in  England, 

although  suits  might  be  conducted  for  and  against  him, 

through  his  agent  in  this  country,  and  that  it  is  impossible 

to  believe  that  such  could  be  the  intention  of  the  law. 

(h.)     In  Narronji  Bhimji  v.   Mugnirum   Chandaji,*1)    B.  H.  held  in 
plaintiff  sued  for  money  due  on  an  adjusted  and  signed  that  defen. 
account  dated  13th  January,  1871.     The  period  of  limita-  from 'British* 
tion  began  to  run  from  the  date  of  the  account.     It  ap-  cause  of  action 
peared  from   the   evidence  that  the  defendant   was   in  Su^the  statute. 
Bombay  at  the  time  of  the  adjustment,  and  shortly  after-   (This  has  been 
wards  went  to  reside  out  of  British  India,  in  the  territories       **  ° 
of  his  Highness  the  Nizam.    The  plaintiff  relied  on  section 
13.     Bay  ley,  J.,  in  rejecting  the  suit  as  barred,  observes 
that  this  "  section  ought  to  be  read  in  connection  with 
section  9,  which  provides  that,  when  once  time  has  begun 
to  run,  no  subsequent  disability  or  inability  to  sue  stops 
it.     These  two   sections  adopt,  in   fact,  what  had  long 
before  been  the  law  of  limitation  in  England.     In  Doed 
Duroure  v.  Jones  (4  T.  R.  300)  it  was  held  by  the  King's 
Bench  in  1791,  that  'when  once  five  years,  allowed  to  an 
infant  to  make  an  entry  for  the  purpose  of  avoiding  a 
fine,  begin,  the  time  begins  to  run  notwithstanding  any 
subsequent  disability.'     In  Cotterell  v.  Dulton  (4,  Taunton, 
826)  which  was  a  real  action  upon  a  writ  of  formedon,  it 
was  held  that  the  demandant  was  barred  by  the  statute 
of  limitation  (21  Jac.,  I  C.  16).     Chambre,  J.,  said  :    '  The 
ten  years  do  not  run  at  all  while  there  is  a  continuance  of 
liabilities,  but  they  run  without  intermission  from  the 
time  that  the  disabilities  first  cease.'     (p.  830).  Gibbs,  J., 
said :     '  When  once  the  statute  begins  to  run,  nothing 
stops  it.'     In  Rhodes  v.  Smithurst,  (6  M.  &  W.  351)  de- 

(1)  I.  L.  B.,  6  Bom.,  103. 


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92  PART  III.— COMPUTATION  OF  PERIOD  OP  LIMITATION.       [SEC.  13 

cided  in  the  Exchequer  Chamber,  it  was  held  that  '  when 
time  has  once  begun  to  run,  no  subsequent  interruption  to 
the  (plaintiff's)  right  of  suing,  even  from  causes  beyond 
his  control,  will  stop  it.' 
a.  h.  dissenting       (i)     In  Beake  v.  Davis/1)  plaintiff  sued  in  May,  1882, 
decision  held,    to  recover  value  of  goods  sold  to  the  defendant  between 
Smce*1  oTa  ade-  November,  1878,  and  January,  1886.    The  plaintiff  claimed 
excluded.  exemption  from  limitation  on  the  ground  that  during  the 

greater  part  of  1880-81,  the  defendant  was  absent  from 
British  India.  Straight,  J.,  in  allowing  the  plaintiff's 
claim,  held  that  this  section  was  in  no  way  affected  or 
qualified  by  section  9,  and  that  its  obvious  scope  and  in- 
tention was  to  save  creditors,  subsequent  to  suing  their 
debtors,  the  period  during  which  debtors  have  been 
absent  from  British  India. 
B.  H.  followed       (j)    In  Hanmantram  Sadhuram  Pity  v.  Arthur  Bowles^ 

the  above  ruling         ^ '       ,.  A.  in  n.A 

of  a.  h.  dissent-  one  of   the  questions  was  whether  a  creditor  was  en- 

Ing  from  that  of 

it  own  and  held  titled  to  the  benefit  of  this  section,  if  the  debtor  after  the 
is  entitled  to  the  accrual  of  the  cause  of  action  absented  from  British  India. 
section  if  debt-  Bird  wood,  J,  on  the  original  side  of  the  High  Court,  follow- 
of' action,  ab-     ing  the  above  decision  of  the  Allahabad  High  Court,  held 

sents  from  Brit-  ...  . 

ish  India.  that  this  section  occurs  in  a  different  part  of  the  Act,  and 

that  its  provisions  appear  to  him  to  be  unrestricted  by 
section  9  and  to  be  distinctly  imperative.  His  Lord- 
ship further  observes,  that  if  it  were  otherwise,  a  debtor, 
by  leaving  India  immediately  after  his  debt  became  pay- 
able, could  deprive  his  creditor  of  his  legal  remedy  by 
merely  staying  away  for  three  years,  and  that  a  suit 
against  defendant  whose  residence  out  of  British  India  is 
known,  being  possible  as  would  appear  from  section  89  of 
the  Procedure  Code,  the  words  "  inability  to  sue"  in  sec- 
tion 9  of  the  Limitation  Act  seem  to  be  inapplicable  to 
a  plaintiff  in  reference  to  an  absent  person  against  whom 
he  has  a  right  of  action,  that  the  words  "  disability  or 
inability  to  sue"  in  section  9  when  read  with  the  im- 
mediate context  would  evidently  appear  to  refer  to  legal 
disabilities  of  plaintiff  such  as  minority,  insanity,  and 

(1)  L.  I.  R.,  4  A1J.,  531.      |      (2)  I.  L.  R.,  8  Bom.,  569. 

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SEC.  13]       PART  III.— COMPUTATION  OF  PERIOD  OF  LIMITATION. 


93 


idiotcy,  occurring  in  section  7,  or  in  other  words,  to  personal 
inability  affecting  the  plaintiff  himself  and  not  to  the 
circumstances  of  the  person  against  whom  he  is  entitled 
to  institute  a  suit,  and  that  this  section  seems  to  be  there- 
fore unrestricted  by  section  9  and  to  be  distinctly  imper- 
ative. 

(k)  In  Ahsan  Khan  v.  Ganga  Ram/1)  judgment- 
debtor  was  a  soldier  in  Her  Majesty's  Indian  Army,  and  at 
the  time  that  his  real  property  was  sold  for  the  decree 
debt  on  the  20th  November,  1879,  he  was  on  foreign  ser- 
vice with  his  regiment  at  Cabool.  On  the  30th  March, 
1880,  he  applied  to  the  court,  under  section  311  of  Act  X 
of  1877,  to  set  aside  the  sale  on  the  ground  of  irregularity ; 
it  was  held,  that  this  section  of  the  Limitation  Act  did 
not  apply  to  proceedings  in  execution  and  that  the  appli- 
cation was  barred  under  Article  166. 

(1)  The  rule  which  was  laid  down  by  the  Court  of  Ex- 
chequer in  the  case  of  King  v.  Hoare,  (13  M.  &  W.,  494, 
505),  and  subsequently  by  the  Exchequer  Chamber  in  the 
case  of  Brinsmead  v.  Harrison  (L.  R.,  7.  0.  P.,  547)  is  not 
a  rule  of  procedure  only,  but  of  principle, — viz.,  that  a 
judgment  obtained  against  one  or  more  of  several  joint 
contractors  or  joint  wrong-doers  operated  as  a  bar  to  a 
second  suit  against  any  of  the  others.  There  is  but  one 
cause  of  action  for  the  injured  party  in  the  case  of  either 
a  joint  contractor  or  a  joint  tort ;  and  that  cause  of  action 
is  exhausted  and  satisfied  by  a  judgment  being  obtained 
by  the  plaintiff  against  all  or  any  of  the  joint  contractors  or 
joint  wrong-doers  whom  he  chooses  to  sue.  If  a  plaintiff, 
under  such  circumstances,  were  allowed  to  sue  each  of  his 
co-debtors  or  wrong-doers  severally  in  different  suits,  he 
would  be  practically  changing  a  joint  into  a  several  lia- 
bility. This  rule  is  fully  explained  by  Baron  Parke,  in 
King  v.  Hoare  (13.  M.  &  W.,  494,  505),  and  by  Chief  Baron 
Kelly,  in  Brinsmead  v.  Harrison  (L.  R,  7.  C.  P.,  547).  It 
has  been  founded  on  strict  justice  and  public  convenience, 
and  it  has  been  acted  upon  in  the  case  of  Nuthoo  Lall 


Does  not  apply- 
to  the  case  of 
soldier  defen- 
dant absent  on 
service  at 
Cabool  when  bis 
property   was 
sold\   applying 
for  cancellation 
of  sale. 


In  the  case  of  9 
joint  contrac- 
tors One  absent 
from   British 
India,    creditor 
has  to  choose 
between  remedy 
against  an    in- 
solvent debtor 
and  having  his 
debt  barred. 


Rule  is  that  a 
judgment  ob- 
tained against 
one  of  several 
joint  contract- 
ors is  a  bar 
against  second 
suit  against  any 
of  the  others. 


The  above  rale 
is  founded  on 
strict  justice 
and  public  con- 
venience. 


(1)  I.  L.  R.,  3  All.,  186. 


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94  PART  III. — COMPUTATION  OP  PERIOD  OP  LIMITATION.       [SIC.  13 

Garth,  c.  J.  ob-  Chowdry  v.  Shoukee  Lall.W  Garth,  C.  J.,  observes,  "  It  is 
rule  leads  to     true  that  the  rule  upon  which  I  am  acting  may  possibly  lead 

hardship  when  .        ,  .  .  .  # 

one  of  several    to  some  hardship  in  cases  when  one  or  more  of  several 

ore  is  absent  be-  co-contractors  is  out  of  the  jurisdiction,  and  the  plaintiff,  if 

he  waits  for  his  return,  would  be  barred  by  the  Statute  of 

Limitation.     But  this  is  an  injustice  which  the  legisla- 

it  has  been  re-  ture,  if  they  so  pleased,  could  easily  remedy,  and  which 

medied  in  En- 

gland  by  sta-  has  been,  in  fact,  remedied  in  England  by  the  Statute  of 
19  and  20  Vict.,  c.  97,"  section  11,  which  directs  that 
the  period  of  limitation  as  to  joint-debtors  shall  run  not- 
withstanding that  some  are  beyond  seas,  but  expressly 
provides  that  the  creditor  sball  not  be  barred  as  against 
those  out  of  the  jurisdiction  by  judgment  recovered 
against  those  who  remain  within  it. 

The  effect  of  (ill)     The  above  observations  have  been  made  in  Hem- 

section  43  of  the        v***' 
Contract  Act  is    endro  Coomar  Mullick  v.  Bajendro  Lall/2)  in  which  it  was 

not  to  create  a  d 

joint  and  seve-    held  that  a  decree  obtained  against  one  of  several  joint 

ral  liability  in  o  j 

the  case  of  joint  makers  of  a  promissory -note  is   a  bar  to  a  subsequent 

contractors.  r  •*  ^ 

suit  against  others,  and  that  the  effect  of  section  43  of  the 
Contract  Act  is  not  to  create  a  joint  and  several  liability 
in  such  a  case. 
Uunder  the  (n)     Section  17,  clause  2,  relates  to  the  case  of  a  debtor 

Indian   Limita- 
tion Act  ere-     dying  before  the  accrual  of  the  creditor's  right  to  sue,  and 

elude  the  time  allows  the  creditor  to  compute  in  such  a  case  the  period 
death  of  a  of  limitation  from  the  time  that  there  is  a  legal  represen- 
seas  and  grant  tative  of  the  deceased  against  whom  he  may  institute  a 
tion.  suit ;  but  there  is  no  exemption  in  the  case  of  a  debtor 

dying  abroad  after  the  accrual  of  the  right  to  sue.  There- 
fore, if  a  debtor  absent  from  British  India  dies  during  the 
statutory  period  or  after  its  expiration,  the  creditor  who 
is  entitled  under  this  section  (13)  to  deduct  the  whole 
time  up  to  the  date  of  the  death  of  the  debtor,  would  not 
be  entitled  to  exclude  the  time  between  the  death  and  the 
time  that  there  is  a  legal  representative. 
Under  the  En-       (o)     "  If  a  person  liable  to  an  action  dies  beyond  seas, 

rfish  Limitation   -.       '  ..*  ....        _x_  _    ,.  /,     .  ,.     .* 

Act  he  can  de-  his  representatives  are  liable,  although  the  period  of  limi- 

duct  that  time. 

tation  has  elapsed  during  his  life,  and  time  runs  in  their 
(1)  10  B.  L.  R.,  800.       |    (2)  I.  L.  R.,  3  Calc,  368- 

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BBC.  14]       PART  ni. — COMPUTATION  OF  PERIOD  OP  LIMITATION.  95 

favour,  not  from  his  death,  bat  from  the  grant  of  adminis-  under  the  Eng. 

.  «  liflh  Limitation 

tration   or  the  time  when  the  executor  proves  or  acts  Act  he  can  de- 
before  proving.     If,  however,  at  the  time  of  the  death  the  time  that  legal 
executor  is  absent  beyond  the  seas,  time  will  not  run  till  £Pabsent  be? 
he  has  both  returned  home  aud  either  acted  in  England  yon  ***** 
or  proved  the  will."     "  In  the  case  of  a  person  liable  to  an 
action  remaining  abroad  from  the  time  when  the  cause  of 
action  accrues  until  his  death,  an  action,  no  doubt,  lies 
against  his  representatives,  although  the  six  years  may 
have  elapsed  in  his  lifetime,  and  time  will  not  begin  to 
run  till  letters  of  administration  are  taken  out,  or  the 
executor  has  proved  or  acted;   and  if  the  executor  be 
himself  abroad  at  the  time  of  the  death  of  the  testator, 
time  will  not  begin  to  run  till  the  executor  has  both 
returned  home,  and  either  acted  in  England  or  proved 
the  will."     (Flood  v.  Patterson,  29  Beav.,  295  ;  30  L.  J., 
Ch.  486)(D 

(p)     Section    8  of  the   General   Clauses  Act,   1868,  British  India. 
defines  "  British  India"   to  mean  the  territories  for  the 
time  being  vested  in  Her  Majesty,  by  the  Statute  21  &  22,  what  is  "Bri- 

°  J       J       J  tish  India"  and 

Vic,  Chap.  106  (an  Act  for  the  better  Government  of  what  are  places 

out  of  it? 

India)  other  than  the   Settlement  of   Prince  of  Wales' 
Island,  Singapore  and  Malacca. 

Chandernagore,  Pondioherry,  Goa,   Ceylon,  Cashmere, 
Cooch-Behar,  are  foreign  Countries. 

14.  In  computing  the  period  of  limitation  ^^^^L. 
prescribed  for  any  suit,  the  time  during  which  j^^S^t 
the  plaintiff  has  been  prosecuting  with  due  dili- 
gence another  civil  proceeding,  whether  in  a 
court  of  first  instance  or  in  a  court  of  appeal, 
against  the  defendant  shall  be  excluded,  where 
the  proceeding  is  founded  upon  the  same  cause 
of  action,  and  is  prosecuted  in  good  faith  in  a 
court  which,  from  defect  of  jurisdiction,  or  other 
cause  of  a  like  nature,  is  unable  to  entertain  it. 


in 
jurisdiction. 


(1)  Darby  and  Bosanquet,  pp.  44,  104. 


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96 


PART  III. — COMPUTATION  OF  PERIOD  OP  LIMITATION.       [8EC.  14 


Like  exciuaion       In  computing  the  period  of  limitation  pre- 

in  cane  of  order  .  *  .  L 

o^re^code*0-  scribed  for  a  suit,  proceedings  in  winch  have 
86Ction  ^  been  stayed  by  order  under  the  Code  of  Civil 
Procedure,  section  20,*  the  interval  between  the 
institution  of  the  suit  and  the  date  of  so  staying 
proceedings,  and  the  time  requisite  for  going 
from  the  court  in  which  proceedings  are  stayed 
to  the  court  in  which  the  suit  is  re-instituted, 
shall  be  excluded. 

In  computing  the  period  of  limitation  pre- 
scribed for  any  application,  the  time  during 
which  the  applicant  has  been  making  another 
application  for  the  same  relief  shall  be  excluded 
where  the  last-mentioned  application  is  made  in 
good  faith  to  a  court  which  from  defect  of  juris- 
diction, or  other  cause  of  alike  nature,  is  unable 
to  grant  it. 

Explanation  1. — In  excluding  the  time  during 


Like  exclusion 
in  case  of  appli- 
cation. 


*  20.    If  a  suit  which  may  be  instituted  in  more  than  one  oonrt 

is  instituted  in  a  oonrt  within  the  local  limits 

i^L^^LE^^    of  whose  jurisdiction  the  defendant  or  all 

do  not  reside  within  juris-    the  defendants  does  not  or  do  not  actually 

61  on"  and  voluntarily  reside,  or  carry  on  business, 

or  personally  work  for  gain,  the  defendant  or  any  defendant  may, 
after  giving  notice  in  writing  to  the  other  parties  of  his  intention  to 
apply  to  the  court  to  stay  proceedings,  apply  to  the  court  accord- 
ingly ; 

and  if  the  Court,  after  hearing  such  of  the  parties  as  desire  to  be 
heard,  is  satisfied  that  justice  is  more  likely  to  be  done  by  the  suit 
being  instituted  in  some  other  court,  it  may  stay  proceedings  either 
finally  or  till  further  order,  and  make  such  order  as  it  thinks  fit  as 
to  the  costs  already  incurred  by  the  parties  or  any  of  them. 

In  such  case,  if  the  plaintiff  so  requires,  the  court  shall  return  the 
plaint  with  an  endorsement  thereon  of  the  order  staying  proceedings. 

Every  such  application  shall  be  made  at  the  earliest  possible 
opportunity,  and  in  all  cases  before  the  issues 

Application  when  to  be  B!re  settled ;  and  any  defendant  not  so  apply- 
ing shall  be  deemed  to  have  acquiesced  in 
the  institution  of  the  suit. 


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SIC.  14]     PAET  in.— COMPUTATION  OF  PEEIOD  OP  LIMITATION.  97 

which  a  former  suit  or  application  was  pending 
or  being  made,  the  day  on  which  that  suit  or 
application  was  instituted  or  made,  and  the  day 
on  which  the  proceedings  therein  ended,  shall 
both  be  counted. 

Eoeplanation  2. — A  plaintiff  resisting  an  appeal 
presented  on  the  ground  of  want  of  jurisdiction 
shall  be  deemed  to  be  prosecuting  a  suit  within 
the  meaning  of  this  section. 

(a)  Section  14  of  Act  XIV  of  1859,  enacted  that  the  The  words 

■  .  ...  "claimant,  &o.( 

time  "  during  which  the  claimant,  or  any  person  under  waged  in  pro- 
whom  he  claims,  shall  have  been  engaged  in  prosecuting  tion  u  of  Act 

.,  .      ^.  .      x   xi_  XlVof  1869  were 

a  suit  upon  the  same  cause  of  action  against  the  same  held  to  apply 
defendant"  shall  be  excluded.  With  reference  to  the  above  who,  as^Slend- 
wording,  the  Calcutta  High  Court,  in  Maharajah  Jugu-  suit,  urged  a 
tendur  v.  Dindyal/1*  observed  "  we  think  that  these  words 
are  to  be  construed  liberally  and  not  literally  according 
to  the  decision  of  the  Privy  Council,  vol.  7,  of  Moore's 
Reports,  p.  357,  case  of  Pran  Nath  Chowdhry  v.  Rookea 
Begum.  In  this  case  their  Lordships  laid  it  down  as  a 
rule  that  a  person  was  not  barred  when  '  he  had  been 
allowed  to  intervene,  and  was  a  continuing  party  to  a  suit,' 
and  that  it  would  be  inconsistent  to  hold  '  that  the  pen- 
dency of  litigation  with  the  proceedings  on  it'  did  not 
furnish  a  good  and  sufficient  cause  for  his  not  proceeding 
in  his  suit."  It  was  held  that  a  plaintiff  is  entitled  to 
deduction,  from  the  period  of  limitation,  of  the  period  of 
pendency  of  a  former  suit  in  which  he,  as  defendant,  was 
urging  the  same  claim  as  he  preferred  as  plaintiff  in  this 
suit. 

(b)  In  Hanzunessa  v.  Bhyrab  (Thunder/*)  plaintiffs,   such  person 
who  were  defendants  in  a  former  suit,  supposed  that  they  deduction  of 
had  a  right  to  claim  a  particular  sum  by  way  of  set-off,  and  set-off  was  re- 
laid  claim  to  the  same.     As  it  turned  out  that  their  claim  of  jurisdiction 
was  against  the  law  relating  to  the  plea  of  set-off ,  it  was  of  a  iikeC&UB° 

nature." 


(1)  1.  W.  R.,  p.  310.      |      (2)  13  C.  L.  R.,  214. 
13 


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98  PABT  III.— COMPUTATION  OP  PERIOD  OP  LIMITATION.       [Baa  14 

held  that  the  plaintiffs  were  not  entitled  to  the  benefit  of 
section  14  of  Act  XIV  of  1859 ;  it  was  further  held  that  a 
person  who  was  defendant  in  a  former  suit  and  who  unsuc- 
cessfully urged  a  claim  of  set-off  cannot,  in  a  suit  brought 
by  him,  claim  the  benefit  of  the  above  section  unless  the 
set-off  was  disallowed  for  some  defect  of  jurisdiction  or 
some  other  cause  of  a  like  nature. 
To  entitle  a  ((»)     Raiah   Borodakant  v.  SookmoyW  was  a  suit  to 

plaintiff  to  the         x    '  J  J 

benefit  of  this   obtain   possession  of  lands  belonging  to  the  plaintiff  s 
mer  proceeding  zemindari,  which  were  falsely  declared  by  the  defendant 

most  have  been  7  J  J 

prosecuted  by    to  be  lakheraj.     The  court  observe  "  an  attempt  has  been 

him  or  by  some  J  r 

person  under     made  to  obtain  for  the  plaintiff  the  benefit  of  section  14 

whom  he  claims.  r 

of  the  Act,  and  to  exclude  from  the  computation  the 
time  during  which  the  suit  for  assessment  was  pending. 
But  we  find  that  that  suit  was  not  brought  by  the  plain- 
tiff, nor  by  any  person  under  whom  he  claims.  The 
plaintiff  therefore  cannot  avail  himself  of  this  section, 
even  if  its  provisions  were  otherwise  applicable,  which  is 
very  doubtful." 
The  former  pro-       (d)     In  Mussamut  Munna  v.  Laljee  Roy,W  it  was  held 

ceedings  must  '  .  J  J 

have  been  pro-  that  no  deduction  can  be  allowed  under  section  14,  Act 
the  same iSefen-  XIV  of  1859,  if  the  former  suit  had  been  prosecuted 

dant  or  the  per- 
son from  whom  against  the  wrong  party, 
the  defendant       ^>  ~o  r       j 

derived  title. 

institution  of         (6)     In  Nilmadhub  Surnokar  v.  Kristo  Doss  Surno- 

against  one  of  kar/3)  the  former  suit  was  not  brought  against  the  same 

in  the  2nd  suit  defendants  but  only  against  one  of  them,  and  it  was 

sufficient  to  en-  merely  in  consequence  of  the  non- joinder  of  the  other, 

deduction  under  who  has  been  made  a  party  to  this  suit,  that  the  former 

xiv  of  1869.       suit  was  non-suited.     It  was  held  that  the  time  of  its 

pendency  cannot  be  deducted   in  computing  limitation 

whether  the  dismissal  of  the  former  suit  was  right  or 

wrong. 

whether  a  suit       (f)     I"  Sheth  Kahandas  v.  Dahiabhai,**)  it  is  observed, 

w  jwTmust    "  whether  a  suit  was  pursued  bond  fide  and  with  diligence, 

mo^oTiosTa1"  must  in  almost  every  case  be  more  or  less  a  question  of 

question  of  de-    degree,  and  the  same  course  of  action  which  on  the  part 

(Jan.  1879.) 

(1)  1  W.  R.,  29.  I      (3)  5  W.  R.,  281. 

(2)  1  W.  R.,  121.  j      (4)  I.  L.  R.,  3  Bom.,  182. 


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BBC.  14]      PART  III.— COMPUTATION  OP  PERIOD  OP  LIMITATION.  99 

of  a  plaintiff,  in  Bombay,  within  reach  of  skilled  advice, 
would  indicate  bad  faith  or  want  of  diligence,  might  be 
consistent  with  good  faith  and  diligence  in  a  Mofussil  Com- 
munity." In  Hiralal  v.  Badri  Das/1)  the  Privy  Conncil 
held  that  a  proceeding  taken  bond  fide  and  with  due  dili- 
gence, before  a  Jndge  whom  the  judgment  creditor  be- 
lieved bond  fide,  though  erroneously,  to  have  jurisdiction,  p.  o.  on  bond 
was  a  proceeding  to  enforce  the  decree  within  the  mean-  of  Act  xiv  of 
ing  of  section  20  of  Act  XIV  of  1859.  18W' 

(g)     In  Chunder  Madhub  Ghuckerbutty  v.  Bissessnree      F.  B.  c.  H. 
Debea,(J)  the  question  was  whether  plaintiff  can  deduct  suit  was  pend- 
from  the  period  of  limitation  the  time  that  a  former  non-suited  held 
litigation  on  the  same  subject  was  pending,  the  former  ducted. 

,        .        ,  -x   j      im-        i    •    xM»,  i  i!_  (9th Mar.  1886.) 

case  having  been  non-suited.    The  plaintiff  s  appeal  from 
the  order  was  unsuccessful.     It  was  held  that  according 
to  section  14  of  Act  XIV  of  1859,  a  plaintiff  was  not  en- 
titled to  deduct  the  time  occupied  by  him  in  prosecuting 
the  former  suit  in  which  he  was  non-suited,  much  less  the 
time  occupied  in  appealing  from  that  decision  and  the 
time  intervening  between  the  non-suit  and  the  filing  of 
appeal.     Peacock,  0.  J.,  obseves,  "  I  am  of  opinion  that  Defect  of  juris- 
the  words  '  or  other  cause'  must  mean  a  cause  of  like  not  include 
nature  as  defect  of  jurisdiction.     Now,  a  defect  of  juris-  foot  either  in" 
diction  would  be   a  cause  that  would  not  include  any  or  in  other  res- 
neglect  on  the  part  of  the  plaintiff  either  in  stating  his 
case  or  in  other  respects."     Jackson,  J.,   observes,  "  It  inability  of 
appears  to  me  that  the  inability  of  the  court  must  be  some  circum- 
either  some  unavoidable  circumstance  over  which  no  one  which  no  one 
has  any  control,  or  something  incidental  to  the  court 
itself,  and  unconnected  with  the  acts  of  the  parties." 

(h.)     In  Karuppan  Chetti  v.  Veriyal/8)  it  was  held  that         m.  h. 

*  ,rtKrk  _.    ,  -  .  .         Under  the  cor- 

section  14,  Act  XI V  of  1859  applied  to  the  case  m  which  responding  sec- 

,,  .    .     '  ,  ,         -  ,  ,.  .  tionofActXIV 

the  plaintiff  was  unable,  after  due  diligence,  to  procure  of  mm,  piain- 
due  service  upon  the  defendant  of  the  summons  to  appear  to  procure  ser- 

x  A  vice   of   sum- 

and  answer  the  claim,  and  consequently  to  prosecute  the  mons  held,  en- 

'  ^  J  r  titled  him  to  the 

suit  to  a  decision,  and  would  prevent  a  suit  against  the   benefit  of  that 

x  °  section. 

(Jan.  1868.) 

(1)  I.  L.  E.,  2  All.,  792.       |  (2)  6  W.  R.,  184. 

(3)  4  Mad.,  H.  C.  E.,  p.  1. 


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100  PART  III.— COMPUTATION  OF  PERIOD  OP  LIMITATION.      [8IC.  14 

m.  h.  defendant's  representatives  from  being  barred.     The  said 

ciroS^stancee  section  was  also  held  applicable  wherever  the  success  of 
preventing1^™!-  the  proceeding  had  been  prevented  by  causes  not  arising 
CAprii  1863.)  from  laches  on  plaintiff's  part,  in  other  words,  by  acciden- 
tal circumstances  beyond  his  control.  Bamakristna  v. 
D.  Lakshmi  Devamma.*1) 
Time  that  a  suit  .    (i)     In  Raj  Krishto  Roy  v.  Beer  Ghunder  Joobra*r,<*> 

was  pending  in  .  ° 

the  couptof  iBt  it  was  held  that,  where  a  suit  was  brought  and  dismissed 

instance  which  .... 

rejected  it  for    for  want  of  jurisdiction,  and  an  appeal  was  preferred  in 
diction,  and  the  which  the  Lower  Court's  decree  was  affirmed,  and  then 

time  that  plain- 
tiff's appeal       when  a  suit  was  brought  in  the  right  court,  the  period 

pending,  were    which  elapsed  between  the  decision  of  the  first  court  and 

deducted  under 

Act  xiv  of  1859.  the  disposal  of  the  appeal  should  be  excluded  in  comput- 
ing the  period  of  limitation  prescribed  for  the  suit  by 
Act  XIV  of  1859.     The  court  observe,  "  we  also  think  that 
Plaintiff  is  en-  he  is  engaged  in  prosecuting  the  same  suit '  bond  fide,  and 
cuting  a  civil    with  due  diligence',  whilst  he  his  considering  whether  or 

proceeding  while 

he  is  consider-  no  he  shall  appeal  against  the  decision  of  the  first  court. 
not  he  should    The  time  within  which  the  appeal  is  required  to  be 

appeal  against 

the  Lower         brought  is  fixed  by  the  law,  in  order  to  give  the  unsuc- 

Court's  decision  °  .  ,  ,    .  ,  ,      . 

cessful  party  time  to  take  advice  and  come  to  a  conclusion 

whether  or  no  he  should  contest  the  decision  which  has 

been  given  against  him.     And  it  seems  to  us  that,  if  he 

appeals   at   any  time  within  the  prescribed  period  he 

ought  to  be  considered  as  proceeding  with  due  diligence." 

Dismissal  for         (j)     Dismissal  of  the  former  suit  for  want  of  jurisdic- 

diction,  right  or  tion,  whether  the  decision  is  legally  right  or  wrong,  entitles 

plaintiff  to  such  the  plaintiff  to  claim  a  deduction  in  the  computation  of 

The  time  during  the  period  of  limitation.    Hurro  Chunder  Roy  t?.  Shooro- 

Ippeai  was       dhonee   Debia.W      In   G.   Lee   Morris   v.  Sapamtheetha 

also  deducted.     Pillay,W  it  was  held  that  the  period  during  which  a  suit 

is  pending  in  a  court  not  having  jurisdiction,  is  to  be 

excluded  from  the  period  of  limitation  provided  By  Act 

The  fact  that    XIV  of  1859,  and  the  fact  that  the  second  suit,  in  bar  of 

pending  when    which  the  Act  is  pleaded,  was  instituted  before  the  court 

was  brought      not  having  jurisdiction  had  disposed  of  the  first  suit,  is 


held  immate- 
rial, 


(1)  1  Mad.,  H.  0.  R.,  320.      I      (8)  9  W.  R.,  410. 

(2)  6  W.  R.,  308,  |      (4)  6  Mad.,  H.  0.  R.,  45. 

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8SC.  14]     PART  III.— COMPUTATION  OF  PERIOD  OF  LIMITATION.  101 

immaterial.  In  Luchinarain  Mittar  v.  Khettro  Pal  Singh 
Roy/1)  it  was  held,  in  July,  1873,  that  the  plaintiff  was 
entitled  to  deduct  the  time  during  which  he  was  bond  fide 
prosecuting  with  due  diligence  a  suit  for  the  same  purpose 
in  a  court  not  having  jurisdiction.  In  this  case  the  Privy 
Council  held  that  according  to  the  true  construction  of 
section  14,  the  whole  time  occupied  in  the  former  suit,  in- 
cluding the  time  during  which  the  special  appeal  to  the 
High  Court  was  pending,  must  be  deducted.  Principal 
Suddr  Amin  gave  decree  for  plaintiff.  The  District  Judge 
reversed  the  decision  and  it  was  confirmed  by  the  High 
Court.  It  was  found  as  a  fact  that  the  suit  was  prose- 
cuted bond  fide. 

(k)     In  Bam  Dass  v.  Watson/8)  it  was  held  that  prose-  Preferring  an 
cutinff  an  appeal  or  other  proceeding  which  is  expressly  prewiy  prohi- 
prohibited  by  law  is  not  prosecuting  a  civil  proceeding  m  not  proeectifciiwr 
good  faith.     In  Vencatasawmy   Naidu  v.  Vencataraju   inp  in  good 
Naidu/3)  a  regular  suit  was  filed  under  section  269  of  Act 
VlJLL  of  1859,  after  the  expiration  of  one  year  from  the 
date  of  the  final  order,  and  the  plaintiff  pleaded  that  an 
intervening  period,  spent  by  him  in  appealing  from  the 
order,  should  be  excepted,  under  section  15  of  Act  IX  of 
1871,  in   applying  the   statute.     It  was  held  that  the 
filing  of  the  appeal  was  not  the  institution  of  a  suit  with- 
in the  meaning  of  the  section.     An  appeal  from  an  order 
under  section  269  of  Act  VIII  of  1859,  (corresponding 
with  section  335,  of  Act  XIV  of  1882)  is  expressly  pro- 
hibited by  the  Code. 

(1)     Ajoodhya  Pershad  v.  Bisheshur  Sahai/4)  prose-  Where  appellate 
cuted  bond  fide  and  with  due  diligence,  was  dismissed  in  suit  for  want  of 
appeal  for  want  of  jurisdiction  in  the  court  of  first  instance,    time  between 
and  a  second  suit  was  afterwards  brought  in  a  right  court,    and  institution 
It  was  held  that  in  computing,  under  section  14  of  Act  eluded5  under" 
XIV  of  1859,  the  period  of  limitation  of  the  suit,  the  time  xiv  of  1869. 
between  the  decree  of  the  court  of  first  instance  and  the        y 
institution  of  t)ie  appeal  should  be  excluded. 


(1)  13  B.  L.  B.,  146.  I      (3)  4  Ind.  Jur.,  20. 

(2)  W.  B.,  Gap.  No.  371.        |      (4)  6  N.-W.  P.  H.  C,  141. 


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102  PART  III.— COMPUTATION  OP  PMtlOD  OP  LIMITATION.     [SEO.  14 

a.  h.  declined       (m)     The  plaintiffs  sued  the  eon  of  a  deceased  debtor 

to  deduot  in  the        ..... 

case  of  a  suit  without  ascertaining-  whether  or  not  he  was  of  aire,  and 

rejected  in  ap-  °  ^   ' 

peal  for  defect  then,  when  the  plaint  was  returned  to  them,  they  sued 

of  parties.  \  '         J 

(May  1875.)  the  minor  8  mother  also  without  ascertaining  whether 
she  was  legally  constituted  guardian  of  the  minor.  The 
Lower  Courts  determined  the  suit,  but  the  High  Court 
was  unable  to  support  their  decrees  in  consequence  of  the 
defect,  which  came  to  light  in  special  appeal.  The 
plaintiffs  having  brought  a  second  suit,  it  was  held  that, 
in  computing  the  period  of  limitation,  they  were  not 
entitled,  under  the  provisions  of  section  15  of  Act  IX  joi 
1871,  to  an  exclusion  of  the  time  occupied  by '  them  in 

Court  doubted    prosecuting  the  first  suit.     The  court  doubted  whether, 

whether   the        r  .         ®  .   .  ' 

Kiaintiif  could    assuming  the  case  fell  under  the  provisions  of  the  section, 
b  said  to  have 

prosecuted  the  the  plaintiffs  could  be  said  under  the  circumstances  to 

first  suit  with 

due  diligence  have  prosecuted  the  first  suit  with  due  diligence  and  in 
faith.  good  faith.     Bhal  Singh  v.  Musammat  Gauri.W 

Period  deducted       (n)     Where  a  part-proprietor  of  a  certain  Talook,  who 
wrongly  prose-  was  also  co-sharer  in  a  fractional  portion  thereof,  brought 
nue  Court  and  suits  against  his  co-talookdars,  in  the  Revenue  Courts, 
want  of  judis-  for  arrears  of  rent  without  allowing  any  deduction  on 
(Dec?i874.)         account  of  his  share,  which  suits  were  dismissed  for  want 
of  jurisdiction,  and  afterwards  brought  a  suit  for  the  rent 
for  the  same  period  in  the  Civil  Court,  it  was  held,  that 
the  suit  was  not  one  for  the  recovery  of  arrears  of  rent 
within  the  meaning  of  section  29,  Ben.  Act  VIII  of  1869. 
but  was  governed  by  the  provisions  of  Act  XIV  of  1859. 
The  suit  was  one  for  rent  of  land,  and  fell  within  the  scope 
of  clause  8,  section  1  of  that  Act ;  and  the  plaintiff  was,  in 
computing  the  limitation,  entitled  under  section  14,  to  a  de- 
duction of  the  period  during  which  he  was  prosecuting  his 
suit  in  the  Revenue  Courts.    Gobindo  Coomar  v.  Manson.t*) 

b.  h.  allowed  (o)  When  an  appeal  had  been  preferred  by  the  plain- 
appeaiwrongiy  tiff  to  the  Judge,  which  ought  to  have  been  perferred  to 
Judge  instead  of  the  Collector,  the  High  Court  made  an  order  giving  the 
(April  1871.)'      plaintiff  thirty  days  within  which  to  prefer  his  appeal  to 

the  Collector  instead.     Maharani  of  Burdwan  v.  Parikhit 

(1)  7  N.-W.  P.  H.  C,  284.    |  (2)  15  B.  L.  R.,  66. 

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8BC.  14]      PART  III. — COMPUTATION  OF  PERIOD  OP  LIMITATION.  103 

Rawtra.C1)    In  Kristo  Inder  Roy  Chowdhry  v.  Roopinee  c.  h.  directed 
Bebee/2)  the  court,  finding  that  the  appeal  had  been  pre-  lector  of  an  ap- 

i  peal   wrongly 

ferred  bond  fide  under  a  mistake  to  the  wrong  court,  presented  to 


ordered  the  case  to  be  transferred  to  the  right  court — 
that  is  to  say,  to  the  court  of  the  Collector  for  disposal. 
In  Erskine  v.  Gholam  Khezur,(s>  appeal  from  the  Deputy 
Collector's  decision  under  section  9  Act  VI  of  1862,  lay  A  case  of  a 
to  the  Zilla  Judge  and  not  to  the  Collector.  While  so,  the  oh.  allowed' 
plaintiff  preferred  his  appeal  to  the  Collector,  who  re-  prefer  to  the 
versed  the  decision.     The  defendant  appealed  against  it  appeal  wrongly 
to  the  Zilla  Judge  at  Beer  Bhoom  instead  of  to  the  proper  Collector  and 
District  Judge.     The  Judge  of  Beer  Bhoom,  considering  Judge. 
he  was  competent  to  entertain  the  appeal,  reversed  the 
Collector's   order    as    made  without  jurisdiction.     The 
plaintiff  specially  appealed  to  the  High  Court,  who  ob- 
served, "  plaintiff  was  wrongly  advised  and  took  his  case 
to  the  wrong  tribunal.     He  ought  not,  we  think,  under  the 
circumstances,  to  be  shut  out  altogether  from  obtaining  a 
decision  on  his  appeal,  and   we  therefore  set  aside  the 
judgment  of  the  Zilla  Judge  and  the  Collector,  and  de- 
clare that  the  plaintiff  is  at  liberty,  if  so  advised,   to 
appeal,  within  20  days  from  the  date  of  this  judgment,  to 
the  Zilla  Judge  having  jurisdiction  in  the  matter." 

(p)     A  Hindu  of  the  Southern  Maratha  country,  having  p.  o.  held  plain- 
two  song  undivided  from  him,  died  in  1871,  leaving  a  will   d^ucttimethat 
disposing  of  ancestral  estate  substantially  in  favor  of  his  tor  partSon"* 
second  son,  excluding  the  elder,  who  claimed  his  share  in  JSf  rejected^or 
this  suit.    In  1861,  a  suit  brought  by  this  elder  son  against  Son°  aa^to*" 
his  father  and  brother  to  obtain  a  declaration  of  his  right  SdnSn^cnud 
to  a  partition  of  the  ancestral  estate  was  dismissed  on  uona^tomov£ 
the  ground  that  he  had  no  right  in  his  father's  lifetime  (Under  Act  xrv 
to  compel  a  partition  of  moveables  ;  and  that  as  to  the  im-  of  18W#> 
moveables  the  claim  failed,  because  they  were  situate 
beyond  the  jurisdiction  of  the  court.   It  was  held  that  the 
suit  was  not  barred  under  the  Limitation  Act  XIV  of 
1859,  sec.  1,  cl.  13.    As  to  the  immoveables ;  setting  aside 

(1)  7  B.  L.  B.,  App.,  15.      |      (2)  6  W.  R.,  Act  X,  Bui.  56. 
(3)  9  W.  R.,  520. 


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104  PAET  III.— COMPUTATION  OF  PERIOD  OP  LIMITATION.     [8EC.  14 

the  fact  that  the  plaintiff  had  remained  in  possession  of 
one  of  the  houses  of  the  family  which  had  been  treated 
by  the  father  as  continuing  to  be  part  of  the  joint  pro- 
perty, the  decision  of  1861,  based  as  to  the  immoveables 
on  the  absence  of  jurisdiction  to  declare  partition  of 
them,  caused  this  part  of  the  claim  to  fall  under  the 
provisions  of  Act  XIV  of  1859,  section  14.  As  to  the 
moveables ;  assuming  that  they  could,  on  the  question  of 
limitation,  be  treated  as  distinct  from  the  moveable,  and 
that  no  payment  had  been  made  within  twelve  years 
before  this  suit  by  the  ancestral  banking  firm  to  the  plain- 
tiff, the  adjudication  of  1861,  whether  in  law,  correct  or 
incorrect,  had  been  that  the  elder  son  could  not  assert  his 
rights  in  the  moveables  until  his  father's  death.  The  de- 
fendant in  this  suit,  who  had  taken  the  benefit  of  that 
judgment,  could  not  now  insist  that  it  did  not  suspend 
the  running  of  limitation  on  the  ground  that  his  brothers 
might  have  appealed  from  it,  if  erroneous.  Lakshman 
Dada  Naik  v.  Ramchandra  Dada  Naik.t1) 
To  entitle  to  de-  (q)  In  Joitaram  Bechar  v.  Bai  Ganga,<2>  plaintiff 
cause  of°  action  brought  two  suits,  one  against  one  branch  of  the  family, 
Same,  in  a  case  and  the  other  against  another  branch,  to  recover  a  share 
suits  after  dis-  of  that  portion  of  the  property  which  was  in  the  posses- 
separate  suits,  sion  of  each,  and  these  suits  were  rejected  on  the  ground  of 
held  notnper?  their  having  been  improperly  brought.  It  was  held  that, 
(Deolbi87i.)  ^  bringing  a  consolidated  suit  against  all  sharers  for  a 
general  partition,  the  plaintiff  was  not  entitled  to  deduct 
the  time  occupied  in  prosecuting  his  former  suit.  In 
G.  Lee  Morris  v.  Sivaramayyan  and  others,^  plaintiff  was 
for  sometime  before  the  suit  prosecuting  suits  against 
defendants  separately  for  the  arrears  of  rents  alleged  to 
be  barred,  and  they  were  all  dismissed  on  the  ground  that 
the  plaintiff  could  not  sue  the  defendants  separately  as 
they  had  executed  a  mutchilika  jointly.  In  this  suit, 
brought  against  all  the  defendants  jointly,  the  plaintiff 
claimed  the  benefit  of  section  14  of  Act  XIV  of  1859. 

(1)  I.  L.  R.,  5  Bom.,  48.  |  (2)  8  Bom.,  H.  C.  B.,  A.o.  228. 

(3)  7  Mad.,  H.  C.  B.,  242. 


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BKC.  14]     PAST  III.— COMPUTATION  OF  PIBIOD  09  LIMITATION.  105 

It  was  held  that  tha  cause  of  action  was  not  the  same,  for 
in  the  former  suits  the  obligation  sued  upon  was  several, 
while  here  it  is  joint,  and  that  the  court  which  decided 
the  former  suits  not  only  did  not  fail  to  decide  them,  but 
did  decide  them. 

(r)     In  Cheigu  Naogiah  v.  Pidatala  Venkatuppah,*1)    Court  returning 
plaintiff  presented  his  plaint  On  the  5th  May,  1870,  to  the  want  of  juris- 

.  .  diction  cannot 

District  Munsiff  of  Nundialpet,  who  had  no  jurisdiction;  limit  a  time  for 

its  presentation 

the  District  Munsiff  returned  the  plaint  on  the  7th  May  to  the  proper 
to  the  plaintiff,  to  be  presented  to  the  proper  court  within  plaintiff  is  not 
one  month  from  the  date  on  which  it  was  returned.     The  duct  the  time  so 
claim  was  barred  by  limitation  on  the  11th  May,  1870,  tnistsectioSder 
and  a  plaint  was  presented  to  the  proper  court  on  the  21st  *Augutt  1870#' 
May,  1870.    It  was  held  that  the  suit  was  barred.     The 
High  Court  observe,  "  as  the  presentation  of  a  plaint  is 
the  commencement  of  a  suit,  we  should  probably  have 
held  that  the  bar  of  the  suit  was  saved  by  the  provisions 
in  section  14  of  the  Act  of  Limitations  (XIV  of  1859) 
if  it  had  appeared  that  by  excluding  the  time  between 
the  presentation  and  the  return  of  the  plaint,  the  period 
of  limitation  was  not  exceeded,  but  the  fact  is  otherwise." 
It  was  not  the  duty  of  the  court  to  name  a  time  for  the 
presentation  of  the  plaint  in  the  proper  court  under  sec- 
tion 3  of  Act  XXHI  of  1861,  and  the  case  must  be  looked 
at  as  if  the  court   had  not  named  a  time.    In  Abhoya  But  the  period 
Churn  Chuckerbutty  v.   Gour  Mohun   Dutt,^)  District  waited  to  get 
Munsiff  decreed  the  plaintiff's  suit,  and  the  Subordinate  from  court  was 
Judge  on  appeal  reversed  his  decision,  holding  that  the 
Lower  Court  had  no  jurisdiction,  and  ordered  the  plaint 
to  be  returned.     It  was  held  that  the  period  after  the 
decree  in  appeal  during  which  plaintiff  was  waiting  to 
receive  back  his  plaint  before  re-filing  it  in  the  Small 
Causes  Court,  could  not  be  deducted. 

(g)     In  Timal  Kuari  v.  Ablakh  Rai,(8>  plaintiff,  who  a.  h.  observed 
was  illegally  ejected  from  certain  land  before  1873,  applied  visions  of  the 
in  January,  1876,  under  section  95,  of  Act  XYIII  of  1873,  sectS?i6d?ifct 
for  possession,  alleging,  that  though  section  95  of  that  not  applicable  to 

tions  under  Act 
(1)  6  Mad.,  H.  C.  E.,  407.  |        (2)  24  W.  R.,  26.  xvin  of  1878. 

(3)  I.  L.  E.,  1  All.,  254.  (June  18*«.) 

14 


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106  PAST  IIL-~COMPUTATIOH  OF  PERIOD  OF  LIMITATION.      [SIC.  14 

Act  provided  for  institution  of  such  suits  within  six 

months  from  the  date  of  dispossession,  he  was  entitled  to 

the  benefit  of  section  15  of  the  Limitation  Act,  as  he  was 

prosecuting  a  prooeeding  for  the  recovery  of  land  in  courts 

which  had  no  jurisdiction  to  try  such  suits.     Following 

the  rulingof  the  Privy  Council  in  Unnoda  Persaud  Mooker- 

jee  v.  Kristo  Goomar  Moitro/1)  in  which  it  was  held  that 

the  analogous  provisions  of  section  14  of  Act  XIV  of 

1859  do  not  apply  to  suits  under  Act  X  of  1859,  which 

is  a  special  law,  and  Mahomed  Bahadur  Khan  v.    The 

Collector  of  Bareilly,(*)  in  which  it  was  held  that  the 

provisions  of  the  Limitation  Law  do  not  apply  to  enlarge 

the  period  of  limitation  prescribed  by  Act  IX  of  1859,  the 

court  observed  that  section  15  of  Act  IX  of  1871,  which 

corresponds  to  this  section,   did   not  apply  to   suits  or 

applications  under  Act  XVTH  of  1873. 

B.  h.  held  sec-       (t)     Plaintiff  in  May,  1872,  sued  a  police  constable  for 

xrv  of  1869  in.  damages  for  having  made  a  false  report.     The  Sub- judge, 

suit  for  dam*,    on  the  5th  August,  1872,  rejected  the  suit  for  want  of  juris- 

ge6  under  sec- 

tion  48  of  the  diction.     On  the  7th  August,  1872,  plaintiff  filed  a  fresh 

Bombay  Act       •..,  .  ,        .  ,. 

vn  of  1867.        suit  in  the  proper  court  which  rejected  it  as  barred  under 

^p*11873,        section  42  of  Bombay  Act  7  of  1867.     The  High  Court 
affirmed  the  Judge's  order,  holding  that  section  14  of  Act 
XIV  of  1859  was  not  applicable  to  the  plaintiff's  case. 
Hari  Biamchandra  v.  Vishnu  Krishnaji.W 
n.-w.  p.  h.  o.       (ll)     In  Mussumat  Nona  v.  Dhoomun  Dass,W  it  was 
of  Act  xrv  of  held  that  section  14  of  Act  XIV  of  1859  apply  only  to 
bie  'to  aPPsuit    periods  of  limitation  prescribed  by  that  Act,  and  conse- 
of  1863.  quently  no  deduction  can  be  made  in  the  period  of  limi- 

tation of  a  suit  under  Act  XIV  of  1863,  of  the  time  in 
which  a  party  was  engaged  in  prosecutipg  his  suit  in 
a  wrong  court. 

miJiiatedlw  thafc       ^v)     "^wo  P61"80118  joined  in  instituting  a  suit  in  a  Sub- 
20^»i~2„of  ordinate  Judge's  Court  on  the  26th  August,  1878,  while  the 


t£feS*3*  **      period  of  limitation  was  to  expire  on  the  21st  September, 

deolined  to  de- 
duct the  time 

that  a  suit  was  (1)  15  B.  L.  E.,  N.p.  60. 

Juws'mr04  (2)  L.  B-,  7  Ind.  App.,  P.  C  167,  Sc.  13,  B.  L.  a,  392. 

(JwTiew!)  (*)  10  Bom.  H.  C,  204.     |    (4)  5  N.-W.  P.  H.  C,  30. 


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880.  14]      PAST  III.— COMPUTATION  09  P8BI0D  09  LIMITATION,  107 

1878.  The  suit  was  transferred  to  the  District  Court, 
which,  on  the  16th  September,  1878,  returned  the  plaint 
to  the  plaintiffs  on  the  ground  that  they  should  have 
sued  separately.  On  the  23rd  September,  1878,  one  of 
them  presented  a  fresh  plaint  to  the  District  Court  which 
rejected  it  on  the  1st  October,  1878,  on  the  ground  that  it 
had  no  jurisdiction.  The  plaintiff  appealed  to  the  High 
Court,  which  affirmed  the  order  on  the  28th  January,  1879, 
and  returned  the  plaint  on  the  10th  April,  1879.  The 
plaintiff  on  the  same  day  re-presented  it  to  the  Sub-court. 
It  was  held  that  the  plaintiff  could  claim  to  exclude  only 
the  period  between  the  23rd  September,  1878,  and  10th 
April,  1879,  and  not  the  period  between  26th  August  and 
16th  September,  1878,  as  the  inability  of  the  District 
Court  arose  from  misjoinder  of  plaintiffs,  a  defect  for 
which  they  were  responsible.  Bam  Subhag  Das  v.  Gobind 
Prasad.'*) 

(w)    On  the  2nd  September,  1869,  a  suit  was  instituted  o.  h.  dissenting 

from  the  above 

for,  among  other  things,  the  possession  of  land  claimed  ruling  held  that 
under  a  Kobala,  dated  the  31st  October,  1867.    The  suit  defective  jurie- 

dietion  were 

was  dismissed  on  appeal  on  the  ground  of  misjoinder  of  euros  of  a 

similar  nature, 

causes  of  action.    On  the  14th  April,  1881,  the  plaintiff  (August  ires.) 

.sued  for  possession  of  the  land  only.    It  was  held,  that 

the  suit  was  not  barred,  that  "  misjoinder  of  parties"  and 

"  def  eotive  jurisdiction"  are  causes  of  a  similar  nature,  and 

that  the  plaintiff  was  entitled  to  have  the  deduction  of 

the  time  that  the  former  suit  was  pending.    Deo  Prosad 

8ing  v.  Pertab  Kairee.W     In  Mohan  Chunder  Koondo  v.  Bringing  a  suit 

Azam  Gazee,(8J  Sir  Barnes  Peacock,  C.  J.,  held  that  bring-  haattednbefere 

ing  a  suit  bond  fide  against  a  person  who  had  died  before  0f  similar"* 

the  suit  was  instituted  was  a  cause  of  a  similar  nature  section  w  of  Act 

within  the  meaning  of  section  14  of  Act  XIV  of  1859. 

But  a  plaintiff  who,  before  the  expiry  of  the  period  of  But  not  suing  a 

.  .  person   errone* 

limitation,  sues  certain  persons  whom  he  erroneously  ousiy  supposed 

to  be  the  repre- 

supposes    to   be   the    representatives  of   his   deceased  0°***"™  <*  » 
debtor,  and  after  the  expiry  of  the  period  obtains  leave  to  or. 


(March  1873.) 


(I)  I.  L.  B.,  ?  AIL,  6(8.     |     (2)  I.  L.  B.,  10  Gala,  87. 


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108  PART  III.— COMPUTATION  OP  PERIOD  OP  LIMITATION.      [SBC.  14 

amend  his  plaint  by  substituting  the  true  representatives 
as  defendants,  was  held  not  entitled  to  deduction  of  time 
lapsing  between  the  date  of  the  suit  and  that  of  amend- 
ment.    Kavasji  Sorabji  v.  Barjorji  Sorabji.W 
Time  that  a  suit       (x)     In  Putali  Meheti  v.  Tulja,(*>  plaintiff  had  first 
™todDthough    filed  a  suit  in  July,  1876,  in  respect  of  the  same  subject,  and 
for  non-produc-  founded  on  the  same  cause  of  action  as  the  present  suit, 

tion  of  the  Col-  ,,.*,,,,  .      -*r  * 

lector's  oertifl-    and  when  it  had  reached  its  latest  stage,  m  November, 

cate  under  the 

Pensions'  Act     1877,  the  defendant  for  the  first  time  objected  to  the  court's 
XXin  of  1871.     ....  . 

(April  1870.)        jurisdiction  on  the  ground  that  the  plaint  had  not  been 
accompanied  by  the  Collector's  certificate  as  required  by 
Act  XXIII  of  1871.    The  Sub-judge  rejected  the  plaintiff's 
application  for  time  to  produce  the  required  certificate 
and  rejected  the  suit  on  that  ground.     In  the  present  suit 
the  question  was,  whether  the  time  that  the  former  suit 
was  pending  can  be  deducted  in  computing  the  period  of 
limitation.     West,  J.  being  of  opinion  that  the  non-pro- 
duction of  the  certificate  did  not  necessarily  constitute 
such  a  want  of  due  diligence  on  the  plaintiff's  part  as  to 
West,  J.  held       disentitle  him  to  the  deduction  of  time  allowed  by  this 
auction  of  certi-  section,  held  that  the  case  was  one  of  an  error  committed 
error  committed  in  good  faith  and  not  one  of  want  of  due  diligence,  and 
that  the  plaintiff  was  entitled  to  have  the  time  deducted. 
m.  h.  declined       (y)    Bamakristna    Castrulu    v.    Darba    Lakshmide- 
time  that  a       vamma^  was  a  suit  for  Inam  lands  instituted  in  1849,  the 
pending  which  cause  of  action  having  accrued  nearly  12  years  before. 
non-productioiT  The  suit  was  dismissed  on  the  ground  that  the  plaintiff 
underCReguia-    had  no  certificate  as  required  by  regulation  IV  of  1831. 
(April  1863.)   '    Eight  years  afterwards,  the  plaintiff  having  obtained  the 
requisite  certificate,  commenced  a  suit  for  the  lands ;  it  was 
held  that  the  institution  of  the  former  suit  had  not  sus- 
pended the  Statute  of  Limitations,  and  that  the  plaintiff 
was  barred. 
Time  that  a  (z)    This  section  corresponds  to  section  15  of  Act  IX  of 

the^flieTf  °a     1871.    In   the    case   of  Sham  Kant  Banerjee  t>.  Baboo 
mon^courtde-  q^     lM  Tagore,<4)     a  Division  Bench   ruled    that  no 

(Jan.  1879.) 

(1)  10  Bom.  H.  C.  R.,  224.  I  (8)  1  M.  H.  C.  B.,  820. 

(2)  I.  L.  R.,  8  Bom.,  223.      |  (4)  1  W.  R.,  (civ.  Rul.)  888. 

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8BC.  14]      PABT  III-^COMPUTATION  OP  PERIOD  OP  LIMITATION.  109 

deduction  could  in  any  case  be  allowed  for  the  institution 
of  a  suit  in  the  wrong  court.  West,  J.,  being  of  opinion 
that  this  would  deprive  the  saving  clause  of  the  Limita- 
tion Act  of  its  whole  effect,  observed  in  Sheth  Kahandas 
Narandas  v.  Dahiabhai/1)  "  Whether  a  suit  was  pursued 
bond  fide  and  with  diligence  must  in  almost  every  case 
be  more  or  less  a  question  of  degree,  and  the  same  course 
of  action  which  on  the  part  of  a  plaintiff  in  Bombay,  within 
reach  of  skilled  advice,  would  indicate  bad  faith  or  want 
of  diligence,  might  be  consistent  with  both  good  faith 
and  diligence  in  a  Mofussil  community  unfamiliar  with 
the  refinements  of  the  Mercantile  law,  and  practically 
inops  consilii  on  such  matters." 

(2-a)     In  Obhoy  Churn  Nundi  v.  Kritartha  Moyi  Dos-   Time  that  a 

plaint  was    on 

see,**)  Subordinate  Judge,  seven  months  after  the  insti-   **»  file  of  a 

7  °  court   until  re- 

tution  of  this  suit,  returned  the  plaint  to  be  filed  in  a  turned  was  de- 
ducted. 
Munsifs  Court  on  the  ground  that  the  suit  had  been    (April  i88i.) 

overvalued.     As  there  was  nothing  to  shew  want  of  bond 

fides  in  the  plaintiff's  instituting  the  suit,  the  time  during 

which  the  plaint  was  on  the  Sub-judge's  file  was  deducted 

in  computing  the  period  of   limitation.     Similarly,   in 

Chandi  Dasi  v.  Janakirara,(*)  the  time  that  a  plaint  was  in 

Munsifs  Court  which  returned  it  for  want  of  jurisdiction 

was  deducted  under  Act  XIV  of  1859. 

(2-b)    In  Rajendro  Kishore  Singh  v.  Bulaky  Mahton.W  c.  h. 

i   -   i-L  t  .,.      Al       5,  0  ,  ,  Time  occupied 

plaintiff  s  manager  s  suit  for  the  value  of  trees  cut  down  by  suit  rejected 

and  carried  away  by  the  defendant  was  dismissed  on  the  manager  cannot 

ground  that  the  manager  had  no  cause  of  action.    When  (May  msi.)' 
the  suit  was  brought  by  the  plaintiff  it  was  held  that  the 
time  occupied  by  the  manager's  suit  could  not  be  excluded 
as  the  suit  was  dismissed  neither  from  defect  of  jurisdic- 
tion nor  from  any  cause  of  a  like  nature. 

(2-C)     Section  374  of  the  C.  P.  C,  makes  reference  to  Decree-holders 

suits  withdrawn  and  not  to  applications.    Melvill,  J.,  in  application 

Pirjade  v.  Pirjade,<*)   observes  that  the  bar  created  by  eion  to  present 

a  fresh  one,  not 
entitled  to  the 
benefit  of  this 

(1)  I.  L.  B.,  3  Bom.,  182.    |  (8)  1  B.  L.  R.,  8.  N.,  12.  ESS?11;^ , 

(2)  I.  L.  B.,  7  Calc,  284.     |  (4)  I.  L.  R.,  7  Calc,  867.  (Sept*  18M-> 

(5)  1.  L.  B.,  6  Bom.,  681. 


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110  PART  III.— COMPUTATION  OF  PERIOD  OP  LIMITATION.       [SBC.  14 

section  374  of  the  Code  is,  in  snoh  cases,  not  remoyed  by 
this  section,  as  causes  for  which  the  withdrawal  of  a  suit 
or  application  may  be  permitted,  are  not  causes  "  of  a  like 
nature"  with  defect  of  jurisdiction.    This  has  been  referred 
to  in  Kifayat  Ali  v.  Ramsingh/1)  in  which  A.  H.  expres- 
sed their  dissent  from  Bamanadan  Chetti  v.  Periatambi<*) 
which   held   in  February,  1883,  that  an  application  for 
execution  which  does  not  comply  with  the  requirements 
of  section  235  of  the  C.  P.  C,  and  which  having  been 
returned  to  the  decree-holder  for  amendment,  has  not 
been  proceeded  with,  may  still  suffice  under  cl.  4,  article 
179  of  sbedule  II.  of  the  Limitation  Act. 
Time  that  plain-       (2-d)     In  Nobin  Chunder  Kurr  v.  Bojomoye  Dossee/3* 
the  previous      plaintiff  on  the  31st  of  March,  1884,  sued  in  the  Small 
limitation,  was  Cause  Court,  on  a  pro-note  dated  24th  April,  1879.     In  his 
suit  was  reject-  plaint  he  omitted  to  set  out  certain  payments  endorsed  on 

ed  for  the  plain- 

tiff's  not  having  the  pro-note  signed  by  the  defendant's  agent,  which  pay- 
net  out  inhia*  o*  «=»  »    * 

plaint  payment  ments,  if  so  set  out,  would  have  had  the  effect  of  saving 

endorsed  rn  the  '  ,     .         ,  ,.     .  mi        n        " 

pro-note  sued     the  suit  from  being  barred  by  hmitatiom.     The  Small 

on  and   signed  .  0 

by  defendant's  Cause  Court  rejected  the  plaint  on  the  24th  April,  1884, 
(Feb.  1886.)        under  clause  c.  of  section  54  of  the  Civil  Procedure  Code 
as  barred  on  the  face  of  the  plaint.     On  the  25th  of  April, 
1884,  the  plaintiff  brought  a  fresh  suit  on  the  same  pro- 
note,  setting  out  in  his  plaint  how  it  was  that  he  claimed 
exemption  from  limitation.     It  was  held  that  in  computing 
the   period  of  limitation,  the  plaintiff  was  not  entitled 
under  this  section  to  exclude  the  time  during  which  he  was 
Under  Act  xrv  prosecuting    the    previous    suit.    In    Chunder  Madhub 
the  former  suit  Chuckerbutty  v.  Bissesuree  Debea,  W  Full  Bench  held  under 
sitting  oStn°    section  14  of  Act  XIV  of  1859,  that  the  time  that  a  suit 
was  not  deduct-  was  on  the  file,  rejected  for  not  setting  out  boundaries 
in  the  plaint,  could  not  be  deducted  from  the  period  of 
limitation  when  the  plaintiff  filed  a  fresh  plaint  in  respect 
of  the  same  subject  matter. 
Time  that  a         (2*6)    In  Sheth  Kahandas  Narandas  v.  DaJuabhaLfo) 

plaint   was   on  ^ 

the  file  until 

High  Courts'  re- 

t^S^^on  0)  I-  L-  *•»  *  All.,  859.       |    (8)  I.  L.  B.,  11  Calo.,  264. 

i&ff&Stod.  9)  I- 1-  E»  «  Mad.,  260.     |    (4)  B.  L.  E.,  Sup.  Vol.,  668. 

(Jan.  1879.)  (6)  I.  L.  R.,  8  Bom.,  182. 


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8EC.  14]      PART  IU.— COMPUTATION  Of  PBJUOD  OP  LIMITATION.  Ill 

plaintiff,  as  payee  of  an  order  drawn  by  defendant  at 
Ahmedabad,  where  he  (defendant)  resided,  on  a  firm  at 
Bankok  in  Siam  and  dishonored  on  presentation,  sued  de- 
fendant and  an  agent  of  the  Bankok  firm  who  resided  at 
8nrat,  in  the  Subordinate  Judge's  Court  at  Surat.  Permis- 
sion to  proceed  with  the  suit  against  the  defendant  (the 
drawer)  having  been  refused  by  the  High  Court,  plaintiff 
withdrew  his  plaint,  and  filed  his  suit  in  the  court  at 
Ahmedabad  against  the  drawer  alone.  The  Subordinate 
Judge  rejected  the  claim  as  barred  by  limitation.  It  was 
held  by  the  court  in  appeal  that,  under  section  15  of  the 
Limitation  Act,  (No.  IX  of  1871)  a  deduction  might  pro- 
perly be  made  of  the  time  during  which  the  suit  was 
pending  in  the  court  at  Surat,  and  that  the  deduction  on 
this  account  was  to  run  from  the  filing  of  the  plaint  to  the 
final  refusal  of  the  High  Court  to  allow  the  suit  to  pro- 
ceed at  Surat  against  the  drawer. 

(2-f)     Khetter    Mohun     Chuckerbutty    v.  Dinabshy         o.H. 
ShahaC*)  was  a  suit  brought  under  section  77,  of  the  Regis-  plies  to  aUAcS» 
tration  Act  for  the  purpose  of  obtaining  registry  of  a  deed  special  'lfmita- 
which  provides  for  the  institution  of  such  suits  within  This  was  a  suit 
thirty  days  after  making  the  order  of  refusal  by  the  Regis-  X^Regiatral 
trar.    In  this  case,  Registrar's  refusal   was  dated  12th  (Deo.  1888.) 
December,  1879.     The  plaintiff  first  filed  this  suit  in  a 
Munsif  s  Court  on  the  7th  January,  1880.     On  the  28th 
September,  1880,  the  Munsif  decided  that  he  had  no 
jurisdiction  and  returned  the  plaint  on  the  29th.     On 
the  30th  the  suit  was  filed  in  the  proper  court.     It  was 
held  that  the  plaintiff  was  entitled  to  the  benefit  of  this 
section. 

(2-g)    In  Gnracharya  v.  The  President  of  the  Belgaum  b.  h. 

Town  Municipaties/*)  the  suit  was  brought  under  section  section  allowed 
86,  of  the  Bombay  Municipal  Act  VI,  of  1873,  in  the  court  the*  Bomba^  er 
of  the  District  Judge  of  Belgaum,  on  the  30th  January,   (janeus*.) 
for  the  cancellation  of  an  order  passed  by  the  Municipality 
on  the  31st  October,  1881.    The  plaint  was  returned  for 


(1)  I.  L.  R.,  10  Calc,  265.      |      (2)  I.  L.  R.,  8  Bom.,  529. 


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112 


PART  III.— COMPUTATION  OP  PERIOD  OP  LIMITATION.     [8EC.  14 


B.  H. 

Application 
made   within 
time  to   a  con- 
ciliator for  exe- 
cution of  a  de- 
cree passed  be- 
fore the  Dekkan 
Agriculturists' 
Relief  Act  17  of 
1879  held  not  to 
save  limitation. 
(October  1881.) 


B.H. 

Bat  time  occu- 
pied in  obtain- 
ing such  a  cer- 
tificate to  sue 
was  excluded  in 
computing  the 
period  for  it. 
(April  1884.) 


want  of  jurisdiction  on  the  6th  February,  1882,  and  was 
subsequently  presented  on  the  same  day  to  the  Sub- 
ordinate Judge  of  Belgaum.  Section  86,  of  the  Municipal 
Act  required  institution  of  such  a  suit  within  three  months 
next  after  the  final  order.  It  was  held  that  the  provisions 
of  this  section,  taken  together  with  section  6  of  the  Act, 
applied  to  the  case  so  as  to  exclude  the  period  between 
30th  January  and  6th  February,  1882,  in  computing  the 
period  of  three  months. 

(2-h)  In  Manohar  v.  Gebiapa,*1)  plaintiff  applied  on  the 
7th  July,  1877,  for  execution  of  his  decree.  The  Sub-judge 
directed  that  the  application  must  be  accompanied  by  a 
conciliators  certificate,  which  the  plaintiff  applied  for,  on 
the  5th  July,  and  obtained  on  the  17th  July,  1880,  and 
renewed  his  application  to  the  court  on  the  23rd  July, 
1880,  that  is  after  the  expiration  of  three  years.  It  was 
held  in  October,  1881,  that  a  conciliator  appointed  under 
the  Dekkan  Agriculturists'  Relief  Act,  not  being  a  court, 
the  presentation  of  an  application  to  him  for  execution  of 
a  decree  would  not  save  the  limitation,  if  the  application 
to  the  proper  court  was  time-barred. 

(2-i)  In  Durgaram  Maniram  v.  Shripati,W  plaintiff's 
attachment  of  debtor's  property  having  been  raised  on  the 
7th  October,  1879,  at  the  instance  of  the  defendant,  he 
filed  the  suit  on  the  14th  December,  1880,  to  have  it 
declared  that  the  property  was  liable  to  be  sold.  The 
suit  was  brought  more  than  a  year  after  the  property  was 
released.  The  necessity  to  procure  a  conciliator's  certi- 
ficate before  the  entertainment  of  suit  to  which  an  agri- 
culturist, residing  within  any  local  area,  for  which  a 
conciliator  has  been  appointed,  is  a  party,  is  not  limited 
to  suits  specified  in  section  3  of  Act  XYII  of  1879,  but 
extends  to  all  matters  within  the  cognizance  of  a  Civil 
Court.  It  was  held  by  a  Division  Bench  (Nanabhai  Hari- 
das  and  Birdwood  J.  J.,)  that,  as  such  certificate  was 
necessary  before  a  suit  was  commenced,  in  computing  the 
period  of  limitation  for  such  a  suit,  the  time  intervening 

(1)  I.  L.  E.,  6  Bom.,  31.      |    (2)  I.  L.  R.,  8  Bom.,  411. 


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SBC.  14]      PART  m.— COMPUTATION  OP  PERIOD  OF  LIMITATION.  113 

between  the  application  to  the  conciliator  and  the  grant 
of  a  certificate  by  him  nfust  be  excluded. 

(2-j)     In  Parry  and  Go.  v.  Appasami  Pillai/1)  plaintiff  This  lection 

sued  to  recover  the  price  of  Indigo  sold  to  the  defendant  in  to  plaintiff  who 

February,  1875,  the  payment  of  which  was  decreed  by  the  court  which  ac- 

tribnnal  of  Pondicherry  in  November,  1875.     The  ground  laws  had  juris- 

of  the  present  action  was,  first  the  judgment  of  the  foreign  cording  to  law 

J  of  British  India 

court,  and  secondly,  the  alleged  sale  and  delivery  of  indigo,  had  no  jurisdio- 
The  defendants  pleaded  that  the  French  Court  had  no 
jurisdiction,  and  that  the  claim  was  barred.  Muttusami 
Ayyar,  J.,  held  that  there  was  nothing  in  the  language  of 
this  section  rendering  it  inapplicable  to  proceedings 
instituted  in  a  foreign  court.  In  appeal,  a  Division  Bench 
(Turner,  0.  J.  and  Forbes,  J.,)  observe,  "The  French  Courts 
were  not,  from  defect  of  jurisdiction  or  otherwise,  unable  to 
entertain  the  claim.  In  the  proper  exercise  of  a  jurisdic- 
tion conferred  *bn  them  by  the  law  of  France,  they  have 
entertained  the  claim  and  passed  decrees  which  are 
effectual  in  French  territory.  The  respondents  elected 
the  forum,  and  although  under  the  circumstances  the 
British  Courts  may  refuse  to  enforce  the  decree  they  have 
obtained,  this  circumstance  does  not  bring  the  case  within 
the  provisions  of  section  14  of  the  Limitation  Act.  The  court  expresses 
claim  on  the  contract  is  then  barred  by  Limitation."  They  whetheTunder 
further  observe,   "  We   desire  to  be  understood  as  ex-  stances  this  seo- 

.    .  ,     , ,  j  .  ,  tion  can  bo  ap- 

pressing   no  opinion  whether  under  any  circumstances  plied  to  suits 

those  provisions  allow  the  deduction  of  the  period  occu-  Foreign  courts, 
pied  by  litigation  in  foreign  courts,  for  on  another  ground 
we  hold  them  inapplicable  in  this  case." 

(2-k)     In  Mangu  Lai  v.  Kandhai  Lal,W  plaintiff  and  where  plain- 
defendant  having  had  some  pecuniary  dealings  adjusted  his  redemption 
their  accounts   in  October,  1881,   which  resulted  in   a  from  the  mort- 
balance  of  Rs.  1,457,  of  which  defendant  paid  Rs.  885-15-0  mo^y^uTby 
and  reduced  tbe  balance  to  Rs.  600.     The  plaintiff  in  account,  was 
1873  having  purchased  the  equity  of  redemption  of  certain  S^aaS*  °to 
property  which  the  defendant  held  on  mortgage,  sued  the  agreement  so  to 
latter  in  November,  1884,  for  redemption.     In  that  suit  hefdnotentiSed 


to  the  benefit 


(1)  I.  L.  R.,  2  Mad.,  407.    |    (2)  I.  L.  R.,  8  All.,  475. 
15 


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114  PART  III. — COMPUTATION  OF  PERIOD  OF  LIMITATION.      [fiBC,  1  5 

of  this  section  the  plaintiff  deducted  from  the  mortgage  amount  the 

when  he  sued     _ 

for  the  money  balance  on  account,  alleging  that  in  December,  1881,  it  had 
been  settled  that  whenever  he  should  claim  redemption 
he  should  be  allowed  to  take  credit  the  balance  due  on 
account.  In  February,  1885,  the  plaintiff's  claim  to  deduct 
the  balance  was  disallowed  on  his  failing  to  prove  the 
alleged  oral  agreement,  and  he  was  directed  to  redeem  on 
payment  of  the  full  mortgage  debt.  The  plaintiff  brought 
the  second  suit  in  March,  1885,  and  claimed  the  benefit  of 
this  section  by  stating  that  the  time  that  the  former  suit 
was  pending  should  be  deducted.  The  court  held  that 
although  it  could  not  be  doubted  that  the  plaintiff  pro- 
secuted the  former  suit  with  due  diligence  and  in  good 
faith,  and  that  that  suit  was  another  civil  proceeding,  yet, 
as  the  former  suit  was  not  founded  upon  the  same  cause  of 
action  and  as  it  was  disallowed  not  for  a  defect  of  juris- 
diction or  any  cause  of  a  like  nature,  the  plaintiff  was  held 
not  entitled  to  the  benefit  of  this  section. 

Exclusion  of         15.     In  computing  the  period  of  limitation 

time   during  j.  o  j. 

m^wm^of    prescribed  for  any  suit,  the  institution  of  which 
SunctioTl>?y  has  been  stayed  by  injunction  or  order,  the 

order.  ~  *  »      t         •     • 

time  of  the  continuance  of  the  injunction  or 

order,  the  day  on  which  it  was  issued  or  made, 

and  the  day  on  which  it  was  withdrawn,  shall 

be  excluded. 

This  section  (a)     This  section  does  not  apply  to  application  for 

to  decrees  the  execution  of  decrees  where  such  exeoution  has  been  stayed 

which  was        by  an  injunction,  or  order,  pending  either  the  disposal  of 

junction.7     '    an  appeal  or  a  regular  suit  instituted  for  the  purpose  of 

removing  obstructions  to  execution.     But  in  the  case  of 

an  injunction  issued  pending  the  disposal  of  a  regular 

when  staved      suit,  the  difficulty  is  got  over  by  treating  the  application 

posaiof  suit,       of  the  decree-holdjer  after  the  removal  of  the  injunction, 

over  by  treating  as  au  application  for  the  continuance  or  revival  of  the 

^revival0*©?11  former  proceedings.     In  the  case  of  suspension  of  execn- 

in££er&>  dim-  tion  pending  the  disposal  of  an  appeal  against  a  decree, 

outy   w  en        no  difficulty  kas  j,een  fe^  ^  ^he  d^ree  under  execution 


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8BC.  15]      PART  in.— COMPUTATION  OF  PERIOD  OF  LIMITATION.  115 

becomes  final  only  after  the  disposal  of  appeal   (vide  Btayed  pending 

__  "  disposal  of  ap- 

Note,  I.)  peaL 

(b)    Civil  Procedure  Code  of  1882,  section  320,  pro-  o.  p.  o.  of  1882 
Tides  for  execution  of  decrees  by  a  Collector  under  special  of  time  that  a 

,  ,  ,    ^  x  M.        *  Civil    C011^     i8 

rules  that  the  local  Government  may  prescribe  from  time  prohibited  from 
to  time.  Section  323  provides  for  the  adoption  of  a  oree  referred  to 
scheme  by  the  Collector  according  to  his  discretion,  of  liqui-  execution. 
dation  of  money  decrees.  Section  325- A.,  clause  1,  places 
restriction  on  alienation  in  any  way  by  judgment-debtor 
or  his  representative  and  prohibits  prosecution  of  reme- 
dies by  decree-holders.  Clauses  II  and  III  run  as  follow: — 
"  During  the  same  period  no  Civil  Court  shall  issue  any 
process  of  execution  either  against  the  judgment-debtor 
or  his  property  in  respect  of  any  decree  for  the  satisfac- 
tion whereof  provision  has  been  made  by  the  Collector 
under  section  323.  The  same  period  shall  be  excluded  in 
calculating  the  period  of  limitation  applicable  to  the 
execution  of  any  decree  affected  by  the  provisions  of  this 
section  in  respect  of  any  remedy  of  which  the  decree- 
holder  has  thereby  been  temporarily  deprived." 

(C)     One  of  two  partners  died.    His  widow  sued  the  creditor  or  Re- 
surviving  partner  to  wind  up  the  partnership,  and  on  the  dncTtne^riod 
29th  October,  1880,  obtained  an  injunction  prohibiting  prohibiting 
the  collection  of  debts  due  to  the  firm.     The  order  inti-  debta totLe  date 
mated  that  application  might  be  made  to  recover  debts  appointment? 
that  might  become  barred.  On  the  20th  September,  1882, 
the  widow  obtained  a  decree,  awarding  to  her  a  very 
large  sum.  After  finding  it  difficult  to  execute  the  decree, 
she  got  a  receiver  appointed,  who  brought  a  suit  to  re- 
cover a  debt  due  by  a  debtor  upon  mutual  accounts, 
balanced  up  to  the  20th   March,  1880.    The    defendant 
pleaded  that  the  receiver's  appointment  was  ultra  vires  and 
that  the  debt  was  barred.     It  was  held,  that  although  an  order  to  sue  for 
application  might  have  been  made  for  a  special  order  to  become  leaned 
recover  any  debt  that  might  become  barred,  the  person,  title  the  creditor 
having  the  right  to  sue,  was  not  bound  to  make  an  appli-  time. 
cation,  and  that  the  plaintiff  was   entitled  to  a  deduction 
of  the  period  from  the  date  of  the  injunction  up  to  the 


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(January  1868.) 


116  PART  III.— COMPUTATION  OP  PERIOD  OP  LIMITATION.      [SEC.  15 

date  of  the  receiver's  appointment.     Shnnmngam  v.  Moi- 

din.(D 
Time  that  a  (<J)     Where  a  bond  was  seized  under  legal  process  of 

attachment  ex-  attachment  after  it  had  become  dne,  but  before  the  lapse 

eluded  under  * 

Regulation  n  of  of  12  years  from  its  date  and  remained  under  attachment 

1802    sec     18 

ci.i  "  '  for  several  years,  it  was  held,  that  there  was  "good  and 
sufficient  cause"  for  the  lapse  of  time  within  the  meaning 
of  Regulation  II  of  1802,  section  18,  clause  4,  and  that  a 
suit  on  the  bond  was  therefore  not  barred.  Kadar 
Bacha  Sahib  v.  Rangasami.(*) 
This  section  (e)    In  Lutful  Huq  v.  Sumbhudin  Pattuck<3>  Princep,  J,9 

tosuspensto^o?  observes,  "it  is  contended  that  execution  is  barred  under 
SSSe^ln*  Article  179,  schedule  II,  Act  XV  of  1877,  and  it  has  been 
junction.  brought  to  our  notice  that,  under  the  terms  of  section  15 

of  that  Act,  a  decree-holder  would  not  be  entitled  to  any 
exclusion  of  time  during  which  execution  was  suspended 
by  an  injunction,  in  calculation  of  the  period  allowed  by 
the  Law  of  Limitation.  It  might  thus  happen  that,  if 
the  injunction  remained  in  force  for  three  years,  execu- 
tion could  be  absolutely  barred.  This  appears  to  be  the 
present  state  of  the  law."  In  Kalyanbhai  Dipchand  v.  Gha- 
nasham  Lai  Jadunathji,*4)  it  was  held,  that  as  this  section 
only  relates  to  injunctions  staying  the  i institution  of  suits, 
and  as  the  word  "  suit"  does  not  include  an  application, 
the  time  during  which  an  injunction  obtained  against  the 
execution  of  a  decree  was  in  force  cannot  be  deducted  in 
injunction  had  computing  the   period  of   Limitation  within  which   an 

been  issued  .        # 

pending  the      application  for  execution  may  be  made.     In  this  case  exe- 
suit  by  a  third  cution  had  been  stayed  by  injunction  pending  the  disposal 
of  a  suit  brought  by  a  third  party. 
b.  h.  (f)     In  Chandi  Prasad  Nandi  v.  Raghunath  Dhar,<6>  it 

The  time  that  a  -    , ,    .     _r         ,,-»„«    .,     ,    .  ,,,.         .,  .    -.      ~ 

decree  was  un.  was  held  in  May,  1869,  that  in  calculating  the  period  of 
should  net  be  three  years  from  the  date  when  effectual  proceedings  had 
the  time  within  last  been  taken  to  keep  alive  a  decree,  the  period  during 
should  be  taken  which  the  decree  had  remained  under  attachment  in  exe- 
(juiy  1874.)        cution  of  a  decree  against  the  judgment-creditor  should 


m  I. 

(2)  i: 


L.  R.,  8  Mad.,  230.  I     (8)  I.  L.  R.,  8  Calo.,  248 
Mad.,  H.  C.  RM  160.  |    (4)  I.  L.  R.,  5  Bom.,  29. 
(5)  B.  L.  R,  3  App.,  62. 


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SBC.  15]      PART  III.— COMPUTATION  01  PERIOD  OP  LIMITATION.  117 

be  deducted.  In  Mir  Ajmnddin  v.  Mathura  Das/1)  the  c.  h.  bad  held 
Bombay  High  Court  held,  in  July,  1874,  that  the  period  MaJTSSi 
during  which  a  decree  remains  under  attachment  Bhonld 
not  be  deducted  from  the  time  within  which  proceedings 
must  be  taken  for  the  execution  of  the  decree.  A  notice 
or  order  to  judgment-debtor  A>  not  to  pay  the  amount 
decreed  to  his  judgment-creditor  B,  will  not  in  any  case 
serve  to  keep  the  decree  alive  in  favor  of  C,  a  judg- 
ment-creditor of  By  at  whose  instance  the  notice  or  order 
is  issued,  much  less  in  favor  of  other  judgment-creditors 
of  B,  with  whom  A,  had  nothing  to  do. 

(g)     In  Krishna  Chetty  v.  Rami  Chetty,<2>  on  the  last  M.  h.  held  that 
application  for  execution,  dated  September,  1871,  judg-  lsn  the  time, 
ment-debtor's  property  was  attached  in  November,  1871,  debtor  "prose?1 
but  the  attachment    was  withdrawn  on  the  claim  pre-  suit  to  remove 
ferred  by  a  third  party ;  and  the  application  was  struck  execution,  can- 
.off  the  file  in  February,  1872.     The  plaintiff  sued  to  hold  ed  from  the 
the  property  liable  for  his  decree,  and  lost  his  case  in  the  Son  for  exeou- 
court  of  first  instance  in  October,  1873,  but  succeeded  in  (October  1875.) 
appeal  in  October,   1874,  on  which  date  the  Appellate 
Court  held  the  property  liable.     The  decree-holder  subse- 
quently applied  for  execution  within  three  years  from  Feb- 
ruary,  1872.     A  Division  Bench    (Morgan,    C.   J.,   and 
Kindersley,  J.,)  in  October,  1875,  held  "  the  application  as 
made  is  barred,  for  the  appointed  time  has  expired  and 
we  are  not  authorized  by  the  Act  to  apply  to  proceedings 
in  execution,  provisions  enacted  for  extending  the  period 
in  certain  cases  where  the  limitations  of  suits  is  in  ques- 
tion."   In  this  case,  the  decree  was  one  passed  in  a  suit  in- 
stituted before  the  1st  of  April,  1873,  and  under  section  1, 
clause  A.  of  Act  IX  of  1871,  Act  XIV  of  1859  governed 
the  application  for  execution,  but  the  High  Court  follow- 
ing their  own  decision  in  Naranappa  v.  Nanna  AmmaK*) 
and  the  decision  of  the  Bombay  High  Court,  dated  June, 
1874,  in  Govind  Lakshuman  v.  NarayanW  held  that  the 
application  was  governed  by  Act  IX  of  1871,  and  that 


(1)  Bom.  H.  C.,11,  p.  206.  I  (3)  8  Mad.,  H.  C.  R.,  97. 

(2)  8  Mad.,  H.  C.  R.,  99.     |  (4)  11  7  ~    " 


Bom.,  H.  C.  R.,  111. 


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118  PART  III. — COMPUTATION  OP  PERIOD  OP  LIMITATION.      [8EC.  15 

time  should  be  computed  from  the  date  of  the  prior  ap- 
AnothorMadma  plication.  In  Mahalakshmi  v.  Lakshmi,*1)  in  execution 
effect.     e  of  a  decree,  dated  June,  1868,  attachment  of  property  was 

(October  1875.)    withdrawn  in  February,  1870,  on  the  claim  of  a  third 

party,   and  the  application  was  dismissed  on  the  same 
date.     The  decree-holder's  regular  suit  dated  October, 
1870,  was  disposed  of  in  his  favour  in  October,  1873,  and 
the  decree  was  affirmed  on  appeal  in  April,  1874.     The 
decree-holder,  in  June,  1874,  applied  for  execution.     The 
High  Court  held  that  the  application  was  barred.     The 
Court  observed  Judges  observe  that  the  litigation  between  the  decree- 
Act  xiv  of  1860  holder  "  and  a  successful  claimant  would  have  saved  the 
have  been  made  decree-holder  under  the  old  Act,  for  it  was  a  proceeding 
taken  within  the  meaning  of  section  20,  but  the  new  Act 
makes  the  date  of  applying  to  the  court  to  enforce,  Ac., 
the  time  from  which  the  computation  must  be  made.    We 
can  no  longer,  therefore,  make  deductions  on  account  of 
proceeding  between  the  decree-holder  and  third  persons." 
Decree-holder's        (h)     In  Bagava  Pishardi  v.  Ayuman  Jiri  Mankal  Thu- 
Jaie  o?au2ched  pan/2)  a  decree-holder  applied  for  the  sale  of  certain 
d^posaTof ter    property  then  under  attachment  in  the  suit.     The  court 
exdtoraspectinff  refused  to  issue  process  for  the  sale  on  the  ground  that 
as  renewal  of    the  property  could  not  be  sold  as  certain  claims  and  suits 
tioTfor  aaFe.0*"  respecting  it  were  still  pending.     The  claims  and  suits 
derTLct  xiv°of  having  been  determined,   the  application  was  renewed 
(March  1860.)      when  more  than  three  years  had  elapsed  between  the  date 
of  the  order  on  the  1st  application  and  the  date  of  the  re- 
newed application.     It  was  held  in  March,  1869,  that  the 
second  application  was  not  barred,  the  order  upon  the  first 
application  operating  simply  as  a  temporary  stay  of  pro- 
cess for  the  sale  of  the  property,  and  there  was  a  pending 
proceeding  to  enforce  the  decree  during  the  stay. 
b.h.  (i)     In    Kalyan  Bhai  Dipchand  v.   Ghanasham    Lai 

execution  after  Jadunathji/3)  it  was  held,  that  where  an  application  for 
the  injunction  execution  has  been  made  and  granted,  but  the  right  to 
the  digpoeaiof  a  execute  has  been  subsequently  suspended  by  an  injunction 

suit,  woe  treat- 
ed as  revival  of 
the  execution 

poceedings.  (1)  8  Mad.,  H.  C.  R.,  105.  |  (2)  4  Mad.,  H.  C.  R.,  261. 

tSep.  lSaT.)  (3)  i.  L.  R>>  6  Bom,,  29. 

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SEC.  15]     PART  IU. — COMPUTATION  OF  PERIOD  OP  LIMITATION.  119 

or  other  obstacle,  the  decree-holder  may  apply  for  a  revi- 
val of  the  proceedings  within  three  years  from  the  date 
on  which  the  right  to  apply  accrues,  t.  e.,  the  date  on 
which  the  injunction  or  other  obstacle  is  removed.     Such  Such  case  was 

*     i  i  ,       *   ii  -i         a     j  •    i     i  »*<-»        mi  .  neld  to  faU 

cases  were  held  to  fall  tinder  Article  178.     This  was  a  case  under  Article 

178 

where  execution  was  stayed  pending  the  disposal  of  a 

regular  suit.     The  Allahabad  High  Court  adopted  the   a.  h.  followed 

same  view  in  Basant  Lai  t?.  Batul  Bibi,^)  which  was  a  decision  in  July 

*  *  .  .  Till.  1  »  1883      "**     al8° 

case  of  suspension  of  execution  pending  the  disposal  of  an  applied  to  an 

execution  case. 

objector's  suit,  and  they  also  followed  it  in  Buti  Begam 

v.  Nihal  Chand,(2>  in  which  execution  had  been  stayed, 

pending  the  disposal  of  an  appeal  against  the  decree.     In 

Lutful  Huq  v.  Sumbhudin  Pattuck/3)  in  which  execution  c.  h.  held  stay 

of  an  ez-parte  decree  was  suspended,  pending  the  disposal  pending  appeal 

of  an  appeal  by  the  defendant,  it  was  held,  that  though  the  decreeSioider, 

decree-holder  was  not  entitled  to  deduct  the  time  that  ing'ftnai  only 

execution  was  suspended  by  court's  order,  his  application,  appeal.  p08a^° 

made  more  than  three  years  after  the  decree,  is  not  barred, 

the  decree  not  becoming  final  until  the  dismissal  of  the 

appeal.     The  words  "  where  there  has  been  an  appeal" 

used  in  clause  2,  Article  167  of  Act  IX  of  1871,  occur  in 

clause  2  of  Article  179  of  Act  XV  of  1877.     With  reference 

to  these  words  the  Allahabad  High  Court  in  Sheo  Prasad 

v.  Anrudh  Singh/4)  held  that  those  words  contemplate 

and  mean  an  appeal  from  the  decree  and  do  not  include 

an  appeal  from  an  order  dismissing  an  application  to  set 

aside  a  decree  under  section  119  of  Act  VIII  of  1859. 

(j)     Section  29  of  the  Punjab  Act,  IV  of  1872,  operates  Can  the  time 
by  way  of  an  injunction,  as  it  provides  "  such  order  of  dis-  proceedings  in 
charge  shall  preclude  any  creditor  whose  claim  is  regis-   excluded  under 
tered  from  suing  the  debtor  in  respect  of  such  claim,  unless 
it  be  shewn  that  the  debtor  has  acquired  property,  since 
the  order  of  discharge,  out  of  which  the  claim  might  have 
been  defrayed."    With  reference  to  these  provisions  it  was 
held  in  Wazir  Mahomad  Khan  v.  Mahomad  Imam  Khan, 
Punjab  Becord  No.  66  of  1874,  referred  to  by  Mr.  H.  D. 

(1)  I.  L.  R.,  6  All.,  23.      I     (3)  I.  L.  R.,  8  Oalc,  248. 

(2)  I.  L.  R.,  5  All.,  469.      |     (4)  I.  L.  R.,  2  All.,  273. 


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120  PART  HI.— COMPUTATION  Of  PERIOD  OP  LIMITATION.      [SRC.  15 

Rivaz,  in  his  work  on  limitation,  that  the  time  occupied 

by  proceedings  in  bankruptcy  with  regard  to  the  claim  of 

c.  p.  c.  of  1881  a  registered  creditor  must  be  excluded.     Chapter  20  of 

does  not  proride 

ft>r«uyof  legal  the  Civil  Procedure  Code  of  1882  contains  no  such  pro- 
*gftiMt lnd°r'8  v*8^on  or  provision  to  stay  legal  proceedings  against  the 
ffrt3Dendeng  P61"8011  and  property  of  a  judgment-debtor  pending  the 
for  toJS0**4011  ^18P08al  °*  n*8  application  for  a  certificate  of  insolvency. 
Section  352  requires  creditors  to  prove  their  debt,  and  a 
schedule  to  be  framed,  and  provides  that  "  the  declaration 
under  section  351"  (declaration  of  insolvency)  "  shall  be 
deemed  to  be  a  decree  in  favour  of  each  of  the  said  credi- 
tors for  their  said  respective  debts."  Section  353  provides 
for  applications  by  unscheduled  creditors.  Section  357 
provides  against  an  insolvent  discharged  under  section 
351  being  arrested  or  imprisoned  on  account  of  any  of  the 
schedule  debts.  It  also  provides  for  attachment  and  sale 
of  debtor's  property  attachable  for  debt,  whether  previ- 
ously or  subsequently  acquired,  until  the  debts  due  to  the 
scheduled-creditors  are  satisfied  to  the  extent  of  one-third, 
or  until  the  expiry  of  twelve  years  from  the  date  of 
discharge. 

(k)  Creditors  opposing  the  application  may  consist 
of  decree-holders  who  may  have  taken  out  execution,  and 
persons  who  may  have  instituted  regular  suits  to  recover 
debts  in  other  courts.  While  they  are  entitled  to  oppose 
the  application  and  prove  their  debts  in  the  courts  in 
which  the  petition  is  pending,  they  need  not  enforce  their 
decrees  or  prosecute  their  suits  in  the  other  courts.  In 
the  absence  of  any  express  provision,  notice  served  upon 
creditors  will  not  have  the  effect  of  an  injunction  or  order 
binding  the  other  courts  to  stay  proceedings. 
Indian  B*nk.  (1)  The  Indian  Bankruptcy  Bill  No.  6  of  1886,  in- 
tTJn*  o  and  10  troduced  into  the  Imperial  Council  on  the  20th  May,  1886, 
of  proceedings,  propose,  by  sections  9  and  10,  to  empower  the  court  enter- 
taining a  bankruptcy  petition  to.  stay  by  an  order  any 
suit  or  other  legal  proceeding  pending  before  any  Judge 
or  in  any  court  in  British  India,  and  service  of  the  order 
on  such  Judge  or  court.    The  latter  part  of  clause  2,  section 


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SEC.  16}      PABT  HI.— COMPUTATION  OF  PERIOD  OP  LIMITATION.  121 

9,  proposes  to  empower  any  court  in  which  proceedings 
are  pending  against  a  debtor,  on  proof  that  bankruptcy 
petition  has  been  presented  against  the  debtor,  either  to 
stay  the  proceedings  or  allow  them  to  continue  on  such 
terms  as  it  may  think  just. 

16.     In  computing  the  period  of  limitation  Exclusion  of 

.  *  time   during 

prescribed  f or  a  suit  for  possession  by  a  pur-  ^JiJjJS"  j, 
chaser  at  a  sale  in  execution  of  a  decree,  the  JS^'exec^. 
time  during  which  the   judgment-debtor  has 
been  prosecuting  a  proceeding  to  set  aside  the 
sale,  shall  be  excluded. 

(a)  This  section  is  one  of  the  five  sections,  namely,  9,  This  Motion 
13,  14,  15,  16,  which  provide  for  the  extension  of  the  any  condition 
prescribed  period  of  limitation  under  certain  circumstan-  uandisdo! 
ces.  The  provisions  of  this  section  were  for  the  first  time 
enacted  by  section  17  of  Act  IX  of  1871.  Without  un- 
loosing the  conditions  of  good  faith,  diligence  and  want 
of  jurisdiction  as  the  other  sections  do,  this  section  simply 
entitles  the  purchaser  to  exclude  the  time  during  which 
the  judgment-debtor  has  been  prosecuting  a  proceeding  to 
set  aside  the  sale.  The  corresponding  section,  17  of  Act 
IX  of  1871,  used  the  word  "  suit/'  which  has  been  altered 
in  this  Act  (of  1877)  into  "proceeding."  Plaintiff  in  tf 
trait  may  be  judgment-debtor  within  the  meaning  of  that 
term  used  in  this  section,  if  he  owed  the  defendant  costs  of 
the  suit  or  any  sum  of  money  under  the  terms  of  the 
decree  for  which  his  property  may  be  attached  and  sold. 

Cb)     Distinct  provisions  similar  to  those  contained  in  Even  before  Act 

,.  .      ,    »      ,  i  A  *  •    xi      t-    -x  x-        ax  iXofisnc.H. 

this  section  had  not  been  enacted  in  the  Limitation  Act  held  a  pnrobas- 

of  1859.     The  Calcutta  High  Court  in   Copaul  Chunder  exclude  the  time 

Ghose  v.  Raj   Chunder  Dutfc,*1)  held  that  in  a  suit  for  debtor's  case  to 

possession  of  property  by  a  purchaser  at  a  sale  in  exe-   was  pending. 

cution  of  a  decree,  limitation  will,  not  reckon  during  the 

time  that  the  judgment-debtor's  case  to  set  aside  the  sale 

was  pending  in  the  Civil  Court.     The  case,  as  reported, 

is  as  follows  : — 


(1)  2  W.  £.,  Misc.  A.,  9. 
16 


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122  PART  III.— COMPUTATION  OP  PERIOD  OF  LIMITATION.      [81C.  17 

The  petitioner  purchased  some  property  belonging  to 
a  judgment-debtor,  Tripoora  Dossee,  so  far  back  as 
1846.  He  applied  for  certificate  and  possession ;  but 
the  Civil  Court  in  1847  held  that,  till  the  suit  brought  by 
Tripoora  to  set  aside  that  sale  was  disposed  of,  no  order 
for  possession  could  be  given.  Tripoora's  case  was  not 
finally  disposed  of  till  1856,  and  in  1861  the  petitioner 
applied  for  possession  under  the  provisions  of  sections 
259  and  263  of  Act  VIII  of  1859.  This  application  was 
struck  off  in  1862.  The  petitioner  applied  again  for  pos- 
session in  1863,  and  the  first  court  held  that  the  application 
was  barred  by  limitation.  On  appeal,  to  the  Judge,  he 
rejected  the  petition,  on  the  ground  that  the  law  did  not 
provide  for  an  appeal  in  such  cases.  We  think  the  view 
of  the  law  taken  by  the  Judge  is  correct ;  but  looking  at 
the  decision  of  the  first  court,  we  do  not  see  very  clearly 
how  the  Principal,  Sudder  Ameen,  has  been  able  to  apply 
the  law  of  limitation,  for  it  is  clear  that  the  petitioner  is 
entitled  to  all  the  time  during  which  Tripoora's  case  was 
pending  in  the  Civil  Court.  As,  however,  there  is  no 
appeal  to  this  court,  we  think  the  proper  course  for  the 
petitioner  to  follow  is  to  ask  for  a  review  of  the  judg- 
ment of  the  first  court,  if  so  advised.  This  appeal  is  re- 
jected with  costs. 

Effect  of  death       17.    When  a  person  who  would,  if  he  were 

before  right  to  r  * 


sue  accrues. 


living,  have  a  right  to  institute  a  suit  or  make 
an  application,  dies  before  the  right  accrues, 
the  period  of  limitation  shall  be  computed  from 
the  time  when  there  is  a  legal  representative 
of  the  deceased  capable  of  instituting  or  making 
such  suit  or  application. 

When  a  person  against  whom,  if  he  were 
living,  a  right  to  institute  a  suit  or  make  an 
application  would  have  accrued  dies  before  the 
right  accrues,  the  period  of  limitation  shall  be 
computed  from  the  time  when  there  is  a  legal 


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8BC.  17]      PABT  III.— COMPUTATION  OF  PERIOD  OF  LIMITATION.  123 

representative  of  the  deceased  against  whom 
the  plaintiff  may  institute  or  make  such  suit  or 
application. 

Nothing  in  the  former  part  of  this  section 
applies  to  suits  to  enforce  rights  of  pre-emption 
or  to  suits  for  the  possession  of  immoveable 
property  or  of  an  hereditary  office. 

(a)  "  It  is  laid  down  that  '  a  cause  of  action  cannot  a  ohm  of 
exist,  unless  there  be  also  a  person  in  existence  capable  exist  unless 
of  suing.'  Hence,  if  a  person  to  whom  a  cause  of  action  person  in  ex- 
would  have  accrued  if  he  were  living,  die  intestate  be-  of  suing. 
fore  the  cause  of  action  accrues,  the  statute  does  not 
begin  to  run  till  administration  has  been  taken  out; 
this  was  first  held  in  Stamford's  case,  which,  although 
decided  on  the  Statute  of  Fines,  4  Hen.  7,  c.  24,  applies  in 
principle  to  the  Statute  of  James  ;  it  was  approved  of  in 
Cary  v.  Stephenson,  and  ultimately  established  in  Murray 
v.  East  India  Company.  (5  B.  and  Aid.,  204.)  In  that 
case  certain  bills  drawn  in  favor  of  a  testator  were  accept- 
ed, and  became  payable  after  his  decease ;  no  executor  was 
appointed,  and  administration  with  the  will  annexed  was 
granted  after  the  bills  became  payable ;  the  first  adminis- 
trator died,  and  administration  de  bonis  non,  with  the  will 
annexed,  was  granted  to  the  plaintiff.  More  than  six 
years  had  elapsed  since  the  bills  became  payable,  but  not 
since  the  time  of  the  grant  of  the  first  letters  of  adminis- 
tration. It  was  decided  by  the  Court  of  Queen's  Bench, 
that,  on  the  principle  laid  down  above,  the  time  did  not 
begin  to  run  till  such  grant.  A  common  case  to  which  this 
principle  would  apply  is,  where  an  administrator  brings 
an  action  on  a  policy  effected  on  the  life  of  the  intestate. 
On  the  same  principle,  it  was  held  that  if  a  suit  abated 
by  the  death  of  the  plaintiff  intestate,  his  personal  repre- 
sentative might  file  a  bill  of  revivor  or  supplement  within 
six  years  after  administration  was  taken  out,  however  long 
a  time  might  have  elapsed  between  the  abatement  and  Executor  may 
the  granting  of  the  letters  of  administration.  It  will  be  §ng.    omvmr" 


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124  PART  III.— COMPUTATION  OF  PERIOD  OP  LIMITATION.       [SBC.  17 

observed  that  in  all  these  cases  the  plaintiff  was  adminis- 

strator,  and  not  executor,  and  it  is  clear  that  the  rule  does 

Where  an  ex©-  not  apply  where  an  executor  is  appointed,  and  after  the 

appointed  by     cause  of  action  accrues  proves  the  will,  for  the  right  of 

be  said  that      an  executor  to  sue  vests  in  him  by  virtue  of  the  will,  and 

person  capable  he  may  commence  the  action,  although  he  has  not  yet 

proved,  and,  therefore,  it  cannot  be  said  that  there  was 

not  a  person  in  existence  capable  of  suing." 0) 

No  one  has  a       (b)     "  As  a  cause  of  action,  or,  more  strictly  speaking, 
complete  cause 

of  action  until  a  perfect  cause  of  action,  cannot  exist  unless  there  is  a 

there  is  some 

one  that  he  can  person  in  existence  capable  of  suing ;  so,  on  the  other 

hand,  a  perfect  cause  of  action  being  the  right  to  prosecute 
an  action  with  effect,  no  one  has  a  complete  cause  of  action 
until  there  is  somebody  that  he  can  sue.     If,  therefore,  a 
person  is  dead  at  the  time  when  a  cause  of  action  would 
have  arisen  against  him,  the  time  does  not  begin  to  run 
against  the  plaintiff  until  there  is  a  personal  represents^ 
If  an  executor  tive  in  existence  whom  the  plaintiff  may  sue."     "  If,  how- 
ting  the'wEiT  ever,  an  executor  has  acted  before  proving,  as  he  thereby 
from  hisaoting.  renders  himself  liable  to  be.  sued,  the  time  would  run  from 
his  acting,  and  not  from  his  proving  the  will.     In  Webster 
v.  Webster,  (10  Yes.  93)  in  which  this  point  was  first  decide 
If  ^"J^SSt1  to  e^*  **  8eem8  *°  nave  heen  overlooked  that  the  testator  might 
plaintiff  in  the  have  been  sued  in  his  own  life-time.     It  is.  however,  per- 

life-time  of  the  _  r 

person  liable  to  f ectly  clear  that  the  time  having  begun  to  ran  against  a 
of  a  personal    plaintiff  in  the  life-time  of  a  person  against  whom  he  has  a 

representative      r.  - 

will  not  prevent  right  of  action,  the  want  of  a.  personal  representative  to 
ning.  be  sued  will  not  prevent  the  time  continuing  to  run."<2) 

Le$ai  represen-       (c)     In  the  case  of  persons  governed  by  the  Indian 

tatave  under        «  .         *  , 

Indian  Sucoes-  Succession  Act,  none  but  an  executor  who  has  taken  out 

sion  Act  is  exe-  .    . 

cntor  or  ad-      probate,  or  an  administrator  who  has  obtained  letters  of 

ministratorwho       ,..,,..  ,       *  ..,.. 

has  taken  out  administration  from  a  court  of  competent  jurisdiction, 
fetters  of  ad-     can  be  their  legal  representative  in  a  suit  relating  to  the 

ministration.  or  .  o 

property  of  the  deceased.    (Vide  Note  K.) 
Legal  represen.       (d)     In  the  case  of  Hindus,  Jainas,  Sikhs,  and  Bud- 
Hindu,  jama,    dhists  in  the  territories  subject  to  the  Lieutenant-Governor 

Bikh  or  Bud-  .  J 

dhist  coming     of  Bengal  and  m  the  towns  of  Madras  and  Bombay,  if  the 

within  the  " 

(l)  Darby  and  Bosanquet,  p.  31.  |  {%)  Darby  and  Bosanqnet,  p.  8a. , 

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B1C,  17]      JPABT  in. — COMPUTATION  OF  PERIOD  OF  LIMITATION.  125 

deceased  deed  not  die  intestate,  his  executor  or  administra-  Hindu  Wilis  Act 
tor  with  the  will  annexed  is  his  legal  representative  with-  or  administra- 
in  the  provisions  of  the  Hindu  Wills  Act  XXI  of  1870.  taken  out  pro- 

x-rr-jt     it  ±       r\         j   a  \  bate  or  letters  of 

{Vxde  Notes  O.  and  0.)  administration. 

(6)  In  the  case  of  Hindus  and  Buddhists  who  would  Lena  renresen. 
come  within  the  Hindu  Wills  Act  XXI  of  1870  when  Hindu  or  Bud- 

_ ,        ,  .       dhist   coming 

a  deceased  left  a  will,  if  a  person  dies  intestate,  and  in  within  Hindu 

_Z/   ,  ,«,,*.  *    i,  ,         W0lB  Act  if  he 

the  case  of    other  Hindus  and   Buddhists,  and  Maho-  left  a  will,  dying 

intestate,  and  of 

medans,  and  persons  exempted  from  the  operation  of  the  other  Hindus 
iTidmn  Succession  Act  by  section  332  of  thai  Act,  the  and  Mahome- 

.  .  .  dans  and  per* 

grantee  of  probate  or  administration  alone  is  legal  repre-  sons  exempted 
sentative  if  probate  or  administration  has  been  applied  Succession  Act, 

r  rr  is  grantee  of 

for  and  granted  under  the  probate  and  administration  probate  or  ad- 

°  r  ministration   if 

Act  V  of  1881.     (Vide  Note  P.)    But  neither  Act  V  of  obtained  under 

„^rt,  .i  a     .  [  *  ,      .  Act  V  of  1881. 

1881,  nor  any  other  Act  operates  so  as  to  vest  in  an 
executor  or  administrator  any  property  of  a  deceased 
person  which  would  otherwise  have  passed  by  survivor- 
ship to  some  other  person.  The  object  of  this  Act  is  to 
provide  for  the  grant  of  probates  of  wills  and  letters  of 
administration  to  the  estates  of  deceased  persons  in  cases 
where  the  Indian  Succession  Act  does  not  apply. 

(f)  Under  the  above  Act  V  of  1881,  an  executor  of  any  Under  the  above 
Hindu  or  Mahomedan  Will  may  establish  his  right  in  a  without  probate 
Court  of  Justice  without  taking  out  probate.   (Vide  Note  R.)  his7right  in 

(g)  Where  the  deceased  is  a  Hindu,  Mahomedan  or  Ef^iSJjSJ-L^ 
Buddhist,  or  a  person  exempted  from  the  operation  of  the  ^^  pr22Ji** 
Indian  Succession  Act,  and  to  whom  the  Hindu  Wills  Act  ^L^Hind11^ 
does  not  apply,  or  whose  estate  has  not  been  represent-  ^^jf^tJF1 
ed  under  the  Probate  and  Administration  Act  V  of  1881,   ?*"**  «8tate 

'    has  not  been  re* 
there  is  often  much  difficulty  in  ascertaining  who  is  his  ?r®BSlt?d,u5ider 

y__  ACt  V  OX  JLotU. 

representative.  (Broughton's  notes  of  cases  on  C.  P.  C, 
published  in  1884,  p.  317.) 

(h)     In  any  case  a  person  who  takes  possession  of  the  in  any  case 

person  fa*-iHttg  & 
property  of  a  deceased  person  without  letters  of  adminis-   deceased's  es- 
.  .  .  tate  constitutes 

tration  or  probate,  constitute*  himself  representative  to  himself  his  re- 

preventative, 
the  extent  of  the  property  he  takes.  (Vide  Note  T.) 

When  the  heir  of  a  deceased   person  is  undetermin-  where  the  heir 

ed,  an  administrator  may  be  appointed  in  the  Bombay  undetermined 


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126  PART  III. — COMPUTATION  OP  PERIOD  OP  LIMITATION.      [8BC.  17 

tiombay  R«gu:    Presidency,  (but  not  the  scheduled  Districts,   see  Act 

lation   vm   of 

1877  provides     XV  of  1874)  under  Bombay  Regulation  VIII  of  1827, 

for  appointment  * 

of  an  adminu-  section  9,  and  he  represents  the  estate.     Shivalingaya,  v. 

(July  1878.)  Nagalingaya.W  There  is  a  similar  Regulation  appli- 
cable to  the  Madras  Presidency, — Regulation  III  of  1802, 
section  16. 

Limitation  for        (i)     In  Lawless  v.  Calcutta  Landing  and  Shipping  Co., 

against  Man*-    Limited/8)  it  was  held  that,  in  the  case  of  a  person  employ* 

gel's  heir  does  r  r    J 

not  commence    ed  as  Manager,  the  right  of  the  employer  is  to  have  an  ac- 

until  adminis-  °  °  r     * 

trationtoMana-  count  rendered  by  the  person  employed  whenever  he  is 
obtained.  called  on  to  do  so  under  reasonable  circumstances.  In  this 

This  decision  •.,-., 

illustrates  the     case,  there  was  nothing  to  show  that  the  Manager  was 

2nd   paragraph  . 

of  this  section,     ever  called  on  during  his  life-time  to  account  for  the 
money  now  sued  for  or  to  account  generally.     He  died  in 
August,  1877,  and  his  agency  terminated.    Wilson,  J.,  ob- 
served that,  by  his  death,  the  employer  acquired  a  fresh 
right  to  have  an  account  rendered  by  his  representative, 
and  that  right  is  recognised  by  Article  89,  and  that  as  the 
Manager  died  in  August,  1877,  the  right  accrued  then,  but 
no  administration  was  taken  out  till  July,  1880,  and  that 
the  case  was  protected  by  this  section  under  which  limi- 
tation will  not  commence  to  run  until  administration  has 
been  taken  out  to  the  Manager's  estate. 
To  a  suit  f or        (j)     In  Kali  Krishna  Pal  Chowdhry  v.  Srimati  Jagat- 
deoeasrtUaMn^  tara<8>  which  was  a  suit  against  a  deceased  agent  for 
to^^from  his  balance  of  money  drawn  by  the  deceased  as  general  agent 
xrchof  1869      of  the  plaintiff  in  the  management  of  his  business,  the 
edhino  special'  agent  died  before  he  was  asked  to  render  an  account.    It 
p         n#  was  held  that  the  period  of  limitation  should  be  computed 

not  from  the  time  when  the  agent  drew  the  monies,  but 
from  the  time  of  his  death. 
Under  the  (k)     Under  section  179  of  the  Indian  Succession  Act  X 

sion  Actuthe  of  1865,  legal  representative  of  a  deceased  person  governed 
taSre " or^au"  by  that  Act  is  the  executor  or  administrator  as  the  case 
o^oea^person  may  be,  for  all  purposes,  and  all  the  property  of  the  deceas- 
f£at ™ct  is  his  ed  person  vests  in  him  as  such.    Under  the  above  section, 


executor  or  ad- 
ministrator, 


(1)  I.  L.  E.,  4  Bom.,  247     |      (2)  I.  L.  E.  7,  Calc,  627. 
(3)  2  B.  L.  E.,  Ac,  139. 


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SBC.  17]       PAST  m.— COMPUTATION  Of  PIRIOD  09  LIMITATION,  127 

and  also  section  190,  no  person  could  be  dealt  with  as   He  can  be  re* 
the  legal  representative  unless  he  had  taken  out  probate  each  only  when 

.  probate  is  taken 

or  had  obtained  letters  of  administration.  or  letters  of  ad- 

ministration are 
obtained. 

In  Pogosev.  Beebee  Dishkoon  Waris  Calchuck,(l>  P.  N.  &H.  held  so. 

.  t»  .  .  .  .  (March  1878) 

Pogose,  Zamindar  of  Dacca,  a  British  subject  domiciled  in 
British  India,  died  in  November,  1876.  Previous  to  his 
death,  several  decrees  had  been  passed  against  him  and  he 
had  conveyed  his  property  to  tbe  Official  Trustee  for  the 
benefit  of  his  creditors.  No  letters  of  administration  to 
the  estate  of  the  deceased  were  taken  out.  On  the  appli- 
cation of  one  of  the  judgment-creditors  for  execution,  the 
Subordinate  Judge  of  Dacca  granted  it  against  the  pro- 
perty of  the  deceased  which  was  in  the  hands  of  his  son. 
A  Division  Bench  (Markby  and  Princep,  J  J)  in  March, 
1878,  set  aside  so  much  of  the  Sub- judge's  order  that  made 
the  son  of  the  deceased  a  party  to  the  execution  proceed- 
ings, and  observed,  "  The  original  judgment- debtor  was 
dead ;  he  was  an  Armenian,  and  therefore  succession  to  his 
estate  is  governed  by  the  Succession  Act,  and  the  only 
person  who  could,  be  his  representative  is  the  person  indi- 
cated by  that  Act." 

(1)    Where  the  deceased  person  was  not  a  Hindu,  Bud-  When  a  deceas- 

ed  person  is  not 

dhist,  (Parsi,  as  amended  by  section  2  of  Act  IX  of  1881)  »  Hindu,  Bud. 

dttiflt,    Maho- 

or  Mahomedan,  or  a  person  exempted  from  the  operation  of  medan,  or  a  per. 

.  .  son  exempted 

the  "Iridic  Succession  Act,  the  Judge  of  the  District  is  from  the  Indian 
directed,  by  section  64  of  Act  II  of  1874,  the  Administrator-  the  District 
Generals'.  Act,  to  take  possession  of  the  property  of  the  ed  to  take  pos- 
deceased  lying  within  his  district,  and  to  hold  possession  estate  as  custo- 
of  it  until  the  estate  is  represented  by  some  one  who  shall  tion  84  of  Act 

II  of  1874. 

obtain  a  grant  of  probate,  or  letters  of  administration, 
from  a  competent  court,  or  a  certificate  from  an  Adminis- 
trator-General, which  can  be  given  (see  section  36,  et 
seq.  of  the  same  Act)  only  when  the  value  of  the  property 
left  by  the  deceased  does  not  exceed  1,000  Rupees.  The 
decree  cannot  be  executed  against  the  Judge  or  against 
the  property  pending  the  grant  of  probate,  administration, 

.  (1)  2  C.  h.  E.,  278. 

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128  PART  III.— COMPUTATION  OF  PBftlOD  OP  LIMITATION.      [sEC.  17 

The  Judge  is  in  or  a  certificate.  The  Judge  is  in  no  sense  the  represent- 
no  sense  repre-  , 

•enutive,  bat  is  ative  of  the  deceased,  bnt  is  merely  the  custodian  of  the 

required   to  . 

deliver  the  pro-  property,  and  is  directed  to  deliver  it,  not  to  an  execution 

legal  represen-  creditor,  but  to  the  representative  of  the  deceased ;  the 

estate  is  unrepresented  and  steps  should  be  taken  to  get 

if  the  executor  it  represented.      If  the  property  exceeds  1,000  Rupees 

for  administrZ  in  value,  and  the    executor  or  next-of-kin,  i.e.,  to  say, 

nistrator-Gene-"  the  absolute  next-of-kin,   not  merely  the  next-of-kin  in 

where  the  wfue  India,  does  not  apply  for  administration  within  a  month, 

ceea8°^0QOBs?'  the  Administrator- General  must  apply  (see  Act  II  of 

1874,  sec.  16)  within  a  reasonable  time  after  he  has  notice, 

and  he  may  apply  before  that  period  has  elapsed  ;  (see  sec. 

if  the  value      23)  ;  but  where  the  property  is  not  of  greater  value  than 

l.ooo  Bs.  Admi-   1,000  Rs.,  the  Administrator-General  need  not  apply  ;  and 

rai  may  himself  in  that  case  he  may  grant  a  certificate  to  the  executor,  or 

administer  or  .  _    ,  *  _      ,    ,  -  , 

grant  certificate  widow,  or  any  person  entitled  to  administer,  other  than  a 
or  widow  or  to  a  creditor  (sec.  36),  or  to  a  creditor  after  the  lapse  of  threer 

months,  unless  he  elect  to  take  charge  of  the  estate  him- 
Thepenon en-  self  without  letters  of  administration  (sec.  37),  or  the 
nister  may  apl  person  entitled  to  administer  may  apply  in  the  ordinary" 
probate?        *    way  to  a  court  of  competent  jurisdiction  for  probate  or 

letters  of  administration.   (Broughton's  Civil  Procedure* 

Code,  1878,  p.  311.) 
Creditor  of  a  de-       (m)     In  Prosunno  Chunder  Bhuttacharjee  t;.  Kristo 

ceased  person       ~,  /  .  *  . 

governed  by  the  Cuytunno  ral,w  a  widow  who  was  sued  as  representative 

fiirtiyjn   Succee-      M  , 

sion  Act,  cannot  of  a  deceased  debtor  did  not  defend  the  suit.  After  de- 
the  trick  of  cree,  her  brother,  obtaining  probate  of  the  will  said  to  have 
the  existenoe  of  been  left  by  the  deceased,  procured  release  from  attach- 

awin  until  his  - 

•claim  is  barred,  ment,  of  the  property  of  the  deceased  which  had  been  taken 
in  execution  of  the  decree.  The  decree- holder  brought 
a  second  suit.  Markby,  J.,  observes,  "The  question 
is  really  this — are  the  creditors  of  a  deceased  person 
liable  to  have  their  claims  defeated  by  the  trick  of  keeping 
secret  the  existence  of  a  will  until  their  claims  are  barred 
by  limitation  P  If  this  had  been  the  estate  of  a  European 
British  subject,  there  would  have  been  no  difficulty. 
Under  section  206  of  the  Succession  Act,  the  plaintiff,  ad 

(1)  I.  L.  B.,  4  Gale,  346. 

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SRC.  17]     PAST  in.— COMPUTATION  OP  PIEIOD  OF  LIMITATION.  129 

a  creditor,  might  have  applied  for  letters  of  administra- 
tion. Then,  whether  the  party  in  possession  of  the  will 
had  produced  it  or  not,  the  administration  would  have 
gone  on,  and  the  creditors  would  not  have  lost  their 
remedy.  But  section  206  of  the  Succession  Act  does  not 
apply  to  Hindus." 

(n)     In  Snkh  Nandan  v.  Bennick/1)  S  sued  some  of  the         a.  h. 
heij-s  to  a  person  governed  by  the  Indian  Succession  Act,  realised  by  sale 
1865,  who  died  intestate,  such  heirs  being  in  possession  of  an  intestate 
a  part  of  the  estate  of  the  deceased,  for  a  debt  due  to  him  iweeaionyAct 
by  the  deceased,  and  obtained  a  decree  against  such  per-  decree,  obtained 
«ong.     In  execution  of  this  decree,  property  belonging  to  brother  and 
•the  deceased  was  sold.    Before  the  sale-proceeds  were  tobeiongto the 
paid  to  8,  By  an  heir  to  the  deceased  obtained  in  the  Dis-  uSve  'SnTot* 
trict  Court  letters  of  administration  to  the  estate  of  administration 
deceased,  and  an  order  for  payment  to  her  of  such  sale-  to  the°decre*. 
proceeds.    Thereupon  8  sued  B  for  such  sale-proceeds  and 
to  have  the  District  Court's  order  directing  payment 
thereof  to  her  set  aside.     It  was  held  that,  with  reference 
to  sections  190  and  191  of  the  Indian  Succession  Act, 
1865,  the  decree  obtained  by  8  against  persons  who  did  not 
legally  represent  the  estate  of  the  deceased,  and  the  pro- 
ceedings taken  against  such  persons  in  execution  of  such 
decree  gave  8  no  title  to  the  sale-proceeds,  which  formed 
part  of  the  estate  of  the  deceased,  and  the  suit  was  there- 
fore not  maintainable. 

(O)    The  Hindu  Wills  Act  XXI  of  1870,  was  passed  The  legal  rente- 
en  the  19th  July,  1870,  and  its  preamble  is  as  follows  : —  deceased  Hindu 
"  Whereas  it  is  expedient  to  provide  rules  for  the  execu-  the  Hindu  wais 
tion,  attestation,  revocation,  revival,  interpretation  and  1870)  ia  his  exe- 
probate  of  the  wills  of  Hindus,  Jainas,  Sikhs,  and  Bud-  nfetrator  who 
dhists  in  the  territories  subject  to  the  Lieutenant-Governor  .probate  or 
of  Bengal  and  in  the  towns  of  Madras  and  Bombay ;  it  is  nitration. 
hereby  enacted  as  follows."    "  In  the  case  of  a  will  of 
a  Hindu,  Ac.,  falling  within  the  said  Act,  "  the  179th 
section  of  the  Indian  Succession  Act  also  applied,  and 
enacted  that  *  the  executor  or  administrator'  (with  a  copy 

(1)  I.  L.  B.,  4  All.,  192. 
17 


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ISO  PART  HI.— COMPUTATION  Of  PERIOD  Of  LIMITATION.      [SIC.  17 

of  the  will  annexed)   •  of  a  deceased  person,  is  his  legal 
representative  for  all  purposes,  and  all  the  property  of  the 
deceased  person'  (including,  of  course,  his  rights  under  a 
decree)  '  vests  in  him  as  such.'  Section  187  of  the  same  Act 
also  applies,  and  '  no  right  as  an  executor  or  legatee  can 
be  established  unless  a  court  of  competent  jurisdiction 
within  the  Province  shall   have  granted  probate  of  the 
will  under  which  the  right  is  claimed,  or  shall  have  grant- 
ed letters  of  administration  under  section  180,'  which  is 
An  the  sections  also  applicable  ;  see  sec.  2,  of  Act  XXI  of  1870."<1>  All  the 
Soocsss^Aot  sections  of  the  Indian  Succession  Act  relating  to  grants 
probatejfcc^ex-  of  probates  and  letters  of  administration  which   were 
have  been  re-    formerly  incorporated   in  the  Hindu  Wills  Act,   with 
Hindn  Wilis  Act  the  exception  of  section  187,  which  provides  against  an 
in  Act  v  of      executor  or  legatee  establishing  a  right  without  obtaining 
probate  or  letters  of  administration,  are  now  removed 
■  Retention  of      from  that  Act  by  section  154  of  Act  V  of  1881,  and  are 
shows  that  pro-  re-enacted  verbatim  in  Act  Y  of  1881,  with  the  exception 
saiy  in  the  case  of  section  187.     Section  187  still  remaining  incorporated 
oomtaTwtthin   by  reference  with  the  Hindu  Wills  Act,  shows  that  pro- 
Act,    omission  bate  is  necessary  in  the  case  of  such  Hindu  Wills  as  fall 
Act  v  of  1881  within  the  Hindu  Wills  Act,  and  the  omission  of  simi- 
cntorofaHindn  lar  provision  from  Act  Y  of  1881,  which  applies  to  all 

not  falling  with-  r  i 

in  the  Hindu    Hindus  and  Mahomedans,  shows  that  an  executor  of  any 

Wills  Act  canes-  * 

taoiish  right  in  Hindu  or  Mahomedan  will,  not  falling  within  the  Hindu 

a  court  without 

probate.  Wills  Act,  may  establish  his  right  in  a  Court  of  Justice 

without  taking  probate.     Shaik  Moosa  v.  Shaik  Essa.<*> 
when  a  Hindu       (p)    In  Greender  Ghunder  Ghose  v.  Mackintosh.^) 

to  whom  the  ^Jr'  ' 

Houid  wmf  A2  Pontifex,  J.,  observes,  "a  Hindu  being  thus  competent  up 
he  left  a  will,  to  the  day  of  his  death  to  alien  his  lands  without  regard 

dies  intestate,  J  ° 

his  heirs  are  his  to  his  creditors,  a  disposing  power  by  will,  unknown  in 

legal  represen-  9 

tatives,  the  Act  primitive  times,  came  into  existence  by  a  kind  of  evolu- 

not   providing     * 

for  grant  of  ad-  tion  or  development  of  the  law ;  and  it  would  be  natural 

geestateof  an  that  by  the  same  process  the  devisee  should,  with  respect 

to    his  testator's  creditors,  be  saddled  with  the  same 

liabilities  as  the    heir  had  theretofore  been  saddled  with 

(1)  Bronghton's  notes  of  oases  on  C.  P.  C,  1884,  p.  316. 

(2)  I.  L.  R.,  8  Bom.,  241.       |      (3)  I.  L.  R.,  4  Gale,  907. 


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MC.  17]     PART  in.— COMPUTATION  OF  PERIOD  OF  LIMITATION.  131 

respect  to  the  creditors  of  his  ancestor.     This  principle 
has  heen  recognised  in  Act  VIII  of  1859  and  Act  X  of 
1877,  hoth  of  which  Acts,  however,  are  intended  only  as 
Codes  of  Procedure.    Sections  203, 210,  and  21 1  of  Act  VIII 
of  1859  deal  with  the  subject,  the  former  section  using 
the  word  *  representative,'   and  the  other  sections   the 
words  '  legal  representative' ;  but  whether  any  distinc- 
tion between  these  terms  was  intended,  it  is  not  necessary 
to  consider.     In  the  Act  of  1877,  the  corresponding  sec- 
tions are  252  and  234,  in  each  of  which  the  words  '  legal 
representative'    are   used.      But   though    this   Act  was 
passed  after  the  Hindu  Wills  Act,  by  section  179,  of 
which  a  distinct  meaning  is  given  to  the  words  '  legal 
representative,'  namely,  an  executor  or  administrator  with 
the  will  annexed,  in  whom  all  the  property  of  a  testator 
vests,  I  think  sections  252  and  234  are  intended  to  apply 
to  the  heir  of  an  intestate."     Section  200  of  the  Indian  Section  s  of  the 
Succession  Act  provides  for  grant  of  letters  of  adminis-  does  not  make 
tration  of  the  estate  of  a  person  who  died  intestate  to  *»of  theindian 
persons  who  are  connected  with  him  either  by  marriage  applicable  to 
or  consanguinity,  and  in  the  absence  of  any  such  person,  coming  within 
section  206  provides  for  grant  of  administration  to  a  °^ 

creditor.  These  2  sections  occur  in  part  29  of  the  Act,  But  section  ss 
which  is  not  made  applicable  to  Hindus,  Ac.,  coming  andAdministra- 
within  the  Hindu  Wills  Act,  XXI  of  1870.  But  section  i^  £^jfP£in.* 
23  of  the  Probate  and  Administration  Act  V  of  1881,  grant  of  admi. 
which  is  applicable  to  all  Hindus,  provides  for  a  creditor  creditor,  if  it  is 
taking  out  letters  of  administration  when  it  is  not  applied  &y  person  en- 
for  by  the  person  who  would  be  entitled  to  the  whole  or  tateof  an  into*. 
any  part  of  the  estate  of  an  intestate. 

(q)     "  Except  under  the  Hindu  Wills  Act,  the  courts  Until  before  the 
in  the  mofussil  do  not  in  India  grant  letters  of  adminis-  ministration 
tration  to  the  estates  of  natives  dying  intestate,  or  probate,  which  can  be  ex. 

tended  to  the 

if  they  have  wills.     Regulation  V  of  1799,  (which  has  mofussil,  the 

mofussil  Courts, 

been  partially  repealed  by  section  4  of  Act  XXI  of  1870)  except  under 
which  is  in  force  throughout  Lower  Bengal  and  the  North-  Act,  had  no 

power  to  grant 

Western  Provinces,  except  the  scheduled  districts  (see  Act  probate,  Ac.,  to 

r  x  the  estate  of  a 

XV  of  1874),  prohibits  the  interference  of  the  court  except  deceased  native. 


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1S2  PART  III.— COMPUTATION  OF  PBBIOD  01  LIMITATION.     [8BC.  17 

on  regular  complaint ;  see  also  Madras  Begulation  III  of 
1802,  section  16.  But  where  there  are  debts  of  the  de- 
ceased person  to  be  collected,  the  courts  are  empowered  to 
grant  certificates,  which  enable  the  certificate  holder  to 
give  a  good  receipt  to  the  debtor  who  cannot  be  compelled 
to  pay  the  debt  without  the  production  of  the  certificate, 
unless  it  can  be  shewn  that  he  does  so  from  fraudulent  or 
vexatious  motives.  It  does  not  constitute  the  holder  a 
*  representative  for  any  other  purpose,  nor  can  it  be  more 
than  primd  fade  sufficient  to  induce  the  court  to  make 
him  representative  for  the  purpose  of  a  suit,  and  to  the 
extent  of  the  debts  he  has  collected  under  it,  or  other 
property  of  which,  assuming  himself  to  be  the  represen- 
tative, he  has  taken  possession."*1* 
b.  h.  held  that  (r)  In  Sheik  Moosa  v.  Sheik  Essa/2)  A*  one  of  three 
failing  under     executors  of  a  Mahomedan  will,  none  of  whom  had  taken 

the  fflndu  Wills         x         _    x      _     .      _  ,  .,       .    .      „     .      ...     .    - 

Act,  an  exe-  out  probate,  desired  to  carry  on  a  suit  originally  instituted 
Hindu  or  Maho-  by  their  testator  to  recover  a  share  of  an  estate,  all  the 

medan  Will  may        _  ,  .  .      .       -  - 

establish  his  other  parties  to  the  suit  being  desirous  that  the  suit  should 
taking  out  pro-  be  dismissed.  West,  J.,  who  tried  the  case,  being  of 
v  of  i88i.  opinion  that,  since  the  passing  of  Act  V  of  1881,  a  Ma- 

(January  1884.) 

homedan  cannot  claim  to  represent  the  estate  of  his  tes- 
tator unless  he  has  taken  out  probate,  rejected  the  suit. 
It  was  held  by  a  Division  Bench  (Sargeant,  G.  J.  and 
Bayley,  J.,  that,  -4,  under  section  92  of  the  Probate  Act  (V 
of  1881),  being  only  one  of  three  executors,  could  not  carry 
on  the  suit  without  first  taking  out  probate  of  the  testa- 

Before  Act  v  of  tor's  will.     Previously  to  the  passing  of  the  Probate  Act, 

1881  an  executor 

of  a  Hindu  will  (V  of  1881)  executors  appointed  by  such  wills  as  fell 
Actxxi of  1870,   within  the  Hindu  Wills  Act  (XXI  of  1870)  acquired  the 

had   the  same  , 

right  in  repre-  same  estate  and  interest  in  the  property  of  their  deceased 

senting  the  de-  . 

ceased^  estate    testator  with  the  same  restrictions  in  representing  the 
under  English     estate  in  a  Court  of  Justice  as  obtained  under  English 
Law.     See  the  following  note. 

(g)  All  the  sections  of  the  Indian  Succession  Act  (X 
of  1865)  relating  to  grants  of  probates  and  letters  of  ad- 
ministration, which  were  formerly  incorporated  in   the 

(1)  Broughton  on  C.  P.  C.  of  1877,  p.  313.  |  (2)  I.  L.  R.,  8  Bom.,  241. 

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Law. 


SEC.  17]      PART  III. — COMPUTATION  OP  PERIOD  OP  LIMITATION.  133 

Hindu  Wills  Act,  (XXI  of  1870)  are  now,  with  the  excep- 
tion of  section  187,  removed  from  that  Act  by  section  154 
of  Act  V  of  1881,  and  are,  with  the  exception  of  187,  re- 
enacted  verbatim  in  Act  V  of  1881.    Section  187,  however, 
still  remains  incorporated  by  reference  with  the   Hindu  Probate  is  ne- 
WillsAct.    (See section  154of  Act V  of  1881.)    The  result  ca£"of  HindS 
is  that  probate  is  necessary  in  the  case  of  such  Hindu  Wills  within  Actxxi 
aa  fall  within  the  Hindu  Wills  Act.     But  the  omission, 
from  Act  Y  of  1881,  (which  applies  to  all  Mahomedans 
and  Hindus)  of  any  provision  corresponding  to  section 
187  of  the  Indian  Succession  Act,  and  the  retention  of  that 
section  in  the  Hindu  Wills  Act,  shows  that  it  was  the 
intention  of  the  Legislature  that,  except  in  cases  falling 
tinder  the  Hindu  Wills  Act,  an  executor  of  any  Hindu  or  Probate  is  not 
Mahomedan  Will  may  establish  his  right  in  a  Court  of  caseoin^HindQ 
Justice  without  taking  out  probate.     In  cases,  however,   win  not  faffing* 
falling  within  the   provisions  of  Act  XXVII  of   1860,   Endu  wuis 
debtors  have  still  the  right,  under  section  2  of  that  Act, 
of  insisting  upon  a  plain  tiff -executor  taking  out  probate.  (*> 

(t)     In  any  case,  a  person  who  takes  possession  of  the  in  any  case 
property  of  a  deceased  person  without  letters  of  adminis-  possession  of 
t  rat  ion,  probate,  or  a  certificate,  constitutes  himself  repre-  perty  without 
sentative  of  the  deceased  to  the  extent  of  the  property  he  totes  himself  re^ 


a 
pro- 


»       .     .        ?  presentative, 

takes,  and  is  bound  to  account  for  it  in  the  same  *ay  as 
a  duly  constituted  representative.  Chowdry  Wahed  Ali 
v.  Mussamut  Jumaee.W  "A  person  who  intermeddles  with   Person  inter- 

meddling  with 

the  estate  of  the  deceased,  or  does  any  other  act  which  a  deceased's 

property  is  exe- 

belongs  to  the  office  of  the  executor,  while  there  is  no  cutorofhisown 

.  .  wrong. 

rightful  executor  or  administrator  in  existence,  thereby 
makes  himself  an  executor  of  his  own  wrong."^8) 

"  When  a  person  has  so  acted  as  to  become  an  executor  Bach  executor 
of  his  own  wrong,  he  is  answerable  to  the  rightful  executor  extent  of  assets 
or  administrator  or  to  any  creditor  or  legatee  of  the  de-  come  u/his™ 
ceased,  to  the  extent  of  the  assets  which  may  have  come 
to  his  hands  after  deducting  payments  made  to  the  right- 
ful executor  or  administrator,  and  payments  made  in  a 

(1)  I.  L.  E.,  8  Bom.,  241.     |      (2)  11  B.  L.  B.,  p.  150. 
(3)  Sec.  265  of  Act  X  of  1865. 


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134  PAST  III. — COMPUTATION  OF  PIBIOD  Of  LIMITATION.     [8EC.  17 

due  course  of  administration.9'^)  Where  a  representative 
is  appointed  by  the  court,  or  when  one  takes  possession 
of  the  property  of  a  deceased  person  and  so  renders  him- 
self liable  to  the  oztent  of  the  property  he  takes,  the 
court  can  make  the  representative  a  party  to  the  suit 
before  decree  under  chapter  XXI,  or  execute  the  decree 
in  his  favour  under  section  231,  or  against  him  under 
When  no  form-   section  234k.     But  where  no  such  formally  constituted 

ally  constituted  .  *  . 

representative  represeotative  exists,  as  may  be  the  case  in  the  instance 
seeking  to  exe-  of  property  of  a  Hindu,  Mahomed  an  or  Buddhist,  or  per- 
mnit  prove  th&t  son  exempted  from  the  operation  of  the  Indian  Succession 
the  deoeaeed  Act,  and  where  no  grant  of  probate  or  letters  of  adminis- 
or  that  the  per-  tration  has  been  made,  the  applicant  for  execution,  must 
whon^heseeks  be  prepared  with  evidence  to  make  out  his  case  if  he 
ieg*rrepreeen.  claims  to  represent  the  deceased  creditor,  or  to  show  that 
yei°debtor.     the  person  against  whom  he  seeks  to  execute  his  decree 


is  the  legal  representative  of  the  debtor,  and  liable  as 
such,  or  that  having  wasted  or  misapplied  the  property 
of  the  deceased,  he  is  so  far  personally  liable. 
PoeeeeritnkoP  ^u^  *n  *>r081lnno  Chunder  Bhuttacharjee  v.  Krisfco 
SSoeatSdH^S  Chytunno  Pal/2)  the  plaintiff,  in  1871,  had  lent  a  certain 
mihLbe  tre*ted  8Um  °^  money  to  one  Prankristo,  who,  prior  to  his  death, 
tativefandjadjr-  lived  with  one  Bibuty  as  his  wife.     The  debtor  died  in 

ment  obtained  J 

against  him  is   1872,  and   the  said  woman  performed  his  funeral,  and 

not  a  nullity        ...  .  .  . 

even  though        lived  in  his  house,  taking  possession  of  his  property.     The 
obtained  after     plaintiff  sued  Bibuty  as  widow  of  the  deceased  and  obtain- 

decree  a  probate    r  * 

X  deceased.**  e<*  a  ^ecree  *0P  m0I*ey.  When  he  proceeded  to  execute 
the  decree  against  the  property  of  the  deceased,  he  found 
that  it  had  all  been  transferred  to  Bibuty's  brother,  who, 
although  he  was  a  distant  relation  of  the  deceased,  claim- 
ed the  property  attached  under  a  will  by  which  he 
alleged  that  the  deceased  had  made  him  devisee  of  his 
whole  property  for  Bibuty's  maintenance,  and  performance 
of  certain  religious  ceremonies,  and .  subject  thereto  for 
his  own  benefit.  Bibuty's  brother  obtained  probate  of  the 
will  after  the  decree  and  claimed  the  property  under 
attachment  and  its  release.     Then  plaintiff  brought  the 

(1)  Sec.  266  of  Act  X  of  1865.  |    (2)  I.  L.  R.,  4  Calc,  842. 

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8KC.  18]      PART  m.— COMPUTATION  OP  PIRIOD  OP  LIMITATION.  135 

present  suit  to  have  it  declared  that  the  property  in  the 
bands  of  Bibuty's  brother  was  liable  to  satisfy  the  decree 
obtained  against  Bibnty  as  representative  of 'the  deceased. 
The  Lower  Courts  decreed  the  plaintiff's  claim.  In  the 
second  appeal,  Markby,  J.,  while  confirming  the  decision, 
observes,  "  The  executor  does  not  represent  the  deceased 
by  virtue  of  the  will  until  he  has  obtained  probate.  Who, 
then,  represents  the  deceased,  who  has  left  a  will  from  his 
death  until  probate  has  been  obtained  P  Surely  some  one 
must  do  so,  or  the  law  would  not  have  provided  that  the 
Statute  of  Limitations  should  run  between  the  death  and 
the  grant  of  probate  as  it  undoubtedly  does." 

"  The  decisions  of  the  Courts  in  India  have  been  liberal  Observations  of 
in  recognizing  the  acts  of  the  defacto  manager  of  a  de-  the  effect  oV  the 
ceased's  estate  as  valid.  If  Bibnty  had  actually  paid  the 
debt  of  the  plaintiff,  or  if  the  plaintiff  had  actually  seised 
and  sold  the  property  of  the  deceased  whilst  in  her  pos- 
session, and  had  received  payment  out  of  the  proceeds,  I 
do  not  think  the  executor  could  have  recovered  back  either 
the  money  paid  to  the  plaintiff  or  the  property  sold  in 
execution." 

"Upon  the  whole,  I  think  that,  until  some  other  claimant 
comes  forward,  the  party  who  takes  possession  of  the 
estate  of  a  deceased  Hindu  must,  in  the  present  state  of  the  Bren  if  the 
law,  be  treated  for  some  purposes  as  his  representative,  be  executed 

'  .       .  against  the  el- 

and that  a  judgment  against  such  a  representative  is  not  tate  in  the 

hands  of  the 

a  mere  nullity.     Even  if  it  cannot  be  executed  against  executor  it  is 

sufficient  to  en* 

the  estate  in  the  hands  of  the  executor  when  he  has  taken  able  the  decree- 
holder  to  sue 
out  probate,  it  is  at  any  rate  sufficient  to  enable  the  plain-  the  executor  for 

..j-        .    .  .  ,  the  satisfaction 

tiff  to  bring  a  suit  against  the  executor  m  order  to  have  of  the  debt. 
the  decree  satisfied." 

18.     When   any  person  having  a  right  to  Meet  of  fraud. 
institute  a  suit  or  make  an  application  has,  by 
means  of  fraud,  been  kept  from  the  knowledge 
of  such  right  or  of  the  title   on  which  it  is 
founded, 

or  where  any  document  necessary  to  establish 


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186  PART  IH.-rC0MPUTAT10N  OP  PERIOD  OP  LIMITATION.       [SRC.  18 

such  right  has  been  fraudulently  concealed  from 
him, 

the  time  limited   for  instituting  a  suit  or 
making  an  application, 

(a)  against  the  person  guilty  of  the  fraud 
or  accessory  thereto,  or, 

(b)  against  any  person  claiming  through 
him  otherwise  than  in  good  faith  and 
for  a  valuable  consideration, 

shall  be  computed  from  the  time  when  the 
fraud  first  became  known  to  the  person  inju- 
riously affected  thereby,  or,  in  the  case  of  the 
concealed  document,  when  he  first  had  the 
means  of  producing  it  or  compelling  its  produc- 
tion. 
Definition  of  (a)    The  interpretation  clause  of  the  Limitation  Act 

"misrepreften-    does  not  define  fraud.     Sections*  17  and  18  of  tbe  Indian 
Indian  Contract  Contract  Act  IX  of  1872,  define  "  fraud"  and  "  misrepre- 
sentation."    Fraud  or  no  fraud  is  a  question  of  fact. 

*  17.    "  Fraud"  means  and  includes  any  of  the  following  acts  corn- 

« _      «.  ,  „     ^  mitted  by  a  party  to  a  contract,  or  with  big 

•'  Fraud"  defined.  .  ?      %_.  ....... 

^  connivance,  or  by  his  agent,   with  intent 

to  deceive  another  party  thereto  or  his  agent,  or  to  induce  him  to 
enter  into  the  contract : — 

(1).— The  suggestion,  as  a  fact,  of  that  which  is  not  true,  by 

one  who  does  not  believe  it  to  be  true ; 
(8). — The  active  concealment  of  a  fact  by  one  having  knowledge 

or  belief  of  the  fact ; 
(3). — A  promise  made  without  any  intention  of  performing  it  j 
(4.) — Any  other  act  fitted  to  deceive ; 

(6.) — Any  such  act  or  omission  as  the  law  specially  declares  to 
be  fraudulent. 
Explanation.— Mere  silence  as  to  facts,  likely  to  affect  the  willing- 
ness of  a  person  to  enter  into  a  contract  is  not  fraud,  unless  the 
circumstances  of  the  case  are  such  that,  regard  being  had  to  them, 
it  is  the  duty  of  the  person  keeping  silence  to  speak,  or  unless  his 
silence  is,  in  itself,  equivalent  to  speech. 

Illustration*, 
(a.)    A  sells,  by  auction,  to  Bt  a  horse  which  A  knows  to  be  unsound.    A 
says  nothing  to  B  about  the  horse's  unsoundness.    This  is  not  fraud  in  A. 


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88C.  18]      FAST  in.— COMPUTATION  OF  PERIOD  OP  LIMITATION.  137 

(b)  This  section,  which  corresponds  with  section  19  of 
Act  IX  of  1871,  includes  also  "  applications"  as  well  as 
"  suits."  In  the  second  paragraph,  the  words  "  from  him1' 
are  introduced,  and  consequently  the  document  mentioned 
in  that  paragraph  must  have  been  fraudulently  concealed 
from  the  "  person  having  a  right  to  institute  a  suit  or 
make  an  application." 

In  order  to  apply  this  section,  it  is  necessary  that  the 
suit  should  be  by  the  plaintiff,  or  some  one  through  whom 
he  claims  on  whom  the  fraud  has  been  practised, 

(1)  "  against  the    person    guilty    of  the  fraud    or 

accessory  thereto,  or 

(2)  against  any  person  claiming  through  him  other- 

wise than  in  good  faith  and  for  a  valuable 
consideration." 

(C)     This  section  applies  to  three  classes  of  oases.  This  section  ap- 

PUeB  *°  three 
(1). — Where  the  right  to  sue  is  concealed  from  the  classes  of  c 

plaintiff  by  the  fraud  of  the  defendant. 
(2). — Where  the  title  on  which  the  right  to  sue  is 

founded  is  so  concealed.  „ 
(3). — Where  any  document  necessary  to  establish 

such  right  is  so  concealed. 


(h.)  B  is  A'b  daughter  and  has  just  come  of  age.  Here,  the  relation  be* 
tween  the  parties  would  make  it  A't  duty  to  tell  B  if  the  horse  is  unsound. 

(c.)  B  says  to  A— "If  you  do  not  deny  it,  I  shall  assume  that  the  horse  is 
sound ;"    A  says  nothing*    Here,  A'$  silence  is  equivalent  to  speech. 

(d .)  A  and  B,  being  traders,  enter  upon  a  contract,  A  has  private  infor- 
mation of  a  change  in  prices  which  would  affect  B*$  willingness  to  proceed 
with  the  contract.    A  is  not  bound  to  inform  B. 

•^representation"  18.    Misrepresentation    means    and  in- 

eludes— 

(1)  the  positive  assertion,  in  a  manner  not  warranted  by  the 
information  of  the  person  making  it,  of  that  which  is 
not  true,  though  he  believes  it  to  be  true  ; 

(2)  any  breach  of  duty  which,  without  an  intent  to  deceive, 
gains  an  advantage  to  the  person  committing  it,  or  any 
one  claiming  under  him,  by  misleading  another  to  his 
prejudice,  or  to  the  prejudice  of  any  one  claiming  under 
him; 

(8)  causing,  however  innocently,  a  party  to  an  agreement,  to 
make  a  mistake  as  to  the  substance  of  the  thing  which 
is  the  subject  of  the  agreement. 
18 

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138 


PART  III. — COMMUTATION  OF  PERIOD  OF  LIMITATION,      [SEC.  18 


The  English  li- 
mitation Act  re- 
quire** reason- 
able  diligence 
also  on  the  part 
of  plaintiff. 


Latham,  J.,  has 
observed  that 
diligence  iB  also 
required  of  a 

S'ntiff  claim* 
benefit  of 
section. 
(May  1882.) 


(d)  The  corresponding  ^Section  of  the  English  Statute 
expressly  provides  that  in  ease  of  fraud,  the  right  shall 
be  deemed  to  accrue  from  the  time  at  which  such  fraud 
shall  be  or  with  resonable  diligence  might  hare  been 
first  known  or  discovered. 

(e)  In  Merwanji  Hormusji  t;.  Eustomji  Burjorji,<l> 
plaintiff,  as  heir  of  his  father  who  died  in  December,  1872, 
without  obtaining  a  formal  dissolution  of  his  partnership 
with  the  first  defendant,  sued  the  first  defendant  in  July, 
1880,  claiming  a  moiety  of  a  certain  amount  found  to  have 
been  realized  by  him  in  1878.  It  was  alleged  that  the 
money  realized  consisted  of  Rs.  10,000  in  cash  in  1878, 
and  Es.  10,000  by  a  pro-note  dated  1878,  payable  in  1881 
for  the  claim  of  the  firm  which  the  first .  defendant 
assigned  to  the  2nd  defendant  in  February,  1873.  The 
plaintiff  pleaded  that  he  became  aware  of  the  assignment 
and  the  arrangement  between  the  defendants  in  1880, 
and  claimed  the  benefit  of  this  section.  Latham,  J., 
observes :  "  I  cannot  accede  to  this  argument.  I  see 
nothing  in  plaintiff's  evidence  to  show  misrepresentation 
by  the  defendant.  I  am  not  going  to  attempt  to  define 
what  fraud  would  suffice  to  satisfy  that  section,  nor  do  I 
say  that  there  may  not  be  silence  under  such  circum- 
stances as  itself  to  be  fraud  within  its  meaning,  but  I 
see  none  such  here.     Moreover,  diligence  is  required  of  a 


(1)  I.  L.  R.,  6  Bom.,  628. 


*  The  section  of  the  English  Statute  is  as  follows. — That  in  every 
case  of  a  concealed  fraud,  the  right  of  any  person  to  bring  a  suit  in 
equity  for  the  recovery  of  any  land  or  rent  of  which  he,  or  any 
person  through  whom  he  claims,  may  have  been  deprived  by  such 
fraud,  shall  be  deemed  to  have  first  accrued  at,  and  not  before,  the 
time  at  which  such  fraud  shall  or  with  reasonable  diligence  might 
have  been  first  known  or  discovered,  provided  that  nothing  m  this 
clause  contained  shall  enable  any  owner  of  lands  or  rents  to  have  a 
suit  in  equity  for  the  recovery  of  such  lands  or  rents,  or  for  setting 
aside  any  conveyance  of  such  lands  or  rents,  on  account  of  fraud, 
against  any  ootid  yule  purchaser  for  valuable  consideration  who  has 
not  assisted  in  the  commission  of  such  fraud,  and  who,  at  the  time 
that  he  made  the  purchase  did  not  know  and  had  no  reason  to 
believe  that  any  suoh  fraud  had  been  committed. 


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8KC.  18]     PABT  in,— COMPUTATION  OF  PIBIOD  OP  LIMITATION.  189 

plaintiff  who  claims  the  benefit  of  that  provision."  Willis 
v.  Lord  Howes.    (29  W.  R.,  70). 

(f)  In  Yenkateswara  Iyen  v.  Shekhari  Varma/1*  plain-  p.  o.  found  a 
tiff  alleged  thai  a  grant  which  he  sought  to  set  aside  had  of  inaction  and 
been  fraudulently  concealed  from  him.     The  grant  was  should  have  ex- 
dated  1851.     The  Privy  Council  held  that  the  plaintiff  Suet,  implying* 
should  have  stated  what  was  the  occasion  of  the  discovery  ugenoe  was  ne- 
of  the  fraud,  or  the  circumstances  which  led  to  it,  and  that  (Marol'isso.) 
the  plaintiff  had  given  no  word  of  explanation  of  his  ex- 
traordinary inaction. 

(g)  "  In  order  to  constitute  a  case  of  fraud,  which  in  (English  autho- 

the  contemplation  of  equity  takes  a  case  out  of  tl^e  opera-  in  order  to  oon- 

tion  of  the  Statute  of  Limitations,  it  is  not  sufficient  that  there  most  be 

abuse  of  oonfl> 

there  should  be  merely  a  tortuous  act  unknown  to  the  in-  dentiai  pod- 

tion,  some    in- 
jured party,  or  enjoyment  of  property  without  title  while  tentionai  in> 

the  rightful  owner  is  ignorant  of  his  claims  ;  there  must  be  some  deuberat* 

concealment  oc 

some  abuse  of  a  confidential  position,  some  intentional  im-  note. 

position,  or  some  deliberate  concealment  of  facts.     Taking 

coal  tortuously  from  another's  mine  is  not  fraud,  which 

will  entitle  the  plaintiff  to  an  account  more  than  six  years 

afterwards ;  but  if  the  coal  be  taken  intentionally,  and 

steps  be  taken  to  prevent  the  plaintiff  from  discovering  Fraudulent 

transactions 

the  wrong,  this  is  a  fraud  which  will  take  away  the  def en-  against  which 

court  would 

dant's  right  to  plead  the  statute.    Where  a  testator  having  grant  relief. 

a  sum  of  £100  owing  to  him  from  (?,  made  a  specific  bequest 

of  the  debt  to  B  on  certain  trusts,  and  after  the  testator's 

death  B  set  off  the  amount  against  a  private  debt  due 

from  himself  to  0,  G,  having  notice  of  the  trusts,  it  was 

held  that  this  was  a  fraudulent  abstraction  of  the  trust 

property  by  B  and  a  fraudulent  receipt  and  appropriation 

of  it  by  O  for  his  own  personal  benefit;  relief  against  such 

a  transaction  being  given  on  the  ground  of  fraud,  the 

remedy  was   not   taken  away  by  lapse  of  time,  and  Qy 

the  debtor,  was  ordered  after  the  lapse  of  more  than  20 

years  to  refund  the  amount  of  the  debt  to  the  parties 

beneficially  entitled.    Where  a  guardian  and  devisee  in 

trust  obtained  a  conveyance  at  an  undervalue  from  his 


(1)  I.  L.  R.,  3  M.,  399. 


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140  PART  IIL— COMPUTATION  OP  PERIOD  OF  LIMITATION.      [SEC.  18 

wards  as  soon  as  they  obtained  their  majority,  and  where 
a  reversionary  grant  at  an  undervalue  was  obtained  from 
an  expectant  heir  in  distressed  circumstances  by  an  attor- 
ney, who  had  full  knowledge  of  the  value  of  the  estate, 
and  had  considerable  influence  over  the  grantor,  these 
were  held  fraudulent  transactions  against  which  the  court 
would  grant  relief  after  more  than  20  years."  (Darby  and 
Bosanquet,  p.  198.) 
Fraud  mast  be  (h)  In  Ramdoyal  Khan  v.  Ajoodhia  Ram  Khan,*1) 
the"party  y  plaintiffs  ancestor  had  obtained,  in  1817,  from  the  Zemin- 
rigb?8*  *»!?**  <l&r>  a  lease  of  a  certain  portion  of  his  property.  The 
Government,  in  1837,  sold  the  entire  zemindari  for  arrears 
of  revenue,  purchased  it  in  auction,  and  granted  20  years' 
lease  thereof  to  one  W.  In  1842,  the  Government  restored 
the  estate  to  the  Rajah  Zemindar  with  all  the  prior  in- 
cumbrances, but  subject  to  the  lease  to  W.  In  1844,  the 
plaintiff's  father  sued  to  recover  possession  of  his  tenure, 
and  it  was  finally  settled  by  the  Privy  Council  that  his 
light  to  sue  could  only  arise  on  the  expiry  of  the  lease  to 
W.  In  the  meantime,  owing  to  certain  fraudulent  trans- 
actions, one  A  got  into  possession  of  the  estate  as  the 
purchaser  of  the  interests  of  certain  mortgagees  of  the 
Rajah,  and  the  property  was  again  sold  for  arrears  of  re- 
venue, and  was  purchased  by  M,  a  party  to  the  fraudulent 
transactions.  The  Rajah  got  the  sale  reversed  in  1866 
and  obtained  possession  in  1871.  The  plaintiff,  in  October, 
1873,  sued  the  Rajah  and  his  lessees,  and  alleged  that, 
when  the  lease  to  W  expired,  the  property  was  in  the  pos- 
session of  Jf,  of  the  fraudulent  character  of  whose  title 
they  had  no  knowledge,  and  that  his  right  to  sue  in  the 
present  case  consequently  arose  only  in  1871.  The  court 
observed  that  the  corresponding  section  19  of  Act  IX  of 
1871  was  applicable  only  to  those  cases  where  the  fraud 
was  committed  by  the  party  against  whom  a  right  is 
sought  to  be  enforced. 
Plaintiff's  igno-  (i)  Azroal  Sing  v.  Lalla  GopenathW  was  a  suit  to 
cruai  of  his      recover  money   paid  by   Government  to  the   defendant 

right,   unless 
brought  about 

(1)  I.  L.  B.,  2  Calc,  lr      |  (2)  8  W.  K.,  23. 

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SRC.  18]      PART  III.— COMPUTATION  OP  PERIOD  OP  LIMITATION.  141 

as  compensation  for  land  taken  for  public  purposes  which,   by  the  defend- 
the  plaintiff  alleged,  to  belong  to  him  and  not  to  the   not  prevent  the 
defendant.     It  was  held  that  the  plaintiff's  right  of  action  ning  against"1" 
against  the  defendant  accrued  at  the  time   when  the 
defendant  first  took  the  money  from  Government,  and 
that  the  ignorance  of  the  plaintiff  in  regard  to  the  accrual 
of   his  right   did  not  prevent  the   time  from   running 
against  his  suit,  unless  it  had  been  brought  about  bj  the 
fraud  of  the  defendant. 

(j)     "In  this  case,  which  also  proceeded  upon  the  frau-  Case  where 
dulent  sale  to  McArthur,   it  was  held  by  Markby  and  fauduientiy 

_.      _      _   _      .,     .       ,  ,,         .,         ,.  .  ,.,        *r»    .      made  to  believe 

Birch,  J.  J.,  that  where  the  allegations  in  a  plaint  suffici-  he  had  no  right 

ently  stated  that  the  plaintiffs  being  entitled  to  property 

and  being  in  enjoyment  thereof  were  ousted  therefrom 

under  color  of  a  fictitious  revenue  sale  in  pursuance  of  a 

fraudulent  contract,  the  fraud  being  so  contrived  as  to 

make  plaintiffs  believe  that  they  had  no  right  of  action 

at  all,  and  the  allegations  were  proved,  the  fraud  would 

entitle  the  plaintiffs  to  claim  the  benefit  of  section  9  of 

Act  XIY  of  1859."<i> 

•(k)     A  man  is  not  at  liberty  to  shut  his  eyes  to  informa-  From  existence 
tion  within  his  reach  and  so  lengthen  indefinitely  the  period  knowledge  of 
of  limitation  within  which   he   should  make  his  claim ;  may  find  actual 
Dhunput  Sing  v.  Rahoman.*2)     In  Bibee  Solomon  v.  Ab-  piatatSff  part. 
dool,(*)  it  was  held  that  although  this  section  does  not  re- 
quire due  diligence  on  the  part  of  a  plaintiff,  the  court 
may  from  the  existence  of  the  means  of  knowledge  of  the 
fraud,  find  as  a  matter  o!  fact  that  the  plaintiff  had  actual 
knowledge  of  it.     Wilful  ignorance  attaches  to  the  party, 
the  consequences  of  knowledge  of  fraud.     In  Radhanath 
Dutt  v.  Govind  Chunder,<4)  the  Judge  observe,  "  where 
plaintiff  had  such  information,  a  person  of  ordinary  care 
and  prudence  would  have  acted  on  it  to  investigate  the 
state  of  the  accounts  with  Sreenath  Doss,  and,  so  acting, 
could  have  discovered  the  payment  of  the  sum  and  the 
fact  of  its  not  having  been  accounted  for.     He  cannot 

(1)  I.  L.  R.,  2  Calc,  8.        I      (3)  8  C.  L.  R.  169, 184. 

(2)  9  W.  R.,  329.  I      (4)  4  W.  R.,  8,  C.  R.,  19. 


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142  PART  III.— COMPUTATION  OP  PERIOD  OP  LIMITATION.      [SEC.  18 

now  say  that  he  wae  not  then  cognisant  of  the  fraud, 
when  he  might  have  been  had  he  wished ;  and  when, 
but  for  his  own  laches,  the  fraud  must  have  become 
known  to  him,  had  he  acted  with  ordinary  diligence  and 
precaution." 
Case  where  (1)     In    Bygnath  Suhaye  v.   Brohmo  Deo  Narain,*1) 

wm  held  not  to  plaintiff  sued  to  recover  three  items  of  landed  property  to 
mentofcauseof  which  he  made  title  by  inheritance.     It  appeared  by  the 
section  1>  Act    evidence  of  the  plaintiff  himself  that  his  father,  through 
whom  he  claimed,  was  dispossessed  of  the  property  by  his 
co-sharers  in  it  so  far  back  as  1242  F.  S.,  and  afterwards 
brought  a  suit  for  the  same  in  which  he  was  non-suited. 
One  of  the  three  items  from  that  time  had  never  come  back 
to  the  possession  of  either  the  plaintiff  or  his  father  or  any 
one  in  their  behalf.     As  to  the  other  two  items,  the  def en- 
dant  pleaded  that  they  were   restored  to  the  plaintiff's 
mother,  who,  as  guardian  of  the  plaintiff  when  he  was 
a  minor,  sold  them  to  him,  aud  that  the  plaintiff,  after 
coming  of  age  ratified  the  sale  by  a  petition  to  the  Collec- 
tor, praying  for  mutation  of  names.     The  plaintiff  totally 
denied  ever  having  presented  such  a  petition.     The  Lower 
Court  found  that  the  defendant's  case  on  this  point  was  a 
fraud.     It  was  held  that,  even  if  the  allegation  of  fraud 
were  true,  as  it  did  not  exhibit  concealment  of  the  cause  of 
action  within  section  9,  Act  XIV  of  1859,  and  the  alleged 
fraud  did  not  constitute  an  ingredient  in  plaintiff's  cause 
of  action,- it  could  not  get  rid  of  the  effect  of  time. 
Plaintiff's  right       Coi)    *"  Penuballi  Subbaramareddi  v.  Bhimaraja  Rama- 
money  which     va»W  a  vakil  received  money  for  his  clients  and  gave  it 
SSdJ^Sl     to  theip  aSent  for  deliveiT  to  *hem-     Tlie  afiTent  did  not 
■<pn^afllputy  deliver  it  accordingly,  and  the  vakil  was  compelled  by  the 
£SE£  tat  did  Civ*1  Court  to  pay  it  over  again.     The  vakil  then  sued  the 
•^Tfc>meld£  agent  for  money.     It  was  held  that  if  the  defendant  was 
covery  of  fraud.  in  ^^  the  plaintiff»8  Bgmi9  but  had  induced  the  plaintiff 

to  pay  the  money  to  him  by  the  fraudulent  representation 
that  he  was  agent  of  the  clients,  the  cause  of  action  would 
have  arisen  at  the  discovery  of  the  frauds  ;  but  the  case 

(1)  9  W.  R.  266.  |      (2)  2M.  H.C.R.,  21. 

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BBC.  18]      PART  in. — COMPUTATION  OP  P1BIOD  OP  LIMITATION.  143 

was  treated  to  fall  under  clause  16,  section  1,  of  Act  XIV  of 

1859.    If  an  agent  receive  money  for  his  principal  and  Agent  conceal- 

°  *  *  *  ingmone  j  he  re- 

COnceal  the  fact  from  his  principal,  the  agent  is  guilty  oelved  for  his 

of  fraud,  and  cause  of  action  to  recover  the  money  accrues 

to  the  principal  from  the  date  of  the  discovery  of  the  fraud. 

Hoesain  v.  Syed  Tnssudduck.") 

(n)     In  Gibbs  v.  Grield,W  plaintiff  sued  for  damages,  English  one. 

said   to  have  resulted  from  fraudulent    representations  damages  for 

contained  in  the  defendant's  letter,   memorandum,  pros-  presentation, 

pectus  and  balance  sheet  regarding  a  company  which  was  did  not  discover 

established  and  registered  in  1870.     The  plaintiff  alleged  reasonable 

that  by  reason  of  such  false  representation  he  was  induced  ©overing  fraud 

J  within    time, 

to  purchase  shares  which  were  always  worthless,  and  so  he  held  good  plea. 
lost  £25,000.  The  defendant  alleged  that  the  cause  of 
action  did  not  arise  within  six  years  prior  to  the  suit. 
The  plaintiff  replied  that  he  did  not  discover  the  fraud  or 
that  the  defendant  had  been  a  party  to  it,  and  that  he 
(plaintiff)  could  not,  by  the  exercise  of  reasonable  diligence 
have  discovered,  and  had  not  the  means  of  discovering 
the  matters  stated  in  his  bill  until  within  six  years  next 
before  the  commencement  of  the  action,  and  that  the  means 
of  discovering  fraud  had  been  concealed  by  the  defendant. 
It  was  held,  that  the  plaintiff's  plea  was  good.  Field,  observations  of 
J.,  observes,  "  The  making  of  the  fraudulent  representation 
complained  of  is,  no  doubt,  the  first  step  going  to  the 
existence  of  a  cause  of  action :  but  the  fraudulent  re- 
presentation does  not  of  itself  give  a  cause  of  action; 
damage  to  the  plaintiff  must  ensue  before  that  comes  into 

existence.    Moreover,  fraud  and  damage  only  bring  into  Fraud  and  da- 
mage only  bring 

existence  a  cause  of  action  when  the  plaintiff  elects  into  existence  a 

cause  of  action. 

to  treat  it  as  such,  and  seeks  to  avoid  the  transaction, 

which  in  no  case  can  he  of  course  do  until  he  has  disco- 
vered his  right  to  elect,  or  has  so  omitted  to  make  use  of 
reasonable  means  at  his  command  for  making  the  discovery 
as  to  make  it  unjust  not  to  treat  the  omission  as  equivalent 
to  a  discovery,  and  so  to  hold  the  plaintiff  as  having 
been  put  upon  his  election."  In  this  case,  Field,  J.,  alludes 

(1)  21  W.  E.,  245.  |        (2)  8  a  B.  D.,  296. 

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144  PART  III.— COMPUTATION  OP  PERIOD  OP  LIMITATION.      [SBC.  18 

to  Hovenden  v.  Lord  Annesley,  (2  Sch.  and  Lep.  607, 629) 

in  which  Lord  Redesdale  is  said  to  have  stated  the  reason* 

for  the  decision  of  Booth  v.  Lord  Warrington  (4  Bro.  P.C., 

statute  flhouid    163).     Field.  J.,   states   "  he  said  that  the  principle  of 

not  operate  du-  .  .    r  / 

ring  the  time    that   case  was  that  fraud  is    a  secret  thing,  and  may 

that  fraud  is  on"  .  . 

discovered.  remain  nu discovered  until  such  time  that  the  statute 
might  run,  but  during  that  time  the  statute  should  not 
operate,  because  until  discovery  the  title  to  avoid  the 
transaction  does  not  arise." 

The  Law  of  Li-       (q)     In   Kowar  Poresh  Narain  Roy  v.  Watson  and 

mitation  being  v^^  ^  * 

express,  diaho-  Co.,W  the  court  observe,    "  if  they  took  possession  of 

nesty  in  obtain-  rf  r 

ing  possession    land  which  they  knew  did  not  belong  to  them,  they  took 

will  not  prevent  J  6  .    '        ^ 

the  possessor     (as  the  Civil  Law  calls  it)  a  knavish  possession.     Speak- 

from   availing  r  r 

himself  of  the    ing  of  possession  and  prescription,  the  Civil  Law  says  :  'To 

Law  of  Limita.    ^    .  r  .*..*.  .       ,  * 

tion.  acquire  prescription,  it  is   necessary  to  have  possessed 

honestly  and  fairly,  i.  e.,  that  the  possessor  must  have 
been  persuaded  that  he  had  a  just  cause  of  possession, 
and  must  have  been  ignorant  that  what  he  possessed 
did  belong  to  another  person.  And  this  integrity  is  always 
presumed  in  every  possessor,  if  it  is  not  proved  that  he 
has  possessed  with  bad  conscience,  knowing  the  thing  to 
be  another's."  (Domat's  Civil  Law,  2208,  p  876).  I  do 
not  mean  to  say  that  the  fact  of  obtaining  possession 
dishonestly  or  knavishly  will  prevent  a  man  from  availing 
himself  of  an  express  Law  of  Limitation.  On  the  contrary, 
it  appears  from  a  note  in  the  same  book  that  it  will 
not.  (Idem,  2209}.  The  Law  of  Limitation  in  this  coun- 
try being  express,  dishonesty  in  obtaining  possession  will 
not  prevent  the  possessor  from  availing  himself  of  the 
provisions  of  that  law.  But  the  law  cannot  relieve  him 
from  the  charge  of  dishonesty.  In  the  same  note  it  is 
said  :  '  But  as  to  the  point  of  conscience,  it  is  most  cer- 
tain that  the  length  of  time  does  not  secure  unjust 
possessors  from  the  guilt  of  sin,  and  that,  on  the  contrary, 
their  long  possession  is  only  a  continuation  of  their 
injustice.'  " 


(1)  5.  W.  E.,  288. 

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SEC.  18]      PAST  in.*— COMPUTATION  OP  PIEIOD  OP  LIMITATION.  145 

(n)     When  a  sale  of  land  subject  to  the  right  of  pre-  vendor's  inten. 

J      •  j        .m       ,  ..       .     iL  ,         tional  failure  to 

emption  is  made  without  previous  notice  to  the  pre-emptor,  inform  pre- 
if  the  vendor  and  vendee  intentionally  conceal  the  fact  of  posed  sale,  is 
sale,  the  pre-emptor  is  kept  from  the  knowledge  of  his  intentional  oon- 
right  to  sue  by  a  fraud,  of  which  the  vendor  and  vendee  by  vendor  and 

,  vendee  is  fraud* 

were  alike  guilty  ;  but  the  mere  omission  by  a  vendor  to 

give  due  notice  to  a  pre-emptor  of  a  proposed  sale  is  not 

a  fraud  even  if  the  omission  is  intentional.    Murad  v. 

Bhag  Singh  (Punj.  Bee,  No.  46  of  1879).     See  also  Bam 

Dyal  v.  Beli  Bam  (lb.,  No.  29  of  1878).    It  was  again  held 

in  a  suit  for  pre-emption,  that  the  fact  that  the  sale  was 

not  notified  was  not  sufficient  to  establish  fraud  within  the 

meaning  of  this  section.    It  must  be  shown  that  there  was  it  most  be 

an  industrious  and  artful  concealment  of  the  fact  of  sale,  there  was  an 

and  the  facts  must  necessarily  lead  to  the  inference  that  mentof  the  fact 

there  was  a  design  to  keep  the  pre-emptors  in  the  dark. 

Arsala  t?.  Yar  Muhammad  (Punj.  Bee.  No.  32  of  1881.)a> 

(q)    In  Mungamuru  Ananta  Lakshminarusu  Pantalu  v.  oase  where  it 
Srimant  Baja  Yarlagedda  Ankavid  Bahadur/2)  plaintiff  Sent  not 
sued  for  money  upon  two  documents,  dated  August,  1851,  awinot"?™- 
which  had  been  wrongfully  extorted  by  illegal  pressure  ceaied*  within 
from  the  bailee  and  which  the  plaintiff  recovered  by  a  xiv  of  law. 
decree  of  court.    With  reference  to  the  words  "  if  any 
document  necessary,  &c,"  in  section  9  of  Act  XIV  of  1859, 
the  court  observe :  "  It  seems  to  us  that  the  preceding 
words  of  the  section   show  clearly  that  the  documents 
must  have  been  fraudulently  concealed  from  the  know- 
ledge of  the  plaintiff ;  he  must,  through  the  fraudulent 
concealment,  be  unaware  of  its  existence,  and,  when  this 
is  so,  the  statute  runs  against  the  person  guilty  of  the 
fraudulent  concealment,  or  accessory  thereto,  from  the 
time  at  which  plaintiff  had  the  means  of  producing,  or 
compelling  its  production,  if  it  is  a  document  necessary 
for  establishing  such  right  of  action."     "  In  one  sense 
every  document  may  be  said  to  be  necessary,  if  the  word 
necessary  is  to  mean  anything  which  it  would  be  more 
prudent  to  be  provided  with."     "  But  the  documents  in 

(1)  Revaz's  Limitation  Act,  p.  51.  |        (2)  7  Mad.,  H.  G.  R.,  22. 
19 


(March  1870) 


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146  PART  III.— COMPTTTATIOH  OF  PIMOD  OF  LIMITATION.      [SIC.  18 

the  present  case  do  not  seem  in  themselves,  and  still  less 
upon  the  facts  of.  the  case,  to  be  necessary  within  the 
meaning  of  the  section."     "  It  is  easy  to  pnt  cases  in 
Oases  in  which  which  the  document  would  be  necessary,  as  in  the  case  of 
would  be  neoM-  a  will,  or  a  eodicil  fraudulently  concealed  from  the  know- 
ledge of  the  legatee/' 
where  plaintiff       (r )     In  Robert  and  Charriol  v,  Lombard/1)  the  defen- 
obtein  a  copy  of  dant,  in  his  official  report  to  the  Minister  of  Marine  in 
report  aaooneai  France,  had  made  a  defamatory  libel  concerning  the  plain- 
ment,  wEch"1"  tiff  who,  knowing  of  the  matter  shortly  after,  applied  to 
famatorv  state-  the  defendant  for  a  copy,  which  was  refused.     The  plain- 
was  refused      tiff,  however,  obtained  a  copy  from  the  French  Minister 
tion  9  of  Act"  and  instituted  his  suit  for  defamation  within  one  year 
though  it  ap-    from  the  date  of  his  having  obtained  the  copy,  but  after 
Santeioded^'    one  year  from  the  date  of  the  original  publication.     The 
cmiry  to*  know  plaintiff  had  used  every  endeavour  to  obtain  a  copy  of  the 
chawSerof the  report,  but  the  defendant  had  successfully  eluded  the 
on*        enquiry.    It  was  decided  that  the  conduct  of  the  defen- 
dant did  not  amount  to  fraud  so  as  to  enable  the  plaintiff 
to  claim  the  benefit  of  the  corresponding  section  9  of  Act 
XIV  of  1859.    Phear,  J.,  was  of  opinion,  that,  if  it  was 
shown  that  the  defendant  had  concealed  the  letter  with 
the  object  of  having  the  plaintiff's  claim  barred,  the  con- 
duct of  the  defendant  might  be  held  fraudulent.     The 
Judge  thought  that  the  words  "  document  necessary/'  <&c, 
in  the  second  clause  of  this  section,  hardly  applied  to  a 
document  which  was  merely  useful  in  evidence. 
Time  for  Coiiee-       (s)     In  execution  of  a  decree,  the  judgment-debtor's 
tion  toPPeanoei  recognised  fourth  share  in  a  certain  bhag  was  sold  in  Feb- 
dereBom£ayAct  ruary,  1876,  and  the  purchaser  was  subsequently  put  in 
from  the  <iateof  possession  of  a  portion  on  the  30th  September,  1880.     The 
Limitation  Act  Collector  applied  to  the  court  to  set  aside  the  sale,  on  the 
*pp  ground  that  it  was  illegal  under  Bombay  Act  V  of  1862.    It 

appeared  that  the  Collector  did  not  know  till  November, 
1877,  that  the  land  sold  was  an  unrecognised  portion  of  the 
bhag  and  not  the  whole  of  it.  It  was  held  that  the  sale 
might  be  set  aside  under  section  2  of  Bombay  Act  V  of 

(1)  1  Ind.  Jur.  N.  8.,  192. 

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81C.  18]     PAST  m.— COMPtJTATION  OV  P1RIOD  or  LIMITATION.  147 

1862,  notwithstanding  its  confirmation  and  delivery  of  pos* 
session,  and  that  even  if  this  Limitation  Act  applied  to  the 
case,  time  ran  against  the  Collector  only  from  November, 
1877.    The  Collector  of  Broach  v.  Raja'  Ram9  Laldie.O) 

(t)     In  the  Collector  of  Broach  v.  Desai  fUghnnath,<*>    Limitation  Act, 

^^  does  not  apply 

it  was  held,  that  the  law  of  limitation  does  not  apply  to  such  cmob 
to  Collector's  application  nnder  the  Bombay  Act  Yof 
1862,  to  set  aside  court  sales  of  portions  of  a  bhag. 

<tl)    "In  the  case  of  property  purchased  bend  fide  for  Possession  of  a 
valuable  consideration  from  a  party  who  had  acquired  it  chaser  in  caws 
by  a  concealed  fraud,  adverse  possession  as  against  such    fraud! 
purchaser  commences  from,  the  time  that  the  party  en* 
titled  was  deprived  of  the  property  by  means  of  such  fraud. 
The  purchaser,  from  a  trustee  or  mortgagee,  may  by  due 
diligence  discover  the  nature  of  the  interest  under  which 
the  seller  has  occupied,  but  the  purchaser  of  property 
from  a  person  who  has  acquired  it  by  a  oonoealed  fraud 
can  have  no  reason  to  suspect  any  defect  in  the  title  of 
the  seller.     This  is  why  the  Indian  Limitation  Acts  do 
not  place  such  a  purchaser  in  the  same  category  with 
purchasers  from  trustees,  mortgagees  and  depositaries/' 

"  See  the  special  report  of  the  Indian  Law  Commission- 
ers, dated  26th  February,  1842.  Sir  James  Colville,  in  his 
amended  Bill,  proposed  that  the  possession  of  the  pur- 
chaser should  be  deemed  adverse  from  the  date  of  the 
purchase,  but  he  withdrew  the  proposition  afterwards."<8> 

(V)    In  Chetham  v.  Hoare,*4*  the  plaintiff  sued  to  re*  Haiins.  v.  c_ 
cover  property  to  which  his  predecessor,  as  he  alleged,  of  the  section  of 
became  entitled  in  the  year  1769,  and  insisted  that  a  holding:  that0 
register  book  containing  a  certificate  of  marriage,  forming  proper  Am? 
the  principal   link  in  his  title,  had  been  fraudulently  la^isoovered 
mutilated  in  order  to  prevent  him  or  his  ancestors  from  alleged  frandn- 
obtaining  evidence  of  the  marriage.     Matins,  Y.  C,  held  of  marriage  re- 
upon  demurrer,  that  by  reasonable  diligence,  evidence  of 
the  marriage  might  have  been  ascertained  within  20 
years  after  the  alleged  fraud  had  been  committed,  and 


(1)  I.  L.  B.,  7  Bom.,  542.  I  (8)  Mitra/s  Limitation  Act,  pp.  164—165. 

(2)  L  L.  B.,7  Bom.,  646.  |  (4)  L.  B^  9  Eq.,  571. 


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148  PART  in.— COMPUTATION  OF  PERIOD  OP  LIMITATION.      [SEC.  1 8 

that  the  plaintiff  had  not  brought  his  case  within  the 
26th  section  of  the  Statute  of  Limitations. 
Case  where  (w)    In  Vane  v.  Vane/1)  the  plaintiff,  by  his  bill,  stated 

mother,  by        to  the  following  effect ;  that  an  estate  being  limited  to  the 
illegitimate  son   plaintiff's  father  for  life,  remainder  to  his  first  and  other 
legitimate  son,    sons  successively  in  tail,  the  father  in  1797  intermarried 
plaintiff  of  his   with  a  woman  who  had  been  his  mistress,  and  had  just 
time  was  'held  borne  him  a  son;    that  after  the  marriage  the  parents 
discovery  of  the  agreed  to  pass  off  the  son  as  legitimate,  and  he  was  always 
a  more  direct  recognized  as  such ;  that  the  plaintiff,  who  was  born  ten 
posiUve°fraiid    years  afterwards,  was  the  eldest,  but  was  brought  up  in  the 
conceived.7        belief  that  he  was  the  second  legitimate  son ;  that  when 
the  illegitimate  son  came  of  age,  he  was  informed  by  the 
father  that  he  was  illegitimate,  and  with  that  knowledge 
joined   the  father  in   suffering   a  recovery  to  bar  the 
entail ;  that  on  the  marriage  of  the  illegitimate  son  in 
1823,  he  and  the  father  made  an  ante-nuptial  settlement 
of  the  estates,  which  was  negotiated  by  the  wife's  father, 
as  her  agent,  and  on  her  behalf,  with  full  knowledge  that 
the  husband  was  illegitimate ;  that  the  father  died  in 
1832,  upon  which  the  illegitimate  son  entered  into  pos- 
session, and  remained  so  till  his  death  in  1842,  ever  since 
which  time  his  eldest  son  had  been  in  possession ;  that  the 
plaintiff  had  never  until  1866  believed  or  suspected,  or 
had  any    reason  to  believe  or   suspect,   that  his   elder 
brother  was  illegitimate ;  and  the  bill  prayed  for  a  decla- 
ration that  the  plaintiff  was  entitled  to  the  estates,  and 
that  the  defendants,  who  claimed  under  the  settlement  of 
1823,  might  be  ordered  to  give  up  possession  to  him.     The 
defendants  demurred.     It  was  held  that  a  Court  of  Equity 
had  jurisdiction,  and  that  the   designedly  bringing  up 
the  plaintiff  in  the  belief  that  he  was  the  second  legitimate 
son  was  a  case  of  concealed  fraud  within  the  meaning  of 
the  Statute  of  Limitations  (3  and  4,  Will  4,  c.  27,  s.  26),  and 
that  time  did  not  begin  to  run  against  the  plaintiff's  right 
to  sue  in  equity  until  the  time  when  he  might  first,  with 
reasonable  diligence,  have  discovered  the  fraud. 

(1)  Law  Rep.,  8  Ch.,  383. 

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8BC.  18]      PABT  TO. — COMPUTATION  OF  PERIOD  OF  LIMITATION.  149 

(x)     "  It  was  contended  by  the  Solicitor-General  that  Bond  jide  par- 

..ti  ..i  ,        *  /%  ,  ,  ,    chaser   means 

the  onlj  person  protected  was  a  bond  fide  purchaser,  and  real  purchaser 
that  we  onght,  on  the  authority  of  Lord  Hardwiclce,  to  taking  a  giftun- 

,.,,*.  .  .  _        .     „  _  ,  ,  der  the  form  of 

hold  that  a  person  is  not  a  bond  fide  purchaser  whose  a  purchase. 
agent  was  affected  with  notice  of  that  which  should  have 
prevented  his  purchasing.  In  this  proviso,  however,  we 
think  that  the  words  "  bond  fide"  were  introduced  alto- 
gether for  a  different  purpose,  and  with  a  different  meaning, 
that  it  was  meant  that  the  purchaser  should  be  really  a 
purchaser,  and  not  merely  a  donee  taking  a  gift  under  the 
form  of  a  purchase.  For  example,  a  person  might  take 
an  assignment  of  a  leasehold  in  consideration  of  covenants 
to  pay  the  rent  and  perform  all  the  covenants — might 
take  a  conveyance  of  a  mortgaged  estate  in  consideration 
of  his  paying  off  the  mortgage.  These  might  be  bond 
fide  purchasers,  or  they  might,  according  to  the  facts,  be 
in  truth  and  substance  volunteers  receiving  a  gift  of  a 
valuable  chattel  real  or  a.valuable  estate  incumbered.  It 
would  be  easy  to  suggest  many  other  circumstances  hy 
which  it  might  be  shewn  that  an  apparent  purchaser  had 
not  entered  into  the  transaction  honestly  and  substantially 
as  a  purchaser,  but  in  some  other  character,  or  for  some 
indirect  purpose.  And  we  conceive  that  it  was  with 
reference  to  that  class  of  cases  the  words  "  bond  fide"  were 
introduced  here,  and  that  they  were  not  meant  to  include 
and  cover  all,  and  more  than  all,  that  is  afterwards  ex- 
pressed in  the  remainder  of  the  proviso.  What,  then,  is 
the  legal  meaning  and  effect  of  that  which  is  so  afterwards 
expressed?  At  the  time  this  statute  was  passed  it  had  At  the  time  that 
undoubtedly  been  held  by  the  highest  authority  that  the  statute  was 
actual  knowledge  of  the  agent  through  whom  an  estate  is  fceenheidbythe 

.     .        ,  .  .  ,  highest  autho- 

acquired  is  m  this  court  equivalent  to  the  actual  personal  rity  that  the 
i  *         »i  •     •     i      rm  •    •      *  actual  know- 

knowledge  of  the  principal.     This  is  also  in  accordance  i<xto>  of  the 

.  .  agent  through 

with  the  invariable  course  of  decision  at  Common  Law  in  whom  an  estate 

is   acquired  is 

regard  to  purchases  of  chattels.     No  one  dealing  through  Jg^I^JJ0 
an  agent  is  ever  permitted  to  allege  himself  ignorant  of  ySf^rincfpaL 
that  which  is  actually  communicated  to  the  agent  in  the 
course  of  the  transaction*    The  agent  in  the  matter,  and 


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150  PART  in.— COMPUTATION  OF  PSBTOD  OF  LIMITATION,      [file.  18 

in  the  course  of  the  transaction  acting  within  the  limits 
of  his  agency,  is  the  alter  ego  of  the  principal." 

(y)  "  It  appears  to  us  beyond  all  question  that,  as  the 
law  of  this  court  stood  when  the  statute  was  passed,  the 
knowledge  of  the  purchaser's  agent  acquired  in  the  course 
of  the  transaction  was  for  all  purposes  treated  as  the 
knowledge  of  the  principal.  It  is  also,  we  conceive,  be- 
yond question  that  in  every  other  case,  except  under  this 
section,  this  court  would  treat  the  knowledge  of  the  pur- 
chaser's agent  as  the  knowledge  of  the  purchaser.  Was 
it  then  meant  to  make  such  a  material  alteration  of  the 
law  ?  It  is  said  in  support  of  that  (and  not  without  force) 
that  the  words  well-known  in  this  court,  "  purchaser  for 
valuable  consideration  without  notice,"  were  designedly 
not  used,  and  that  the  words  "  who  had  not  participated 
in  the  fraud,  and  did  not  know,  and  had  no  reason  to 
believe,"  were  designedly  introduced,  so  that  only  those 
purchasers  should  be  affected  who  had  actual  knowledge, 
and  who  were  in  truth  making  themselves  morally  accom- 
plices in  the  fraud— in  fact,  receivers  of  stolen  goods." 

The  Legfeia-  (z)     "  But  we  think  that  what  the  Legislature  really 

teration,  meant  meant  to  do  was  to  exclude  that  constructive  notice  which 
structive  notice  had  certainly  been  carried  to  a  very  startling  extent  in 
carried  to  a  very  many  instances,  and  that  it  did  not  mean  to  subvert,  in 
respect  of  one  small  portion  of  the  law  of  this  court,  the 
well-settled  principles  and  rules  on  which  all  the  courts 
have  acted  in  respect  of  the  relation  of  principal  and  agent, 
and  in  respect  of  the  extent  to  which  the  knowledge  of  the 
latter  is  deemed  to  be  the  knowledge  of  the  former.     The 
The  word  "who  courts  had,  in  fact,  held,  almost  in  so  many  words,  that 
or  "had  not    what  the  agent  knows  the  principal  knows,  that  the  know- 
Here"  were  in-  ledge  of  the  agent  was  sufficient  to  create  mala  fides  in 
"  who(  did  not  the  principal ;  and  we  think  it  therefore  reasonable  to 
by  him»eif  or  hold  that  the  Legislature  used  the  words  in  the  same 
Whone  know-     sense,  and  that  when  they  said  *  who  did  not  know  or  had 
settled  law,  "*    not  reason  to  believe,'  they  meant  '  who  did  not  know  or 
hie.  had  not  reason  to  believe,  either  by  himself  or  by  some 

lon»Jknow?er"    agent,  whose  knowledge  or  reason  to  believe  is  by  settled 


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SEC.  19]      PABT  III.— COMPUTATION  OF  PERIOD  OF  LIMITATION.  151 

law  deemed  and  taken  to  be  his/     We  think  it  would  lead  ledge  fereqnir- 
to  very  startling  consequences  if  any  other  interpretation  ration  might  ac- 
were  put  on  the  clause.     It  is  obvious  that  if  actual  per-  to  property 
sonal  knowledge  were  required,  every  Corporation  or  Joint-  citors  were  con- 
Stock  Company  might  acquire  a  good  title  to  property,  grossest  fraud 
although  its  officers  and  solicitors  were  perfectly    con-  the  vendor, 
versant    with  the    grossest   fraud    perpetrated    by   the 
vendor  ;  and  in  fact  any  person  might  deal  with  impunity  Any  person 

might  deal  with 

in  the  purchase  of  what  is  in  substance  stolen  property,   impunity  in  the 

•  «-*-*»    purchase  of  sto- 

provided  he  takes  care  to  leave  the  whole  dealing  from   fen  property  by 

leaving  the  mat- 

first  to  last  in  the  hands  of  his  agent."  ter  in  the  hands 

w  •     of  his;  agent. 

19.     If,  before  the  expiration  of  the  period  wept  of  ack- 

*  *  *  nowledgment  in 

prescribed  for  a  suit  or  application  in  respect  of  writin«- 
any  property  or  right,  an  acknowledgment  of 
liability  in  respect  of  such  property  or  right 
has  been  made  in  writing  signed  by  the  party 
against  whom  such  property  or  right  is  claimed, 
or  by  some  person  through  whom  he  derives 
title  or  liability,  a  new  period  of  limitation, 
according  to  the  nature  of  the  original  liability, 
shall  be  computed  from  the  time  when  the  ac- 
knowledgment was  so  signed. 

When  the  writing  containing  the  acknowledg- 
ment is  undated,  oral  evidence  may  be  given  of 
the  time  when  it  was  signed  ;  but  oral  evidence 
of  its  contents  shall  not  be  received. 

Explanation  1. — For  the  purposes  of  this 
section  an  acknowledgment  may  be  sufficient, 
though  it  omits  to  specify  the  exact  nature  of 
the  property  or  right,  or  avers  that  the  time 
for  payment,  delivery,  performance  or  enjoy- 
ment has  not  yet  come,  or  is  accompanied  by  a 
refusal  to  pay,  deliver,  perform,  or  permit  to 


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152  PART  III.— COMPUTATION  OP  PERIOD  OP  LIMITATION.      [SEC.  19 

enjoy,  or  is  coupled  with  a  claim  to  a  set  off, 
or  is  addressed  to  a  person  other  than  the  per- 
son entitled  to  the  property  or  right. 

Explanatian  2. — In  this  section  "  signed" 
means  signed  either  personally  or  by  an  agent 
duly  authorized  in  this  behalf. 
This  section  ap-  (a)  The  corresponding  section  20  of  Act  IX  of  1871, 
fcdginent  of w"  referred  only  to  acknowledgment  in  respect  of  a  debt  or 
pert  oFaqrf££  legacy ,  while  Article  148  of  the  second  schedule  provided 
{Irtdfe  secrioof  for  the  acknowledgment  by  a  mortgagee  of  the  mort- 
retei^^ac-  gagor's  title  giving  a  fresh  starting  point.  This  section 
rtTd$FTL  (19)  of  the  Act  of  1877  has  been  so  altered  as  to  apply 
goes  only.  ^  ac]niowie(jgme]1t  of  liability  in  respect  of  "  any  pro- 

perty or  right"  The  acknowledgment  of  a  mortgagor's 
title,  therefore,  comes  under  this  section. 

As   to   the  effect  of  an  acknowledgment  by  one  of 
several  joint  contractors,  partners,  executors  or  mortga- 
gees, see  section  21. 
Under  section         (b)     The  corresponding  section  4  of  Act  XIV  of  1859, 
i860,  aoknow-      did  not  say  that  the  promise  to  pay  must  be  made  before 
afterthe  period   the  period  of  limitation  had  expired.     By  that  Act,  there- 
vived  a  debt,     fore,  a  debt  barred  by  limitation  could  be  revived  by  a 
promise  to  pay  the  debt  made  after  the  period  of  limitation 
That  section  is   had  passed,  and  such  a  promise  could  be  sued  on.    That 
tion  20  of  Act  section  has  been  split  up  into  the  Limitation  Act  of  1871, 
section  25  clause   section  20- A,  and  into  the  Contract  Act,  section  25,  clause 
tract  Act.  3.     Section  20- A  of  Act  IX  of  1871,  makes  it  compulsory 

that  the  promise   should  be  made  before  the  period  of 
limitation  had  expired,  and  that  period  is  extended  by  the 
Contract  Act,  section  25,  clause  3,  which  lays  down  that 
o.  h.  held  that  a  written  promise  to  pay  a  debt  barred  by  limitation  is  not 
executed  for       a  void  agreement,  but  is  a  contract  enforceable  in  law. 
der  a  barred      In  Heera  Lall  Mookhopadhya  v.  Dhunput  Singh/1)  which 

decree  is  not  ..  .  .    _\~      *  r  ?  /  . 

void.  was  a  suit  upon  kist-bundi,  or  an  agreement  to  pay  by 

monthly    instalments    the  debt  secured  by  a  decree  of 
court,  the  defendant  contended  that,  on  the  date  of  the 
(1)  I.  L.  R.,  4  Calc,  600. 


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8EC.  19]      PABT  III.-^-COMPUTATJQN  OF  PERIOD  OF  LIMITATION.  153 

agreement,  as  the  decree  had  been  barred,  there  wag  no 

valid  consideration  for  the  agreement.     The  court,  while 

holding  that  the  decree  had  not  been  then  barred,  observed, 

in  December,  1878,  that  even  had  there  been  no  valid 

consideration  for  the  kist-bundi,  yet  the  principle  laid 

down  in  section  25,  clause  3  of  Act  IX,  1872,  and  which   The  principle  of 

prevailed  before  the  passing  of  that  Act,  would  have   26,  prevailed 

even  before  the 

saved  the  kist-bundi  from  becoming  void  for  want  of  con*   contract  Act 

was  passed. 

sideration.    In  Tillak  Chand  Hindumal  v.  Jitamal  Soda- 
ram/1)  the  court  observe,  that  the  efficacy  of  such  promises 
is  now  based  upon  the  principle,  that  where  the  considera- 
tion was  originally  beneficial  to  the  party  promising,  and 
he  be  protected  from  liability  by  some  provision  of  the 
Statute  or  Common  Law,   for  his  advantage,  he  may  re-         b.  h. 
nounce  the  benefit  of  that  law,  and  if  he  promise  to  pay  renounceThe 
the  debt,  he  is  bound  by  the  law  to  perform  that  promise,  statutoof  Limi- 
This  has  been  followed  in  Baghoji  v.  Abdul  Karim,W  and  n^^to^pay^ 
Chatur  Jagsi  v.  Tulsi.W    See  also  Mullins  Beddy.W  barred  do6t- 

(c)  "  The  legal  effect  of  an  acknowledgment  of  a  debt  Observations  of 
barred  by  the  Statute  of  Limitations  is  that  of  a  promise  on  the  legal '' 

effect  of  an  ac- 

to  pay  the  old  debt,  and  for  this  purpose  the  old  debt  is  a  knowiedgment 
consideration  in  law.  In  that  sense  and  for  that  purpose 
the  old  debt  may  be  said  to  be  revived.  It  is  revived  as  a 
consideration  for  a  new  promise.  But  the  new  promise 
and  not  the  old  debt  is  the  measure  of  the  creditor's  right. 
If  a  debtor  simply  acknowledges  an  old  debt,  the  law  im- 
plies from  that  simple  acknowledgment  a  promise  to  pay 
it,  for  which  promise  the  old  debt  is  a  sufficient  considera- 
tion. But  if  the  debtor  promises  to  pay  the  old  debt  when 
he  is  able,  or  by  instalments,  or  in  two  years,  or  out  of  a 
particular  fund,  the  creditor  can  claim  nothing  more  than 
the  promise  gives  him.''  Phillips  v.  Phillips  (3  Ha.,  281, 
300.W 

(d)  In  ShambhuNathNath*.  Ram  Chandra  Shaha,<«>  ^  <£$££• 
plaintiff  claimed  money  due  on  a  balance  of  accounts,  ?L^entkshaji 
alleging  that  the  defendant  had  given  a  written  acknow-  J^d8™*6*?*" 

override   the 
(1)  10  Bom.,  H.  C.  R.,  206.   I  (4)  6  N.-W.  P.  H.  0.,  p.  150.  general  rule  as 

(8)  I.  L.  R.,  1  Bom.,  690.  5)  Banning,  p.  48.  g^  Kgg; 

(3)  L  L.  R,,  2  Bom,,  230.       1  (6)  L  L.  R.#  12  Calc,  267.  ary  evidence. 


20 


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154  PART  III.— COMPUTATION  OP  PERIOD  OP  LIMITATION.     [8EC.  19 

ledgment  of  the  debt.  As  the  acknowledgment,  which 
was  the  only  means  of  avoiding  limitation,  was  said  to 
have  been  lost,  the  Mnnsiff  dismissed  the  suit,  on  the 
ground  that  secondary  evidence  of  its  contents  could  not 
be  received.  The  Sub-judge  decreed  the  claim,  being  of 
opinion  that  the  words  in  para.  2  of  this  section  had  not 
the  effect  of  overriding  the  rule  of  evidence  as  to  the 
production  of  secondary  evidence  in  the  case  of  a  docu- 
ment lost  or  destroyed.  The  corresponding  section  of  Act 
IX  of  1871,  distinctly  provided  against  the  reception  of 
oral  evidence  of  the  contents  of  a  written  acknowledgment, 
lost  or  destroyed.  Act  IX  of  1871  was  passed  "before  the 
present  evidence  Act  came  into  existence,  and  the  above 
provision  had  not  the  effect  of  excluding  secondary  evi- 
dence of  an  acknowledgment  in  the  possession  of  the 
opposite  party  or  beyond  the  jurisdiction  of  the  court  or 
of  one  contained  in  a  public  document.  Section  65  of  the 
Evidence  Act  gives  the  various  cases  in  which  secondary 
evidence  may  be  given.  Then  came  the  Limitation  Act 
Pam.  Prefers  to  of  1877.  The  words  of  para.  2  refer  to  oral  evidence,  but 
bat  not  to  '  not  to  secondary  evidence.  It  was  held  that  para.  2  of  this 
dence.  section  belongs  to  that  branch  of  the  law  of  evidence 

which  is  dealt  with  by  section  91  of  Act  I  of  1872,  and 
ought  not  to  be  read  in  derogation  of  the  general  rules  of 
secondary  evidence  so  as  to  exclude  oral  evidence  of  the 
contents  of  an  acknowledgment  which  has  been  lost  or 
destroyed.     The  court  observe,  "There  is  nothing  in  the 
terms  of  the  Act  constraining  us  so  to  hold,  and  the  conse- 
The  oorae-        quences  of  doing  so  would  be  serious.     If   we  interpret 
preSngthtesed  section  19  of  the  Limitation  Act  as  excluding  secondary 
secondary  evi-    evidence,  when  the  original  document  is  lost  or  destroyed, 
acknowiedg-       it  must  also  exclude  secondary  evidence  of  the  contents 
aerioufl.  of  a  document  in  every  one  of   the  cases  mentioned  in 

section  65  of  the  Evidence  Act.  For  example,  the  party 
objecting  to  secondary  evidence  may  have  the  original  in 
his  pocket,  and  when  called  upon  to  produce  it,  may 
pertinaciously  refuse  to  do  so.  If  secondary  evidence 
Anacimowiedg-  cannot  be  given,  justice  will  be  frustrated.  So  again  an 
the  form  of  a  acknowledgment  may  be  in  the  form  of  a  public  record, 


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8IC.  19]     PABT  III. — COMPUTATION  OP  PBRIOD  OP  LIMITATION.  155 

as  was  apparently  the  case  in  Daia  Chand  v.  Sarfrazf x>  or  public  reoord{ 
the  document  may  be  out  of  the  jurisdiction  and  control    control  and  ju- 

-  ,,  ,  ,,  riadiction. 

of  the  court. 

(e)  "  It  would  seem  that  if  there  is  no  date  on  the  English  cases 
written  acknowledgment,  it   may  be   supplied  by  parol  dence  allowed 
evidence.     This,   in  one  report  of  Edmonds   v.  Downes,  written*  ac- 
(2  Cr.  <fe  M.,  463)  is  given  as  a  direct  decision,  but  in  ow 
another  report  of  the  same  case  (4  Tyr,  179)  it  appears 

to  have  been  left  in  doubt,  though,  even  according  to  that 
report,   the  inclination  of  opinion  of  Bayley,  B.,  was  in 
favor  of  this  view.    And  it  is  submitted  that  the  name  of   the  name  of  ore- 
the  creditor,  if  not  mentioned  in  the  acknowledgment,  may 
be  supplied  in  the  same  way.     (See  Hartley  v.  Wharton, 
11  Ad.  <fc  £11.,  984).     If  it  is  not  clear  from  the  acknow- 
ledgment itself  to  what  debt  it  refers,  this  also  may  be  the  debt  to 
proved  (Spickemell  v.  Hotham,  Kay,  669)  by  parol,  and   referred^Sd1 
if  it  is  lost  parol  evidence  of  its  contents  is  admissible,  contents  of  a 
(Haydon  v.  WilHams,  7  Bing,  163)."     (Darby  andBosan-  tedgment. 
quet,  p.  61.) 

(f)  In  Luvar  Chunilal  Ichharam  v.  Luvar  Tribhovan  b.  h.  oonstraed 

.  "prescribed 

Laldas/2)  plaintiff  sued  on  the  22nd  September,  1877,  for  period"  in  sec- 
money  paid  on  the  16th  November,  1868,  for  the  defen-  ix  of  isn  to 
dant's  use.     The  plaintiff  relied  upon  two  acknowledg-  prescribed  by 
ments  of  the  claim,  dated  3rd  November,  1872,  and  11th 
November,  1874,  and  signed  by  the  defendant's  agent.     It 
was  pleaded  that  plaintiff  had  six  years  under  Act  14  of 
1859,  and  that  the  first  acknowledgment  was  within  that 
time.     It  was  held  that  the  expression  "  prescribed  period" 
in  section  20- A  of  Act  IX  of  1871,  meant  the  period  pres- 
cribed by  Article  59  of  schedule  2  of  that  Act,  namely,  3 
years  from  the  period  when  the  money  was  paid,  and  that, 
as  the  first  acknowledgment  was  not  so  made,  the  claim 
was  barred. 

(g)  In  Mohesh  Lai  v.  Busunt  Kumaree/3*   it  was  Acknowledge 
held  that  acknowledgments  which  under  Act  XIV  of  1859  given  before  ix 
were  insufficient  to  keep  alive  a  cause  of  action,  because  sufficient  under 

it,  but  not  so 
under  XIV  of 
1850,  held  suffi- 

(1)  I.  L.  B.,  1  AH.,  117.      |    (2)  I.  L.  R.,  6  Bom.,  688.  ^?it08avetU° 

(8)  I.  L.  E.,  6  Calc,  340.  ciMm' 


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156 


PART  IEL— COMPUTATIOH  OF  PBRIOD  Of  LIMITATION.      [8BC.  19 


Under  section 
SO  of  Act  IX  of 
1871,  agent  mav 
sign   either  his 
name  or  his 
principal's 


It  matters  not 
in  what  form 
the  instrument 


Under  the  fit** 
tuteof  Frauds 
auctioneer's 
clerk  writing 
purchaser's 
name  binds  the 


Drawer's  letter 
to  drawee  after 
dishonor  to  pay 
money,  is  suffi- 
cient acknow- 
ledgment. 


Acknowledg- 
ment of  debt 
due   would  not 
revive  a  barred 
right  to  sue. 


they  were  signed  duly  by  an  agent,  were  sufficient  to  sus- 
tain a  suit  on  the  same  cause  of  action  under  Act  IX  of 
1871,  and  that  where  a  series  of  acknowledgments  of  a  debt 
have  been  made,  each  within  3  years  of  the  one  next  pre- 
ceding, and  the  first  of  the  series  has  been  made  within 
three  years  of  the  date  on  which  the  debt  was  contracted, 
a  suit  for  the  recovery  thereof  is,  under  Act  IX  of  1871, 
in  time,  if  instituted  within  3  years  from  the  date  of  the 
last  acknowledgment.  In  this  case,  letters  written  to  the 
plaintiff  by  the  debtor's  Dewan,-whose  ordinary  duty  was 
to  carry  on  a  correspondence  of  that  kind,  were  considered 
as  written  by  the  Dewan  as  debtor's  agent  generally 
authorised  for  that  purpose.  It  is  further  observed  that 
as  long  as  the  acknowledgment  is  signed  with  the  prin- 
cipal's name  by  his  duly  authorized  agent  in  such  a  way 
86  to  make  it  appear  that  the  acknowledgment  is  his, 
and  that  he  is  the  real  author  of  it,  it  matters  not  in  what 
form  the  instrument  is.  If  the  agent  is  authorized  to 
write  the  letter,  it  matters  not  whether  he  signs  the  name 
of  the  principal  or  his  own.  Under  the  17th  section  of  the 
Statute  of  Frauds,  an  auctioneer's  clerk  writing  the  pur- 
chaser's name  at  his  instance  as  such  was  sufficient 
signature  to  bind  the  purchaser. 

(h)  Raman  v.  Vairavan<1)  was  a  suit  brought  by  a 
creditor  to  recover  money  due  to  him,  for  which  the 
debtor  had  drawn  a  hundi  on  a  third  person,  who  dis- 
honored it.  It  was  held,  that  a  letter  written  subse- 
quently by  the  debtor  to  the  drawee  of  the  hundi  request- 
ing him  to  pay  the  amount  due  upon  it,  was  sufficient 
acknowledgment  of  the  debtor's  liability  for  the  debt. 

(i)  In  Nahani  Bai  v.  Nathu  Bhau,<2>  a  sum  of  money 
was  deposited  with  the  defendant's  firm  in  1857.  Three 
years  afterwards  interest  was  paid  by  the  firm,  which  was 
debited  in  the  ledger  to  the  creditor  against  a  credit  of  a 
like  amount.  In  1875,  a  balance  was  struck  and  carried 
to  another  account  signed  by  the  defendant  acknowledg- 
ing the  same  to  be  "due  for  balance  of  old  account." 


(1)  I.  L.  R.,  7  Mad.,  392.     |     (2)  1. 1*  B.,  7  Bom.,  414. 


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8IC.  19]      PART  III.*— COMPUTATION  OF  PERIOD  OP  LIMITATION.  157 

In  1878  the  account  was  again  balanced,  and  the  balance 
again  transferred  to  a  fresh  account  similarly  signed.  It 
was  held  that  although,  after  the  acknowledgment  in  1875, 
the  account  was  again  balanced  in  1878,  and  an  acknow- 
ledgment of  a  sum  due  was  repeated,  the  latter  could  not 
revive  the  right  to  sue,  which  the  acknowledgment  of  1875 
had  not  revived.  The  court  further  held  that  this  could 
not  be  treated  as  an  account  stated.  The  court  observes 
with  reference  to  the  acknowledgment,  "  We  should  have  Acknowiedg- 
under  section  19  of  the  Act,  an  acknowledgment  ineffectual  tuai  under  this 
to  bar  limitation,  because  not  made  within  the  prescribed  not  be  effectual 
period,  while  one  of  exactly  the  same  character  might  be 
made  under  Article  64  of  schedule  II  at  any  time  what** 
ever,  and  would  bar  limitation,  because  no  time  is  pre- 
scribed within  which  an  account  must  be  stated.  The 
Legislature  cannot  have  intended  to  lay  down  rules  which 
would  be  self-contradictory,  or  have  meant  by  Article  64 
to  defeat  its  own  purpose  in  section  19*  We  must  Bee  if 
a  reasonable  construction  cannot  be  found,  which  will  give 
a  distinct  operation  to  each  of  the  two  rules,  and  an  opera- 
tion that  will  obviate  clashing  and  inconsistency." 

(j)    In  Hemchand  Kuber  v.  Vohora  Raji  Haji/1)  a  Baianoe  of  re- 
balance of  account  was  written  by  a  person  at  the  request    debtor's  name! 
of  an  illiterate  debtor  in  the  debtor's  name,  and  signed  by  Writer  in  his7 
the  writer  in  his  own  name.     It  was  held,  that  as  the  within  expia- 
defendant  could  not  write  he    got  the  acknowledgment  *** 10n 
including  his  name  written  by  a  third  party  and  thus  made 
that  third  party  his  agent,  and  that  therefore  he  was 
bound  by  the  acknowledgment. 

(k)     In  Mahalakshmibai  v.  The  Firm  of  Nageshwar  Entry  in  debt* 
Purshotam,(2)    plaintiff   deposited   with    the    defendant  not  amount  to 
Rupees  50  in  December,  1876,  and  again  Rupees  80  in  De-   ment,  unless 
comber,  1877.     In  February,  1881,  the  defendant  credited  to  his  creditor 
the  plaintiff  in  his  ledger  with  the  sum  due  to  him  including  his  behalf, 
interest.     The  defendant  credited  the  plaintiff  with  inter* 
est  yearly  from  the  time  of  the  deposit  in  his  interest 
book.      The  Subordinate  Judge  held  that  the   entries 


(1)  I.  L.  R.,  7  Bom.,  MS.    |    (2)  I.  L.  E.,  10  Bom.,  71. 


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158  PART  III. — COMPUTATION  OP  PERIOD  OF  LIMITATION.      [8BC.  19 

written  by  the  defendant  were  not  acknowledgments  con- 
templated in  this  section.     It  was  held,  on  a  reference, 
that  an  entry  in  a  debtor's  own  book  does  not  amount  to 
an  acknowledgment  within  the  meaning  of  section  19, 
nnless  communicated  to  his  creditor  or  to  some  one  on 
his  behalf,  explanation  1  to  this  section  showing  that  the 
acknowledgment  is  contemplated  as  "  addressed"  to  the 
creditor,  and  that  every  acknowledgment,  in  order    to 
create  a  new  period  of  limitation,  must  be  signed  by  the 
debtor  or  some  one  deputed  by  him,  no  matter  in  what 
part  of  the  document  the  signature  is  placed. 
Debtor  writing        (1)     In  Andarji  Kalyanji  v.  Dulabh  Jeevan^1)  an  ac- 
with^uuneat  count  stated  was  written  by  a  debtor  himself  with  his  name 
to  be°8affidLont  at  the  top  of  the  entry.     Westropp,  C.  J.,  held,  that  the 
mentT*  account  stated  had  been  sufficiently  signed  within  the 

meaning  of  section  4  of  Act  XIV  of  1859,  and  that  the 
signature  was  in  one  of  the  modes  of  signing  most  gene- 
nerally  practised  by  natives.     Following  the  above  ruling 
and  the  ruling  of  the  Madras  High  Court  in  Khwaja 
Muhammad  Janula  v.  Vencatarayar  and  another/2)  it  was 
held,  in  Jekisan  Bapuji  v.  Bhowsar  Bhogajetha/8)  that 
where  the  whole  of  an  account  stated  was  written  by  the 
debtor  himself  with  the  introduction  of  his  name  at  the 
top  of  the  entry,  the  account  stated  was  sufficiently  signed 
within  the  meaning  of  section  19  of  Act  XV  of  1877. 
Agent  autho-         (m)     In  Mathura  Doss  v.  Bahu  Lai/4)  the  debtor's 
letter  In  iSf     agent,  under  the  orders  of  the  debtor,  wrote  a  letter  to  the 
name  to  "ere-     creditor  containing  an  acknowledgment  in  respect  of  a  debt, 
nowiedgment  "  This  letter  was  headed  as  follows :  "  written  by  Babu  Lai 
ed.  "  to  Shah  Benarsi  Doss,"  the  concluding  portion  of  the  letter 

was  written  by  the  debtor  in  his  own  hand- writing.  The 
debtor  admitted  that  the  letter  was  written  by  his  direc- 
tions. It  was  held  that  the  admission  of  the  debtor,  that 
the  fetter  was  written  by  his  gumastah  under  his  orders, 
and  the  circumstance  that  he  added  a  paragraph  at  the 
conclusion,  were  sufficient  evidence  that  the  heading  was 

(1)  I.  L.  R.,  6  Bom.,  88.        I    (3)  I.  L.  R.,  6  Bom.,  89. 

(2)  2  Mad.,  H.  G.  R.,  79.       |    (4)  I.  L.  R.,  1  All.,  683. 


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SEC.  19]      PART  III.— COMPUTATION  OF  PERIOD  OF  LIMITATION.  159 

written  by  the  duly  authorised  agent,  and  that  whenever 
the  maker  of  an  instrument  or  his  agent  acting  with  author- 
ity introduces  the  name  of  the  maker  with  a  view  to  au- 
thenticate the  instrument  as  the  instrument  of  the  maker, 
such  an  introduction  of  the  name  is  a  sufficient  signature. 

(n)     In  Laljee  Sahoo  v.  Raghoo  Nundun  Lall  Sahoo,M    Uncontradicted 

#  acknowledg- 

the  disputes  between  the  parties  which  were  unsettled  ment  of  debtor 

not  openly  ad- 

until  the  23rd  November,  1873,  were  referred  to  arbitrators  mitted  by  cre- 
ditor, is  an  ack- 
who  never  held  regular  meetings,  but  on  the  24th  Decern-  nowiedgment 

°  °  within   the 

ber,  1874,  an  Ikrarnama  was  executed  by  the  defendant  meaning  of  thi» 

section. 

and  his  deceased  father  in  which  the  sums  due  were  said 
to  have  been  ascertained.  The  plaintiff  sued  on  the  21st 
December,  1877,  on  the  Ikrarnama.  Garth,  C.  J.,  observes 
"  It  may  be  then  said,  that  the  plaintiff,  by  never  openly 
assenting  to  the  amount  of  the  debt  thus  acknowledged 
to  be  due  to  him  by  the  defendant,  has  placed  it  out  of 
his  power  to  take  advantage  of  it  now  ;  but  we  think  that 
he  has  a  right  to  take  advantage  of  it  at  any  time,  so  long 
as  the  acknowledgment  of  the  debt  remains  uncontradic- 
ted and  unexplained  by  the  defendant.  Assuming  that 
the  execution  of  the  Ikrarnama  was  unknown  in  the  first 
instance  to  the  plaintiff,  still  if  he  afterwards  became 
aware  of  it,  and  communicated  to  the  defendant,  as  he  did 
at  any  rate  by  bringing  this  suit,  that  he  had  assented  to 
the  adjustment,  unless  the  defendant  repudiated  or  ex- 
plained away  the  admission  that  be  had  made,  we  con- 
sider that  the  plaintiff  is  entitled  to  take  advantage  of 
that  admission  in  this  suit." 

(O)     Iu  Young  v.  Mangala  Pilly  Ramaiya,W  it  was  statement  that 
held,  that  an  admission  of  a  debt  with  the  appended  aver-  come  payable 
ment  that  it  is  not  yet  payable  in  point  of  time,  may  be  an  tag  of  a  future 
acknowledgment  of  a  debt  under  section  4  of  Act  XIV  of  actoowiedg-  *" 
1859.     An  assertion  that  a  sum  of  money  will  be  payable  (junewei.) 
on  the  happening  of  an  event  future  and  uncertain  is  not 
an  acknowledgment  of  a  debt,  but  the  allegation  of  inci- 
dents out  of  which  a  debt  may  at  sometime  arise.    The 
court  observe,  "  it  is  clear  that  this  is  no  acknowledgment 

(1)  I.  L.  B.,  6  Ciflb.,  447.      |  (2)  3  M.  H.  B.,  308. 

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160  PART  III.~COMPUTATION  OF  PERIOD  OF  LIMITATION,      [SEC.  19 

of  a  debt,  but  of  a  transaction  which  would  give  rise  to  a 
debt,  on  the  performance  of  a  condition.  There  may  be  a 
present  debt  although  there  is  not  a  present  liability  to 
pay,  but  there  is  no  debt  where  the  liability  is  dependent 
upon  a  condition." 
Unregistered  (p)    Nundo  Kishore  Lall  v,  Musst  Ramsookhee  Kooei-W 

coxnpuSoriiy      was  brought  for  the  recovery  of  money  due  under  a  regis- 
ml?ted*to  prove  tered  bond,  dated  30th  February,  1868.     This  suit  was 
ment°of  debt  to  brought  in  November,  1876.  The  principal  objection  taken 
(Under  Act  ii  by  the  defendant  was,  that  the  suit  was  barred  by  limita- 
tion.    It  was  alleged  by  the  plaintiff  that  there  was  an 
agreement  between  him  and  the  defendant's  husband  to 
pay  off  the  debt  due  under  the  plaint  bond  by  the  sale  to 
him  of  his  property,  and  that  the  terms  of  the  agreement 
were  reduced  to  writing  and  signed  by  the  defendant's 
husband  in  1875,     The  agreement  was  not  registered.     It 
was  held  that  although  under  section  49  of  Act  VIII  of 
1871  no  instrument  required  by  section  17  to  be  registered 
can  be  received  in  evidence  of  any  transaction  affecting 
the  property,  that  section  does  not  prevent  such  instru- 
ment being  used  in  evidence  to  prove  an  acknowledg- 
ment of  some  other  debt  therein  contained,  for  the  pur- 
pose of  showing  that  a  fresh  period  of  limitation  has  been 
acquired  under  section  20,  clause  c  of  Act  IX  of  1871. 
Case  where  an       (Q.)     Where  plaintiff  sued  for  the  money  due  on  an  un- 
nS^geSeed     registered  mortgage-deed,  in  which  defendant  recited  that 
toowiefeS    *e  owed  plaintiff  Its.  199-8-0  on  a  balance  of  account, 
not°to  avai£eJs  as  security  for  which  he  mortgaged  his  land,  stipulating 
taSsof theluit!  for  the  payment  of  interest,  <fcc.,  and  it  was  contended  for 
the  plaintiff  that  the  mortgage-deed,  though  unregistered 
and  inadmissible  in  evidence  to  affect  the  land  mortgaged, 
could  be  accepted  as  an  acknowledgment  of  a  subsisting 
liability,  so  as  to  prevent  a  suit  for  the  original  debt  being 
barred  by  limitation,  it  was  held,  that  as  plaintiff  had  not 
sued  on  the  old  accounts,  and  offered  the  bond  as  proof  of 
acknowledgment,  but  had  sued  to  enforce  the  bond,  the 
suit  must  fail,  as  there  was  no  9greement  in  the  bond  sued 

(1)  I.  L.  R.,  6  Calc.,  215. 

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SIC.  19]      PABT  III.— COMPUTATION  OP  PERIOD  OP  LIMITATIOH.  161 

upon  which    could  be    separated    from  the    mortgage. 
Chuhar  v.  Waaira,  (Punj :  Bee :  No.  17  of  1881.)(1> 

(r)     Faki  v.  Khotu,(*>  was  a  suit  for  possession  of  real  Unregistered 
property  of  more  than  hundred  rupees  value.   The  plaintiff,  cont&LrS^Pack- 
to  prove  that  the  defendant's  possession  was  not  hostile,  title  to  land  *» 

_i  .  i  .  iiii«  inadmissible  to 

produced  an  unregistered  receipt  granted  by  the  defen-  prove  that  de- 
dant  within  12  years  preceding  the  suit.  The  receipt  also  session  is  not 
contained  an  admission  or  acknowledgment  of  the  plain- 
tiff's title  to*  the  land.  It  was  held  that  the  document  was 
inadmissible  in  evidence  as  such  acknowledgment,  as,  if 
admitted,  it  would  operate  to  declare  a  right,  title,  and 
interest  in  immoveable  property  of  a  higher  value  than 
one-hundred  rupees.  Used  as  evidence  of  title,  the  court 
observed,  (and  this  is  the  only  use  which  can  be  made  of 
it  under  the  old  Limitation  Act),  such  a  document  indirect* 
ly  prevents  the  extinction  of  that  title  through  the  opera- 
tion of  the  Law  of  Limitation.  Under  the  new  Limitation 
Act  (XV  of  1877)  it  would  directly  produce  the  same 
effect,  for  by  section  19  of  that  Act  it  would  create  a 
new  period  of  limitation  from  the  date  of  the  acknowledg- 
ment. 

(8)     In  Kanhaya  Lai  v.  Stowell,<3>  plaintiff  sold  and  insufficiently 
delivered  certain  goods  to  the  defendant.     The  defendant  note  accepted  as 

aoknowlcidif" 

gave  the  plaintiff,  in  respect  of  the  price  of  such  goods,  ment  of  debt. 
the  following  instrument :  "  Agra,  14th  November,  1877. 
Due  to  K,  cloth  merchant,  the  sum  of  Rupees  200  only  to 
be  paid  next  January,  1878."  This  instrument  was  stamp- 
ed with  a  one-anna  adhesive  stamp.  The  plaintiff  claimed 
in  the  present  suit  from  the  defendant  Rupees  200,  and 
interest  on  that  amount  at  12  per  cent,  per  annum  from 
the  14th  November,  1877,  to  the  date  of  suit.  It  was 
held  that  although  such  instrument  was  not  admissible 
in  .evidence  as  a  promissory-note,  as  it  was  insufficiently 
stamped,  it  was  nevertheless  admissible  as  proof  of  an 
acknowledgment  of  such  debt. 
(t)     In  Khuahalo  v.  Bahari  Lai/4)  the  debtor  having  Acknowiedg. 

ment  of  debt  in 
an  unregistered 

'     (1)  Bivai's  Limitation  Act,  p.  69.  I      (3)  I.  L.  E.,  8  All.,  681.  ba?Xs^uS 

(2)LLIL,4 Bgm., .690.  |     (4)  I. h.  £.,  3  AIL,  623. 

21 


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162  PART  III. — COMPUTATION  OF  PERIOD  OF.  LIMITATION.       [8EC.  19 

owed  a  balance  of  Bs.  3,500,  on  adjustment  of  mutual  open 

account  on  the  19th  November,  1876,  executed  a  conveyance 

of  his  property  on  the  11th  December,  1876,  for  which  the 

balance  was  partly  the  consideration.     In. the  conveyance, 

the  debtor  acknowledged  his  liability  for  the  balance. 

He  died  before  the  conveyance  was  registered  and  it  did 

not  operate.     On  the  18th  November,  1879,  the  ct  editor 

sued  the  debtor's  widow  for  the  debt.      It  was  held,  that 

the  acknowledgment  in  the  unregistered  conveyance  saved 

the  debt  from  the  statute. 

Rush  or  ad-  (u)     In  Bamji  v.  Dharma,*1)  plaintiff  sued  on  the  29th 

count  can         March,  1879,  for  money  due  on  an  account  adjusted  on  the 

a«  acknowiedg-  26th  February,  1879.     The  original  account  contained  an 

ment  or  as  evi-    ,,  _  _       ,  _  _       _  _.  i-,i 

dence  of  a  new  item  of  Bs.  100  advanced  nine  years  before  the  account, 

contract.  __ 

which  at  the  foot  bore  the  defendant's  signature.    The 
Lower  Court  gave  decree  for  plaintiff.     In  appeal  certain 
items  were  pleaded  as  barred,  as  they  were  more  than 
three  years  old  on  the  date  of  the  account.    The  High 
Court  allowed  the  objection,  observing  that  the  Ruzu  on 
which  this  suit  was  brought  must  be  used  either  as  revival 
of  an  original  promise  or  as  evidence  of  a  new  contract. 
As  an  acknowledgment  it  would  obviously  have  no  effect 
if  not  made  before  the  expiration  of  the  period  of  limita- 
tion prescribed ;  and  if  it  is  relied  on  as  furnishing  a  new 
The  bare  state-  cause  of  action,  the  bare  statement  of  an  account  is  not  a 
count  is  not  a  contract,  there  being  no  promise  in  writing  such  as  is  re- 
quired by  section  25,  clause  3  of  the  Contract  Act. 
M.  H.  held  that       (v)    In  Kumarasami  Nadan  v.  Pala  Nagappa  Chetti,(*> 

manaffer   ot  a 

Hindu  family  is   plaintiff  sued  the  defendant  for  money  borrowed  by  the 
in  section  20  of  first  defendant  as  the  managing  member  of  a   Hindu 
(April  1878)     "   family  in  November,  1869.     The  first  defendant  on  the 
Since  modified.    5th  January,   1873,  made  an  endorsement  on  the  bond 
acknowledging  the  payment  of  Rupees  10  and  promising 
to  pay  the  balance  in  two  yearly  instalments  in  December, 
1873  and  December,  1874.     It  was  held  that  the  relation 
of  the  managing  member  of  a  Hindu  family  to  his  co-par- 
ceners does  not  necessarily  imply  an  authority  upon  his 

i  (1)  I.  L.  E.,  6  Bom..,  683.    |      (2)  I.  L.  E.,  1  Mad.,  886. 

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SBC.  19]       PART  III.— COMPUTATION  OP  PERIOD  OP  LIMITATION.  163 

part  to  keep  alive,  as  against  his  co-parceners,  a  liability 
which  would  otherwise  become  barred.  The  words  of 
section  20  of  Act  IX  of  1871,  must  be  construed  strictly, 
and  the  manager  of  a  Hindu  family,  as  such,  is  not  an 
agent  "  generally  or  specially  authorized"  by  his  co-parce- 
ners for  the  purpose  mentioned  in  that  section. 

(W)     In  Sankara  Aiyan  v.  Lingam  Aiyan/1)  bond  was   m.  h.  in  a 
executed  by  the  1st  defendant  alone  not  as  manager,  and   said  tEey  were 
the  bond  did  not  purport  to  affect  the  joint  family  with    acoept^he 
any  liability.     The  original  debt  for  which  there  may   withontfrSrSier 
have  been  a  joint  liability,  had  become  barred  before  there   (March  isso)  * 
was  any  payment  and  the  payment  made  was  a  payment 
not  on  account  of  that  date,  but  of  liability  created  by  the 
bond.     The  court  observe  "  it  is  not  necessary,  then,  that 
we  should  express  any  opinion  as  to  whether  the  manager 
of  a  Hindu  family  is,  as  such,  generally  authorized  to 
acknowledge  debts  or  make  payments  on  behalf  of  the 
family,  so  as  to  give  a  new  starting  point  for  the  compu- 
tation of  the  period  of   limitation.    On  this  point  we  need 
say  no  more  than  that  we  are  not  prepared  to  accept  the 
ruling  in  Kumarasami  Nadan  v.  Palaniappa  Chetti  with- 
out further  consideration." 

(X)     In  Gopalnarain  Mozoomdar  v.  Muddomutty  Gup-  c.  H.  held  that 
tee,<2)   it  was  held,  that  the  manager  of  a  joint  Hindu  0f  i860  a  mana- 
f  amily,  or  the  executor  of  a  Hindu  Will,  had  no  power  under   Hindu  family, 
Act  XIV  of  1859,  section  4,  to  revive  a  debt  barred  by  limi-   Hindu  wdl 
tation  except  as  against  himself.     Couch,  C.  J.,  in  that  case   barred  debt, 
observed,  "I  am  speaking  of  what  the  law  was  at  the   observation*  of 
time  of  this  transaction,  section  4  of  Act  XIV  of  1859   g^gj^j on 
being  then  applicable.     It  would  not,  we  think,  be  right  ^ 'icTxiv^of 
to  apply  in  India  the  decisions  of  the  English  Courts  as   186e* 

rr  J  .  .  .  English  de- 

'  to  the  executors  in  England  being  at  liberty  not  to  avail   cisTon*  as  to 

».▼•••  i  *  .      executor's  liber- 

themselves  of  the  Law  of  Limitation,  because  those  deci-  ty  cannot  be  ap- 
plied to  India, 
sions  probably  rest  upon  the  peculiar  position  of  an  ex- 
ecutor in  England,  and  the  rights  which  he  may  have 
from  his  having  been  considered  originally  to  be  the  re- 
presentative of  the  ordinary,  and  to  have  entire  power 

(1)  4  Ind.  Jur.,  668.    |        (2)  14  B.  L.  R.,  49. 

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164  PABT  HI.-HttMPUTATlON  OF  PERIOD  OP  LIMITATION.       [SBC.  19 

over  the  estate.     They  would  not  be  a  safe  guide  in  this 

country,  where  amongst  Hindus  an  executor  really  is  not 

Probate  of  a     recognized.     The  probate  of  a  will  by  a  Hindu  does  not 

HinduWillhad    ,        B_  _  vx  _     j         .        J  .„  .      _      _       , 

not  the  same  ef-  have  the  same  effect  as  probate  of  a  will  in  England,  nor 
of  a  win  in  Eng-  does  the  calling  the  man  to  whom  the  property  is  left 
executor,  put  him  in  exactly  the  same  position  as  an 
English  executor.  We  therefore  cannot  apply  those 
cases  here,  and  there  is  no  ground  here  for  saying  that 
any  acknowledgment  of  Gourinarain  would  prevent  the 
operation  of  the  Law  of  Limitation." 

m.h.f.b.  held  (y)  In  Chinnaya  v.  Gurunatham/1)  plaintiff  and  first 
of  a  Hindu  defendant  carried  on  a  joint  trade,  and  on  settlement,  the 
same  authority  1st  defendant  signed  the  settlement  in  April,  1870.     In 

to  acknowledge 

as  he  has  to  May,  1874,  the  1st  defendant  executed  a  bond  for  the 
the  family,  but  money  due  by  the  settlement.  The  plaintiff  sought  for  a 
revive  barred     decree  binding  all  the  members  for  thegdebt.     The  court 

debt.  ° 

(Pebruarv  1881)  upon  a  review  of  its  former  decisions  held  "  the  bond  of 
May,  1874,  is  not  expressed  as  binding  on  the  family,  and 
if  it  had  been  so  expressed,  it  would  not  have  affected  with 
liability  any  but  the  persons  who  executed  it.  A  manager 
lias  authority  to  make  payments  for  the  family ;  he  has 
the  same  authority  to  acknowledge  as  he  has  to  create 
debts,  but  he  has  no  power  to  revive  a  claim  barred  by 
limitation  unless  he  is  expressly  authorized  to  do  so ;  and 
on  the  17th  May,  1874,  the  debt  acknowledged  in  April, 
1870,  had  become  barred." 

Mr.  Broughton  (z)     "  The  later  enactments  regarding  Limitation  and 

fcnowiedgment  the  Hindu  Wills  Act  have  made  considerable  alterations 

under  the  Hindu  in  the  law,  and  an  acknowledgment  by  an  executor,  who 

has  proved  the  has  proved  a  will  under  the  latter  Act,  would,  if  other- 

the  testator's  wise  sufficient,  bind  the  estate  of  his  testator;  but  neither 


Such  executor    such  an  executor,  nor  any  other  executor,  can  be  said  to 
executor  cannot  be  the  agent  of  a  beneficiary  under  the  will  so  as  to  bind 


be  agent  of  the 


beneficiary  un-  him  in  respect  of  matters  unconnected  with  the  estate, 
and  it  is  very  doubtful  whether  a  manager  of  a  Hindu 
family  could  even,  in  respect  of  the  estate,  bind  any  one 

(1)  I.  L.  R.,  6  Mad.,  169. 

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StC.  19]      PABT  HI.— COMPUTATION  OP  PERIOD  OP  LIMITATION.  165 

but  himself  or  some  person  from  whom  he  had  received 
due  authority  to  do  so." 

(2-a)     "  Amongst  the  provisions  so  made  applicable  to  b.  h.  observed 
Hindus  by  that  Act  (XXI  of  1870)  ai-e  those  contained  in  3E?  STerau- 
sections  179  and  187,  by  the  former  of  which  it  is  declared  wrn^cSn^11 
'that  the  executor  or  administrator,  as  the  case  may  be,   oVi^^uhS 
of  a  deceased  person  is  his  legal  representative  for  all  pur-  JJj  ^SereS^ 
poses,  and  all  the  property  of  the  deceased  person  vests  {^peny*!*  an 
in  him  as  such;*  and  by  the  latter  *  that  no  right  as  exe-  JhT^uSS^ 
cutor  or  legatee  can  be  established  in  any  Court  of  Jus-  jjK;™  i^j 
tice  unless  a  court  of  competent  jurisdiction  within  the 
province  shall  have  granted  probate  of  the  will  under 
which  the  right  is  claimed  or  shall  have  granted  letters 
of  administration  under  the   180th   section.'     Executors 
appointed  by  the  particular  class  of  Hindu  Wills  contem- 
plated by  the  Hindu  Wills  Act,  thus  acquired  the  same 
estate  and  interest  in  the  property  of  the  deceased,  to- 
gether with  the  same  restrictions  as  to  representing  the 
estate  in  a  Court  of  Justice,  as  obtained  by  English  Law." 
Shaik  Moosa  v.  Shaik  Essa.W 

(2-b)     The  executor  or  administrator,  as  the  case  may  Section  4  of  Act 
be,  of  a  deceased  person,  is  his  legal  representative  for  all  duces  the  pro- 
purposes,  and   all  the  property  of  the  deceased  person  tiona  170  of  the 
vests  in  him  as  such.     But  nothing  herein  contained  shall  aion  Act. 
vest  in  an  executor  or  administrator  any  property  of  a 
deceased  person  which  would  otherwise  have  passed  by 
survivorship  to  some  other  person. 

(2-C)     Following    the  decision  of   the  Privy  Council  Mortgagee's 
in  Luchmee  Buksh  Roy  t?.  Kunjeet  Bam  PandayW  under  ledRment  of 

mortgage  is  in- 

Act  XIV  of  1859,  A.  H.,  in  Bahmatii  Bibi  v.  Hulasa  KuarW  sufficient  under 

,  \-«      *  ?  *     i  *     i  •   •      Act  IX  of  1871, 

held  in  April,  1878,  that  an  acknowledgment  of  the  title  Article  i«. 
of  the  mortgagor  or  of  his  right  of  redemption,  signed  by 
the  mortgagee's  agent,  is  not  sufficient,  under  Article  148, 
schedule  2  of  Act  IX  of  1871,  to  create  a  new  period  of 
limitation,  though  it  is  sufficient  under  the  Act  of  1877,  of 
Which  the  terms  are  more  equitable. 

(2-d)     In  Dharma  Vithal  v.   Govind  Sadvalkar,W    ^Sg^ 

acknowledment 

(1)  I.  L.  B.,  8  Bom.,  242.      I      (3)  I.  L.  B.,  1  All,  642.  mfiSSSSfit 

(2)  18  B.  L.  &,  177.  I      (4)  I.  L.  B.,  8  Bom.,  99.  lafion. 

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166  PART  HI.— COMPUTATION  OP  PERIOD  OP  LIMITATION.      [SEC.  19 

plaintiff's  ancestor  mortgaged  a  piece  of  land  to  the  de- 
fendant's ancestor  in  1797,  and  placed  Him  in  possession 
as  agreed  npon.     Three  years  afterwards,  both  the  mort- 
gagor and  the  mortgagee  went  out  of  the  country.     The 
mortgagor  returning  first  resumed  possession  of  the  land ; 
the  mortgagee  returning  afterwards,  filed  a  suit  in  1826, 
to  recover  possession  under  the  terms  of  the  mortgage, 
and  obtained  a  decree  in  his  favour.     Possession  was  res- 
tored to  him  by  the  Civil  Court  in  1827,  when  the  mort- 
gagee passed  to  the  officers  of  the  court  a  receipt  in  which 
he  acknowledged  having  received  possession  of  the  mort- 
gaged land  as  directed  by  the  decree.     The  plaintiff,  the 
representative  of  the  original  mortgagor,  on  the  4th  of 
December,  1880,  sued  the  defendant,  the  representative 
Receipt  inoor-    of  the  original  mortgagee  to  redeem  the  land.   It  was  held 
cnetjy  refer-    that  the  suit  was  barred  as  the  receipt  incorporating  the 
an  acknowledge  decree  by  reference  did  not  operate  as  an  acknowledgment 
ment*  of  a  mortgage  subsisting  in  1827,  so  as  to  give  to  the 

mortgagor  a  new  period  of  limitation  under  this  section, 
which  intends  a  distinct  acknowledgment  of  an  existing 
liability,  or  jural   relation,  and  not   an   acknowledgment 
without  knowledge  that  the  party  is  admitting  anything. 
Anacknowiedg.  In  this  case,  the  plaintiff,  to  take  his  claim  out  of  the 
iTvukii,  in*uffl.   statute,  relied  upon  the  plaint  signed  by  the  mortgagee's 
alive  a  cause  of  vakil  in  the  suit  brought  in  1826  by  the  mortgagee  to 
Act  ix  of  i87it  recover  possession.     It  was  held,  that  a  plaint  signed  by 
sustain  a  suit      a  vakil  before  the  Limitation  Act  IX  of  1871  came  into 

on  the  same  ...  «•        T  .     . 

cause  of  action,  operation,  does  not  save  limitation,  as  the  earlier  Limita- 
tation  Acts  do  not  give  authority  to  an  agent  to  sign  an 
acknowledgment  for  his  principal  similar  to  that  given  by 
section  20  of  that  Act,  and  section  19  of  Act  XV  of  1877. 

Acknowiedg.  (2-6)     Under  Article  148  of  Act  IX  of  1871,  time  for 

Article  148  of  a  suit  to  redeem  began  to  run  from  the  date  of  the  mort- 

must  be  of  a  gage,  unless  where  an  acknowledgment  of  the  title  of  the 

title  in  the  mortgagor  or  of  his  right  of  redemption  has,  before  the 

mortgagor. 

expiration  of  the  prescribed  period,  been  made  in  writing, 
signed  by  the  mortgagee  or  some  person  claiming  under 
him,  and,  in  such  case,  the  date  of  the  acknowledgment. 


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*BC.  19]       PART  III.— COMPUTATION  OP  PERIOD  OP  LIMITATION.  167 

In  Daia  Chand  v.  Sarfraz/1)  the  court  held  that  the  ac- 
knowledgment required  by  Article  148  of  Act  IX  of  1871, 
must  be  an  acknowledgment  of  the  title  of  the  mortgagor 
or  of  his  right  to  redeem,  and  that  such  an  acknowledg- 
ment must  be  unqualified  and  made  touching  the  mort- 
gage. In  Ram  Das  v.  Birjnundun  Das,W  plaintiff  sought 
to  redeem,  in  December,  1879,  a  mortgage  of  July,  1815. 
The  plaintiff  relied  upon  an  acknowledgment  made  by  the 
defendants  in  a  written  statement  filed,  by  them  in  a  suit 
in  1872.  It  was  an  acknowledgment  of  the  original 
making  of  the  mortgage  deed  and  of  possession  being 
taken  under  it,  but  the  statement  alleged  the  execution, 
subsequently  of  two  other  deeds,  practically  superseding 
the  mortgage,  and  altering  the  relation  of  the  parties.  It 
was  held,  that  it  was  not  a  sufficient  acknowledgment 
within  the  meaning  of  the  above  Article  such  as  would 
prevent  limitation  from  operating. 

(2-f  )     This  section  re-enacts  the  provision  contained  Acknowledge 
in  Article  148,  schedule  2  of  Act  IX  of  1871.    Daia  Chand  gagor's  title  in 

_  .  .   ,        -niiY-fc        t  •  «  *   •      .M  settlement  re- 

v.  Sarfraz W  is  a  Full  Bench  case  m  which  plaintiff  sought  cord  gives  fresh 

starting    point, 

to  redeem  a  mortgage  said  to  have  been  made  by  their  though  it  did 

4  n°t  name  the 

ancestors  to  the  defendant's  ancestors  in  1811 ,  and  relied  mortgagor, 
upon  an  acknowledgment  of  the  defendant's  mortgage 
tenure  recorded  in  a  settlement  record  of  1841.  The  Set- 
tlement Officer  had  prepared  the  record  of  rights,  showing 
the  interests  in  the  village  of  persons  holding  lands,  and 
in  this  record  he  had  entered  the  defendants  or  their  an- 
cestors as  mortgagees,  and  obtained  their  signatures  to  the 
correctness  of  the  entry.  It  was  held,  that  as  the  law  of 
British  India  does  not  require  the  acknowledgment  to  be 
given  to  the  mortgagor,  the  acknowledgment  in  the  set- 
tlement record,  though  it  did  not  mention  the  name  of  the 
mortgagor,  was  sufficient  to  give  a  new  period  of  limita- 
tion. 

(2-g)     In   the  above  cade  the   Lower  Courts  having  Acknowiedg- 
differed  as  to  whether  the  acknowledgment  was  sufficient  g^oVs*  title1*" 

need  not  be 
made  within  00 

(1)  I.  L.  B.,  1  All.,  117.        |  ^  (2)  T.  L.  R.,  9  Calc,  616.  ££"*  nnde 

7  Of  1860. 


1  All.,  117.  pj  J- 1*  I*.,  V  UsYle.,  010.  nwrtaage  mider 

(3)  I.  L.  H.,  I  All.,  117,  425.  KSEftl 


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168  PART  in. — COMPUTATION  OP  PERIOD  OP  LIMITATION.       [SEC.  19 

without  proof  that  it  was  made  within  60  years  from  date 
of  the  alleged  mortgage,  it  was  held  that  inasmuch  as 
there  was  no  limitation  to  suits  for  redemption  of  mort- 
gage of  landed  property  prior  to  Act  XIV  of  1859,  it  was 
unnecessary  to  ascertain  when  the  mortgage  was  effected, 
the  acknowledgment  of  1841  being  an  acknowledgment 
of  a  right  still  subsisting  and  one  which  fulfilled  the  re- 
quirements of  Article  48,  schedule  2  Act  IX  of  1871. 
M.  h.  held  that       (2-h)     In  Mukkanni  v.  Manan/1)  plaintiff  sued  in  1878, 
£d£inent™SMt  to  redeem  a  Kanam  mortgage  of  1761.     The  Lower  Appel- 
^ithiJTeo1  yean  late  Court  found  that  the  mortgagor's  right   to  redeem 
of  themortgage.  had  hem  admitted  m  1838>  ^  fche  deed  of  assignment 

from  the  original  mortgagee,  and  also  in  1847  and  1856, 
but  held  that  the  plaintiff's  right  to  redeem  was  barred, 
as  more  than  60  years  had  elapsed  between  the  date  of 
the  mortgage  and  the  date  of  the  admission,  in  1838,  of 
the  mortgagor's  right  of  redemption.  It  was  held  that 
prior  to  1859  there  was  no  limitation  for  redemption  suits, 
and  that  clause  15,  section  1  of  Act  XIV  of  1859,  pres- 
cribed 60  years,  unless  there  was  an  acknowledgment  in 
the  meantime,  that  is,  within  60  years  from  the  date  of 
the  mortgage.  In  Mahomed  Abdool  Buzzah  v.  Syud 
a.  h.  aim  had  Asif  Ali,(2>  the  Allahabad  High  Court  held  in  May,  1871. 

held  so  in  May  °  *  f 

1879.  that  under  Act  XIV  of  1859,  an  acknowledgment  of  mort- 

gagor's title  must  have  been  made  within  60  years  of  the 
mortgage. 
Auction poroha-       (2-i)     I11  Raman  t7.  Krishna/3)  plaintiffs  sought  to 
gee's  interest      redeem  certain  lands  demised  on  Kanam  in  1817  to  one 
oertSScate  fenot  Kunholen,  whose  rights  were  purchased  by  Mutha,  ances- 
mentl    °w      "  tor  of  the  defendant  at  a  court  sale  in  1824.     The  Lower 
Appellate  Court  held  that  the  sale  certificate  of  1824  was 
an  acknowledgment  of  the  mortgagor's  title.     The  court, 
finding  no  special  circumstance  in  the  demise,  treated  it  as 
a  mortgage,  and  held  that  the  sale  certificate  is  not  an  ac- 
knowledgment by  the  purchaser  which  will  satisfy  the 
conditions  of  this  section,  and  give  a  fresh  starting  point 
for  limitation  to  run  for  redemption. 

(1)  I.  L.  R.,  6  Mad.,  182.      |     (2)  3  N-W  P.,  H.  C.  R.,  119. 
<3)  LL.JL,6Had.,a2& 


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8IC.  19]     PAST  III.— COMPUTATION  Of  PBBIOD  OP  LIMITATION.  169 

(2-j)    In  Vencataramana  v.  Srinivasa,*1)  plaintiff  sued  Acknowtedg- 
to  recover  arrears  of  rent  due  from  a  tenant  who  entered  different  feS? 
in  1862,  as  a  Chalgaini  tenant  for  one  year  and  continued  win  not  mil 
in  possession  without  executing  a  fresh  agreement.     The 
Lower  Appellate  Court,  finding  that  in  a  deposition  dated 
1876,  the  defendant  admitted  his  liability  to  pay  rent  as 
a  Mulgaini  tenant,  awarded  rent  from  1874.    It  was  held 
that  the  deposition  containing  an  acknowledgment  of  a 
right  different  from  that  claimed,  was  not  an  acknowledg- 
ment of  the  landlord's  right,  which,  under  this  section, 
would  entitle  him  to  recover  arrears  of  rent  for  3  years 
prior  to  the  date  of  the  admission. 

(2-k)     In  Raghoji  Bhikaji  v.  Abdul  Karim,W  plaintiff  A  Button  a  bond 
sued  on  the  18th  August,  1875,  to  recover  front  the  defen-  aideration  of  a 
dants  two  instalments  on  a  bond  dated  7th  August,  1873.  not  affected  by 
Though  the  defendant  denied  the  bond,  it  was  found  that  ix  of  lsn  oor- 
he  had  executed  it ;  the  bond  purported  to  have  been  eecSoniifof  Act 
granted  for  a  prior  instalment  bond  under  which  the  first 
instalment  which  fell  due  in  September,  1864,  was  not 
paid ;  but  payments  since  made  had  been  received  by  the 
creditor  up  to  1873.     The  contention  was  that  the  bond 
sued  on  was  merely  an  acknowledgment  or  promise  to 
pay  a  barred  debt.     It  was  held  that  the  suit  was  not 
barred.    Melvill,  J.,  observes  :  "  The  alteration  in  the  for- 
mer law  (section  4  of  Act  XlV  of  1859)  made  by  the 
introduction  into  section  20  of  Act  IX  of  1871,  of  the 
words  "  promise"  and  "  before  the  expiration  of  the  pre- 
scribed period,"  gives  some  color  to  the  argument  that  it 
was  the  intention  of  the  Legislature  that  a  debt  once  barred 
by  lapse  of  time  should  not,  under  any  circumstances,  be 
recovered.    But  the  supposition  of  any  such  intention  is 
contradicted  by  section  25,  clause  3,  of  the  Indian  Con- 
tract Act ;  from  which  it  is  clear  that  the  "  promise"  re- 
ferred to  in  section  20  of  Act  IX  of  1871,  is  a  promise 
introduced,  by  way  of  exception,  in  a  suit  founded  on  the 
original  cause  of  action,  and  not  a  promise  constituting 
a  new  contract,  and  extinguishing  the  original  cause  of 

(1)  I-  L-  B.,  6  Mad.,  182.       |      (2)  I.  L.  B.,  1  Bom.,  590. 
22 

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170  PART  III.— COMPUTATION  OF  PERIOD  OF  LIMITATION.      [SIC.  19 

action.     The  distinction  is  pointed  ont  in  the  cases  cited 
at  the  bar :  Malchand  v.  Girdhar/1)  Hargopal  Premsuk- 
das    v.  Abdul  khan  Haji    Muhammad,*2)    and    also    in 
Gopeekishen  Goshamee  v.  Brindabunchunder   Sircar. (8> 
Following  the  above  decision,  B.  H.,  in  Chatur  Jagsi  v. 
Tulsi,W  in  which  plaintiff  sued  on  two  promissory  notes 
executed  on  the  5th  April,  1874,  or  4  days  after  the  old 
debt  secured  by  a  prior  note  of  4th  April,  1871,  had  become 
barred,  held  that  section  20  of  Act  IX  of  1871  does  not 
prevent  a  plaintiff  from  maintaining  a  substantive  action 
on  a  promissory  note  passed  to  secure  the  amount  due 
on  an  old  note  which  was  barred  by  limitation  at  the  time 
of  the  making  of  the  new,  the  plaintiff's  right  to  bring 
such  an  action  being  recognized  by  the  later  enactment, 
Act  IX  of  1872,  section  25,  clause  3. 
0.  H.  held  the       (2*1)     The  word  'debt'  used  in  this  and  the  following 
sections  20—21    section  applies  only  to  a  liability  for  which  a  suit  may  be 
does  not  include  brought  and  does  not  include  a  liability  for  which  a  judg- 
*aa8mai  ment  has  been  obtained.     It  was  held  in  Kally  Prosonno 

Hazra  v.  Heera  Lai  Mundle,(*)  that  under  sections  20  and 
21  of  Act  IX  of  1871,  a  petition  put  in  by  a  judgment- 
debtor  and  creditor  on  the  28th  April,  1873,  notifying 
part-payment  towards  the  decree,  would  not   take  the 
decree  out  of  the  statute,  and  that  the  application  for  exe- 
cution made  on  the  27th  April,  1876,  was  barred. 
o.h.  Judgment-       (2-m)     In  Mungol  Prashad  Dichit  v.  Shama  Kanto 
nowied|mentof  Lahory  Chowdhry,(e>  application  for  execution  was  made 
tion  fepwu'  on  the  26th  July,  1871,  and  a  sale  proclamation  was  issued 
£2STdoes  not     on  the  30th  November,  1871 ;  the  judgment-debtor  ac- 
tion aoofActix  knowledged  his  debt  in  writing  by  an  application  for  two 
(January  1879)    months'  postponement  of  sale.     The  next  application  for 
execution  was  made  on  the  5th  September,  1874.     The 
Lower  Court  rejected  the  application  as  barred.  It  was  held 
that  the  judgment-debtor's  acknowledgment  was  not  such 
an  acknowledgment  as  was  contemplated  by  section  20  of 
Act  IX  of  1871,  and  that  the  word  "  debt"  referred  to  in 


(1)  8  Bom.,  H.  C.  Eep.,  6,  A.  C.  J. 

(2)  9  Idem,  429. 

(3)  18  Moore  I.  A.  37,  see  p.  64. 


(4)  I.  L.  R.,  2  Bom.,  230. 

(5)  I.  L.  B.,  2  Calo.,  468. 

(6)  L  L.  R.,  4Calo.,708. 


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MC.  19]     PAST  m.— COMPUTATION  Of  P1BIOD  Of  LIKITATIOH.  171 

that  section  was  not  a  judgment-debt,  but  a  liability  to 
pay  money  for  which  a  suit  can  be  brought.  If  orris,  J^ 
observes  "  a  consideration  of  the  terms  of  Act  IX  of  1871, 
with  the  light  thrown  upon  them  by  Act  XIV  of  1859 
which  precedes  it,  and  by  Act  XV  of  1877,  which  succeeds 
it,  leads  to  the  conclusion  that  "  debt"  referred  to  in  sec- 
tion 20  Act  IX  of  1871,  is  not  a  judgment-debt,  but,  as 
explained  in  the  judgment  of  a  Division  Bench  of  this 
court  in  Rally  Prosunno  Hazar  v.  Heera  Lai  Mundh,^)  a 
liability  to  pay  money  for  which  a  suit  can  be  brought." 

(2-n)     In  Bam  Coomar  Kur.  v.  Jakur  Ali,  W  judgment-  0.  H.  held  deb*, 
debtor's  vakil  applied  on  the  7th  December,  1877,  for  fortimeforpey. 
additional  time  for  payment  of  the  amount  of  the  decree  debt,  ituao- 
dated  24th  March,  1876.     The  petition  was  granted  and  under  this  eeo- 
ou  the  4th  December,  1880,  the  next  application  for  exe-  (March  isas) 
cution  was  made.     It  was  held,  that  the  petition  consti- 
tuted an  acknowledgment  of  liability  under  section  19  of 
the  Act  and  a  new  period  of  limitation  began  to  ran  from 
the  7th  December,  1877,  the  object  of  the  words  "  applica- 
tion in  respect  of  any  property  or  right"  in  section  19  being 
to  extend  to  the  applications  mentioned  in  schedule  2  the 
same  privilege  as  is  accorded  to  suits.     This  decision  was   (March  1883) 
followed  in  Toree  Mahomed  v.  Mahomed  Mabood  Bux.<3) 

(2-0)     In  Venkatrav  Bapu  v.  Bijesing  Vithal  SingW    B.(H.  held  debt- 
plaintiffs  obtained  on  the  20th  July,  1871,  a  decree  against  for  postpone- 

ment  of  sale 
the  defendants  for  the  sum  of  Rs.  4,083  and  for  the  sale  of  promising  pay. 

their  mortgaged  property.     On  the  16th  July,  1877,  the  Judiraent-debt 
r  to   oe  an  aok* 

plaintiffs  applied  for  execution.     The    application  was  nowiedjpnent 

granted,  the  property  was  attached,  and  the  sale  was  fixed  right  to  execute. 

(Sept.  1885) 
for  the  30th  November,  1878.     On  the  18th  November, 

1878,  one  of  the  defendants  applied  for  a  postponement  of 

the  sale  until  harvest  time,  when  he  said  he  would  pay 

the  amount  of  the  decree.     The  sale  was  accordingly,  with 

the  plaintiff's  consent,  postponed  to  the  31st  May,  1879. 

On  the  13th  June,  1879,  the  plaintiffs  informed  the  court 

that  negotiations  were  proceeding  between  themselves  and 

(1)  I.  L.  E.,  2  Calc,  468.         I    (3)  I.  L.  R.,  9  Calo.,  730. 

(4)1. 


(2)  I.  L.  B.,  8  Calc,  716.         |    (4)  I.  L.  &.,  10  Bom.,  108. 


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172  PART  III.— COMPUTATION  OF  PBBIOD  Of  LIMITATION.     [siC.  19 

the  defendants  for  the  settlement  of  the  decree,  and  prayed 
that  their  application  of  the  16th  July,  1877,  might  be 
struck  off,  adding  that,  if  the  negotiations  failed,  they 
would  present  a  fresh  application.  The  negotiations  for 
settlement  proved  abortive,  and  the  case  being  one  to  which 
the  Dekkan  Agriculturists'  Belief  Act  (XVII  of  1879)  ap- 
plied, the  plaintiffs  took  steps  to  obtain  a  conciliator's  cer- 
tificate. These  proceedings  occupied  the  period  from  the 
3rd  July,  1880,  to  the  19th  January,  1881.  The  certificate 
was  granted  on  the  1st  December,  1881.  On  the  13th  De- 
cember, 1881,  more  than  three  years  after  the  date  of  the 
previous  application,  vie.,  16th  July,  1877,  the  plaintiffs 
made  the  present  application  for  execution.  The  defen- 
dants contended  that  it  was  barred  by  limitation.  It  was 
held,  that  the  application  was  not  barred.  As  it  was  un- 
derstood between  the  parties,  when  the  application  of  the 
16th  July,  1877  was  struck  off  on  the  13th  June,  1879, 
that,  if  negotiations  failed,  a  fresh  application  should  be 
presented,  the  application  of  the  13th  December,  1881, 
was  to  be  regarded  as  an  application  for  the  revival  of  the 
old  execution  proceedings.  But,  in  any  case,  the  applica- 
tion by  the  defendant,  of  the  18th  November,  1877,  for  a 
postponement  of  the  sale  of  his  property,  when  he  pro- 
mised to  pay  the  amount  of  the  decree,  was  an  admission 
of  the  plaintiff's  right  to  execute  the  decree  within  the 
contemplation  of  this  section  and  created  a  new  period  of 
limitation,  which  would  ordinarily  have  expired  on  the 
18th  November,  1881. 
a.  h.  held  (2-p)     In  Shib  Dat  v.  Ealka  Prasad/1)  it  was  held,  in 

fattowie&ient    September,  1879,  that  the  judgment-debtor  having,  three 
wutyPlLderlia"  years  after  the  first  default,  acknowledged  in  writing  his 
(Sept.  1879)      liability  under  the  decree  and  signed  such  acknowledg- 
ment, it  did  not  create  a  new  period  of  limitation  as  the 
decree  had  been  already  barred. 
P.  B..  A.  h.  (2-q.)     In  Ramhit  Rai  v.  Satgur  Rai,W  application  for 

^oVsappS^     execution  was  made  on  the  28th  May,  1875,  and  property 
ponement  of*     was  proclaimed  for  sale  on  the  20th  August,  1875.     On 

sale  is  an  ac- 

taiowledgment  (J)  L  L    ^  g  ^  ^        (       ^  ^  ^  r    ^  ^  ^ 


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SBC.  19]      PAST  III.— COMPUTATION  Of  PIBIOD  Of  LIKITATIOtf.  173 

the  13th  August,  1875,  judgment-debtor  applied  for  poet-  holder's  right 
ponement  of  Bale  for  the  20th  September,  1875.  On  the  limitation. 
20th  August,  1875,  the  judgment-debtor  made  a  second 
application  for  postponement  of  sale.  On  the  29th  July, 
1878,  decree-holder  applied  for  execution  of  the  decree. 
It  was  held,  that  limitation  should  be  computed  not  from 
the  date  of  previous  application  for  execution,  but  from  the 
13th  and  20th  August,  1875,  the  dates  of  the  judgment- 
debtor's  application  which  contained  an  acknowledgment 
within  the  meaning  of  this  section,  and  therefore  gave  a  new 
period  of  limitation.  Stuart,  J.,  observes  that  the  judg- 
ment-debtor's application  was  an  acknowledgment  in  res- 
pect of  right  within  the  meaning  of  this  section.  The 
above  application  having  been  signed  by  a  pleader  speci- 
ally authorised  by  a  Vakalut  to  make  it,  it  was  held  that 
the  vakil  was  an  agent  duly  authorised  in  debtor's  be- 
half. 

(2-r)    In  Janki  Prasad  v.  Ghulam  Ali,W  a  money  decree  a.  h.  held  that 
dated  24th  June,  1878,  directed  that  a  certain  instalment  OTWritt^ac- 
should  be  paid  on  the  22nd  July,  1878,  and  alike  on  the  jTJ^Td^ 
20th  December,  1878,  and  the  balance  by  certain  instal-   ^  J7Siw& 
ments,  commencing  from  a  certain  date,  and  that  in  case  of  following1  J^6 
default  the  decree-holder  might  realize  the  whole  amount   (Sept.  ism.) 
of  the  decree.     The  instalments  were  not  paid  at  the  fixed 
dates.    It  was  admitted  that   on  the   7th  May,   1879, 
Rupees  50  was  paid  on  behalf  of  the  debtor,  who,  on  the 
4th  February,  1880,  paid  Rupees  70,  and  on  the  13th 
January,  1881,  paid  Rupees  80.    All  these  payments  were 
made  ont  of  court,  and  on  the  last  two  occasions  the  judg- 
ment-debtor endorsed  the   payments   in  his   own   hand- 
writing.    On  the  5th  September,  1881,  the  decree-holder 
applied  for  execution  of  the  whole  decree.     The  court  dis- 
senting from  Asmutullah  Dalai  v.  Kally  Churn  Mitter,W 
held  in  September,  1882,  that  the  application  was  govern- 
ed by  the  rule  contained  in  section  19  of  Act  XV  of  1877, 
that  the  endorsement  made  by  the  judgment-debtor  on 
the  decree  was  an  acknowledgment  of  liability  under  the 


(1)  I.  L.  B.,  5  All.,  202.      |     (2)  I.  L.  B.,  7  Calc.,  66. 


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174  PART  in.— COMPUTATION  OP  PERIOD  OF  LIMITATION.     [SBC.  19 

decree  and  that  consequently  limitation  should  be  comput- 
ed from  the  date  of  such  endorsement,  and  that  the 
application  was  therefore  within  time.  It  was  also  held 
that  part  payment  made  and  endorsed  by  the  judgment- 
debtor  on  the  decree  fell  within  the  terms  of  section  20  of 
this  Act. 
Judgment-  (2-8)    In  Fateh  Muhammad  v.  Gopal  Das/1)    decree- 

noSrtedJment  of  holder  applied  for  the   execution  of  his  decree,   dated 
£ta£^&  14tk  J^n©»  1878,  by  attaching  a  certain  mortgage  bond, 
thoue^the        and  the  same  was  advertised  for  sale  on  the  11th  Janu- 
notenforoedT18  ar7>   1881.     On   this   date,  an  ikrarnama,  which  refer- 
(Pebruaiyi886)  re^  ^  ^^  decree  debt  in  question  containing  various 
arrangements  for  its  satisfaction,  was  put  in  by  the  par- 
ties, who  at  the  same  time  applied  to  the  court  to  strike  off 
the  record  the  execution  case  then  pending.     The  ikrar- 
nama, not  having  been  followed,  the  decree-holder  applied 
on  24th  December,  1883,   for  execution  of  the  decree. 
The  judgment-debtor  pleaded  the  statute.     It  was  held 
that  the  judgment-debtor,  having  admitted  the  decree- 
debt  in  the  ikrarnama  dated  11th  January,  1881,  and  the 
same  being  an   acknowledgment  of  debt  under  section 
19  of  Act  XV  of  1877,  the  application  in  question  was  not 
barred. 
M.  h.  held  this      (2-t)    In  Rama  v.  Venkatesa/2)   a  Full  Bench  case, 
cable  nto  appli-  the  question  was,  whether   this   section  is   intended  to 
cation*  of  de-    apply  to  applications   for  execution  of  decrees  ?     The 
(March  i88t)      judgment  of   Turner,  C.  J.,  runs  thus :     "  It  would  be 
productive  of  the  greatest  inconvenience  (if  it  indeed  were 
possible),  to  apply  the  provisions  of  section  19  of  the 
Limitation    Act  of   1877  to  applications    made  in  the 
course  of  suits  or  proceedings,  and,  if  the  terms  of  the 
section  can  be  otherwise  satisfied,  we  are  at  liberty  to 
construe  them  so  as  to  avoid  such  inconvenience.     There 
are  numerous  applications  known  to  the  law  which  would 
be   correctly   described  as   applications  in  respect  of  a 
property  or  right  in  the  sense  we  have  indicated,  proceed- 
ings where  a  party  seeks   the  aid  of  a  court  to  give 

(1)  I.  L.  R.,  7  All.,  p.  424.      |      (2)  I.  L.  E.,  5  Mad.,  172. 

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MC.  20]     PART  HI.— COMPUTATION  Of  PERIOD  OF  LIMITATION.  175 

him  relief  in  respect  of  some  property  or  right  otherwise 
than  by  regular  suit.  Of  these,  the  Acts  regulating 
the  rights  of  landlord  and  tenant  in  the  North- Western 
Provinces  and  generally  in  Bengal  afford  instances.  We 
arrive,  then,  at  the  conclusion  that  the  provisions  of 
this  section  were  not  intended  to  apply  to  applications  in 
execution  of  decrees,  and  that  we  are  not  constrained 
to  apply  them  to  such  applications." 

20.    When  interest  on  a  debt  or  legacy  is,  Effect  of  pay- 

,      »  Al  ..  -      ,  •■■      -i  •     -i      ment  of  interest 

before  the  expiration  of  the  prescribed  period,  ■*sueh. 
paid  as  such  by  the  person  liable  to  pay  the 
debt  or  legacy,  or  by  his  agent  duly  authorized 
in  this  behalf, 

or  when  part  of  the  principal  of  a  debt  is,  Effect  of  put- 
before  the  expiration  of  the  prescribed  period,  pnncipei. 
paid  by  the  debtor  or  by  his  agent  duly  author- 
ized in  this  behalf, 

a  new  period  of  limitation,  according  to  the 
nature  of  the  original  liability,  shall  be  com- 
puted from  the  time  when  the  payment  was 
made : 

Provided  that,  in  the  case  of  part-payment  of 
the  principal  of  a  debt,  the  fact  of  the  payment 
appears  in  the  hand- writing  of  the  person  mak- 
ing the  same. 

Where  mortgaged  land  is  in  the  possession  of  Effect  of  receipt 

of  produce   of 

the  mortgagee,  the  receipt  of  the  produce  of  J^g?*8*1 
such  land  shall  be  deemed  to  be  a  payment  for 
the  purpose  of  this  section. 

This  section  corresponds  with  section  21  of  Act  IX  of 
1871.  In  the  proviso  of  the  section  (20  of  the  Act  of 
1877)  the  Legislature  have  omitted  the  words  "  the  deht 
has  arisen  from  a  contract  in  writing"  and  the  words 
"  on  the  instrument,  or  in  his  own  books,  or  in  the  books 


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176  PAST  III.— COMPUTATION  OF  P1BIOD  OF  LIMITATION.       [SKC.  20 

of  the  creditor"  which  were  in  the  proviso  of  section  21  of 
the  Act  of  1871.  The  clause  relating  to  the  receipt  of 
the  produce  of  mortgaged  land  is  new. 
The  principle  of  (a)  "  The  principle  of  this  doctrine  is  that  any  such 
put-payment,  payment  is  an  acknowledgment  of  the  existence  of  the 
debt,  and  from  it  the  law  raises  an  implication  of  a  pro- 
mise to  pay  the  residue  or  the  principal  as  the  case  may 
be,  just  as  it  does  from  a  simple  acknowledgment  in 
writing."  "  The  effect  of  payment  into  court  as  a  part- 
payment  was  not  questioned,  and  the  case  is  in  fact 
governed  by  the  principle  stated  below,  that  a  payment 
unless  made  as  part-payment  of  a  greater  debt  has  no 
effect.  It  is  submitted,  however,  that  if  a  debt  properly 
carries  interest,  the  principal  and  interest  constitute  one 
demand,  and  therefore  payment  of  the  principal  or  of  part 
of  it  takes  the  interest  out  of  the  statute  also."*1) 
Part-payment  (b)     In  Raja  Icvaia  Das  v.  Richardson/')  the  plaintiff 

to  keep  aSfve  a  sued  three  executors  for  the  balance  due  of  their  testator's 
xiv  of  i860.  simple  contract  debt  of  more  than  three  years  stauding. 
A  part-payment  had  been  made  by  the  defendants  within 
the  three  years  previous  to  the  commencement  of  the  suit. 
Two  of  the  defendants  had  also,  but  during  their  testator's 
life-time,  given  a  personal  undertaking  in  writing  to  pay 
the  debt  out  of  a  fund  coming  to  their  hands.  The 
defendants  had  also  signed,  as  executors,  and  sent  a  letter 
to  the  plaintiff,  informing  him  that  they  had  registered 
his  claim  against  the  testator's  estate,  and  that  notice 
would  be  given  to  him  when  the  assets,  if  any,  were  to  be 
distributed.  It  was  held  first,  that  the  case  was  not 
taken  out  of  Act  XIV  of  1859,  by  the  part-payment,  and, 
secondly,  that  neither  the  personal  undertaking  nor  the 
letter  was  such  an  acknowledgment  in  writing  as  to  bring 
the  case  within  section  4  of  the  same  Act.  See  also 
Gora  Chand  Dutt  v.  Lokenath  Dutt.W 
The  words  (c)     In  Ramasebuk  v.  Ram  Lall  Koondoo,(*)  the  argu- 

pe^iod^mean     ment  was,  that  the  words  in  section  20  of  Act  XV  of  1877 

the  prescribed 

period  of  limi.  (1)  Dftpby  and  Boganqnet#>  pp  7Q  A  n 

(2)  2  Mad.,  H.  C.  R.,  84.   |  (3)  8  W.  E.,  334.. 

(4)  I.  L.  B.f  6  Calo ,  815.,  S.  C,  8  Calc,  L.  R.,  467. 


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8EC.  20]      PART  III. — COMPUTATION  OF  PERIOD  OF  LIMITATION.  177 

*  before  the  expiration  of  the  prescribed  period'  refer,  not 
to  the  prescribed  period  of  limitation,  bnt  to  the  period 
prescribed  for  the  payment  of  the  debt.  "  In  our  opinion, 
however,  they  mean  the  prescribed  period  of  limitation, 
although  the  section  does  not  expressly  refer  to  suits. 
Reading  section  20  together  with  section  4  of  the  Act, 
which  is  the  section  that  prescribed  the  different  periods 
of  limitation  for  different  descriptions  of  suits,  the 
words  '  prescribed  period'  in  section  20  have,  we  think,  re- 
ference to  section  4  and  the  second  schedule  of  the  Act. 
The  words  *  prescribed  period'  alone  are  obviously  used  for 
the  purpose  of  conciseness,  as  it  will  be  found  that  they 
are  similarly  used  in  illustration  (b)  of  section  4  of  the 
Act,  while  there  can  be  little  doubt  about  their  meaning 
in  the  illustration  referred  to." 

(d)  In  Valia  Tamburatti  v.  Vira  Rayan^1)  plaintiff  Payment  of  in. 
sued  in  June,  1874,  to  recover  the  principal  sum  and  one  cient  under  Act 
year's  interest  due  on  a  bond  of  11th  March,  1866,  by  held  sufficient 
which  the  rent  of  certain  land  was  assigned  as  security  tion. 
for  interest.  No  date  was  specified  for  re-payment  of  the 
principal  sum.  Interest  was  paid  up  to  October,  1871. 
It  was  held  that,  assuming  that  the  period  of  limitation 
was  three  years,  and  that  it  had  run  out  both  before  action 
was  brought  and  before  Act  IX  of  1871  came  into  oper- 
ation, section  21  of  that  Act  operated  to  save  the  action  ; 
that  at  the  period  of  that  law  coming  into  force,  there 
was  still  a  contractual  right  existing,  and  that  the  right 
of  action  was  restored  by  the  payment  of  interest.  In 
Teagaraya  Mudali  v.  Mariappa  Pillai,W  it  was  held,  that 
the  exception  of  payment  of  interest  contained  in  section 
21  of  Act  IX  of  1871  was  not  confined  to  payments  made 
after  that  Act  came  into  force,  but  applies  also  to  payments 
made  before  that  date.  In  this  case  payments  endorsed 
before  Act  IX  of  1871  came  into  force,  on  a  registered 
bond,  dated  9th  August,  1867,  providing  for  re-payment 
on  the  10th  of  April,  1868,  was  considered  sufficient 
to  save  the  claim. 


(1)  I.  L.  E.,  1  Mad.,  228.    |    (2)  I.  L.  E.,  1  Mad.,  264. 
23 


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178  PABT  III. — COMPUTATION  OF  PERIOD  OP  LIMITATION.      [SEC.  20 

m.  h.  (e)     The  requirement  of  the  proviso,  that  part-pay- 

Murk  or  iriffiis~ 

tare  to  an  en-  ment  of  the  principal  of  a  debt  must  be  in  the  hand- writing 

dorsement 

satisfies  the  je-  of  the  person  making  the  same,  is  satisfied  if  the  payer 

anirement  of 

this  Motion.  signs  or  affixes  his  mark  beneath  an  endorsement  not 
written  by  him.  Sesha  v.  Seshaya.M  In  following  the 
above  ruling,  Hutchins,  J.,  in  Ellappa  v.  Annamalai/2) 
observes  "  that  when  there  is  a  writing  setting  out  the 
fact  of  payment  and  the  debtor  affixes  his  mark  or  sig- 
nature thereto,  he  adopts  the  writing  and  makes  it  his 
own,  and  by  his  signature  causes  the  fact  to  appear  in 
his  own  hand- writing."  In  Vadlamudi  Pichina  v.  Tanuiru 
Appadu,(*)  which  was  an  earlier  case,  a  Division  Bench, 
held  in  April,  1881,  that  the  payer's  mark  to  the  endorse- 
ment will  not  satisfy  the  requirement  of  this  section.  They 
observed,  that  part-payment  of  principal  should  "  appear 
in  the  hand-writing  of  the  person  making  the  payment. 
This  requirement  is  not  satisfied  by  a  mere  signature ; 
and  signature  by  a  mark  would  be  the  least  satisfactory 
form  of  signature." 

Endorsement  of       (f)     In  Ankamma  v.  Rama,  W  plaintiff  sought  to  take 

payment  on 

bond  need  not    the  case  out  of  the  statute  by  an  endorsement  of  payment 

■how  that  pay- 

ment  was  made  on  the  bond  in  the  defendant's  hand-writing.     In  reply 

toward*  princi-  °  r  J 

pal.  to  the  question,  whether  endorsement  should  show  that 

payment  was  made  towards  the  principal,  it  was  held  that 
it  need  not  show  it,  but  only  the  fact  of  payment. 

Endorsement  of       (or)     In  Mackenzie  v.  Tiruvengadathan,(5)  defendant 

cheque  by  debt-  °  ° 

©r  not  showing  granted  to  plaintiffs  in  September,  1881,  a  pro-note  for 

wmenC^d     Rs.  4,000,  agreeing  to  pay  the  same  by  monthly  instal- 

the  conditions    ments  of  Rs.  500  each,  and  to  pay  the  whole  debt  on 
ef  this  section.  r  * 

demand  if  any  instalment  was  in  arrear.     The  defendants 

paid  on  twelve  different  dates  sums  amounting  to  Rs.  1,799, 

but  these  payments  were  not  made  according  to  the  tenor 

of  the  bond.     The  last  payment  was  Rs.  100  by  a  cheque 

endorsed  by  the  2nd  defendant  to  the  plaintiff  on  the 

4th  September,  1882.     The  endorsement  did  not  state  for 

(1)  I.  L.  B.,  7  Mad.,  55.  I      (3)  5  Ind.  Jar.,  520. 

(2)  I.  L.  E.,  7  Mad.,  76-  |      (4)  I.  L.  B.,  6  Mad.,  281. 

(5)  I.  L.  B.,  9  Mad.,  271. 


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8BC.  20]     PABT  III. — COMPUTATION  OP  PERIOD  OP  LIMITATION.  179 

what  purpose  the  payment  was  made,  but  the  plaintiffs 
had  credited  the  sum  in  their  books  on  the  4th  Septem- 
ber, 1882.  The  other  payments  had  been  made  more  than 
three  years  before  the  suit.  It  was  held  that  the  cheque 
was  only  an  order  for  payment  and  it  did  not  evidence  any 
part-payment  at  all  as  it  did  not  show  for  what  purpose 
the  payment  was  made,  and  that  such  an  endorsement  did 
not  satisfy  the  conditions  of  this  section  so  as  to  give  rise 
to  a  new  period  of  limitation.  The  suit  was  rejected 
under  Article  75. 

(h)     In  Hanmantmal  Motichand  v.  Rambabai,*1)  plain-  Payment  by 
tiff  sued  on  the  12th  March,  1877,  for  Us.  10,000  on  an  inanition  2? 
account  stated  and  signed  by  the  defendant.     The  defen-  to&tenet.doeB 
dant  pleaded  that  the  suit  was  barred.     The  account  was  clans©  l. 
dated  19th  October,  1873,   and   since,   two  items  were 
advanced  to  the  defendant  on  the  8th  November,  1873, 
and  12th  September,  1876  respectively.     The  defendant 
made  payments  in  October  and  December,  1875,  and  March 
and  September,  1876.     It  was  held  that,  as  there  was  no 
intimation  by  the  defendant  that  any  payment  made  by 
him  was  to   be   appropriated   to  interest,    the   plaintiff 
cannot  claim  the  benefit  of  the  1st  clause  of  section  21  of 
Act  IX  of  1871. 

(i)    A  payment  made  by  an  agent  after  the  death  of  Payment  by 
his  principal  cannot  give  a  fresh  starting  point  from  which   principal's 
to  calculate  limitation  under  this  section,  as  under  section  save  limitation. 
201  of  the  Contract  Act  an  agency  is  terminated  by  the 
death  of  the  principal.     Sirdarni  Kishen  Kour  v.  Manna 
Lai  (Punj.  Rec.,  No.  78  of  1880.)  W 

(j)    Where  in  a  suit  (Whitley  v.  Lowe,  25  Beav.,  421 ;   Bngiisa  case  on 
2  DeGex  and  J.,  704)  for  partnership  accounts,  a  receiver  payment  by  a 


was  appointed,  and  made  payments  to  the  plaintiffs  on  ac- 
count of  a  debt  due  to  them  from  one  of  the  defendants 
under  a  covenant  in  the  partnership  deed,  but  such  pay- 
ments were  not  authorized  by  the  terms  of  his  appoint- 
ment, nor  was  it  proved  that  the  defendant  sanctioned  their 
being  made,  it  was  held  that  the  receiver  was  not  the 

(1)  I.  L.  E.,  3  Bom.,  198.      |  (2)  Rivaz'a  Limitation  Act,  p.  63. 


reoeiver. 


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oeive  as  mort- 
gagee. 


180  PABT  III. — COMPUTATION  OF  PBBIOD  OF  LIMITATION.      [SBC.  20 

agent  of  the  defendant  for  the  purpose  of  making  the  pay- 
ments, and  that  they  did  not  prevent  the  operation  of  t lie 
What  would  be  statute.    Nothing  was  said  as  to  what  would  have  been 
court  had  au-    the  effect  in  case  the  receiver  had  been  authorized  by  the 
payment?  court  to  make  the  payments  relied  on.M 

Mortgagee  re-  00  *n  Pichandi  1?.  Kandasami/2)  plaintiff  sued  for 
S^Se^o?1?^  money  due  upon  an  unregistered  mortgage-deed  of 
ie^te^dmc1^  August,  1869,  alleging  that  he  was  in  possession  of  the 

e£&%dnto  °^'  ian*  «*  tne  date  of  the  STlit  «*  APril»  1883-    Jt  waB  held 
that  the  deed  being  inoperative  to  create  a  mortgage,  the 

plaintiff    cannot  claim  to  have  received  the  profits  of 
the  mortgaged  property  nor  to  have  received  them  as 
mortgagee. 
Receipt  of  rent       (1)     In  TJmmer  Kutti  v.  Abdul  Kadar,W  defendant, 
SdeTaleaae6     who  mortgaged,  in  1858,  his  land  to  the  plaintiff  with 
mortgage,  held  possession  for  a  term  of  5  years,  took  a  lease  of  the  land 
to  payment^    in  1861  from  the  plaintiff  and  paid  him  rent  under  it 
Act  ix  of  1871.    until  1870-71.     The  mortgage  debt  was  re-payable  on  the 
expiry  of  the  term.     Plaintiff  brought  the  suit  Out  of 
which  this  appeal  arose  to  recover  the  debt  from  th« 
mortgagor.     It  was  pleaded  that  the  suit  was  barred  by 
limitation,  to  which  plaintiff  replied  that  the  receipt  of 
rent  was  in  fact  a  payment  of  interest,  and  that  from  the 
last  payment  of  interest  a  new  period  of  limitation  arose. 
It  was  held,  that  the  case  being  governed  by  the  pro- 
visions of  Act  IX  of  1871,  the  payment  of  rent  under  an 
agreement  entirely  independent  of  the  original  mortgage 
could  not  be  regarded  as  a  payment  of  interest. 
Paymentof  rent       (m)    In  Palliagatha  Ummer  Kutti  v.  Abdul  KadarW  a 
under°a  eubae-  Kanom  was  granted  in  1858  for  five  years,  to  secure  re-pay- 
him11  by  mort-    ment  of  a  loan,  and  a  lease  was  made  in  1861  to  the  grant- 
garded  not  aa"  or  of  the  Kanom  by  the  Kanom-holder,  and  rent  was  paid 
terest  under  Act  under  the  lease  until  1871.     The  suit  was  brought  in  Sep- 
tember, 1877,  to  recover  from  the  defendants  personally 
the  Kanom  amount  and  the  arrears  of  rent  for  seven  years. 
It  was  pleaded  that  payment  of  rent  was  in  fact  a  pay* 

(1)  Darby  and  Bosanquot,  p.  107.  I      (3)  I.  L.  R.,  2  Mad.,  165. 

(2)  I.  L.  R.,  7  Mad.,  539.  |      (4)  I.  L.  R.,  3  Mad.,  57. 


IX  of  1871. 


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SBC.  20]      PABT  m. — COMPUTATION  OF  PERIOD  OP  LIMITATION.  181 

ment  of  interest  from  which  date  the  plaintiff  had  a  new 
period  of  limitation.  The  court  held  that  the  suit  to  re- 
cover the  Kanom  amount  and  the  arrears  of  rent  for  seven 
years  was  barred  by  limitation  except  as  to  three  years'  ar- 
rears of  rent.  As  to  the  payment  of  rent,  the  court  observe : 
"  Under  the  present  law,  this  may  be  so,  if  it  be  held  that 
payment  of  rent  by  the  mortgagor  is  such  a  receipt  of  pro- 
duce in  virtue  of  a  usufructuary  mortgage  as  is  to  be 
deemed  equivalent  to  a  payment  of  interest ;  but  this 
provision  is  not  to  be  found  in  Act  IX  of  1871,  and  although 
if  the  payment  of  rent  had,  as  part  of  the  original  agree- 
ment or  otherwise,  been  agreed  as  a  provision  for  the 
interest  in  the  debt,  we  might  have  held  that  it  fell  with- 
in the  narrower  terms  of  Act  IX  of  1871,  yet,  in  the  cir- 
cumstances of  the  present  case,  it  is  impossible  in  our 
judgment  to  hold  that  the  payment  of  rent  under  an 
agreement  entirely  independent  of  the  original  mortgage 
can  be  regarded  as  a  payment  of  interest  as  such." 

(n)     In  a  suit  on  a  bond  which  stipulated  that  half  the   Case  where 
produce  of  certain  land  should  be  given  as  long  as  the   dace  was  held 
principal  remained  unpaid,  held,  that  the  delivery  of  the   payment  of  in- 
produce  was  equivalent  to  the  payment  of  interest  and 
operated  to  keep  the  claim  on  the  bond  alive  within  the 
meaning  of  section  21  of  the  Act  of  1871.     Haji  v.  Mus- 
samat  Hasan  (Punj.  Rec,  No.  6  of  1874.)     But  held,  that 
the  mere  receipt  of  the  produce  of  mortgaged  land  is  not 
equivalent  to  the  receipt  of  interest  within  the  above  sec- 
tion, so  as  to  keep  the  mortgage-debt  alive.     Ram  K  is  hen 
v.  Nawab  (Punj,  Rec,  No.  74.  of  1874..)<D 

(O)     In  Ramchendra  Ganesh  v.  Devba/2)  plaintiff  sued  Money  walked 

,  nnr.      -  ,  .    .         _    ,         _      ,         ,    in  execution  of 

in    looU,   tor  money   due   on   a    registered  bond,  dated  decree  cannot 
June,  1861.     The  debt  was  secured  on  service  land,   of   part-payment 

,..   r     .r       j    i  ,  »  .  .  ,  under  this  sec- 

whicn  the  debtor  was  to  remain  in  possession  and  pay   tion. 
annual  rent  to  the  plaintiff  in  lieu  of  interest.     This  suit 
was   brought    to  recover  the  principal  with  arrears  of 
unpaid  interest.     To  meet  the  plea  of  bar,  the  plaintiff 


(2) 


Rivaz'g  Limitation  Act,  p.  64. 
I.  L.  E.,  6  Bom.,  626. 


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182  PART  ni. — COMPUTATION  OP  PERIOD  OP  LIMITATION.      [SEC.  20 

pleaded  that  under  a  decree  be  had  obtained   against 
one  of  the  defendants,  he  recovered  money  through  court 
Payment  to  the  in  1879.     The  High  Court  observed,  that  payment  to  the 
payment  to  ere-    Nazir  of  the  court  in  satisfaction  of  the  judgment-debt  is 
as  such,  not  a  payment   to    the   creditor  of    interest    as    such. 

W.  Moran  v.  Dewan  Ali  Sirang  (8  Bom.,  L.  R.,  p.  418). 
An  acknowledgment  must  contain  an  express  or  implied 
promise  to  pay :  Smith  v.  Thorne,  (18  Q.  B.,  134.)     Pay- 
ment of  interest  under  a  judgment  recovered,  not  being 
such,  that  promise  to  pay  the  principal  could  be  inferred 
in  fact  from  it  is  not  sufficient  to  take  the  principal  debt 
out  of  the  Statute  of  Limitations  :  Morgan  v.  Rowland 
(L.  R.,  7  Q.  B.,  493).     The  principle  underlying  all  the 
Statutes  of  Limitation  is,  that  a  payment,  to  prevent  the 
barring  by  statute,  must  be  an  acknowledgment  by  the 
person  making  the  payment  of  his  liability,  and  an  admis- 
sion of  the  title  of  the  person  to  whom  the  payment  is 
made.     See.  Harlock  t?.  Asherry   (19  L.  R.,  Ch.  Div.,  539 
reversing  Fry,  J's.  judgment,  in  18  Ch.  Div.,  229). 
Section  19  re-        (p)     Section  19  of  the  Limitation  Act,  relating  to  the 
iect  of  acknow-  effect  of  acknowledgment  in  writing,  distinctly  provides  for 
tion  2on  rotates  a  new  period  of  limitation  to  be  computed  from  the  date 
payment.  of  acknowledgment,  also  of  an  "  application  in  respect  of 

any  property  or  right,"  while  section  20,  clause  1,  which 
relates  to  the  effect  of  payment  of  interest,  as  such,  refers 
to    "a  debt  or  legacy,"   and  clause   2,  which  relates  to 
part-payment  of  principal,  refers  only  to  "  a  debt." 
High  Courts  of       (q)    As  to  the  applicability  of  section  19  to  the  acknow- 
baj%  AUahabadj  ledgment  of  decree-debt  by  judgment-debtor,  the  High 
to  apply  to  de-   Courts  of  Calcutta,  Bombay  and  Allahabad  agree,  while 
erees.  ^e  High  Court  of  Madras  holds  that  section  inapplicable 

to  applications  in  execution  of  decrees.     (Vide  Notes  2-N, 
2-0,  2-Q,  2-E,  2-5,  2-T,  section  19.) 

c.  h.  holds  sec-  (p)  As  regards  the  application  of  section  20  to  pay- 
cabled  dec^  ments  made  out  of  court  towards  a  decree,  the  Calcutta 
holds  othe?'  High  Court  held,  that  such  payment  could  not  stop  limi- 
wwe*  tation  once  begun,  while  A.  H.,  dissenting  from  it,  held 

such  payment  to  fall  within  this  section. 


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8EC.  20]      PART  III. — COMPUTATION  Of  PERIOD  OF  LIMITATION. 


183 


(8)     Section  206  of  Act  VIII  of  1859  related  to  pay-   section  aoe  of 
ments  made  out  of  court  towards  decree,  and  the  corres-  and  268  of  the 
ponding  section  258  of  the  Civil  Procedure  Code  of  1877   issa  exhibited 
has  been  reproduced  as  section  258  in  the  Code  of  1882.  table. 
Before  proceeding  to  review  the  decisions  bearing  upon 
these  sections,  it  is  necessary  to  refer  to  them,  and  they 
are  exhibited  in  the  following  table  for  ready  reference. 


Act  VHI  of  1859. 


Act  X  of  1877. 


Act  xrv 

of  1682. 


206.  All  monies  pay- 
able under  a  de- 
cree shall  be  paid 
into  the  court, 
whose  duty  it  is  to 
execute  the  decree, 
unless  such  court 
or  the  court  which 
passed  the  decree 
shall  otherwise  di- 
rect. No  adjust- 
ment of  a  decree  in 
part  or  in  whole 
shall  be  recognised 
by  the  court  un- 
less such  adjust- 
ment be  made 
through  the  court 
or  be  certified  to 
the  court  by  the 
person  in  whose 
favour  the  decree 
has  been  made  or 
to  whom  it  has 
been  transferred. 


258.  If  any  money  payable  under  a  de- 
cree is  paid  out  of  court,  or  the  decree 
is  otherwise  adjusted  in  whole  or  in 
part  to  the  satisfaction  of  the  decree- 
holder,  or  if  any  payment  is  made  in 
pursuance  of  an  agreement  of  the  na- 
ture mentioned  in  section  257-A,  the 
decree-holder  shall  certify  such  pay- 
ment or  adjustment  to  the  court  whose 
duty  it  is  to  execute  the  decree. 

The  judgment-debtor  also  may  inform 
the  court  of  such  payment  or  adjust- 
ment, and  apply  to  the  court  to  issue 
a  notice  to  the  decree-holder  to  show 
cause,  on  a  day  to  be  fixed  by  the 
court,  why  such  payment  or  adjust- 
ment should  not  be  recorded  as  certi- 
tified ;  and  if,  after  due  service  of  such 
notice,  the  decree-holder  fails  to  ap- 
pear on  the  day  fixed,  or  having  ap- 
peared fails  to  show  cause  why  the 
payment  or  adjustment  should  not  be 
recorded  as  certified,  the  court  shall 
record  the  same  accordingly. 

No  such  payment  or  adjustment  shall 
be  recognized  by  any  court  unless  it 
has  been  certified  as  aforesaid. 


o 

1 

ft. 

s  . 


*H  3 


00 
§ 


GQ 


(t)     In  Bhubaneswari  Debi  v.  Dinanath,0)  it  was  held  Peacock,  o.  J., 

in  March,  1869,  that  a  judgment- creditor  is  entitled  to  holder  could 

prove  payment  made  according  to  the  terms  of  a  kist-  out  of  court  to- 

bundi  for  the  purpose  of  showing  that  his  right  to  sue  out  take  decree  out 

r      r  °  °  of  the  statute. 

(1)  2  B.  L.  E.,  Ac,  820.  <March  18W> 


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184  PART  III.— COMPUTATION  OP  PERIOD  OP  LIMITATION.      [8KC.  20 

execution  troder  the  kist-bundi  was  not  barred  by  limi- 
tation. The  kist-bnndi  executed  by  the  judgment-debtor 
to  pay  off  the  decrees  by  instalments,  was  ordered  by 
the  judge  to  be  entered  in  the  register  book.  Peacock, 
C.  J.,  observes :  "  I  think  that  the  plaintiff  was  entitled  to 
prove  the  payments  made  under  the  kist-bundi  for  the  pur- 
pose of  showing  that  his  right  to  sue  out  execution  under  ^ 
the  kist-bundi  was  not  barred  by  limitation.  I  am  not  sure 
that  a  part-payment  under  a  decree  may  not  be  proved  for 
the  purpose  of  avoiding  limitation,  although  the  payment 
has  not  been  made  through  the  court,  or  certified  to  the 
court.  lam  disposed  to  think  that  the  words  "  no  adjust- 
ment of  a  decree  in  part  or  in  whole  shall  be  recognized 
by  the  court,"  in  section  206, mean  that  no  adjustment 
shall  be  recognized  as  an  adjustment  in  favour  of  the 
debtor  unless  it  is  made  through  the  court,  or  certified 
to  the  court  by  the  person  in  whose  favor  decree  has  been 
made ;  the  meaning  being,  that  the  person  in  whose  favor 
the  decree  has  been  made  is  not  to  be  bound  by  an  alleged 
payment  out  of  court  unless  he  has  certified  it.  If  the 
Legislature  had  contemplated  the  Statute  of  Limitation, 
and  had  intended  to  prevent  a  payment  made  within  the 
period  of  limitation  from  being  made  use  of  to  prevent 
the  operation  of  limitation,  I  should  think  they  would 
have  required  the  payment  to  be  certified  by  the  defend- 
ant, who  would  in  that  case  be  affected  by  it.  I  am 
corroborated  in  this  view  by  finding  that  no  time  is  fixed 
within  which  the  plaintiff  is  to  certify.  If  the  plaintiff 
comes  in  at  any  time,  and  certifies  that  he  has  been  paid, 
he  must  be  bound  by  it ;  but  if  limitation  was  the  object 
of  the  Legislature,  they  would  have  required  the  certifi- 
Peacock,  c.  J.,    cate  to  be  made  within  a  fixed  time.    The  above  decision 

followed  hfo 

own  ruling  in  was  followed  in  Fakir  Chand  Bose  v.  Madan  Mohan 
Ghose/1)  where  the  same  judge  held,  that  on  the  decree- 
holder  proving  payments  to  the  satisfaction  of  the  court, 
the  defendant  will  be  at  liberty  to  show  that  he  had  not 
made  the  payments  and  that  the  decree  was  barred. 

(1)  4  B.  L.  B.,  F.  B.,  182. 

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8EC.  20J      PART  III.— COMPUTATION  OP  PIBIOD  OP  LIMITATION.  185 

(u)     With  reference  to  the  above  observations,   the  Article  iei  wu 

.  for  the  first  time 

Legislature  enacted  in  the  Limitation  Act  of  1877.  by  Arti-  enacted  in  the 

Limitation  Act 

ole  161,  for  the  issue  of  a  notice  under  section  258  of  the  of  1877. 
Procedure  Code,  to  show  cause  why  the  payment  or  adjust- 
ment therein  mentioned  should  not  be  recorded  as  certi- 
fied.    The  application  is  required  to  be  presented  within 
20  days  from  the  date  of  payment  or  adjustment.     The  B.  H.  obeeme, 
Bombay  High  Court  observe,  that  the  provisions  of  section  oie  renders  nu- 

ffatorv  section 

"258,  wbich  enables  a  judgment-debtor  to  apply  for  a  168  of  o.  p.  c. 

notice  is,  in  effect,  rendered  nugatory  by  the  shortness  of 

the  period  of  20  days  within  which  the  Limitation  Act 

requires  such  an  application  to  be  made :   Patankar  v. 

Devji.W 

(V)     In  Kally  Prosonno  Hazra  v.  Heera  Lai  Mundle,<*)  c.  h. 

the  last  application  for  execution  of  the  decree  had  been  of  debt  doe  un- 
made on  the  14th  of  December,  1872,  and  a  notice  under  held  not  to  come 
section  216,  Act  VIII  of  1859,  issued  on  the  19th  of  Janu-  »  of  Act  ex  of 

1871 

ary,  1873,  and  on  the  28th  of  April,  1873,  the  judgment-  (June  iot.) 
debtor  filed  a  petition  notifying  part-payment,  which  peti- 
tion was  signed  by  the  judgment-creditor.     In  an  appli- 
cation for  execution  made  in  April,  1876,  it  was  held,  that 
the  execution  was  barred  inasmuch  as  the  word  "  debt" 
in  sections  20  and  21  of  Act  IX  of  1871  did  not  include 
a  liability  for  which  judgment  has  been  obtained.     Fol-  Another  deoi- 
lowing  the  above  decision,  the  court,  in  Mongol  Prashad  (January  1870.') 
Dichit  v.  Shama  Kanto  Lahory,(8>  held  in  January,  1879» 
that  the  judgment-debtor's  acknowledgment  of  the  decree 
debt  by  an  application  for  two  months'  postponement  of 
sale,  would  not  extend  the  period  of  limitation. 

(w)  In  Asmutullah  Dalai  v.  Kally  Churn  Mitter,W  o.  h.  held  that 
the  terms  of  compromise  in  a  suit  for  money  provided  made  towards 
that  the  debt  should  be  paid  by  monthly  instalments,  and  ttop  limitation 

once  begun. 

that  on  the  failure  to  pay  any  three  successive  instalments  (Marohiwi.) 
the  entire  amount  should  be  recoverable  by  application  to 
execute  the  full  decree.     The  decree  was  dated  12th  June, 
1875,  the  first  instalment  was  due  in  July,  1875,  and  the 

(1)  I.  L.  E.,  6  Bom.,  146.       I        (3)  I.  L.  E.,  4  Calo.,  708. 

(2)  I.  L.  E.,  2  Calo.,  468.       |        (4)  I.  L.  B.,  7  Calo.,  56. 


24 


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186 


PART  III. COMPUTATION  OP  PERIOD  OP  LIMITATION.      [8BC.  21 


A.  H.  dissent- 
ing from  0.  H. 
held  part-pay- 
ment  to   fall 
within  this  sec- 
tion. 


One  of  several 
joint-contrac- 
tors,   Ac,    not 
chargeable  by- 
reason   of   ac- 
knowledgment 
or  payment 
made   by   an- 
other of  them. 


8.  4  of  Act  XIV 
of  1869. 


8.  SO,  Act  IX  of 
1871. 


Section   £Lr.of 
1877. 


Observations  of 
Scott,  J. 


last  in  October,  1877.  Default  was  made  in  payment  of 
the  first  three  instalments,  but  the  decree-holder  did  not 
apply  for  execution,  and  accepted  a  subsequent  payment. 
On  the  13th  December,  1879,  he  applied  for  execution  for 
the  amount  then  remaining  due.  It  was  held  that  the 
period  of  limitation  prescribed  by  Article  179  of  Act  XV  of 
1877,  began  to  run  on  the  third  default  taking  place,  and 
that  no  subsequent  payments  should  stop  limitation  once 
begun. 

(X)  In  Janki  Prasad  t?.  Ghulam  Ali,(*)  in  which  the 
judgment-debtor,  for  a  decree,  dated  24th  June,  1878,  had 
paid  out  of  court  rupees  50  on  the  7th  May,  1879, 
rupees  70  on  the  4th  February,  1880,  and  rupees  80  on 
the  13th  January,  1881,  and  had  endorsed  the  last  two 
payments  in  his  own  hand-writing  on  the  decree.  The 
last  application  for  execution  was  made  on  the  5th  Sep- 
tember, 1881.  It  was  held  in  September,  1882,  that  the 
part-payment  made  and  endorsed  by  the  debtor  on  the 
decree  fell  within  the  terms  of  this  section. 

21.  Nothing  in  sections  19  and  20  renders 
one  of  several  joint-contractors,  partners,  exe- 
cutors or  mortgagees  chargeable  by  reason  only 
of  a  written  acknowledgment  signed,  or  of  a 
payment  made  by,  or  by  the  agent  of,  any  other 
or  others  of  them. 

(a)  Section  4  of  Act  XIY  of  1859  provided  that,  if 
more  than  one  person  be  liable,  none  of  them  shall  become 
chargeable  by  reason  only  of  a  written  acknowledgment 
signed  by  another  of  them.  This  section  referred  only  to 
legacy  or  debt. 

Explanation  2  of  section  20  of  Act  IX  of  1871,  referred 
only  to  the  cases  of  "  several  partners  or  executors. " 

Section  21  of  the  later  Act  (1877)  refers  to  4  classes  of 
persons,  r«.,  "several  joint-contractors,  partners,  exe- 
cutors or  mortgagees." 

(b)  "  It  will  be  noticed  that  this  goes  further  than 

(1)  I.  L.  R.,  5  All.,  201. 


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8SC.  21]      PART  III.— COMPUTATION  OP  PERIOD  OP  LIMITATION.  187 

the  English  Law,  which  does  not  expressly  mention  part- 
ners, hut  only  includes  contractors  or  co-debtors — Mercan- 
tile  Law   Amendment  Act  1856,  section  14.     I   think, 

however,  the  meaning  of  the  word  *  only*  in  section  21  is,  "Only"  means 

,        i  ii  ,       ,  .,  that  partner 

that  it  mast  also  be  shown  tbat  the  partner  signing  the  signing  ac- 

.       .  i*    j  knowledgment, 

acknowledgment  had  the  authority,  express  or  implied,  most  also  be 

~  i  .  shown  to  have 

to  do  so.     In  a  going  mercantile  concern,  such  agency  is,  had  authority 

I  think,  to  be  presumed  as  an  ordinary  rule  :  (see  Lindley 
on  Partnership  and  Goodwin  v.  Parton.  41  Law  Times,  91)" 
Premji  Ludha  v.  Dossa  Doongersey.W 

(O)     Notwithstanding  the  provisions  of  this  section,  it  One  of  joint- 
may  always  be  shown  that  the  joint-contractor,  partner,   Ac,  may  be 

i.i.iiii  ,     shown  to  act 

executor,  or  mortgagee,  who  signed  the  acknowledgment  as  authorised 
or  made  the  payment,  was  acting  as  a  duly  authorized 
agent  of  the  other  joint  parties  within  the   meaning  of 
section  19. 

(d)     In  Khoodee  Bam  Dutt  v.  Kishen  Chand  Gole-  Explanations 
cha,W  the  court  held  that  section  20  of  Act  IX  of  1871  Act  ix  of  lsn, 
cannot  apply  to  partnership  accounts  or  to  cases  where  bie  to  cases 

i.i  t  i  *  i  i  •      •       i  i     A       where  one  part- 

One  partner  by  the  ordinary  rules  of  partnership  is  able  to  ner  by  rules  of 

.  partnership  can 

bind   his  co-partner.     Each   partner  who  does  any  Act  bind  his  co-part- 
necessary  for,  or  usually  done  in  carrying  on  the  business   (Feb.  1878.) 
of  such  a  partnership  as  that  of  which  be  is  a  member,   ^^nTco^pLru 
binds  his  co-partners  to  the  same  extent  as  if  he  were  Sot?  2&\  of  Act 
their  agent  duly  appointed  for  that  purpose.  1X  ot  1872, 

Exception. — If  it  has  been  agreed  between  the  partners, 
that  any  restriction  shall  be  placed  upon  the  power  of 
any  one  of  them,  no  act,  done  in  contravention  of  such 
agreement,  shall  bind  the  firm  with  respect  to  persons 
having  notice  of  such  agreement. 

(6)  In  Premabhai  Hemabhaiv.  T.  H.  Brown/8)  which  a  partner  of  a 
was  a  suit  brought  on  two  promissory  notes  granted  by  one  tile  character " 
of  the  partners  of  a  firm  of  carriers,  Melvill,  J.,  observes,  thority  to  bind 
"  It  is  clear  that  one  partner  of  a  partnership  in  trade,  has  the  partner  of  a 
an  implied  authority  to  bind  the  firm  by  drawing  a  bill,  Mining  Com- 
or  giving  a  promissory  note  in  the  name  of  the  firm  ;  but   Attorneys. 

(1)  I.  L.  R.,  10  Bom.,  362.      |  (2)  W.  R.  26,  p.  146. 

(3)  10  B.  H.  C.  R.,321. 


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188  PART  III.— COMPUTATION  OF  PESIOD  OF  LIMITATION.      [SIC.  21 

in  the  case  of  partnerships  which  are  not  of  a  mercantile 
character,  there  is  no  such  implied  authority.  Thus,  in 
the  case  of  a  Mining  Company,  Dickinson  v.  Valpy  (10  B. 
and  C,  12£),  or  a  Farming  Company,  Greenslade  v.  Dower 
(7  B.  and  C,  635),  or  a  firm  of  Attorneys,  Hedley  v.  Bain- 
bridge  (3  Q.  B.,  316),  a  partner  cannot  bind  the  firm  by  a 
Bill  of  Exchange  or  a  promissory  note,  unless  he  has  ex- 
press authority  to  draw  or  make  it.  In  the  present  case, 
the  firm  of  Hewett  &  Co.  was  certainly  not  an  ordinary 
trading  partnership.  It  was  merely  a  Carrying  Company, 
formed  for  the  purpose  of  carting  goods  from  the  railway 
to  the  town  of  Ahmadabad,  and  the  drawing  and  accepting 
of  bills,  or  making  of  promissory  notes,  was  in  no  way 
necessary  for  the  purpose  of  carrying  on  the  business  of 
such  a  partnership.  We  must  hold,  therefore,  that  Hewett 
had  no  implied  authority  to  make  the  uotes  on  which  the 
plaintiff  sues." 
if  acknowledge  (f)  In  Premji  Ludha  v.  Dossa  Doongersey,*1*  the 
given  by  one  plaintiff,  as  heir  of  his  mother,  sued  a  firm  in  which  he 
the  firm  is  a  go-  was  himself  a  partner,  to  recover  the  amount  of  certain 
authority  to'  ac-  loans  which  he  alleged  his  mother  in  her  lifetime  had 
be  presumed,  made  to  the  said  firm.  The  plaintiff  was  made  a  defen- 
dant in  the  suit  along  with  the  other  partners.  The 
alleged  loans  were  made  on  the  2nd  November,  1881,  and 
the  12th  October,  1882.  The  present  suit  was  not  filed 
until  December,  1885.  The  plaintiff,  however,  relied  on 
an  acknowledgment  signed  in  his  mother's  account  book 
by  himself  as  partner  in  the  firm  on  the  1st  November, 
1883.  The  1st  defendant  did  not  appear  or  put  in  any 
defence.  The  2nd  defendant  pleaded  limitation,  and 
alleged  that  on  the  2nd  November,  1880,  prior  to  the  date 
of  the  alleged  loans,  he  had  retired  from  the  firm,  and 
therefore  was  not  liable.  From  the  evidence  given  at  the 
hearing,  it  appeared  that  the  business  stopped,  so  far  as 
buying  and  selling  and  fresh  trading  were  concerned,  at 
the  end  of  the  year  1881,  and  that  subsequently  to  that 
date  the  partners  were  occupied  solely  in  winding  up  the 

(1)  I.  L.  R.,  10  Bom.,  358. 


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8«C.  21]     PART  III.— COMPUTATION  OP  PBBIOD  OP  LIMITATION.  189 

affairs  of  the  firm.     It  was  held,  that,  under  the  circum- 
stances, the  acknowledgment  given  by  the  plaintiff  did  not 
bind  the  other  partners,  and  that  the  claim  against  them 
was  barred.     If,  at  the  time  the  acknowledgment  was 
given,  the  firm  had  been  a  going  concern,  the  plaintiff's 
authority  to  make  such  an  acknowledgment  on  behalf  of 
the  firm  might  have  been  presumed  ;  but  in  this  case  the.   In  this  cue  no 
business  had  been  closed,  and  the  partnership  entirely    tion  was  heidto 
dissolved.     The  presumption,  therefore,  which  arises  in    nership  had 
active  partnership  no  longer  existed,  and  there  was  no  evi- 
dence that  the  plaintiff  had  been  expressly  authorized  to 
act  for  the  other  partners  in  making  an  acknowledgment. 

(g)     "  It  should  be  observed  that  though  partnership-   English  Law  as 
debts  are  joint-debts,  they  stand  on  a  somewhat  different    one  partner  on 
footing  from  other  joint-debts  during  the  continuance  of    nership  debts. 
the  partnership,  because  so  long  as  the  partnership  exists,   97,  sec.  14  does 
one  partner,  in  making  payments  on  account  of  partner-    refer  to  partner, 
ship-debts,  may  be  presumed  to  do  so  as  agent  of  the  firm, 
and  therefore  to  bind  the  firm  ;  but  on  the  dissolution  of 
partnership  by  death  or  otherwise,  the  agency  determines, 
and  therefore  no  payments  made  after  that  time  can  affect 
any  other  party  than  the   person  who    makes   them." 
(Thompson  v.  Waithman,  3  Drew.,  628 ;  Brisfcow  v.  Miller, 
11  Ir.  L.  Rep.,  461). (D     In  Watson  v.  Woodman,(2)  Sir 
Charles  Hall,  V.  C,  observes,  "  if  while  the  partnership 
subsisted,  each  partner  could  and  should  be  deemed  to 
be  the  agent  of  the  other  to   make  payments,    so  as  to 
exclude  the  operation  of  the  statute,  such  agency,  I  consi- 
der, terminated  on  the  dissolution  of  the  partnership  ;  no 
such  agency  being  by  the  deed  of  dissolution  expressly  or 
necessarily  or  otherwise  impliedly  created."     He  alludes 
to  Bristow  v.  Miller,  in  which  Crampton,  J.,  said  "  Kilgorn 
v.  Finlyson,  (1  H.  B.,  155),  is  a  clear  authority  to  shew  that 
after  a  partnership  is  dissolved,  one  of  the  late  firm  can- 
not by  his  act  or  admission  involve  his  co-partner  in  any 
new  legal  liability.     In  that  case,  one  partner  had  upon  a 
dissolution  been  appointed  to  liquidate  the  debts  of  the 


(1)  Darby  and  Bosanqnet,  p.  85.  |         (2)  L.  R.,  Eq.  20,  p.  730. 


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190  PART  III  —COMPUTATION  OF  PERIOD  OP  LIMITATION.      [BBC.  21 

partnership,  but  it  was  held  that  any  acknowledgment  of 
debt  by  him  would  not  affect  the  other  partner.     The 
acknowledgment  was  referred  to  the  new  capacity  of  the 
partner  as  manager  to  wind  up  the  concern." 
Acknowiedg-  (ft)     Section  271  of  Act  X  of  1865,  and  section  92  of 

ment  by  one  of  N 

several  execu-     Act  V  of  1881,  provide  that  when  there  are  several  execu- 
tors or  adminis-  r 
trators  as  such,   tors   or  administrators,  the  powers  of  all  may,  in  the 

absence  of  any  direction  to  the  contrary,  in  the  will  or 
grant  of  letters  of  administration,  be  exercised  by  any  one 
of  them  who  has  proved  the  will  or  taken  out  adminis- 
tration. In  Chander  Kant  Mitter  v.  Ram  Narain/1)  the 
court  observe  that  where  property  is  devised  by  will  to 
executors,  any  admission  by  parties  other  than  the  execu- 
tors to  the  will,  would  not  bind  the  estate  of  the  deceased, 
and  the  admission  of  one  executor  would  not  bind  another, 
particularly  if  not  made  in  the  character  of  executor. 
Acknowiedur-  (i)     Where  there  are  several  joint-mortgagees,  an  ac- 

mentbyoueof  _,  . 

several  mort-  knowledgment  by  one  of  them  neither  gives  a  new  period 
of  limitation  as  regards  a  share  of  the  mortgaged  property, 
nor  in  respect  of  the  whole  property,  if  the  case  be  gov- 
erned by  Act  IX  of  1871,  or  Act  XIV  of  1859,  neither  of 
which  Acts  recognize  an  acknowledgment  by  an  agent  in 
suits  for  redemption,  and  is  therefore  absolutely  without 
effect.  Hakim  Devi  Doyal  v.  Prab  Dyal,  (Punj.  Rec,  No. 
85  of  1880),  and  Mussammat  Mah  Bibi  v.  Motan  Mai  (lb., 
No.  61  of  1877).  But  see  Kbair  Muhammad  v.  Ahmudin. 
(Punj.  Rec.,  No.  78  of  1878).  Under  the  present  Act,  the 
question  might  arise  in  such  cases  as  to  whether  or  no  the 
mortgagee  signing  the  acknowledgment  was  acting  as 
a  duly  authorized  agent  for  his  co-mortgagees.  In  the 
English  case  of  Richardson  v.  Younge,  (L.  R.,  6  Ch.,  478) 
which  is  cited  by  Fitzpatrick,  J.,  in  Mussammat  Mah 
Bibi  v.  Motan  Mai,  (ubi  supra),  the  question  was  as  to  the 
English  statute  effect  of  an  acknowledgment  by  one  of  two  joint-mortga- 
breaking  up  a  gees  under  section  28  of  III  and  IV  Wm.  4,  C.  27,  which 
portions  to  give  section,  however,  provides  for  the  case  of  an  acknowledg- 

eff ect  to  the  ac-  .  .  . 

knowledgment    ment  by  one  of  a  number  of  mortgagees  or  persons  claim- 

of  one  of  several 

&£—*■••  (l)8W.B.,p.63. 


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BBC.  21]      PART  in. — COMPUTATION  OP  PBBIOD  OP  LIMITATION.  191 

ing  under  a  mortgagee,  enacting  that  such  acknowledg- 
ment shall  be  binding  only  as  against  the  person  making 
it,  and  providing  for  the  apportionment  of  the  mortgage- 
debt  between  him  and  the  others.  The  joint-mortgagees 
in  the  above  case  were,  however,  trustees,  and  had,  there- 
fore, no  several  and  apportionable  interest  in  the  premises. 
Three  views  were  suggested  in  the  argument.  First,  that 
an  acknowledgment  by  one  bound  both  ;  secondly,  that  it 
bound  one-half  of  the  property,  and  enabled  the  plaintiff 
to  redeem  one-half  on  payment  of  one-half  the  debt ;  and, 
thirdly,  that  the  acknowledgment  by  one  was  ineffectual 
altogether.  This  last  view,  which  was  in  accordance  with 
that  of  the  Vice-Chancellor  (from  whose  decision  the  case 
was  on  appeal  before  the  Lords  Justices)  was  adopted  by 
the  court,  but  it  was  expressly  stated  by  James,  L.  J., 
that  the  decision  was  confined  to  the  case  of  mortgagees 
who  are  trustees,  and  are  shown  to  be  such  on  the  face  of 
the  deed.  See  Banning,  pp.  169,  170.  Section  21  of  the  snch  acknow- 
present  Act  expressly  provides  that  an  acknowledgment  section  21  of  the 
made  by  one  mortgagee  shall  not  bind  his  co-mot-tgagees,  wholly  ineffec- 
and  there  being  no  provision  in  the  Act  (as  in  the  Eng- 
lish Act)  giving  such  acknowledgment  the  effect  of  break- 
ing up  the  mortgage  into  portions,  the  acknowledgment 
must  still  be  wholly  ineffectual  in  the  absence  of  proof 
that  the  mortgagee  signing  tbe  acknowledgment  was 
acting  as  a  duly  authorized  agent  for  the  other  mortga- 
gees. This  rule  would,  however,  probably  be  held  only  to 
apply  in  the  case  of  a  single  mortgage  to  a  number  of  per- 
sons. As  pointed  out  by  Fitzpatrick,  J.,  in  Mussammat  Mortgagor  can 
Mah  Bibi  v.  Motan  Mai,  where  a  single  mortgage  is  really    knowiedgment 

*  j-i*  .  ..       T     „•«.         \    ifhehadmort- 

a  number  of  mortgages  of  different  properties  to  different   gaged  different 
persons  executed  in  the  same  deed,  the  transaction  will  be   different  per. 
treated  as  a  number  of  different  mortgages,  and  an  ac-   deed, 
knowiedgment  by  one  of  the  mortgagees  in  respect  of  the 
property  mortgaged  to  him  will  enable  the  mortgagor  to 
take  advantage  of  the  acknowledgment  for  the  purposes 
of  limitation  as  against  such  mortgagee.  M 


(!)  Bivaz's  Limitation  Act,  pp.  64—66. 


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192  PART  III.— COMPUTATION  OF  PERIOD  OF  LIMITATION.     [siC.  22 

Effect  of  sat**!-       22.     When,  after  the  institution  of  a  suit,  a 

toting  or  adding 

SJtendinuiffor  new  plaintiff  or  defendant  is  substituted  or 
added,  the  suit  shall,  as  regards  him,  be  deemed 
to  have  been  instituted  when  he  was  so  made  a 
party. 

proTi*>  where        Provided  that,  when  a  plaintiff  dies,  and  the 

original  plain-  #  m 

««•••  suit  is  continued  by  his  legal  representative,  it 

shall,  as  regards  him,  be  deemed  to  have  been 
instituted  when  it  was  instituted  by  the  deceas- 
ed plaintiff : 

provuo  where        Provided  also,  that,  when  a  defendant  dies, 

original  defend- 

"'^  and   the   suit   is   continued   against   his   legal 

representative,  it  shall,  as  regards  him,  be 
deemed  to  have  been  instituted  when  it  was 
instituted  against  the  deceased  defendant. 

(a)  This  section  refers  only  to  new  plaintiff  or  defen- 
dant being  substituted  or  added.  There  is  no  analogous 
provision  with  respect  to  appeals. 
Provisions  of  c.  Clause  5,  section  32  of  the  Code  of  Civil  Procedure, 
tag  parties.  which  provides  for  adding  parties  in  the  court  of  first 
instance,  runs  thus.  All  parties  whose  names  are  so 
added  as  defendants,  shall  be  served  with  a  summons  in 
manner  hereinafter  mentioned,  and  (subject  to  the  pro- 
visions of  the  Indian  Limitation  Act,  1877,  section  22)  the 
proceedings  as  against  them  shall  be  deemed  to  have 
begun  odIj  on  the  service  of  such  summons.  Section 
559  of  the  Code  providing  for  the  addition  of  respon- 
dents, makes  no  reference  to  section  22  of  the  Limitation 
Act.  The  amended  section  582  of  the  Code  of.  1882,  does 
not  make  the  terms  "  plaintiff"  and  "  defendant"  in  section 
32  include  "  appellant"  and  "  respondent." 
Appellate  (b)     In  Monickya  Moyee  v.  Boroda  Prasad  Mooker- 

tionary  power    jee,W  the  Lower  Court  discharged  the  original  martgagor 
par^todecree  from  liability  to  pay  interest.     In  the  appeal  preferred 

m  respondent 
under  section. 

(1)  I.  L.  R.,  9  Calc,  355. 


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SIC.  22]       PABT  III.— OOMPUTATIOM  OF  PIRIOD  OF  LUflTATION.  193 

without  making  him  a  party,  the  question  was  whether,  668  of  o.  p.  c. 

apart  from  the  discretion  vested  in  the  court  by  section  5  by  this  section. 

of  the  Limitation  Act,  the  court  had  power  to  make  him 

a  party  under  section  559  of  the  Civil  Procedure  Code, 

which  does  not  refer  to  this  section  as  section  32  of  the 

Civil  Procedure  Code  does.    It  was  held  that  section  559 

gives  full  power  to  make  the  mortgagor  a  respondent,  and 

that  the  discretion  conferred  by  that  section  is  not  limited 

by  any  provisions  in  the  Limitation  Act. 

(C)  In  the  Court  of  Wards  v.  Gaya  Prasad,")  two  de-  a.  h.  ai»o  held 
fendants  were  jointly  liable.  The  plaintiff,  by  Borne  care-  (January  187».) 
lessness,  appealed  against  the  first  defendant  only,  and  the 
2nd  defendant  was  made  respondent  after  the  appeal  time 
had  expired.  It  was  held,  that  section  22  of  the  Limita- 
tion Act  referring  to  "  suit,"  and  there  being  no  analogous 
provision  with  respect  to  appeals,  an  Appellate  Court  has 
a  discretionary  power  to  substitute  or  add  a  new  appellant 
or  respondent  after  the  period  of  limitation  prescribed  for 
an  appeal. 

(d)     8  sued  N  and  B  jointly  and  severally  for  certain  a.  h.  held  Ap. 

mi  ,#,.,..  «      j  *        peltate  Court  in- 

moneys.    The  courts  of  first  instance  gave  a  a  decree  for  competent  to 
such  moneys  against  N  and  dismissed  the  suit  against  B.  a  respondent 
N  appealed  from  the  decree  of  the  court  of  first  instance,  peal  time  and 
but  8  did  not  appeal  from  it.     The  Appellate  Court,  at  the  claim  by  the 
the  first  hearing  of  N*8  appeal,  made  B  a  respondent,  the  (Nor.  1879.) 
period  allowed  by  law  for  8  to  have  preferred  an  appeal 
having  then  expired,  and  eventually  reversed  the  decree 
of  the  court  of  first  instance,  dismissing  the  suit  as  against 
N  and  giving  8  a  decree  against  B.    It  was  held,  that 
although  the  Appellate  Court  was  competent  to  make  B 
a  party  to  the  appeal  under  sections  32  and  582  of  Act  X 
of  1877,  yet  it  was  not  competent,  with  reference  to  section 
U2  of  Act  XV  of  1877,  to  give  8  a  decree  against  B,  the 
former  not  having  appealed  from  the  decree  of  the  court 
of  first  instance  within  the  time  allowed  by  law.     Ranjit 
Singh  v.  Sheo  Prasad  Ram.<2> 

(1)  I.  L.  R.,  2  All.,  107. 

(2)  I.  L.  K.  2  All.,  487. 

25 


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194  PART  III.— -COMPUTATION  OF  PERIOD  OP  LIMITATION.      [SBC.  22 

A.  H.  held  sec-       (e)    In  Atmaram  v.   Balkishen,^)  it  was  held  that 
Odo<* not°emI  where  a  defendant,  having  an  nnappealed  decree  in  his 
fZ*Cwut*u>    favor,  is  not  interested  in  the  result  of  the  plaintiff's 
SpeuISS^K  appeal  against  a  co-defendant,  section  559  of  the  Code 
respoodMitt.118*  does  not  empower  the  court  to  add  him  as  a  respondent  to 
Unwary  law.)  the  appeal      gfcajght,  J.,  observes :  "  we  do  not  think  that 
section  559  of  the  Code  empowers  an  Appellate  Court 
virtually  to  make  an  appeal  for  an  appellant,  who  has 
refrained  from  availing  himself  of  his  privileges  under 
the  law,  by  introducing  for  him  other  respondents  than 
those  he  has  included  in  his  petition  of  appeal." 
Salt  against  (f)     In  Obhoy  Churn  Nundi  v.  Kritharthamoyi  Dos- 

ded  after  the  see,W  plaintiff,  after  instituting  the  suit  for  property 
rejected**  bar-  against  one  of  several  persons  in  possession  thereof,  added 
such  persons  as  defendants  after  the  period  of  limitation 
prescribed  for  a  separate  suit  on  the  same  cause  of  action 
against  them  had  elapsed.  It  was  held,  that  the  suit  as 
against  the  added  defendants  must  be  dismissed  as  barred. 
Abdul  Karim  v.  Manji  HansrajC)  was  a  suit  instituted 
before  the  1st  of  April,  1873,  and  subsequent  to  that  day 
B  was  made  a  co-defendant.  It  was  held  that  the  Law 
of  Limitation  applicable,  as  far  as  B  was  concerned,  was 
Act  IX  of  1871,  and  therefore  under  section  22  the  suit 
was  not  to  be  deemed  to  have  been  instituted  against  B 
till  the  day  on  which  he  was  made  a  party. 
Assignees  of  (g)     In   Suput  Singh   v.  Imrit  Tewari,<*)    after   the 

terest  after  suit  plaint  had  been  filed,  and  before  summons  to  the  def en- 
are  not  affected  dants  had  been  issued,  the  plaintiffs  assigned  their  in- 

by  this  section.  . 

terest  in  the  claim  to  certain  other  persons  who  were 
since  added  as  parties,  and  the  summons  and  other 
proceedings  were  issued  and  taken  in  their  names.  It 
was  held,  that  section  22  of  Act  XV  of  1877  does  not 
apply  to  a  case  in  which  the  person  to  whom  a  right 
of  suit  is  assigned  after  the  institution  of  the  suit  ob- 
tains leave  to  carry  on  the  suit.  The  court  observe :  "  in 
the  first  instance  the   original  plaintiffs  were  the  only 

(1)  I.  L.  R.,  5  AIL,  266.      I    (3)  I.  L.  R.,  1  Bom.,  295. 

(2)  I.  L.  R.,  7  Calo.  284.     |    (4)  I.  L.  R.,  5  Calc,  720. 


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8BC.  22]       PART  III.— COMPUTATION  OF  PERIOD  OP  LIMITATION.  195 

persons  who  could  institute  the  suit ;  and  when  they 
afterwards  assigned  their  interest,  it  was  perhaps  not 
necessary  for  the  persons  to  whom  they  assigned  it 
to  become  parties  at  all ;  but  if  they  did  so,  they  would 
only  continue  the  suit,  not  in  substitution,  but  in  con- 
junction with,  and  as  the  representatives  in  interest  of, 
tbe  original  plaintiffs ;  and  it  was  merely  a  mistake  in 
form  to  have  summoned  the  defendants  at  the  suit  of  the 
assignees." 

(h)     In  Fisher  v.  Pearse,^)  plaintiff  was  arrested  on  in  a  salt  for  da- 
the  27th  June,  1883,  by  a  bailiff  of  the  Small  Cause  Court  as  against  twa 

defendant* 

for  the  defendant's  decree,  dated  May,  1883.    The  plaintiff,  since  added  re- 

.  jeoted  as  barred, 

who  had  already  paid  the  amount  into  court,  having  been 

unable  to  produce  his  receipt  for  payment,  the  bailiff  re- 
fused to  release  him  until  payment  was  made.  The 
plaintiff  filed  his  suit  in  March,  1884,  against  the  1st 
defendant,  and  on  the  5th  of  July,  1884,  added  as  defen- 
dants the  Cashier  who  had  received  the  money  and  the 
Chief  Clerk  who  had  issued  a  certificate  of  non-satisfaction. 
It  was  held  that  the  suit  should  be  rejected  as  against  the 
1st  defendant  as  there  was  no  bad  faith,  fault  or  irregular- 
ity on  his  part,  and  that  the  suit  as  against  the  Cashier 
and  the  Clerk  was  barred  as  more  than  one  year  had 
elapsed  fi-om  the  date  of  the  termination  of  the  plaintiffs 
imprisonment. 

(i)     In  Manni  Kasaundhan  v.  Crooke,(*)  plaintiff,  after  Substitution  of 
filing  his  plaint,  and  three  months  after  the  accrual  of  the  President  for 
cause  of  action,  applied  to  substitute  the  name  of  the  retary  after 
President  for  that  of  the  Secretary.     It  was  held  that  by  ed  by  this  seo- 
reason  of  such  substitution,  the  suit  could  not  be  deemed 
to  have  been  instituted  against  such  committee  when  such 
substitution  was  made,  section  22  of  Act  XV  of  1877  ap- 
plying to  the  case  of  a  person  personally  made  a  party  to 
a  suit  and  not  to  the  case  of  a  committee  sued  in  the 
name  of  their  officer,  and  that  such  substitution  when 
applied  for  should  have  been  made. 

(1)  I.  L.  R.,  9  Bom.,  p.  1. 

(2)  I.  L.  R.,2  All,  296. 


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196  PART  III.— COMPUTATION  OP  PERIOD  OP  LIMITATION.       [8EC.  22 

Plaintiff  who  (j)     In  Ganpat  Fandurang  v.  Adarji  Dadabhai,*1)  plain- 

tnbseqtirat^00  tiff  as  assignee  of  an  equitable  mortgage  sued  for  foreclo- 
piaint  by  call-  sure,  and  was  subsequently  allowed  to  amend  his  plaint 
torney  for  the  and  sue  as  attorney  for  the  original  mortgagee.  It  was 
--,  knot  af-  contended  that  the  period  of  limitation  must  be  reckoned 


section.  back  from  the  date  of  the  amendment.     Sargent,  J.,  obser- 

Ilgl18^  ved :  "  but,  though,i  f  this  plaint  were  amended  by  altering 

the  description  of  the  plaintiff,  and  making  him  sue  as  the 
attorney  of  Pes  ton  ji  Dinsha,  there  might  nominally  be  a 
new  suit,  yet  virtually  it  would  still  be  the  same.     It 
would  still  be,  in  fact,  the  suit  of  this  plaintiff.     I  should 
be  of  opinion  that  no  new  plaintiff  had  been  introduced 
within  the  meaning  of  the  Limitation  Act." 
Substitution  of       (k)     In  Kavasji   Sorabji  v.  Barjorji,@)  a  plaint  was 
tative  of  do-D"    filed  before  the  expiration  of  the  period  of  limitation  un- 
after  the  sta-   der  Act  14  of  1859,  against  persons  whom  the  plaintiff 
tSSuo  bar  the  erroneously  supposed  to  be  representatives  of  his  deceased 
(March  1873.)      debtor.     After  the  expiration  of  the  period,  the  plaintiff 
obtained  leave  to  amend  his  plaint  by  substituting  the 
true  representatives  as  defendants.     It  was  held  that  the 
claim  was  barred.    The  principle  of  the  proviso  was,  under 
the  old  law,  applied  to  a  case  in  which  the  person  origi- 
nally named  as  defendant  was  dead  at  the  time  of  the 
institution  of  the  suit,  and  his  heirs  were  made  parties 
after  the  expiry  of  the  prescribed  period.     Sreekishen 
v.  Ramkristo".  <8> 
Suit  in  which       (1)     In  1864,  a  Hindu  widow,  having  a  minor  son,  sued, 
a2npiatotiff        in  her  own  name  and  on  her  own  behalf,   to   recover 
held  barred       certain  inmoveable  property.     The  action  was  brought  on 
filed  m  tSneWby  »  lease  which  expired  in  1854.     The  defendant  denied 
(Feb^im.)        the  lease,  and  contended  that  the  suit  should  be  dismissed, 
as  it  could  not  be  maintained  by  the  widow  in  her  own 
name.     In   1871,   the   son,   who   had   in   the   meantime 
attained  his  majority  in  1865,  was  made  a  co-plaintiff  on 
his  own  application.     It  was  held  that  the  suit  was  bar- 
red, inasmuch  as  it  must,  if  maintainable,  be  deemed  to 

(1)  I.  L.  R.,  3  Bom.,  312.     |     (2)  Bom.,  H.  C.  10,  p.  224. 
(3)  10  W.  B.,  317, 

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SEC.  22]       PABT  III.— COMPUTATION  OF  PERIOD  OP  LIMITATION.  197 

have  been  instituted  in  1871,  when  the  eon  was  made 
a  co-plaintiff,  the  plaint  previously  to  that  time  having 
been  in  the  widow's  own  name  and  expressly  on  her  own 
behalf.     Gopal  Kashi  v.  Ramabai  Saheb  Patvardhan.W 

(m)    In  Habibnllah  v.  Achaibar  Pandey,<2)  plaintiff,  on  Suit  against  one 
the  12th  of  April,  1880,  sued  one  of  two  joint- vendees  to  dees  Lt  pre-" 
enforce  a  right  of  pre-emption  in  respect  of  the  sale  of  a  notP  mSntatn- 
share  of  an  undivided  estate  under  a  sale-deed,  dated  12th   of  /the  other0" 
April,  1879.     The  joint-vendee  was  the  defendant's  minor 
brother,  who  was  brought  in  as  defendant  on  the  3rd  May, 
1880.     It  was  held  that,  inasmuch  as  the  suit  as  regards 
the  minor  was  beyond  time  and  as  the  only  relief  which 
could  be  granted  was  the  invalidation  of  the  joint-sale,  such 
suit,  even  admitting  that  it  was  within  time  as  regards 
the  adult  brother,  was  not  maintainable. 

(n)    In  Boydonath  Bag  v.  Grish  Chunder  Roy,W  two  of   „     0.  h. 

M  '       ,  ,  *     ^^,  ,  ^  :     .  ,.      Suit  by  two  of 

four  brothers  sued  for  enhanced  rent  due  to  their  undi-   four  brothers 

.,,  ,-x,i»i  f      i  •        •  a  i  for  rent  allowed 

vided   tenure.     On  the  defendants    objection,  the  other   «  claim  was 

.    ,    ,      ,  .       ,      indivisible. 

two  brothers,  after  the  statutory  period  had  expired,  (Junei877.) 
signified  by  a  petition  their  assent  to  the  suit.  It  was 
held  by  Markby,  J.,  that  although  the  rights  of  such  add- 
ed parties  were  absolutely  barred,  yet  the  court  could  pro- 
ceed to  adjudicate  upon  and  declare  the  rights  of  the  re- 
maining plaintiffs  who  had  originally  filed  the  suit,  and 
that,  as  the  claim  for  rent  was  indivisible,  the  decree  in 
their  favor  should  be  for  the  whole  amount. 

(O)  Dissenting  from  the  above  decision,  the  court  o.  h.  dissenting 
dismissed,  as  barred,  Bamsebuk  v.  Rami  all  Koondoo,(*)  ruling,  dismiss? 
in  which  two  of  the  sons,  out  of  a  joint  Mitakshara  family  as  one  nrt  main- 
consisting  of  a  father  and  three  sons,  and  the  widow  and 
sons  of  a  deceased  son,  and  carrying  on  business  in 
partnership,  sued  to  recover  money  due  on  a  hathchitta, 
dated  the  11th  December,  1876,  the  last  payment  made 
and  entered  by  the  defendant  being  on  the  20th  July, 
1877.  No  time  was  fixed  for  payment  of  the  money,  so 
that  it  became  payable  on  the  date  of  the  hathchitta.     The 


tainable. 


Si 


12  Bom.,  H.  0.,  17.      I      (3)  I.  L.  R.,  8  Calo.,  26. 
L.  R.,  4  All.,  146.      I      (4)  I.  L.  R.,  6  Calc,  815. 


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198  PART  III.— COMPUTATION  OP  PERIOD  OP  LIMITATION.       [8BC.  22 

suit  was  brought  on  the  19th  of  July,  1880,  and  on  the 
defendant's  plea  of  non -joinder,  and  on  the  application 
of  the  original  plaintiffs,  the  father  and  the  third  son 
were  added  as  plaintiffs  after  the  suit  was,  as  regards 
them,  barred  by  limitation.  It  was  held  that,  inasmuch 
as  the  original  plaintiffs  could  only  enforce  their  claim 
in  conjunction  with  the  added  plaintiffs,  the  added 
plaintiffs'  claim  was  barred  and  the  claim  of  the  original 
plaintiffs  was  also  barred.  "  In  England,  since  the  pass- 
ing of  the  Common  Law  Procedure  Act  of  1852,  the 
amendment  might  have  been  made,  if  the  court  thought 
proper,  so  as  to  protect  the  claim  of  the  plaintiffs  from  the 
limitation,  because,  after  the  amendment,  the  suit  would 
be  considered  as  having  been  commenced  by  all  the 
plaintiffs  at  the  time  when  it  was  first  instituted.  If  the 
court  had  reason  to  believe  that  all  the  plaintiffs  had  not 
been  joined  for  some  improper  motive  the  amendment 
would  be  refused,  bnt  if  it  considered  that  the  non-joinder 
was  a  bond  fide  mistake,  the  amendment  would  be  made 
for  the  express  purpose  of  protecting  the  plaintiffs'  rights, 
and  of  preventing  the  Limitation  Act  from  working  in- 
justice. See  Lakin  v.  Watson  (2  Cr.  &  M.,  685),  Brown 
v.  Fullerton  (13  M.  <fc  W.,  556),  and  cases  there  cited  at 
p.,  556  of  the  report.  But  the  policy  of  the  Legislature 
in  this  country  has  been  to  make  the  Law  of  Limitation 
much  more  strict  than  in  England,  and  to  take  away, 
as  far  as  possible,  any  discretion  from  the  courts  to  modi- 
fy its  strictness.  The  provisions  of  section  22  of  the 
Limitation  Act  seem  to  have  been  passed  with  the  avowed 
object  of  preventing  such  amendments  being  made  in 
such  a  way  as  to  relieve  the  plaintiffs  from  limitation ; 
and  the  effect  of  those  provisions  in  such  a  case  as  the 
present  is  to  render  the  amendment  virtually  useless 
to  the  original  plaintiffs." 
B.  h.  following  (p)  In  Kalidas  Kevaldas  v.  Nathu  Bhagvan/1)  plain- 
ing dieted  a  tiff,  who  was  one  of  four  brothers  composing  a  joint 
four  DTotberg0    Hindu  family,  sued  in  his  own  sole  name  to  recover  a 

for  money  due 
to  their  father. 
(Feb.  1881)  (1)  I.  L.  RM  1  Bom.,  217. 


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81C.  23]       PART  III. — COMPTJTATIOX  O?  PERIOD  OT  LIMITATION.  199 

joint-debt  due  to  their  deceased  father.  On  the  plea  of 
non- joinder,  the  three  brothers,  when  as  regards  them 
the  debt  became  time-barred,  represented  to  the  court 
that  their  father,  before  his  death,  gave  the  debt  to  the 
plaintiff.  It  was  held  upon  a  review  of  the  decisions 
of  the  High  Courts  of  Calcutta  and  Allahabad,  that  such 
assent  did  not  obviate  the  necessity  of  joining  all  the 
proper  parties  as  co-plaintiffs,  and  that  the  suit  therefore 
as  framed  would  not  lie.  Sarjent,  C.  J.,  observes,  whether 
this  section  "  should  not  be  amended  to  meet  the  case  of 
joint-contractees  is  worthy  of  consideration." 

(q)     Dular  Chand  v.  Balram  Das/1)  was  brought  by  A.  H.  in  appeal 
one  of  five  partners  of  a  firm  in  his  own  name  on  a  com-  non-joinder  a 
mon  cause  of  action.     On  the  defendant's  objection  to  the  five  partner*. 
non- joinder  of  the  other  partners,  the  plaintiff,  on  behalf 
of  the  other  partners,  signified  their  assent  to  the  suit,  and 
the    Lower  Court,  deciding  this  issue  in  favor  of  the 
plaintiff,  rejected  the  suit  on  other  grounds.     The  ap- 
pellant prayed  that  the  other  partners  may  be  made  par- 
ties.    The  court  rejected  the  suit  on  the  preliminary 
ground  that  all  the  necessary  parties  were  not  joined 
as  plaintiffs. 

§  23.     In  the  case  of  a  continuing  breach  of  continuing 

°  breaches   and 

contract  and  in  the  case  of  a  continuing  wrong  wron«8- 
independent  of  contract,  a  fresh  period  of  limi- 
tation begins  to  run  at  every  moment  of  the 
time  during  which  the  breach  or  the  wrong,  as 
the  case  may  be,  continues. 

(a)  This  section  differs  from  sections  23  and  24- A, 
Act  IX  of  1871,  the  provisions  of  which  relating  to  "  suc- 
cessive breaches  of  contract",  and  "  continuing  nuisance*' 
have  been  omitted.  The  Act  of  1877  extends  to  any 
"  continuing  wrong  independent  of  contract"  and  to  "  con- 
tinuing breach  of  contract." 

(b)  The  purchasers  of  certain  land  agreed  to  pay  the  Non-payment 
Tendon  certain  fees  annually  in  respect  of  such  land,  and  nnder  &  sale 

*  r  deed  ia  not  "a 

continuing 
(1)  I.  L.  R.,  1  All.,  468.  breach." 


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200 


PABT  in.— COMPUTATION  OF  PIBIOD  OF  LIMITATION.       [SEC.  28 


Obstructing  the 
flow  of  rain- 
water through 
a  gutter  consti- 
tutes a  continu- 
ing noisance. 


Seizure  of  a  well 
is   trespass   on 
real  property 
continuing   as 
such   till  tres- 
passer's  pos- 
session conies 
to  an  end. 


that,  in  default  of  payment,  the  vendors  should  be  entitled 
to  the  proprietary  possession  of  a  certain  quantity  of  such 
land.  The  purchasers  never  paid  such  fees,  and  more 
than  12  years  after  the  1st  default  the  vendors  sued 
them  for  possession  of  such  quantity  of  such  land.  It  was 
held  that  there  had  not  been  a  "  continuing  breach  of  con* 
tract"  within  the  meaning  of  section  23  of  Act  XV  of 
1877,  and  that  therefore  the  provisions  of  that  section  were 
not  applicable  to  the  suit,  and  further,  that  the  suit  being 
governed  by  No.  143,  schedule  2  of  Act  XV  of  1877,  and 
more  than  twelve  years  having  expired  from  the  first 
breach  of  such  agreement,  was  barred  by  limitation. 
Bhojraj  t?.  Gulshan  Ali.^ 

(C)  In  Punja  Kuvarji  v.  Bai  Kuvar,W  plaintiffs  enjoyed 
the  right  of  having  an  egress  for  his  rainwater  through 
a  drain  in  the  defendant's  land  from  time  immemorial,  and 
for  more  than  twenty  years  prior  to  the  date  of  the  ob- 
struction by  the  defendants.  The  plaintiff  more  than 
two  years  after  the  date  of  the  obstruction  sued  the  de- 
fendants for  its  removal.  It  was  held  that  the  obstruc- 
tion complained  of  constituted  a  continuing  nuisance,  and 
that  as  cause  of  action  as  to  it  was  renewed,  de  die  in  diem, 
the  plaintiffs  claim  was  saved  by  the  express  provision 
of  this  section. 

(d)  Iu  Narasimma  v.  Ragupathi/8)  plaintiff  sued  on 
the  9th  of  February,  1880,  for  compensation  for  loss  of 
crops  caused  by  the  defendants  taking  possession  of  his 
well  in  January,  1877.  The  District  Judge  on  appeal  dis- 
missed the  suit  on  the  ground  that  time  began  to  run 
against  the  plaintiff  from  January,  1877.  The  court 
observe :  "  as  to  damages,  the  seizure  of  the  well  was  a  treat 
pass  on  immoveable  property,  and  it  continued  to  be  a  tres- 
pass until  .the  possession  of  the  trespasser  came  to  an  end; 
the  limitation  for  suits  for  compensation  in  such  a  case  is 
three  years,  and  for  any  damage  which  accrued  within 
three  years  before  9th  February,  1880,  the  date  on  which 


(1)  I.  L.  R.,  4  All.,  493.     |      (2)  I.  L.  R.,  6  Bom.,  20. 
(a)  I.  L.  R.,  6  Mad.,  176. 


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8SC.  23]     PART  III.— COMPUTATION  OF  PERIOD  OF  LIMITATION.  201 

the  suit  was  brought,  the  respondents  would  be  liable."  Opening  a 
In  a  suit  in  which  plaintiff  claimed  to  have  a  drain  closed  tiff's  land? 
on  the  ground  that  it  passed  through  his  land,  it  was  held, 
that  each  act  of  trespass  on  the  plaintiff's  land  would  con- 
stitute a  fresh  cause  of  action,  and  the  plaintiff  would  be 
competent  to  rely  upon  the  last  act  of  trespass  as  consti- 
tuting a  cause  of  action  unless  the  defendant  had  acquired 
an  indefeasible  right  of  easement  by  user.    Ramphul  Sahoo 
v.  Misree  LalM1)    In  Jogal  Kishore  v.  Mulchand,**)  it  was  if  injury  accrue 
held,  that  at  any  time  within  twenty  years,  should  injury  within7*)  yean 
accrue  from  the  recurring  use  of  an  easement  to  the  owner  u^of  an  ease- 
of  the  servient  tenement,  a  new  cause  of  action  arises  to  the  cause  of  action 
owner  of  the  servient  tenement,  which  he  may  put  in  suit 
within  twelve  years  from  its  accrual. 

(e)     In  Ponnusawmi  Tevar  v.  The  Collector  of  Madu-  Diversion  of 
ra,<8)  the  plaintiff  sued  to  establish  his  right  to  an  unin-   tinning  injury 
terrupted  flow  of  water  through  a  channel  which  ran  into  tution  of  the 
a  tank  in  a  village  which  was  the  plaintiff's  property,  and 
to  compel  the  removal  of  sluices  erected  across  the  said 
channel  by  the  1st  defendant's  predecessor  in  office,  and 
used  for  the  purpose  of  diverting  the  flow  of  the  water. 
It  was  held,  that  the  diversion  of  the  water  was  a  continu- 
ing injury  down  to  the  time  of  the  institution  of  the  suit, 
and  that  the  plaintiff's  suit  was  not  barred.    In  Sri  Vis-  interference 
wambhara  v.  Sri  Saradhi  Oharana/*)  plaintiff  sued  to  rights  the  flow 
recover  damages  for  loss  caused  during  1862,  1863,  and  canal.        m 
1864,  by  defendant's  interference  with  plaintiff's  right  to 
the  flow  of  water  from  a  canal.     The  court  observe  "  for  an 
obstruction  to  a  right  to  water,  plaintiff  would  be  entitled 
to  at  least  nominal  damages ;  but  an  obstruction,  such  as 
that  alleged  in  the  present  suit,  *ould  be  a  continuing  in- 
jury giving  rise  to  a  fresh  cause  of  action  as  fresh  damage 
resulted  from  it."    In  Subramaniya  Ayyer  v.  Bamachan-  interference 
dra  Bau,(6>  plaintiff  complained  of  defendant's  interfer-  have  drainage 

•j*    i  •        .   •■  i    ,     «■  ji.      a      •  x      ^_        i_-      watertoflowoff 

ence  with  his  right  to  have  the  drainage  water  from  his  in  the  usual 
land  to  flBw  off  in  the  usual  course.    It  was  held  that  the 

(1)  24  W.  B.,  97.  I  (3)  6  M.  H.  0.  R.,  6. 

(2)  7  N.-W.  P.,  H.  C.  R.,  298.  |  (4)  8  M.  H.  C.  R.,  111. 

(6)  I.  L.  R.,  1  Mad.,  385. 

26 


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202  FART  III.— COMPUTATION  OF  PERIOD  OF  LIMITATION.      [SIC.  23 

defendant's  act  was  actionable  whether  special  damage  had 
or  had  not  accrued,  and  that  so  long  as  the  obstruction 
was  continued,  there  was  a  continual  cause  of  action  from 
day  to  day. 
p.  c.  held  that       (f)    Rajrnp  Koer  v.  Abul  Hossein/1)  was  a  suit  for  the 
the  flow  of        removal  of  obstruction  to  the  flow  of  water  along  an  arti- 
anificiai  water-  ficial  water  course  on  the  defendant's  land.     Less  than  20 
fendant'a  land  years  before  the  suit  the  defendants  had  obstructed  the 
act.  flow  of  water  in  several  places.    The  Lower  Courts  differed 

as  to  whether  some  of  the  obstructions  had  not  been  made 
more  than  two  years  before  the  suit.  It  was  held  that  such 
obstructions  being  continuous  acts  as  to  which  the  cause 
of  action  accrued  de  die  in  diem,  Act  IX  of  1871,  schedule 
2,  part  Y,  clause  31,  fixing  two  years  from  the  date  of  the 
obstruction  as  the  period  of  limitation  for  obstructing  a 
water  course,  did  not  preclude  a  suit  complaining  of  ob- 
structions though  made  more  than  two  years  preceding 
the  date  of  the  commencement  of  the  suit, 
Oase  where  (g)     In  Imdad  Ali  v.  Nijabad  Ali,W  proprietor  of  two 

agreement  was  houses  died,  leaving  a  widow  and  a  nephew.  On  the  18th 
£&db^°h.tina"  Jllly,  1875> the  widow  sold  one  of  the  houses  for  Rupees  300, 
but  was  unable  to  give  possession  as  the  nephew  held  pos- 
session of  both  the  houses.  On  the  16th  September,  1875, 
the  widow  sued  the  nephew  for  her  dower  and  for  the 
houses,  and  on  the  9th  December,  1875,  they  both  entered 
into  a  compromise  by  which  the  nephew  was  to  take  for 
his  share  the  house  sold  by  the  widow,  while  she  agreed 
to  take  the  other  house  for  her  share  and  dower.  The 
widow  further  agreed  to  refund  to  her  vendor  the  Rupees 
800  she  had  received  for  the  house.  The  widow  died 
without  refunding  the  purchase-money,  and  on  the  23rd 
July,  1878,  the  vendee  sued  the  nephew  for  possession 
of  the  house  sold,  but  obtained  a  decree  only  for  a  fourth- 
share  and  took  possession  thereof  in  July,  1888.  The 
nephew  died,  and  his  heirs  brought  the  suit  against  the 
heirs  of  the  widow  for  Rupees  75,  value  of  tfie  \  share 
decreed  to  the  vendee.     The  Lower  Court  rejected  the  suit 

(1)  I.  L.  R.,  6  C*lo.,  894.    |      (2)  I.  L.  R.,  6  All.,  467. 

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8SC.  23]      PART  III.— COMPUTATION  OF  PERIOD  OF  LIMITATION.  203 

as  barred  by  Article  115.  It  was  held  tbat  such  breach 
of  the  agreement  was  a  continuing  breach  and  had  not 
even  yet  ceased,  and  that  the  suit  was  not  barred  by 
Article  115. 

(h)     Bajubalu  v.  Krishnarav,^)  was  a  suit  brought  in  Breach  of  om- 
1872,  for  damages  for  breach  of  the  covenants  for  title  possessions  a 
contained  in  a  deed  dated  July,  1865.     It  was  held  that  breach. 
the  breach  of  the  grantor's  covenant,  so  far  as  related  to 
his  present  right  to  convey,  took  place  on  the  day  the  con- 
veyance to  the  covenantee  was  executed,  vi*.,  15th  July, 
1865,  and  consequently  a  suit  in  respect  of  such  breach 
was  barred ;  but  tbe  covenant  for  quiet  possession  admit- 
ting of  a  continuing  breach  was  not  barred  so  long  as  the 
breach  continued,  and  that  of  the  covenant  for  further 
assurance,  there  had  been  no  breach  at  all,  as  such  cove- 
nant would  be  broken  only  by  refusal  on  the  part  of  the 
covenantor  or  his  representatives  to  execute  a  further 
assurance  when  required  so  to  do  by  the  covenantee  or 
his  representatives. 

(i)     In  a  suit  between  Mahomedans,  when  a  husband  a  wife  with- 
claims  as  against  his  wife,  restitution  of  conjugal  rights,  from  her  has- 
the  relation  of  husband  and  wife  still  subsisting,  it  was  tinning  breach 
held  that  the  withholding  of  herself  from  her  husband 
by  the  wife  is  a  continuing  breach  of  contract  within  the 
meaning  of  this  section.     Ghizni  v.  Mussammat  Mehran 
(Punj.  Bee.,  No.  60  of  1879). <*> 

(j  )     False  imprisonment  is  a  continuing  cause  of  action,  English  case, 
or  rather  a  fresh  cause  of  action  arises  f rom  day  to  day  as  ment  STa  con" 
long  as  the  imprisonment  continues ;  hence,  if  the  imprison-  ofacSon?*11*8 
ment  began  more  than  four  years  before  action,  but  con- 
tinued to  a  time  within  the  four  years,  the  defendant  may 
divide  the  time  and  plead  the  statute  to  so  much  of  the 
imprisonment  as  took  place  more  than  four  years  from 
the  time  of  action  brought.     Coventry  v.  Apsley,  2  Salk 
420.     See  Massey  v.  Johnson,  12  East,  67.<8>  Article  19  of  see  Article  i» 
the  Limitation  Act  provides  that  for  a  suit  for  compensa-  the  Indian  Act. 

(1)  I.  L.  R.,  2  Bom.,  273.         |  (2)  Rivaz'g  Limitation  Act,  p.  68. 
(3)  Darby  and  Bosanqnet,  p.  30. 


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204  PART  III. — COMPUTATION  OF  PERIOD  OF  LIMITATION.     [8SC.  23 

tion  for  false  imprisonment,  time  runs  from  the  termi- 
nation of  the  imprisonment. 
Although  a  (k)    In  Whitehouse  v.  Fellowes,*1)  the  trustees  of  a  turn- 

recovered0  da08  pike-road  converted  an  open  ditch,  which  used  to  carry  off 
sue^for^fresh  the  water  from  the  road,  into  a  covered  drain,  placing 
tresh^damajre  catchpits  with  gratings  thereon  to  enable  the  water  to 
ance  °o?  the"  enter  the  drain.  Owing  to  the  insufficiency  of  such  grat- 
wfajdh  caused  it  ings  and  catchpits,  the  water,  in  very  wet  Seasons,  instead 
tute  a  new  cause  of  running  down  the  ditch  as  it  formerly  did  before  the 
m  °n*  alterations  by  the  trustees,  overflowed  the  road,  and  made 

its  way  into  the  adjoining  land  and  injured  the  colliery  of 
the  plaintiffs.  It  was  held,  that  the  trustees  were  liable 
for  such  injury,  if  they  were  guilty  of  negligence  in  i 


This  in  a  case  pect  of  such  gratings  and  catchpits.    It  was  further  held, 

of  continuing      * 

injury  and  not  that    a  fresh  damage  to  the   plaintiff  8  colliery  ooca- 

continuing  da-  ,  . 

mage.  sioned  by  the  trustees  continuing  such  insufficient  gratings 

and  catchpits  was  a  distinct  cause  of  action ;  and  that, 
therefore,  an  action  brought  in  respect  of  it,  within  three 
months  from  the  time  of  such  fresh  damage,  although 
after  more  than  three  months  from  the  first  damage,  was 
not  defeated  by  the  General  Turnpike  Act  3,  Geo.  4,  C. 
126,  S.  147,  which  limits  the  action  against  such  trustees 

Observations  of  to  three  months  after  the  fact  committed.  Williams,  J., 
observes,  "  I  am  of  opinion  that  the  continuance  of  the  tort 
on  the  highway,  if  accompanied  by  fresh  damage  to  the 
plaintiff,  constitutes  a  fresh  cause  of  action,  and  that  an 
action  may  be  commenced  in  respect  of  it  within  three 

in  the  case  of  months  from  the  time  such  fresh  damage  occurred.    There 

mage  fresh  da-  is  no  doubt  that  a  fresh  damage  does  not  give  a  cause  of 

macro   does  not  —  «__ 

give  a  new  action.     The  authority  for  that  is  the  case  of  Fetter  v. 

cause  ©       on.  geaje  ^  Qai]^  n)  where  the  defendant  had  beaten  the 

Plaintiff  in  one  plaintiff's  head  against  the  ground,  and  the  plaintiff 

covering  da-  brought  an  action  for  assault  and  battery,  and  recovered. 

mage  for  assault  °  * 

sued  again  for  Afterwards  it  appeared  that  a  piece  of  the  plaintiff's  skull 
piece  of  Ms  skull  came  out,  and  that  the  injury  was  greater  than  was  first 

supposed,  and  he  accordingly  brought  a  second  action. 

The  defendant  pleaded  the  recovery  in  the  former  action, 


(1)  80  L.  J.  0.  P.,  p.  306. 


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205 


and  averred  it  to  be  for  the  same  assault  and  battery.  To 
this  there  was  a  demurrer,  and  it  was  urged  for  the  plain- 
tiff that  the  subsequent  damage  was  a  new  matter  which 
could  not  be  given  in  evidence  on  the  first  recovery,  and 
he  compared  it  to  the  case  of  a  nuisance  where  every  new 
dropping  is  a  new  act ;  but  Holt,  C.  J.,  said  '  every  new 
dropping  is  a  new  nuisance,  but  here  is  not  a  new  battery, 
and  in  trespass,  the  grievousness  or  consequence  of  the 
battery  is  not  the  ground  of  the  action,  but  the  measure  of 
the  damage  which  the  jury  must  be  supposed  to  have 
considered  at  the  trial.'  Now,  in  the  present  case,  sup- 
pose an  action  to  have  been  brought  after  the  first  flow  of 
water  in  consequence  of  negligence  by  the  trustees  in  the 
way  they  kept  the  catchpits.  When  that  cause  came  to 
be  tried,  the  question  would  be  the  amount  of  damages 
the  plaintiff  would  be  entitled  to  recover.  It  would  surely 
have  been  a  monstrous  thing  to  have  presumed  that  the 
trustees  meant  to  persevere  in  keeping  the  catchpits  in 
that  state,  and  to  have  argued  that  the  plaintiff  ought  to 
recover  damages  calculated  on  the  presumption  that  the 
trustees  would  continue  the  wrong.  All  that  injury  could 
have  done  would  have  been  to  have  found  the  amount  of 
damage  the  plaintiff  had  sustained  up  to  the  time  when 
the  action  was  brought ;  and  if  the  defendant  should  not 
have  discontinued  the  nuisance,  that  might  have  been  the 
subject  of  a  fresh  action.  The  assumption  on  which  the 
present  action  is  founded  is,  that  the  plaintiff  has  been 
again  damaged  by  reason  of  the  defendant's  continued 
neglect  of  duty.  Can  it  be  said  that  it  was  intended  by 
the  Legislature  that  the  plaintiff  should  have  no  remedy 
for  this  subsequent  damage  ?  The  true  answer,  I  think, 
is,  that  although  a  party  should  not  be  allowed  to  bring 
a  fresh  action  merely  because  there  has  been  a  fresh 
damage,  yet  when  there  has  been  not  only  a  fresh  damage, 
but  a  continuance  of  the  wrongful  act  which  caused  it, 
that  is  a  new  cause  of  action  in  respect  of  which  the  party 
may  bring  his  action." 

(1)     Where  the  defendant  had  been  exercising  a  right 
of  fishing  in  certain  water  adversely  to  the  plaintiff  for 


Plaintiff   com- 
pared his   case 
to  the  case  of  a 
nuisance  where 
every  new 
dropping  is  a 
new  act. 

Holt,  C.  J.,  said 
every  new 
dropping  is  a 
new  nuisance 
but  in  this  case 
there  is  not  a 
new  battery. 


The  assumption 
on  which  the 

E resent  action 
i  founded  is 
that  plaintiff 
has  been  da- 
maged again  by 
defendant's 
continued  neg- 
lect of  duty. 


Section  23  can- 
not operate  to 
prevent  the  pos- 


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206  FART  III. COMPUTATION  OF  PERIOD  OF  LIMITATION.       [SBC.  24 

session  of  a  tres-  more  than  12  years,  it  was  held  that  a  suit  bj  the 
£uL8hTngXowTi-  plaintiff  for  a  declaration  that  he  was  entitled  to  the  ex- 
•ertion  28?°  er  elusive  right  of  fishing  in  such  water  was  barred  by  limi- 
tation. Parbutty  Nath  Roy  Chowdhry  v.  Mndho  Paroe.W 
So  where  the  plaintiff  claimed  aright  to  a  turn  of  worship 
of  an  idol,  it  was  held  that  the  cause  of  action  did  not 
recur  as  the  term  of  worship  came  round,  but  that  be  must 
sue  within  the  period  of  six  years  computed  from  his  dis- 
possession. Gour  Mohan  Chowdry  v.  M.  Mohan  Chow- 
dry.  (*) 

suit  for  com.        24.     In  the  case  of  a  suit  for  compensation 

pensation   for  .  . 

Sbie^ith^ut11   f°r  an  ac*  which  does  not  give  rise  ,to  a  cause 
gpociaidamage.  Q^  BtC^on  uniess  some  specific  injury  actually 

results  therefrom,  the  period  of  limitation  shall 
be  computed  from  the  time  when  the  injury 
results. 

Illustrations. 

(a.) — A  owns  the  surface  of  a  field.  B  owns  the  sab-soil.  B  digs 
coal  thereout  without  causing  any  immediate  apparent  injury  to  the 
surface,  but  at  last  the  surface  subsides.  The  period  of  limitation 
iu  the  case  of  a  suit  by  A  against  B  runs  from  the  time  of  the 
subsidence. 

(6.) — A  speaks  and  publishes  of  B  slanderous  words  not  action- 
able in  themselves  without  special  damage  caused  thereby.  C  in 
consequence  refuses  to  employ  B  as  his  clerk.  The  period  of  limi- 
tation in  the  case  of  a  suit  by  B  against  A  for  compensation  for  the 
slander  does  not  commence  till  the  refusal. 

When  injury  is        (a)     "  Although  time  commences  usually  to  run  in  a 

complete  at  the  . 

time  of  the  act,    defendant's  favour  from  the  time  of  his  wrong-doing,  and 

limitation  com*  ,  . 

menoes  then,      not  from  the  time  of  the  occurrence  to  the  plaintiff  of  any 

When  the  act  is  .    ,     _  .     .  f        ,  ,       - 

not  legaUv  in-  consequential  damage,  yet  it  is  necessary  for  the  truth  of 

mage  occurs      this  proposition  that  the  wrong- doing  should  be  one  for 

damage.  which  nominal  damages  might  he  immediately  recovered. 

Not  every  breach  of  duty  creates  an  individual  right  of 

action,  and  a  distinction  something  similar  to  that  which 

has  been  drawn  by  moralists  between  duties  of  perfect 

(1)  I.  L.  R.,  3  Oalc,  276.      |  (2)  6  B.  L.  R.,  962. 

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SIC.  24]       PAST  ID. — COMPUTATION  OP  PERIOD  OF  LIMITATION.  207 

and  imperfect  obligation  may  be  observed  in  duties  arising 
from  the  law.  In  this  way,  a  breach  of  public  duty  will 
not  inflict  any  direct  immediate  wrong  on  an  individual ; 
and  neither  his  right  to  a  remedy,  nor  his  liability  to  be 
precluded  by  time  from  its  prosecution,  will  commence 
till  he  has  suffered  some  actual  inconvenience ;  while  it 
is  otherwise,  as  has  been  noticed,  where  there  is  a  private 
relation  between  the  parties,  where  the  wrong-doing  of 
one  at  once  creates  a  right  of  action  in  the  other.  In  fact, 
when  the  injury,  however  slight,  is  complete  at  the  time 
of  the  act,  the  statutory  period  then  commences,  but 
when  the  act  is  not  legally  injurious  until  certain  conse- 
quences occur,  the  time  commences  to  run  from  the  conse- 
quential damage."*1) 

(b)     In  Bonomi  v.  Backhcfuse,*2)  plaintiffs  were  owners  Excavating 

of  an  ancient  house.     The  defendant,  for  more  than  six  and  working 

years   before  the  commencement  of  the  action,  worked  not  in  them- 

some  coal  mines,  280  yards  distance  from  the  house.     No  acta. 

actual  damage  accrued  until  within  the  six  years.     The  ensue©  to  tie 

question  was  whether  the  cause  of  action  accrued  within  cause  of  action 

the  six  years.     The  majority  of  the    Court  of  Queen's  him  only  then. 

Bench  thought  it  did  not.     Willes,  J.,  observes  "  we  are  not  Observations  of 

.  .  Willes,  J. 

insensible  to  the  consideration,  that  the  holding  damage 

to  be  essential  to  the  cause  of  action  may  extend  the  time 
during  which  persons  working  minerals  and  making  ex- 
cavations may  be  made  responsible.  But  we  think  that 
the  right  which  a  man  has,  is  to  enjoy  his  own  lands  in 
the  state  and  condition  in  which  nature  has  placed  it,  and 
also  to  use  it  in  such  a  manner  as  he  thinks  fit ;  subject 
always  to  this,  that  if  his  mode  of  using  it  does  damage 
to  his  neighbour,  he  must  make  compensation.  Applying 
these  two  principles  to  the  present  case,  we  think  that  no 
cause  of  action  accrued  for  the  mere  excavation  by  the  No  cause  of  ao- 
defendant  in  his  own  land,  so  long  as  it  caused  no  damage  mere  excava- 
to  the  plaintiffs  ;  and  that  cause  of  action  did  accrue  when 
the  actual  damage  first  occured." 

(1)  Banning,  p.  271. 

(2)  28  L.  J.  Q.  B.,  378. 


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208  PART  III.— COMPUTATION  OP  PERIOD  OF  LIMITATION.     [SEC.  24 

inmanyinstan-       (c)     "  We  should  be  unwilling  to  rest  our  judgment 
S*  S^o^ie  upon  mere  grounds  of  policy ;  but  we  cannot  but  observe 
S°£S££fd£  that  a   rule  of  law,  or  rather  the  construction   of   a 
SS^nSfuX  statute  of  Limitations   which  would  deprive  a  man  of 
SES^T  redress  after  the  expiration  of  six  years,  when  the  act 
SS^ttaiSt  causing  the  damage  was  unknown  to  him— when,  in  very 
Hm^eSavat  many  instances,  he  would  be  in  invincible  ignorance  of  it— 
S!S£,Wwhtf£o?"  would  be  harsh,  and  contrary  to  ordinary  principles  of  law." 
£TO£jS£  With  reference  to  the  defendant's  contention  that  the 
deride  u£ol  *°  action  must  be  brought  within  six  years  after  the  excava- 
SSSS?*1™  **"  tion  whether  any  actual  damage  has  occurred  or  not,  the 
same  Judge  observed,  "  The  Jury,  according  to  this  view, 
would  have  therefore  to  decide  upon  the  speculative  ques- 
tion, whether  any  damage  was  likely  to  arise;   and  it 
might  well  be,  that  in  manp  cases  they  would,  upon  the 
inconvenience     evidence  of  mineral   surveyors   and  engineers,  find  no 
npon^JSuia-    damage  was  likely  to  occur,  when  the  most  serious  injury 
tive  damage.      afterwards  might,  in  fact,  occur ;  and  in  others,  find  and 
give  large  sums  of  money  for  apprehended  damage,  which, 
in  point  of  fact,  never  might  arise." 
inaintaeonent       (d)     I*  lamb  v.  Walker/1)  which  was  an  action  for 
oTjudg^l  beS  injury  to  the  plaintiffs  land  and  buildings,  by  removal  of 
twe  ££age°"     lateral  support  through  mining  operations  carried  on  by 
was^  recover-      ^e  defendant  on  his  own  land  adjoining,  it  was  found 
by  a  referee  to  whom  the  amount  of  damage  was  referred, 
that,  in  addition  to  existing  damage,  there  would  be  future 
damage  to  the  extent  of    £150.    It  was  held  by  the 
majority  of  Judges,  (Cockburn,  0.  J.,  dissenting),  that 
such  damage  was  recoverable  in  the  action. 
Observations  of       Manisty,  J.,  observes :  "  It  is  a  well-settled  rule  of  law 
Mani8ty'  J*        that  damages  resulting  from  one  and  the  same  cause  of 
Damages  re-      action  must  be  assessed  and  recovered  once  for  all.    And 
o^oMse'ofao-  it  seems  to  me,  that  in  the  present  case  there  is  but  one 
oovereT'onoe0'  and"  the  same  cause  of  action,  namely,  that  which  I  have 
te  •"•  already  mentioned." 

it  may  be  said       "  It  may   be    said    that  it    would    be  more  just  and 
SfJ^yw-  equitable  in  a  case  like  the  present  that  the  plaintiff  should 


cover  actual 

damage  np  to 

^^  (1)  3Q.B.D.,p.896. 


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8BC.  24]      PART  III. — COMPUTATION  OP  PERIOD  OP  LIMITATION.  209 

only  be  entitled  to  recover  the  amount  of  damage  actually  the  date  of  fate 
done  to  his  property  up  to  the  time  of  bringing  his  action,  subsequent  da- 
leaving  him  to  recover  subsequent  damage,  if  any,  by  a  ier^of^ubse- 
subsequent  action,  or,  if  need  be,  by  a  series  of  subsequent  q       *°    *** 
actions.     The  same  might  have  been  said  in  many  cases 
in  which,  however,  the  contrary  principle  has  for  a  very  The  contrary 
long  time  been,  and  as  I  think  wisely,  acted  upon.     Take,  been  for  a  long 
for  instance,   the  case   of   the   wrongful  obstruction  of  in  many  cases; 
light  by  means  of  the  erection  of  a  new  building  lawful  in  the  case  of 
in  itself.     In  that  case  it  might  be  said  the  plaintiff  ought  light  by  a  new 
only  to  be  allowed  to  recover  the  damage  sustained  up  to 
the   time  of  the  commencement  of  his  action,  because,  . 
possibly,  the  obstruction  may  be  removed,  and  therefore  it 
would  be  unjust  to  permit  the  plaintiff  to  recover  pros- 
pective damage  unless  and  until  it  is  actually  incurred." 

"  If  that  principle  were  adopted,  one  consequence  would  if  plaintiff  can 

be  that  the  Statute  of  Limitations    would   cease  to  be  tuaftomw  up 

operative'.     A  plaintiff  might  lie  by  until  after  the  ex-  bis  action,  the 

.      ,.  -      .  .,,        ,    ,    .  ,.  ,    Statute  of  Limi- 

piration  of  six  years,  without  bringing  any  action,  and  tations  would 

then  not  only  bring  an  action  for  the  damage  sustained  ratire; 

during  the  period  of  six  years  next  before  action  brought, 

but  he  would  be  entitled  to  bring  a  series  of  subsequent 

actions  for  the  damage  subsequently   accruing.     Again,  in  the  case  of 

.    ,       ,  .        /,  /  ,  -  .   ,    slander  it  would 

take  the  case  of  slander  actionable  only  by  reason  of  special  not  be  sumest- 
damage.     The  speaking  of  the  defamatory  word  is  dam-  could  only  re- 
num  absque  injuria,  and  consequently  not  actionable  with-  mage  up  to  the 
out  special  damage,  just  as  the  removal  of  the  necessary  uon,  and  again 
support  in  the  present  case  was  damnum  absque  injuria,  quent  damage ; 
and  not  actionable  until  the  plaintiff's  property  was  in- 
jured, but  I  should  suppose  it  would  not  be  suggested  that 
in  such  a  case  the  plaintiff  could  only  recover  the  damage 
actually  sustained  up  to  the  time  of  bringing  his  action, 
and  that  for  subsequent  damage  he  might  bring  a  subse- 
quent action  or  a  series  of  subsequent  actions.     The  fact 
is  that  the  principle  hitherto  acted  upon,  namely,  that  a  Though  the  rule 

i    •    x-*»  x  *  n    i  j  A  that'  plaintiff 

plaintiff  must  recover  once  for  all,  by  one  and  the  same  must  recover  by 
action,  all  damage  past,  present,  and  future,  resulting  from  mage  past,  pre 

-        ,.  ,      ,  •  sent,  and  future 

one  and  the  same  cause  of  action,  may  not  always  insure 
27 

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210  PART  III.— KJOMPUTATION  OP  PIRIOD  OP  LIMITATION.      [s«C.  24 

reeaitinff  from  perfect  justice,  but  as  a  rule  it  is,  in  my  opinion,  a  whole* 
not  always  in-  samp  principle,  and  I  donbt  whether  any  better  could  be 
tioef it i»a  whole-  devised.    It  may  be  that  in  some  exceptional  cases,  such 

some  principle.    ...  .    .  ,    .       ,  .  . 

in  some  excep-  *or  instance,  as  injury  sustained  by  a  passenger  owing  to 
ebln^of^aw  *ke  negligence  of  the  carrier,  some  useful  change  might  be 
8&to*ft?ttU  made  in  the  law.  If  so,  that  is  a  matter  for  the  Legislature* 
Legislature ;  j^  ^  jaw  8tands,  the  passenger  must  recover  once  for  all, 
because  there  is  only  one  cause  of  action,  and  it  seems  to 
And  anything    me  that  anything  more  disastrous  than  allowing  a  series 

more  disastrous  ?    *      Z  *  A  *        ■■  ••         *  .• 

than  allowing  of  actions  to  be  brought  for  damage  arising  from  time  to 
for  one  cause  of  time  in  respect  of  the  same  cause  of  action  could  not  well 
wen  be  conoeiv-  be  conceived.  If,  in  the  present  case  the  reversioner  must 
resort  to  successive  actions  for  injury  to  his  reversion,  so 
must  his  several  tenants  for  injury  to  their  possession,  and 
the  consequence  to  the  defendant  would,  I  should  thinkr 
be  very  much  worse  than  that  of  having  the  damages 
assessed  once  for  all  in  one  and  the  same  action." 
Observatioup  of  (g)  Cockburn,  G.  J.,  dissenting  from  the  majority, 
onthe^eflect  of  was  of  opinion,  that  in  a  case  such  as  Bonomi  v.  Back- 
house, "  the  wrong  consists  in  causing  the  plaintiff's 
premises  to  fall;  consequently  it  extends  only,  as  far  as 
the  actual  damage  goes,  hence,  each  fresh  damage  be- 
comes a  fresh  wrong,  a  fresh  cause  of  action."  "  Can  the 
plaintiff,  by  bringing  his  action  immediately  on  the 
happening  of  a  slight  amount  of  damage,  and  claiming 
therein  for  prospective  damage,  which  it  is  assumed  will 
happen  at  some  future  time,  thereby  deprive  the  defendant 
of  his  right  to  prevent  such  future  damage  by  recourse 
to  artificial  means  P  The  law,  beyond  all  question,  allows 
him  to  avert  all  liability  on  account  of  possible  damage  in 
respect  of  the  entire  amount  of  damage  which  may  result 
from  his  operations.  If,  finding  that  some  damage  has 
arisen,  possibly  contrary  to  his  expectations,  he  seeks  to 
prevent  further  mischief,  I  am  at  a  loss  to  see  on  what 
principle  he  is  to  be  prevented  from  taking  measures  to 
do  so.  Yet  such  would  be  the  effect  of  such  decision. 
d).    In  Gillon  v.  Boddington,(1>  where  A  by  digging 

(1)  B.  and  M.,  161. 

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TOO.  25]      P4J2T  UK— COMPUTATION  OF  PERIOD  OF  LIMITATION.  211 

a  basin  or  canal  in  his  own  land,  caused  a  stream  to  flow 
against  his  neighbour's  wall,  and  gradually  to  undermine 
it,  so  that  at  last  the  wall  fell,  the  period  of  limitation 
was  held  to  run  from  the  falling  of  the  wall,  and  not  from 
the  time  of  the  digging  of  the  basin  or  canal. 

25.     All  instruments  shall,  for  the  purposes  computation  of 

time  mentioned 

of  this  Act,  be  deemed  to  be  made  with  refer-  in  i**™***. 
ence  to  the  Gregorian  calendar. 

IUxtstration$. 

(a.) — A  Hindu  makes  a  promissory  note  bearing  a  Native  date 
only,  and  payable  four  months  after  date.  The  period  of  limitation 
applicable  to  a  suit  on  the  note  rnns  from  the  expiry  of  four  months 
after  date  computed  according  to  the  Gregorian  calendar. 

(b.) — A  Hindu  makes  a  bond,  bearing  a  Native  date  only,  for  the 
repayment  of  money  within  one  year.  The  period  of  limitation  ap- 
plicable to  a  suit  on  the  bond  runs  from  the  expiry  of  one  year  after 
date  computed  according  to  tbe  Gregorian  calendar. 

(a)     In  Bungo  Bujaji  c.  Babaji,*1)  plaintiff  sued  on  a  Astobondbear* 

ing  Native  date» 
period  should 
be  calculated 
according  to  the 
Gregorian  Ca- 


note,  dated  7th  August,  1877,  and  containing  a  stipulation  period  should 

be   calculated 

to  the  effect  that  "  in  the  month  of  Kartik  Shake,  1799,  according  to  the 


that  is  to  say,  in  four  months,  we  shall  pay  in  full  the  lento" 
principal  and  interest."     The  plaint  was  filed  on  the  6th 
December,  1880,  in  the  Court  of  Small  Causes,  at  Poona.   There  u  no  sav- 
The  Judge  was  of  opinion  that  the  claim  was  barred.     On  where  lunar 
his  referring  the  case  to  the  High  Court  for  its  decision,   nar  years  were 
it  was  held  that  the  period  of  four  months  was,  for  the   parties. 
purpose  of  ascertaining  whether  the  suit  was  barred  by 
lapse  of  time,  to  be  calculated  according  to  the  Gregorian 
Calendar,  although  the  word  Kartik  will  thereby  have 
no  effect,  and  the  fourth  month  would  expire  in  Margas- 
hirsha  Shudha.    In  Alemas  Banee  v.  Mahomed  Ruja,(2)  a 
bond,  by  its  terms,  stated  that  money  advanced  should  be 
re-paid  on  the  30th  Pons,  1288  B.  S.,  and  it  so  happened 
that,    in  the  year   1283,   the  month  of  Pons  consisted 
only  of  29  days  (the  29th  Pons,  answering  to  the  12th 
January,  1877).     It  was  held,  that  the  suit  brought  on  the 
13th  January,  1880,  when  the  money  had  become  re-paya- 
ble on  the  13th  of  January,  1877,  was  in  time. 

(1)  I.  L.  R.,  6  Bom.,  83.     |    (2)  I.  L.  R.,  6  Oalo.,  289. 


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212  FAST  in. — COMPUTATION  Of  PERIOD  Of  LIMITATION.     [sKC.  25 

In  Nilkantb  v.  Datt&traya/1)  it  was  held  that  where  a 
bond  bears  a  Native  date  only,  and  is  made  payable  after 
a  certain  time,  that  time,  whether  denoted  by  the  month 
or  the  year,  is  to  be  computed  according  to  the  Gregorian 
(British)  Calendar. 
Periods  of  Umi-       (b)     In  Mahomed  Elahee  Bnksh  v.  Brojokishore  Sen/*) 
Acts  held,         it  was  held  in  accordance  with  former  decisions,  that  for 
koned  accord."    the  purpose  of  computing  the  period  of  limitation  prescrib- 
cSend*r,  in  the  ed  by  section  29  of  the  Beng.  Act  VIII  of  1869,  the  cal- 
speciai  pro^7  culation  should  be  made  according  to  the  English  Calendar, 
trary.  In  Khasro  Mandar  v.  Premlal/8)  suit  was  governed  by 

section  27  of  Act  VIII  of  1869,  of  the  Bengal  Council. 
Although  Act  I  of  1868,  the  General  Clauses' Act,  expressly 
referred  to  Acts  passed  by  the  Governor-General  in  Coun- 
cil, it  was  held  that  in  the  absence  of  any  provision  in 
the  Bengal  Council  Act,  the  interpretation  of  "years" 
.  and  "  months"  given  in  Act  I  of  1868,  must  be  followed. 
In  Maharajah  Jay  Mungul  Singh  v.  Lall  Bung  Pal 
Singh,**)  it  was  held  that  the  periods  of  {imitation  in 
Limitation  Acts  should  be  reckoned  according  to  the 
English  Calendar  unless  a  different  intention  is  expressed. 
Following  the  above  decision,  0.  H.,  in  Saroda  Pershad 
v.  Pahali  Mohanti,**)  held  in  June,  1884,  that  the  word 
"  months"  in  section  32  of  Act  X  of  1859  should  be  com- 
puted according  to  the  English  Calendar,  inasmuch  as  in 
that  section,  or  in  sections  33,  90,  and  93,  which  provide 
for  limitations,  there  was  nothing  to  indicate  that  any 
other  calendar  was  intended. 

(1)  I.  L.  R.,  4  Bom.,  103.     I  (3)  9  B.  L.  R.,  App.,  42. 

(2)  I.  L.  R.,  4  Calc,  497.      |  (4)13  W.  R.,  183 ;  4  B.  L.  R.,  App.,  63. 

(5)  I.  L.  R.,  10  Calc,  913. 


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SEC.  26]     PART  IV. — ACQUISITION  OF  OWNEE8HIP  BY  POSSESSION.         213 


PART    IV. 

ACQUISITION  OF  OWNERSHIP  BY 
POSSESSION* 

26.     Where  the  access  and  use  of  light  or  air  Acquisition  of 

°  right  to  eaee- 

to  and  for  any  building  have  been  peaceably  ment8- 
enjoyed  therewith    as  an  easement,  and  as  of 
right,   without  interruption,   and   for   twenty 
years, 

and  where  any  way  or  watercourse,  or  the  use 
of  any  water,  or  any  other  easement  (whether 
affirmative  or  negative)  has  been  peaceably  and 
openly  enjoyed  by  any  person  claiming  title 
thereto  as  an  easement  and  as  of  right,  without 
interruption,  and  for  twenty  years, 

the  right  to  such  access  and  use  of  light  or 

*  Section  8  of  Act  V  of  1882  repeals  in  the  territories  of  Madras, 
Coorg  and  the  Central  Provinces,  sections  26  and  27,  and  the  defini- 
tion of  easement,  and  provides  that  in  any  Act  or  Regulation  all  re- 
ferences to  the  said  sections,  or  to  sections  27  and  28  of  Act  IX 
of  1871,  shall  in  snch  territories  be  read,  as  made  to  sections  15  and 
16  of  Act  V  of  1882. 

Section  3  of  Act  V  of  1882.    (See  under  section  3  page  21.) 

Section  15.    Where  the  access  and  use  of  light  or  air  to  and  for 

Acquisition  by  pre-  any  building  have  been  peaceably  enjoyed 
scription.  therewith,  as  an  easement,  without  inter- 

ruption, and  for  twenty  years, 

and  where  support  from  one  person's  land,  or  things  affixed  there- 
to, has  been  peaceably  received  by^  another  person's  land  subjected 
to  artificial  pressure,  or  by  things  affixed  thereto,  as  an  easement, 
without  interruption,  and  for  twenty  years, 

and  where  a  right  of  way  or  any  other  easement  has  been  peace- 
ably and  openly  enjoyed  by  any  person  claiming  title  thereto,  as  an 
easement,  and  as  of  right,  without  interruption,  and  for  twenty 
years, 

the  right  to  such  access  and  use  of  light  or  air,  support  or  other 
easement  shall  be  absolute. 

Each  of  the  said  periods  of  twenty  years  shall  be  taken  to  be  a 


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214        PAST  IV.— ACQUISITION  OF  OWNERSHIP  BT  POSSESSION.     [SEC.  26 

air,  way,  watercourse,  use  of  water,  or  other 
easement,  shall  be  absolute  and  indefeasible. 

Each  of  the  said  periods  of  twenty  years 
shall  be  taken  to  be  a  period  ending  within  two 
years  next  before  the  institution  of  the  suit 
wherein  the  claim  to  i^hich  such  period  relates 
is  contested. 

period  ending  within  two  yean  next  before  the  institution  of  the 
suit  wherein  the  claim  to  which  each  period  relates  is  contested. 

Explanation.  I. — Nothing  is  an  enjoyment  within  the  meaning  of 
this  section  when  it  has  been  had  in  pursuance  of  an  agreement  with 
the  owner  or  occupier  of  the  property  over  which  the  right  is  claim- 
ed, and  it  is  apparent  from  the  agreement  that  such  right  has  not 
been  granted  as  an  easement,  or,  if  granted  as  an  easement,  that  it 
has  been  granted  for  a  limited  period,  or  subject  to  a  condition  on 
the  fulfilment  of  which  it  is  to  cease. 

Explanation  II. — Nothing  is  an  interruption  within  the  meaning 
of  this  section  unless  where  there  is  an  actual  cessation  of  the  enjoy- 
ment by  reason  of  an  obstruction  by  the  act  of  some  person  other 
than  the  claimant,  and  unless  such  obstruction  is  submitted  to  or 
acquiesced  in  for  one  year  after  the  claimant  has  notice  thereof  and 
of  the  person  making  or  authorizing  the  same  to  be  made. 

Explanation  IIL — Suspension  of  enjoyment  in  pursuance  of  a 
contract  between  the  dominant  and  servient  owners  is  not  an  inter- 
ruption within  the  meaning  of  this  section. 

Explanation  IV. — In  the  case  of  an  easement  to  pollute  water,  the 
said  period  of  twenty  years  begins  when  the  pollution  first  preju- 
dices perceptibly  the  servient  heritage. 

When  the  property  over  which  a  right  is  claimed  under  this  sec- 
tion belongs  to  Government,  this  section  shall  be  read  as  if,  for  the 
words  "  twenty  years,"  the  words  "  sixty  years"  were  substituted. 

Illustration*. 

(a)-k.  suit  is  brought  in  1688,  for  obstructing  a  right  of  way.  The  defen- 
dant admits  the  obstruction,  but  denies  the  right  of  way.  The  plaintiff  proves 
thai  the  right  was  peaceably  and  openly  enjoyed  by  him,  claiming  title  there- 
to  as  an  easement  and  as  of  right,  without  interruption,  from  1st  January,  1862, 
to  1st  January,  1882.    The  plaintiff*  is  entitled  to  judgment. 

(bj— In  a  like  suit  the  plaintiff  shows  that  the  right  was  peaceably  and 
openly  enjoyed  by  him  for  twenty  years.  The  defendant  proves  that  for  a  year 
of  that  time  the  plaintiff  was  entitled  to  possession  of  the  servient  heritage  as 
lessee  thereof,  and  enjoyed  the  right  as  such  lessee.  The  suit  shall  be  dismissed, 
for  the  right  of  way  has  not  been  enjoyed  "  as  an  easement"  for  twenty  years. 

(c)— In  a  like  suit  the  plaintiff  shows  that  the  right  was  peaceably  and 
openly  enjoyed  by  him  for  twenty  years.  The  defendant  proves  that  the  plain- 
tiff on  one  occasion  during  the  twenty  years  had  admitted  that  the  user  was 
not  of  right  and  asked  his  leave  to  enjoy  the  right.  The  suit  shall  be  dismissed, 
for  the  right  of  way  has  not  been  enjoyed  "  as  of  right"  for  twenty  years. 
Section  16.    (See  under  section  27.) 


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SBC.  26]      PART  IV. — ACQUISITION  OP  OWNERSHIP  BY  POSSESSION.         215 

Explanation. — Nothing  is  an  interruption 
within  the  meaning  of  this  section,  unless 
where  there  is  an  actual  discontinuance  of  the 
possession  or  enjoyment  by  reason  of  an  ob- 
struction by  the  act  of  some  person  other  than 
the  claimant,  and  unless  such  obstruction  is  " 
submitted  to  or  acquiesced  in  for  one  year 
after  the  claimant  has  notice  thereof  and  of  the 
person  making  or  authorizing  the  same  to  be 
made. 

IUvMrations. 

(a.) — A  suit  is  brought  in  1881,  for  obstructing  a  right  of  way. 
The  defendant  admits  the  obstruction,  but  denies  the  right  of  way. 
The  plaintiff  proves  that  the  right  was  peaceably  and  openly  enjoyed 
by  him,  claiming  title  thereto  as  an  easement  -and  as  of  right,  with- 
out interruption,  from  1st  January,  1860,  to  1st  January,  1880.  The 
plaintiff  is  entitled  to  judgment. 

(o.) — In  a  like  suit,  also  brought  in  1881,  the  plaintiff  merely 
proves  that  he  enjoyed  the  right  in  manner  aforesaid  from  1858  to 
1878.  The  suit  shall  be  dismissed,  as  no  exercise  of  the  right  by 
actual  user  has  been  proved  to  have  taken  place  within  two  years 
next  before  the  institution  of  the  suit. 

(c.) — In  a  like  suit  the  plaintiff  shows  that  the  right  was  peace- 
ably and  openly  enjoyed  by  him  for  twenty  years.  The  defendant 
proves  that  the  plaintiff  on  one  occasion  during  the  twenty  years  had 
asked  his  leave  to  enjoy  the  right.    The  suit  shall  be  dismissed. 

(a)     In  Ponnusami  Tevar  v.  The  Collector  of  Madura,  Before  Act  ix 

of  1871 1  M.  H. 

which  was  decided  in  October,  1869/1)  it  was  thought  by  thought  12 

.  years'   enjoy- 

Sir  C.  H..  Scotland,  that  no  period  of  enjoyment  short  of  ment  conferred 
ln  ,,  .  .    ,  \  x  1       xx.  *  ri&ht  to  ease- 

12  years  would  confer  a  right  to  an  easement.     His  view  ment. 

was  based  upon  an  analogy  between  the  acquisition  of  an 

easement  (which  implies  a  loss  to  the  servient  owner)  and 

the  limitation  period  of  12  years  after  which,  through 

adverse  enjoyment,  the  owner  of  the  property  may  be 

debarred  from  recovering  it.    Justice  tones  was  of  opinion 

that  in  the  absence  of  common  law  on  the  subject,  user 

for  a  shorter  period  than  12  years,  accompanied  by  cir- 

(1)  5M.H.G.  E.,  6. 

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216  PART  IV. — ACQUISITION  OF  OWNERSHIP  BY  POSSESSION.     [8SC.  26 

c.  H.  also  held  cnmstances  indicative  of  a  grant  might  be  sufficient.     In 
the  Presidency  of  Bengal,  user,  for  a  period  of  at  least  12 
years,  was  considered  necessary  to  establish  a  right  to 
easement.   Mohim  Chundee  v.  Chnnder  Churn.  W      In  Jay 
Prokash  Singh  v.  Ameer  Ally/2)    Peacock,  C.  J.,  held, 
in  1868,  that  the  English  Prescription  Act  did  not  apply 
to  the  mofussil,  and  that  the  plaintiff  conld  not  sue  to 
remove  the  band  if  the  defendant  had  exercised  the  right 
Bombay  Regn-  of  having  it  for  a  period  of  12  years.     In  the  mofussil  of 
required  30     '  the  Bombay  Presidency,  enjoyment  without  interruption 
m?nt!ntbe°mo-  for    a   period   of   more  than  30  years  was  required  to 
acquire  a  right  by  prescription  under  Reg.  V  of  1827, 
section  1,  cl.  1.     Rambhau  Bapushet  r.  Bhai  Babushet*3) 
in  the  Preri-     Anaji  Dattushet  v.  Mumshet  Bapushet. (*)      In  the  Presi- 
yeara'  enjoy-      dency  towns,  20  years'  uninterrupted  user  was  considered 
quired  accord-  ^necessary  to  confer  a  right  to  an  easement  by  prescription. 
Sib  Law  which  It  was  held  so  by  the  Bombay  High  Court  in  1862,  in 
JT^Wm.iv*  Pranjivan  Dais  v.  Mayaram,<5)  and  in  1871,  in  Narotam 
e*    *  Bapu  v.  Ganpatrav  Paudurang.W     In  Elliott  v.  Bhoobun 

Mohun,<7>  the  Calcutta  High  Court  held,  in  1873,  that  the 
English  Law  which  prevailed  before  the  passing  of  the 
Prescription  Act,  2nd  and  3rd,  William  IV,  c.  71,  being 
applicable,  plaintiffs  were  required  to  shew  an  uninter- 
rupted user  of  at  least  20  years  with  the  acquiescence  of 
Since  the  above  the  defendants.     Since  these  decisions,  the  Legislature, 

decisions,  Act 

jx  of  1871  fixed  in  section  27  of  Act  IX  of  1871,  fixed  20  years  as  the  period 
20  years.  r 

for  the  acquisition  of  an  easement,  but  they  did  not  define 

the  term  "  easement."  It  has  been  since  defined  by  sec- 
tion 3  of  Act  XV  of  1877.  The  right  asserted  in  a  claim 
founded  on  prescription  should  be  strictly  and  clearly 
defined,  and  cannot  be  based  on  rights  which  are  incon- 
sistent. Rajah  Bijoy  Keshub  Roy  v.  Abhoy  Churn 
Ghose.W 

aoyearB* appro-       (b)     In  Sarubaikom  Jistmal  v.  Bapu  Narhaf  Sohoni/9) 

and  air  is   ne- 

STEM?  (l)10W.R.,p.452. 

prevent  his  (2)  9  W.  R.,  91. 

neighbour  from  /3x  2  B.  H.  C.  R.,  ! 

blocking-  up  the  \-/   -  _    —    -    -  ' 


(3) 
(4) 


ip7Au£/F  ""        (4)  2  B.  H.  C.  R.,  334. 


(5)  1B.H.C.R.,  p.  148. 

(6)  8  B.  H.  C.  R.,  69. 

(7)  19  W.  R.,  194. 

(8)  16  W.  R.,  199. 


(July  187a)  (9)  I.  L.  R.,  2  Bom.,  ( 

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SBC.  26]    PAST  IV.— ACQUISITION  OF  OWNERSHIP  BY  POSSESSION.  217 

the  plaintiff  and  defendant  being  owners  of  two  adjoining 
houses  with  a  common  party  wall  between  them,  the 
former  placed  a  window  frame  in  an  aperture  in  an  up- 
ward extension  of  his  part  of  the  wall  which  he  had 
erected  eight  years  before  suit,  and  the  latter  thereupon 
raised  the  wall  on  her  side  so  as  to  cut  off  the  supply  of 
light  and  air  which  the  plaintiff  used  to  receive  before, 
and  after  the  placing  of  the  window  frame.  It  was  held, 
that  there  had  been  no  appropriation  of  the  light  and 
air  by  the  plaintiff  for  the  statutory  period  of  20  years 
creating  in  him  a  right  of  easement,  and  entitling  him  to 
relief  against  the  inconvenience  sustained  by  him. 

(c)  In  Provabutty  Dabee  v.  Mohendro  Lall  Bose,W  it  Defendant  can 
was  held,  that  where  a  person,  who  has  a  right  to  light  from  enlarged  win- 

A    .  .    „  r  .     ,        **  ,  xl_      dowilhecando 

a  certain  window,  opens  a  new  window,  or  enlarges  the  so  without  ot> 

.  Btructing  the 

old  one,  the  owner  of  an  adjoining  house  has  a  right  to  old  one. 

u  ^  1  xv  i        i  •         •*  i.  a  (June  1881-> 

obstruct  the  new  or  enlarged  opening,  if  he  can  do  so 

without  obstructing  the  old ;  but  if  he  cannot  obstruct  the 

new  without  obstructing  the  old,  he  must  submit  to  the 

burden. 

(d)  In  Mathura  Das  Nandvalabh  v.  Bai  Amthi/2)  plain-  Use  of  apertures 
tiff  and  defendant  were  next  door  neighbours.  The  plain-  and  air  when 
tiff's  backrooms  received  light  and  air  through  apertures  feet,  and  not  " 
ten  inches  square  made  in  the  back  wall  of  the  house,  sibie,  is  enjoy. 
Contiguous  to  this  wall  was  the  defendant's  ground,  upon  right." 
which  he  built  a  shed,  and  the  roof,  which  was  completed 

in  April,  1878,  excluded  light  and  air  from  two  of  the 
apertures  in  the  plaintiff's  house.  The  plaintiff  sued  the 
defendant  for  its  removal ;  the  defendant  contended  that 
he  had  permitted  the  opening,  and  that  the  plaintiff  had 
not  enjoyed  light  and  air  as  of  right.  The  Lower  Appel- 
late Court  held  that  the  defendant's  tacit  acquiescence  in 
the  apertures,  so  long  as  they  did  not  interfere  with  her, 
would  not  constitute  a  right  such  as  would  interfere  with 
the  defendant's  ordinary  rights  of  property.  It  was  held 
that  the  enjoyment  by  the  plaintiff  when  it  is  open  and 
manifest,  not  furtive  or  invisible,  and  when  it  is  not  had 

(1)  I.  L.  E.,  7  Calo.,  468.  |  (2)  I.  L.  B.,  7  Bom.,  522. 
28 

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218  PAET  IV. — ACQUISITION  OP  OWNBB8HIP  BT  P088E8SION.    [SBC.  26 

in   suck  wise    as   to  involve  the  admission  of  any   ob- 
structive right  in  the  owner  of  the  servient  'tenement, 
is  an  enjoyment  "  as  of  right"  within  the  meaning  of  this 
section, 
tha?  ?^^2r        (®)     *n  I>ranjivandafl  Haijivandas  t?.;Mayaram  Samal- 
"uch0  ^tChis     <^a8»(1)  *fc  was  ne^  ^at  *°  acquire  Dy  prescription  a  right 
claimed,  has       to  the  uninterrupted  access  of  light  and  air  through  the 

assumed  the  ap-  r  °  ° 

pearanoe  of  a  windows  of  a  dwelling-house,  it  is  sufficient  that  the  build- 

dwelling-house,  m  ... 

ttoi^hnotoom-  ing,  in  respect  of  which  the  right  is  claimed,  has  assumed 
asBuch  for  the   the  appearance  and  outward  aspect  of  a  dwelling-house 
{Sec^seali8,     for  more  than  twenty  years  before  the  time  of  the  com- 
mencement of  the  suit,  though  not  completed  or  used  as  a 
dwelling-house  for  the  full  period  of  twenty  years  before 
that  time.     When  a  dwelling  is  so  far  completed  as  to 
show  an  intention  to  use  it  as  a  dwelling-house  with  cer- 
tain windows  or  openings  for  light  and  air,  from  that  time 
it  becomes  the  duty  of  those  who  are  concerned  in  pre- 
venting a  prescriptive  right  to  the  access  of  light  and  air 
from  arising  in  respect  of  such  windows  to  take  steps  to 
challenge  and  hinder  the  acquisition  of  such  right. 
Obstruction  of        (f)     Where   two  houses  are  held  jointly  by   several 

light   and   air  v    '  J  *        * 

must  be  mate-  owners  deriving  their  title  from  a  common  source,  and  one 

rial  and   such  ° 

that  compensa-   of  such  houses  enjoys  a  continuous,  as  distinguished  from 

tion.  would  not  *  J  ° 

give  adequate     an  occasional  easement  over  the  other,  such  easement  will, 

relief.  m  7 

(August  1871.)  upon  a  partition  of  the  premises,  pass  to  the  dominant 
tenement,  both  by  implication  of  law,  and  under  the  usual 
general  words  contained  in  the  deed  of  partition.  When 
the  court  is  asked  to  interfere  by  injunction  to  restrain 
the  obstruction  of  light  and  air  to  a  dominant  tenement, 
the  question  to  be  determined  is — is  the  obstruction  such 
as  seriously  to  interfere  with  the  comfort  or  enjoyment  of 
the  owners  of  the  dominant  tenement,  #or  such  as  to  cause 
a  material  injury  to  it — an  injury  which  cannot  be  com- 
pletely compensated  by  damages  ?  The  court  will  in  such 
cases  interfere,  as  well  by  mandatory  as  by  preventive 
injunction,  provided  that  in  the  circumstances  of  the 
case  there  is  nothing  inequitable  in  putting  in  force  the 

(1)  1  B.  H.  C.  E.,  148. 

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SBC.  26]    PABT  IV.— ACQUISITION  OF  OWNERSHIP  BY  POSSESSION.  219 

former  remedy.     The  court  will  look  not  merely  to  the  court  wiu  look 

use  to  which  rooms  in  a  dwelling-house  from    which  the  use  to  which 

light  is  obstructed  are  actually  put  at  the  time  of  the  at°the  lSmePot 

obstruction,  but  also  to  the  use  to  which  they  may  be  also  to  aii'rea- 

,   -         „  ,  ,  m  ..  Ti    •     •  sonable  uses  for 

put  for  all  reasonable  purposes  of  occupation.  It  is  lm-  occupation. 
material  whether  light  is  admitted  through  a  window  or 
a  door.  In  case  of  obstruction,  the  owner  of  the  domi- 
nant tenement  is  in  either  case  entitled  to  protection. 
Ratanji  Hormasji  Bottlewalla  v.  Edalji  Hormasji  Bottle- 
waUa.d> 

(g)     In   Shriniva8  Udpirao  v.  Reid,W    the   plaintiff   opening  a  win- 
opened  a  new  window  in  his  house  which  rendered  the   prevented  bo- 
defendant's  house  less  private  than  before.     It  was  held   the  neighbour's 

that  the  plaintiff  should  not  be  debarred  from  improving   vate  or  affect* 

privacy. 

his  own  house,  though  the  effect  might  be,  to  some  ex- 
tent, prejudicial  to  his  neighbour.  In  Komathi  v.  Guru- 
nada  Pillai/3)  it  was  held  by  the  Madras  High  Court, 
that  the  invasion  of  privacy  by  opening  windows  is  not 
treated  by  the  law  as  a  wrong  for  which  any  remedy  is 
given.  The  Judgment  of  the  Lord  Chancellor  in  Tap  ling  BngUsh  Law  on 
V'  Jones/4)  is  a  clear  exposition  of  the  English  Law  on  ° 8U  J0C 
the  subject  of  the  invasion  of  privacy  by  opening  windows. 
He  observes,  "  if  my  adjoining  neighbour  builds  upon  his 
land  and  opens  numerous  windows,  which  look  over  my 
gardens  or  my  pleasure  grounds,  I  do  not  acquire  from 
this  act  of  my  neighbour  any  new  or  other  right  than  I 
before  possessed.  I  have  simply  the  same  right  of  build- 
ing or  raising  any  erection  I  please  on  my  own  land, 
unless  that  right  has  been  by  some  antecedent  matter 
either  lost  or  impaired,  and  I  gain  no  new  or  enlarged 
right  by  the  act  of  my  neighbour."  In  Mahomed  Abdur  Decision  of  C.H. 
Rahim  v.  Birjusahu/5)  defendants  having  opened  certain 
windows  and  erected  a  verandah  in  their  house  which 
commanded  a  view  of  the  plaintiff's  female  apartments, 
the  plaintiffs  sued  them  to  have  the  windows  closed  and 

(1)  8  B.  H.  C.  R.f  O.  C,  181.  1      (3)  3  M.  H.  C.  R.,  141. 

(2)  9  B.  H.  C.  R.,  266.  |      (4)  11  H.  L.,  29a 

V5)  5  B.  L.  R.,  676. 


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220  PART  IV. — ACQUISITION  OF  OWNERSHIP  BY  P088I88IOH.    [SEC.  26 


According  to 
the  usage  of 
Gujurat,  open- 
ing new   »per- 
tare  affecting 
privacy  is  an 
actionable 
wrong. 


Opening  win- 
dow command- 
ing a  view  of 
plaintiff's  open 
court-yard  is 
not  invasion  of 
privacy. 


Where  plaintiff 
claimed  right  of 
way  over  land 
held  by  Govern- 
ment as  lessee 
of  the  owner,  it 
was  held  that 
to  acquire  a 
right  of  way  or 
other  easement 
under  the 
Indian  Act,  it  is 
not  necessary 
that  user  should 
be  known  to  ser- 
vient owner. 


the  verandah  removed.  It  was  held,  that  no  such  suit 
was  maintainable.  This  was  followed  in  Sheikh  Golam 
Ali  v.  Kazi  Mahomed  Zahnr  Alam/1)  which  was  a  suit 
to  close  doors  recently  opened,  because  they  overlooked 
the  Zenana  of  the  plaintiff.  In  Joogol  Lai  v.  Mussnmat 
Jasoda  Bebee/2)  a  honseowner  in  a  street  changed  the 
arrangement  or  construction  of  the  upper  part  of  his 
house  so  that  the  alteration  gave  him  a  wider  range  of 
vision  than  before,  but  in  a  manner  otherwise  consistent 
with  his  rights  of  enjoyment.  It  was  held  that  no  legal 
right  of  suit  is  given  to  a  neighbour  living  on  the  other 
side  of  the  road  complaining  of  loss  of  privacy. 

(h)  In  Manishankar  Har  Govan  v.  Trikam  Narsi,(s> 
it  was  held  that  in  accordance  with  the  usage  of  Gujurat, 
a  man  may  not  open  new  doors  or  windows  in  his  house, 
or  make  any  new  apertures  or  enlarge  old  ones  in  a  way 
which  will  enable  him  to  over-look  those  portions  of  his 
neighbour's  premises  which  are  ordinarily  secluded  from 
observation,  and  so  intrude  upon  his  privacy.  In  Kuvarji 
Premchand  v.  Baijaver/4)  it  was  held  that  in  Gujurat,  a 
householder's  right  to  privacy  is  not  affected  by  the  fact 
that  a  public  road  runs  between  the  dominant  and  the 
servient  tenements.  Where  a  window  opened  by  the 
defendant  commanded  a  view  not  of  the  plantiff 's  private 
apartments,  but  of  an  open  court  yard  outside  his  house, 
it  was  held  that  there  had  been  no  invasion  of  the  plain- 
tiff's privacy  which  would  entitle  him  to  have  the  window 
closed  according  to  the  customs  legally  recognised  in 
Gujurat.     Eeshav  Harkha  v.  Ganpat  Hirachand.C6) 

(i)  In  Arzan  v.  Rakhal  Ghunder  Roy  Chowdhery/6)  • 
the  plaintiff  claimed  a  right  of  way  over  a  certain  land 
held  by  Government  under  a  lease  from  its  owner,  and  the 
court  of  first  instance  and  the  Lower  Appellate  Court, 
though  they  held  that  the  plaintiff  had  enjoyed  it  without 
interruption  for  upwards  of  20  years,  rejected  the  suit  on 
the  ground  that  a  right  of  way  cannot  be  enjoyed  as  of 


(1)  6  B.  L.  B.,  App.,  76. 

(2)  3  N.-W.  P.  H.  C.  B.,  311. 

(3)  6.  B.  H.  C.  B.,  A.  C,  42. 


(4)  6  B.  H.  C.  E.,  A.  C.  143. 
(6)  8.  B.  H.  C.  E.,  A.  C,  87. 
(6)  I.  L.  E.,  10  Calc,  214. 


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SEC.  26]    PACT  IV. — ACQUISITION  OF  OWNERSHIP  BY  POSSESSION.  221 

right,  without  the  servient  owner's  knowledge.     The  im- 
portant question  raised  in  the  second  appeal  was,  whether 
the  principles  which  govern  the  acquisition  of  a  right  of 
way  in  England  by  prescription  apply  also  to  the  acquisi- 
tion of  such  a  right  under  the  Indian  Limitation  Act.     A 
Division  Bench,  (Garth,  C.  J.,  and  Prinsep,  J),  holding 
that  it  is  not  necessary  that  the  enjoyment  of  the  ease- 
ment should  he  known  to  the  servient  owner,  and  that  in 
this  respect  there  is  a  difference  between  the  acquisition  There  is  differ- 
of  such  rights  under  the  Indian  Limitation  Act,  and  their  acquisition  of 
acquisition  under  the  English  Prescription  Act,  observe:   derthk?Actand 
"the  Act,  under  which  rights  of  way  and  other  ease-  Seh^rescrip!?" 
ments  are  now  generally  acquired  in  India,  has  nothing 
to  do  with  prescription.     It  is  an  "  Act  for  the  Limitation 
of  Suits  and  other  purposes,"  and  section  26  enables  any 
person  to  acquire  a  right  of  way  by  a  20  years'  user 
without  reference  to  any  grant,  express  or  implied,  from 
the  servient  owner. 

"  So  long  as  the  right  of  way  is  enjoyed  as  an  easement  so  yea™*  enjoy- 
peaceably  and  quietly  as  of  right  and  without  interrup-  2f^°eaMment 
tion  for  20  years  by  a  person  claiming  right   thereto,   make*  IiiTri^ht 
his  right  at  the  end  of  that  time  becomes  absolute  and 
indefeasible.     Nothing  is  said  in  the  Act  as  to  the  know- 
ledge of  the  servient  owner  being  necessary  to  the  ac- 
quisition of  the  right,  and  as  the  right  to  be  acquired  is  not 
a  prescriptive  one,  the  rule  which  obtains  in  England  with 
reference  to  prescriptive  rights  seems  inapplicable  here. 

"  Of  course,  rights  of  way,  as  well  as  other  easements,  when,  however, 
may  still  be  claimed  in  this  country  by  prescription ;  (see  cSSmefin^thi! 
Bajrup  Koer  t>.  Abul  Hossein  :)<*>  and  when  they  are  so  caption, ^>m!e£ 
claimed,  the  principles  which  apply  to  their  acquisition  pi"  to*  their  al<> 
in  England  will  be  equally  applicable  in  this  country.  |^^a  would 
But  those  principles  do  not  necessarily  apply  to  the  ac-  "vly' 
quisition  of  easements  under  the  Limitation  Act. 

"  And  as  a  proof  that  this  was  the  view  of  the  Legislature 
of  this  country,  there  is  no  provision  in  the  Indian  Limi- 
tation Act  corresponding  with  section  7  of  the  English 

(1)  I.  L.  R.,  6  Calc,  394. 

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222  PART  IV. — ACQUISITION  OP  OWNBE8HIP  BY  P08SB88ION.    [SBC.  26 

Prescription  Act,  though  there  is  a  provision  in  section  27 

which  answers  to  section  8  of  the  Prescription  Act,  and 

which  protects  under  certain  conditions  the  rights   of 

reversioners. 

"PeftoeabiyMid       "It  is  probable  that  the  words  *  peaceably  and  openly,* 

troduoed "pro?1    which  are  not  in  the  English  Act,  have  been  introduced 

vent^cauismon  into  the  Indian  Act  for  the  very  purpose  of  preventing 

TOntoStedusOT.     these  rights  being  acquired  by  stealth  or  by  a  constantly 

contested  user,  although  actual  knowledge  of  the  user  on 

the  part  of  the  servient  owner  may  not  be  necessary." 

where  plaintiff  (j)     In  Achul  Mahta  v.  Rajun  Mahta/1)  the  plaintiff 

ofway  over  de-  claimed  his  right  of  way  over  a  footpath  through  the 

inTsos11!*  ev^  defendant's  permises  alleging  that  he  had  been  using  it 

velrl,  HrJas  for  50  or  60  years  up  to  September,    1877,   when  the 

^^0^^  defendant  wrongfully  closed  it  up.    The  defendant  pleaded 

years  before  *  limitation,  alleging  that  the  plaintiff  had  not  enjoyed  the 

IoiIk  Enjoyment  easement  within  two  years  before  the  suit.     The  High 

^sumcTffrant.  Court  referred  the  following  issues  to  the  Lower  Appel- 


V 
0 


*'  late  Court.  "  Was  the  right  of  way  in  question  peace- 
ably, openly,  and  as  of  right,  used  by  the  plaintiff  or  those 
through  whom  he  claims  within  two  years  of  the  institu- 
tion of  the  suit  ?  Supposing  that  it  was  not  so  enjoyed, 
and  with  reference  to  the  alleged  antiquity  of  the  right 
and  the  observations  of  their  Lordships  of  the  Privy 
Council  in  Maharani  Rajrup  Koer  v.  Syed  Abdul  Hos- 
sain<2)  we  further  direct  the  following  issue.  Is  there 
evidence  of  enjoyment  on  the  part  of  the  plaintiff,  or 
those  through  whom  he  claims,  of  such  a  character  and 
duration  as  to  justify  the  presumption  of  a  grant  or 
other  legal  origin  of  the  plaintiff's  right,  independent 
of  the  provisions  of  section  26  of  the  Limitation  Act 
of  1877  ?  In  Juggessur  Singh  v.  Nund  Lall  Singh,(8> 
it  was  held  that  20  years  of  peceable  and  open  enjoyment 
without  interruption  are  needed  to  make  a  right  of  user 
absolute,  whether  it  be  a  right  of  way  or  right  of  water. 
The  interruption  referred  to  must  have  occurred  within 

(1)  I.  L.  R.,  6  Calc  ,  812.       I      (2)  L.  R.,  7  I.  A.,  240. 
(3)  20  W.  K.,  283. 


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SBC.  26]    PAET  IV. — ACQUISITION  OF  OWNERSHIP  BY  POSSESSION.  223 

the  twenty  years  and  must  be  an  obstruction  by  the  act 

of   some  person  other  than  the   claimant.      Glover,  J.,  Glover,  J.,  ob- 

observed :  "  the  illustration  (6),  to  section  27  shows  the  user  within  2 

meaning  of  the  law  to  be  that  there  must  be  an  exercise  JowTsnit  was 

of    the    right   by   actual    user  within    two  years   next  fjSytsfe.) 

before  the  institution  of  a  suit  for  recovery.     Again,  in  c.  H.  followed 

.  it  in  two  subee- 

Gopee  Chand  Setia  v.  Bhoobun  Mohun  Sen/1)  which  was  quent  cases. 
a  suit  to  establish  a  right  of  way,  it  was  held  that  it  is 
not  sufficient  for  a  plaintiff  to  prove  user  for  20  years, 
which  ended  more  than  two  years  next  before  the  insti- 
tution of  the  suit ;  he  must  show  exercise  of  the  right  by 
actual  user  within  such  period  of  two  years.     The  same 
view  was  adopted  by  Mitter,  J.,  in  Baboo  Luchmee  Per- 
shad  Narain  Singh  t;.  Tiluckdharee  Singh.  W  Where  plain- 
tiff sued  to  establish  his  right  to  use  a  water-way  for  the   n.-w.  p.  h.  o. 
rain-water  of  his  roof,  and  it  was  found  that  the  roof  had  even  for  more 
fallen  more  than  two  years  previous  to  the  suit,  and  the  win  not  destroy 
Lower  Courts  therefore  dismissed  the  claim  with  refer- 
ence to  illustration  (b)  of  this  section,  on  the  ground  of 
non-user  for  two  years  preceding  the  suit,  it  was  held, 
that  plaintiff  had  not  lost  his  right,  as  mere  non-user  of 
an  easement  for  a  time,  if  the  circumstances  of  the  case 
are  not  such  as  to  indicate  an  intentional  abandonment  of 
the   former  right,  is  not,  even   if  such  non-user  extend 
beyond  two  years,  sufficient  to  destroy  that  right  (Punj. 
Rec.  No.  62  of  1880)  .<8>     The  conflict  in  the  above  deci-   Tho  above  con- 
sions  arose  from  the  difficulty  of  reconciling  the  terms  of  the  difficulty  of 
illustration  (b)  with  the  last  clause  of  the  section.     In  illustration  (ft) 

__  with  the  l&fit 

Koylash  Chunder  Ghose  v.   Sonatun  Chung  Barooie/4)  clause  of  the 
which  was  a  later  case  brought  to  establish  right  of  pas- 
age  fpr  boats  over  the  defendant's  lands  when  they  were 

flooded,  the  court  held  that  the  section,  saying  not  a  word  Garth,  c.  J., 

as  to  any  actual  user  or  exercise  of  the  right  within  two  intwoiyearspre- 

years   preceding  the  suit,  such  user   or  exercise  of  the  not  necessary. 

.    ,       .  ,  /r~,     it         ™x  (April  1881.) 

right  is  not  necessary.     (Vide  Note  T.) 

(k)    In  Charu  Surnokar  v.  Dokouri  Chunder  Thakoor/6)   Right  to  the 

use  of  path-way 

(1)  23  W.  R.,  401.  I  (3)  Rivaz'B  Limitation  Act,  pp.  75,  76.      SSK  l&dcroat- 

(2)  24  W.  R.,  296.  |  (4)  I.  L.  R.,  7  Calc,  132.  ed   when  both 

(6>  I.  L.  R.,  8  Calc,  956. 


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224  PAST  IV — ACQUISITION  OF  OWNERSHIP  BT  POSSESSION.    [SEC  26 


lands   belonged 
to   one   person, 
was   held   an 
easement  of 
necessity. 
Basement  may 
also  be  acquired 
by  implied 
grant. 


If  easement 
were  apparent 
snd  continuous, 
there  would  be 
a  presumption 
that  it  passed 
with  defen- 
dant's tene- 
ment. 


Case  where  dis- 
continuance of 
user  of  a  lane 
held  to  have  the 
effect  of  pre- 
venting the  ac- 
quisition of  the 
statutory  right. 
(April  1676.) 


plaintiff  sued  for  an  injunction  to  restrain  the  defendant 
from  using  a  path  on  the  plaintiff's  land.  It  appeared 
that  the  land  held  by  the  plaintiff  and  defendant  had 
originally  belonged  to  one  owner,  and  that  the  plaintiff 
and  the  defendant  had  obtained  their  respective  tenements 
more  than  20  years  previously.  The  path  had  been 
admittedly  made  by  the  original  owner,  but  the  plaintiff 
contended  that,  when  he  purchased  the  land,  he  had  closed 
the  path.  This  the  Munsif  disbelieved,  and  refused  the 
injunction.  The  District  Judge,  treating  the  case  as  if  it 
fell  under  section  26  of  the  Limitation  Act,  and'  being  of 
opinion  that  the  defendant  had  not  proved  20  years9 
peaceable,  open,  and  uninterrupted  exercise  of  the  right 
°f  way,  gave  the  plaintiff  a  decree.  It  was  held  that  the 
mode  of  acquiring  an  easement  provided  by  section  26  of 
the  Limitation  Act  is  not  the  only  way  in  which  an  ease- 
ment may  be  acquired,  but  an  easement  may  also  be  acquir- 
ed by  implied  grant.  In  the  present  case,  the  use  of  the 
path  might  be  absolutely  necessary  to  the  enjoyment  of 
the  defendant's  tenement,  in  which  case  there  would  be 
an  easement  of  necessity,  or  the  use  of  the  path,  though 
not  absolutely  necessary  to  the  enjoyment  of  the  defen- 
dant's tenement,  might  be  necessary  for  its  enjoyment  in 
the  state  in  which  it  was  at  the  time  of  severance,  and  in 
this  case,  if  the  easement  were  apparent  and  continuous, 
there  would  be  a  presumption  that  it  passed  with  the 
defendant's  tenement. 

(1)  Sham  Churn  Auddy  v.  Tariney  Churn  BanerjeeW 
was  a  suit  for  a  declaration  of  the  plaintiff's  right  of  way 
over  a  lane  leading  from  a  public  road  to  a  door  in  the 
plaintiff's  house,  which  lane  the  defendant  who  resided  at 
the  end  of  the  lane  had  obstructed  so  as  to  prevent  access 
to  the  plaintiff's  house;  it  appeared  that  the  house  in 
respect  of  which  the  easement  was  claimed  belonged  in 
1855  to  one  HO,  during  the  time  of  whose  occupation 
there  was  user  of  the  right  of  way  over  the  lane  to  the 
door  until  he  had  the  door  bricked  up.     In  April,  1865, 


(1)  I.  L.  R.,  1  C&lc,  422 


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8EC.  26]    PART  IV. — ACQUISITION  OF  OWNERSHIP  BT  POSSESSION.  225 

the  house  was  sold  by  H  C,  and  in  Jane,  1867,  was  con- 
veyed by  the  purchaser  to  the  plaintiff.  From  the  block- 
ing np  of  the  door  until  the  plaintiff's  purchase,  no  user 
was  proved.  The  suit  was  brought  in  June,  1875,  about 
a  month  after  the  erection  by  the  defendant  of  the  ob- 
struction complained  of.  It  was  held  that  the  owner  of 
the  dominant  tenement  having,  with  the  intention  of  pre- 
venting the  use  of  the  way,  created  an  obstruction  of  a 
permanent  nature  which  rendered  such  use  impossible, 
the  way  could  not  be  said,  during  the  continuance  of  such 
obstruction  to  have  "been  openly  enjoyed"  within  the 
meaning  of  section  27  of  Act  IX  of  1871,  and  that, 
accordingly,  though  there  had  been  no  interruption  within 
the  meaning  of  that  section,  a  right  to  the  way  had  not 
been  established  under  the  Act. 

(m)    In  Joy  Doorga  Dossia  t?.  Juggernath  Roy/1)  plain-  a  right  of  way 
tiff  claimed  a  right  of  way  over  the  defendant's  land  to  ment  must  not 
drive  his  cows,  alleging  that  for  many  years  they  have  to  destroy  all 
been  driven  over  them.     Macpherson,  J.,  observes,  "  if  uses  of  the  ser- 
they,  having  driven  the  cattle  over  the  lands  generally, —       n  pr° 
that  is  to  say,  not  by  any  paticular  path,  but  straggling 
promiscuously  over  the  lands, — which  is  the  right  claimed   Right  to  drive 
by  the  plaintiff,  be  held  to  give  the  plaintiff  a  right  in   cuously  over 
all  time  to  come  so  to  drive  his  cattle,  it  would  be  inter- 
fering with  the  lands  to  such  an  extent  as  to  make  it  im- 
possible that  they  should  ever  be  used  for  any  useful 
purpose.     But  a  right  of  way  or  other  easement  must  not 
be  so  large  as  to  extinguish  or  destroy  all  the  ordinary 
uses  of  the  servient  property.    (See  Zumeer  Ali,  1  Weekly 
Reporter,  page  230)  ;   and  in  my  opinion  no  length  of 
time  would  have  given  the  plaintiff  such  a  right  as  he 
claims,  namely,  a  straggling  right  to  the  promiscuous  use 
of  the  whole  property  for  the  purpose  of  driving  his  cattle 
over  it."     In  Gooroo  Churn  Goon  t;.  Gnnga  Gobind  Chat- 
ter] ee/2)  it  was  held  that  the  owner  of  a  piece  of  land 
between  a  village  and  the  public  road  who  allows  his 
neighbour's  cows  to  pass  over  it  on  the  way  to  pasture, 

(1)  15  W.  E.,  295.  |  (2)  8  W.  E.,  269. 

29 

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226  PART  IT. — ACQUISITION  OF  OWNERSHIP  BT  POSSESSION.    [SEC.  26 

does  not  thereby  create  a  right  of  easement  over  the  land 
so  as  to  deprive  it  of  all  value  by  rendering  its  cultivation 
impossible. 
There  can  t»  no       (n)     In  Sreedhur  Dey  v.  Adoyto  Kurmokar/1)  def en- 
right  to  injure  dants  claimed  a  prescriptive  right  of  throwing  into  the 
though  such  in-  plaintiff's  tank,  the  burnt  earth  of  which  their  crucibles 
warrant  of  an-  were  made.     It  was  held  that  there  could  be  no  preecrip- 
(Ju^y  1873.)         tive  right  in  such  a  case,  and  that  if  the  defendants  per- 
sisted in  throwing  earth  into  the  tank,  the  plaintiff  might 
Throwing cruci-  suffer  greater  injury  than  he  has  already  sustained.     In 
the  Municipal  Commissioners  of  the  Suburbs  of  Calcutta 
v.  Mahomed  Ali,<2)  which  was  a  case  dealt  with  by  a  Ma- 
gistrate under  section   310  of  the  Criminal   Procedure 
Code,  (XXV  of  1861),  it  was  held  that  no  length  of  enjoy - 
Public  nuisance  ment  can   legalise  a  public   nuisance   involving  actual 

danger  to  the  health  of  the  community. 
English  cases         "  In  Wood  v.  Sutcliffe,  (2  Sim.,  N.  S.,  163),  the  Vice- 

recognising  .  .    , 

rightto  polluted  Chancellor  says :  that  a  manufacturer  may  acquire  a  right 

stream,  to  pour  his  polluted  water  into  a  stream  as  against  all 

new  comers,  so  that  those  below  him  coming  after  he  has 

acquired  the  right  may  not  have  the  right  to  complain  of 

what  he  does  to  the  stream.     Thus  a  right  to  pollute 

water  may  be  acquired  by  20  years'  user.     (See  Crossley 

v.  Lightonler,  L.  ft.,  3  Eq.  279  ;  2  Ch.  App.,  478 ;  Baxen- 

dale  v.  McMurray,  L.  R.,  2  Ch.  App.,  790.) 

and  right  for  A  prescription  for  washing  away  by  means  of  a  stream, 

and  other  stuff  the  sand,  stones,  rubble  and  other  stuff  which  become  dis- 

in  working  a  tin 

mine.  lodged  or  severed  in  the  course  of  working  a  tin  mine,  *and 

using  the  tin  and  tin  ore,  is  not  unreasonable  or  indefinite, 
since  it  is  by  implication  limited  to  the  necessary  work- 
9      ing  the  mine  and  the  quantity  of  water  sent  down,  and 
though  more  stuff  may  come  at  one  time  than  at  another. 
(Carlyon  v.  Lovering,  1  H.  andN.  797,  800.")(3> 
Plaintiff  should       (o)     In  Radhanath  Sugracharji  v.  Baidonath  Seal  Ka- 
Rahe  right!  but  birag/4)  plaintiff  sued  for  a  declaration  of  a  right  of  way 
route^artlcnlar    over  the  land  of  the  defendant.     It  was  held,  that  plain- 
tiff must  prove  the  particular  line  over  which  he  claimed 

(1)  20  W.  R.,  237.  I      (3)  Gale,  p.  486. 

(2)  7  B.  L.  H.,  499.  |      (4<)  8  B.  L.  fi,,  App.,  118. 


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8KC.  26]    PART  IV. — ACQUISITION  OF  OWNERSHIP  BY  P086l88iON.  227 

the  right,  and  that  mere  proof  of  a  right  to  pass  over  the 
land  without  proving  the  particular  route  will  not  entitle 
him  to  a  decree.  In  Goluck  Chunder  Chowdbry  v.  Tari- 
nee  Churn  Chuckerbutty/1)  the  court  observe,  a  right  of 
way  imports  ex  vi  termini  a  right  of  passing  in  a  particular 
line,  and  not  the  right  to  vary  it  at  pleasure.  This  would 
be  an  abuse  of  the  right  and  it  might  be  an  inconvenience 
to  the  owner  of  the  land  charged  with  the  easement. 

(p)     In  Harida8  Nandi  v.  Jadunath  Dutt/8>    it  was  Discontinuance 
held,  that  a  right  of  way  over  the  land  of  another  must  be  SeWM*)0  affect7 
kept  up  by  constant  use  and  that  after .  a  discontinuance 
of  such  use  for  a  period  of  six  years  no  suit  can  be  brought 
to  re-establish  it.      In  Krishna  Chandra    Chuckerbutty 
9.  Krishna  Chandra  Banik/3)  it  was  held  that  a  finding 
that  a  right  of  way  had  been  formerly  exercised  is  not  a 
sufficient  finding  to  indicate  the  length  of  time  for  which 
the  right  had  been  exercised,  and  is  therefore  insufficient 
to  prove  a  right  of  user.     In  Beni  Madhab  Das  v.  Ramjay  Acquiescence  in 
Rokh,W  A  had  a  right  of  way  over  Bys  land.     He  allow-  SSEffffiw 
ed  B  to  erect  a  house  on  the  path-way  and  enjoy  it  for 
seven  years.     He  then  brought  a  suit  to  have  the  path- 
way re-opened  by  pulling  down  B's  house.     It  was  held 
that  A  must  be  taken  to  have  acquiesced  in  the  interrup- 
tion of  his  right  of  way,  and  his  claim  was  such  that  a 
court  of  equity  and  good  conscience  would  not  enforce. 
Acquiescence  in  the  sense  of  mere  submission  to  the  in-   Acquiescence  to 
terruption  of  the  enjoyment  does  not  destroy  or  impair  an   mnstbeattritra- 
easement.     To  be  effectual  for  that  purpose,  it  must  be  tention  to 
attributable  to  an  intention  on  the  part  of  the  owner  to  benefit, 
abandon  the  benefit  before  enjoyed. .  Ponnusawmy  Tevar 
v.  The  Collector  of  Madura.  <6>    In  Kesava  Pillai  v.  Peddu 
Reddy W  a  tenant  by  his  lessor's  permission  erected  a  dam 
upon  his  holding  and  thereby  obstructed  the  natural  flow 
of  the  water  to  other  lands  of  the  lessor.     It  was  held,  that  case  where 
the  mere   permission  did  not  amount  to  a  grant,   and  Son*  to  erect  a 

.        <■•    i  .       ,    ..         •ill  dam  was  held 

that  there  was  no  implied  grant  of  the  right  to   rise  not  to  amount  to 


i 


1)  4  W.  R.,  49. 

2)  5  B.  L.  B.,  App.,  66. 
(3)  3  B.  L.  B.,  A.  C,  211. 


(4)  1  B.  L.  R.,  A.  C.  213. 

(5)  5  M.  H.  C.  B.,  6. 

(6)  1  M.  H.  C.  R.,  258. 


a  grant. 


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228 


PABT  IV.— ACQUISITION  OP  OWNKE8HIP  BY  POSSESSION.    [SIC.  26 


A  man  licensing 
an  act  in  its  in- 
ception  may 
seek   for   relief 
if   injurious 
consequences 
which  he  could 
not  have  con- 
templated, arise 


Eight  of 
ment  may  be 
created  by  a 
contract. 


Plaintiff  enjoy- 
ed a  channel  on 
defendant's 
land  on  agree; 
ment  for  many 
years. 

The  agreement 
was    held  not 
revocable  at 
pleasure. 


Distinction   be- 
tween a  mere 
license  and  one 
coupled  with 
the  creation  of 
an  interest. 


water  so  as  to  derogate  from  the  rights  of  those  through 
whose  lands  the  stream  would  otherwise  flow.  It  was 
further  held  that  the  right  under  the  permission  might 
be  terminated  by  revocation  of  the  latter,  but  that  such 
revocation  would  only  be  permitted  on  the  terms  of  the 
landlord  paying  to  the  tenant  the  expenses  which  that 
permission  had  led  him  to  incur.  Even  when  the  dominant 
and  servient  tenements  are  the  property  of  different  per- 
sons, a  man  may  license  an  act  in  its  inception  and  yet  be 
entitled  to  relief  when  the  act  is  found  to  have  injurious 
consequences  which  he  could  not  have  contemplated  at 
the  time  of  the  license. 

(q)     In  Krishna  v.  Rayappa  Shanbhaga/1)  which  was 
a  suit  to  establish  a  right  of  water  and  for  damages  for 
interruption  of  the  same,  plaintiff  and  defendant  by  agree- 
ment between  them,  constructed  a  dam  across  a  main 
channel,  and  from  thence  a  smaller  channel  was  made 
through  the  land  of  the  defendant  to  the  plaintiff's  land 
by  means  of  which  it  was  agreed  that  the  plaintiff  should 
be  at  liberty  to  irrigate  his  fields.     This  agreement  was 
acted  upon  for  a  long  course  of  years.     It  was  held  that 
the  agreement  was  not  a  mere  parol  license  revocable  at 
the  pleasure  of  the  defendant,  but  an  agreement  which 
created  a  right  of  easement,  unlimited  in  point  of  time 
to  the  use  of  the  water  by  the  plaintiff,  and  imposed  upon 
the  defendant  the  corresponding  duty  of  allowing  the- 
accustomed  supply  to  flow.     A  mere  license  differs  in  its 
effects  from   a  license  coupled  with  the  creation  of  an 
interest.     The  former  is  revocable,  but  the  latter  is  subject 
to  the  same  incidents,  and  is  as  binding  and  irrevocable 
as  any  other  contract,  gift,  or  grant.     The  law  in   this 
country   does  not  require  that. any  agreement  between 
natives,  whether  in  regard  to  the  transfer  or  creation  of 
an  interest  in  land,  or  otherwise,  should  be  in    writing ; 
nor  does  it  distinguish  between  agreements  under  seal 
and  by  parol.     The  Transfer  of  Property  Act  has  intro- 
duced some  change  in  this  respect. 


(1)  4  M.  H.  C.  R.,  08. 


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8KC.  26]    PABT  IV. — ACQUISITION  0?  0WNEB8HIP  BY  P088ESSION.  229 

(r)     In  Madanmahan  Sen  v.  Chandrakumar  Mooker-  Suit  for  tres- 

M,     „     ,,  .  ,.  *%.,.»,      P*m  andfto  res- 

iee  W   Q,  the  owner  of   certain  property  sold  it  in  lots  train  the  open- 

I     j-j«  *  m.         i    •'*•*  \        *  -x-         ingofdoorsKto 

to  different  persons.     The  plaintiffs  purchased  a  portion  a  lano  over 

*.,  m.  *,,.«•*  *  .       which  plaintiff. 

of  the  property,  and  obtained  from  Q  a  conveyance,  in  had  a  right  of 

which  the  southern  boundary  of  the  land  purchased  by  (jSy  lew.) 

them  was  stated  to  be  "  the  land  of  the  said  Q,  out  of 

which  he  has  allowed  a  passage  6  feet  broad  running 

almost  straight  west  to  east  and  terminating  on  another 

passage  leading,  Ac. ;"  the  deed  continued,  "  which  two 

passages,  the  said  0  has  granted  and  allowed,  and  doth 

hereby  grant  and  allow  to"  the  plaintiffs,  "  their  heirs, 

representatives,  and  assigns,  and  all  the  other  purchasers 

of  the  northern  portion  of  the  said  pieces  of  land,  <fcc., 

together  also  with  the  right  of  the  two  passages  for  ingress 

and  egress  hereinbefore  mentioned."     In  a  second  deed, 

conveying  another  parcel  of  land  to  the  plaintiffs,  0  said, 

with  reference  to  the  latter  passage,  "  no  one  shall  be  able 

to  throw  sweepings  or  filth  on  the  said  road,  or  make  it 

unclean ;  if  any  one  does  at  any  time  act  thus,  you  will 

deal  with  him  according  to  the   laws   in  force/'     The 

defendant  had  become  possessed  of  part  of  the  northern 

portion  of  the  land  sold  by  G,  and  he  also  owned  under 

a  distinct  title  a  house  abutting  on  the  lane  in  dispute, 

but  having  no  doors  opening  into  it.     Shortly  before  the  Shortly  before" 

institution  of  the  present  suit,  the  defendant  constructed  opened  three 

doors,  and  used 

three  doors  opening  on  to  the  lane,  two  of  which  were  two  for  cleaning 

privies  and  one 

used  for  the  purpose  of  cleaning  two  privies  on  the  def en-  as  means  of  ac- 

.  cess  to  the  lane. 

dant's  premises,  and  the  third  was  used  by  the  defen- 
dant and  his  servants  as  a  means  of  access  to  the  lane. 
In  a  suit  by  plaintiffs,  seeking  damage  for  trespass  and 
an  injunction  against  the  wrongful  user  of  the  lane  by  the 
defendant,  and  praying  that  he  might  be  ordered  to  close 
the  three  doors,  it  was  held  (per  Couch,  C.  J.,  and  Markby 
J.,)  overruling  the  decision  of  Macpherson,  J.,  that  the 
plaintiffs  had  not  such  a  property  in  the  soil  of  the  lane 
as  would  entitle  them  to  prevent  the  defendant  from 
making  new  doors  on  to  the  lane  and  to  restrain  him  from 

(1)  9  B.  L.  R.,  328. 

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280  PART  IV. — ACQUISITION  OF  OWNERSHIP  BY  POSSESSION.    [sBC  26 

Defendant wm  using  the  doors  already  made;  they  had  only  a  right 

using  door.  of  way :  bat  an  injunction  was  granted  restraining  the 

ingprivieeorin  defendant  from  using  his  door- ways  for  the  purpose  of 

manner  so  as  to  cleaning  his  privies,  or  in  any  other  manner  so  as  to 

obstruct   the 

plaintiff.  obstruct  the  free  use  by  the  plaintiffs  of  the  lane. 

Bight  of  pa*-        (s)     In  Doorga  Churn  Dhur  v.  Kally  Coomar  Sen/1) 

the  rainy  reason  it  was  held  that  a  right  of  passage  for  boats  in  the  rainy 

over  a  channel 

wholly  in  an-    season  over  a  channel,  wholly  in  another  man's  land,  is, 

other's  land,  is    .  '  J         ^  .       '       I 

analogous  to  an  in  respect  of  extent,  analogous  to  an  ordinary  right  of 
of  way.  way  ;  and  the  dominant  owner  cannot  complain  of  the 

servient  owner's  narrowing  the  channel,  so  long  as  the 
latter,  by  so  doing,  does  not  prevent  the  former  from  pass- 
ing and  repassing  as  conveniently  as  he  has  always  been 
Passage  oyer     accustomed  to  do.     A  right  of  passage  for  boats  in  the 

another's  tank  .  °  '  °  . 

to  be  valid,  must  rainy  season  over  another  person  s  tank  must  be  claimed 

be  claimed  in  a 

particular  di-     in  a  particular  direction  in  order  to  be  valid.     Garth,  C. 
(March  1881.)      J.,  observes,  "  we  believe  that  the  law  upon  the  subject  is 
thus  correctly  laid  down  in  Goddard  on  Easements."     *  It 
may  be  mentioned  here,  that  a  right  of  way  along  a  pri- 
vate road  belonging  to  another  person,  does  not  give  the 
dominant  owner  a  right,  that  the  road  shall,  in  no  respect, 
be  altered,  or  the  width  decreased ;  for  his  right  does  not 
entitle  him  to  the  use  of  the  whole  of  the  road,  unless  the 
whole  width  of  the  road  is  necessary  for  his  purpose  ;  but 
it  is  merely  a  right  to  pass   with  the  convenience  to 
which  he  has  been  accustomed.     The  right,  therefore, 
merely  extends  to  that  portion  of  the  centre  of  the  road 
The  obligation    which  is  necessary  for  the  due  exercise  of  the  right  of 
owner  isthathe  passage.     The  only  obligation  upon  the  servient  owner  is, 
raaronabiy1111      'that  he  shall  not  unreasonably  contract  the  width  of  the 
or^nder*paa£  road,  or  render  the  exercise,  of  the  right  of  passing  less 
ing  leas  easy.      eftgy  than  it  was  at  the  time  of  the  grant.' 
To  establish  *        (t)     In  Koylash  Ch under  Ghose  v.  Sonatun   Chung 
tuai  nser  with-  Barooie/2*  the  plaintiffs  sued  on  the  6th  of  April,  1878, 
previous  to  suit,  to  remove  obstruction  to  a  right  of  way  for  boats  in  the 
under  this  sec-  rainy  season.     The  defendants  admitted  the  obstruction, 
(April  1881.)        but  denied  the  right  of  way.    The  plaintiffs  proved  that  the 

(1)  I.  L.  R.,  7  Oalc.  146.  |      (2)  I.  L.  E.,  7  Calc,  132. 

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SIC.  26]    PART  IV. — ACQUISITION  OF  OWNERSHIP  BY  POSSESSION.  231 

right  was  peaceably  and  openly  enjoyed,  and  actually 
used  by  tbem  claiming  title  thereto  as  an  easement  and 
as  of  right  without  interruption  from  before  1855  down 
to  November,  1875,  since  when,  no  actual  user  of  the  way 
by  the  plaintiffs  had  taken  place.  The  Lower  Appellate 
Court  dismissed  the  suit  on  the  ground  that  the  plaintiffs 
had  made  no  actual  use  of  the  way  within  two  years 
previous  to  the  institution  of  the  suit.  It  was  held,  rever- 
sing the  decision  of  the  court  below,  that,  notwithstand- 
ing Act  XV  of  1877,  section  26,  illustration  (o),  actual 
user  within  two  years  previous  to  the  institution  of  the 
suit  is  not  necessary  in  order  that  the  right  claimed  may 
be  acquired  under  this  section.  Illustrations  in  Acts  illustrations 
of  the  Legislature  ought  never  to  be  allowed  to  control  be* allowed  to 
the  plain  meaning  of  the  section  to  which  they  are  ap-  plain  meaning 
pended,  especially  when  the  effect  would  be  to  curtail  a  to  which  they 
right  which  the  section  in  its  ordinary  sense  would  ""^pp611 
confer.  Garth,  0.  J.,  observes  :  "  The  26th  section  of  the 
Limitation  Act  only  renders  it  necessary,  as  far  as  we  can 
see,  that  the  enjoyment  of  the  right  claimed  should  have* 
continued  till  within  two  years  before  suit.  The  section 
says  not  a  word  as  to  any  actual  user  or  exercise  of  the 
right  within  the  two  years.  It  is  obvious  to  us,  that  the 
enjoyment  intended  by  the  section  means  something  very 
different  from  actual  user.  In  order  to  establish  the 
right,  the  enjoyment  of  it  must  continue  for  20  years ;  but 
in  the  case  of  discontinuous  easements,  this  does  not  mean 
that  actual  user  is  to  continue  for  the  whole  period  of  20 
years.  On  the  contrary,  there  may  be  days  and  weeks  and 
months,  during  which  the  right  may  not  be  exercised  at 
all,  and  yet  during  all  those  days  and  weeks  and  months, 
the  person  claiming  the  right  may  have  been  in  full 
enjoyment  of  it.  The  easement  with  which  we  have  to 
deal  in  the  present  case  affords  a  remarkable  illustration 
of  this.  The  right  which  the  plaintiff's  claim  can 
only  be  used  by  them  during  the  two  or  three  months 
of  the  year  when  the  defendants'  land  is  flooded ;  and  if 
there  were  a  lack  of  rain,  it  is  probable,  that  even  for 
20  or  21  months,  the  right  might  not  be  exercised  at  all ; 


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232  PART  IV. — ACQUISITION  O*  OWNKR8HIP  BY  POS81S8IOH.    [8EC.  26 

and  yet,  so  long  as  the  plaintiffs'  right  was"  not  interfered 
with  whenever  they  had  occasion  to  use  it,  their  enjoy- 
ment must,  we  conceive,  be  considered  as  cod  tinning 
during  all  the  year  round." 

"  Unless  this  were  so,  a  person  in  the  plaintiff's  posi- 
tion, who  could  only  use  his  right  during  a  short  period 
of  the  year,  could  never  gain  a  prescriptive  right  at  all." 
20  years'  user        (u)     In  Parmeshari  Pros  had  Narain  Singh  v.  Mahomed 
right  of  private   Syud,(1)  the  plaintiffs  claimed  an  exclusive  right  of  ferry 
ingtoUa.  across  a  river  from  .their  own  ghat  on  the  eastern  side  to 

(  anuary       .    ^e  gjja^  0f  ^ne  defendant  on  the  western  side  of  the  river. 
They  claimed  not  only  the  right  to  carry  passengers  and 
to  take  tolls  from  them,  but  also  to  exclude  the  defendant 
from  interfering  with  their  profits  by  exercising  a  similar 
right  of  ferry  on  the  western  side.     It  was  held,  that  the 
right  of  establishing  a  private  ferry  and  levying  tolls  is 
recognised  in  British  India,   and  that  20  years   is  the 
shortest  period  within  which  such  a  right  of  ferry  can  be 
^established  by  user. 
Eight  to  the      *  (v)     In*  Ramessur   Persad    Narain    Sing  v.   Koonj 
th^h^an**      Behari  Pattuk,<2>  the  Privy  Council  held  that  the  right  to 
cowecon?^  water  flowing  to  a  man's  land  through  an  artificial  water- 
SeShbour's1  *    course,  constructed  on  a  neighbour's  land,  must  rest  on 
<m  aome^grant  some  grant  or  arrangement,  proved,  or  presumed,  from  or 
pro'^edTp0^    with  the    owner  of    tbe    land    fr0m   which   the    Water    i8 

earned.  artificially  brought,  or  on  some  other  legal  origin.     Such 

a  right  may  be  presumed  from  the  time,  manner,  and 
circumstances  under  which  the  easement  has  been  en- 
joyed. 
sirM. B.Smith,  (w)  There  is  no  doubt  that  the  right  to  the  water  of 
to'water  'of* a  a  river  flowing  in  a  natural  channel  through  a  man's  land, 
a  M£mTichai£  and  the  right  to  water  flowing  to  it  through  an  artificial 
man^uSd1  and  water-course  constructed  on  his  neighbour's  land,  do  not 
an  artificial  r°  rest  on  the  same  principle.  In  the  former  case,  each 
not^rert^the  successive  riparian  proprietor,  is,  primd  facie,  entitled  to 
ground.  ^e  unimpe(je(j  flow  0f  the  water  in  its  natural  course, 
and  to  its  reasonable  enjoyment  as  it  passes  through  his 

(1)  I.  L.  B.,  6  Calo.,  606.   |    (2)  I.  L.  E.,  4  Calc,  688. 

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8BC.  26]    PART  IV. — ACQUISITION  OF  OWNERSHIP  BY  POSSESSION.  238 

land,  as  a  natural  incident  to  his  ownership  of  it.     In  the  Each  successive 
latter,  any  right  to  the  flow  of  the  water  must  rest  entitled  to  an- 

,      .,,  ,  ,      impeded  flow  of 

on  some  grant  or  arrangement,  either  proved  or  presumed,  water  in  a  na- 
from  or  with  the  owners  of  the  lands  from  which  the 
water  is  artificially  brought,  or  on  some  other  legal 
origin.  The  above  distinction  seems  to  be  now  clearly 
established,  for,  although  it  was  said  by  the  Court  of 
Queen's  Bench,  in  the  case  of  Magor  v.  Ghadwick,  (11, 
A.  &  £.,  571,  p.  586),  that  it  was  no  mis-direction  to  tell 
the  jury  'that  the  law  oi  water-courses  is  the  same, 
whether  natural  or  artificial,'  it  was  held  in  the  subsequent 
case  of  Wood  v.  Waud,  (3  Exch.,  748 ;  S.  C,  18 ;  L.  J., 
N.  S.,  Exch.,  305,)  which  appears  to  their  Lordships  to 
be  correctly  decided,  that  this  expression  is  to  be  con- 
sidered as  applicable  to  the  particular  case,  and  that  as  a 
general  proposition  it  would  be  too  broad.  On  the  other 
hand,  it  appears  to  their  Lordships  that  the  proposition 
that  a  right  to  the  use  of  water  flowing  through  an  arti- 
ficial channel  cannot  be  presumed  from  the  time,  manner, 
and  circumstances  of  its  enjoyment,  is  equally  too  broad 
and  untenable. 

•  It  was  said  by  the  court,  in  Wood  v.  Waud.  We  entirely 
v  concur  with  Lord  Denman,  C.  J.,  that  the  proposition 
that  a  water-course,  of  whatever  antiquity,  and  in  what- 
ever degree  enjoyed  by  numerous  persons,  cannot  be 
enjoyed  so  as  to  confer  a  right  to  the  use  of  the  water, 
if  proved  to  have  been  originally  artificial,  is  quite 
indefensible ;  but,  on  the  other  hand,  the  general  propo- 
sition, that  under  all  circumstances,  the  right  to  water- 
courses, arising  from  enjoyment,  is  the  same,  whether 
they  be  natural  or  artificial,  cannot  possibly  be  sustained. 
The  right  to  artificial  water-courses  as  against  the  party  Right  of  pro- 
creating them  surely  must  depend  upon  the  character  of  SiSai  water- 
the  water-course,  whether  it  be  of  a  permanent  or  tempo-  on  its  character 

.  .         and  the  eircnm- 

rary  nature,  and  upon  the  circumstances  under  which  stances  under 

.,    /  A     , i         mi.  .  0  *  wbi0h    tt    Wa* 

it  is  created.     The  enjoyment  for  20  years  of  a  stream  created, 
diverted  or  penned  up  by  permanent  embankments  clearly 
stands  upon  a  different  footing  from  the  enjoyment  of  a 
30 


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234        PABT  IV. — ACQUISITION  07  0WKIK8HIP  BT  P08818SIOH.    [SBC,  26 

flow  of  water  originating  in  the  mode  of  occupation,  or 

alteration  of  a  person's  property,  and  presumably  of  a 

temporary  character,  and  liable  to  variations.' 

In  a  case  which  occurred  soon  after  this  decision — 

Greatrex   v.    Hayward,   (8   Exch.,   291)— Baron    Parke 

shortly  states  the  principle  thus.     'The  right   of  the 

party  to  an  artificial  water-course,  as  against  the  party 

creating  it,  must  depend  upon  the  character  of  the  water* 

*  course  and  the  circumstances  under  which  it  was  created.' 

Long  enjoy-  (x)     In  Rajrup  Koer  v.  Abul  Hossein/1)  more  than 

for  to  legal    '  20  years,  and  possibly  50  or  60,  before  the  suit,  the  plain- 

user  to  rapport  tiffs  ancestors  and  predecessors  in  estate  had  constructed 

grant  or  agree-  and  used  a  pain,  or  artificial  water-course,  on  the  defen- 

eaaement  inde-    dant's  land,  making  conpensation  to  them.    The  pain,  by  a 
pendently  of  the      1  _  . 

Act.  channel  at  one  part  of  its  course  contributed  to  the  water  in 

a  taly  or  reservoir,  belonging  to  the  defendants ;  and  by  a 
channel  at  another  part,  took  the  water  which  overflowed 
from  the  tal,  after  the  defendants  had  used  as  much  of  the 
water  therein  as  they  required.     Less  than  20  years  before 
the  suit,  the  defendants,  without  authority,  obstructed  the 
flow  of  water  along  the  pain  in  several  places.     The  courts 
below  differed  as  to  whether  some  of  these  obstructions  had 
not  been  made  more  than  two  years  before  the  suit,  the  rest 
having  been  made  within  that  period.     It  was  held,  that 
the  provisions  of  Act  IX  of  1871,  a  remedial  Act  and 
neither  prohibitory  nor  exhaustive,  did  not  exclude,  or 
Title  may  be  ac-  interfere  with  the  acquirement  of  rights  otherwise  than 
tn^rActUbyB'a     under  them.     A  title  might  be  acquired  under  that  Act 
nT^her^rigift,   by  a  person  having  no  other  right  at  all ;  but  it  did  not 
exclude  other     exclude,  or  interfere  with  other  titles  and  modes  of  acquir- 
ed acquiring      ing  easements.      And  section  27,  by  allowing  a  user  of 
easements*  ^q  years,  if  exercised  until  within  two  years  of  suit  under 

the  conditions  prescribed,  to  give,  without  more,  a  title, 
did  not  prevent  proof  of  an  easement  founded  on  another 
title  independently  of  the  Act.  Such  a  long  enjoyment  as 
the  plaintiff  had  proved  should  be  referred  to  a  legal  origin, 
and   the  long  user  of  the  pain  and  of  the   superfluous 

(1)  I.  L.  R.,  6  Calo.,  394. 

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4838C.  26]    PART  IY. — ACQUISITION  OF  OWNERSHIP  BY  POSSESSION. 


235 


water  of  the  foZ,  afforded  evidence,  giving  rise  to  a 
presumption  that  a  grant,  or  an  agreement,  had  been 
made,  creating  an  easement.  Although,  on  the  assump- 
tion that  some  of  the  obstructions  in  question  had  existed 
for  more  than  two  years  before  the  suit,  the  plaintiff 
might  not  have  shown  a  right  under  Act  IX  of  1871, 
section  27,  jet  he  did  not  require  its  aid. 

(y)  In  Ami  Jagirdar  v.  Secretary  of  State  for  India/1) 
the  plaintiff  claimed  a  right  to  the  uninterrupted  flow  of 
water  as  a  hereditary  and  customary  right.  The  District 
Judge,  referring  to  section  27,  dismissed  the  suit  because 
it  was  a  suit  to  establish  a  right  in  the  nature  of  an  ease* 
ment,  and  there  had  been  no  user  for  the  two  years  next 
preceding  the  suit.  A  Division  Bench,  (Kindersley  and 
Muttusami  Ayyar,  J.  J.,)  reversing  the  decision  in  January, 
1880,  held  that  the  plaintiff  has  not  claimed  any  statutory 
right,  and  that  the  right  claimed  may  exist  independently 
of  the  provision  of  section  27,  and  remanded  the  suit.  In 
this  they  followed  the  ruling  of  the  Privy  Council  in  the 
case  of  Maharani  Bajrup  Koer  v.  Syed  Abdul  Hossein,  <*) 
in  which  their  Lordships,  reversing  the  decision  of  the 
Calcutta  High  Court,  which  dismissed  the  suit  on  the 
ground  that  the  plaintiff  had  not  come  into  court  within 
two  years  from  the  date  of  infringement  of  his  right, 
observed  that  Act  IX  of  1871  contained  two  sets  of  provi- 
sions distinct  from  each  other ;  one  relating  to  the  limi- 
tation of  suits,  the  other  enacting'  a  mode  of  acquiring 
ownership  by  possession  or  enjoyment,  and  that  the  object 
of  the  last  mentioned  part  of  the  statute,  was  to  make  more 
easy  the  establishment  of  rights  of  this  description,  but 
that  the  statute  was  remedial  and  neither  prohibitory  nor 
exhaustive.  In  Kurupam  Zamindar  v.  Merangi  Zamin- 
dar,<3)  the  plaintiff  sued  to  establish  his  customary  right  to 
erect  a  dam  across  a  stream.  In  the  second  appeal  it  was 
contended  that  if  the  easement  claimed  was  not  by  grant, 
it  can  only  be  claimed   by  prescription,  and  under  the 


M.  H, 

Suit  to  recover 
a  hereditary 
and  customary 
right  to  flow  of 
water,   will  lie 
within  12  years 
from  the  date  of 
cause  of  action. 
fJany.  1890) 
District  Judge 
rejected  the  suit 
on  the   ground 
of  non-user 
within   two 
years  preceding 
the  suit. 


M.  H.  remand- 
ed the  suit  on 
the  ground  that 
plaintiff  had 
not  claimed  the 
statutory  right. 


The  statute  is 
remedial  and 
neither  prohibi- 
tory nor  ex- 
haustive. 

Another  Madras 


(1)  LL.E,5  Mad^  226.      I      (2)  L.  R.,  7, 1.  A.,  24a 
(3)  LL.B.,5  Mad.,  253. 


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236  PAST  IV. — ACQUISITION  OP  OWNERSHIP  BT  F088B88ION.    [88C.  26 

Limitation  Act  the  suit  was  barred.     The  court  held  that 

there  was  nothing  in  this  Act  XV  of  1877  to  prevent  a 

person  from  suing  to  establish  his  right  to  an  easement 

acquired  tinder  the  law  in  force  prior  to  that  Act,  and  that 

the  provisions  of  section  4  of  the  Act  apply  only  to  the 

b.  h.  also  beid  periods  named  in  the  second  schedule.     The  above  deci- 

m*  sion  was  followed  in  Pnnja  Kuvarji  v.  Bai  Kuvar.<l> 

Superior  rip*-         (z)     In  Subramaniya  Ayyar  v.  Bamachandra  Row,W 

tor^  n££tto.    the  plaintiffs  have    lands  in  a  village.     South-east   of 

notaneaeement  these  lands,  and  running  south,  is  the  stream  P,  along  the 

^£Jringof  Act  banks  of  which  the  plaintiffs'  lands  lie.     At  a  point  on 


the  east  side  of  this,  another  stream  (the  one  in  dispute) 
branches  off,  running  west  at  right  angles  to  the  stream  P. 
Plaintiffs  have  lands  on  the  banks  of  this  stream  also. 
They  are  therfore,  as  regards  these  two  streams,  riparian 
proprietors.     It  is  found  that  the  accustomed  course  of 
things  was  for  the  water  from  the  lands  of  plaintiffs  to 
drain  into  the  stream  P,  and  for  the  stream,  about  which 
the  contention  is,  to  receive  such  water  as  might  fall  into 
it   from   the    stream  P,   and  to  flow  onward   without 
obstruction.     Defendants,  however,  obstructed  the  flow 
of    the  stream,  and  thus  forced    back  the  water  and 
obstructed  the  drainage  of  plaintiffs'  lands  to  the  west 
Lower  riparian  of  the  stream  P.     A  lower  riparian  proprietor  can  only 
Riocking  up  the  justify  an  act  of  this  kind  if  he  has  acquired  an  ease- 
jufttiify'itoniyif  ment  to  do  it.     But   defendants  have   not  asserted  or 
quired  an  ease-  attempted  to  establish  a  right  of  easement  to  infringe 
Bien  upon  the  plaintiffs'  natural  right  of  property  by  obstruct- 

ing the  natural  flow  of  the  stream  and  keeping  water 
standing  upon  plaintiffs'  land.  Such  an  act  is  an  inter- 
ference with  a  right  of  property  which  the  plaintiffs, 
riparian  proprietors,  have  to  the  accustomed  flow  of  the 
stream,  and  is  actionable  whether  special  damage  has  or 
has  not  accrued,  (Wood  v.  Wand  3  Exoh.,  748,  773)  because 
the  injury  to  the  right  imports  a  damage.  The  action 
lies  equally  for  continuing  as  for  creating  a  nuisance,  and 
so  long  as  the  obstruction  is  continued,  there  is  a  con- 


(1)  I.  L.  R.,  6  Bom.,  20.      |      (2)  I.  L.  B.,  1  Mad.,  885. 


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SEC.  26]    PABT  IV. — ACQUISITION  OF  OWNERSHIP  BY  POSSESSION*  237 

tinual  cause  of  action  from  day  to  day.  (Battishill  v. 
Beid,  18  C.  B.,  696  L.  J.,  25  C,  page  290.)  Ii  is  part  of 
the  defendants'  case  that  the  flow  of  the  stream  is 
obstructed  by  them. 

(2-a)     In  Kristna  Ayyan  v.  Vencatachella  Mndali.W  Government,  as 

v  7  JJ  propHetor   of  a 

the  plaintiffs,  as  shareholders  in  and  heads  of  the  villages  channel,  nave 

•  *   .  j  -^     •  .i     i.         -.  *  .   .         .  •        "***  to  diBtri- 
of  Ariyur  and  Kuyirikndi,  sned  for  an  mi  unction  directing?  bote  the  water 

*  in  the   channel 

the  defendants  to  close  an  irrigation  channel  which  was  for  public  bene- 

,  .     _  _  _  _        _  ,  ,    ,  nt.  subject  to  H- 

opened  in  loo9  and  to  remove  the  sluice.   It  appeared  that  a  mlted  use  by 

*  rr  plaintiffs   and 

channel  called  Kaduvai  had,  by  means  of  a  branch,  for  very  other  villages  in 

J  ''the   same  posi- 

many  years  supplied  the  plaintiffs  village  with  water,  tion  as  piain- 
The  village  of  Partical,  of  which  the  1st  defendant  was 
Mirasidar,  up  to  the  date  of  the  opening  of  the  new  chan- 
nel, had  received  its  supply  from  the  Mallattar  channel. 
The  supply  from  this  was  insufficient,  and  the  2nd  defen- 
dant, the  Superintending  Engineer,  (representing  Govern- 
ment) designed  a  new  channel  from  the  Kaduvai  to  sup- 
plement the  deficiency  of  the  Mallattar.  The  water  of 
the  Kaduvai  was  diverted  into  the  new  channel  at  a  point 
above  the  point  of  divergence  of  the  branch  channel  from 
the  Kaduvai  to  the  plaintiffs'  village.  The  relief  was 
prayed  for  in  the  court  of  first  instance  on  the  ground  that 
the  supply  by  the  Kaduvai  had  never  been  sufficient 
for  the  wants  of  the  village  and  that  the  new  channel 
must  necessarily  cause  a  still  further  deficiency.  The 
Civil  Judge  found  that  the  plaintiffs  had  sustained  no  loss 
by  the  opening  of  the  new  channel,  and  dismissed  the  suit. 
On  appeal,  it  was  contended ;  first,  the  plaintiffs  had  an  Plaintiffs  claim- 
absolute  right  to  the  uninterrupted  flow  of  all  the  water  in  rtoht  to  the  flow 
the  Kaduvai  channel  without  subtraction  or  diminution  without  anv  <u« 
by  the  defendants  or  by  the  Government  represented  by  the  Government 
2nd  defendant,  and  that  any  diminution,  though  not  caus- 
ing loss,  was  an  invasion  of  their  rights ;  second,  that  if 
they  had  not  such  absolute  right,  they  had  a  right  to  a 
supply  of  water  for  the  necessary  purposes  of  irrigation, 
and  otherwise  for  their  village,  and  that  the  possibility  of 
loss  at  some  future  time,  arising  from  a  possible  wrongful 


(1)  7  M.  H.  0.  R.,  60. 


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238  PART  IV.— ACQUISITION  OP  OWNEE8HIP  BY  POSSESSION.    [sEC.  26 

diminution  of  the  water  to  their  detriment  through  the 

new  slnice  and  channel,  entitled  them  to  the  relief  claimed* 

it  wan  held  they  Upon  the  first  point,  it  was  held  that  the  plaintiffs  had  not 

had  no  such  ex-        K  r  * 

tensive  and  ex-  the  extensive  and  exclusive  right  to  the  water  contended 

elusive  right  as  ° 

they  contended  for  by  them,  but  that  their  right  was  limited  to  the  bene- 
ficial enjoyment  of  the  water  for  the  irrigation  and  other 
necessary  purposes  of  their  tenancies  as  heretofore  enjoy- 
ed. Also  that  the  Government,  as  proprietor  of  the  Ka- 
duvai  channel  and  water  in  it,  had,  subject  to  the  above 
limited  use  by  the  plaintiffs  and  other  villages  in  the  same 
position  as  the  plaintiffs,  a  right  to  distribute  the  water  of 
the  Kaduvai  channel  for  the  benefit  of  the  public.  Upon 
the  second  point,  it  was  held  that  no  ground  existed  for 
granting  an  injunction,  as  no  right  of  the  plaintiffs  had 
been  invaded,  no  damage  had  accrued,  and  no  case  of  pros- 
pective damage  had  been  made  out. 

Case  where  (2-t>)     The  tank  used  for  the  irrigation  of  the  plain- 

plaintifl   claim-    ,.—  ,.,,  ,.    *  .  .  ,  .  -  „. 

ed  prescriptive  tiffs  village  was  supplied  in  part  by  ram  water  falling  on 

right   to  throw  .  „ 

back  water  on  the  lands  of  the  v ill aee  occupied  by  defendants  9  to  17, 

defendants'  or* 

land  tin  it        and  the  bund  of  the  tank  used  formerly  to  throw  back 

area  of  a  tank,  the  water  so  flowing  into  the  tank  on  to  the  lands   of 

defendants,  where  it  remained  till  gradually  drawn  off 

into  the  area  of  the  tank.     Defendants  9  to  17,  through 

it  was  held       the  agency  of  the  Government,  relieved  themselves  of 

there  was  no  ob-    .,  .     .  .  ,  ,  .  -    .        ,      .    .  —  .. 

ject  over  which  this  inconvenience  by  making  a  work  for  draining  off  the 
b^acqolredT  water  so  periodically  thrown  back  upon  their  land.  A 
channel  was  also  constructed  for  conducting  a  supply  of 
water  to  the  plaintiffs'  tank.  Plaintiffs,  however,  claimed 
to  have  the  former  state  of  things  restored,  on  the  ground 
that  they  had  a  prescriptive  right  to  throw  back  the 
water  on  to  defendants'  lands  and  to  keep  it  there  till 
required  for  use.  It  was  held  that  there  was  no  ob- 
ject over  which  a  right  could  be  acquired.  Robinson  v. 
Ayya  Krishnamachariyar.W  In  Becharam  Chowdhry  v. 
Puhubnathjha/2)  it  was  held,  that  no  proprietor  can  law- 
fully pen  back  the  water  of  a  stream  by  erecting  a  bund 

(1)  7  M.  H.  0.  B.,  37. 

(2)  2  B.  L.  R.,  App.,  63. 


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SIC.  26]    PART  IT. — ACQUISITION  OF  OWNERSHIP  BY  POSSBSSIOH.  239 

upon  his  own  land,  so  as  to  inundate  the   land  of  his 
neighbour  without  his  license  and  consent. 

(2-C)  In  F.  H.  Holloway  v.  Mahomad  Ali,*1)  it  was  AoMhanrhw 
held  that  a  co-sharer  in  landed  property  has  no  right  to  the  condition  of 
do  anything  which  alters  the  condition  of  the  joint-pro-   without  tWoon- 

J  ft  J  r  sent  of  bis  «~- 

sharero. 
(July  1871.) 


perty  without  the  consent  of  the  other  co-sharers.     To   sharers. 


build  a  factory  on  such  property,  only  upon  a  title  derived 
from  one  co-sharer  without  the  consent  of  the  others,  in- 
volves an  infringement  of  the  rights  of  those  co-sharers, 
and  this  infringement  involves  an  injury. 

(2-d)     In  Bissambur  Shaha  v.  Shib  Chunder  Shaha/*>    s  27  of  Act  ix 

x  '  of  1871,  held  in- 

it  was  held  that  section  27  of  Act  IX  of  1871  does  not  applicable  to  a 

.  .  auft  to  restrain 

apply  to  a  suit  to  restrain  one  co-sharer  in  a  lomt  pro-   on«  co-eharer 

.      .  .  .  from  appropri- 

perty  from  appropriating  to  his  own  particular  use  a  por-   •*>**«  Joint- 
tion  of  such  property  without  the  consent  of  other  co-  °^n  «ae  witn- 

*  0  ont  other  co- 

8harer8.  sharere'  consent 

(July  1874.) 

(2-6 )     In  Mussamut  Amjudee  Begum  v.  Syud  Ahmed  Right  of  user  of 
Ho8sein,<3)  it  was  held  that  where  a  right  of  user  of  a  drain  passage  Sci- 
or  passage  is  incidental  to  a  house,  that  right  is  not  affect-  house,  isnot  af- 
ed  by  the  owner  of  the  house  letting  the  house  to  a  tenant,   u  to  a  tienant?* 
If  the  court  find  the  plaintiff  to  possess  a  right  to  the      ec*  868#' 
user,  it  may  be  exercised  at  all  times,  and  by  any  person 
who  may  be  placed  in  the  shoes  of  the  plaintiffs  in  regard 
to  the  property  in  question. 

(2-f)     In  Huree  Madhub   Lahiree  v.   Hem  Chunder  Bight  to  ease- 
Gossamee,(4)  it  was  held  that,  the  rule  that  the  right  to  ^S^m^tS^ 
easements  goes  with  the  property  when  sold  by  the  owner  Se^JSeTor  by 
himself,  applies  also  when  the  property  is  sold  by  the  (Sept.  1874. 
court  in  execution  of  a  decree  against  him.     The  reason 
for  the  rule  as  to  easements  going  with  the  property  is  that 
the  disposition  of  the  property  by  the  owner  is  supposed 
to  have  been  made  with  reference  to  the  best  way  of  sell- 
ing the  property,  and  realizing  the  full  value  of  it  is  to 
sell  it  with  such  rights  as  the  owner  thought  should  be 
attached  to  particular  parts  of  it. 

(2-g)     In  Loseby  v.  CarrW  the  drains  of  certain  houses   such  right  to  go 

with  property, 

(1)  16  W.  R.,  140.  I  (3)  6.  W.  R.,  814.  SiedatthetinS 

(2)  22  W.  R.,  286.  |  (4)  22  W.  R.,  522.  of  sale. 

(5)  2  Ind.  Law,  J.  88a 


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eom1*"dh^dto   adjoining  houses  having  a  space  between  them  belonging 
TtS u  rSi^*  *°  *ne  P**"1^  •     The  roof  of  the  defendant's  house,  built 


240  PART  IV. — ACQUISITION  OF  OWNERSHIP  BY  POSSESSION,    [sic.  26 

had  not  been  used  up  to  the  date  of  the  conveyance  of  the 
houses  to  the  plaintiffs.  It  was  held  that  the  right  to 
drain  into  the  main  drains  of  defendant's  house  was  not  in 
existence  at  the  date,  and  that,  therefore,  it  did  not  pass 
to  the  plaintiffs  by  the  conveyance  to  him  by  the  original 
proprietor. 
Plaintiff  sued  (2-h)     In  Mohanlal  Jechand  v.  Amratlal  BechardasW 

to  remove  de-  xm0  **' 

feniecti  *  r0°f    ^e  P***11^  an<^  defendant  were  owners  respectively  of  two 

nifl  Ian' 
npel 

»f  the 

water  of  plain-  more  than  30  years  previously,  projected  over  a  part  of  this 
space.  The  plaintiff  built  a  new  story  to  his  house  with 
a  roof  overhanging  the  roof  of  the  defendant's  house,  and 
under  an  alleged  custom  of  the  country  (Ahmedabad) 
claimed  a  right  to  remove  a  part  of  the  defendant's  roof 
which  projected  over  his  (plaintiff's)  land.  He  also  sued 
to  establish  his  right  to  an  easement  as  against  the  defen- 
dant and  to  compel  him  to  receive  upon  the  roof  of  his  house 
the  rain-water  which  flowed  from  the  newly  erected  roof 
of  the  plaintiff.  It  was  held,  with  regard  to  the  former 
claim,  that  if  the  enjoyment  by  the  defendant  were  con- 
sidered as  possession  by  him  of  the  space  occupied  by  his 
projecting  roof,  the  Limitation  Act  extinguished  the  plain- 
tiff's right  to  sue,  and  if  such  enjoyment  were  to  be 
regarded  as  a  mere  easement,  then  the  uninterrupted  user 
of  more  than  30  years  vested  in  the  defendant  a  proprie- 
tory right  to  the  same. 

B.  H.  held  right       Held  further,  with  regard  to  the  plaintiff's  claim  to  an 

to  easement  °  r 

coaid  only  be    easement,  that  the  plaintiff  could  only  have  acquired  such 
by  oontract  or  easement  either  by  contract  or  prescription,  on  neither  of 

which  he  relied.     No  custom  can  be  admitted  to  Over-ride 

the  provisions  of  the  Limitation  Act. 
Plaintiff  having       (2-i)     In  Punja   Kuvarji  v.  Bai  Kuvar,(2>    in  which 

immemorial  .      . 

oner  to  drain     plaintiffs  and  defendants  were  owners  of  two  conturuous 
through  defend-  buildings,  the  plaintiff,  on  the  31st  June,  1879,  alleging 

ant'a  drain,  did      _        _  .         .  _  ,  '  '  o© 

not  require  the  that  his  rain-water  had  had  egress  through  the  defendants 

aid  of  this  sec-  .  ° 

tion.  dram   from   time   immemorial,  sued  the   defendants   to 

(1)  I.  L.  R.,  3  Bom.,  174.     |    (2)  I.  L.  R.,  6  Bom.,  30. 

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8*C.  26]     PART  IV. — ACQUISITION  Of  OWNERSHIP  BY  POSSESSION.         241 
• 

remove  the  obstruction  they  placed  on  the  23rd  June,  1 876. 
The  defendant  pleaded  that  the  plaiutiff  not  having 
enjoyed  his  easement  within  two  years  of  the  suit,  the 
claim  was  barred  by  this  section.  Melvill,  J.,  observes 
"  immemorial  user  must  be  referred  to  a  legal  origin,  i.e., 
either  to  a  lost  grant,  or  to  an  agreement  between  the  pre- 
decessors in  title  of  the  parties."  And  inasmuch  as  the 
obstruction  constituted  a  continuing  nuisance,  the  plain- 
tiff's claim  was  not  barred  by  the  Limitation  Act,  but  on 
the  contrary  was  saved  by  section  23. 

(2-j)     In  Akilandammal  v.  S.  Yenkatachala  Mudali.tt)   in  suit  in  ran- 

.  .  pect  of  defen- 

plaintiff   and    defendants,    occupants,  of     neighbouring  dant  raising  hia 

houses,  were  joint  tenants  of  the  party-wall.     Defendants   shoot  r**"- 

.*■  *        *  water  to  plain- 

unroofed  their  house,  raised  the  wall,  and  placed  beams  on  ***'»  adjoining 

r  house,  it  was 

it  to  rebuild  their  house.     The  Lower  Appellate  Court  k«id,  every  tri- 

fling  excess  in 

found,  that,  in  consequence  of  this  alteration,  the  rain  the  exercise  of 
from  the   defendants'  house  descended  upon  plaintiff's   would  not  justi- 

fy  pulling  down 

verandah  and  caused  damage  to  plaintiff,  and  decreed  building. 
that  defendants  should  restore  the  wall  to  its  former 
height,  and  remove  the  beams  placed  on  it.  It  was  held 
on  special  appeal,  that  taking  the  finding  to  be  that 
the  alteration  created,  "  ttillicidium"  where  it  did  not 
exist  before,  or  that  it  rendered  more  burdensome  an 
existent  servitus  stillicidti,  it  would  be  very  dangerous  to 
hold  that  every  trifling  excess  in  the  exercise  of  a  servitude 
should  justify  the  pulling  down  of  the  building  creating 
the  excess,  and  that  in  the  present  case,  the  damages  should 
be  assessed  and  awarded,  and  the  injunction  to  remove 
the  roof  of  the  house  and  reduce  the  wall  be  made  con- 
ditional upon  the  defendant  not  removing  the  cause  of 
the  nuisance. .  In  such  a  case  the  measure  of  damages  is 
the  amount  which  will  induce  the  defendant  to  abate  the 
nuisance. 

(2-k)     In  Askar  v.  Bam  Manik  Roy,W  it  was  held  Mere  permia- 
that  to  constitute  a  right  by  prescription,  the  possession  cannot  create 
must  have  been  as  of  right.     Mere  permissive  possession  ment. 
cannot  be  the  basis  of  right  of  prescription.     In  Mahomed 


(1)  6  M.  H.  C.  B.,  112.      |      (2)  5  B.  L.  R.,  App.,  12. 
31 


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242         PART  IV. — ACQUISITION  OF  OWNERSHIP  BY  POSSESSION.      [SEC.  26 

AH  v.  Jugal  Bam  Chandra,*1)  it  was  held  that,  where  a 
Long  uninter-    claim  to  a  right  of  way  is  supported  by  evidence  of  user 
raises  a  pre-     only,  the  court  mnst  satisfy  itself  whether  or  not  the 
user  was  of      nser  was  founded  on  actual  right.     The  guiding  principle 
being,  that  open  user  of  another's  land  for  the  purposes 
Right  to  foot-     of  a  road  or  path- way,  if  continued  without  interruption 
for  a  long  time  and  not  attributable  to  permission  or  suf- 
ferance, induces  the  presumption  that  the  user  was  of 
May  be  ©stab-    right.     In   Shaikh  Mahomed  Ansur  v.  Shaikh  Sefatool- 
waste-iand.         lah,W  it  was  held  in  July,  1874,  that  a  right  of  user  over 
a  path-way  may  be  established  notwithstanding  that  it 
passes  over  waste-land.     A  temporary  interruption,  such 
as  during  the  rainy  season,  cannot  affect  a  right  of  user, 
observations  of  Kemp,  J.,  observes,  that  if  a  right  of  user  over  a  path-way 
m  *  '  cannot  be  established  where  it  passes  over  waste-land,  the 

right  of  user  over  almost  every  path- way  in  the  mofusgil 
would  be  lost,  inasmuch  as  almost  every  path-way  lies 
Such  may  be     over  waste-land.     In  Imambundee  Begum  v.  Sheo  Dyal 

created  by  J 

grant,  or  by  im-  Ram,(s>  it  was  held  in  August,  1870,  that  a  right  of  way 

memorial  cus-  . 

tomorbyneces-  may  be  created  either  by  grant,  or  by  immemorial  custom 
or  by  necessity,  and  it  is  necessary  for  a  party  seeking  to 
establish  a  right  of  this  kind  to  prove  its  existence,  and 
that  it  is  ancient  and  has  been  exercised  without  inter- 
ruption. No  specific  time  is  sufficient  to  establish  a 
right  of  user.  The  determination  of  the  existence  of  the 
right  is  a  question  depending  on  the  evidence  in  each 
Right  to  drain  case,  tho  right  being  inferred  from  the  evidence.  In 
water  ovw  an-  Poorno  Chunder  Chatterjee  v.  Shurut  Chunder  Bhutta- 
charjee/4)  it  was  held,  that  where  a  party  has  exercised 
the  right  of  passage  of  his  surplus  tank-water  over  the 
land  of  another  openly  and  uninterruptedly  year  by  year 
for  upwards  of  20  years,  a  presumption  arises  that  he 


other's    land. 


Bight  to  a        has  obtained  the  easement  as  of  right.     In  Mohun  Lall 

burial  ground. 

v.  Sheik  Noor  Ahmud,(6>  a  piece  of  land  had  been  used 
from  time  immemorial  by  the  inhabitants  of  a  mohulla 
for  the  purpose  of  burying  their  dead.     It  was  held  that 

(1)  5  B,  L.  B.,  App.,  84.    I      (3)  14  W.  R.,  199. 

(2)  22  W.  R.,  340.  |      (4)  24  W.  R .,  228. 

(6)  1  N.-W.  P.  H.  C.  R.,  202. 


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8KC.  26J      PART  IV. — ACQUISITION  OF  OWNKESHIP  BY  POSSESSION.  248 

such  use    excluded   any   claim  to   exclusive   possession 
by  the  Zemindar  which  interferes    with  that  use.     In         B.  H. 
Narayan  Yisaji  v.  Lakshuman  Bapuji,*1)  the  defendants  tenant  holding 
entered  on  land  as  tenants  of  a  Mirasdar  on  terms  which  payment* of  one 
they  could  not  prove,  but  held  it  at  a  uniform  rent  for  does  not  acquire 
three  generations  and  for  more  than  50  years.    It  was  held  righT*0™1*1™ 
that  the  defendant  in  the  absence  of  any  special  agree- 
ment to  the  contrary  had  not  acquired  by  prescription  a 
rijfht  of  permanent  tenancy.    Whatever  right  of  permanent 
tenancy  a  tenant  may,  by  prescription,  acquire  as  against 
an  Inamdar  or  a  Khot,  it  would  be  contrary  to  the  custom 
of   the   con  n  try  and  to  the  nature  of  miras  tenure,   to 
hold  that  he  could  acquire  such   a  right  as  against  a 
Mirasdar. 

(2-1)     In  Venkata  Reddy  v.  Lister,  W  the  plaintiffs,  suit  to  restrain 
who  were  ryots  under  the  Government,  brought  the  suit  from  diminish- 

,,„,.,.,.  »,!*-*  ingwateronthe 

to  restrain  the  defendants,  the  Agents  of  the  Government  ground  that 
and  others  from  so  altering  a  calingula  as  to  diminish  the  oeived  the  water 
quantity  of  water  which  the  plaintiffs  were  entitled  to 
receive  for  the  irrigation  of  their  lands,  and  the  plaintiffs 
alleged  that  the  supply  of  water  had  been  materially 
diminished  by  reason  of  the  acts  of  the  defendants.     The 
only  ground  upon  which  the  plaintiffs'  claim  was  put, 
was  that  they  had  received  the  water  for  a  long  time. 
The  District  Court  held  that  the  Government  were  autho- 
rized to  regulate  the  distribution  of  water  in  such  cases. 
It  was  held  on  regular  appeal  (per  Holloway,  J.),  that  no  Hoiioway,  J., 
legal  right  was  shown  by  the  plaintiffs  which  could  have  right  ™hich 
been  violated  by  the  defendants,  and  that  if  such  right  violated  was 
were  established,  there  was  nothing  to  show  that  a  decree 
for  damages  wonld    not  have  been  the  proper  remedy 
and  (per  Innes.,  J.,)  that  the  evidence  did  not  show  any  innes,  J.,  held 
diminution  of  the  supply  of  water  below  the  quantity  to  supply  of  water 
which  the  plaintiffs  were  entitled.  w 

(2-m)     In  Morgan  v.  Kirby,<3)  plaintiff  sought  a  right  Plaintiff  claim- 

to  the  uninterrupted  flow  of  water  in  a  permanent  righi  to  uninter- 
rupted flow  of 
water  through- 

(1)  10  B.  H.  0.  R.,  824.      |      (2)  7  M.  H.  C.  R.,  342.  S^miSHSl 

(3)  2  Ind.  Jurist,  818.  stream. 


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244  PAET  IV. — ACQUISITION  OP  OWNERSHIP  BY  POSSESSION.     [SEC.  26 

artificial  stream  and  further  to  the  exclusive  right  to  use 

the  water  throughout  the  length  of  the  stream ;  the  plain* 

tiff,  William  Lee  Kirby,  was  the  proprietor  of  a  tea  estate 

Plaintiff  uking  called  Dansandle,  on  the  Nilghiri  Hills.     The  facts  of  the 
a  block  of  Gov-  '  ° 

emment  land    cage  were  as  follow  :  Mr.  H.  D.  Rae  got  possession  of  the 

had  opened  the 

channel         Dansandle  estate  in  the  year   I860,  for  the  cultivation  of 

through  Gov-  * 

eminent  waste-  tea,  and  subsequently  received  a  errant  of  the  Estate  from 

land  and   then  '  i  *  o 

obtained  Gov-    Government,    in   the   year    1865.     Between   60  and  65, 

eminent  lease  ■        '  "  m 

before  defen-     Mr.  Rae  opened   the    channel  in  dispute  which  carries 

dant  took  up  a  r 

portion  of  such  water  from  a  stream  to  the  Dansandle  Estate  and  passes 
through  Government  waste-land  and  the  Sholoor  Estate. 
The  Sholoor  Estate  came  into  possession  of  a  certain  Mrs. 
Rae,  through   whom  the  defendant  claims,  in   or  about 
1869,  and  in  1874  was  formally  conveyed  to  her  successor 
by  a  grant.     At  the  time  of  the  first  grant  'under  which 
the  plaintiff  claims,  the  channel  ran  only  through  Govern- 
it  was  held  that  ment  land  until  it  entered  his  Estate.     It  was  held,  that 
continuous         the  right  claimed  in  a  flowing  stream  running  from  the 
passes  byimpii-  lessor's  and  through  the  lessee's  tenements  which  existed 
as  a  flowing  stream  prior  to  the  lease,  and  which  was  made 
expressly  for  the  purpose  of  the  tenement  leased,  is  un- 
doubtedly a   continuous   easement  requiring  no  express 
lauguage  to  pass  it,  but   which  passes  by    implication 
of  law. 
Observations  of       "  To  use  the  language  of  Erie  J.,  in  Polden  v.  Bastard 

Erie,  J.  -o      o  > 

(L.  R.,  1  Q.  B.,  156)  which  was  approved  of  in  Watts  v. 

Kelson — *  there  is  a  distinction  between  easements,  such 

as  a  right  of  way  or  easements,  used  f rom  time  to  time, 

and    easements  of   necessity,  or  continuous  easements. 

S^tenemwote06   ^e  case  ^cognizes  this  distinction,  and  it  is  clear  law 

neoeerity*orf     ^a*    uP°n  a  severance  of    tenements    easements    used 

ewn?ent"wiii     M  °*  necessity,  or  in  their  nature  continuous,  will  pass 

Son9,  bu^ease?"  *>y  implication  of  law  without  any  words  of  grant ;   but 

SnSftotime'wS  ^^h  regard  to  easements,  which  are  used  from  time  to 

pr^01!angaage  time  only,  they  do  not  pass  unless  the  owner  by  appro- 

t  e  owner.      pria^   language   shows  an  intention  that   they  should 

pass.'     The  right  now   claimed,   a   right  in  a   flowing 

stream  running  from  the  lessor's  and  through  the  lessee's 


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8RC.  26]     TART  IT. — ACQUISITION  OF  OWNERSHIP  BT  POSSESSION.         245 

tenements,  which  existed  as  a  flowing  stream  prior  to 
the  lease,  and  which  was  made  expressly  for  the  purposes 
of  the  tenement  leased  to  Mr.  Rae,  is  undoubtedly  a 
continuous  easement  requiring  no  express  language  to 
pass  it,  but  which  passes  by  implication  of  law. 

"Assuming  thus  that  a  right  arises  to  this  easement  by  What  is  the  ex- 
implication  of  law,  what  is  the  extent  of  it  ?  passed  t 

"  It  is  clear,  that  Rae,  in  croiu coupon  the  waste-land  and  Plaintiff acquir- 

v  i    ^  .  •  ,        ,  .  •  ,     .       edno  right  to 

cutting  a  channel  through  a  considerable  portion  of   it,  that  portion  of 

,-,.  ,,     ,  ,.  -,,  ,  ,.,  ,.      the  channel  cut 

including  that  portion  of  the  property  which  was  uiti-   in  the  Govern- 
mately  leased  to  him  in  1865,  acquired  no  right  in  the  land  land. 
which  at,  and  after,  the  date  of  his  lease  continued  to  be 
Government  waste-land,  or  to  that  portion  of  the  channel 
passing  through  such  part  of  the  Government  waste-land. 

"  If  his  act  was  not  permitted,  it  was  a  trespass.     If  it  if  his  act  was 

.......  .  #.-.,.  unauthorised  it 

was  permitted  there  is  no  room  for  inferring  that  it  was  was  trespass,  if 

a  %•  j*  -i  i  .  i  i  it  was  permitted 

not  a  mere   license  to  dig  a  channel  to  conduct  the  water  it  was  a  mere 
to  the  ground  which  the  Government  had  agreed  to  lease  channel  to  con- 

.       i  •  mi  •  -i  *     ,,  duct  water  to 

to   him.      Ihere   is    no    correspondence    forthcoming  to  land  which  Gor- 

show    precisely   which  of  these  legal   aspects   the  Act  amed  to  lease 
bore.     But  in  neither  case  could  Mr.  Rae  have  acquired 
any   right   to  the  water  flowing  in  such   portion   of  the 
channel  as  is  within  the  portion  of  Government  waste 
which  he  was  not  authorized  to  occupy.     When,  then,  the 
Government  leased  the  property,  what  did  Mr.  Rae  ac- 
quire ?  He  acquired  for  the  term  of  the  lease  the  lands   By  Government 
described  in  the  lease  including  the  area  occupied  by  the   acquired  land, 
channel  and  its  bed,  and  a  right  to  the  use  of  the  flowing   of  flowing  water 
water  within  the  awambit  of  the  property  leased  to  him.   cupied*  {Jy8 the" 
Had  there  existed  at  the  time  of  the  grant  any  particular  bed?116 
purpose  for  which  the  water  had  been  and  was  intended 
to  be  used,  that  user  (had  and  to  be  had)  might  be  a  test 
of  the  user  granted  ?  But  there  was  at  the  date  of  the 
lease  no  special  purpose  to  which  the  water  had  been 
applied,  and  from  the  circumstances  a  larger  right  cannot 

be  inferred,  than  -that  Mr.  Rae  was  entitled  by  the  grant  He  was  entitle* 
'  *     ,  .  ,  *>  a  reasonable 

to  a  reasonable  use  of  the  water,  i.e.,  to  use  it  and  pass  nseofthewates. 
it  on. 


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246         PARI*  IV. — ACQUISITION  OF  OWNEE8H1P  BY  POSSESSION.     [8KC    26 

Subsequent  "  The  land  above  and  lower  down  the  stream  which  was 

lease  of  land      afterwards  leased  by  Government  to  the  person  whom 

down  the  defendant  now  represents  was  necessarily  granted  subject 

Jecttothe plain-  to  this  right  of  plaintiff  to  the  use  of  the  flowing  water 

the  "use  of  the  in  his  own  ground.     This  right  imports  that  the  flow  of 

hisown^iand.      the  water  shall  not  be  interrupted,  and  defendant  is  not 

entitled  to  interrupt  it.     But  he  may  use  it  as  it  flows 

through  his  grounds.     Each  is  entitled  to  a  reasonable 

use  of  the  flowing  water." 

A  Jaikar  or  (2-n)     In   Parbutty   Nath  Roy  Chowdhry  t>.  Mudho 

was  not  an      Paroe,<1)  which  was  a  suit  governed  by  Act  IX  of  1871, 

in  section  27  of  it  was  held  that  a  Jaikar  was  not  an  easement  within  the 

but  it  is  an   '  meaning  of  section  27  of  Act  IX  of  1871,  but  is  an  interest 

tos^tlonasof    in  immoveable  property  within  the  meaning  of  schedule 

which  by  its  in-  2,  Article    145   of   that  Act,   corresponding    to   Article 

chSS^ennes     144  of   the  Act  of   1877.     Where  the  defendant   had 

(Janwyei878)  been   exercising  a  right   of   fishing    in    certain  water, 

adversely  to  the  plaintiff,  for  more  than  12  years,  it  was 

held    that   a  suit   by    the    plaintiff    for    a    declaration 

that  he  was  entitled  to  the  exclusive  right  of  fishing  in 

such  water,  was  barred  by  limitation.     A  Jaikar  is  the 

right  to  take  the  profit  of  a  river,  lake,  or  other  water  on 

a  particular  estate  or  tract  of  country.     When  this  case 

was  decided  by  the  Lower  Appellate  Court,  the  Act  of  1877 

o.  H.  held,  that   had  not  been   passed.     In  Juggobundhoo  Shaha  v.  Pro- 

pancy  accruing  mothonath  Roy(2)  it  was  held  in  January,  1879,  that  the 

in  the   case  of  "  " 

land,  does  not  right  of  occupancy  which  accrues  to  tenants  who  have 

arise  in  respect        °  ,.,,-.-••<-*  i-i 

of  Jaikar.  occupied  or  cultivated  land  for  12  years  or  upwards,  does 

(January  1870.)  r  J 

not  arise  in  respect  of  the  right  called  Jaikar  or  fishery. 
That  is  a  right  which  may  be  let  out  by  Ijaradars  under 
the  landlord,  and  may  be  enjoyed  under  them  so  long  as 
their  Ijara  continues,  but  is  liable  to  be  determined  at 
the  expiration  of  the  Ijara. 
Prescriptive  (2-0)    In  Chundee  Churn  Roy  v.  Shib  Chunder  Mun- 

right  of  fishery  J 

is  an  easement  dul,W  plaintiff  claimed  a  prescriptive  right  of  fishery,  and 
claimed,  though  the  District  Munsiff  finding  enjoyment  of  the  right  for 

olaimant  does  °         J   J 

net  allege  en- 

joyment  of  any  ^  ^  g  ^^  ^       |      (2)  L  L.  R.,  4  Calc,  767. 

(3)  1.  L.  R.,  5  Calc.,  M5. 


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81C.  26]     PART  IV. — ACQUISITION  OP  OWNIB8HIP  BY  P088E8SION.         247 

upwards  of  20  years  gave  him  a  decree.     The  Lower  Ap-  dominant  tene- 

pellate  Court  rejected  the  suit  on  the  ground  that  it  was   (April  1880.) 

not  a  case  of  an  easement  as  there  was  admittedly  no 

dominant  tenement.     It  was  held  that  a  prescriptive  right 

of  fishery  is  an  *  easement*  as  defined  by  section  3  of  this 

Act,  and  may  be  claimed  by  any  oae  who  can  prove  a 

'  user*  of  it, — that  in  to  say,  that  he  has  of  right  claimed 

and   enjoyed  it  without  interruption  for  a ''period  of  20 

years,  although  he  does  not  allege,  and  cannot  prove  that 

He  is,  or  was,  in  the  possession,  enjoyment,  or  occupation 

of   any  dominant  tenement.     White,  J,  observes  :  "  The  Land  means 

legal  meaning  of  '  land*  is  not  only  dry  land,  but  also  land  ©d  by  water. 

covered  by  water ;  and  I  see  no  reason  for  holding  that 

the  word  '  land,'  as  used  in  section  3,  bears  other  than  the 

legal   meaning  which  ordinarily  attaches   to  the  word. 

Taking  '  land*  to  have  this  meaning,  fish  may  properly  be 

said  to  grow  or  subsist  upon  it. 

"Again,  section  27  of  the  Act,  which  contains  a  proviso  An  easement 
applicable  to  the  whole  doctrine  of  tbe  acquisition  of  ease-  tion  embraces 
ments  by  possession  as  laid  down  in  the  previous  section,  Law  is  called 
expressly  mentions  water,  as  well  as  land,  and  as  the  word  «iwr«/  that  is 
' easement'  has  the  extended  meaning  given  to  it  by  the  enjo^  profit  in 
interpretation  clause,  I  think  that,  if  there  was  any  doubt  *no    rt  ]BaL 
On  the  subject,  the  language  of  the  proviso  makes  it  clear 
that  the  profit  arising  from  water  as  well  as  from  land 
was  in  the  contemplation  of  the  Legislature.     It  would 
be  attributing  a  singular  oversight  to  the  Legislature  if 
we  were  to  suppose  that  when  dealing  with   '  profits  af 
prendre,*  it  intended  to  omit  a  right  of  fishery,  which  is 
of  the  most  common  classes  of  property  enjoyed  in  this 
presidency." 

"  It  is  true,  as  the  Judge  says,  that  the  right  claimed  by 
the  plaintiff  is  not  a  right  appurtenant,  but  a  right  in 
gross;  still  'a  profit  a'  prendre',  which  is  the  technical 
name  of  the  right  claimed  by  the  plaintiff,  is  a  right 
recognized  by  the  law,  and  may  be  established  by  the 
very  same  sort  of  evidence  as  is  used  to  establish  either 
*  a  profits  a'  prendre*  appurtenant,  or  an  easement  in  the 
ordinary  sense  of  the  word." 


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248         PART  IV. — ACQUISITION  OP  OWNER8HIP  BY  POS8K68ION.     [SEC.  26 

To  constitute  (2-p)     Lutchmeeput  Singh  v.  Sadaolla  Nushyo/1)  wm 

right  of  fishery   a  suit  to  restrain  the  defendants  from  fishing  in  certain 
tion,  userby  as-  hhils,  which  admittedly  belonged  to  the  plaintiff's  zemin- 
bom  shouicTbe   dari.     H»  appeared  that  the  plaintiff  had  let  out  some  of 
{Dec.  1882.)        tne  hhils  to  Ijaradars  who  had  sued  the  defendants  for 
the  price  of  fish  taken  by  them  from  the  bhils,  and  that 
the  suit  had    been   dismissed  on  the  ground  that  the 
defendants,  in  common  with  other  inhabitants  of  the  vil- 
lages in  the  zemindari,  had  acquired  a  prescriptive  right 
to  fish  in  the  bhils.     The  defendants  contended  that  they 
had  been  in  possession  of  the  bhils  for  more  than  twelve 
years,  and  that  they  had  a  prescriptive  right  to  fish  there- 
in under  a  custom  according  to  which  all  the  inhabitants 
of  the  zemindari  had  the  right  of  fishing.     No  defined 
and  ascertained  persons  were  proved  to  have  been  in  con- 
tinuous possession  of  the  fishery  right  in  the  bhils.     It 
was  held  that  the  mere  fact  that  the  defendants  had 
trespassed  and  had  misappropriated  fish,  did  not  amount 
to  a  dispossession  of  the  plaintiff.     It  was  further  held 
that  no  prescriptive  right  of  fishery  had  been  acquired 
under  this  section  of  the   Limitation  Act,  and  that  the 
custom  alleged  could  not,  on  the  ground  that  it  was  un- 
reasonable, be  treated  as  valid. 
Fishery  rights        C2-Q)     In  Prosunno  Coomar  Sircar  v.    Rara   Coomar 
gable  rivers,       Parooey,(*)  Markby,  J.,  observes,  that  any  private  right 
from  the  Grown  of  fishery  in  a  tidal  navigable  river,   "  must  be  derived 

and  established    *  _  •*  • 

by  clear  evi-     from  the  Crown,  if  it  exists  at  all,  is,  I  think,  a  matter 

sumption  is       which  is  beyond  dispute ;  and  I  think  it  also  beyond  dis- 

such  right.        pute  that  any  such  right  as  this  must  be  established  by 

1  very  clear  evidence  indeed,  and  that  the  presumption 

would  be  against  any  such  private  right.     There  is  a 

still  further  doubt  whether  such  a  right  as  this  can  be 

created."     In  this  case  it  was  held  that  a  mere  recital  in 

A  mere  recital   quinquennial  papers  that  a  person  is  the  owner  of  Jalkar 

niai  paperqthat  rights  in  a  zemindari,  permanently  settled  with  him  by 

owner  of  Jaikar   Government,  is  not  sufficient  to  give  to  such  person  a 

right  of  fishery  in  a  public  navigable  river;  any  right 

(1)  I.  L.  R.,  9  Calc,  698.    |    (2)  I.  L.  R.,  4  Calo.,  53. 

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8EC.  26]   PART  IV. — ACQUISITION  OF  OWNERSHIP  BY  POSSESSION.  249 

granted  tinder  such  word  "Jalkar"  would  be  perfectly 
satisfied  if  construed  to  apply  exclusively  to  a  right  to 
fish  within  enclosed  water,  such  as  a  jheel.  In  Baban 
Mayacha  v.  Nagu  Shravucha/1)  rights  of  the  Grown  and 
of  the  public  in  the  waters  and  the  subjacent  soil  of  the 
sea  have  been  discussed.  The  right  of  the  public  to  fish  Right  td  fish  in 
in  the  sea,  whether  it  and  its  subjacent  soil  be  or  be  not  and  is  not  sab- 
vested  in  the  Crown,  is  common,  and  is  not  the  subject  of  PK>pe  y' 


property.     That    right  may,  in  certain  portions  of  the  Local  custom 

■iiit         may  regulate 


oi  th    ^  ^ 

sea,  be  regulated  by  local  custom.    Members  of  the  lib-  the^right  incer- 

i-  •   •         j.i_  •    li   i      i!  i     •      ii.  tain  portions  of 

lie,  exercising  the  common  right  to  fish  in  the  sea,  are  the  sea.    one 
bound  to  exercise  that  right  in  a  fair  and  reasonable  soastoprevent 
manner,  and  not  so  as  to  impede  others  from  doing  the  ezercisin^his 
same ;  and  conduct  which  prevents  another  from  a  fair  L^onsSe. 
exercise  of  his  equal  right,  if  injury  thereby  results  to 
him,  is  actionable.     The  facts  of  the  case  are  shortly  the  The  facts  of  the 

case  relating  to 

following, — plaintiffs  and  defendants  are  fishermen.  The  stake-fishing, 
plaintiffs  affirmed  that  according  to  the  custom  of  their 
trade  they  had  been  erecting  for  years  their  fishing- 
stakes  annually  opposite  to  the  village  of  Yarangul,  at  a 
distance  of  between  two  and  three  miles  from  the  coast, 
those  of  the  defendants  being  to  the  north  of  and  about 
600  feet  from  their  own  ;  that  in  1872,  the  defendants  in 
addition  to  their  customary  stakes,  wrongfully  erected 
other  stakes  to  the  south,  at  a  distance  of  only  120  feet 
from  the  plaintiffs',  and  that  they  have  thereby  wrong- 
fully disturbed  the  plaintiffs  in  the  enjoyment  of  their 
right  to  fish.  The  defendants  denying  the  alleged  custom, 
claimed  to  be  entitled  to  erect  their  fishing-stakes  and 
nets  in  any  part  of  the  sea ;  they  further  alleged  that  the 
plaintiffs  had  no  exclusive  right  to  fish  in  any  part  of  the 
sea.  The  former  suit  between  the  parties  had  been  reject- 
ed on  the  ground  that  the  courts  had  no  jurisdiction,  the 
subject  of  the  suit  being  situated  below  low-water-mark, 
and  therefore  beyond  the  limits  of  the  court's  jurisdic- 
tion. Westropp,  C.  J.,  while  allowing  the  trial  of  the  suit  observations  ef 
on  the  merits,  observes:    "The  customs  of  the  whale  on  the  principle 

of  the  recogni- 
tion of  custom 

(1)  I.  L.  B.,  Z  Bern.,  19.  £a  ntSSg^ 

32 


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250  PART  IT. — ACQUISITION  OF  OWNERSHIP  BY  P08SS88ION.     [SBC.  26 

fisheries  would  not  afford  mnoh  or  any  assistance  in  satin 
a  case  as  the  present,  where  the  mode  of  fishing  and  ike 
fish  are  so  different.  But  €he  principle  of  the  recognition 
of  custom  as  regulating  sea-fishing  is  valuable.  The 
remarks  of  Lord  Mansfield,  quoted  by  Chambre,  J.,  are 
especially  so,  and  very  applicable  here.  If  there  be  not 
some  usage,  we  are  at  a  loss  to  conceive  how  difficulties  in 
conducting  the  system  of  stake-fishing,  which  prevail* 
along  the  Malabar  Coast,  are  not  of  much  more  frequent 
occurence  than  they  are,  for  it  is  very  clear  that  too  great 
proximity  of  the  stakes  to  each  other  would  be  disastrous  to 
the  trade,  costing  much  money,  as  those  stakes  (which  are 
often  of  very  considerable  length)  and  the  fixing  of  them  do. 
It  can  scarcely  be  that  the  fishermen  along  the  coast 
have  not  some  understanding  amongst  themselves  as  to 
what  is  a  fair  and  proper  distance  at  which  the  rows  of 
stakes  should  be  fixed  from  each  other.  The  expense  and 
trouble  of  frequently  raising  the  stakes,  and  refixing  them 
elsewhere,  whenever  any  person  chooses  to  lay  down  a 
new  row  near  existing  stakes,  would  be  too  intolerable  to  be 
The  Bjstem  of  long  submitted  to.  The  system  of  stake-fishing  along  this 
along  theMaift.  coast  is  very  ancient.  In  the  map  of  Bombay,  attached  to 
rwy  ancient.  Fryer's  Travels,  published  A.  D.,  1698,  fishing-stakes  are 
*  marked  as  existing  in  the  same  locality  in  which  some 
are  still  planted.  It  has  not  been  contended  that  the 
plaintiff's  stakes  interfere  with  navigation,  and  the 
system  is  too  long  established,  and  permitted  as  one  of 
English  Law     the  most  ordinary  modes  of  sea-fishing,  to  be  regarded  with 

deems  stake* 

Ashing  a  private  the  -jealousy  with  which  stake-fishing  is  viewed  by  the 

mode  of  fishing  .  .  _ 

inconsistent        English  Law,  which  deems  stake-fishing  a  private  mode 

with  common  °      .  .  *  <■  /TT  ,,, 

fishery.  of  fishing  inconsistent  with  a  common  fishery.     (Mall  s 

Sea  Shore,  pp.  50 — 51,  2nd  ed.)  Moreover,  the  stakes  are 
alleged  to  be  shifted  at  particular  seasons,  and  cannot  be 
regarded  as  giving  a  title  to  the  parts  of  the  soil  in 
which  they  are  from  time  to  time  planted,  as  Lord  Hale 
seemed  to  think  was  the  case  in  England,  (de  Jure. 
Maris,  Harg.  Jj.  T.  Hall's  Sea  Shore  App.,  pp.  15—16, 2nd 
ed.)  from  which  opinion  Mr.  Hall  expresses  his  dissent. 
(Hall's  sea  shore,  p.  55,  2nd  ed.) 


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|BC.  26]    PART  IV.— ACQUISITION  OP  OWNERSHIP  BY  POSSESSION.  251 

(2-r)  In  Doe  d.  Seebristko  v.  The  East  India  Com-  Indian  omm  on 
pany,^)  it  would  appear  that  Her  Majesty's  Privy  Council  inSS^a^gabii 
were  of  opinion  that  the  beds  of  navigable  tidal  rivers  in  «»•.  *"  "* 
British  India  are  vested  in  the  State.  In  Chnnder 
Jaleah  v.  Bamchnrn  Mookerjee,W  it  was  held  in  March, 
1871,  that  the  right  of  fishing  in  a  navigable  river  does  not 
belong  to  the  public,  nor  is  the  Government  prohibited  by 
any  law  from  granting  to  individuals  the  exclusive  right 
of  fishing  in  such  a  river.  Prescriptive  rights  are  founded 
on  the  presumption  of  a  grant  from  long  continued,  unin- 
terrupted user  and  enjoyment  as  of  right.  In  Bagram 
v.  the  Collector  of  Bullooa,(*>  although  the  plaintiff  estab- 
lished his  right  to  a  private  fishing  in  certain  tidal  and 
navigable  rivers,  the  principles  laid  down  in  the  above  two 
cases  were  adopted  and  approved.  In  Beg  v.  Kastya 
Rama,(*)  the  court  regarded  the  sea  and  its  subjacent  soil 
within  the  ordinary  territorial  limit,  at  least  around  Bri- 
tish India,  as  vested  in  the  Sovereign,  but  held  that  the 
use  of  it  for  the  purposes  of  navigation  and  fishing  be- 
longed communis  juris  to  her  subjects,  at  least  so  far  as 
it  had  not  been  otherwise  appropriated  by  the  Sovereign ; 
and  West,  J.,  in  speaking  of  the  prerogatives  of  the  Crowm  overrotten*  <rf 
in  India,  in  this  respect,  said  :  "  The  English  Law  on  this  prer^tiree  of 
subject  may  be  gathered  from  Blundell  v.  Catterall,  (5  B.  ind»  hTtnia 
and  Aid.  268)  ;  Beaest  t>.  Pipon,  (1  Knapp,  P.  C.  C.  60) ;  re8pect' 
Malcomson  t>.  O'Dea,  (10  H.  L.  Ca.  593) ;  Sir  H.  Constable's 
case,  (6  Rep.,  p.  105  b.) ;  and  Butler's  note  to  Coke  on 
Littleton,  section  440,  in  which  Lord  Hales*  Treatises  De 
Jure  Mauris  and  de  P  or  tubus  Maris  are  abundantly  quoted. 
These  authorities  support  both  the  ownership  by  the 
Crown  of  the  soil  under  the  sea,  and  the  proposition  that 
the  subjects  of  the  Crown  '  have  also  by  common  right  a 
liberty  of  fishing  in  the  sea,  and  in  its  creeks  or  arms,  as 
a  public  common  of  piscary.'  '  Yet,  m  some  cases  the 
King  may  enjoy  a  property  exclusive  of  their  common  of 
piscary.    He  also  may  grant  it  to  a  subject,  and  oonse- 

(1)  6  Moore's  L  A.,  26.    J  (3)  1  Calc,  W.  R.  for  to,  248. 

(2)  15  W.  R.,  212.  |  (4)  8  B.  ft.  C.  B.,  Crown  cases,  88. 

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252  PART  IV — ACQUISITION  OF  OWNERSHIP  BY  POSSESSION.    [SEC.  26 

quently  a  subject  may  be  entitled  to  it  by  prescription.' 
(Hale  de  J.  M.,  p.  11.)  The  Sovereign's  rights  are  as 
great  under  the  Hindu  and  AJuhammadan  systems  as 
under  the  English  ;  but  without  a  minute  examination  of 
these,  it  is  sufficient  to  say  that  by  the  acquisition  of  India 
as  a  dependency,  the  Crown  of  Great  Britain  necessarily 
became  empowered  to  exercise  its  prerogatives  and  enjoy 
its  jura  regalia  in  this  country,  and  on  its  coasts,  subject 
always  to  the  Legislative  Control  of  Parliament  (Camp- 
bell v.  Hall,  Cowp.  204.)  These  are  involved  in  the  very 
idea  of  English  Sovereignty.  I  am  not  aware  that  in 
any  case  they  have  been  so  used  as  to  exclude  any  subject  in 
this  country  from  fishing  in  any  part  of  the  sea.  No  grant 
of  a  fishery  in  the  present  case  has  been  set  up  either  as 
directly  proved  or  as  to  be  inferred  from  prescriptive 
enjoyment.  The  complainants  and  the  applicants  alike 
must  rest  on  their  common  right  of  fishing  in  the  sea ; 
and  a  permission  in  favor  of  one  or  the  other  party  by  the 
villagers  of  Yerangal,  as  given  without  title,  could  confer 
none  upon  either." 
Right  of  fishing       (2-8)     The  law  is  thus  laid  down  in  Hale,  de  Jure 

in  fresh  rivers 

of  what  kind    Maris,  ch.  1,  p.  1 : — "  Fresh  rivers  of   what  kind  soever 

soever  do  be* 

long  to  the       do  of  common  right  belong  to  the  owners  of  the  soil 

owners  of  the  .  •■     , 

soil  adjacent,  adjacent ;  so  that  the  owners  of  the  one  side  have  of  com- 
mon right  the  property  of  the  soil,  and  consequently  the 
right  of  fishing,  usque  jUum  aqua ;  and  the  owners  of  the 
other  side  the  right  of  soil  or  ownership  and  fishing  unto 
the  filum  aqua  on  their  side ;  and,  if  a  man  be  owner  of 
the  land  on  both  sides,  in  common  presumption  he  is 
owner  of  the  whole  river,  and  hath  the  right  of  fishing 
according  to  the  extent  of  his  land  in  length.  With  this 
agrees  the  common  experience." 

There  can  be  no       (2-t)     In  Pearco  t>.  Scotcher/1)  Grove,  J.,  observes: 

Sublio  right  of         %         ' 
thing  in  non.  "  The  question  is  not  whether  the  river  Dee  at  the  spot  in 

tidal   waters,  .  ^    ,  .  ,r 

even  where  they  question  is  more  or  less  navigable,  but  whether  the  spot 

are  to  some  ex-  ,,.,., 

tentjiavigabie  at  which  the  respondent  claims  the  right  to  fish  is  within 
the  flow  and  reflow  of  the  tide."    In  Murphy  v.  Ryan  (2 

(1)  9  Q.  B.  D,  162. 


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8BC.  26]    PART  IV. — ACQUISITION  OP  OWNERSHIP  BY  P088I8SIOH.  253 

Ir.  C.  L.  Rep.,  143)  it  was  held  that  the  public  cannot  "NaYigabie"in 
acquire  by  immemorial  usage  any  right  of  fishing  in  a  appued*^  a** 
river  in  which,  though  it  be  navigable,  the  tide  does  not  a^beTon^to 
ebb  and  flow ;  and  that  the  word  "  navigable,"  need  in  a  porta^n*?  t£2" 
legal  sense  as  applied  to  a  river  in  which  the  soil  primd  flows. 
facie  belongs  to  the^Crown,  and  the  fishing  to  the  public, 
imports  that  the  river  is  one  in  which  the  tide  ebbs  and 
flows.    Willes,  J.,  delivering  the  opinion  of  the  Judges 
in  Maloolmson  t>.  O'Dea  (10.  H.  L.  Cas.  619)  says :     "  The 
soil  of  all  navigable  rivers,  like  the  Shannon,  so  far  as 
the  tide  flows  and  reflows,  is  primd  facie  in  the  Crown, 
and  the  right  of  fishing  primd  facie  in  the  public." 

(2-U)     In  Ponnusawmi   Tevar   v.   The   Collector    of  can  easements 
Madura,  <*>  the  Collector  pleaded  that  the  river  Vaigay  and  againa?GOTern- 
the  space  occupied  by  the  channel  in  the  suit,  being  State  5SJ£  by  statu- 
property,  the  Government  had  full  power  to  regulate  the  ^ifthesame 
distribution  of  water  from  rivers  and  channels  constructed  ^»JJ  JSt)!* 
or  maintained  at  the  public  expense.     Scotland,  C.  J.,  *uatop 
observes  :  "  the  arbitrary  power  claimed  for  the  Govern- 
ment in  the  9th  para,  of  the  1st  defendant's  written  state-  Bootiend,  c.  J., 
ment  has  been  rightly  held  by  the  Civil  Judge  not  to  be  bitrary  power 
maintainable.     However  lawful  the  exercise  of  such  a  maintainable. 
power  may  be  in  regulating  the  distribution  of  water 
amongst  ryotwaxy  villages  held  immediately  of  the  Go- 
vernment, or  to  the  lands  of  proprietors  or  their  tenants, 
whose  enjoyment  of  it  is  simply  permissive,  there  can  be 
no  doubt  that  the  right  to  an  easement  in  the  flow  of 
water  through    an  artificial    water- course   is    as  valid 
against  the  Government  as  it  is  against  a  private  owner 
of  land." 

Section  17  of  Act  XIV  of  1859  provided  against  the  it  has  been  a* 
application  of  that  Act  to  any  public  property  or  right,  Actaofisnand 

m.         -a  *  t1.    i .    x.  r  it r    j     i!  i87?» tbat  ease* 

or  to  any  suit  for  any  public  claim,  but  allowed  such  menta  might  be 
suits  to  be  governed  by  the  Law  of  Limitation  in  force  at  against  Gorern. 
the  time  of  the  passing  of  that  Act.     Such  provisions  are 
not  to  be  found  in  Acts  IX  of  1871  and  XV  of  1877,  which, 
however,  by  Articles  150  and  149,  provide  for  a  limitation 


ment. 


(1)  5  M.  H.  0.  B.,  p.  6. 


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254         PART  IV.— ACQTTI8ITI0N  OF  OWNEB8HIP  BT  POSMC88ION.    [fllC.  26 

of  60  years  for  "  any  suit  by  or  on  behalf  of  the  Secretary 
of  State  for  India  in  Council."  From  this  it  would  appear 
to  have  been  assumed  in  these  Acts,  that  easements  might 
be  acquired  against  Government  by  statutory  prescription 
in  the  same  way  as  they  are  acquired  against  private  in- 
dividuals. In  the  Indian  Easement  Act  V  of  1882,  section 
15,  para.  2,  of  explanation  4,  expressly  provides  that  when 
the  property  over  which  a  right  is  claimed  under  this 
section  belongs  to  Government,  this  section  shall  be  read 
as  if,  for  the  words  "  twenty  years,"  the  words  "  sixty 
years"  were  substituted. 

English  case  (2-V)     In  Good  Title,  Parker  v.  Baldwin^1)  which  was 

hoSing  that  v     ./  \  .  '        _ 

pant  from  the  a   suit  to  recover  possession  of  a  cottage  and  a  small 

Crown  may  be  .    .  . 

presumed.  piece  of  land  adjoining,  it  was  held  that  possession  of 

Crownland    commencing  at  least  55   years  ago  by   en* 
croachment  on  the  Crown  in  the  time  of  the  lessor  pi 
the  plaintiffs  father,  maintained  by  the  father  till  Jjis 
death,  nineteen  years  ago,  and  afterwards  continue4  for 
two  years  by  his  widow,  when  the  defendant  obtained 
the  possession,  would  be  sufficient  evidence  for  the,  Jury 
to  presume  a  grant  from  the  Crown  to  the  lessor's  father 
if  the  Crown  were  capable  of  making  such  a  grant, 
A  private  indi-       (2-W)     A  prescriptive  right  to  have  a  yearly  payment 
yearly  payme^  made  by  Government  to  a  private  individual,  oannot  be 
ment  for  more  acquired  by  reason  of  a  continued  series  of  voluntary 
does  not  acquire  payments  made  to  him  by  Government,  extending  over  a 
right  against       period  of  more  than  30  years.     Thus,  where  Government 
Bombay,  nn-     paid  a  yearly  sum  of  Rs.  32-4-6  to  a  chirda  hakdar,  by 
Vof  lslz.      n  whom  no  services  in  return  were  rendered  from  the  year 
1818  to  1860,  and  then  discontinued  such  payment  to  the 
heir  of  the  last  holder,  it  was  held  that  such  yearly  pay- 
ments gave  the  hakdar  no  prescriptive  rights  against 
Government.     The    Collector  of   Surat  v.   Daji  Jogi.<2> 
Where  an  allowance  by  Government  is  neither  incidental 
to  hereditary  office  nor  a  charge  upon  an  immoveable  pro- 
perty, and  is  not  supported  by  a  grant  from  Government, 

(I)  11  East,  488.      |      (2)  8  B.  H.  C.  R.,  A.  C,  166. 

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SIC.  26]    PAET  IV.— ACQUISITION  OF  OWNERSHIP  BY  POSSESSION.  255 

the  enjoyment  of  it  for  30  years  does  not  create  a  prescrip- 
tive title  to  its  continuance  under  Regulation  V  of.  1827, 
section  1,  cl.  1.  The  Government  of  Bombay  v.  Gossami 
Shri  Girdharlaji.d) 

(2-X)     In  Desai  Kalyanraya  v.     The  Government  of  Case  whew 
Bombay/2)  plaintiffs  ancestors  had  enjoyed  an  allowance   right  was  aiiow- 

ed   against  Go- 

dnring  four  successive  generations  for  a  period  extending   vjnunent  in 

over  more  than  a  century.     The  legal  presumption  in  the   veof  MfJllation 

absence  of  the  original  grant,  is  that  such  grant  was 

hereditary.     The  allowance  having  been  continued  by 

the  British  Government  to  the  plaintiff's  grandfather  for 

the  same  reasons  for  which  a  village  (admitted  to  be  held 

on  hereditary  tenure)  had  been  continued,  and  having 

been  paid  to  the  plaintiff's  grandfather  up  to  his  decease, 

and  afterwards,  as  a  matter-of-course,  to  the  plaintiff's 

father,  it  was  held  that  the  enjoyment  of  the  plaintiff's 

grandfather  and  father  was  proprietary  enjoyment,  and 

that  as  this  enjoyment  had  continued  uninterruptedly  for 

more  than  30  years  under  Regulation  Y  of  1827,  section  1, 

a  statutory  and  indefeasible  title  to  the  allowance  had 

been  acquired. 

(2-y)     In  the  Collector  of  Kheda  v.  Hari  Shankar  ▲  charitable 

.  .  srrant  enjoyed 

Tikam,w  a  charitable  grant  in  connection  with  a  temple  for  more  than  so 

'  °  r        years  was  held 

was  proved  to  have  been  enjoyed  by  the  incumbent,  and   JJ,  SJ^if'S- 
those  under  whom  he  held  in  regular  succession  for  more   Be^atioiTvoJ 


than  30  years.  It  was  held  that  the  grantee  had  acquired  ' 
a  right  of  property  in  it  under  Regulation  V  of  1827, 
section  1,  by  Warden,  J.,  independently  of  the  origin  or 
nature  of  the  grant,  by  Gibbs,  J.,  in  the  absence  of  its 
being  shown  to  have  been  a  personal  grant,  and  by  the 
conduct  of  Government  in  paying  it  to  several  generations 
in  succession. 


(1)  9  B.  H.  C.  R.,  222. 

(2)  5  B.  H.  C.  R.,  A.  C, 

(3)  6  B.  H.  O.  R.,  A.  C,  J 


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256  PART  IV. — ACQUISITION  OF  OWNBB8HIP  BY  POSSESSION.    [SBC.  27 

Exclusion  in  t»-      *  27.     Provided  that,  when  any  land  or  water 

tot  of.  rever-  * 

SSKinmSS*.  upon,  over,  or  from  which  any  easement  nas 
been  enjoyed  or  derived  has  been  held  under  or 
by  virtue  of  any  interest  for  life  or  any  term  of 
years  exceeding  three  years  from  the  granting 
thereof,  the  time  of  the  enjoyment  of  such  ease- 
ment during  the  continuance  of  such  interest 
or  term  shall  be  excluded  in  the  computation 
of  the  said  last-mentioned  period  of  twenty 
years,  in  case  the  claim  is,  within  three  years 
next  after  the  determination  of  such  interest  or 
term,  resisted  by  the  person  entitled,  on  such 
determination,  to  the  said  land  or  water. 

Illustration. 
A  sues  for  a  declaration  that  he  is  entitled  to  a  right  of  way 
over  B*b  land.      A  proves  that  he  has  enjoyed  the  right  for  25 

•  Section  8  of  the  Indian  Easement  Act  (V  of  1882),  repeals  in  the 
territories  of  Madras,  Coorg  and  Central  Provinces,  to  which  it 
extends,  the  definition  of  Easement  in  the  interpretation  clause 
and  also  section  26  and  27  of  this  Act  (XV  of  1877)  and  provides  that 
all  references  in  any  Act  or  Regulation  to  the  said  two  sections,  and 
to  sections  27  and  28  of  Act  IX  of  1871,  shall  in  such  territories  be 
read  as  made  to  sections  15  and  16  of  Act  V  of  1882. 

Sections  8  and  4 — see  under  section  8,  page  21. 

Section  15— see  under  section  26,  page  218. 

Section  16.  Provided  that,  when  any  land  upon,  over,  or  from  which 
any  easement  has  been  enjoyed  or  derived  has  been  held  under  or 
by  virtue  of  any  interest  for  life  or  any  term  of  years  exceeding 
three  years  from  the  granting  thereof,  the  time  of  the  enjoyment 
of  such  easement  during  the  continuance  of  such  interest  or  term 
shall  be  excluded  in  the  computation  of  the  said  last-mentioned 
period  of  20  years,  in  case  the  claim  is,  within  three  years  next 
after  the  determination  of  such  interest  or  term,  resisted  by  the. 
person  entitled,  on  such  determination,  to  the  sued  land. 
IUuatration, 
A  sues  for  a  declaration  that  he  is  entitled  to  a  right  of  way  over  B'$  land, 
A  proves  that  he  has  enjoyed  the  right  for  twenty-five  years ;  but  B  shows 
that  daring  ten  of  these  years  C  had  a  life  interest  in  the  land ;  that  on  C'$ 
death,  B  became  entitled  to  the  land  j  and  that  within  two  years  after  C$  death 
he  contested  A*$  claim  to  the  right.  The  suit  most  be  dismissed,  as  A,  with 
reference  to  the  provisions  of  this  section,  has  only  proved  enjoyment  for 
fifteen  years. 


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8«C.  27]    PART  IV. — ACQUISITION  OF  OWNERSHIP  BY  POSSESSION.  257 

years ;  but  B  shows  that  during  ten  of  these  years  C,  a  Hindu  widow, 
had  a  life-interest  in  the  land,  that  on  C's  death  B  became  entitled 
to  the  land,  and  that  within  two  years  after  Cs  death  he  contested 
A' s  claim  to  the  right.  The  suit  most  be  dismissed,  as  A>  with 
reference  to  the  provisions  of  this  section,  has  only  proved  enjoy- 
ment for  fifteen  years. 

The  corresponding  section  28  of  Act  IX  of  1871,  ex-   Exception  of 
pressly   exempted  from  its  operation  right  of  easement  Sghtand  air  in 
to  the  access  and  use  of  light  and  air ;  but  this  section   omitted  °in  XV 
(27)  omits  the  exception  and  makes  its  provisions  appli- 
cable to  all  easements  which  have  been  enjoyed  or  derived 
•  upon,  over  or  from  any  land  or  water. 

(a)  "Prescription  implies  a  grant;  the  user  by  which  a   sec.  7  of  the 
prescriptive  right  .is  gained  is  only  evidence  of  a  previous   an^iii.WiMam 
grant,    *  and,   therefore,   in   order  that   such   user  may   dudes  the  time 
confer  an  easement,  it  follows  that  the  owner  of  the  an^iSant/an 
servient  tenement  must  have  known  that  such  an  ease-   or  ^lnarrfedf 
ment  was  being  enjoyed,  and  also  have  been  in  a  position  owner1  of  the 
to  interfere  with  and  obstruct  its  exercise,  had  he  been  ment. 

so  disposed.  Contra  non  valentem  agere  non  currit  pres- 
cription (See  Gale  on  Easements,  last  edition,  page  189.) 
It  was  presumably  upon  this  principle  that  by  the  7th 
section  of  the  English  Act,  the  II  and  III,  Willam  IV,  C. 
71,  the  time  during  which  an  infant,  an  insane  person, 
or  a  married  woman  is  the  owner  of  the  servient  tenement 
is  excluded  from  the  period  during  which  a  prescriptive 
right  is  in  course  of  acquisition. 

(b)  "  But  there  seems  to  be  an  important  difference  There  seems  to 
between  the  English  and  the  Indian  Law  in  this  respect,  difference  be- 
The  English  Act  II  and  III,  William  IV,  C.  71,  was  pass-  ush  and  the 
ed  expressly  '  for  shortening  the  time  of  prescription  in 

certain  cases.'     Its  object  was  to  remove  the  difficulties  English  Act 
which  had  previously  existed  of  establishing  easements  ed  the  period" 
by  proof  of  immemorial  user.     But  the  Act  did  not  alter  ing  the  condi- 
in  any  way  the  nature  of  the  right  to  be  acquired,  and,  before  the  Act 

,,         ;  \_  ,...  ,.   ,  „  for  the  acquisi- 

therefore,  the  conditions  which  were  generally  necessary  tion  of  preacrip- 
before  the  Act  to  the  acquisition  of  prescriptive  rights  are 
still  necessary  to  their  acquisition  under  the  Act,  though 
they  may  be  gained  by  a  shorter  period  of  enjoyment. 
33 


tive  rights. 


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258  PART  TV. — ACQUISITION  OP  OWNIBSHIP  BY  POSSESSION.    [SBC.  27 

Bat  the  Indian  (c)  "  But  the  Act  under  which  rights  of  way  and 
person  to  ac*  other  easements  are  now  generally  acquired  in  India  has 
way  without  re-  nothing  to  do  with  prescription.  It  is  '  an  Act  for  the 
gmn^  express7  limitation  of  suits  and  other  purposes/  and  section  26 
or  imp  enables    any   person   to    acquire   a  right  of  way  by  a 

20  years'  user  without  reference  to  any  grant,  express  or 
implied,  from  the  servient  owner."  Arzan  t;.  RakhaU1) 
Conditional  ex-  (d)  "  But,  under  section  27,  Act  XV  of  1877  and 
of  reversioner  of  section  16,  Act  Y  of  1882,  if  the  servient  heritage  has  not 
eenrien  n-  \)een  ^  tne  possession  of  the  full  owner,  but  has  been  under 
a  lease  for  a  term  exceeding  three  years,  or  has  been  sub- 
ject to  an  interest  for  life,  the  time  during  which  such  lease 
or  interest  has  continued  is  conditionally  excluded  from  the 
computation  of  the  period, — that  is,  provided  the  person 
entitled  to  the  servient  heritage  on  the  determination  of 
such  term  or  interest  resists  the  claim  within  three  years 
next  after  such  determination.  It  is  only  under  this  pro- 
vision that  two  periods  of  valid  enjoyment,  separated  by  a 
period  of  invalid  enjoyment,  may  be  tacked  together  to 
make  up  the  required  enjoyment  for  20  years.  The  period 
of  continuous  enjoyment,  partly  valid  and  partly  invalid, 
may,  in  this  case,  extend  back  to  a  time  which  is  more 
than  (20  +  2)  22  years  before  the  suit.  And  here  the 
express  provision  of  the  law  introduces  an  exception  to 
the  rule  which  requires  a  valid  enjoyment  for  20  years 
ending  within  two  years  next  before  the  institution  of  the 
suit."     (Gale,  184  ;  Tudor,  191 ;  Goddard,  134, 135.) 

Effect  of  the  ex-  (6)  "The  effect  of  this  provision  is  not  to  unite  two 
discontinuous  periods  of  valid  enjoyment,  but  to  extend  the 
period  of  continuous  enjoyment  by  so  long  a  time  as  the 
term  or  life-interest  continues,  {per  Parke,  B.,  in  Onley 
v.  Gardiner,  4  M.  and  W.,  500.)  Where  the  lessor  or 
reversioner  of  the  servient  heritage  resists  the  claim 
within  the  time  allowed,  the  claimant  must  show  20 
years'  valid  enjoyment  either  wholly  before  the  beginning 
of  the  term  or  life-interest,  if  such  term  or  interest  sub- 
sisted at  the  commencement  of  the  two  years  next  before 

(1)  I.  L.  R.,  10  Gala,  217. 

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elusion. 


SIC.  28]    PART  IV. — ACQUISITION  Or  OWN1B0HIP  BT  POS8188ION.  259 

the  stiit,  or  partly  before  and  partly  after,  if  such  term 
or  interest  ended  more  than  two  years  before  the  suit. 
(See  Goddard,  134,  135.)  Evidence  of  user  for  15 
years  before  the  commencement  of  the  term  or  life-estate, 
nser,  during  the  term  or  life-estate,  and  user  for  five  years 
after  the  term  or  life-estate,  continuously  down  to  within 
two  years  of  the  suit,  would  be  sufficient  to  establish  the 
right.  But  non-enjoyment  during  the  term  or  life-estate 
would  prevent  the  two  periods  of  valid  enjoyment  from 
being  tacked  together.  The  time  excluded  from  the 
computation  is  excluded  for  the  benefit  of  the  lessor  or 
reversioner,  and  not  for  the  benefit  of  the  claimant.  The 
latter  must  show  valid  enjoyment  for  20  years, 
besides  uninterrupted  enjoyment  during  the  time  which 
has  to  be  excluded."  (See  Clayton  v.  Corby,  2  Q.  B., 
813;  Pye  v.  Munford,  11  Q.  B.,  675;  Gale,  185.  Inter- 
ruption by  the  termor  or  life-tenant,  or  any  other  person, 
even  during  the  time  which  has  to  be  excluded  from  the 
.  computation  of  the  prescriptive  period,  prevents  the 
acquisition  of  the  right.)  (*) 

28.     At  the  determination  of  the  period  here-  Extinguish. 

...  .       mentofrightto 

by  limited  to  any  person  for  instituting  a  suit  property. 
for  possession  of  any  property,  his  right  to  such 
property  shall  be  extinguished. 

(a)  Act  XIV  of  1859  contained  no  provision  for  the  The  law  of  ex- 
extinction  of  right  after  the  Statutory  period,  and  conse-  caption  was  for 
quently  up  to  the  introduction  of  Act  IX  of  1871,  the  Sta-  troducedbyAct 


IX  of 


edbyi 
1871. 


tute  of  Limitation  was  supposed  to  bar  the  remedy,  but 
not  extinguish  the  right.  An  express  law  of  positive 
prescription  was  attempted  to  be  introduced  by  Sir  James 
Colvill  in  1859,  and  by  Sir  James  FitzJames  Stephen  in 
1871 ;  but  Act  XIV  of  1859,  and  Act  IX  of  1871  were 
passed  only  after  the  clauses  relating  to  positive  prescrip- 
tion had  been  expunged  from  the  bills  as  introduced. 

(b)     By  Section  29,  of  Act  IX  of  1871,  it  was  provided  it  first  applied 

*  only  to  land  or 

for  the  first  time  that  at  the  expiration  of  the  Statutory  hereditary 


office. 


(1)  Hitra's  Limitation  Act,  p.p.  429-480. 


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260  PAST  IV. — ACQUISITION  OF  OWNIBSHIP  BY  POSSESSION.    [SSC.  28 

period  for  a  suit  for  possession  of  "  land  or  hereditary 
Act  xv  of  1877  office,"  the  right  thereto  shall  be  extinguished.     Section 

extended  it  to  °  ° 

any  property.    28  of  Act  XV  of  1877,  extinguished  such  right  to  "  any 

property."     This  section  (28)  would  seem  to  extend  the 

No  express  pro-  doctrine  of  extinction  to  property  other  than  land;  but 

Yision  tor  trans*  i      *        * 

■Id  °f  Ihomer°  *nere  *8  no  express  provision  for  transferring  the  right 
to  the  adverse  holder. 

inluabttltute  (°)  Jt  was  not  until  the  32nd  vear  af  Hem7  VI1I>  ** 
iame^as  under  *°  rea*  ^i0118*  an<*  the  2l8t  year  of  James  I,  as  to  per- 
the  Indian  Act.  eonal  actions,  that  the  English  people  obtained  Statutes 
which  fixed  certain  periods  of  limitation  "  both  for  the 
time  present  and  for  all  times  to  come."  The  Statute  of 
James  I,  (1623),  which  applied  to  actions  for  ejectment  as 
well  as  to  purely  personal  actions  on  torts  and  simple 
contracts,  barred  the  remedy,  but  did  not  extinguish  the 
right.  The  subsequent  Statute  of  William  IV,  (1834), 
extinguished  the  right  as  to  real  property  after  20  years' 
adverse  possession,  but  it  did  not  even  in  that  limited 
class  of  cases  expressly  transfer  the  right  to  the  adverse 
holder.  The  37  and  38  Vict.,  c.  57,  which  came  into 
operation. in  1879,  reduces  tne  period  of  limitation  to  12 
years. 
Effectof theiec-       "  The  34th  section  (HI  and  IV,  Will.  IV,  c.  27),  extin- 

tion  is  to  exe-  .  _  .  .  _        .  ,    .  *  .  ,  . 

cute  a  convey-   guishes  the  title  of  a  claimant  at  the  same  time  as  his 

ance  to   the 

party  whose      remedy  is  barred,  and  he  is  from  that  time  an  entire 

possession  is  a 

bar.  stranger  to  the  estate,  and  his  title  to  the  land  cannot  by  re- 

entry after  that  time  be  revested  by  means  of  the  doctrine 
of  remitter.  (Brassington  v.  Llewellyn,  27  L.  J.,  Ex.  297). 
It  has  been  said  that  the  effect  of  the  statute  is  to 
execute  a  conveyance  to  the  party  whose  possession  is  a 
bar,  and  that  by  its  own  force  it  not  only  extinguishes 
the  right  of  the  former  rightful  owner,  bat  transfers  the 
legal  fee  simple  to  the  party  in  possession.  (Per  Lord 
St.  Leonards,  Scott  v.  Nixon,  3  Dru.  and  War.  407 ;  and 
see  Incorporated  Society  v.  Richards,  I  Dru.  and  War., 
289).  It  is  apprehended,  however,  that  it  may  more 
strictly  be  said  that  its  operation  in  giving  a  title  is  nega- 
tive ;  it  extinguishes  the  right  and  title  of  the  dispossessed 


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SBC.  28]    PART  IV. — ACQUISITION  OF  OWNERSHIP  BY  POSSESSION.  261 

owner,  and  leaves  the  occupant  with  a  title  gained  by  the 
fact  of  possession,  and  resting  on  the  infirmity  of  the 
right  of  others  to  eject  him.  (See  Dixon  t?.  Gayfere,  17 
421).W 


(d)     Ganga  Gobind  Mundul  v.  The  Collector  of  the  Even  before  Act 

24-Pergnnahs,(2>  which  was  a  case  disposed  of  with  refer-  c,  held  that  * 

fence  to  the  Law  of  Limitation  that  existed  prior  to  1859,  period  not  only 

first  established  the  principle,  that  where  a  suit  for  posses-  barred,  but  the 

sion  of  land  is  barred  by  a  Statute  of  Limitation,  the  right   in  favor  of  the 
•  .  .  #  possessor. 

is  extinct.  The  principle  of  this  decision  has  been  fre- 
quently applied  to  cases  governed  by  Act  XIV  of  1859. 
In  this  case,  P.  C,  held  in  March,  1867,  that  where  the 
claim  to  land  in  the  24-Pergunahs  in  possession  of  another 
is  barred  by  the  12  years'  prescription,  provided  by  Beng. 
Reg.  Ill  of  1793,  section  14,  his  title  is  extinguished ;  and 
although  a  party  to  a  suit  in  which  the  Government  claims 
the  land,  he  cannot  avail  himself  of  the  Government's 
right  of  prescription  of  60  years  to  resume  and  assess 
the  land,  on  the  footing  of  the  relation  of  laudlord  and 
tenant  betw  een  himself  and  the  Government.  In  Brinda- 
bun  Chunder  Roy  v.  Tarachand  Bundopadhya/8)  which 
was  a  case  governed  by  Act  XIV  of  1859,  Markby,  J., 
observes  :  "  It  has  been  laid  down  by  the  Privy  Council, 
in  the  case  of  Gunga  Gobind  Mundul  v.  The  Collector 
of  the  24-Pergunahs  (11  Moore's  I.  A.,  345,  sec.  360  and 
363)  that  'the  law  has  established  a  limitation  of  12 
years;  after  that  time  it  declares  not  simply  that  the 
remedy  is  barred,  but  that  the  title  is  extinct  in  favor  of 
the  possessor.'  And  in  an  earlier  passage  they  say,  that 
the  right  to  '  sue  for  dispossession  belongs  to  the  owner 
of  the  lands  encroached  upon,  and  if  he  suffers  his  right 
to  be  barred  by  the  Law  of  Limitation,  the  practical  effect 
is  the  extinction  of  his  title  in  favor  of  the  party  in  posses- 
sion.'    It  also  appears  to  me  to  be  an  accepted  doctrine  No  remitter  to  a 

i  •  #  -ii  i  ir»  j.    right  *or  which 

in  our  courts  that,  if  a  party  who  has  been  12  years  out  the  party  had 

no   remedy   by 

of  possession,  and  whose  suit  is  therefore  barred,  should  action  at  all. 


(1)  Darby  and  Bosanquet,  pp.  388-389. 

(2)  11  Moore' ■  I.  A.,  345.  |    (3)  11  B.  L.  B.,  237. 


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262  PABT  IV.— ACQUISITION  OP  OWNBESHIP  BY  POSSESSION.    [8EC.  28 

again  get  into  possession,  he  is  not  (to  use  an  English 
phrase)  remitted  to  his  old  title;  our  courts  adopting 
as  pointed  out  by  Sir  Lawrence  Peel,  in  Sibchunder  Doss 
v.  Sibkissen  Bonnerjee  (I  Boul,  Rep.  70,  see.  79),  the 
English  rule  that  there  is  no  remitter  to  a  right  for  which 
the  party  had  no  remedy  by  action  at  all.  This  decision 
was  quoted  and  approved  of  by  Loch  and  Mitter,  J.J.,  in 
Raja  Baradakant  Roy  Bahadur  v.  Prankrishna  Paroi, 
(3  B.  L.  R.  A.  C,  343)  and  the  principle  here  laid  down 
has  been  applied  exactly  in  the  same  way  to  the  English 
Statute  of  Limitations  (see  Brassington  v.  Llewellyn,  27 
L.  J.,  Exch.,  297.)" 
Land  taken  by  (e)  Where  the  Government  has  lost  its  right  to  sue, 
by  executive       it  will  not  be  permitted  to  put  itself  in  possession  by  an 

power  after  ..  »  .. 

right  to  sue  was  exertion  of  executive  power. 

covered  by  the       The  Government  having  a  claim  to  land  in  Bengal 
sessed  by  suit.   (Chittagong)  which  was  not  capable  of  being  enforced  by 
suit,  by  reason  of  the  cause  of  action  having  arisen  pre- 
vious to  1765,   (Reg.  Ill  of  1793,  sec.  14)  which  was  at 
that  time  the  utmost  period  of  limitation  in  Bengal,  took 
forcible  possession  of  the  land  in  1800.     The  persons  dis- 
possessed sued  Government  in  1804,  and  recovered  the 
land  by  a  decree  of  the  Sudder  Dewany  Adawlut.W 
Uninterrupted         (f)     In  Sitaram  Vasudev  v.  Khanderav  Bal  Krishna<2> 
morT^than  80    plaintiff  sued,  in  1873,  for  his  share  in  certain  ancestral 
Ict'ix  of°i87i,  property  in  the  possession  of  the  defendant,  and  alleged 
prescriptive  ti-  that  the  latter  had  been  united  with  him  in  estate.     He 
SSi5? v  of  i8?7i  however  admitted  that  he  had  lived  separate  from  the 
against7*  plain-    defendant  for  40  years  previously  to  the  institution  of  the 
Bhare.11111*    °r    suit,  and  that  he  had  not  during  that  period  received  any 
portion  of  the  profits  of   the  ancestral  property.      The 
defendant  pleaded  limitation.     Both  the  Lower  Courts, 
holding  that  Act  IX  of  1871,  Art.  127  applied,  decreed 
the  plaintiff's  claim.     It  was  held  by  the  High  Court  that 
the  defendant  had  acquired,  under  Regulation  V  of  1827, 
a  prescriptive  title  by  his  uninterrupted  possession  as  pro- 
prietor for  more  than  30  years  before  Act  IX  of  1871  came 

(1)  SeL  Eep.,  v.  2,  p.  166.       |       (2)  I.  L.  B.,  1  Bom.,  286. 

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BBC.  28]    PAET  IV. — ACQUISITION  OF  OWNERSHIP  BY  POSSESSION.  263 

into  force ;  the  effect  of  the  Regulation  being  not  only  to 
bar  the  plaintiff's  remedy,  but  to  take  away  his  right. 

(g)     In   Gossain    Dass    Chunder   v.    Issur   Chunder   12" years  contin- 

.  nous  adverse 

Nath/1)  it  was  held,  that  12  years'  possession  by  a  wrong-  possession  bars 
doer  not  only  extinguishes  the  title  of  the  rightful  owner,  tmguishes 
but  confers  a  good  title  on  the  wrong-doer.  Semble. — 
Such  title  may  be  transferred  to  a  third  person  whilst  it 
is  in  course  of  acquisition,  and  before  it  has  been  perfected 
by  possession.  •  Where  a  plaintiff  seeks  to  recover  posses- 
sion of  property  of  which  he  has  been  dispossessed  and 
bases  his  claim  on  the  ground  of  purchase,  and  also 
upon  the  ground  of  a  12  years'  possessory  title,  he  is 
entitled  to  succeed  if  he  proves  his  possession,  even  if  he 
fails  to  prove  his  purchase.  Following  the  above  decision, 
the  Allahabad  High  Court  in  Jagrani  Bibi  v.  Ganeshi,*2) 
held  in  January,  1881,  that  possession  of  land  by  a  wrong- 
doer for  12  years  not  only  extinguishes  the  title  of  the 
rightful  owner  of  such  land,  but  confers  a  good  title  on 

the  wrong-doer.     It  was  further  held  that  a  suit  for  the   Suit  for  posse* 
.  .  ,  .  8ion  °*  treM>  *« 

possession  of  trees  is  a  suifc  for  "  land,    within  the  mean-   suit  for  land. 

ing  of  section  29  of  Act  IX  of  1871,  land  comprehending 
what  it  covers  and  including  "  immoveable  property"  as 
recognized  and  defined  in  section  2  of  Act  I  of  1868.  In 
Keval  Kuber  v.  The  Talukdari  Settlement  Officer/3)  which 
was  a  suit  for  the  cancelment  of  the  Talukdar's  Settle- 
ment Officer's  order  imposing  rent  under  Bombay  Act  YI 
of  1862,  it  was  held  in  March,  1877,  that  if  the  grant  was 
the  grant  of  an  office  remunerated  by  the  use  of  land,  the 
right  to  assess  was  barred,  by  the  possession  of  a  person 
not  claiming  under  the  grantee  for  a  longer  period  than 
12  years  after  the  right  to  resume  accrued,  under  Act 
IX  of  1871,  section  29  and  Article  130,  schedule  2.  In 
Bambhat  Agnihotri  v.  The  Collector  of  Puna,*4)  it  was 
held  that  the  effect  of  Act  IX  of  1871,  section  29,  how- 
ever, is  not  merely  to  bar  the  remedy,  but  to  extinguish 

(1)  I.  L.  E.,  3  Calc,  224. 

(2)  I.  L.  R.,  8  AIL,  485. 
(8)  I.  L.  R.,  1  Bom.,  586. 
(4)  I.  R.  R.,  1  Bom.,  693. 


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264  PART  IV. — ACQUISITION  OP  OWNBR8HIP  BY  POSSESSION.     [SEC.  28 

the  title-  of  the  original  proprietor  after  12  years  of  a 
possessioti  adverse  to  him. 
Suit  to  reoover  (h.)  Tn  Manally  C henna  Kesavaraya  v.  Mnngadu  Vai- 
ship  held  barred  delinga/1)  plaintiff,  the  great  grandson  of  the  founder  of 
Unct  under  aec-  two  pagodas,  sued  for  the  office  of  Dharmakarta  or  for  the 
ixof  W7i.  °  appointment  of  some  person  to  it.  He  also  prayed  for  an 
account  of  the  pagoda  property  from  the  defendant.  The 
facts  of  the  case  were  as  follow.  The  founder  of  two 
pagodas  died  in  1795,  leaving  six  sons,  of  whom  two  were 
named  0  and  T,  respectively.  T,  the  younger,  died  in 
1834,  leaving  two  sons,  of  whom  one,  who  died  in  1853 
was  the  father  of  the  plaintiff.  The  founder's  elder  son, 
0,  died  in  1816,  leaving  two  sons,  M,  who  died  in  1840,  and 
X,  who  died  in  1847,  and  two  daughters,  A  and  the  defen- 
dant's mother.  The  office  of  Dharmakarta  descended  from 
the  founder  to  0.  After  his  death  a  manager  was  ap- 
pointed by  the  Collector,  and  C's  son  M  was  dispossessed 
by  his  uncle  T,  and  in  1834,  M  brought  a  suit  in  equity 
against  T  and  his  sons.  Pending  the  final  decree,  M  was 
appointed  by  the  Supreme  Court  to  act  as  Dharmakarta. 
A  decree  was  never  passed  and  the  suit  abated  on  AT 8 
death  in  1840.  M  was  succeeded  in  the  office  of  Dhar- 
makarta by  his  brother  L,  who  held  it  till  1847,  when 
he  died,  leaving  it  by  will  to  his  sister,  A,  and  her  husband 
B  jointly.  B  died  soon  after,  and  A,  in  1872,  leaving  the 
office  by  will  to  her  sister's  son,  the  defendant.  It  was 
held  on  the  first  question  that  the  suit  was  barred  by 
Article  123  of  Act  IX  of  1871,  inasmuch  as  the  bequest  of 
the  office  was  hostile  to  the  rights  of  the  male  members  of 
the  family.  It  was  further  held,  that  the  plaintiff  was 
precluded  from  setting  up  a  fresh  right  as  accruing  to 
him  on  the  death  of  A  as  the  only  male  survivor  of  the 
founder's  family  by  the  provisions  of  section  29  of  the 
Limitation  Act  IX  of  1871. 
Exclusive  re-  (i)  Where  the  equity  of  redemption  of  a  certain  estate 
oneof  themort-  became,  on  the  death  of  the  mortgagor,  the  property  of 
fcrmore  than  two  divided  branches  of  a  Malabar  tarwad,  and  the  rents 


12  years  will  not 
eiTtingninl 


in  the 

(1)  I.  L.  E.,  1  Mad.,  848. 


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SBC.  28]    PART  IV. — ACQUISITION  OP  OWNERSHIP  BY  POSSESSION.  265 

and  profits  of  the  land  were  collected  and  enjoyed  by  the  others  ri^ht  to 
representatives  of  one  branch  for  15  years,  such  represen-   actual  exclusive 
tatives  were  held  to  have  acquired  thereby  no  title  such  property  itself 
as  would  affect  the  right  of  the  other  branch  to  sue  for  guish  their 
possession.     Exclusive  receipt  of  rents  may  be  evidence  of 
an  exclusive  right  to  redeem  the  property,  and  though  it 
would  be  a  foundation  for  holding  that  the  branch  col- 
lecting the  rent   had  for  12  years  hostilely  claimed  an 
exclusive  right  to  redeem,  the  right  of  the  other  branch  to 
sue  for  possession  would  not  be  affected  until  the  branch 
asserting  exclusive  title  had  had  possession  of  the  pro- 
perty itself  for  upwards  of  12  years,  such  as  would  ex- 
tinguish the  right  of  the  other  branch  under  this  section. 
Payments  of  the  rents  and  profits  to  one  branch  could 
have  no  more  effect  as  against  the  other,  than  if  the  rents 
and  profits  had  not  been  paid  at  all,  but  withheld  by  the 
mortgagee.     Chathu  v.  AkuW 

(j)     In  Nocoor  Chunder  Bose  v.  Kally  Coomar  Ghose,**    £ ■  regards 

ueotrBf  law  oi  li- 

it  was  first  held  that  under  the  Limitation  Act  of  1859,  it   nutation  merely 

1  bare  remedy  but 

was  not  only  the  remedy  that  was  barred  after  the  statu-    does  not  extin- 

^  ^  guian  right. 

tory  period,  but  the  debt  also.  Following  the  above  decision 
and  also  upon  a  mis-understanding  of  the  observations  of 
the  Privy  Council  in  the  case  of  Gunga  Oovind  Mundul,W 
which  were  only  intended  to  apply  to  suits  for  the  recovery 
of  immoveable  property,  the  court,  in  Krishna  Mohun 
Bose  v.  Okhilmoni  Dossee/4>  which  was  a  suit  for  arrears 
of  maintenance,  held  that  the  suit  having  been  barred 
under  the  Act  of  1859,  the  debt  as  well  as  the  remedy 
was  extinguished.  When  the  same  question  arose  in  Bam 
Chunder  Ghosaul  v.  Juggutmon  Mohiney  Dabee/6)  Garth, 
C.  J.,  expressing  his  doubt  of  the  correctness  arrived  at  in 
the  previous  case,  followed  it  and  held  with  his  colleague 
that  the  Limitation  Act  not  only  barred  the  remedy,  but 
also  extinguished  the  debt.  When  the  same  question  came 
before  the  Court  in  Mohesh  Lai  v.  Bnsunt  Kumaree,^ 


(1)  I.  L.  R.,  7  Mad.,  26. 

(2)  I.  L.  R„  1  Calc  828. 
(8)  11  Moore's  I.  A.,  846. 

34 


(4)  I.  L.  R.,  8  Calc,  331. 

(5)  I.  L.  R.,  4  Calc,  283. 

(6)  I.  L  R.,  6  Calc,  340. 


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266  PART  IV.— ACQUISITION  OF  OWNERSHIP  BY  POSSESSION.    [8EC.  28 

the  court,  upon  a  review  of  all  the  previous  decisions  and 
also  upon  a  review  of  Valia  Tambnratti  v.  Vira  Rayan*1) 
and  Madhavan  v.  Achuda/2)  in  which  the  Madras  High 
Court  had  taken  contrary  view  of  the  question,  held,  that 
as  regards  debts,  the  Indian  Laws  of  Limitation  merely  bar 
observations  of  the  remedy,  but  do  not  extinguish  the  right.  Garth,  C. 
J.,  observes :  "  I  confess  that  it  has  been  a  great  satisfac- 
tion to  me  to  find  that,  since  that  judgment  was  deli- 
vered, not  only  Mr.  Justice  Prinsep,  but  several  other 
Judges  of  this  court  have  arrived  at  the  conclusion  that 
our  decision  was  wrong." 

(k)  When  Garth,  C.  J.,  dealt  with  the  question  and 
made  the  above  observations,  the  attention  of  the  court 
does  not  appear  to  have  been  drawn  to  Nursing  Doyal  v. 
Hurryhur  Saha,(s>  in  which  a  Division  Bench  (Pontifex, 
McDonell,  J. J,)  had  held  that  the  Limitation  Acts  IX  of 
1871,  and  XV  of  1877,  merely  barred  the  remedy,  but  did 
not  extinguish  the  debt.  Pontifex,  J.,  observes :  "  We  are 
of  opinion  that  neither  the  Limitation  Act  of  1871,  nor 
that  of  1877  extinguishes  a  debt.  These  Acts  only  bar  or 
discharge  the  remedy.  This,  we  think,  is  clear  from  the 
language  of  the  Acts,  and  particularly  from  sections  12 
and  29  of  the  Act  of  1871,  and  sections  11  and  28  of  the 
Act  of  1877." 
Difference  be-  (1)  "  The  difference  between  these  Acts  and  the 
Indian  Acta  and  English  Limitation  Law  is,  that  in  India,  limitation  need 

the  English  Li- 

mitation  Law.  not  be  set  tip  as  a  defence  (section  4  of  the  Act  of  1871, 
and  section  4  of  the  Act  of  1877),  while  in  England,  the 
defendant  must  expressly  claim  the  operation  of  the 
statute.  Section  60  of  the  Contract  Act,  which  was 
passed  after  the  Limitation  Act  of  1871,  also  shows  that 
the  debt  is  not  extinguished,  but  may  be  insisted  on  for 
certain  purposes ;  so  likewise  if  the  creditor  had  a  lien 
on  the  goods  of  his  debtor  on  a  general  account,  he  would 
be  entitled  to  hold  the  goods  for  a  debt,  the  recovery  of 
which  was  barred  by  the  Limitation  Act.     And  probably 

(1)  I.  L.  R.,  1  Mad.,  228.      |      (2)  I.  L.  R.,  1  Mad.,  301. 
(3)  I.  L.  R.,  6  Calc,  897. 


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BIC.  28]    PART  IV. — ACQUISITION  OF  OWNEB8HIP  BY  POSSESSION.         267 

it  would  be  bold  that  an  executor  would  be  allowed  to 
retain  out  of  a  legacy  a  debt  owing  by  the  legatee  to  tbe 
testator,  tbougb  its  recovery  was  barred  by  tbe  Act." 

(m)     In    Heera     Lall    Mookbopadbya    v.     Dbunput  other  decisions 
Singh/1)  it  was  held  that  according  to  the  principle  laid  view  th£f  the6 

j  •  ™      i  «      *   a    xVtr     *  i»r,A  Statute  of  Limi- 

down  m  section  25,  clause  3,  of  Act  IX  of  1872,  an  agree-  tation  does  not 

.  ,   .  extinguish  the 

ment  executed  by  a  judgment-debtor  promising  to  pay  debt. 

the  debt  secured  by  a  decree  against  him  was  not  void  for 

want  of  consideration,  even  if  the  decree  had  been  barred. 

In  Mullins  Beddy/2)  it  was  held  that   debt   due  on  a 

barred  decree  is  sufficient  consideration  for  a  promissory 

note  granted  by  the  judgment-debtor.     In   Tillakchand 

Hindumal  v.     Jitamal  Sudaram/8)  it   was  held  by  the 

Bombay  High  Court,  .that  a  decree  of  1862  which  was 

barred   in  1868,  afforded  a  good   consideration  for  the 

razeenamah  executed  by  the  judgment-debtor  in  August, 

1868,  transferring  to  the  creditor  certain  lands  for  the 

debt.     In  the   Administrator- General   v.   Hawkins/4)  it   The  Adminis- 

was  held  that  the  Administrator-General  of  Madras  is  can  pay  a  barr- 
ed debt, 
authorized  to  pay  a  barred  debt.     Kern  an,  J.,  observes  : 

"  I  can  have  no  doubt  that  an  Administrator  has  equal 
power  and  privilege  of    paying  and  retaining  a   debt 
though  barred  by  statutes  as  an  executor.     An  executor 
may  be  restrained  or  guided  by  direction,  express  or  im- 
plied, given  by  the  will,  and  he  must  act  on  all  such  legal 
directions ;  but  if  he  is  not  so  restrained  or  guided,  he 
and  an  Administrator  (after  administration)  appear  to  me 
to  have  the  same  power  and  privileges  including  those  of 
retainer,  and  payments  of  debts  though  barred."    In  Bhala  A  Hindu  wi- 
Nahana  v.  Parbhu  Hari,*5)  it  was  held  in  June,  1877,  that  entitled  to  per- 
a  Hindu  widow  had  full  power  to  perform  the  contract  of  band's  contract 
her  husband  with  the  parents  of  the  adopted  boy  although  his  death. 
30  years  had  elapsed  from  the  death  of  her  husband. 
Section  60  of  Act  IX  of  1872,  allows  a  creditor  to  apply 
payment  made  by  a  debtor  to  the  discharge  of  time  barred  Payment  may 

*  be  appropriated 

to  time  barred 
debt  under  sec- 

(1)  I.  L.  R.,  4  Calc,  500.        I      (3)  10  B.  H.  C.  E.,  206.  tion  60  of  the 

(2)  6  N.-W.  P.  H.  0.,  160.     |      (4)  I.  L.  E.,  1  Mad-,  267.  Contract  Act. 

(5)  I.  L.  R.,  2  Bom.,  67. 


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268 


PART  IV. — ACQUISITION  OF  OWNERSHIP  BY  POSSESSION.    [SEC.  28 


Mother  merely 
by  reason  of  be* 
•ing   Buch  and 
natural   guar- 
dian of  her  mi- 
nor eon  has  no 
authority  to  ac- 
knowledge 
a  debt  on   be- 
half of  the  mi- 
nor. 
(June  1886.) 


The  acknow- 
ledgment can- 
not be  treated 
as  a  fresh   pro- 
mise as   there 
was   no  consi- 
deration for   it 
so  far  as  the 
minor  was  con- 
cerned. 


It  does  not  make 
the  mother  res- 
ponsible for  the 
debt,  as  such 
was  not  the  in- 
tention of  the 
parties. 


Secondary  evi- 
dence may  be 
given  of  an  ac- 
knowledgment 
lost  while  in 
court. 


debts  when  the  debtor  has  omitted  to  intimate  to  which 
debt  the  payment  should  be  applied.  Where  neither 
party  makes  any  appropriation,  section  61  allows  the 
payment  to  be  applied  in  discharge  of  the  debts  in  order 
of  time  whether  or  not  they  are  barred  by  the  Law  of 
Limitation. 

(n)  In  Wajibun  v.  Kadir  BukshjW  an  acknowledg- 
ment of  a  debt  on  behalf  of  a  minor  was  made  by  his 
mother  and  natural  guardian,  and  the  plaintiff  relied 
npon  it.  A  Division  Bench  (Ghoee  and  Porter,  J.J.) 
observe,  "  the  mother,  in  the  absence  of  any  special  autho- 
rity being  proved  to  exist  in  her,  cannot  be  regarded  as  an 
agent  on  the  part  of  the  minor  duly  authorized  in  that 
behalf,  within  the  meaning  of  section  19  of  the  Limitation 
Law  ;  and  it  appears  to  us  that  a  person,  merely  by  reason 
of  her  being  the  mother  and  natural  guardian  has  no 
authority  to  make  an  acknowledgment  on  behalf  of  minors, 
so  as  to  give  a  creditor  a  fresh  start  for  the  period  of 
limitation."  The  claim  as  against  the  minor  was  dismissed 
as  barred. 

(O)  It  was  contended  that  the  acknowledgment  im- 
plied a  fresh  promise,  and  that,  therefore,  irrespective  of 
section  19,  the  debt  was  not  barred  against  the  minor. 
The  court  disallowed  this  contention,  observing  :  "  it  is 
quite  clear  that  there  was  no  consideration  so  far  as  the 
minors  were  concerned,  for  this  fresh  promise  on  the  part 
of  the  mother,  and  therefore  the  said  promise  by  her  could 
not  be  regarded  as  an  act  in  the  interest  of  the  minors, 
such  aa  would  be  binding  upon  them." 

Cp)  It  was  fnrther  contended  that  by  reason  of  her 
acknowledgment,  the  mother  made  herself  liable  to  make 
good  the  debt  and  that  it  should  be  decreed  against  her. 
The  court  observed  that  it  was  obvious  that  it  was  never 
intended  that  the  mother  should  make  herself  solely  res- 
ponsible for  the  debt  and  that  it  was  never  the  plaintiff's 
case  that  she  made  herself  so  liable. 

(q)  An  original  account  book  containing  an  ac- 
knowledgment of  a  debt  had  been  filed  in  court,  and 
subsequently  lost  whilst  in  court.  It  was  held,  that 
secondary  evidence  of  such  acknowledgment  might  be 
given,  notwithstanding  the  words  of  section  19  of  the 
Limitation  Act.  (See  note  D  under  Sec.  19,  pp.  153-154.) 
(1)  I.  L.  E.,  13  Calo.,  292. 


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ACT  XV  OF  1877. 

THE  FIRST  SCHEDULE. 


Number  and 
Year^of  Acts, 


Title. 


Extent  of  Repeal. 


X  of  1865 


IX  of  1871 


X  of  1877 


The  Indian  Succes- 
sion Act. 


The  Indian  Limita- 
tion Act  1871. 


The    Code  of  Civil 
Procedure. 


In  Section  321,  the  words 
"  within  two  years  after  the 
death  of  the  testator,  or  one 
year  after  the  legacy  has 
been  paid." 


The  whole. 


Section  599,  and  in  Section 
60 1  the  words  "  within  thirty 
days  from  the  date  of  the 


ae 


order, 


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ACT  XV  OF  1877. 
THE  SECOND  SCHEDULE. 

(See  Section  4.J 
First  Division:  Suits. 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which 
period  begins  to  run. 


Word  "when"         In  Act  IX  of  1871,  the  words  in  the  3rd  column  were : 

column  of  Act  "time  when  the  period  begins  to  run."     In  Dhonessur 

ed°into  ''from  Koorer  v.  Roy  Gooder  Sahoy/1)  it  was  argued  that  the 

Act  of  1877.        above  phrase  was  somewhat  ambiguous.     Garth,  C.  J.» 

observed,  that  by  reading  the  above  phrase  as  meaning 

time  from    which   period  begins   to  run,   we   think  we 

should  be  doing  no  real  violence  to  the  language  of  the 

Act,  and  that  we  should  be  undoubtedly  carrying  out  the 

intention  of  the  Legislature.    The  alteration  in  the  present 

Act  was   probably  made   with    reference  to  the  above 

remarks.     See  V.  K.  Gugar  v.  B.  D.  Barve,W  and  note  A, 

under  section  12,  p.p.  84-85. 

The  word  At  the  head  of  the  first  column  of  this  schedule,  the 

the  first  column  words  are  "  description  of  suit.*'     With  regard  to  these 

fluitTunder  the  words,  used  in  the  corresponding  schedule  of  Act  IX  of 

dire  Code.  1871,  the  Bombay  High  Court  in  Abba  Haji  Ishmail  v. 

Abba  Thara/3)  wherein  an  attorney,  under  Rule  149  of  the 

Common  Law  Rules  of  the  Supreme  Court  of  Bombay, 

made  an  application,  that  his  client  should  show  cause 

why  he  should  not  pay  the  balance  of  his  bill  of  costs, 

observe :  "  as  the  Legislature  has  used  only  the  word '  suit/ 

and  the  only  suits  specially  mentioned  in  the  2nd  schedule 

are  those  under  the  Civil  Procedure  Code,  it  must  be  taken 

that  those  only  are  the  suits  meant.     The  court,  of  course, 

cannot  extend  the  meaning   of  the  word  suits,  so  as  to 

include  such  applications  as  the  present,  but  must  read 

the  word  in  its  popular,  natural  and  ordinary  sense. 

(1)  I.  L.  E.,  2  Calc,  336.  |   (2)  I.  L.  B.,  2.  Bom.,  673. 
(3)  I.  L.  E.,  1  Bom.,  253. 


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AST.  1 — 2]    THE  SECOND  SCHEDULE,  FIB8T  DIVISION — SUITS. 


271 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


When  notice  of  the 
award  is  delivered 
to  the  plaintiff. 


Part  I. 
1. — To  contest  an  award  of  Thirty  days, 
the  Board  of  Revenue 
under  Act  No.  XXIII 
of  1863  (to  provide  for 
the  adjudication  of 
claims  to  waste-lands.) 

(ft)    (No.  1,  Act  IX.)  The  suit  under  this  Article  should  Suit  under  this 
be  instituted,  in  a  court  specially  constituted  under  Act  brought  in  a 
XXIII  of  1863,  by  the  claimant,  or  objector,  on  receipt  of  constituted  uZ 
notice  of    the   Board's   adverse   award.     The    Collector  of  lees, 
notifies  such  award  to  the  Special  Court,  and  the  court 
gives  notice  to  the  claimant  or  objector.     This  Article 
does  not  apply  to  suits  by  Government  to  try  claims  to 
waste-lands  where  such  claims  have  been  admitted  by 
Revenue  authorities.    (See  sections  5  and  7  of  Act  XXIII 
of  1863). 

Cb)     In  Taranath  Dutt  v.  The  Collector  of  Sylhet/1)    Before  Act  xv 

V     '  J  '  of  1877,  it  was 

it  was  held  that  the  court  cannot  extend  the  period  of  held  that  court 

cannot  extend 

30  days  allowed  by  section  5,  Act  XXIII  of  1863,  for  pre-  the  period  of  so 
ferring  a  suit  to  contest  an  award  by  the  Board  of 
Revenue,  and  that  the  filing  of  a  vakalatnamah  is  not 
an  institution  of  such  a  suit.  Under  the  provisions  of 
the  Limitation  Act  (XV  of  1877),  the  time  may  be 
extended. 


Part  II. 
Ninety  days. 


When  the  act  or  omis- 
sion takes  place. 


2. — For  compensation  for  do- 
ing, or  for  omitting  to 
do,  an  act  alleged  to  be 
in  pursuance  of  any 
enactment  in  force  for 
the  time  being  in  Bri- 
tish India. 

(a)    (No.  2,  Act  IX.)  Certain  local  and  special  laws  lay  Certain  local 

down  different  periods  of  limitation  for  suits  under  them  laws  prescribe 

for  compensation,  and  provide  at  the  same  time  for  service  periods. 
(1)  5  W.  R.,  Reference  by  Waate-land  Courts,  p.  1. 


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272  THE  8KC0ND  SCHEDULE,  FIRST  DIVISION — SUITS.  [ART.  2 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Pakt  II. 
Ninety  days. 

of  notice  on  the  defendant,  of  intended  litigation.     The 
City  of  Madras  Municipal  Act  (1  of  1884),  section  433, 
provides  that  no  action  shall  be  brought  "  until  the  expira- 
tion of  one  month  next  after  notice  in  writing  has  been  left 
at  the  Municipal  office,  and  at  the  place  of  abode  of  such 
person  not  later  than  six  months  from  the  date  of  which 
the  cause  of  action  arose."     This  Article  applies  only  to 
suits  for  compensation,  but  not  to  suits  for  recovery  of 
land  or  establishment  of  title. 
Suit  for  money       (b)     In  Ranchhod  Varajbhai  v.  The  Municipality  of 
m2yafaii  under   Dakor/1)  plaintiff   sued  a   Municipality,   constituted   by 
thin         e.        Bombay  Act  VI  of  1873,  for  the  refund  of  money  illegally 
levied  from  him  as  house-tax.     It  was  held  that   the 
plaintiff  was  bound  to  serve  a  previous  notice  on  the 
Municipality  as  required  by  section  86  of  that  Act,  and 
wait  till  the  expiration  of  at  least  one  month  after  service 
of  notice.     Section  86  of  the  Municipal  Act  is  not  confined 
to  an  action  of  damages,  but  is  applicable  to  every  claim 
of  a  pecuniary  character  arising  out  of  the  Acts  of  Muni- 
cipal bodies  or  officers.     In  Mayandi  v.  McQuhae,  Vice- 
President  of  the  Madura  Municipality,^  which  was  a 
suit  for  money  due  under  a  contract,  it  was  held  that  it 
was  not  a  suit  contemplated  by  section  168  of  the  Muni- 
In  the  case  of   cipal  Act,  and  that  suits  falling  within  it  are  suits  in 
cause  of  action  respect  of  acts  and  defaults  of  a  different  description, 
when  damage         See  section  24  of  the  Limitation  Act  which  provides, 
that  if  the  act  complained  of  does  not  give  rise  to  a  cause 
of  action  until  some  special  damage  results  therefrom, 
the  period  will  be   computed  from  the  time  when  the 
injury  results.     (Vide  notes  under  section  24.) 
Suit  for  refund       (c)     In  the  Collector  of  Furreedpore  v.  Gooroo  Dass 
paid  twice  over.  Roy,<3)  it  was  held  in  March,  1866,  that  a  suit  for  refund 

(1)  I.  L.  E.,  8  Bom.,  421.      |      (2)  I.  L.  E.,  2  Mad.,  124. 
(3)  6  W.  E.,  137. 


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ART.  3]  THB  8BCOND  SCHKDUUE,  PI  EST  DIVISION — 80IT8. 


273 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


When  the  disposses- 
sion occurs. 


Part  II. 
Ninety  days. 

of  Income- Tax  paid  twice  over  in  two  different  districts 
is  barred  by  limitation  if  brought  after  three  months  from 
the  accrual  of  the  cause  of  action,  whether  the  Collector 
acted  legally  or  illegally  in  collecting  the  tax. 

Part  III 
3. — Under  the  Specific  Relief   Six  months. 

Act,   1877,   Section  9, 

to  recover  possession  of 

immoveable    property. 

(a)  (No.  3,  Act  IX  of   1871,  sec.  15,  Act  XIV  of  section  •  of  the 

x    '      x  Specific  Relief 

1859.)     Section  9  of  the  Specific  Relief  Act  simply  repro-  Act  is  intended 

*  to  restore   pos- 

duces  sec.  15,  Act  XIV  of  1859,  which  did  not  abridge  any  session  without 

.    .  .  ,    ,  -,..--,  .  ,i  reference  to 

tights  possessed  by   a   plaintiff,   but    was    intended  to  title. 
give  him  the  right  if  dispossessed  otherwise,  than  by  due 
course  of  law,  to  have  his  possession  restored,  without 
reference  to  title  on  which  he  holds,  and  that  which  the 
dispossessor  asserts.     In  cases  under  that  section,  a  lessor, 
who  had  dispossessed  otherwise,  than  by  due  course  of  law, 
a  lessee  whose  term  had  expired,  would  be  compelled  to 
restore  possession  to  the  lessee.     The  plain  object  is  to  object  of  the 
discourage     proceedings    calculated    to   lead    to    serious  courage  pro- 
breaches  of  the  peace,  and  to  provide  against  the  person  to  create 
who  has  taken  the  law  into  his  own  hands  deriving  any  p«aoe. 
benefit  from  the  process.     It  was  intended  to  obviate  the 
effect  of  the  possible  application  of  English  Law  to  such 
cases.     That  law,  as  laid  down  in  Harvey  v.  Bridges  (XIV 
M.  and  W.,  442,)  is  that  the  free-holder,  if  entitled  to  eject  a 
person  in  possession,  may  commit  an  indictable  offence  in 
doing  so,  and  yet  gain  all  the  advantages  of  a  legal  posses- 
sion and  be  perfectly  secure  against  the  action  of  the  party 
assaulted.    Kunhi  Komapen  Kurupu  v.  Chembata  Ambu.W 

(b)  In   Seetul   Chunder  Bhuttacharjee  v.  Judoonath 

Bose,<2)  the  plaintiff  claimed  to  have  it  declared  that  carrying  away 

the  crops  is  not 
(1)  2  M.  H.  0.  B.,  313.      |  .  (2)  25  W.  E.,  180.  dispossession 

35 


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274 


THE  SECOND  8CHIDULI,  FIRST  DIVI8ION — SUITS. 


[AST.  3 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


when  Kaboolut 
wu   for   pay- 
ment of  rent. 


Partial  dispos- 
session  of   a 
ho  tine  is  dispos- 
ition within 
this  Article. 


Casual  trespass- 
er's possession 
is  not  posses- 
sion. 


A  tenant  forci- 
bly  disposses- 
sed, might  sue 
landlord   for 
possession;  but 
an    agent  can- 
not sue  the 
owner   return- 
ing on  his  land. 


Decision  under 
this  Article  does 
not  give  fresh 
starting  point 
to  suit  on  title. 


Part  III. 
Six  months. 

defendant  No.  3  was  his  ryot,  on  the  ground  that,  by  some 
collusion  between  her  and  defendant  No.  1,  the  latter  was 
set  up  as  a  middleman  and  so  prevented  him,  plaintiff,  from 
getting  rent  direct.  The  a«t  of  dispossession  was  the  for- 
cible carrying  off  of  the  crops  by  defendant  No.  1.  It  was 
held,  that  as  the  kaboolut,  if  genuine,  was  for  the  payment  of 
rent,  no  dispossession  could  take  place  in  the  carrying  off  of 
the  crops,  and  that  there  was  consequently  no  cause  of  action. 
(C)  In  Sabapathi  Chetti  v.  Subraya  Chetti,W  it  was  held 
that  a  suit  lies  under  section  9  of  the  Specific  Belief  Act, 
when  plaintiffs  possession  of  a  house,  well,  Ac.,  has  been 
partially  as  well  as  when  it  has  been  wholly  disturbed. 

(d)  In  Dadabhai  Narsidas  v.  the  Sub-Collector  of 
Broach/2)  it  has  been  observed  that  mere  possession  as  a 
trespasser  is  not  sufficient  to  entitle  a  plaintiff  to  recover 
in  a  suit  brought  under  section  15  of  Act  XTV  of  1859. 
There  must  be  in  the  plaintiff  juridical,  as  opposed  to 
mere  physical  possession. 

(e)  In  Jonardun  v.  HaradhunW  it  was  held,  that  a 
landlord  ejecting  a  tenant  forcibly,  and  of  his  own  authority, 
may  be  sued  under  this  Article,  though  the  dispossession 
may  have  been  after  the  expiry  of  the  term  of  the  lease.  But 
a  mere  agent  who  has  been  put  into  possession  of  property 
on  his  employer's  behalf  cannot,  by  denying  his  employer's 
right  to  possession,  not  only  hold  the  property  against  his 
employer,  but  turn  his  employer  out  under  this  section,  even 
though  his  employer  has  committed  no  breach  of  the  peace 
or  committed  any  act  of  which  the  agent  could  complain 
other  than  that  of  returning  upon  his  own  property. 
Madhub  Chunder  Giree  v.  Sham  Chand  Giree.<*> 

(f)  In  a  suit  for  possession  of  land,  where  it  appeared 
that  the  plaintiff  had  forcibly  turned  out  the  other  party 


(1)  I  L.  R.,  8.  Mad.,  250. 
(2)1  B.  H.  C.  R.,  A.  C.,  82. 


(3)  9  W.  R.,  613. 

(4)  I.  L.  R.,  3.  Gale,  243. 


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ART.  4 — 5]    THB  SECOND  80HXDTTU,  FIB8T  DIVISION—SUITS. 


375 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  III. 
Six  months. 

and  compelled  him  to  seek  his  remedy  under  section  15, 

Act    XIV  of  1859,    it  was  held  that  plaintiff  was  not 

entitled  to  get  a  fresh  starting  point  for  limitation  from  the 

date  of  the  decision  in  that  case.     Prem  Chand  Kyhntta 

v.  Hnree  Doss  Kybutta.W     In  Golam  Nabi  v.  Biswanath  Dispossession 

Kar,(*)  it  was  held,  that  dispossession  under  a  decree  pas-   cision  does  not 

irive  &  fresh 

sed  under  seotion  15  of  Act  XIV  of  1859,  would  not  give  cause  of  action. 
a  fresh  cause  of  action  for  a  suit  for  possession  on  title. 


When  the  wages,  hire 
or  price  of  work 
claimed  accrue  or 
accrues  due. 


4,— Under  Act  No.  IX  of  1 860   Six  months. 
(to  provide  for  the  spee- 
dy determination  of  cer- 
tain   disputes   between 
workmen     engaged    in 
Railway  and  other  pub- 
lic works  and  their  em- 
ployers), Section  1. 
(No.  4,  Act  IX  of  1871.)    Government  may  empower 
any  Magistrate  to  decide  disputes  as  to  wages  or  price  of 
work,  and  the  Magistrates  so  empowered  have  jurisdiction 
only  in  case  the  amount  in  dispute  does  not  exceed  the 
sum  of  Rs.  200.    The  Magistrate  may  direct  performance 
of  work,  if  complainants  elect  for  work,  and  award  two 
months'  imprisonment  for  disobedience.    Sections  1,  2  and 
8,  Act  IX  of  1860. 

5. — Under  the  Code  of  Civil    Six  months. 
Procedure,        Chapter 
XXXIX   (of  summary 
procedure  on  negotiable 
instruments.) 

(No.  5,  Act  IX.)  Sections  532  to  538  of  Act  XIV  of  1882  This  Article  re- 
contain  the  procedure  for  suits  to  which  this  Article  applies,  summary  suits, 

.      .   ,       tL    .     ™  ...     *       .i       •      ..,    ,.  »  t         while  Arts.  »to 

Articles  69  to  80  provide  for  the  institution  of  regular  so  apply  to  re- 

.  .  ,  .  *  gular  suits. 

suits  on  negotiable  instruments  within  three  years  from 
the  accrual  of  cause  of  action. 

(1)  22  W.  R„  259.  |  (2)  3  B.  L.  E.,  App.,  86. 


When  the  instrument 
sued  upon  becomes 
due  and  payable. 


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276 


THE  SECOND  SCHEDULE,  FIRST  DIVI8ION — SUITS.    [ART.  6—7 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


6. — Upon  a  Statute,  Act,  Re- 
gulation or  Bye-law,  for 
a. penalty  or  forfeiture. 


Pabt  IV. 
One  year  . 


When  the  penalty  or 
forfeiture  is  incur- 
red. 


Suit  for  tax  un- 
der Municipal 
Act,  is  not  a 
suit  for  penalty. 


Municipal  Bye- 
laws. 


Clause  in  ft  Go- 
vernment lease 
entitling  plain- 
tiff to  grazing 
fees,  was  held  a 
bye-law. 


(a)  (No.  6,  Act  IX ;  section  1,  clause  2,  Act  XIV.)  A 
suit  for  tax  under  The  Towns'  Improvement  Act  is  not  a 
suit  for  penalty  or  forfeiture  within  the  meaning  of  this 
Article.  The  President  of  the  Municipal  Commission, 
Ghintur  v.  Srikakulapu  Padmarazu.W 

(b)  The  bye-laws  passed  by  the  Municipal  Commis- 
sioners of  a  town  under  the  provisions  of  the  Municipal 
Act  have  the  force  of  law  and  may  fall  under  this  Article. 

(C)  "  Held,  that  a  clause  in  a  lease  from  Government, 
which  entitled  plaintiffs  to  certain  grazing  fees,  authoriz- 
ing impounding  and  the  levy  of  an  extra  fee  in  the  case 
of  cattle  grazed  without  permission,  was  a  bye-law  within 
the  meaning  of  this  Article :  Men  Lai  v.  Mukhta  (Punj 
Rec.,  No.  3  of  1875.)"W 


7. — For  the  wages  of  house- 
hold servant,  artisan 
or  laborer  not  provided 
for  by  this  schedule, 
No.  4. 


One  year 


When  the  wages  ac- 
crue due. 


Teacher  of  fenc- 
ing is  not  a  ser- 
vant. 


Person  entitled 
to  sweep  and 
supply  flowers 
in  temple,  is  not 
a  servant  with- 
in this  Article. 


(No.  7,  Act  IX;  sec.  1,  cl.  2,  Act  XIV.)  This  Article 
and  Articles  4  and  101  provide  for  suits  for  wages  in  three 
special  classes  of  cases.  Suits  for  wages  not  falling  under 
them  will  generally  be  governed  by  Article  102. 

(a)  In  Pylwan  Jarkan  Sahib  Vasthath  v.  Jenaka 
Raja  Tevar/8)  which  was  a  suit  by  a  teacher  of  fencing,  for 
monthly  payment  due,  it  was  held  that  Article  7  of  Act 
IX  of  1871,  did  not  govern  the  suit. 

(b)  A  person  whose  duties  are  to  sweep  and  clean  a 
temple,  provide  flowers  for  daily  worship,  and  garlands  for 

(1)  I.  L.  R.,  3  Mad.,  124.      |   (2)  Bivaz's  Limitation  Act,  p.  86. 
(3)  8  M.  H.  C.  R.,  87. 


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ART.  7]  THE  SECOND  SCHEDULE,  FIRST  DIVISION — SUITS.  277 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  IV. 
One  year. 

the  idol,  is  not  a  household  servant  or  labourer  within  the 
meaning  of  this  Article.     Bhavath  Radan  v.  Rama/1) 

(C)     In  Virasvami   Nayak  v.   Sayambabay  Sahiba,W    An  artist  ag- 
the  plaintiff,  a  native  artist,  agreed  to  supply  pictures  to   ply  pictures  is 
the  late  Rajah  of  Tanjore,  and  sued  for  their  value.     It 
was  held  that  the  price  cannot  be  considered  as  the  wages 
of  an  artizan  within  clause  2,  section  1 ,  of  Act  XIV  of 
1859. 

(d)  In  Andi  Konan  v.  Venkata  Subbaiyan,(s>  the  plain-  a  person  under- 
tiff,  in  consideration  of  the  possession  and  use  of  the  land  the  necessary 
being  given  him  and  of  one- third  of  the  produce,  under-  vation  in  eon- 
took  to  do  all  that  was  necessary  for  the  cultivation  of  use  of  land  and 
the  land.  It  was  held  that  by  this  agreement  the  parties  Suce  is  notPa°~ 
were  placed  in  a  very  different  relationship  from  that  of 
employer  and  labourer. 

(6)     In  Nitto  Gopal  Ghose  v.  Mackintosh/4)  it  was  held,   One  year's  rale 

xi  \  j.    *  it  l  w  i        j  heldto  **** a 

that  a  suit  for  salary  by  a  mookhtyar  employed  on  a  mookhtyar's 
monthly  pay  is  not  barred  by  the  limitation  of  one  year   but  not  a  facl 

tOTV    gnitim. 

prescribed  by  clause  2,   section  1  of  Act  XIV  of  1859.   tan's  suit  for 
But  a  suit  for  wages  due  to  a  factory  gumastah  engaged 
on  a  monthly  pay  of  10  Rupees,  was  held  to  be  governed 
by  the  above  clause.     Nobin  Chunder  r.  Kenny. (*) 

(f)     In  Sivarama  Pillai  v.  Turnbull,W  it  was  held  that   TWsArticie  ap. 
clause  2,  section  I  of  Act  XIV  of  1859,  applies  only  to  suits   suits  against 

the  employer 

for  wages  brought  by  a  servant  against  the  person  liable   and  not  to  a  suit 
as  the  master  in  whose  service  he  had  been  employed,   ment  servant 

.  .  *  who   received 

and  the  section  does  not  apply  to  a  suit  brought  by  one  money  for  die- 

hursement  of 

Government  servant  against  another  for  the  recovery  of   wages. 
a  sum  of  public  money  received  by  the  defendant  as  a 
disbursement  on  account  of  the  wages  of  plaintiff  to  whom 
the  defendant  was  legally  bound  to  pay  it  over. 


(1)  I.  L.  R.,  7  Mad.,  99. 

(2)  2  M.  H.  G.  R.,  6. 

(3)  2  M.  H.  C.  R-,  387. 


(4)  6  W.  R.  C.  R.,  11. 

(5)  5  W.  R.  8.  C,  3. 

(6)  4  M.  H.  C.  R.,  43. 


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278 


THl  8BC0ND  SCHEDULE,  PIE8T  DIVISION — SPITS.    [ART.  8 — 10 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Date  of  dismis- 
sal of  servant  is 
not  the  starting 
point,    but  the 
end   of  the 
month    if   ap- 
pointed on 
monthly  salary. 


Part  IV. 
One  year. 

(g)  In  Kalichurn  Mitter  t>.  Mahomed  Soleem/1)  it  was 
held,  that  where  a  servant  is  appointed  on  a  fixed  monthly 
salary,  and  there  is  nothing  to  show  that  the  salary  is  to 
be  paid  in  advance,  the  limitation  as  to  each  month's  salary 
commences  from  the  time  at  which  the  salary  became  due, 
i.e.,  the  end  of  the  month,  and  not  from  the  date  of  the 
dismissal  of  the  servant. 


One  year 


8. — For  the  price  of  food  or 
drink  sold  by  the  keep- 
er of  a  hotel,  tavern,  or 
lodging  house. 

(No.  8,  Act  IX  ;  sec.  1,  cl.  2,  Act  XIV.) 


When    the    food    or 
drink  is  delivered. 


9. — For  the  price  of  lodging. 


One  year 


When  the  price  be- 
comes payable. 

(No.  9,  Act  IX;  sec.  1,  cl.  2,  Act  XIV,)  Article  110 
allows  3  years  to  a  suit  for  arrears  of  rent. 


10. — To  enforce  a  right  of 
pre-emption,  whether 
the  right  is  founded 
on  law,  or  general  us- 
age, or  special  con- 
tract. 


One  year  . . .  When  the  purchaser 
takes,  under  the 
sale  sought  to  be 
impeached,  physi- 
cal possession  of  the 
whole  of  the  proper- 
ty sold,  or,  where 
the  subject  of  the 
sale  does  not  admit 
of  physical  posses- 
sion, when  the  in- 
strument of  sale  is 
registered. 

Under  xiv  of  (a)  (No.  10.  Act  IX ;  section  1,  cl.  1,  Act  XIV.) 
from  the  date  of  The  provisions  of  Act  XIV  of  1859  declared  that  in 
possession  tm-  pre-emption  suits,  the  period  of  limitation  should  be 
peached.  "^  computed  from  the  time  at  which  the  purchaser  shall 
have  taken  possession  under  the  sale  impeached.  In 
(1)  6  W.  B.  C.  E.,  33. 


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ART.  10]  THE  SECOND  SCHEDULE,  FIRST  DIVISION — SUITS.  279 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  IV. 
One  year. 

Ganeshee  Lall  v.  Toola  Ram  (H.  C.  R.,  N.-W.  P.,  1868,    Possession  was 

p.  367)  the  term  possession  was  construed  to  mean  such   to  mean  tangi- 

possession  as  the  nature  of  the  things  sold  admitted  of,   possession. 

and  that  it  did  not  necessarily  mean  tangible  or  visible   required  actual 

possession 

possession.     The  language  of  Article  10,  of  Act  IX  of  1871, 
differed  from  the  former  one  in  declaring  that  the  period 
began  to  run  when  the  purchaser  took  actual  possession 
under  the  sale.     As  to  what  was  meant  by  actual  pos- 
session, the   Full  Bench  of  the   Allahabad  High  Court 
held  in  August,  1876,  that  full  effect  would  be  given  to 
the  term,  if  it  was   held  that  where  the  nature  of  the 
subject  of  sale  admitted  of  visible  and  tangible  possession,  * 
limitation  would  run  from  the  time  that   such  possession    * 
was  taken,  but  that  when  the  nature  of  the  subject  of  the  when  subject 
sale  did  not  admit  of  tangible  possession,  limitation  ran   admit°of  tangi- 
from  the  date  when  the  subject  of  sale  was  completely   timePwasWhe?i 
conveyed  to  and  vested  in  the  purchaser.     Jageshar  Singh   thaT^t^com- 
v.  Jawahir  Singh. G)    The  above  decision  was  followed  in  ?ey^yto°and 
Bijai  Ram  v.  Kallu,<2)    in  which  conditional  vendee  had  pu^haser.  '  e 
obtained  such  complete  possession  that  entitled  him  to 
secure  mutation  of  name  in  the  Revenue  registry.     With 
reference  to  the  above  observations,  the  Legislature  would 
appear  to  have  altered  in  the  Act  of  1877,  the  time  from 
which  limitation  should  be  counted  in  pre-emption  suits. 

(b)     In  Lachmi  Narain  Lai  t?.  Sheoambar  Lal,<8>  the         A.  h. 
mortgagee  in  possession  became  vendee,  by  a  deed  dated  mortgag^be- 
October,  1873,  by  which  Rs.  200  were  to  be  paid  in  cash  to  obtains  Vphy5i! 
the  vendor,  and  Rs.  98  to  go  in  redemption  of  the  mortgage.  oniyPwh^saie 
The  vendor  sued  to  recover  the  purchase   money   and  piete  on  pay- 
obtained  a  decree  in  March,  1877.     The  plaintiffs  sued  to  chase  moneyT 
obtain  possession  by  a  right  of  pre-emption  within  one 
year  from  the  date  of  payment  of  purchase  money  by  the 

(1)  I.  L.  R.,  1  AH.,  311.      |      (2)  I.  L.  R.,  1  Ail.,  682. 
(8)  I.  L.  R.,  2  All.,  409. 


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280  THB  SECOND  SCHBDULB,  FIRST  DIVISION — SUIT8.  [ART.  10 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  IV. 
One  year. 

mortgagee.  It  was  held  that  the  mortgagee  becoming 
vendee,  obtained  physical  possession  under  the  sale,  not 
from  the  date  of  the  sale  deed,  bnt  when  the  contract  of 
sale  became  completed  on  payment  of  the  purchase  money. 
A.  H.  held  that        (c)     In  Gulab  Singh  v.  Amar  Singh,  d>  the  defendant 

pre-emption  . 

suit  should  be  mortgaged  his  share  in  a  zemindari,  on  the  19th  Decem- 
a  year  from  the  ber,    1876,  providing  in  the  deed,  that  he  should  hold 
mortgage  deed  possession  and  pay  annually  the  interest  to  the  mortgagee, 
the  Mortgagee    who,  in  default,  was  empowered  to  sue  for  possession. 
d^fcSKTf^pa^   Plaintiff  by  the  terms  of  the  W*jib-nl-arz  contended  that 
S^and  notr"    he  was  entitled  to  have  had  an  offer  of  the  share  made  to 
regStr^wasia-  him  before  it  was  mortgaged.     The  suit  was  brought  on 
(March  1879 )      tne  ^fck  February,  1878,  and  cause  of  action  was  said  to 
have  arisen  on  the  19th  May,  1877,  when  the  registry  was 
altered  to   the  mortgagee's   name.     It  was   held  that 
whether  the  mortgagee  held  actual  or  constructive  pos- 
session, the  plaintiff  was  in  either  case  bound  to  have 
brought  his  suit  within  a  year  from  the  date  of  the  mort- 
gage deed  and  not  from  the  date  that  registry  was  altered. 
A.H.  held  suit       (d)     In  Jaikaran  Rai  v.  Ganga  Dhari  Rai,  W  a  condi- 
broSght^ithin  tional  sale  was  made  on  the  3rd  December,  1873,  there 
dauTof  physical   was  no  transfer  of  possession,  the  conditional  vendee  took 
enSr^roperty.   proceedings  to  foroclose,  and  the  year  of  grace  expired  on 
the  23rd  July,  1877;  he  then  sued  for  possession  and 
obtained   a   decree  on   the   19th   December,    1878 ;   the 
plaintiff,  on  the  15th  January,  1879,  sued  to  enforce  his 
right  of  pre-emption  based  on  an  agreement  entered  in 
the  administrative  paper  :  some  of  the  property  was  still 
in  the  possession  of  a  mortgagee,  whose  mortgage  was  of 
prior  date  to  the  conditional  sale :  it  was  held  that  time 
will  run  from  the  date  that  the  purchaser  takes  physical 
possession  of  the  whole  of  the  property  sold.     In  Mullick 
Abdool  Guffoor  v.  Muleka/8)  it  has  been  observed  that 

(1)  I.  L.  B.,  2  AU.,  287.       |     (2)  I.  L.  R.,  3  All.,  176. 
(3)  I.  L.  R.,  10  Calc,  1112. 


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AST.  10]  THE  8KCOND  SCHEDULE,  FIRST  DIVISION — SUITS. 


281 


Description  of  Bait. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Pabt  IV. 
One  year 

taking  visible  and  tangible  possession  of  property,  or 
materially  enjoying  the  rents  and  profits  thereof,  is  taking 
physical  possession,  and  what  is  usually  called  possession 
in  this  country  is  not  only  actual  or  khas  possession,  but 
includes  the  receipt  of  the  rents  and  profits. 

(f)  In  Unkar  Das  v.  Narain,^)  which  is  a  Full  Bench 
decision,  plaintiff,  a  co-sharer  in  an  undivided  village,  sued 
on  the  9th  August,  1880,  another  co-sharer,  and  his  vendee 
of  the  undivided  share  under  a  deed  executed  and  regis* 
tered  on  the  2nd  July,  1879.  According  to  the  zemindari 
tenure,  in  this  case,  proprietors  used  to  divide  the  balance 
of  the  profits  every  year.  It  was  held  that  an  undivided 
share  of  the  village  is  not  susceptible  of  physical  posses- 
sion, and  that  time  begins  to  run  from  the  date  of  the  regis- 
tration of  the  sale  deed.  Straight,  J.,  observes,  "  on  the 
one  hand,  the  object  of  the  Legislature  has  been  to 
shorten  the  periods  of  limitation,  its  purpose  on  the  other 
has  been  to  encourage  registration,  and  it  was  probably 
under  the  influence  of  both  these  considerations  that  the 
word  '  physical'  and  the  alternative  provision  in  Article 
10  were  introduced.' '  This  was  followed  in  Bholi  t?.  Imam 
Ali.<2> 

(g)  Nath  Prasad  v.  Ram  Paltan  Ram,<3)  Full  Bench, 
was  a  suit  by  a  pre- emptor  to  enforce  his  right  against  the 
vendor  and  vendee  under  a  registered  deed  of  conditional 
sale  relating  to  a  fractional  share  of  an  undivided  mahal. 
It  was  held,  that  the  sale  referred  to  in  this  Article  must 
be  an  absolute  one  operating  either  by  physical  possession, 
or,  where  it  is  not  susceptible,  by  the  creation  of  a  title 
under  a  registered  deed,  and  that  the  suit  was  governed 
by  Article  120.     The  Court  observe  :    "  The  alternative 


Taking  tangible 
possession  or 
enjoying  rent 
is  taking  physi- 
cal possession. 


In  oase  of  sale 
of  an  undivided 
share  of  a  vil- 
lage not  suscep- 
tible of  physical 
possession,  time 
runs  from  the 
registration  of 
sale  deed. 
(July  1881.) 


Observations  of 
Straight,  J. 


Pre-emption 
suit  in  respect 
of  conditional 
sale   of   suoh 
property  is  not 
governed  by 
this  Article. 
(January  1882.) 


Article  1*0  ap- 
plies. 


(1)  I.  L.  B.,  4  All.,  24.      |      (2)  I.  L.  B.,  4  All.,  179. 
(3)  I.  L.  B.,  4  All.,  218. 

36 


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282  THl  8BCOND  SCHEDULE,  WEST  DIVISION — 801TS.  [ART.  10 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  IV. 
One  year. 

observations  of  date  mentioned  in  the  third  column  of  Article  10,  cannot, 
alternative  date  in  our  judgment,  be  applied  to  a  transaction  of  con- 
column  'which  ditional  sale  which  has  about  it  all  the  characteristics  of 
misapply  to"a  a  mortgage,  and  further  requires  the  intervention  of  the 
wwch^hasau6  machinery  of  foreclosure  before  the  vendee  can  acquire 
iJticofV2ort.  a  proprietary  title.  We  think  that  the  sale  referred  to 
g*ge#  in  Article  10  must  be  an  absolute  one  having  immediate 

effect  and  operation,  in  those  cases  where  the  interest 
passed  is  capable  of  physical  possession,  by  physical  pos- 
session, and  where  it  is  not,  by  the  creation  of  a  title 
under   an  instrument   duly   registered.     We  are  aware 
that,  in  removing  conditional  sales  from  the  category  of 
Article  10,  that  failing  any  special  provision  to  govern 
them,  we  relegate  them  to  Article  120.     We  fully  realize 
the  anomalies  that  must  thus  necessarily  arise,  by  giving 
the  pre-emptor  objecting  to  a  conditional  sale  that  has  be- 
come absolute,  a  limitation  of  six  years  ;  and  in  those  cases 
where  the    Wajib-uUarz  creates  a  right  of  p re-mortgage, 
two  causes  of  action  with  a  similar  period  in  respect  of 
Legislature  ap-  each.     But  it  appears  to  us  that  the  Legislature  over- 
overlooked         looked  this  form  of  contract,  when  providing  for  the 
emption  in  res-  exercise  of  the  right  of  pre-emption,  and  has  consequently 
tionaisaieof  an  left  cases  of  the  kind  mentioned  in  the  order  of  reference 
of  a  mahai ;       unprovided  for."     Following  the   above  decision,  it  was 
held  in  Rasik  Lai  v.  Gajraj  Singh/1)  that,  where  the  mort- 
Caose  of  action  gagee  by  conditional  sale  is  not  in  possession  under  the 
emption^ac?1^  mortgage,  and  after  foreclosure  has  to  sue  for  possession, 
mortgage  ob-    the  right  to  sue  to  enforce  a  right  of  pre-emption  accrues 
possession;         when  he  obtains  a  decree  for  possession,  and  the  suit  is 
Case  where       governed  by  Article   120.     In  Ashik    Ali  v.    Mathura 
p^vided'Sr      Kandu,W  the  Wajib-uharz  of  a  village  provided  that  the 

emption  inres-  right  of  pre-emption  should  accrue  "  not  only  in  respect 
peot  of  condi- 
tional sales, 


(1)  I.  L.  R.,  4  All.,  414.      |      (2)  I.  L.  R.,  5  AIL,  187. 


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ART.  10]  THB  SECOND  8CHKDULI,  FIRST  DIVISION — SUITS. 


283 


Description  of  suits 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  IV. 
One  year. 

of  absolute  sales,  but  also  in  regard  to  conditional  sales,  mortgages,  and 
mortgages,  and  "  thika   leases."     The  suit  having  been 
laid  to  enforce  the  right  of  pre-emption  in  respect  of  a 
mortgage  by  conditional  sale  of  a  fractional  share  of  an 
undivided  mahal,  it  was  held  that  the  right  accrued  on 
the  sale  becoming  absolute,  and  that  the  suit  is  governed  Article  iso  wm 
by  Article  120.     In  Udit  Singh  *.  Padarath  Singh,")  »  5ff  VpSI1* 
mortgagee  under  a  deed  of  mortgage  by  conditional  sale  oondJUonShrent 
obtained  a  final  order  for  foreclosure  under  Regulation   tained  decree 
XVII  of  1806,  in  December,  1875.     He  then  sued  to  have  2SS2f  £nd 
the  conditional  sale  declared  absolute  and  for  possession   &8sion!lim  pos* 
of  the  mortgaged  property,  and  obtained  a  decree  for  the  heKPto'  acme 
relief  sought  for  in  April,  1881.     It  was  held  that  the  dXebedaieof 
pre-emptor's   full  right    to   impeach    the  sale  had   not 
accrued  until  the  mortgagee  had  obtained  the  decree  of 
April,  1881,  declaring  the  conditional  sale  absolute  and 
giving  him  possession,  and  that  Article  120  was  applicable 
to  thiscase. 

(h)  In  Prag  Chaubey  v.  Bhajan  Chaudhri/*)  plaintiff  Though  condi- 
sued  on  the  23rd  March,  1880,  to  enforce  his  right  of  pre-  held  possession 
emption  against  the  defendant,  who  had  obtained  a  mort- 
gage by  way  of  conditional  sale  in  1866,  and  obtained  pos- 
session in  January,  1867.  In  1877,  the  defendant  ap- 
plied for  foreclosure  under  Regulation  XVII  of  1806,  and 
the  year  of  grace  expired  in  July,  1878.  In  November, 
1878,  he  sued  to  have  the  conditional  sale  declared  abso- 
lute, obtained  a  decree,  and  in  execution  thereof  took 
formal  possession  of  the  property  on  the  30th  April,  1879. 
It  was  held,  that  the  period  of  limitation  ran  from  the 
30th  April,  1879,  the  day  that  the  conditional  vendee  ob- 
tained possession  in  execution  of  his  decree. 

(1)     The  court  granting  a  decree  to  the  plaintiff  in  a  Decreet 
x   '  o  o  r  final  not  when 

affirmed  by  the 
(1)  I.  L.  R.,  8  All.,  54.       |      (2)  I.  L.  R.,  4  All.  291. 


such, 
rone  from  date 
of  possesion 
under  decree 
declaring  the 
sale  absolute. 


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284 


THE  8EC0HD  SCHRDUM,  FIR8T  DIVISION — SUITS.         [ART.  11 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  IV. 
One  year. 

Lower  App«i.    pre-emption  suit,  is  competent  to  grant  the  decree  subject 
on  the  expiry  of  to  the  payment  of  the  purchase-money  within  a  fixed  time, 

thetime7or2nd         ,  ..*./     _  _     _/       ...     x  J  .  .,.,.,,, 

appeal  or  when  and  if  the  decree- holder  fails  to  comply  with  it,  he  loses 
dispoeedof.  the  benefit  of  the  decree.  When  a  direction  contained  in 
a  decree  refers  to  the  time  at  which  the  decree  should  be- 
come final,  it  does  not  become  final  on  being  affirmed  by 
the  Lower  Appellate  Court,  but  on  the  expiry  of  the  period 
of  Special  Appeal  or  when  such  an  appeal  is  instituted 
when  the  appeal  is  disposed  of.  Shaikh  Ewaz  v.  Mokuua 
Bibi/1)  If  the  time  prescribed  for  an  appeal  from  a 
decree  for  pre-emption  expires  on  a  day  when  the  court 
is  closed,  the  decree  does  not  become  final  before  the  day 
the  court  re-opens.     Ram  Sahai  v.  GayaJ*) 


If  on  the  teat 
4aj  the  court  is 
closed,   decree 
does  not  become 


court  reopens. 


One  year 


The  date  of  the  order. 


11. — By    a    person    against 

whom  an  order  is  pass- 
ed     under      Section* 

280,  281,  282  or  335 

of  the   Code  of   Civil 

Procedure,  to  establish 

his  right  to,  or  to  the 

present  possession  of, 

the  property  comprised 

in  the  order. 

orders  under  (a)  Section  246  of  Act  Vm  of  1859,  which  related  to 
209  of  Act  vm  investigation  into  claims  and  objections  to  the  sale  of 
final  and  can-  property  attached  in  execution  of  a  decree,  and  section 
regular  °«uJ  to  269,  which  provided  for  investigation  into  the  claims  of 
within  one  year  persons  other  than  defendants  who  may  assert  a  right  to 
the  property  sold  in  auction  and  obstruct  delivery  thereof 


Thi  Following  are  the  Sections 
of  the  C.  P.  C.  of  1877,  and  1^82. 


\ 


•280.    If  upon  the  said  investi 
gation  the  oourt   is  satisfied  that, 


for  the  reason  stated  in  the  claim  or 
(1)  I.  L.  R.,  1  All.  132. 


Sections  246  and  269,  of  the  C.  P.  C. 
of  1859. 

246.  In  the  event  of  any  claim  being  pre- 
ferred to,  or  objection  offered  against  the  sale 
of  lands  or  any  other  immoveable  or  moveable 

|  (2)  I.  L.  R..  7  All.,  107. 


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AST.  11]        THB  MCOND  SCHBDOLB,  FIRST  DIVISION — SUITS. 


285 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  IV. 
One  year. 

to  the  purchaser,  and  of  persons  who  may  have  been  dispos- 
sessed by  the  purchaser,  distinctly  contained  a  special 
limitation  clause  to  the  effect  that  the  order  shall  not  be 
Subject  to  appeal,  but  that  the  party  dissatisfied  with  the 
order  may  bring  a  regular  suit  within  one  year  from  the 
date  of  the  order. 


objection,  such  property  was  not, 
when  attached,  in  the  possession  of 
the  judgment-debtor  or  of  some  per- 
son in  trust  for  him,  or  in  the  occu- 
pancy of  a  tenant  or  other  person 
paying  rent  to  him,  or  that,  being 
in  the  possession  or  the  judgment- 
debtor  at  such  time,  it  was  so  in  his 
possession,  not  on  his  own  account 
or  as  his  own  property,  but  on  ac- 
oonnt  of  or  in  trust  for  some  other 
person,  or  partly  on  his  own  account 
and  partly  on  account  of  some  other 
person,  the  court  shall  pass  an  order 
for  releasing  the  property,  wholly  or 
to  such  extent  as  it  thinks  fit,  from 
attachment. 

281.  If  the  court  is  satisfied  that 
the  property  was,  at  the  time  it  was 
attached,  in  possession  of  the  judg- 
ment-debtor as  his  own  property 
and  not  on  account  of  any  other  per- 
son, or  was  in  the  possession  of 
some  other  person  in  trust  for  him, 
or  in  the  occupancy  of  a  tenant  or 
other  person  paying  rent  to  him, 
the  the  court  shall  disallow  the 
claim. 

282.  If  the  court  is  satisfied  that 
the  property  is  subject  to  a  mortgage 
or  lien  in  favour  of  some  person  not 
in  possession,  and  thinks  fit  to  con- 
tinue the  attachment,  it  may  do  so, 
subject  to  such  mortgage  or  lien. 

283.  The  party  against  whom  an 
order  under  section  280,  281  or  282 
is  passed,  may  institute  a  suit  to  es- 
tablish the  right  which  he  claims  to 
the  property  in  dispute,  but,  subject 


property  which  may  have  been  attached  in 
execution  of  a  decree  or  under  any  order  for 
attachment  passed  before  judgment,  as  not 
liable  to  be  sold  in  execution  of  a  decree  against 
the  defendant,  the  court  shall,  subject  to  the 
proviso  contained  in  the  next  succeeding  sec- 
tion, proceed  to  investigate  the  same  with  the 
like  powers  as  if  the  claimant  had  been  ori- 
ginally made  a  defendant  to  the  suit,  and  also 
with  such  powers  as  regards  the  summoning 
of  the  original  defendant  as  are  contained  in 
section  220.  And  if  it  shall  appear  to  the 
satisfaction  of  the  court  that  the  land  or  other 
immoveable  or  moveable  property  was  not  in 
the  possession  of  the  party  against  whom  exe- 
cution is  sought,  or  of  some  other  person  in 
trust  for  him,  or  in  the  occupancy  of  ryots  or 
cultivators  or  other  persons  paying  rent  to 
him  at  the  time  when  the  property  was  attach- 
ed, or  that,  being  in  the  possession  of  the 
party  himself  at  such  time,  it  was  so  in  his 
possession  not  on  his  own  account  or  as  his 
own  property,  but  on  account  of  or  in  trust 
for  some  other  person,  the  court  shall  pass  an 
order  for  releasing  the  said  property  from  at- 
tachment. But  if  it  shall  appear  to  the  satis- 
faction of  the  court  that  the  land  or  other 
immoveable  or  moveable  property  was  in  pos- 
session of  the  party  against  whom  execution 
is  sought,  as  his  own  property,  and  not  on 
account  of  any  other  person,  or  was  in  the  pos- 
session of  some  other  person  in  trust  for 
him,  or  in  the  occupancy  of  ryots  or  cultiva- 
tors or  other  persons  paying  rent  to  him  at 
the  time  when  the  property  was  attached,  the 
court  shall  disallow  the  claim.  The  order 
which  may  be  passed  by  the  court  under  this 
section  shall  not  be  subject  to  appeal,  but  the 
party  against  whom  the  order  may  be  given 
shall  be  at  liberty  to  bring  a  suit  to  estab- 
lish his  right  [at  any  time  within  one  year 


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286 


THE  SECOND  SCHEDULE,  FIRST  DIVISION — SUITS.         [ART.  11 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Limitation  Act 
of  1871  repealed 
the   limitation 
clauses  in  the 
two  sections 
and  enacted 
Article  16. 


B.  H.  consider- 
ed Article  16  of 
Act  DC  of  1871  a 
substitute  for 
the  repealed 
clauses  of  limi- 
tation in  sec- 
tion 846  of  Act 
Vm   of    I860 
while  C.H.  held 
it  was  not. 


M.  H.andA.H. 
held  an  order 
under  section 


Part  IV. 
One  year. 

(b)  The  Limitation  Act  IX  of  1871,  which  came  into 
force  on  the  1st  July,  1871,  repealed  the  Limitation  Clause 
contained  in  the  said  two  sections  246  and  269  of  Act 
VIII  of  1859,  and  withont  alluding  to  any  of  the  sections 
of  the  Procedure  Code,  enacted  Article  15  as  follows :  "  To 
alter  or  set  aside  a  decision,  or  order  of  a  Civil  Court  in  any 
proceeding  other  than  a  suit."  The  object  of  the  Legisla- 
ture, was,  no  doubt,  to  remove  from  the  Civil  Procedure 
Code  the  provisions  regarding  limitations  and  embody 
them  in  the  Limitation  Act.  Article  15  of  Act  IX  of  1871, 
was  considered  by  the  Bombay  High  Court  to  be  a  substi- 
tute for  the  Repealed  Limitation  clause  of  sections  246  and 
269  of  Act  VIII  of  1859,  while  the  Calcutta  High  Court  was 
of  opinion,  that  it  was  not  a  reenactment  of  the  Repealed 
Clauses,  and  that  the  parties  affected  by  the  order  might 
bring  regular  suits  within  the  ordinary  period  allowed  for 
such  suits  by  the  statute.  The  Madras  High  Court  held, 
that  although  section  246  was  repealed,  an  order  passed 


to  the  result  of  such  suit,  if  any,  the 
order  shall  be  conclusive. 

335.  If  the  purchaser  of  any  such 
property  is  resisted  or  obstructed  by 
any  person  other  than  the  judg- 
ment-debtor claiming  in  good  faith 
a  right  to  the  present  possession 
thereof,  or  if,  in  delivering  posses- 
sion thereof,  any  suoh  person  is  dis- 
possessed, the  court,  on  the  com- 
plaint  of  the  purchaser  or  the  person 
so  dispossessed,  shall  inquire  into 
the  matter  of  the  resistance,  obstruc- 
tion or  dispossession,  as  the  case 
may  be,  and  pass  suoh  order  thereon 
as  it  thinks  fit. 

The  party  against  whom  such 
order  is  passed  may  institute  a  suit  to 
establish  the  right  which  he  claims 
to  the  present  possession  of  the  pro- 
perty j  but,  subject  to  the  result  of 
suoh  suit,  if  any,  the  order  shall  be 
final. 


from  the  date  of  the  order]. 

269.  If  it  shall  appear  that  the  resistance 
or  obstruction  to  the  delivery  of  possession 
was  occasioned  by  any  person  other  than  the 
defendant  claiming  a  right  to  the  possession 
of  the  property  sold  as  proprietor,  mortgagee, 
lessee,  or  under  any  other  title,  or  if  in  the 
delivery  of  possession  to  the  purchaser  any 
such  person  claiming  as  aforesaid,  shall  be 
dispossessed,  the  court,  on  the  complaint  of 
the  purchaser,  or  of  suoh  person  claiming  as 
aforesaid,  [if  made  within  one  month  from  the 
date  of  such  resistance  or  obstruction  or  of 
suoh  dispossession  as  the  case  may  be],  shall 
enquire  into  the  matter  of  the  complaint  and 
pass  suoh  order  as  may  be  proper  in  the  cir- 
cumstances of  the  case.  The  order  shall  not 
be  subjeot  to  appeal,  but  the  party  against 
whom  it  is  given  shall  be  at  liberty  to  bring 
a  suit  to  establish  his  right  at  any  time  with- 
in one  year  from  the  date  thereof. 

In  the  above  sections  the  words  bracketed 
were  repealed  by  Aot  IX  of  1871}  schedule  1. 


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ART.  11]  THE  SECOND  SCHEDULE,  tflBST  DIVISION — SUITS.  287 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  IV. 
One  year. 

under  it  disallowing  an  objector's  claim  amounted  to  a  ms  operated  a* 

summary  declaration,  and  that  such  declaration  was  equi-  tion  until  set 

valent  to  a  final  adjudication  against  his  right  unless  he  though  ytne* 

brought  a  regular  suit  to  supersede  the  order  within  one  was  repealed, 
year.     The  Allahabad  High  Court  was  of  the  same  opinion. 

(C)     The  Indian  Limitation  Act  of  1877  came  into  force  Limitation  Act 

in  October,  1877,  along  with  the  Civil  Procedure  Code  duoed  Article  is 

of  1877,  and  the   latter   substituted   sections   281    and  enacted  Article 

W  £q  QMot  cases 

335  for  sections  246  and  269  of  Act  VIII  of  1859.     The  of  orders  which 

fell  under  sec- 

Limitation  Act  of  1877,  by  Article  13,  not  only  repro-   turns  846 and ae» 

J  J        r  of  Act  vni  of 

duced  Article  15  of  its  predecessor,  but  also  newly  enacted   is». 

Article  11  to  meet  the  cases  of  orders  passed  in  a  suit,  but 

not  open  to  appeal.     But  the  Article  says  nothing  about 

the  corresponding  sections   of  the  Code  of  1859.     The 

Madras  High  Court,  in  Yenkatachala  v.   Appathorai^1) 

held  in  July,  1884,  that  an  order  passed  under  section  269  m.  h.  held  an 

of  Act  VI II  of  1859,  cancelling  delivery  of  possession  to  a  tion  mq  of  Act 

decree- holder  as  auction  purchaser,  was  an  order  in  a  suit  cancelling  deli- 

and  did  not  fall  within  Article  13,  and  that  the  repeal  of   skm  to  auction 

section  269  by  the  amended  Code  did  not   deprive  the   not  fail  within 

order  of  the  character  which  attached  to  it  when  it  was 

made,  and  that  it  was  an  order  which  was  final  unless  and 

until  it  was  set  aside  by  a  suit  brought  within  a  year. 

The  High  Court  further  held  that  such  final  order  is  a  such  final  order 

bar  to  a  suit  after  time,  and  estops  the  party  in  a  suit  after  time 

against  him  from  asserting  his  right  though  one  year  had  heidgby*o.1>H? 

not  elapsed.     The  Madras  High  Court,  agreed  with  the  would  not  an- 

Calcutta  High  Court  in  the  opinion,  that  Article  11  of  Act  passedftnnder  r 

,  XV  of  1877  did  not  apply  to  an  order  passed  under  the 

former  Codes,  and  that  a  suit  for  possession  brought  after 

an  order  passed  under  section  246  of  the  old  Code  was  not 

a  suit  to  set  aside  an  order  in  a  proceeding  other  than  a 

(1)  I.  L.  R.,  8  Mad.,  134. 


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286 


THS  SECOND  SCHEDULE,  FIRST  DIVISION — SUITS.         [ART.  11 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Limitation  Act 
of  1871  repealed 
the   limitation 
clauses  in  the 
two  flections 
and  enacted 
Article  15. 


B.  H.  consider- 
ed Article  15  of 
Act  DC  of  1871  a 
substitute  for 
the  repealed 
claoses  of  limi- 
tation  in   sec- 
tion 246  of  Act 
VIII   of    1869 
while  O.H.  held 
it  was  not. 


M.  H.andA.H. 
held  an  order 
under  section 


Part  IV. 
One  year. 

(b)  The  Limitation  Act  IX  of  1871,  which  came  into 
force  on  the  1st  July,  1871,  repealed  the  Limitation  Clause 
contained  in  the  said  two  sections  246  and  269  of  Act 
VIII  of  1859,  and  without  alluding  to  any  of  the  sections 
of  the  Procedure  Code,  enacted  Article  15  as  follows :  "  To 
alter  or  set  aside  a  decision,  or  order  of  a  Civil  Court  in  any 
proceeding  other  than  a  suit."  The  object  of  the  Legisla- 
ture, was,  no  doubt,  to  remove  from  the  Civil  Procedure 
Code  the  provisions  regarding  limitations  and  embody 
them  in  the  Limitation  Act.  Article  15  of  Act  IX  of  1871, 
was  considered  by  the  Bombay  High  Court  to  be  a  substi- 
tute for  the  Repealed  Limitation  clause  of  sections  246  and 
269  of  Act  VIII  of  1859,  while  the  Calcutta  High  Court  was 
of  opinion,  that  it  was  not  a  reenactment  of  the  Repealed 
Clauses,  and  that  the  parties  affected  by  the  order  might 
bring  regular  suits  within  the  ordinary  period  allowed  for 
such  suits  by  the  statute.  The  Madras  High  Court  held, 
that  although  section  246  was  repealed,  an  order  passed 


to  the  result  of  such  suit,  if  any,  the 
order  shall  be  conclusive. 

386.  If  the  purchaser  of  any  suoh 
property  is  resisted  or  obstructed  by 
any  person  other  than  the  judg- 
ment-debtor claiming  in  good  faith 
a  right  to  the  present  possession 
thereof,  or  if,  in  delivering  posses- 
sion thereof,  any  such  person  is  dis- 
possessed, the  court,  on  the  com- 
plaint of  the  purchaser  or  the  person 
so  dispossessed,  shall  inquire  into 
the  matter  of  the  resistance,  obstruc- 
tion or  dispossession,  as  the  case 
may  be,  and  pass  such  order  thereon 
as  it  thinks  fit. 

The  party  against  whom  such 
order  is  passed  may  institute  a  suit  to 
establish  the  right  which  he  claims 
to  the  present  possession  of  the  pro- 
perty ;  but,  subject  to  the  result  of 
such  suit,  if  any,  the  order  shall  be 
final. 


from  the  date  of  the  order]. 

269.  If  it  shall  appear  that  the  resistance 
or  obstruction  to  the  delivery  of  possession 
was  occasioned  by  any  person  other  than  the 
defendant  claiming  a  right  to  the  possession 
of  the  property  sold  as  proprietor,  mortgagee, 
lessee,  or  under  any  other  title,  or  if  in  the 
delivery  of  possession  to  the  purchaser  any 
such  person  claiming  as  aforesaid,  shall  be 
dispossessed,  the  court,  on  the  complaint  of 
the  purchaser,  or  of  such  person  claiming  as 
aforesaid,  [if  made  within  one  month  from  the 
date  of  such  resistance  or  obstruction  or  of 
such  dispossession  as  the  oase  may  be],  shall 
enquire  into  the  matter  of  the  complaint  and 
pass  suoh  order  as  may  be  proper  in  the  cir- 
cumstances of  the  case.  The  order  shall  not 
be  subject  to  appeal,  but  the  party  against 
whom  it  is  given  shall  be  at  liberty  to  bring 
a  suit  to  establish  his  right  at  any  time  with- 
in one  year  from  the  date  thereof. 

In  the  above  sections  the  words  bracketed 
were  repealed  by  Act  IX  of  1871,  schedule  1. 


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ART.  11]         TBI  8HCOND  SCHEDULE,  tfiRST  DIVISION — SUITS.  287 


Description  of  suit. 


Period  of  Time  from  which  period 

limitation.      |  begins  to  run. 


Part  IV. 
One  year. 

under  it  disallowing  an  objector's  claim  amounted  to  a   246  operated  a» 
summary  declaration,  and  that  such  declaration  was  equi-   tion  until  set 
valent  to  a  final  adjudication  against  his  right  unless  he   thonghthe8 
brought  a  regular  suit  to  supersede  the  order  within  one   was  repealed, 
year.     The  Allahabad  High  Court  was  of  the  same  opinion. 

(C)     The  Indian  Limitation  Act  of  1877  came  into  force   Limitation  Act 
in  October,  1877,  along  with  the  Civil  Procedure  Code  duoed  Article  is 

of  1871*8 13  and 

of  1877,  and  the   latter  substituted   sections   281    and  enacted  Article 
335  for  sections  246  and  269  of  Act  VIII  of  1859.     The  of  JSdSSJ'which 

fell  under  sec- 

Limitatiou  Act  of  1877,  by  Article  13,  not  only  i-epro-  tumswandae* 

J  *  of  Act  vm  of 

duced  Article  15  of  its  predecessor,  but  also  newly  enacted  i860. 

Article  11  to  meet  the  cases  of  orders  passed  in  a  suit,  but 

not  open  to  appeal.'    But  the  Article  says  nothing  about 

the   corresponding   sections   of  the  Code  of  1859.     The 

Madras  High  Court,  in  Yenkatachala  v.   Appathorai^1) 

held  in  July,  1884,  that  an  order  passed  under  section  269  m.  h.  held  an 

of  Act  VIII  of  1859,  cancelling  delivery  of  possession  to  a  tion  mq  of  Act 

,  ,     .  .  *  .  iT  j        •  .,     Vm   of   1859 

decree- holder  as  auction  purchaser,  was  an  order  in  a  suit   cancelling  deli- 

very  of  DOBses* 

and  did  not  fall  within  Article  13,  and  that  the  repeal  of   sion  to  auction 
section  269  by  the  amended  Code  did  not   deprive  the  not  fail  within 
order  of  the  character  which  attached  to  it  when  it  was 
made,  and  that  it  was  an  order  which  was  final  unless  and 
until  it  was  set  aside  by  a  suit  brought  within  a  year. 
The  High  Court  further  held  that  such  final  order  is  a  such  Anal  order 
bar  to  a  suit  after  time,  and  estops  the  party  in  a  suit  after  time 
against  him  from  asserting  his  right  though  one  year  had  he°dgbyao.1H? 
not  elapsed.     The  Madras  High  Court,  agreed  with  the  would  not  ap- 
Calcutta  High  Court  in  the  opinion,  that  Article  11  of  Act  passed  under 
,  XV  of  1877  did  not  apply  to  an  order  passed  under  the 
former  Codes,  and  that  a  suit  for  possession  brought  after 
an  order  passed  under  section  246  of  the  old  Code  was  not 
a  suit  to  set  aside  an  order  in  a  proceeding  other  than  a 

(1)  I.  L.  R.,  8  Mad.,  134. 


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288  THE  SECOND  SCHEDULE,  FIRST  DIVISION — SUIT8.        [ART.  11 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Pakt  IV. 
One  year. 

suit  falling  under  Article  15  of  the  Limitation  Act  of  1871. 
a.h.  also  bald  The  Allahabad  High  Court  have  also  held,  that  in  the 
IbwiSteijT  a^  event  of  no  regular  suit  being  brought  by  the  party  against 
■Irt'as^bj1*  whom  an  order  was  passed  under  section  246  of  Act  V1U 
■mt*  of  1859,  the  matter  in  dispute  must  be  held  to  have  been 

finally  disposed  of  by  the  finding  and  order  under  that 
section,  and  to  be  absolutely  a  res  judicata.  All  the  deci- 
sions bearing  upon  this  point  have  been  noted  below, 
c.  H.  bald  that  (d)  In  Koylash  Chunder  Paul  Chowdhry  v.  Preonath 
S£SSnuflwho  Boy  Chowdhry,*1)  the  plaintiff,  whose  claim  to  attached 
£nder"sMtta  property  was  rejected  under  section  246  of  Act  VIII  of 
SV^JFism,  1859,  sued  in  May,  1876,  to  establish  his  right.  The  Lower 
Seriod^iSi-  Court  rejected  the  suit  as  barred  by  Article  15  of  Act  EX 
AJt°ttUcSdi87i.  of  1871.  It  was  held  that  Article  15  was  not  a  re-enact- 
MkL  aoTtha  ment  of  tne  repealed  portion  of  section  246  of  the  C.  P. 
order  unneoea-   c  -of  ls^  and  fchat  the  guit  ^  fop  a  declaration  of  title 

in  which  setting  aside  an  order  within  the  meaning  of 

Article  15  was  not  necessary.     The  above  decision  was 

In  one  oaee      followed  in  Raj  Ch under  Chatterjee   v.   Modhoosoodun 

S^barredhby   Mookerjee,*1)  in  which  a  mortgagee  in  execution  of  whose 

TOAaiiowed       decree  a  third  party's  claim  to  mortgaged  property  was 

SS?^  of  ST    allowed  in  July,  1877,  sued  on  the  29th  March,  1879,  to 

Act*  establish  his  right  to  the  property.     It  was  held  that 

although  the  period  of  limitation  for  the  suit  under  Act 

XV  of  1877  was  one  year,  which  had  expired  on  the  date 

of  the  suit,  as  the  Act  did  not  come  into  force  until  1st 

in  another  case   October,  1877,  the  plaintiff  was  entitled  to  the  benefit  of 

•iiowed'ordif     the  last  para,  of  section  2  of  Act  XV  of  1877,  as  Act  IX 

ArSoieTi  did     of  1871  allowed  him  a  longer  period  of  limitation.     In 

c?p!1).  of  i860.   Luchmi  Narain  Singh  v.  Assrup  Koer,W  plaintiff's  claim 

to  certain  property  was  rejected  under  section  246  of  Act 

VIII  of  1859,  on  the  6th  September,  1873.     She  brought 

(1)  I.  L.  E.,  4  Calo  ,  610.    |    (2)  I.  L.  R.,  8  Calo.,  395. 
(3)  I.  L.  R.,  9  Calo.,  43. 


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ART.   11]  THE  SECOND  SCHEDULE,  FIB8T  DIVISION — SUITS.  289 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  IV. 
One  year. 

a  suit  on  the  10th  January,  1878.     It  was  held  that  the 

suit  was  not  barred  nnder  this  Article,  which  refers  only  to 

the  sections  of  Act  X  of  1877,  corresponding  to  section  246 

of  Act  VIII  of  1859,  and  that  the  suit  was  not  one  to  set 

aside  a  summary  order  within  Article  15,  schedule  2,  of 

Act  IX  of  1871.     In  Gopal  Ghunder  Mitter  v.  Mohesh  o.  h.  adhered 

Ghunder  Boral,<l>  the  plaintiff,  whose  claim  was  rejected  cisiona  even  af- 

under  section  246  of  Act  VIII  of  1859,  on  the  7th  Septem-  referreTuothose 

ber,  1876,  instituted  the  suit  to  establish  his  right  and  for 

possession  in  October,  1879,  after  Act  XV  of  1877  came 

into  force.     The  Lower  Courts  rejected  the  suit  as  barred. 

It  was  held  that  the  suit  was  not  governed  by  this  Article, 

but  by  the  general  limitation  of  12  years.     In  this  case, 

the  Calcutta  High  Court  adhered  to  their  own  decisions, 

although  they  were  referred  to  the  decisions  of  the  Bom-  b.  h.  held  Art. 

bay  High  Court  holding  that  the  period  of  limitation  in    ib7°i^  t^bV fub! 

all  such  cases  was  one  year,  and  that  Article  15,  schedule  J^i^wo^of 

2  of  Act  IX  of  1871  waa  substituted  for  the  limitation  ,ection  UA' 

provided  for  by  the  twelve  repealed  words  in  section  246  of 

Act  VIII  of  1859.     Krishnaji  Vithal  v.  Bhaskar  Rang- 

nath.(f)  Venkapat7.Chenbasapa.<3)  Jettiv.  Sayad  Husein.W 

(e)    The  Calcutta  High  Court  followed  their  own  Nevertheless 
decision  in  Bessessur  Bhugut  v.  Murli  Sahu,<6>  in  which  their 'own  deci- 
plaintiff,  whose  claim  was  rejected  in  August,  1877,  under  this  article  in. 
section  246  of  Act  VIII  of  1859,  sued  to  establish  his  title  ^distinctly  re- 
in June,  1878.     The  defendant  died,  and  the  court  directed  tfon  283  ofThe 
the  issue  of  a  summons  on  the  defendant  named  by  the  not  to  section 
plaintiff ;  but  the  plaintiff  failing  to  pay  batta,  the  suit  of  isso. 
was  dismissed  in  March,  1879.     In  March,  1880,  plaintiff  (™y  1888,) 
brought  a  second  suit.     It  was  held  that  the  suit  was 
maintainable   and    that  the  order  of  August,   1877  not 

(1)  I.  L.  R.,  9  Calc,  230.         I      (8)  I.  L.  R.,  4  Bom.,  21. 

(2)  I.  L.  R.,  4  Bom.,  611.        |      (4)  I.  L.  R.,  4,  Bom.,  23. 

(5)  I.  L.  R.,  9  Calc,  163. 

37 


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290  THE  SECOND  SCHEDULE,  PIKST  DIVISION — SUIT8.  (/ART.  11 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Pakt  IV. 
One  year. 

being  made  under  section  283  of  Act  X  of  1877,  to  which 
the  article  distinctly  refers,  the  suit  was  governed  not 
by  this  Article,  but  by  Article  120.  The  above  decisions 
were  followed  in  Gend  I&ll  Tewari  t>.  Denonath  Ram 
Tewari.d) 
M.  H.andA..H.       (f)     Venkatachela  v.  Appathorai,W  was  brought  for 

held  such  final         N   '  rr  ^* 

orders  to  bar    possession  of  property.     The  plaintiff,  as  decree-holder 
year  and  estop  and  auction  purchaser,  had  obtained  possession  through 

unsuccessful  r  *  ~ 

claimant  from    court,  but  the  delivery  of  possession    wus  cancelled  in 

asserting   his  "  r 

right  as  defen-  August,  1877,  under  section  269  of  Act  VIII  of  1859. 

dant.  °  ' 

The  suit  was  not  brought  until  1883.  The  High  Court 
expressing  their  concurrence  in  the  opinion  of  the  Cal- 
cutta High  Court,  in  Koylash  Chunder  Paul  Chowdhry 
v.  Preonath  Roy  Chowdhry/3)  that  a  suit  for  possession 
after  an  order  under  section  246  of  the  old  Code  was  not 
a  suit  to  set  aside  an  order  in  a  proceeding  other  than 
a  suit  falling  under  Article  15  of  the  Limitation  Act  of 
1871,  and  also  agreeing  with  the  ruling  in  Gopal  Chunder 
Mitter  v.  Mohesh  Chunder  Boral,<*>  that  Article  11  of  the 
Limitation  Act  of  1877  did  not  apply  to  an  order  passed 
under  the  former  Codes,  held  that  the  auction  purchaser  s 
suit  was  barred,  as.  the  repeal  of  section  269  of  Act  VIII 
of  1859,  on  the  1st  October,  1877,  by  the  Act  of  1877,  did 
not  deprive  the  order  of  the  10th  August,  1877  of  the 
effect  it  possessed  when  passed.  In  Bodri  Prasad  v. 
Muhammad  Yusuf/6)  it  was  held  that  an  order  passed 
under  section  246  of  Act  VIII  of  1859  is  binding  on  all 
Jbhe  persons  who  were  parties  to  it,  and  is  conclusive 
unless  overruled  in  a  regular  suit  within  one  year. 
m.  h.  andB.H.  (g)  In  Krishna  Rau  v.  Lakshmana  Shanbhogue,*6) 
losing  claim  nn-  plaintiff,  in  execution  of  his  money  decree,  attached  his 

der  section  246 

u** JEUi      w  L  L- E" u  Cal0" 678    I    W  L  K  E" 9  Cal°" 28o: 

from   assertbg  (2;  I.  L.  R.,  8  Mad.,  134.  |       (5)  I.  L.  E.,  1  All.,  881. 

(3)  1.  L.  E.,  4  Calo.,  610.         |      (6)  I.  L.  R.,  4  Mad.,  302. 


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ART.  11]         THE  SECOND  SCHEDULE,  FIB8T  DIVISION — SUITS. 


291 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which 
period  begins  to  run. 


Part  IV. 
One  year. 

debtor's  interest  in  certain  immoveable  property  held  by 
the  undivided  family  of  which  he  was  a  member.  The 
defendant,*  the  father  of  the  debtor,  in  August,  1 875,  ob- 
jected to  the  attachment  and  prayed  for  release.  On  the 
19th  August,  1875,  the  claim  was  disallowed,  and  in  Sep- 
tember, 1875,  the  debtor  died,  and  the  plaintiff  purchased 
his  interest  in  auction  sale  in  November,  1875,  and  insti- 
tuted this  suit  to  obtain  possession  of  the  debtor's  share 
in  June,  1876.  -  The  Lower  Court  being  of  opinion  that  the 
defendant's  right  to  sue  within  one  year  not  having  been 
lost  on  the  date  of  the  suit,  he  could  take  objection  to  the 
sale  in  this  suit.  It  was  held,  that  the  defendant  was 
estopped  from  setting  up  the  title  he  alleged  in  the  claim 
case.  The  court  observe,  that  although  the  terms  of  sec- 
tion 246  of  Act  VIII  of  1859,  corresponding  to  section  283 
of  Act  X  of  1877,  are  not  so  express,  yet  their  effect  is  the 
same,  and  that  the  order  was,  and  was  intended  to  be,  a 
summary  declaration  of  a  want  of  title  in  the  objector, 
which  declaration  would  amount  to  a  final  decision  of  the 
question  between  the  parties,  if  the  party  aggrieved  did 
not  take  the  course  indicated  by  the  institution  of  a  suit 
to  supersede  it.  This  was  followed  in  Velayuthan  v. 
LaksmanaJ1)  In  Krishnaji  Vithal  v.  Bhaskar  Rang- 
nath,(*>  it  was  held  that  an  order  under  section  246  is  a 
final  bar  to  the  plaintiffs'  right  unless  it  was  set  aside 
by  a  regular  suit  within  one  year. 

(h.)  In  Bukshi  Bam  Pergash  Lai  v.  Sheo  Pergash  Te- 
wari,<s>  the  plaintiff  instituted  a  suit  upon  a  mortgage  deed 
and  obtained  a  decree,  directing  the  sale  of  the  mortgaged 
property.  Subsequent  to  that  decree,*  defendants  Nos.  5 
and  6,  in  collusion  with  defendants  Nos.  1  to  4,  caused 
the  mortgaged  property  to  be  sold,  and  at  such  sale,  defen- 
(1)  I.  L.  E.,  8  Mad.,  506.  |  (2)  I.  L.  R.,  4  Bom.,  611. 
(8)  I.  L.  R.,  12  Calc,  453. 


it  in  a  suit  by 
auction  pur- 
chaser for  pos- 
session though 
brought  within 
one  year  of  the 
order. 


Decree  holder 
as  auction  pur- 
chaser, sued  for 
possession  his 
deceased  debt- 
or's  father 
whose  claim  had 
been  disallow- 
ed. 


The  defendant 
was  held  estop- 
ped from  assert- 
ing his  title, 
though  one  year 
had  not  elaps- 
ed from  order. 


B.  »H.  held  an 
order  under  sec- 
tion 246  a  final 
bar,  unless  set 
aside  by  suit 
within  one 
year. 

0.  H.  held  this 
Article  to  bar 
plaintiff's   suit, 
after  release  of 

gropertv.  only 
>  have  his  right 
to  attach  declar- 
ed, but  not  to 
bar  other  relief 
as  against  suc- 
cessful claim- 
ants. 


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292  THE  BBCOND  SCHEDULE,  PIEST  DIVISION SUIT8  [ART.   11 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  IV. 
One  year. 

dants  Nos.  1  to  4  became  the  purchasers.  The  plaintiff 
.  in  execution  of  his  decree  then  attempted  to  have  the  pro- 
Attachment  of  perty  sold,  but  the  defendants  Nos.  1  to  4  intervened,  and 
perty  was  re^  an  order  was  passed  on  the  28th  January,  1882,  in  the 
claim  ot  defen-  execution  proceedings  releasing  the  property  from  attach  - 
purchasers.  ment.  The  plaintiff  brought  the  suit  to  have  his  mort- 
gage lien  and  his  right  to  sell  declared,  alleging  that  the 
Plaintiff  sued  to  title  set  up  by  the  third  parties  was  a  fraudulent  one,  and 
that  his  lien  had  been  collusively  created.  It  was  contended  that  the 
prior  to  the  de-  suit  was  barred.  It  was  held  that  the  right  that  was  in 
chase  and  he  litigation  in  the  proceeding  under  section  280  was  a  right 
it.  to  attach  and  sell  the  property  in  dispute  in  execution  of 

the  decree  which  the  plaintiff  had  obtained  against  the 
defendants  Nos.  5  and  6,  and  that  so  far  as  that  right  was 
concerned,  the  present  suit  was  barred,  but  that  as  regards 
the  other  right  upon  which  the  plaintiff  had  brought  this 
Suit  to  declare  suit,  viz.,  that  he  held  a  mortgage  prior  in  date  to  the 
was  of  aprlor  purchase  of  the  defendants  Nos.  1  to  4,  and  that  the  pur- 

date   was    not 

barred.  chase  of  the  defendants  Nos.  1  to  4  was  not  real,  the  suit 

was  not  barred  by  this  Article. 

c.  h.  held  un.       (i)     In  Umesh   Chunder  Roy  v.  Raj  Bulla bh  Sen,<!) 

claimant  need    decree-holder  for  arrears  of  rent  attached  a  tenure  be- 

Sr  satisfied  the    longing  to  the  debtor,  who,  pending  the  attachment,  sold 

which  property  it  to  A  in  March,  1869.     A  *t  claim  under  sec.  246  of  Act 

and  is  not  estop-  VIII  of  1859  was  rejected  on  the  ground  that  alienation 

in*  his  claim,     was  invalid.     In  1877,  the  decree-holder's  heirs  obtained 

another  decree  for  rent  against  the  same  defendant  and 

attached  the  same  tenure.     A's  claim  under  section  278 

of  the  Civil  Procedure  Code  was  rejected  in  May,  1879. 

A  sued  on  the  6th  of  May,  1879,  to  have  his  right  estab- 

-   lished.     The  Lower  Court  rejected  the  suit  on  the  ground 

that  it,  ought  to  have  been  brought  within  one  year  from 

(1)  I.  L.  E.,  8  dale,  279. 


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ART.  11]         THE  8KC0ND  SCHEDULE,  FIRST  DIVISION — SUITS.  293 


Description  of  suits. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


one 


Part  IV. 
One  year. 

March,  1869.  It  appeared  that  after  the  dismissal  of 
the  claim  the  property  was  not  sold,  because  the  judgment 
debtor  paid  off  the  amount  of  the  decree.     The  Court  c.  h.  Court  ob- 

served  that 

held  that  on  the  virtual  withdrawal  of  the  attachment  on   order  that 

_,..  ,  .  •  ,  t«i       claimant's  par- 

payment  of  the    judgment  debt,   the  purchaser  s   right   chase  was  in- 
stood  good,  and  that  the  order  that  the  sale  was  invalid  meant  it  was  so 
only  meant  that  it  was  invalid  as  against  the  judgment-   ment  creditor 
creditor  and  purchaser  in  the  execution  case.  an.     urc 

(j)     In  Jeoni  v.  Bhagwan  Sahai,*1)  B  caused  a  certain  A.  h.  held  that 
dwelling-house  to  be  attached  in   execution  of  a  decree  claimant  was 
held  by  him  agafhst  M  as  the  property  of  M.    J  prefer-  asserting  hu 
red  a  claim  to  the  property,  which  was  disallowed  by  year,  even  if 
an  order  made  under  section  246  of  Act  VIII  of  1859.  satisfied  within 
Two  days  after  the  date  of  such  order,  M  satisfied  B'$ 
decree.    More  than  a  year  after  the  date  of  such  order,  / 
sued  B  and  Af  to  establish  her  proprietary  right  to  the 
dwelling-house,  alleging  that  If  had  fraudulently  mortgag- 
ed it  to  J?.  It  was  held,  following  the  Full  Bench  ruling  in 
Badri    Prasad  v.   Muhammad  Yusuf,<*)  that  J  having 
failed  to  prove  her  right  within  the  time  allowed  by  law, 
was  precluded  from  asserting  it  oy  the  order  made  under 
section  246  of  Act  VIII  of  1859,  aiufthat  whether  or  not 
the  decree  was  satisfied  after,  the  order  was  made,  the 
effect  of  the  order  was  the  same. 

(k)  In  Gend  Lall  Tewari  v.  Denonath  Ram  Tewari,<s)  o.  h.  held  that 
the  plaintiffs,  after  attachment,  but  before  sale,  purchased  claimant  is  not 
from  the  judgment-debtor,  with  the  permission  of  the  asserting  his 
court,  the  land  attached.  Previous  to  the  sale  certain  purchaser  from 
persons  had  claimed  the  land  as  having  been  sold  to  them  court's  permis. 
by  the  debtor's  father,  and  this  claim  was  disallowed  in  tacnment,  but 
November,  1876.  In  1881,  the  plaintiffs  alleging  that  omm®° 
9  they  had  been  dispossessed  by  certain  persons,  amongst 

1  All.,  541.      I       (2)  I.  L.  ] 
(3)  I.  L.  R.,  11  Calc,  678. 


(1)  I.  L.  B.,  1  All.,  541.      I       (2)  I.  L.  R>  1  All.,  381. 
'  I.  L.  R.,  11  r  '      -— 


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294  THE  SECOND  8CHEDULE,  FIR8T  DIVISION — SUITS.         [ART.  11 


Description  of  suit. . 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  IV. 
One  year. 

whom  were  the  claimants  in  the  execution  proceedings, 
brought  a  suit  to  recover  possession  of  this  land  against 
these  persons ;  this  suit  was  decided  against  the  plain- 
tiffs in  the  Lower  Appellate  Court  on  the  ground  that 
they  had  failed  to  prove  that  they  had  been  in  possession 
of  the  land  twelve  years  before  suit.  On  Appeal  to  the 
High  Court,  the  plaintiffs,  appellants,  contended  that  the 
claim  of  the  defendants  in  the  execution  proceedings 
having  been  rejected,  and  they  not  having  brought  a 
regular  suit  within  one  year  from  the  order  of  rejection 
to  establish  their  right  to  possession,  the  defendants  were 
prevented  by  that  order  from  contending  that  the  plain- 
tiffs had  not  been  in  possession  at  the  time  of  that  order. 
Held,  the  order  It  was  held  that  the*  order  did  not  operate  as  an  estoppel 
as  an  estoppel  against  the  defendants  ;  and  even  if  it  could  so  operate, 
fondants  who    it  would  not  do  so  until  the  time  had  run  out  within 

lost  their  claim. 

which  they  could  have  brought  a  suit  to  establish  their 

right  to  possession,  and  that  such  time  had  not  expired. 

B.  h.  held  that  The  Bombay  High  Court,  in  Krishnaji  Vithal  v.  Bhaskar 

order  excluded  . 

the  claimant      Rangnath,^)    in    accordance   with  Settiappan  v.    Sarat 

from  any  other 

remedy  than     Singh/2)    decided   that  the  effect  of  the  last  clause  of 

the  one  provid-  .  • 

ed  for  him  by  section  246  of  the  Code  of  1859,  was  to  exclude  a  party  to 
section  246.  ,  .  7         .  , 

an    investigation  under  that   section    from    any    other 

remedy  than  the  one  thereby  provided  for  him.     With 

c.  H.  observed  reference  to  this  point,  the  Calcutta  High  Court  Division 

ing  in  the  order  Bench  (Garth,  C.  J.,  and  Beverley  J.,)   observe  u  apart 

©ouid  create      from  this  question  of  limitation,  there  is  nothing  as  far 

an£  theycanl    as  we  can  see  in  the  order  itself  which  could  create  any 

tag  thfiAhe  "  estoppel  of  the  kind. 

put*  upon°sec-        "  There  are  certainly  some  authorities  in  this  as  well 

the1  courts  has  as  the  other  High  Courts,  which  seem  to  favor  such  a 

tive^iniustice  view  of  the   section,  but  I   cannot  help  thinking   that' 

and   tended   to 

(1)  I.  L.  R.,  4  Bom.,  611      |        (2)  3  M.  H.  C.  B.,  220. 


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ART.    11]         THE  8BC0ND  SCHEDULE,  FIRST  DIVISION — 8UIT8.  295 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  IV. 
One  year. 

this  subject  has  not  been  sufficiently  considered,  and  that  defeat  the  inton- 

x.  ..,  .  ,       A,  *.  tionofthoLe- 

m  any  question  which  may  arise  under  the  corresponding  gisiature. 
sections  of  the  present  Act  (278  to  288)  which  are  some- 
what differently  worded  from  section  246  of  the  old  Act, 
it  may  be  well  to  consider  what  the  words  '  suit  to  estab- 
lish the  right  to  the  property'  really  mean.  I  cannot 
help  thinking  that  the  construction  which  has  sometimes 
been  put  upon  section  246  of  the  old  Code  may  not  only 
have  been  productive  of  injustice,  but  may  have  tended 
to  defeat  the  intention  which  the  Legislature  had  in 
passing  the  section." 

(1)     In  Shiboo  Narain  Sing  v.  Mudden  Ally,M  it  was  Unsuccessful 

.  *         claimant  in  exe- 

held  that  a  person  whose  goods  are  illegally  sold  under  cution  case  can 
an  execution,  does  not  lose  his  right  to  them  although   year  for  Roods 

.  seised  or  their 

he  may  have  claimed  them  unsuccessfully  in  the  exe-  value. 
eution  proceedings.  He  may  follow  them  into  the  hands 
of  the  purchaser  or  of  any  other  person,  and  sue*  for 
them  or  their  value  without  reference  to  anything  which 
has  taken  place  in  the  execution  proceedings,  except 
that  he  must  bring  his  suit  within  one  year  from  the  time 
when  the  adverse  order  in  the  execution  proceedings  was 
made. 

(m)     In  Sivarama  v.  Subramanya,W  certain  land  was  M.  h.  held 
mortgaged  to  A  with  possession  to  secure  the  repayment  gee's  suit  after 
of  a  loan  of  Bs.  2,000  and  interest.     It  was  stipulated  in  dism£sai  of 

claim  for  a  por- 

the  deed  that  the  interest  on  the  debt  should  be  paid  out  tion  of  sale  pro- 
ceeds of  mort- 
of  the  profits,  and  the  balance  paid  to  the  mortgagors.     By  gaged  property, 

i_  xi  j       -x  j   xi.   x    not  a™**1  by 

an  agreement  subsequently  made,  it  was  arranged  that  this  Article. 
the  mortgagors  should  remain  in  possession  and  pay  rent 
to  A.     A  obtained  a  decree  for  Rs,  2,000  and  arrears  of 
rent  and  costs,  and  for  the  sale  of  the  land,  in  satisfaction 
of  the  amount  decreed.     The  land  was  sold  for  Bs.  2,855, 

.      (1)  I.  L.  R.,  7  Calc,  608.  |      (2)  I.  L.  R.,  9  Mad,  67. 

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296 


THK  SECOND  SCHEDULE,  FIRST  DIVISION — SUITS.         [ART.   11 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Auction  pur- 
chaser's suit 
brought  after 
one  year  from 
order  passed  in 
favor  of  a  clai- 
mant was  held 
barred. 
(April  1886.) 


Time  of  the  pen- 
dency  of   the 
first  suit  reject- 
ed for  non-pro- 
duction of  a 
registered  sale 
certificate    was 
not  deducted  in 
computing  pe- 
riod   for  the 
second  suit. 


Order  contem- 
plated by  sec- 
tion  281  of 


Part  IV. 
One  year. 

in  March,  1881.  In  May,  1881,  B,  a  puisnejnortgagee, 
applied  to  the  court  for  payment  to  him  of  Rs.  500  of  this 
sum,  alleging  that  A  was  entitled  only  to  Rs.  2,000  and 
Rs.  280  costs,-  but  not  to  arrears  of  rent  in  preference  to 
his  claim  as  second  mortgagee.  The  claim  of  B  was 
rejected  on  the  27th  May,  1881,  and  the  whole  amount 
paid  out  to  A.  In  February,  1882,  B  (who  had  filed  a 
suit  on  the  23rd  March,  1881,)  obtained  a  decree  upon  his 
mortgage.  On  the  23rd  May,  1884,  B  sued  to  recover 
Rs.  510  paid  to  A  on  account  of  rent  on  the  27th  May, 
1881.  The  Lower.  Courts  dismissed  the  suit  on  the 
grounds — (1)  that  A  was  entitled  to  treat  the  arrears  of 
rent  as  interest ;  (2)  that  the  suit  was  barred  by  limita- 
tion. It  was  held  on  second  appeal,  that  B  was  entitled 
to  recover  the  sum  claimed. 

(n)  In  Bai  Jamna  v.  Bai  Ichha/1)  defendant's  claim  to 
property  purchased  by  the  plaintiff's  husband  in  Novem- 
ber, 1871,  was  allowed  under  section  269  of  Act  VIII  of 
1859,  in  November,  1872.  Plaintiff's  regular  suit,  brought 
•in  March,  1873,  was  rejected  on  the  ground  that  she  bad 
not  obtained  a  registered  certificate.  This  decree  was  con- 
firmed in  November,  1879,  by  the  High  Court ;  the  plain- 
tiff, in  July,  1873,  obtained  a  second  certificate  and  regis- 
tered  it,  and  on  the  strength  of  which  she  brought  a  second 
suit  in  April,  1880.  It  was  held  that  the  suit  was  barred, 
and  that  the  plaintiff  should  have  instituted  his  suit 
within  one  year  from  November,  1872.  It  was  further 
held  that  the  time  that  the  first  suit  was  pending  cannot 
be  deducted  under  section  14  of  the  Act,  as  the  plaintiff's 
inability  to  produce  a  registered  certificate  at  the  institu- 
tion of  the  suit  was  owing  entirely  to  her  own  laches. 

(O)     In  Chandra  Bhusan  Gangapaidhya  v.  Ram  Kanth 

(1)  I.  L.  E.,  10  Bom.,  604. 


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AfiT.  1 1]         THX  8IC0ND  SCHEDULE,  WEST  D1VI8I0N — BDIT8. 


297 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Pabt  IV. 
One  year. 

BanerjijW  plaintiff  purchased  on  the  11th  June,  1878, 
the  share  of  one  Bajcoomar  in  execution  of  a  decree 
against  him.  The  defendant  purchased  the  share  in 
August,  1880,  at  a  sale  in  execution  of  another  decree 
against  Bajcoomar.  When  the  share  was  attached  in 
execution  of  the  latter  decree,  the  plaintiff  put  in  a  claim, 
which  was  rejected  on  the  25th  January,  1880,  on  the 
ground  that  the  sale  was  not  likely  to  affect  his  interest, 
the  boundaries  of  the  attached  property  differing  from 
those  mentioned  in  the  claimant's  Kobala.  The  present 
suit  for  possession  was  brought  on  the  28th  of  April, 
1882.  The  District  Judge  rejected  the  suit  as  barred  by 
this  section.  It  was  held,  that  the  order  contemplated 
by  Beet  ion  281  of  the  Code  of  Civil  Procedure  is  an  order 
made  after  investigation  into  the  facts  of  the  case,  and 
it  is  only  when  the  order  is  made  after  such  investigation 
that  the  limitation  of  one  year  is  applicable  to  a  subse- 
quent suit  under  section  283  of  the  Civil  Procedure  Code. 
In  Bhikha  v.  Sakarlal,<s>  a  purchaser  of  immoveable  pro- 
perty having  been  obstructed  by  defendant,  applied  under 
section  268  of  Act  VIII  of  1859,  for  the  removal  of  the 
obstruction,  but  subsequently  withdrew  his  application. 
The  court  endorsed  upon  the  application  that  no  investi- 
gation was  made.  In  a  suit  brought  by  him  for  posses- 
sion, it  was  held  that  one  year's  limitation  did  not 
apply  to  his  case.  In  Sah  Mukhun  Lall  Panday  v.  Sah 
Koondun  Lall/8)  a  claimant  who  put  in  his  claim  applied 
for  suspension  of  sale  to  enable  him  to  produce  his  con- 
veyance after  having  it  registered.  The  court  refused 
his  application,  and  more  than  a  year  from  the  date  of 
refusal  claimant  sued  to  establish  bis  right.  It  was  held 
that  the  suit  was  not  barred  under  section  246  of  Act  VIII 


(1)  I.  L.  R.,  12  Calc.,  108. 

(3)  15  B. 

38 


(2)  I.  L.  R.,  5  Bom.,  440. 
R.,  228. 


theO.P.C.and 

by  section  886, 
corresponding 
to  section  260  of 
Act  vm  of 
I860,  is  not  one 
made  without 
investigation. 


Application 
made  under  sec- 
tion 868  of  Act 
Vm  of  1869  was 
withdrawn. 


Refusal  to  post- 
pone sale  to  en- 
able claimant  to 
have  convey- 
ance registered. 


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298  THE  8BCOND  8CHEDUI.K,  FIRST  DIVISION* — SUITS.         [AKT.  11 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  IV. 
One  year. 

Property  re.  of  1859,  and  that  a  mere  refusal  to  postpone  sale  was  an 
wli^nt^n}*!^  order  under  section  247.  In  Jaggabandhu  Bose  v.  Srimati 
vestigation.  Saclivi  Bibi  ;<*>  property  attached  was,  on  the  claim  of 
a  third  party,  released  by  the  court  without  proceeding 
under  the  provisions  of  section  246,  Act  VIII  of  1859. 
The  attaching  creditor,  more  than  a  year  afterwards,  sued 
for  a  declaration  that  the  property  belonged  to  the  judg- 
ment-debtor.    It  was  held  that  the  suit  was  not  barred. 

Applies  to  a         (p)     Venkatachala  v.  Appathorai,<f)  was  a  suit  brought 

claim  was°M>-    by    a   purchaser   in  auction,  who  was  decree-holder,   to 

▼estimation!  °    establish  his  right  to  the  land,  on  the  22nd  February, 

1883,  or  one  year  after   10th  August,   1877,  on  which 

date   delivery  of    possession  to  him   was   cancelled   by 

an  order  passed  under  section  269  of  Act  VIII  of  1859. 

It  was  held,  that  the  suit  was  barred  as  it  was  not  brought 

section  269  of  within  one  year  as  provided  for  by  section  269  of  Act  VIII 

corresponds  to  of  1859,  and  the  repeal  of  that  section  by  Act  IX  of  1871 

the  new  Code,  did  not  deprive  the  order  of  the  character  which  attached 

to  it  when  it  was  made,  and  that  the  order  was  one  passed 

in  a  suit,  and  does  not  fall  within  Article  13. 

This  does  not        (q)     In  Ayyasami  v.  Samiya/3)  plaintiff  having  been 

party  whose  J  dispossessed  in  November,  1880,  of  a  certain  land  in  exe- 

jected  under      cution  of  a  decree,  applied  under  section  332  of  the  Civil 

c.  p.  c.     '        Procedure  Code  for  possession,  which  was  disallowed  on 

the  14th  February,  1882.     On  the  6th  March,  1883,  he 

brought  a  regular  suit  for  possession.     It  was  held,  that 

the  suit  was  not  barred  by  this  Article,  inasmuch  as  it 

does  not  refer  to  section  332.     It  was  further  held,  that 

Article   13  does  not  apply,  as  it  refers  to  decisions  or 

orders  passed  in  a  proceeding  other  than  a  suit,  and  as  an 

Order  in  an  execution  proceeding  is  an  order  in  a  suit. 

(1)  8  B.  L.  E.,  App.,  89.       |       (2)  I.  L.  R,  8  Mad.,  134. 
(3)  I.  L.  R.,  8  Mad.,  82. 


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ART.   11]  THE  SECOND  SCHJCDULK,  FIRST  DIVISION S01T8.  299 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  IV. 
One  year. 

(r)     In  Nitta  Kolita  v.  Bishnnram  Kolita,W  certain 
lands  were  attached  nnder  a  decree  against  the  ancestor 
of  the  plaintiffs,  bnt  on  the  intervention  of  the  defendant, 
nnder  section  246,  Act  VIII  of  1859,  they  were  released  to 
him.     It  was  held  that  the  order  was  between  the  decree- 
holder  and  the  defendant,  bnt  not  between  the  plaintiffs  order  to  be  af - 
and  defendant,  such  as  to  make  it  necessary  for  the  former  jSLr'a  rule™* 
to  sue  for  declaration  of  title  within  one  year.     In  Durga-  Lade  between 
ram  Roy  v.  Raja  Narsing  Deb,<2>  on  attachment  of  certain  two  part  ^ 
property,  plaintiff  and  defendants  preferred  their  respec- 
tive claims  thereto.     The  plaintiff's  claim  was  disallowed,  An  order  allow. 
but  the  defendant's  claim  was  allowed.    The  plaintiff,  after  one  of  two  rival 
the  lapse  of  a  year  from  the  date  of  the  order  disallowing  not  bind  the 
his  claim,  sued  to  recover  possession  of  the  said  property,  year's  role. 
The  defence  was  that  the  suit  was  barred  by  lapse  of  time 
under  clause  5,  section  I,  Act  XIV  of  1859,  and  section  246, 
Act  VIII  of  1859.     Jackson,  J.  observes  :  "  in  this  case,  observations  of 
although,  no  doubt,  an  order  was  made  setting  aside  the 
present  plaintiff's  claim,  yet  the  court  did  not  go  on  to 
sell  the  property.     I  think,  therefore,  that  there  was  no 
binding  order  in  force  between  the  present  plaintiff  as 
claimant,  and  the  execution-creditor,  and  also  there  was 
no  order  which  in  any  respect  finally  decided  any  question 
of  right  between  the  present  plaintiff  and  the  present 
defendant." 

(8)     In  Imbichi  Roya  t>.  Eakunnat  Upakki,(3)  it  was  Even  judg- 
ment debtor 
held  that  when  the  judgment-debtor  is  not  made  a  party  who  was  not 

to  a  proceeding  under  section  246  of  Act  VIII  of  1859,  he  the  proceedings 

_  _,         ,.  -i.     .,    ,.        ,  ,  ,    i_t  i     nnder  section 

is  not  bound  by  the  law  of  limitation  to  sue  to  establish  246  is  not  affect- 
his  right  to  the  property  within  one  year  from  an  order  ye*&  limit*?6 
under  that  section  releasing  it  from  attachment. 

(1)  2  B.  L.  B.,  App.,  49.      |      (2)  2  B.  L.  B.,  A  C,  254. 
(8)  I.  L.  B.,  1  Mad.,  391. 


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THE  SECOND  8CHEDULE,  FIRST  DIVISION SUITS.  [ART.  11 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Parties  are  not 
bound  to  resort 
to  section  280, 
181,  282,  or  836 
of  the  C.  P.  C. 


Claimant  may 
sue  for  compen- 
sation for  da- 
mage to  and 
for  loss  of  use 
of  ox  or  boat 
attached. 


Part  IV. 
One  year. 

(t)  Plaintiff's  tenant  having  been  ejected  from  certain 
immoveable  property  of  the  plaintiff  under  an  auction  sale 
in  execution  against  a  third  party,  the  plaintiff  made  no 
application  to  the  court  under  sections  246  or  269  of  Act 
VIII  of  1859,  to  prevent  or  set  aside  the  sale.  It  was  held 
that  he  was  not  bound  to  do  so,  but  that  he  was  entitled 
to  file  a  regular  suit  within  12  years.  Lalchand  Ambai- 
das  v.  Sakharam  Valad  Chandrabhai.t1)  In  Protab  Chun- 
der  Chowdhry  v.  Brojolal  ShahaW  it  was  held,  a  person 
dispossessed  of  property  in  execution  of  a  decree  against 
another  person  and  claiming  to  be  entitled  to  possession, 
is  not  bound  to  proceed  under  section  269  of  Act  VIII  of 
1859.  A  person  dispossessed  of  property  by  a  purchaser 
in  execution  of  a  decree  without  resorting  to  summary 
remedy  filed  a  regular  suit  for  possession.  It  was  held 
he  had  12  years  from  the  date  of  dispossession.  Jadoonath 
Chowdhry  v.  Radhomonee  Dassee.<s> 

(U)  Besides  the  recovery  of  the  article  such  as  an 
ox,  or  boat,  wrongly  seized  in  execution  that  may  be  sought 
to  be  recovered,  the  owner  may  seek  compensation  for 
damage  to  it  or  for  his  loss  of  the  use  of  it,  and  for  such  a 
suit  Article  29  prescribes  a  term  of  one  year.  But  again, 
the  recovery  of  the  specific  article  may  be  impossible  or 
undesirable,  and  then  the  owner  may  seek  compensation 
for  the  thing  itself  and  for  the  damage  he  has  sustained. 
To  such  a  suit  it  cannot  be  doubted  that  Article  29 
would  apply  :  as  the  double  claim  of  compensation  con- 
sists of  elements  of  identical  character,  these,  though 
capable  of  separate  existence,  blend  by  contract  in  their 
subject  into  one.  Jagjivan  Javherdas  v.  Gulam  Jilani 
Chaudhri.W 


(1)  5  Bom.,H.  C.  E.,  A.  C,  139.  I 

(2)  B.  L.  R.,  Sap.  Vol.,  638.  | 


(3)  Id.  643. 

(4)  I.  L.  B.,  8  Bom.,  17. 


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ART.  11]  THK  SKCOND  SCHEDULE,  FIRST  DIVISION 8UITB.  30l 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  IV. 
One  year. 

(V)  In  Settiappan  v.  Sarat  SinghO)  plaintiff's  claim  Unsuccessful 
under  section  246  of  Act  VIII  of  1859,  for  a  certain  pro-  notwaluiiisaie 
perty  attached  in  execution  of  a  decree,  was  rejected  in  then*rae*w\thln 
July,  1868,  and  his  regular  suit  to  set  aside  the  sale  tiedatoof sale! 
was  brought  after  sixteen  months  from  that  date,  but 
within  one  year  from  the  date  of  confirmation  of  the 
court  sale.  The  question  for  decision  was,  whether  a 
party  to  an  investigation  under  section  246  of  the  Code 
is  competent  to  maintain  a  suit  to  set  aside  the  sale  that 
may  ultimately  be  made  by  the  court,  or  is  limited  to  his 
remedy  by  a  regular  suit  to  establish  his  right,  and  so  to 
set  aside  the  order  made  against  him  in  the  proceeding, 
under  section  246  of  the  Code.  It  was  held  that  the  effect 
.of  the  last  sentence  of  section  246,  Act  VIII  of  1859,  is  to 
exclude  a  party  to  an  investigation  under  that  section 
from  any  other  remedy  than  that  expressly  provided  for 
him  by  that  section,  viz.,  a  regular  suit  to  be  brought 
within  one  year  from  the  date  of  the  order  made  against 
him ;  and  that  such  party  cannot  wait  till  the  sale  of  the 
attached  property  has  taken  place  and  been  confirmed,  and 
then  bring  his  suit  within  one  year  from  the  last  date. 

(w)  This  article  provides  for  institution  of  regular  sale  subsequent 
suits  within  one  year  from  the  date  of  the  order  passed  one's  claim  will 
under  section  281  of  the  Code  of  Civil  Procedure,  while  fresh  starting* 
the  following  article  provides  for  institution  of  suits  to  though  suit  is 
set  aside  a  sale  within  one  year  from  the  confirmation  of  year  of  sale,  if  it 
sale.  Sale  of  attached  property  subsequent  to  the  dismis-  one  year  of  the 
sal  of  one's  claim  will  not  give  him  a  fresh  starting  point,  claim,  it  win  be 
If  the  suit  is  brought  within  one  year  from  the  confirma- 
tion of  sale  under  Article  12,  it  will  be  barred  under 
Article  11  if  it  is  not  brought  within  one  year  from  the 
dismissal  of  the  claim. 

(1)  8  M.  H.  0.  R.,  220. 


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THK  8KCOND  8CHKDULH,  WKST  DIVISION SUITS.  [AKT.   12 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


12. — To  set  aside  any  of  the 
following  sales : — 

(a)  sale  in  execution  of  a 
decree  of  u  Civil  Court  ; 

(b)  sale  in  pursuance  of  a 
decree  or  order  of  a 
Collector  or  other  officer 
of  revenue; 

(c)  sale  for  arrears  of  Go- 
vernment revenue,  or 
for  any  demand  recove- 
rable as  such  arrears ; 

(d)  sale  of  a  patni  taluq 
sold  for  current  arrears 
of  rent. 

Explanation. — In  this  clause 
'  patni'  includes  any  in- 
termediate tenure  sale- 
able for  current  arrears 
of  rent. 


Part  IV. 
One  year   . 


When  the  sale  is  con- 
firmed, or  would 
otherwise  have  be- 
come final  and  con- 
clusive had  no  such 
suit  been  brought. 


This  Article  ap- 
plies only  when 
sale  to  be  set 
aside  is  one  of 
the  kinds  there- 
in mentioned. 


Suit  to  recover 
what  was  taken 
in  exoess  of 
what  was  sold 
is  not  a  suit  to 
set  aside  sale. 
(May  1876.) 


(a)  (No.  14,  Act  IX,  sec.  1,  clause  3,  Act  XIV.)  This 
Article  does  not  apply  where  the  suit  is  not  sub- 
stantially a  suit  to  set  aside  a  sale  of  one  of  the  kinds 
mentioned  in  the  Article.  The  confirmation  of  a  sale 
under  the  Civil  Procedure  Code  binds  the  parties  to  the 
suit  and  the  purchaser,  and  no  regular  suit  lies  to  set 
aside  such  a  sale  on  the  ground  of  irregularity  in  publish- 
ing or  conducting  the  sale.  Sec.  312.  For  demands  re- 
coverable as  arrears  of  revenue  see  Act  VII  of  1868,  B. 
C,  and  section  5  of  Act  XI  of  1859. 

(b)  It  is  not  incumbent  on  a  person  seeking  not  to 
interfere  with  the  sale  in  execution  of  a  decree  of  the 
right,  title,  and  interest  of  the  judgment-debtor  but  to 
recover  what  has  been  taken  in  exoess  under  colour  of  sale, 
to  sue  within  the  period  of  limitation  prescribed  by  law 
for  a  suit  to  set  aside  the  sale.  The  mere  circumstance 
that  there  is  a  specification  of  the  subject  of  the  sale  at 


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AltT.  12]  THB  8KC0ND  SCHKDtJLK,  KlKST  DJVJ810N — 8UIT8.  303 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Pakt  IV. 
One  year. 

the  time  of  sale  is  of  no  force.  It  is  not  the  property 
specified,  but  the  right  of  the  judgment-debtor  therein, 
that  is  offered  for  sale  and  conveyed.  Mnsammat  Shara- 
fat-un-nissa  v.  Lachmi  Narainl*) 

(0)  A  suit  brought  to  set  aside  a  sale  based  on  alle-  Suit  to  set  aside 
gations  of  irregularities  in  publishing  or  conducting  the  iarity°fau7un-" 
sale  will  be  barred  if  more  than  a  year  has  elapsed  since 

the  confirmation  of  the  sale.  Ram  Sarup  v.  Roghoonun- 
dan  (1  Weekly  Notes,  52) 

(d)     "  There  is  nothing  in  the  provision  of  this  Article  This  Article 

to  indicate  that  it  applies  only  to  parties  to  suits.     Where  cate  that  it  »p- 

a  sale  has  been  made  of  the  right,  title,  and  interest  of  a  parties  to  suite. 

party  to  the  suit,  it  has  been  held  that  a  stranger  to  the  stranger  held 

...  -  ,  ,  .  .  .  *  .  not  bound  to  sue 

suit  is  not  bound  to  sue  within  one  year  for  the  recovery  within  one  year 
of  property   which   the   purchaser   may  claim   to   have  rteht,  title,  Ac, 
acquired  under  the  sale.     This  is  not  because  the  stranger  not  convey  the 
was  not  a  party  to  the  suit,  but  because  the  court  did  not 
profess  to  sell  his  interest  in  the  property."     "  Where, 
however,  the  property  itself  has  been  sold  and  the  sale  But  when  pro- 
purports  to    pass   the  property    absolutely,  and   would  sold,  aaH^can 
pass  it  unless    set  aside,  it  can  only  be  set  aside  with-  within  one 
in  one  year  from  the  date  of  confirmation."     Suryanna 
v.  Durgi.W     In  Nilakandan  v.  Thandamma<8)  A  sought  a  third  party's 
to  redeem  certain  land   demised  by  him  on  Kanam  in  land  •oiofln'e* 
1850  to  the  predecessor  of  B ;  (7,  who  was  in  possession  decreewa* held 
of  the  land  was  made  a  defendant.     A  proved  his  title  to  this  Article.  * 
the  land  and  possession  up  to  1850.     0  pleaded  title  to  the 
land  and  denied  that  B  had  ever  been  in  possession.     Both 
pleas  were  found  to  be  false.     It  was  found,  however,  that 
0  had  been  in  possession  from  1869  to  1885,  and  that  in 
1876  the  land  had  been  sold  in  execution  of  a  decree 
against  0  (to  which  A  was  not  a  party)  and  purchased  by 

(1)  7  N..W.  P.  H.  C.  R.,  288.    |      (2)  I.  L.  R.,  7  Mad.,  261. 

(3)  I.  L.  R.,  9  Mad.,  460. 


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THB  8KCOND  8CHBDUIiB,  P1R8T  DIVISION — 8UITS.  [ART.   12 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Suit  to  cancel 
court  sale  made 
as  property  of 
another  person 
does  not  fall  un- 
der this  Article. 


Suit  to  recover 
plaintiff's  share 
from  purchaser 
who  took  pos- 
session  under 
court   sale   of 
plaintiff's   co- 
sharer's  inter- 
est is  not  affect- 
ed by  one  year's 
rule. 
(August  1875.) 


Suit    for   pro- 
property  set- 
ting aside  sale 
certificate 
which  wrongly 
included  it,    is 
not  affected  by 
this  Article. 


Part  IV. 
One  year. 

D  who  resold  to  0  in  1879.  The  Lower  Court  held  that 
(7'«  possession  must  be  taken  to  have  been  derived  from 
B  till  the  contrary  was  proved  ;  but  that  the  suit  was 
barred  by  Article  12  of  schedule  2  of  the  Indian  Limitation 
Act  1877,  because  it  had  not  been  brought  within  one 
year  from  the  date  of  the  sale  in  1876.  It  was  held  that 
the  suit  was  not  barred  by  limitation  and  that  the  case 
should  be  decided  on  the  principle  laid  down  in  Ven- 
kata  Narasiah  v.  Subbamma*1)  and  Sadagopa  v.  Jamuua 
Bhai(*)  which  were  not  overruled  by  the  decision  in  Su- 
ryanna  v.  Durgi.W 

(e)  In  Nathu  v.  Badri  Das,<4)  the  plaintiff  alleging 
that  certain  immoveable  property  belonging  to  him  had 
been  sold  in  execution  of  a  decree  against  some  other 
person  as  the  property  of  that  person,  sued  the  purchaser 
to  have  the  sale  set  aside  and  to  recover  possession  of  the 
property.  It  was  held  that  the  plaintiff  had  12  years. 
In  Nito  Kallee  Debee  v.  Kripanath  Roy(*)  it  was  held  that 
a  third  party  is  not  bound  to  go  and  urge  his  claim 
to  a  property  advertised  for  sale  in  execution,  or  to  sue 
within  one  year  from  the  date  of  delivery  to  the  auction- 
purchaser. 

(f  )  In  Tonoo  Ram  Gossain  v.  Mohessur  Gossain*6)  the 
rights  and  interests  of  plaintiff's  co-sharer  having  been 
sold  under  a  decree,  the  purchaser  possessed  himself  of 
plaintiff '8  share  as  well  as  of  his  own.  It  was  held  that 
in  a  suit  to  recover  possession,  plaintiff  was  not  bound  to 
bring  his  action  within  one  year  from  the  date  of  dispos- 
session ;  but  had  a  right  to  the  limitation  of  twelve  years. 

(g)     In  Baboo  Pertab  Chunder  v.  Baboo  Brojo  Lall/7> 


(1)  I.  L.  E.,  4  Mad.,  178. 

(2)  I.  L.  R.,  6  Mad.,  54. 
(8)  I.  L.  R.,  7  Mad.,  258. 


(7)  7  W.  R.,  253,  P.  B. 


(4)  I.  L.  R.,  5  All.,  614. 

(5)  8  W.  R.,  358. 

(6)  24  W.  R.,  302. 


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ABT.  12]         THB  8BC0ND  SCHEDULE,  F1B8T  DIVISION — SUITS. 


305 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  IV. 
One  year. 

plaintiff  was  dispossessed  under  a  certificate  of  sale  which 
was  not  conformable  to  or  warranted  by  the  sale  itself, 
and  made  no  complaint  to  the  court  which  was  executing 
the  decree.  It  was  held  that  he  is  entitled  to  bring  his  suit 
for  confirmation  of  his  title  and  to  be  restored  to  the  pos- 
session of  the  property  from  which  he  was  ousted  at  any 
time  within  twelve  years  from  the  time  of  his  disposses- 
sion. 

(h.)    In  Sadagopa  v.  Jamuna  Bhai.W  which  was  a  suit  Suit  to  oanooi 
to  set  aside  auction  sale  effected  by  a  court  which  had  court  having 

.  no  jurisdiction 

not  jurisdiction,  it  was  held  that  this  Article  does  not  is  not  affected 

,  .         ,.  ,      ,         ,    .      .«.  by  this  Article. 

apply  to  a  case  m  which  the  plaintiff  was  not  a  party  to 
and  not  bound  by  the  sale  sought  to  be  set  aside. 

(i)     P,  obtained  an  ex-parte  decree  against  M  in  April,  Defendant's 
1874,  and  on  the  18th  August,  1875,  the  High  Court  dis-  court  sale  and 

recover  pro- 

missed  the  appeal  on  the  ground  that  the  decree  was  not  perty  on  rever- 

sal  of  decree 

appealable.   On  the  27th  November,  1878,  the  Privy  Conn-  held  barred 

rr  J  though  brought 

cil  remanded  the  appeal.     On  the  1st  March,  1880,  the  within  a  year  of 

_,    ,      .,  \     *  .    .      ,    ,  -r       ,  reversal,  as  re- 

High  Court  modified  the  original  decree.     In  the  mean-  versai  does  not 

°  B  give  a  fresh 

time  the  property  of  M  was  sold  in  1874-75,  and  1876,  starting  point, 
in  execution  of  the  decree.     In  February,  1881,  or  within  • 
one  year  from  the  date  of  reversal  of  the  decree,  M  sued 
for  cancellation  of  sale  and  possession ;  it  was  held  that 
both  under  Article  14  of  Act  IX  of  1871  and  12  of  Act  XV . 
of  1877,  the  suit  was  barred.     Parshadi  Lai  v.  Muham- 
mad Zain-ul-Abdin.W 

(j)     In  Jan  Ali  v.  Jan  Ali  Chowdhry,(8>  it  was  held   Subsequent  re- 
that  a  bond  fide  sale  under  a  decree  is  binding  not  with-   decree  in  exe- 
standing  the  decree  may  be  set  aside  upon  review,  and  property  was 
that  a  sale  by  the  Sheriff  in  case  of  fier%   facias  to  a  botid  render  sale  in- 

*  valid  as  asainst 

fide  purchaser  under  a  decree  is  not  affected  by  the  rever-  purchaser. 

J  (June  1868.) 

(1)  I.  L.  R.,  5  Mad.,  64.       |      (2)  I.  L.  E.,  5  All.,  573. 
(8)  10  W.  R.,  164. 

39 


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306 


THJC  SECOND  SCHEDULE,  PI  EST  DIVISION SUITS.  [ART.  12 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Reversal  of  exe- 
cution does  not 
restore  the 
Sheriff  to  the 
term  but  to  the 
monies  by 
which  he  came 
by  act  of  law. 


O.  H. 

Suit  to  set  aside 
sale  in  execu- 
tion of  a  decree 
which  was  since 
held  in  appeal 
as  barred,  falls 
under  this  Arti- 
cle. 
(January  1886.) 


Part  IV. 
One  year. 

sal  of  the  decree.  Peacock,  C.  J.,  observes  :  "  The  other 
case  to  which  reference  is  made  by  Mr.  Justice  Norman 
is  that  of  Goody  ere  v.  Tnoe,  Coke's  Reports  of  the  times 
of  James  1st,  page  246.  The  court  there  held  that 
'  there  was  a  difference  between  the  sale  and  delivery  upon 
an  elegit  to  the  party  himself  and  a  sale  to  a  stranger 
upon  a  fieri  facias',  for  the  fieri  facias  gives  authority  to 
the  Sheriff  to  sell  and  to  bring  the  money  into  court ; 
wherefore,  when  he  sells  a  term  to  a  stranger  although  the 
execution  be  reversed,  yet  he  shall  not  by  virtue  thereof, 
be  restored  to  the  term,  but  to  the  monies,  because  he 
came  duly  thereto  by  act  in  law.  But  the  sale  and  deli- 
very of  the  lease  to  the  party  himself  upon  an  elegit,  is  no 
sale  by  force  of  the  writ,  which  being  reversed,  the  party 
shall  be  restored  to  the  term  itself/  We  think  that  the 
distinction  is  founded  upon  reason  and  good  sense,  and 
that  our  decision  must  be  in  accordance  with  these  autho- 
rities. It  is  therefore  necessary  to  decide  whether  the 
purchaser  under  the  execution  was  a  bond  fide  purchaser, 
or  whether  as  alleged  in  the  plaint,  he  was  in  collusion 
with  the  ijaradar,  the  plaintiff,  in  the  Revenue  suit." 

(k)  In  Mahomed  Hossein  v.  Purundur  Mahto,<1) 
judgment-debtor  on  the  15th  June,  1878,  filed  a  petition 
objecting  to  the  executiou  of  the  decree  against  him  on 
the  ground  that  the  decree  was  barred.  Ou  the  18th 
November,  1878,  that  objection  was  overruled  and  certain 
of  his  property  sold.  On  the  13th  January,  1880,  the 
High  Court,  on  the  debtor's  appeal,  set  aside  the  Lower 
Court's  order  and  held  the  decree  as  barred.  Pending 
these  proceedings,  the  judgment-debtor  also,  on  the  17th 
December,  1878,  applied  under  section  311  of  Civil  Pro- 
cedure Code  (Act  XIV  of  1882)  to  set  aside  the  sale  on  the 

(1)  I.  L.  R.,  11  Calc,  287. 


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ART.  12]  THB  SECOND  8CHEDULB,  FIB8T  DIVISION — SUITS. 


807 


Description  of  suit 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  IV. 
One  year. 

ground  of  material  irregularity,  but  that  application  was 
rejected  on  the  17th  May,  1879,  and  the  sale  was  con- 
firmed on  the  21st  May,  1879.  On  the  2nd  April,  1880, 
the  judgment-debtor  applied  to  set  aside  the  sale  on  the 
ground  that  the  decree  in  execution  of  which  it  had  taken 
place,  had  been  held  to  be  barred,  and  though  an  order 
setting  aside  the  sale  was  made  by  the  original  court,  it 
was  subsequently  set  aside  by  the  High  Court  on  the 
13th  April,  1881,  as  having  been  made  without  jurisdic- 
tion. The  judgment-debtor  brought  the  present  suit  on 
the  4th  January,  1882,  upon  the  same  grounds  to  set 
aside  the  sale  and  recover  possession.  It  was  held  that 
the  suit  under  this  Article  was  barred. 

If  in  an  application  for  execution  the  court  erroneously 
holds  that  the  application  is  not  barred  and  orders  a  sale, 
the  order,  though  erroneous  and  liable  to  be  set  aside  in 
the  way  prescribed  by  the  Procedure  Law,  is  not  a  nullity, 
but  remains  in  full  force  until  set  aside,  and  a  sale  held 
in  pursuance  of  such  order,  is,  until  set  aside,  a  valid 
sale  and  a  suit  to  set  aside  such  a  sale  is  governed  by 
this  Article,  clause  A. 

The  word  "  disallowed"  in  section  312  of  Civil  Pro- 
cedure Code  has  no  reference  to  an  order  passed  on  an 
appeal,  but  refers  to  the  disallowance  of  the  objection  by 
the  court  before  which  the  proceedings  under  section  311 
are  taken. 

(1)  Tn  Minakumari  Bibee  v.  Jagat  Sattani  Bibee/1)  a 
creditor  obtained  a  decree  against  his  debtor,  and  applied 
for  and  obtained  an  order  for  execution.  This  application 
was  unsuccessfully  opposed  by  the  judgment-debtor  on 
the  ground  that  execution  was  barred  by  limitation. 
Certain  properties  of  the  judgment-debtor  were  attached 

(1)  I.  L.  B.,  10  Calc,  220. 


Sale  held  under 
an  erroneous 
order  is  not  a 
nullity  until  set 
aside  by  suit. 


°  Disallowed" 
has  no  reference 
to  an  order  on 
appeal. 


O.  H. 
But  when  exe- 
cution is  set 
aside  on  the 
ground  that  it 
was  barred,  de- 
fendant can  sue 
to  have  the  sale 
set  aside.    Exe- 
cution creditor 


purchaser. 
(Sept.  1883.) 


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308  THE  SECOND  SCHEDULE,  P1E8T  DIVISION— SUITS.         [ABT.  12 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  IV. 
One  year. 

and  sold  in  execution  of  this  decree,  the  judgment-credi- 
tor himself  becoming  the  purchaser. 

In  due  course,  the  sale  was  confirmed  and  a  certificate 
granted  to  the  purchaser.  Subsequently  to  this,  the  order 
granting  execution  oame  up  before  the  High  Court  on 
appeal,  and  that  court  decided  that  execution  was  barred. 
The  person  who  had  been  the  judgment-debtor  then 
brought  a  regular  suit  against  the  purchaser  to  recover 
it  cannot  be     the  properties  sold  in  execution.     In  this  case,  Garth,  C.  J., 

said  that  sale  r     r  >  >  » 

is  made  to  a     observes  :  it  cannot  be  said  that  the  sale  was  made  to  a 

bond  Jlde  pur- 
chaser for  value   bond  fide  purchaser  for  value  without  notice,  because  the 

without  notice-  J         r  ' 

when  the  pur-  execution  creditor  himself  was  the  purchaser.     It  was  held 

chaser  is    the 

creditor  him-     that  the  judgment-debtor  was  entitled  to  have  the  sale 
set  aside,  as  otherwise   the  appeal  to  the  High   Court, 
though  successful,  would  virtually  be  infructuous. 
o.  h.  (m)     A  sale  in  execution  took  place  under  an  order 

set  aside  on      obtained,  notwithstanding  a  consent  on  the  part  of  the 

Sound.6  decree- holder's   pleader  to  a  petition  by   the  judgment- 

debtor  for  a  postponement.  The  petition  was  by  mistake 
presented  to  and  filed  by  the  judgment-debtor  in  the 
wrong  court.  The  court  Jihat  executed  tbe  decree  having 
been  ignorant  of  the  order  of  postponement  proceeded 
to  sell  the  property  and  the  decree-holder  allowed  the 
sale  to  proceed,  and  himself  became  the  purchaser  and 
was  put  in  possession.     The  judgment-debtor  sued  to  have 

Decree-holder     the  sale  set  aside.     It  was  held  that  the  judgment-debtor 

was  directed  to  .  . 

reconvey  on       was  entitled  to  a  decree  m  tins  suit  to  have  the  property 

payment  of  the 

debt  by  the      reconveyed  to  him  on  his    paying  to  the  decree-holder 

judgement  J  r  J     ° 

debtor.  within  a  time  to  be  fixed  the  amount  due   under  the 

decree.     Gangapershad  Sahu  v.  Gopal  Singh. (*) 

o  ,.  f*  ?•   ^         (n)     Z  and  his  three  minor  sons  were  joint  owners  of 

Suit  to  set  aside         x     '  m  J 

the**   and  that  a    v^age    which    Z   hypothecated   by   deed    of    simple 

the  decree  and  .,.    _   _    _     _ ,   _  .       _„ 

the  proceedings  (I)  I-  L.  R.,  11  Calc,  136. 


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ART.  12]  THE  SECOND  SCHEDULE,  PIR8T  DIVISION — SUITS.  509 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  IV. 
One  year 

mortgage  to  /.  Subsequently  Z  executed  another  deed  thereon  were 
of  mortgage  to  J,  part  of  the  consideration  whereof  not  governed  by 
was  the  cancellation  of  the  former  bond  which  was  paid  (May  im.i 
off  and  extinguished  accordingly.  J,  however,  fraudu- 
lently caused  it  to  appear  from  the  novating  document 
that  the  former  mortgage  was  still  alive,  aud,  after 
the  death  of  Z,  put  the  bond  in  suit  against  Z's  widow, 
who,  being  ignorant  of  the  fraud,  confessed  judgment  as 
guardian  of  her  minor  sons.  The  entire  rights  and 
iuterests  of  Z's  heirs  were  sold  in  execution  of  the  decree 
so  obtained  by  J.  Subsequently  the  fraud  was  discovered, 
and  Zy8  sons  brought  a  suit  to  set  aside  the  execution  sale, 
and  to  recover  possession  of  the  property  first  mortgaged. 
In  regard  to  three- fourths  of  this  property,  they  prayed 
that  possession  might  be  awarded  to  them  by  establish- 
ment of  their  right  and  share  by  amendment  of  the  reve- 
nue papers.  In  regard  to  the  remaining  one-fourth,  they 
prayed  for  possession  by  right  of  iuheritance  to  Z,  by 
cancelment  of  the  execution-sale  and  of  the  fraudulent 
decree.  They  further  alleged  that  they  had  first  become 
aware  of  the  fraud  upon  the  day  when  they  obtained 
from  the  Registration  office  a  copy  of  the  novating  instru- 
ment in  which  the  fraudulent  entries  were  contained.  It 
was  held  that  the  Law  of  Limitation  applicable  to  the  case 
was  not  that  contained  in  Article  12,  nor  in  Article  144, 
but  that  contained  in  Article  95  of  schedule  2,  of  the  Limi- 
tation Act,  inasmuch  as  fraud  vitiates  all  things  and 
prevents  the  application  of  any  other  law  of  limitation 
than  that  specially  provided  for  relief  from  its  conse- 
quences.    Natha  Sing  v.  Jodha  Singh. <*> 

(O)     DwarkanathBhooyav.  Rajah  Ajoodhyaram  Khan,   Fraud  would 
was  regular  appeal,  257  of  1872,  decided  on  the  22nd  of  affected  \P°n 

fraudulent  sale 
to  the  benefit  of 
(1)  I.  L.  R.,  6  All.,  406.  section  18. 


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310  THE  8ECOND  SCHEDULE,  P1R8T  D1VJ810N — SUITS.        [AKT.  12 


Description  of  suit. 


Period  of 
limitation. 


Time  from-  which  period 
begins  to  ran. 


Part  IV. 
One  year. 

December,    1873.     In    this   case,  which  also   proceeded 
upon  the  fraudulent  sale   to  McArthur,  it  was  held  by 
Markby  and  Birch,  J.  J.,  that  where  the  allegations  in  a 
plaint  sufficiently  stated  that  the  plaintiffs  being  entitled 
to  property  and  being  in  enjoyment  thereof,  were  ousted 
therefrom  under  color  of  a  fictitious  revenue  sale  in  pur- 
suance of  fraudulent  contract,  the  fraud  being  go  contrived 
as  to  make  plaintiffs  believe  that  they  had  no  right  of 
action  at  all,  and  the  allegations  were  proved,  the  fraud 
would  entitle  the  plaintiffs  to  claim  the  benefit  of  section 
9  of  Act  XIV  of  1859  corresponding  to  section  18  of  tha 
Act  of  1877.(D 
if  setting  aside       (p)     After  the  death  of  the  widow  of  K,  the  plaintiff 
was  only  oolia-  sued    as  the  heir  of  K,   to   recover  certain  immoveable 
main  object  of   property  alleged  to  have  been  granted  to  the  widow  for  life 
necessary  that    by  K,  for  her  maintenance.    It  appeared  that  in  execution 

the  suit  should  i,«i  (     .  i  !•,•«•• 

nave  been  filed  of  a  decree  obtained  against  the  plaintiff  in  a  previous 
from  sale.  suit,  in  which,  upon  the  widow's  death,  he  was  sued  as 

representing  the  estate  of  the  widow,  the  property  in 
question  was  sold,  notwithstanding  objection  taken  by 
the  present  plaintiff  that  the  property  was  that  of  K. 
The  plaintiff's  suit  was  filed  more  than  a  year  after 
the  execution  sale,  and  it  was  objected  that  it  was  there- 
fore barred  under  this  Article.  It  was  held,  that  it  was 
not  necessary  that  the  suit  should  have  been  filed  within 
one  year  from  tlie  date  of  the  execution  sale  because  the 
setting  aside  the  execution  sale  was  oaly  collateral  to  the 
main  object  of  the  suit,  and  the  present  plaintiff  was  not 
a  party  in  her  own  character  to  the  suit  in  execution  of 
the  decree  in  which  the  property  was  sold.  Kali  Mohun 
Chuckerbutty  v.  Anandamoni  Dabee.W 

(1)  I.  L.  R.,  2  Calc,  8. 

(2)  9  Calc,  L.  R.,  18. 


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ART.  12]         THfc  o. 

"n  SCHEDPLB,  FIRST  DIVISION—  Bum,     •  3^ 


Description  of  sait. 


*  **  of  Time  from  which  period 


t%  ™r       r  begins  to  run 

Part  IV 


One  year. 

(q)     In  Suryanna  v.  Durgt,*1)  the  land  of  D  was  impro-   Suit  to  se*. 
perly   sold   in   execution  of  a  decree   of   a  Civil    Court   ^"brought 
obtained  against  S  for  arrears  of  revenue  by  the  assignee   confirmation 
of  the  revenue  of  the  lands  of  D  and  8.     The  suit  was 
brought  by  D  to  recover  her  land  from  the  purchaser  at 
the  court  sale.     It   was  held  that  the  suit,  not   having 
been  brought  within  one  year  from  the  date  of  the  con- 
firmation of  the  sale  was  barred  by  this  Article. 

(r)     In  Trimbak  Bawa  v.  Narayan  Bawa,<2)  plaintiff's   Son's  suit  to 
father's  right  to  a  third  share  of  the  management  of  cer-   pie  manage. 
tain  lands  granted  to  his  father  for  the  maintenance  of  one  year  after 
the  worship  of  a  God  of  a  temple  was  declared  by  a  decree   father's  right, 
in  a  suit  against  the  plaintiff's  uncle  and  the  uncle's  son.  ground  that  sale 
The  decree  directed  the  plaintiff's  father  to  pay  their  costs,  the  son's  right. 
for  which  the  plaintiff's  father's  one-third  share  was  sold 
in  auction  in  January,  1870,  and  the  purchaser  resold  it  to 
another  son  of  the  plaintiff's  uncle  in  May,  1870.     The 
plaintiff  filed  this  suit  in  August,  1879,  against  both  the 
fcons  of  his  uncle,  who  claimed  the  exclusive  management, 
to  recover  his  share  of  the  management.     It  was  not  dis- 
puted  that  the  trust  reposed   in   the    judgment- debtor 
could  not  be  attached  and  sold  in  execution  of  a  decree 
against  him.  Sargent,  C.  J.,  being  of  opinion  that  where  the  Observations  of 
founder  of  an  endowment  vested  in  a  certain  family  the 
management  of  his  endowment,  each   member  of  such 
family  succeeds  to  the  management,  performam  doni,  held 
that  on  plaintiff's  father's  death,  the  plaintiff's  right  to 
succeed  to  the  management  in  this  case  was  quite  unaffect- 
ed by  any  proceedings   in   execution  against  his  father 
during  his  lifetime. 

(s)     The  sale  of  tarwad  property  in  execution  of  a   Clause  (a)  inap- 
decree   passed   against  a   Karnavan,  in  a  suit  brought  Sior* members" 

suit  to  cancel 
court  sale  made 
(1)  I.  L.  R.,  7  Mad.,  258.      |      (2)  I.  L.  R.,  7  Bom.,  188. 


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Time  from  which  period 
begins  to  rim. 


.rfS.        [ART.  12 
812  THE  SECOND  SCHEDULE,  FIRST  DIVISION 

i  of 
limitation. 
Description  of  suit. 

Part  IV. 
One  year. 

against  him  without  alleging  in  the  plaint  that  he  was 

^  personally,   sued  as  such  and  that  tie  debt  was  binding  on  the  tarwad 

1  is  not  binding  on  the  members  of  the  tarwad.     Therefore 

this  Article  cannot  apply  to  a  suit  brought  by  the  junior 

members  of  the  tarwad  to  recover  the   land  sold.     Haji 

v  Atharaman  <1> 
Suit  by  vendee       (t)     In  Venkata  Narasiah  v  Subbamma,  W  plaintiff 

of  an  auction  .  •.*••,.       i  o»/\  i  i       » 

purchaser's        sued  to  eject  the  defendant  in  1879,  and  recover  lands 
held  by  defen-  which  he  had  purchased  from  a  widow  whose  deceased  hus- 

dant  as  auction 

purchaser  does  band  had  acquired  it  at  a  court  sale.     The  defendant 

not  fall  under 

this  Article.       pleaded  limitation  on  the  ground  that  her  deceased  hue- 
(Sept.  1881.) 

band  had  purchased  the  same  lands  at  a  court  sale  in 

1876..   The  Lower  Courts  held  that  the  suit  was  barred 

under  this  Article  as  it  was  substantially  brought  to  set 

aside  the  court  sale.     It  was  held  by  the  High  Court  that 

as  the  plaintiff's  vendor  was  not  a  party  to  the  decree  or 

the  execution  proceedings  under  which  the  defendant's 

husband  purchased  the  property,  it  was  not  necessary  for 

the  plaintiff  in  this  suit  to  set  aside  the  sale,  and  that  it  is 

not  enough  that  the  party  in  possession  is  a  purchaser  at 

Plaintiff  is  not  a  court  sale,  but  it  must  also  appear  that  the  plaintiff  is 

aside  court  sale,  bound  to  set  aside  that  sale  before  he  could  recover. 

Suit  by  auction        (ll)     In  Mahomed  Sayad  Phaki  v  Navroji  Balabhai,  <# 

SSher  for  pro-  on  the  17th  November,  1877,  a  certain  piece  of  land  des- 

cert(nca\eoT  for  cribed  in  the  proclamation  of  sale  as  "  Survey  No.  294, 

chase  money'"    Pot  No.  3,  measuring  24J  gunthas,"  the  boundaries  of 

enWre^property  which  were  also  set  forth,  was  sold  by  auction  in  execution 

to  Mm.     glven  of  a  decree  obtained  by  the  1st  defendant  against  defen- 

p  dants  Nos.  2,  3  and  4,   and  purchased  by  the  plaintiff. 

The  boundaries,  as  stated,  really  included  another  piece 

of  land,  Survey  No.  294,  Pot  No.  4,  which  comprised  3 

(1)  1.  L.  R.,  7  Mad.,  612.      |     (2)  I.  L.  R.,  4  Mad.,  178. 
(3)  I.  L.  R.,  10.  Bom.,  214, 


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AKT,  12]  THE  8KC0WD  SCHBDOLH,  F11WT  DIVISION SUITS.  '         313 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  .IV. 
One   year. 

acres  2\  gunthas.     This  latter  piece  of  land  was  put  up 

for  sale  on   the  following  day    and   was  purchased  by    . 

defendant  No.  5.     On  28th  November,  1877,  the  plaintiff 

applied  to  the  court  to  have  the  sale   set  aside  and  his 

money  returned  unless  he  was  put  in  possession  of  all 

the  land  included  in  the   boundaries    mentioned  in  the 

proclamation ;  but  his  application  was  refused,  and  the 

sale  was  confirmed  on  20th  July,  1878.     The  plaintiff  on 

the  3rd  July,  1881,  brought  tbe  present  suit,  praying  that 

he  might  be  put  into  possession  of  the  land  as  described 

in  the  certificate  of  sale,  which  was  identical  with  the 

proclamations,  and  included  Pot  No.  4,  or  that  the  1st 

defendant  might  be   ordered  to  pay  him  the  amount  of 

his    purchase-money  with    interest.      Both    the  Lower 

Courts  rejected  the  claim  as  barred.    It  was  held  that  the 

suit  regarded  as  one  to  set  aside  the  sale,  was  barred  by 

clause  A  of  this  Article.     It  was  further  held  that  the   Suit  regarded 

suit  regarded  as  one  for  compensation  was  not  barred,  as   aside  sale  was 

3  years  had  not  elapsed  since  the  confirmation  of  the  sale  this  Article.  7 

when  the  suit  was  brought;  Article  36  applying  only  to   suit  regarded  m 

suits   for  compensation  for   tortuous    acts   independent  sationwas  held 

of  contract ;  but   that  the  claim  for  compensation  was   years  had  not 

not  maintainable,  as  the  property  offered  for  sale  was   confirmation  of 

sufficiently   identified   by   the   description   as    "  Survey   it  does  not  com© 

No.  294,  Pot  No.  3,  containing  24f  gnnthas,"  and  the  se. 

statement   of   boundaries,  so  far  as   it  was   inaccurate, 

might  be  properly  regarded  as  falsa  demonstration 

(V)     Iu  Abul  Munsoor  v  Abdool  Hamid/1)  M  sold  to  8  Plaintiffs  suit 

for  possession 

her  rights  under  a  decree  for  mesne  profits  which  she  had  of  property 

.  purchased  by 

obtained  against  A  and  two  other  persons,  and  £  there-   his  2  joint  debt- 

i      -i      •  ore  fcnrous ft  »n- 

upon  proceeded  to  execute  the  decree  against  As  property  ?  other  in  execu. 

and  that  property  was  sold  in  execution  of  the  decree  ob-  stance  of  the 

*      *■        "  assignee  of  the 


(1)  I.  L.  E.  2,  Calc,  98. 
40 


decree  benami 


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314 


THE  SECOND  SCHEDULE,  FIRST  DIVISION — 8UIT8.  [ART.  12 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  rim. 


for  them,  is  a 
suit  to  set  aside 
sale  and  fall* 
under  this  Arti- 
cle. 
(August  1876.) 


Decree  though 
voidable,  sale 
under  it  is  bind- 
ing. 


Suit  to  set  aside 
fraudulent  deed 
under  color  of 
which  a  sale 
was  made  was 
held  net  affect- 
ed by  one  year's 
rule. 


Suit  was  not  to 
set  aside  sale 
for  irregularity 
or  for  any  other 
matter  refer- 
ring to  sale. 


Suit  to  set  aside 
Revenue   sale 
should   be 
brought  within 
one    year  from 
the  time  it  be- 
comes conclu- 
sive. 


Part  IV. 
One  year. 

tained  by  8,  and  was  purchased  by  B :  but  in  a  snit 
brought  by  A  for  a  declaration  that  8  was  not  the  real 
purchaser,  the  court  found  that  8  had  in  fact  purchased 
the  decree  benami  for  A'*  two  joint-debtors,  and  that  con- 
sequently he  had  no  right  to  execute  it  against  the  pro- 
perty of  A.  In  a  suit  brought  by  A  against  B  in  1874,  for 
the  purpose  of  recovering  the  property,  it  was  held,  that 
the  purchase  of  the  benefit  of  the  decree  by  A's  joint 
debtors,  although  it  had  the  legal  effect  of  satisfying  the 
judgment-debt  did  not  affect  the  decree  itself.  The 
decree  was  not  void,  but  only  voidable  and  the  sale  under 
it  binding  on  A.  The  suit,  therefore,  was  in  effect,  a  suit 
to  set  aside  a  sale  under  a  decree  within  the  meaning  of 
clause  14  of  schedule  2  of  Act  IX  of  1871,  and  in  as 
mnch  as  it  was  not  brought  within  one  year  from  the  date 
of  the  sale,  was  barred. 

(w)  In  Baboo  Kishen  Bullub  Mahatab  v  Roghoonun- 
dun  ThakoorW  the  suit  was  to  set  aside  a  fraudulent 
sale  which  was  followed  by  a  collusive  decree,  and  a  sale 
in  execution  of  the  property  purporting  to  be  conveyed  by 
the  fraudulent  deed  of  sale.  The  court,  therefore,  held 
that  the  one  year's  rule  did  not  apply.  The  suit  was  not 
one  to  set  aside  a  sale  in  execution  either  on  the  ground 
of  irregularity  or  other  matters  referring  to  the  sale 
itself,  but  to  get  rid  of  the  document  which  alone  made 
the  sale  valid  as  having  been  a  fraudulent  and  collusive 
transaction.  If  the  plaintiff  proved  his  allegations  of 
fraud,  the  sale  in  execution  might  stand  as  a  sale  of  the 
rights  and  interests  conveyed,  which  would  in  fact  be  nil. 

(X)  In  Karuppa  v.  Vasudeva,(2>  the  plaintiff's  lands 
were  sold  for  arrears  of  Revenue  and  bought  in  for  Govern- 
ment in  October,  1876,  and  sold  again  by  Government*  in 

(1)  6  W.  R„  305  |    (2)  I.  L.  R.,6  Mad.,  148. 


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ART.  12]         THE  SECOND  SCHEDULR,  FIRST  DIVISION — SUITS.  315 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  IV. 
One  year. 

September,  1879.     No  sale  certificate  had  been  obtained 
after  the  sale  in  1876,  under  Madras  Act  II  of  1864, 
section  38.     It  was  held  that  the  revenue  sale  of  1876,  was 
completed  at  the  latest  at  the  end  of  one  month  after  the    Sale  completed 
sale,  and  that  non-compliance  with  sections  36  or  38  of  the   the  end  of  one 
Madras  Act  did  not  affect  the  validity  of  the  purchase,    sale, 
there  being  no  provision  to  that  effect.     In  Raj  Chandra   c.  H.  also  held 
Chuckerbutty  v.  Kinoo  Khan/1)  it  was  held  that  a  suit 
to  set  aside  a  sale  for  Government  Revenue  must  be 
brought  within  one  year  from  the  date  when  the  sale  be- 
comes final  and  cod  elusive. 

(y)     In  Baskarasami  v.  Sivasami/2)  plaintiff  sues  the   Suit  brought  by 

a  lcosoo  or  ton* 

defendants   represented  by  the  agent  of    the  Court  of  ant  of  the  ae- 
Wards,  to  recover  a  certain  village  with  three  years'  pro-   cover  a  village 
fits.     By  an  agreement  of  July,    1868,   the  defendant's  of  rent  due  by 
.  father,  in  consideration  of  the  plaintiff's  promise  to  re-   that  notice  wm 
nounce  his  claim  to  the  zemindari,  gave  him  the  village   upon  Mm,  was 
in  question  and  agreed  to  have  the  kist  fixed  on  it.     In 
1869,  the  plaintiff,  in  consideration  that  a  low  kist  was 
fixed,  agreed  that  the  village  should  not  be  registered  in 
his  name  and  separated  from  the  zemindari.     In   1871, 
plaintiff  repudiating  the  agreements  sued  the  defendant's 
father  to  recover  the  zemindari  and  his  claim  was  even- 
tually rejected  by  the  Privy  Council.     In  1875,  while  the 
litigation  was  pending,  the  plaintiff,  on  the  7th  of  May, 
was  called  upon  by  the  Revenue  authorities  to  pay  the 
arrears  of  rent  due  on  the  village,  and  as  the  arrears  were 
not  paid,  the  village  was  sold  and  the  Collector,  as  the 
agent  of  the  Court  of  Wards,  purchased  it  on  behalf  of  the 
defendants.     The  plaintiff  brought  this  suit  in   1883  to 
recover  the  village,  alleging  that  the  sale  was  illegal  as 
the  notice  was  not  duly  served  upon  him.     It  was  held 


(1)  I.  L.  R.,  8  Oalc,  329.    |   (2)  I.  L.  B.,  8  Mad  ,  196. 


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816  THE  8BCOND  SCHEDULE,  FIB8T  D1VJ8I0N — SUITS.  [ART.  12 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
One  year. 

that  the  sale  was  binding  on  him  and  that  the  suit  was 

barred  bj  limitation. 

This  Article  In  Venkatapathi  v.  Subramanya/1)  plaintiff  sought  in 

to**  sSt  to  wt  April,  1883,  to  set  aside  the  sale  of  certain  land  sold  in 

lent  Revenue      October,  1881,  for  arrears  of  Revenue  under  Act  II  of  1864, 

arrears  of  Reve-  (Madras)  on  the  ground  of  fraud  and  to  recover  posses- 

nm'  sion  of  land  from  the  purchaser  who  was  alleged  to  be  a 

party  to  the  fraud.     The  Lower  Court  rejected  the  suit  as 

barred  by  this  Article.     It  was  held  that  the  suit  was 

governed  by  Article  95,  and  that  this  Article  (12)  which 

prescribes  a  period  of  one  year  for  suits  to  set  aside  sales 

for  arrears  of  Revenue  is  intended  to  protect  bond  fide 

purchasers  only. 

c.  h.  (z)     Section  33  of  Act  IX  of  1859,  provides :   "  no  sale 

pUkintiff"to  set  for  arrears  of  Revenue  or  other  demands  realizable  in  the 

anide  Revenue  .  _>  ..      ,  .  , 

sale  as  made     same  manner  as  arrears  of  Revenue  are  realizable,  made 
of  Revenue  were  after  the  passing  of  this  Act,  shall  be  annulled  by  a  Court 
held  cancellable  of  Justice,  except  upon  the  ground  of  its  having  been 
without  juris-    made  contrary  to  the  provisions  of  this  Act  and  then 
(Sept.  1868.)       only  on  proof  that  the  plaintiff  has  sustained  substantial 
injury  by  reason  of  the  irregularity  complained  of."     In 
Byjnath  Sahoo  v.  Lalla  Seetul  Pershad/2)  a  Butwara  was 
decreed  by  the  Civil  Court  which  made  provision  in  its 
decree  for  the  payment  of  the  expenses  of  partition  by 
certain  co-sharers  indicated.     On  proceedings  taken  be- 
fore the  Collector  in  pursuance  of  the  decree,  he  called 
upon  certain  co-sharers  (not  being  those  who  were  by  the 
Civil  Court  ordered  to  pay  the  expenses)  to  pay  the  ex- 
penses, (Ameen's  fees)  remaining  due  ;  and  on  failure  by 
such  co-sharers  to  comply  with  this  direction,  the  Collec- 
tor put  up  their  share  for  sale  as  for  an  arrear  of  Govern- 
ment Revenue.    The  co-sharers  whose  share  was  sold  with- 

(1)  I.  L.  R.,  9  Mad.,  457.    |       (2)  10  W.  R.,  F.  B.,  66. 


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ART.  12]  THK  8BC0NU  SCBKDULK,  FIRST  D1V18I0N 8UITS.  817 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  IV. 
One  year. 

out  making  an  appeal  to  the  Commissioner  of  Revenue 

under  section  33,  Act  XI  of  1859,  brought  a  suit  to  set 

aside  the  sale  and  to  recover  the  property,  alleging  that 

there  was  nothing  due  which  was  recoverable  as  an  arrear 

of  Government  Revenue,  and  that  the  provisions  of  the 

Act  did  not  apply  to  the  case.     It  was  held  that  the  suit   Sale  when  no 

would  lie  and  that  where  there  is  no  evidence  of  any  vemment  Re- 

j.  n  .  t_    •         j         x «v  •    •  venue  are  due 

arrears  of  Government  revenue  being  due,  the  provisions   cannot  be  said 
of  Act  IX  of  1859,  do  not  apply  as  the  sale  cannot  be  said  place  under  the 
to  have  taken  place  under  the  provisions  of  that  Act. 
Following  the  above  decison,  it  was  held  in  Sreemant  Lall 
Ghose  v.  Shama  Soonduree  Dossee/1)  that  the  sale  of  an 
.  estate  for  arrears  of  Revenue,  where  no  such  arrears  exist, 
is  null  and  void,  even  though  it  is  regularly  conducted 
and  the  purchase  is  made  bond  fide  and  that  a  decree   such  sale  being 
obtained  for  possession  by  the  original  owner  is  sufficient  decree  for  pos- 
without  a  special  declaration  that  the  sale  is  annulled,   annulling  sale 
This  was  followed  in  M angina  Khatook  v.  The  Collector 
of  Jessore.W    The  same  view  was  adopted  in  Baboo  Hur 
Gopal  Doss  v.  Ram  Gopal  Sahee,W  in  which  the  court  Before  Ameen's 
oBserve,  that  before  the  remuneration  of  an  Ameen  em-  can  be  leived 
ployed  to  effect   a  Butwarrah,  can  be  levied  from  the  vemment 

,    .       . ,  m    should  sanction 

parties  concerned  in  the  same  manner  as  an  arrear  of  it. 
revenue,  it  must  be  nanctioned  by  the  Board  and  Govern- 
ment, and  the  periods  and  proportions  in  which  it  is  to 
be  levied  must  be  determined  by  the  Board. 

(2-a)     In  Nawab  Sidhee  Nazir  Alikhan  v.  Ojoodhi-  Mortgagor's 
yaram  Khan/4)  the  mortgagee  in  possession,  and  another  tion  many  years 
having  sought  to  deprive  the  mortgagor  of  his  title  to  property  for  ar- 
redeem  by  means  of  a  secret  purchase  of  the  mortgaged  nue  held  not  af- 

.  fected   by  one 

estate  between  them  including  the  fraudulent  device  of  a  year's  rule  as 

the  sale  was  a 
device  to  effect 

(1)  12  W.  R„  276.  I  (3)  13  W.  R.,  381.  a  fraud* 

(2)  12  W.  R.,  311,  |  (4)  5  W.  R.  P.  C,  83. 


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318 


THK  8KCOND  8CHKDULI,  FIRST  DIVI8ION 8U1T8.  [AKT.  12 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


▲  co-sharer  ag- 
grieved  by 
Revenue  sale 
fraudulently 
brought  about 
by  another  co- 
sharer    might 
sue  for  re-con- 
veyance of  pro- 
perty,   though 
one  year  allow- 
ed by  Art.  14  of 
Act  IX  of  71  had 
elapsed. 


Order  men- 
tioned in  clause 
( b)  was  held  to 
mean  an  order 
of  the  nature  of 
a  decree  or  one 
made  in  judi- 
cial capacity. 


Part  IV. 
One  year. 

sale  by  auction  for  arrears  of  Revenue,  such  arrears  being 
designedly  incurred  by  the  mortgagee  in  possession,  it 
was  held  that  a  suit  for  redemption  and  for  possession 
instituted  many  years  after  the  sale  for  arreai-s  was  not 
barred  by  section  24  of  Act  I  of  1845.  If  a  mortgagee 
in  possession  fraudulently  allows  the  Government  Revenue 
to  fall  into  arrears  with  a  view  to  the  land  being  put  u  p 
to  sale  and  his  buying  it  in  for  himself,  and  he  does,  in 
fact,  become  the  purchaser  of  it  at  the  Government  sale 
for  arrears,  such  a  purchase  will  not  defeat  the  equity  of 
redemption. 

(2-b)  In  Bhoobun  Chunder  Sen  v.  Soonder  Surma  Mo- 
zoomdar/1)  one  of  several  co-sharers  had  fraudulently  con- 
trived to  have  an  estate  brought  to  sale  for  arrears  of 
Revenue  under  Act  XI  of  1859,  and  purchased  it  in  the 
Ben  ami  of  his  son.  The  plaintiffs  as  co  -sharers  sued  to 
set  aside  the  auction  sale  on  the  ground  of  fraud.  It  was 
held  that  the  plaintiff  could  maintain  the  suit  to  have  the 
property  reconveyed  though  the  period  limited  by  Article 
14  of  the  second  schedule  to  Act  IX  of  1871,  for  a  suit  to 
set  aside  the  sale  had  expired.  Although  there  was  a 
prayer  for  reversal  of  the  auction  sale,  the  court  refused 
to  se t  aside  the  sale,  but  gave  the  plaintiffs  the  relief 
which  they  sought  by  restoring  them  to  the  same  position 
as  they  were  before  the  sale.  This  ruling  has  been  refer- 
red to  in  Amirunessa  Khatoon  v .  The  Secretary  of  State  for 
India  in  Council. W 

(  2-C  )  The  order  of  a  Collector  or  other  Officer  of  reve- 
nue as  the  word  is  used  in  the  latter  portion  of  clause  3, 
of  section  1,  of  Act  XIV  of  1859,  means  an  order  of  the 
nature  of  a  decree,  or  made  by  the  Collector,  or  other 
Revenue  officer  in  his  Judicial  capacity.     Where  a  piece 

(1)  I.  L.  R.,  3  Calc,  800.    |      (2)  I.  L.  R.,  10  Calc,  63. 


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ART.  13]  THB  8KC0ND  SCHEDULE,  FIB8T  DIVISION — SUITS. 


319 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  IV. 
One  year. 

of  land  embraced  within  the  operation  of  the  Revenue 
Survey,  and  subjected  to  a  defined  assessment,  was  put 
up  for  sale  by  the  Collector  in  consequence  of  the  occu- 
pant refusing  to  pay  a  fine  to  be  allowed  to  continue  in 
occupation  of  it,  and  was  purchased  by  one  of  the  defen- 
dants, and  the  occupant,  asserting  that  he  had  been 
wrongly  dispossessed,  sued  to  set  aside  the  sale,  and  to  be 
declared  entitled  to  recover  the  land  and  retain  possession 
of  it,  on  condition  of  paying  the  assessment  as  settled 
upon  it  by  the  Revenue  officers,  but  delayed  bringing  his 
suit  until  June,  1869,  the  sale  having  taken  place  in 
January,  1867,  it  was  held  that,  though  more  than  one 
year  had  elapsed  from  the  date  of  the  sale,  the  suit  was 
not  barred  under  the  provisions  of  clause  3,  section  1  of 
Act  XIV  of  1859.  Sakharam  Vithal  Adhikari  v.  The 
Collector  of  Ratnagiri.*1) 


13. — To  alter  or  set  aside  a 
decision  or  order  of  a 
Civil  Court  in  any  pro- 
ceeding other  than  a 
suit. 


One  year 


(a) 


Construction 
of  the  Article  by 
0.  H. 


The  date  of  the  final 
decision  or  order  in 
the  case  by  a  Court 
competent  to  deter- 
mine it  finally. 

No.  15,  Act  IX ;  Sec.  1,  CI.  5,  Act.  XIV.)  This 
Article  is  only  a  reproduction  of  the  corresponding  Arti- 
cle 5  of  Act  IX  of  1871,  which  contained  no  provisions 
similar  to  those  of  Article  11  of  the  later  Act  (XV  of  1877) 
consequently  until  the  introduction  of  Act  XV  of  1877, 
question  very  frequently  arose  whether  orders  which  were 
affected  by  the  special  limitation  of  one  year  provided  for 
by  the  last  12  words  of  section  246  and  last  clause  of  sec- 
tion 269  of  Act  VII  of  1859,  fell  within  Article  15.  The 
Calcutta  High  Court  held  that  Article  15  was  not  a  re- 
enactment  of  the  repealed  portion  of  section  246  of  C.  P.  C. 

(1)  8  B.  H.  G.  R.  A.  C,  219. 


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320  THE  SECOND  8CHKDULI,  FIRST  DIVISION 8UITS.  [ABT.  13 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  IV. 
One  year. 

of  1859,  aud    that   unsuccessful   claimant    might  bring 

regular  suits  within  the  ordinary  period  allowed  for  this 

suit,    (Koylash    Chunder  Paul    Chowdhiy  v.   Preonath 

Roy  Chowdhry),*1)  while  the  Bombay  High  Court  held 

otherwise.     (Krishnaji  Vithal  v.  Bhaskar  Rangnath.)(*) 

Construction  of       The  Madras  and  the  Allahabad  High  Co  arts,  while 

agreeing  with  the  Calcutta  High  Court  in  thinking  that 

a  suit  for  possession  brought  after  an  order  passed  under 

section  246  of  Act  VIII  of  1859,  was  not  a  suit  to  set  aside 

an  order  within  the   meaning  of   this   Article,  were,  of 

opinion,  that  the  repeal  of  the  section  of  the  old  Code  did 

not  deprive  that  order  of  the  character  which  attached  to 

it  when  made   (Venkatachala  v.  Appathorai)<3)   (Badri 

Prasad  t?.  Muhammad  Yusuf  ),(*)  or  in  other  words,  that  the 

order  operated  as  final  adjudication  upon  the  right  of  the 

parties  to  it  until  it  was  set  aside  by  a  regular  suit. 

To  decide  that  a       (b)     In  Lak  Narain  Singh  v.  Ranee  Myna  Kooer/5) 

in  this  Article!  plaintiff  sought  to  establish  his  title  and  recover  posses- 

whether  the       sion  of  certain  land  as  to  which  a  summary  decision  had 

summary  deci- 
sion oouid  be  set  been  given  in  favor  of  the  defendant  under  Act  XIX  of 
up  as  bar  to  the 
suit.  1841,  which  was  enacted  for  the  protection  of  moveable 

and  immoveable  property  against  wrongful  possession  in 
cases  of  successions.  Section  17  of  the  Act  provides,  that 
"  nothing  contained  in  the  Act  shall  be  an  impediment  to 
the  bringing  of  a  regular  suit."  Peacock,  C.  J.,  observes  ; 
"  if  the  summary  order  made  under  this  Act  is  to  be  no 
impediment  to  bringing  a  regular  suit,  there  is  no  neces- 
sity for  setting  aside  that  order.  Then  the  question  is 
within  what  time  is  the  regular  suit  to  be  brought  to  try 
the  title  to  land  and  to  be  put  into  possession  of  it  ?  That 
summary  order  cannot  be  pleaded  or  set  up  as  a  bar  to  the 

(1)  I.  L.  R.,  4.  Calc,  610.      I        (3)  I.  L.  R.,  8  Mad.,  134. 

(2)  I.  L.  R.,  4  Bom.,  611.        |        (4)  I.  L.  R.,  1  All ,  381. 

(5)  7  W.  R.,  199. 


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i 


ART.  13]         THB  SECOND  8CHBDULH,  PIR8T  DIVISION — SUITS. 


321 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  IV. 
One  year. 

maintenance  of  the  suit  to  try  the  title  and  to  be  pnt  into 
possession  under  that  title. 

(C)     Second  clause  of  section  9  of  the  Specific  Belief  Decision  under 

section  9  of  the 

Act  of  1877,  provides  that  "  nothing  in  this  section  shall   specific  Relief 

,  .  .  i , .  i  i  .      .  i  *    Acfc»  1877»  *■ no 

bar  any  person  from  suing  to  establish  his  title  to  such  bar  to  suit  on 

property  and  to  recover  possession  thereof."     A  decision 

passed  under  this  section  is  no  bar  to  the  maintenance 

of  a  suit  on  title  and  the  plaintiff  need  not  seek  for  the 

cancellation  of  the  order. 

(d)  A  Hindu  family  being  heavily  oppressed  with  Suit  for  pro- 
debts,   ancestral   and  otherwise,  the  two  elder  brothers  guardian  under 
of  the  family,  for  themselves,  and  as  guardians  of  their  section  is,  is  not 
minor  brother,  under  Act  XL  of  1858,   applied  to  and  aside  an  order 
obtained  from  the  District  Judge  an  order  under  sec-  SfofAct  ixof 

*  1871 

tion  18  of  the  Act,  for  the  sale  of  several  portions  of 
the  ancestral  estate,  and  sold  the  same  under  registered 
deeds  signed  by  the  Judge.  Within  twelve  years  after  the 
registration,  the  adopted  son  of  the  minor  brother  brought 
several  suits  against  the  purchasers  to  set  aside  the  sales 
and  recover  back  his  share  of  the  property  alleging  that 
the  two  elder  brothers  had  made  the  sale  fraudulently 
and  illegally  to  satisfy  personal  debts  of  their  own.  It 
was  held  that  a  suit  of  this  nature  is  not  a  suit  to  set 
aside  an  order  of  a  Civil  Court  under  Article  15,  schedule 
2,  Act  IX  of  1871.     Sikher  Chund  t>.  Dulputty  Singh.O) 

(e)  In  Kallee  Prosunno  Mookerjee  v.  Sreenutty  Toy-  An  order  under 
lash  Moonee  Debia,(s>  plaintiff  and  defendant  applied  to  i860  granting 
the  Judge  for  a  certificate  under  Act  XXVII  of  1860,  one  of  two  rival 
each  asserting  right  under  separate  wills  said  to  have  been  not  beset  aside 
left  by  the  deceased.  The  Judge  granted  certificate  to  {Je  for  property! 
the  defendant.     The  plaintiff  after  one  year  from   the 

order  brought  a  regular  suit  for  possession  of  the  property 


(1)  I.  L.  R.,  5  Calc,  363.    | 
41 


(2)  8  W.  R.,  126. 


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322  THE  SECOND  8CHEDULE,  FIR8T  DIVI8ION — SUITS.         [ART.  13 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  IV. 
One  year. 

under  the  will.     Lock,  J.,  observes  "  in  a  case  under  Act 
XXYII  of  1860,  the  Judge  has  to  try  summarily  the 
right  of  the  parties  to  hold  a  certificate.     Under  that 
certificate,  the  party  is  enabled  to  collect  debts  due  to  the 
estate  of  the  deceased,  and  his  receipts   fdr  money  re- 
covered while  he  holds  the   certificate   are   a  complete 
if  the  party  fail-  protection  to  the  debtors.     If  the  party  who  fails  to  get 
ncate  seeks  to  the  certificate  seeks  to  set  the  order  aside,  he  must  bring 
der,  he  must      his  suit  within  one  year  from  the  date  of  that  order,  and 
year.  the  effect  of  the  decree  in  his  favor  would  be  to  make  the 

previous  holder  of  the  certificate  accountable  to  him  for 
monies  collected ;  but  if  the  party  do  not  care  to  disturb 
that  order,  a  suit  brought  by  him  to  obtain  possession  of 
the  property  of  the  deceased  upon  proof  of  his  title,  is  not 
barred  because  it  is  not  brought  within  one  year  from 
the  date  of  the  order."  In  Bai  Kashi  v.  Bai  Jamna/1) 
plaintiff  applied  in  1877,  for  a  certificate  of  heirship  to 
one  T,  her  husband's  uncle,  who  had  died  in  1 876.  The 
defendant  opposed  the  application,  and  alleged  that  T 
had  left  a  will  in  her  favour.  On  the  28th  July,  1877,  the 
District  Judge  made  an  order  rejecting  the  plaintiff's 
application  and  granting  a  certificate  to  the  defendant. 
In  1879,  the  plaintiff  brought  the  present  suit,  claim- 
ing to  be  entitled  to  the  property  left  by  T.  It  was 
contended  (inter  alia)  for  the  defendant  that  the  plain- 
tiff's suit  was  barred,  she  having  failed  to  apply  to  set 
aside  the  order  granting  the  certificate  to  defendant  within 
one  year  from  the  date  of  that  order.  The  court  of  first 
instance  overruled  the  objection,  and  awarded  plaintiff 
most  of  her  claim.  But  the  Lower  Appellate  Court  re- 
versed the  Lower  Court's  decree,  holding  the  suit  barred. 
It  was  held,  restoring  the  decree  of  the  court  of   first 

(1)  I.  L.  R.,  10  Bom.,  440. 


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ART.  13]  THB  8EC0ND  SCHEDULE,  PiBBT  DIVISION — SUITS.  323 

Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  IV. 
One  year. 

instance,  that  the  plaintiff's  snit  was  not  barred.  A 
certificate  of  heirship  confers  only  the  right  of  manage- 
ment of  the  property  of  the  deceased,  and  is  intended  to 
give  security  to  third  persons  in  dealing  with  the  person 
who  claims  to"  be  the  heir.  Where  the  right  of  the  person 
to  whom  the  certificate  is  granted  to  be  the  heir  of  the 
deceased,  is  in  controversy,  there  is  no  necessity  to  have 
the  order  granting  him  the  certificate  set  aside,  and  the 
question  whether  the  snit  to  determine  the  right  claimed 
is  in  time,  is  to  be  determined  by  the  sections  of  the 
limitation  Act  relating  to  suits  for  the  possession  of 
property. 

(f )     In  Gogaram  v.  Kartick  Chnnder  Singh/1)  Peacock,  suit  for  refund 
C.  J.,  observed  in  April,    1868,  that   a  suit  to  recover  distributed  un- 
money  which    has  been    erroneously    paid  to    a  rival  of  o.  p.  c.  ism 
decree-holder  under  section  270  of  Act  VIII   of   1859,  ed°Ma?u5X 
would  lie,  and  that  the  suit  was  to  recover  the  money  t?n*ea»ioe  the 
from   the   defendant  by  setting   aside  the  order  of  the  <>*&*<*  *«*«>• 
Judge.      In    Wooma   Moyee    Burmonya  v.  Ram  Buksh 
Chettangee/*)  it  was  held  in  June,  1871,  that  a  suit  will 
lie  by  a  prior  attaching  creditor  to  compel  a  decree-holder 
whose    attachment  is    subsequent    in    date,    to    refund 
money  obtained  by  him  under  an  order  of  the  Judge  of  a 
Subordinate  Court  in  contravention  of  the  provisions  of 
section  270,  Code  of  Civil  Procedure,  but  it  must  be  a 
suit  to  set  aside  the  Judge's  order. 

Section  295,  clause  5,  to  proviso  C,  expressly  enacts  "if 
all  or  any  of  such  assets  be  paid  to  a  person  not  entitled  to 
receive  the  same,  any  person  so  entitled  may  sue  such 
person  to  compel  him  to  refund  the  assets."  This  clause 
does  not  provide  that  the  order  shall  be  final  as  sections 
283,  332,  and  335  do. 

(1)  9  W.  R.,  614.  |  (2)  16  W.  R.,  11. 


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324  THE  SECOND  SCHEDULE,  FIRST  DIVISION — 8U1T8.  [ART.  13 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  IV. 
One  year. 

Salt  to  set  aside       In  execution  of  a  decree  against  six  persons,  the  plain- 
bution  made  by  tifFs  had  certain  property  brought  to  sale,  the  proceeds 
ing  for  payment  of  which  were  brought  into  o+urt.     The  defendants,  who 
money  and  for  held  five  separate   decrees  against  some  of  the  persons 
held  barred  by    against  whom  the  plaintiffs'  decree  was  obtained,  applied 
to  have  the  amount  in  court  rateably,  distributed,  and  in 
accordance  with  an  order  of  the  court,  dated  13th  Sep- 
tember, 1880,  this  was  done,  the  proceeds  being  distribut- 
ed in  proportion  to  the  amounts  of  the  decrees.     In  a 
suit  brought  on  24th  August,  1883,  against  the  defen- 
dants on  the  allegation  that  the  plaintiffs  were  entitled 
to  the  whole  of  the  proceeds,  or  in  the   alternative  for 
distribution  on  a  different  principle,  it  was  held  the  suit 
was  one  to  set  aside  the  order,  and  not  having  been  brought 
within  one  year  from  the  date  of  the  order,  was  barred  by 
limitation  under  Article  13,  schedule  2  of  Act  XV  of  1877. 
Gowri  Prosad  Kundu  v.  Bam  Ratan  Sircar/1)  This  case 
was  distinguished  from  Ram  Kishan  t>.  Bhawani  Das,(>> 
in  which  the  order  having  been  passed  without  jurisdic- 
tion was  a  nullity.    (  Vide  Note  I,  under  Article  62). 
Neither  this  Ar-       (g)     In  Kristodass  Kundoo  v.  Ramkant  Raj  Chowdry,(s> 
M  apply  to  an   a  portion  of  certain  land  which  was  under  mortgage  was 
Sr^Conector  iS  sold  for  arrears  of  revenue  which  the  mortgagors  neglec- 
an  order  fm*  ted  to  pay.     The  defendants  having  held  money  decrees 
diction?  against  the  mortgagors,  attached  the  surplus  sale  proceeds 

which  remained  in  the  Collector's  Office.  The  mortga- 
gee's application  of  May,  1876,  for  the  release  of  the 
surplus  sale  proceeds  was  rejected  by  the  Judge  on  the 
ground  that  he  had  no  jurisdiction  to  determine  the 
priority  of  claims  to  money  in  deposit  in  the  Collector's 
Court.  The  mortgagee's  application  of  May,  1876,  to  the 
Collector  was  rejected  and  an  order  was  passed  to  the 

(1)  IL.R.,  13  Calc,  159.      |       (2)  I.  L.  E.,  1  All.,  338. 
(3)  I.  L.  R.  6  Calc,  142. 


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ABT.  13]  THE  SBCOND  8CHKDULB,  FIKST  D1VI810N 8U1T8.  325 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  IV. 
One  year. 

effect  that  the  money  could  not  be  paid  to  any  person 
other  than  the  mortgagors.  The  mortgagee  sued  the 
mortgagors  in  January,  1877,  for  money  by  a  declaration 
of  his  lien,  and  obtained  a  decree,  declaring  that  the  pro- 
perties do  stand  subject  to  the  lien.  The  plaintiff  in  this 
case  as  assignee  of  the  decree,  proceeded  to  attach  the 
surplus  sale  proceeds,  and  the  defendant  opposed  it.  The 
Judge,  in  August,  1877,  declined  to  take  any  action  for 
the  reasons  recorded  in  the  order  of  May,  1876.  The 
plaintiff  brought  this  suit  to  set  aside  that  order.  It  was 
contended  that  the  suit  was  barred  under  Article  15  or  16 
of  Act  IX  of  1871,  because  it  was  not  instituted  within 
one  year  from  the  date  of  the  order  of  the  Judge  or 
Collector.  Prinsep,  J.,  observes :  "  we  have,  however,  no 
doubt  that  these  articles  do  not  apply,  inasmuch  as  in 
neither  case  was  there  any  order  passed  adverse  to  the 
mortgagee's  right  after  any  adjudication  thereof.  The 
orders  passed  simply  amounted  to  a  declaration,  that 
neither  the  Judge,  nor  the  Collector,  considered  that  he 
had  jurisdiction  to  act  as  desired.  The  general  Law  of 
Limitation  for  suits  to  establish  a  right  would,  therefore, 
apply  to  the  present  suit."  Mussamut  Moomeedunnissa  v.  Order  refusing 
Mahomed  Ali/1)  was  a  suit  to  establish  a  right  to  a  share  application  an. 
in  property  in  respect  of  which  the  Judge  who  received  1841. 
an  application  under  Act  XIX  of  1841,  an  Act  for  the 
protection  of  moveable  and  immoveable  property  against 
wrongful  possession  in  cases  of  successions  refused  to 
entertain  it  and  referred  the  plaintiff  to  a  regular  suit 
without  even  citing  the  defendant.  It  was  held  that  the 
suit  may  be  brought  within  12  years  from  the  date  of 
cause  of  action,  and  not  within  one  year  from  the  date  of 
disallowance  of  the  said  application. 

(1)  1  W.  R.,  4Q 


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326 


THK  SECOND  SCHEDULE,  F1R8T  DIVI810N — BUIT8.  [AKT.  13 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Bait  praying  to 
set   aside   an 
order  passed 
without   juris- 
diction  is  not 
governed  by 
this  Article. 


Observations 
of  Spankie,  J. 


Part  IV. 
One  year. 

(h)  In  Bam  Kishen  v.  Bhawani  Das,*1)  certain  pro- 
perty was  attached  by  two  decree-holders  and  sold  at  the 
instance  of  the  creditor  who  had  a  charge  thereon  and 
sale  proceeds  were  paid  to  him.  The  money  decree-holdet 
claimed  preference  as  first  attaching  creditor,  which  was 
allowed  by  the  Lower  Court,  but  reversed  in  appeal,  where- 
upon he  was  paid  the  money  which  the  other  decree-holder 
was  directed  to  refund.  He  then  brought  a  regular  suit 
to  establish  his  prior  right  to  the  money  and  for  the 
cancelment  of  the  Judge's  order,  alleging  that  the  same 
was  made  without  jurisdiction.  It  was  contended  that 
the  suit  was  barred.  Spankie,  J.,  observes :  "  I  was  dis- 
posed to  consider  that  clause  15  might  apply.  But  on 
fuller  consideration,  I  do  not  think  it  is  applicable.  A 
suit  under  this  clause  is  brought  to  alter  or  set  aside 
a  decison  or  order  of  the  Civil  Court  in  any  proceeding 
other  than  a  suit  where  the  court  was  competent  to  de- 
termine it  finally.  The  court  therefore  must  have  juris- 
diction, which  the  Judge  had  not  when  he  reversed  the 
Munsif 's  order  giving  the  sale-proceeds  to  the  plaintiff. 
The  order  therefore  is  of  itself  a  nullity  and  could  have 
no  effect.  But  even  if  the  Judge  had  had  jurisdiction,  I 
am  doubtful  whether  the  clause  would  have  applied  as 
the  plaintiff  asks  for  something  more  than  the  reversal, 
or,  as  he  calls  it,  the  nullification  of  the  order."  In  Debi 
Prasad  v.  Jafar  AH/2)  plaintiff's  suit  in  the  Revenue 
Court  for  a  declaration  that  he  was  not  liable  to  pay  rent 
to  the  defendant  was  decided  against  him  in  1865,  and  he 
continued  payment  of  rent  up  to  August,  1877,  when  he 
brought  a  suit  in  the  Civil  Court  to  have  his  proprietary 
title  declared  and  the  decree  of  the  Revenue  Court  null 
It  was  held  that  Articles- 14  and  15  of  Act  IX 


and  void. 


(1)  I.  L.  R.,  1  All.,  883.    |      (2)  I.  L.  R.,  8  Bom.,  40. 


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ART.  13]     .     THE  SECOND  SCHEDULE,  FIRST  DIVISION — SUITS.  327 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  IV. 
One  year. 

of  1871  were  not  applicable,  as  there  was  no  decree  or 
order  which  the  plaintiff  was  bound  to  have  set  aside 
within  one  year. 

(i)     In    Mussamut    Aleo-Unissa    t;.    Buldeo    Narain   To  Mt  Mide  a 
Singh,(D  it  was  held  by  Peacock,  C.  J.,  that  the  final  J^J0^^ 
decision,  award,  or  order  comtem plated  by  clause  5,  sec.  1,  J^  t£j0Jthe 
Act  XIV  of  1859,  is  a  final  decision  of  the  court  which  has  a^E*886*  °n 
competent  jurisdiction  to  determine  the  case  finally,  and   **eb*  1867#* 
not  the  order  of  a  court  superior  to  such  court  dismiss- 
ing an  appeal  from  the  decision  of  such  court  for  want  of 
jurisdiction. 

(j)     In   Iyyasami  t?.   Samiya,<2)    an  application   was  Suit  by  ^  xm. 
made  under  section  322  of  the  Code  of  Civil  Procedure  SSSSm^under 
for  possession  of  property  and  rejected  and  the  applicant  Se^cf  p^c.  °L 
brought  a  suit  to  recover  the  property  more  than  one  year  S&^rSSe?*7 
subsequent  to  the  order  rejecting  the  application.     It  was  Jai^to^sue5*!© 
held  that  the  suit  was  not  barred  either  by  Article   11   Jan<Uie<L0rder 
or  Article  13  of  schedule  2  of  the  Indian  Limitation  Act, 
1877.     The  court  observe,  "  the  provisions  of  Article  11 
in  the  second  schedule  to  the  Limitation  Act  do  not  apply 
in  terms  to  a  suit  brought  to  test  an  order  made  under 
section  332  of  the  Civil  Procedure  Code,  and  we  are  not 
warranted  in  applying  that  Article  to  any  suits  other  than 
those  to  which  express  reference  is  made  in  the  Article. 
It  is  possible  and  was  probable  that  mention  of  section 
332  of  the  Code  of  Civil  Procedure  was  omitted  by  over- 
sight from  this  clause.     Nor,  in  our  judgment,  is  this 
suit  governed  by  the  provisions  of  Article  13,  for  that 
applies  to  decisions  or  orders  passed  in  a  proceeding  other   An  ordep  m  wak 
than  a  suit,  whereas  an  order  in  an  execution  proceeding  J^SS^,^ 
is  an  order  in  a  suit.     It  may  also  be  questioned  whether  J^a1*^  wT*' 
this  suit  can  be  properly  described  as  a  suit  to  set  aside  S^dln?  Se&r' 


than  a  suit. 


(1)  7  W.  R  ,  161.  |      (2)  I.  L.  R.,  8  Mad.,  82. 


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328 


THE  SECOND  8CHIDULB,  FIR8T  DIVISION — BUTTS.         [ART.  14 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  IV. 
One  year. 

an  order,  for  it  is  a  suit  to  establish  the  right  of  the  plain- 
tiff. The  order  under  section  332  simply  decided  the 
question  of  possession,  and  is  by  the  terms  of  that  section 
made  dependent  on  the  result  of  the  suit  to  establish  the 
right.  It  is,  therefore,  unnecessary  for  the  plaintiff  to 
sne  to  have  it  cancelled." 
Does  not  affect  (k)  Where  the  plantiff  was,  by  an  order  of  the  Civil 
ra  not  party  Court  in  execution  of  a  decree  to  which  he  was  no  party, 
proceedings. °n  ejected  from  the  possession  of  a  muttah,  and  he  brought 
a  suit  more  than  three  years  afterwards  to  eject  the  legal 
representative  of  the  person  who  was  so  put  in  possession, 
it  was  held  that  the  suit  was  not  barred  under  clause 
5,  section  I,  Act  XIV  of  1859,  as  that  clause  is  only 
applicable  to  orders  which  the  Civil  Courts  are  empowered 
to  pass  deciding  matters  of  dispute  properly  raised  for 
hearing  and  determination  by  a  summary  proceeding 
between  the  parties  disputing.  Appundy  Ibram  Sahib 
v.  Mrs  Maria  Seth  Sam/1) 

One  year 


The  date  of 
or  order. 


the  Act 


14. — To  set  aside  any  act  or 
order  of  an  officer  of 
Government  in  his 
official  capacity,  not 
herein  otherwise  ex- 
pressly provided   for. 

Suits  falling  (a)     (No  16,  Act  IX)  ;  Act  XIV  of  1859  contained  no 

ole  had  e  years  express  provision  for  a  suit  to  set  aside  an  official  act, 
of  1869,  sec.  i,  and  consequently  in  Kebul  Bam  v.  The  Government/2) 
which  was  a  suit  to  set  aside  an  order  of  the  Commis- 
sioner of  Chotanagpore,  directing  the  plaintiff  to  pay 
Government  Revenue  at  a  certain  rate,  it  was  held  that 
the  suit  fell  under  clause  16,  section  1,  Act  XIV  of  1859 
which  allowed  six  years  for  suits  not  expressly  provided 
for. 

(1)  4  M.  H.  C  E.,  297.      |  (2)  6  W  R.,  47. 


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AET.  15 16]    THE  SKCOND  SCHKDULB,  FIRST  DIVISION — SUITS. 


829 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


(b) 


Part  IV. 
One  year. 

Luchmon  Sahai  Chowdhry  t?.  Kanchun  Ojhain,*1) 


Bait  for  title 

was  brought  by  a  purchaser  of  certain  land,  praying  to   lector's  refusal 

set  aside  an  order  passed  by  Revenue  authorities  under  plaintiff's  name 

Bengal  Act  VII  of  1876,  to  register  his  name  as   pro-  affected  by  this 

prietor  and  also  for  a  declaration  of  right  and  title  to,  and 

confirmation  of  possession  in  property.     It  was  held  that 

this  Article  had  no  application,  because  it  was  simply  a 

Buit  for  declaration  of  plaintiff's  title  and  the  prayer  for 

the  reversal  of  the  order  was  a  mere  surplusage.     It  has 

been  further  held  that  a  Civil  Court  has  no  power  to  set 

aside  an  order  passed  under  the  Land  Registration  Act, 

VII  of  1876,  B.  C 

15. — Against  Government  to 
set  aside  any  attach- 
ment, lease  or  transfer 
of  immoveable  pro- 
perty by  the  revenue 
authorities  for  arrears 
of  Government  reve- 
nue. 

(a)    (No  17,  Act  IX ;  sec.  1,  clause  4,  Act  XIV.)    Clause 
4,   section   1 


One  year 


When  the  attach- 
ment, lease  or 
transfer  is  made. 


Buit  to  set  aside 
of    Act  XIV  of    1859,   has    been    split  into    ure  under  Regu" 

Articles  15  and  16  in   this  schedule.     In  Chittro  Narain 


v.  The  Assistant  Commissioner  of  the  Southal  Pergun- 
nahs,(2>  it  was  held  that  the  power  vested  in  the  authorities 
by  Regulation  XXIX  of  1814  to  transfer  the  tenure  of  a 
Ghatwal  who  becomes  a  defaulter,  is  not  put  an  end  to  by 
the  money  being  offered  before  the  tenure  is  actually 
made  over  to  another  person,  and  that  the  snit  comes 
within  clause  4,  section  1,  Act  XIV  of  1859. 


1814,  was  held  to 
fall  under  cl.jL 
sec.  1,  Act  XTv 
of  1868. 


16. — Against  Government  to 
recover  money  paid 
under  protest  in  satis- 

(1)  I.  L.  E.,  10  Calc,  525. 
42 


One  year 


|When    the 
is  made. 


payment 


(2)  14  W.  R.,  203. 


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330 


THE  8EC0ND  SCHEDULE,  FIRST  DIVISION — SUITS.  [ART.  16 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


faction  of  a  claim 
made  by  the  revenue 
authorities  on  account 
of  arrears  of  revenue 
or  on  account  of  de- 
mands recoverable  as 
such  arrears. 


Part  IV. 
One  year. 


Dom  not  apply 
to  a  suit  for 
money  paid  on 
account  of  ad- 
mitted liability. 


Suit  brought 
frithin  12  years 
to  declare  a  rent 
free  land  which 
the  Collector  as- 
sessed, held  not 
barred  and  one 
year's  rent  only 
was  held  re- 
coverable. 


What  will 
amount  to  pay- 
ment "under 
protest." 


(a)  (No.  18,  Act  IX ;  sec.  1,  cl.  4,  Act  XIV.)  In  Shadee 
Lai  v.  Musumat  Bhawanee/1*  it  was  held  that  clause  4  of 
Section  1  of  Act  XIV  of  1859  (which  corresponds  with 
this  Article)  was  not  applicable,  where  the  Revenue  for 
recovery  of  portion  of  which  the  suit  was  brought  was  a 
payment  made  to  the  Government  on  account  of  a  clear 
and  admitted  liability,  the  object  being  to  save  the  estate 
from  sale. 

(b)  Where  a  person  claiming  to  hold  land  free  of 
Government  assessment  was  compelled  by  the  Collector  to 
pay  the  same  and  he  afterwards  brought  a  suit  to  establish 
his  right,  it  was  held  that  the  cause  of  action  first  arose 
when  the  right  was  actually  interfered  with  by  the  Col- 
lector compelling  payment  of  the  rent,  and  that  as  the  suit 
was  brought  within  twelve  years  from  that  date,  it  was 
not  barred,  and  although  he  has  paid  the  assessment  for 
several  years  under  protest,  one  year's  arrears  alone  were 
recoverable  under  Act  XIV  of  1859,  section  1,  clause  4. 
Bhujang  Mahadev  v.     The  Collector  of  Belgaum.W 

(C)  In  Kebul  Ram  v.  The  Government/3)  Seton- 
Karr,  J.,  observes,  an  appeal  to  the  higher  authority,  set 
over  the  authority  which  disallows  any  request,  is  a  native's 
way  of  protesting.  It  is  his  mode  of  attempting  to  vindi- 
cate hie  rights,  and  what  he  does  when  the  attempt  has 
failed,  may  be  said,  looking  to  native  modes  of  thought 
and  action,  to  be  done  under  "  protest."  A  law,  it  seems 
to  me,  should  be  interpreted  according  to  the  feelings  and 

(1)  2  N.-W.  P.  H.  C.  R.,  52.    |      (2)  11  B.  H.  C.  R.,  1. 
(8)  5  W.  R..  47. 


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ART.  1 7]         THK  88COND  8CHBDPL1,  FIRST  DIVISION*— SUITS. 


081 


Period  of 
limitation. 


Description  of  suit. 


Time  from  which  period 
begins  to  ran. 


Pakt  IV. 
Ope  year. 

habits  of  those  for  whom  it  is  meant,  and  this  remark 
particularly  applies   to    inhabitants    of  non-Regulation 
Provinces,  who  are   admittedly  accustomed  to   a  more 
patriarchal  kind  of  rule  than  the  residents  of  more  civi- 
lised tracts.     The  plaintiff  had  stated  his  objections  in   Payment  after 
vain  to  both  Collector  and  Commissioner,  and  I  should  appeal  make* 
not  expect  any  further  or  more  formal  protest  on  his  part.  unde?aprotest." 
(d)     In  Krishnamma  v.  Achayya,*1)  plaintiff  sued  in  Suit  to  recover 
1877  for  a  piece  of  ground  said  to  have  formed  a  part  of  plaintiff?  hold- 
his  holding.     The  defendant  contended  that  the  land  was  included  by  de- 
not  included  in  the  plaintiff's  uncle's  puttab,  but  was  fleer  as  poram- 
classed  as  poramboke  at  the  time  of  demarcation  in  1860,  fail  under  this 
and  was  assigned  to  him  by  the  Collector  in  1875.     The 
District  Judge  treating  the  suit  as  one  brought  to  set  aside 
the  official  act  of  the  demarcation  officer,  rejected  the  suit 
as  barred  by  this  Article.     It  was  held  that  the  suit  was 
not  necessarily  to  set  aside  an  official  act,  but  one  to  recover 
immoveable  property,  and  that  the  plaintiff  has  only  to 
show  that  he  has  had  possession  within  12  years  prior  to 
the  suit.     It  is  observed  that    it    was  not  shown  that 
the  demarcation  interfered  with  plaintiff's  possession  so 
as  to  give  rise  to  a  cause  of  action  in  1860. 

17. — Against  Government  for    One  year 
compensation  for  land 
acquired     for     public 
purposes. 

(ft)  (No.  19,  Act  IX.)  James  Hills  v.  The  Magistrate  of  suit  after  one 
Nuddea,<2>  was  a  suit  for  compensation  for  certain  lands  Su/'to  Parlous 
taken  by  the  Magistrate  for  roads. 


The  date  of  determin- 
ing the  amount  of 
the  compensation. 


year,   thou, 
due  to  vai 

The    plaintiff    had    vejSmentindi- 

applied  for  compensation  in  the  usual  course,  but,  after  tiff's  appiica-  * 
various  delays  on  the  part  of  Government,  had  been  re-  as  barred, 
fused  compensation  and  referred  to  the  Civil  Court  after 


(1)  I.  L.  B.,  2  Mad.,  306. 


,(fc)  11  W.  R.,  1. 


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332 


THE  8EC0ND  SCHEDULE,  FIRST  DIVISION — SUITS.    [ART.  18 — 19 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  IV. 
One  year. 

the  period  of  limitation  had  expired.  It  was  held — ( 1 ),  that 
the  plaintiff  was  not  entitled  to  any  consideration  for  his 
delay  in  instituting  a  suit,  which  was  the  remedy  prescri- 
bed by  law  ;  and  that  the  mere  fact  of  Government  receiv- 
ing Revenue  for  the  estate  in  which  the  lands  are  situated 
did  not  prevent  the  law  of  limitation  operating  in  its 
favor,  as  it  would  in  the  case  of  any  private  individual  in 
adverse  possession;  (2),  that  plaintiffs  cause  of  action 
arose  from  the  time  when  he  was  dispossessed,  and  not 
from  the  date  when  his  application  for  compensation  was 
rejected ;  and  (3),  that  a  letter  from  the  Commissioner 
of  Revenue,  expressing  his  willingness  to  recommend  to 
Government  to  pay  for  the  land,  was  not  an  acknowledg- 
ment in  writing  within  section  4,  Act  XIV  of  1859. 


The  date  of  the  refu- 
sal to  complete. 


18. — Like  suit  for    compen-   One  year 
sation   when    the    ac- 
quisition is   not   com- 
pleted. 

when  acquisi-  (a)  (No.  20,  Act  IX.)  Under  section  54  of  Act  X 
pieted  Collector  of  1870,  the  Government  are  not  bound  to  complete  the 
mine  the  acquisition  of  any  land  except  in  the  case  provided  for  by 

section  44,  which  relates  to  lands  rendered  permanently 
unfit  to  be  used.  Clause  2,  section  54,  provides  that  when 
the  Government  declines  to  complete  the  acquisition,  the 
Collector  is  bound  to  determine  the  amount  of  compensa- 
tion due  for  the  damage,  if  any,  done  to  the  land  by  the 
clearing,  digging,  or  marking  it  out,  and  to  pay  such 
amount  to  the  person  injured. 

When   the  imprison- 
ment ends.  *  • 


pensstion  for 
damage  if  any. 


19. — Compensation  for  false  I  One  year 
imprisonment.  | 

(a)     (No.  21,  Act  IX), 


what  conBti-  W     ^o.  zi,  Act  UL).     See  Note  J,  under  section  23, 

priaonment.       page  203.     "  To  constitute  the  injury  of  false  imprison- 
ment, there  are  two  points  requisite  :  1.  The  detention  of 


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AST.  20]        THX  SECOND  SCHEDULK,  FIEST  DIVISION — SUITS. 


333 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which 
period  begins  to  run. 


Part  IV. 
One  year. 

the  person  ;  and  2,  The  unlawfulness  of  such  detention. 
Now  every  confinement  of  the  person  is  an  imprisonment, 
whether  it  be  in  a  common  prison  or  in  a  private  house,  or 
in  the  stocks,  or  even  by  forcibly  detaining  one  in  the 
street ;  (2  Inst.  589).  Unlawful,  or  false  imprisonment  con- 
sists in  such  confinement  or  detention  without  sufficient 
authority ;  which  authority  may  arise  either  from  some 
process  from  the  courts  of  justice,  or  from  some  warrant 
from  a  legal  officer  having  power  to  commit  under  his 
hand  and  seal,  and  expressing  the  cause  of  such  commit- 
ment ;  or  from  some  other  special  cause  warranted  for  the 
necessity  of  the  thing, — such  as  the  arresting  of  the  felon 
by  a  private  person  without  warrant,  or  the  imprisonment 
of  mariners  for  the  public  service. (*)  The  Indian  Statute 
does  not  provide  against  execution  even  of  Civil  processes 
on  Sundays.  This  Article  only  applies  to  suits  for  com- 
pensation and  not  for  the  removal  of  the  injury. 

(b)     In  Bheema  Charlu  v.  Danti  Murti/2)  it  was  held  when  a  wrong- 
that  where  a  wrong  person  is  arrested  and  imprisoned  rested  under  de- 
under  a  decree  to  which  he  was  no  party,  the  person  moving  the 
setting  the  court  in  motion  is  not  liable  for  such  arrest  bie  if  he  did  not 
and  imprisonment  if  he  did  not  obtain  the  process  fraudu-  fraudulently, 
lently  or  improperly. 

20. — By  executors,  adminis- 
trators or  representa- 
tives under  Act  No. 
XII  of  1855  f to  enable 
the  executors,  adminis- 
trators or  representa- 
tives to  sue  and  be  sued 
for  certain  wrongs  J 

(a)     (No.  12,  Act  IX.)     This  Article  applies  to  suits  by  Act  xn  of  1866 
executors,  Ac.,  while  Article  33  applies  to  suits  against  tors  of  adeceas- 

ed  person  to 
1)  Stephen's  Commentaries,  Vol.  Ill,  p.  607.  |  (2)  8  M.  H.  C.  R.,  38. 


One  year 


The  date  of  the  death 
of  the  person 
wronged. 


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334  THI  SECOND  SCHEDULE,  FIRST  DIVISION— SUITS  [ART.  20 

I 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  IV. 
One  year. 

sue  and  be  sned   them.     Section  1  of  Act  XII  of  1855,  enables  executors, 
administrators  or  representatives  of  any  deceased  person 
to  sue  "  for  any  wrong  committed  in  the  lifetime  of  such 
person,  which  has  occasioned  pecuniary  laws  to  his  estate, 
for  which  wrong  an  action  might  have  been  maintained 
by  such  person,"  and  be  sned  for  any  wrong  committed  by 
him  in  his  lifetime  for  which  he  would  have  been  subject 
to  an  action.     In  both  cases,  the  act  provides  that  "  such 
wrong  8 hall  have  been  committed  within  one  year  before 
his  death." 
Act  xn  of  1866       (b)     Sreemutty  Chundermonee  Dassee  v.  Santo  Moo- 
to^ng^wEich  nee   Dassee/1)    was   a  suit  to  recover  the   value  of  an 
to  tb^represen-  elephant  wrongly  sold  by  the  defendant's  husband  since 
SS&V&L     deceased.     It  was  held  that  Act  XII  of  1855  does  not 
apply  to  wrongs  which  do  not  survive  to  the  represen- 
tatives of  a  deceased  person.     The  heir  of  a  deceased 
husband  is  liable  to  make  good  the  wrong  committed  by 
the    husband.     The    plaintiff's  right  of  suit   does   not 
abate  by  the  death  of  the  husband,  but  survives  against 
it  applies  to      his  heir.     In  Nujuf  Ali  v.  Patterson/2)  it  was  held  that 
which  did  not      Act  XII  of  1855   applies   to  suits   for  wrongs,  which 

survive  to  or  .       x,       .  .  .      .  _.  ,  ^. 

against  exeou-     according  to  the  law  then  in  force  did  not  survive  to  or 

tors,  Ac.  .  ,      .    . 

against  executors,  administrators  or  representatives.  A 
suit  for  recovery  of  moneys  due  by  an  agent  of  the  Official 
Assignee  of  an  insolvent  debtor's  estate,  and  for  delivery 
of  certain  papers  and  documents  belonging  to  such  insol- 
vent's estate,  will  lie  against  the  legal  representative  of 
such  agent  after  his  decease  and  the  right  of  action  will 
not  expire  on  his  death. 
Rights  of  action  (c)  Sec.  268,  Act  X  of  1865.  All  demands  whatso- 
and  against  exe-  ever  and  all  rights  to  prosecute  or  defend  any  action  or 
a  deceased  per-  special  proceeding,  existing  in  favour  of  or  against  a  per- 


son. 


(1)  1  W.  B.,  261.        r|   (2)  2  ff.-W.  P.  a.  C.  E..  103. 


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ART.  21]        TH1  8BCOND  8CHBDTJLE,  FIRST  DIVISION— SUITS. 


335 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  IV. 
One  year. 

eon  at  the  time  of  his  decease,  survive  to  and  against  his 
executors  and  administrators ;  except  causes  of  action  for 
defamation,  assault  as  defined  in  the  Indian  Penal  Code, 
or  other  personal  injuries  not  causing  the  death  of  the 
party ;  and  except  also  cases  where,  after  the  death  of  the 
party,  the  relief  sought  could  not  be  enjoyed,  or  granting 
it,  would  be  nugatory.  A  sues  for  a  divorce.  A  dies. 
The  cause  of  action  does  not  survive  to  his  representative. 
(See  the  corresponding  section  89  of  Act  V  of  1881). 


The  date  of  the  death 
of  the  person  killed. 


21. — By  executors,  adminis-  One  year 
trators  or  representa- 
tives under  Act  No. 
XIII  of  1855  (to  pro- 
vide compensation  to 
families  for  loss  occa- 
sioned by  the  death  of 
a  person  caused  by 
actionable  wrong.) 

(a)     (No.  13,  Act  IX.)  Act  XIII  of  1855,  provides  com-  a  suit  is  now 

'.,'.,.  '   _  .         ,,  ,        ,.    maintainable 

pensation  to  families  for  loss  occasioned  by  the  death  of  against  a  per. 
..,,  «••■<■       -rm        8on  wno  °y  *  *• 

a  person  by  actionable  wrong.    Section  1  runs  thus :  When-  wrongful  act 

ever  the  death  of  a  person  shall  be  caused  by  wrongful  act,  fault  caused  the 

,  ,    .      ,.  ,,,  .  ,  ,*»,.,  death  of  an- 

neglect  or  default,  and  the  act,  neglect  or  default  is  such  as  other  person, 
would  (if  death  had  not  ensued)  have  entitled  the  party 
injured  to  maintain  an  action  and  recover  damages  in 
respect  thereof,  the  party  who  would  have  been  liable  if 
death  had  not  ensued,  shall  be  liable  to  an  action  or  suit 
for  damages,  notwithstanding  the  death  of  the  person 
injured,  and  although  the  death  shall  have  been  caused 
under  such  circumstances  as  amount  in  law  to  felony  or 
other  crime.  And  it  is  enacted  further,  that  every  such 
action  or  suit  shall  be  for  the  benefit  of  the  wife,  husband, 
parent  and  child,  if  any,  of  the  person  whose  death  shall 
have  been  so  caused,  and  shall  be  brought  by  and  in  the 


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336 


THE  SECOND  SCHEDULE,  FIE8T  DIVISION — 8UIT8.    [ART.  22 — 23 


Description  of  Bait. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  IV. 
One  year. 

name  of  the  executor,  administrator,  or  representative 
of  the  person  deceased ;  and  in  every  such  action  the 
court  may  give  such  damages  as  it  may  think  propor- 
tioned to  the  loss  resulting  from  such  death  to  the  parties 
respectively,  for  whom  and  for  whose  benefit  such  action 
shall  be  brought,  and  the  amount  so  recovered,  after 
deducting  all  costs  and  expenses,  including  the  costs  not 
recovered  from  the  defendant,  shall  be  divided  .amongst 
the  before-mentioned  parties,  or  any  of  them,  in  such 
shares  as  the  court  by  its  judgment  or  decree  shall 
direct.  In  any  such  suit,  the  executor,  <fcc.,  may  insert  a 
claim  for,  and  recover  any  pecuniary  loss  to  the  estate 
of  the  deceased  occasioned  by  such  wrongful  act,  neglect 
or  default. 


22. — For  compensation  for 
any  other  injury  to  the 
person 


One  year 


When   the   injury 
committed. 


is 


This  Article  re- 
lates to  injuries 
affecting    a 
man's  limbs, 
Ac. 


Intention  on  the 
part  of  the 
wrong-doer  is 
not  necessary. 


(a)  (No.  22,  Act  IX  ;  sec  1,  clause  2,  Act  XIV.)  This 
Article  relates  to  immediate  or  consequential  injuries 
affecting  a  man's  limbs  or  body  or  health.  Articles  23, 
24  and  25  separately  provide  for  injuries  to  personal 
liberty  and  to  reputation.  Bodily  injury,  though  the 
consequence  of  a  lawful  act  or  a  mere  mischance  may  be 
a  tort,  and  the  existence  of  an  evil  intention  in  the  mind 
of  the  wrong-doer  is  not  essential.  So  much  so,  that  even 
a  lunatic  will  be  civilly  answerable  for  his  torts,  though 
wholly  incapable  of  design.  W 


23. — For  compensation  for  a 
malacious  prosecution. 


When   com- 
plaint  is   the 
only  act  done, 
the  date  of  the 


One  year  ...  When  the  plaintiff  is 
acquitted,  or  the  pro- 
secution is  otherwise 
terminated. 

(a)     (No.  23,  Act  IX.)     In   Mndvirapa   Kulkarni   v. 
Fakirapa  Kenardi,<*>  A  on  the  26fch  of  July,  1878,  com- 
(1)  Collet  on  Torts,  para.  31.  |      (2)  I.  L.  R.,  7  Bom.,  427. 


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ART.  23]  THE  SECOND  SCHEDULE,  FIRST  DIVISION — SUITS.  337 


Description  of  suit 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  IV. 
One  year. 

plained  to  the  Magistrate  that  B  committed  theft  of  his  complaint  is 
grain.     The  Magistrate,  of  his  own  motion,  attached  the  wrong, 
grain  on  the  10th  of  August,  1878,  pending  inquiry  into 
the  complaint,  then  proceeded  with  the  inquiry  and  dis- 
missed   the   complaint,   hut    continued  the   attachment 
pending  the  decision   of  the   Civil    Court  to  which  he 
referred  the  parties.     A,  in  1879,  brought  a  suit  against 
B  to  establish  his  title  to  the  grain,  which  was  finally 
rejected  on  the  21st  of  June,  1880,  and  B  recovered  his 
grain  on  the  30th  of  September,  1880,  but  in  a  damaged 
condition.     B,  on  the  13th  of  November,  1881,  sued  A 
for  damages  for  wrongful  detention  of  his  grain,    and 
its  consequent  deterioration   in  quality  and  value.     It 
was  held  that  the  date  of  the  complaint  was  the  date  of 
the  wrong,  and  limitation  ran  from  that  date,  or,  at  the 
latest,  from  the  date  of  the  attachment,  and  that  Bys  suit 
was  therefore  barred,  whether  the  period  applicable  was 
one  year  under  Article  23,  or  two  years  under  Article  36  of 
schedule  2  of  Act  XV  of  1877.    West,  J.,  observes:  "in  in  the  case  of  a 
the  case  of  a  prosecution  the  conduct  of  the  prosecutor  is  Sn^runs'from 
looked  on  as  a  continuous  act  prolonged  until  the  close  of  case, 
the  case,  and  limitation  is  to  be  computed  from  that  point 
(Act  XV  of  1877,  sch.  2,  Art.  23)  ;  but  when  the  com- 
plaint made  is  the  only  act  done,  the  date  of  the  complaint 
is  that  of  the  wrong — see  Huree  Narain  Mytee  v.  Ojoo- 
dhya  Ram  Sein  (10  Cal.  W.  R.,  308).    And  the  Limitation 
Act  does  not  prescribe  or  allow,  (see  Goma  Mahad  Patil  v.  Act  does  not  ai- 
Gokaldas  Khimji ;  I.  L.  Rq  2  Bom.  74)  any  deduction  on  on*  acoount°of 
account  of  irregular  proceedings  of  a  Magistrate  not  moved  ceeaung?  ot°k 
by  the  defendant  in  the  suit."  ^*^8 

(b)     In  Bhyrub  Chunder  v.  Mohendro  Chuckerbutty/1)    Cause  of  action 

it  has  been  observed  that  if  a  complaint  came  before  a  crue  until  pro- 
secution ends 
,..   „-w-r*,,«  in  plaintiff's 

(1)  13  W.  R.,  118.  favour. 

43 

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338 


THE  SECOND  SCHEDULE,  FIRST  DIVISION — SUITS.  [ART.  24 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  IV. 
One  year. 

criminal  tribunal  competent  to  determine  the  matter  npon 
its  merits,  then,  no  doubt,  a  cause  of  action  would  not 
accrue  to  the  plaintiff  until  those  merits  had  been  de- 
termined by  that  tribunal  in  his  favour.  A  suit  cannot  be 
brought  for  a  malicious  prosecution,  when  the  prosecution 
end 8  in  a  conviction.  Quaere. — When  a  complaint  is  drop- 
ped by  the  prosecutor  while  in  the  hands  of  the  police,  does 
the  cause  of  action  to  the  party  charged  in  a  suit  for  da- 
mages accrue  at  the  time  when  the  information  was  first 
laid.  In  Obedul  Hossein  v.  Goluck  Chunder/1)  it  was  held 
that  for  a  suit  for  damages  for  malicious  prosecution,  time 
runs  from  the  date  of  the  final  discharge  of  the  plaintiff 
preferred;  from  custody  and  not  from  the  date  on  which  the  charge 
was  preferred.  This  case  was  distinguished  from  Hari- 
narayan  Maiti  v.  Ajodhya  Bam  Shi/2)  in  which  plaintiff's 
house  was  searched  and  his  business  interrupted,  and  he  in 
various  ways  injured  upon  a  certain  untrue  and  malicious 
statement  made  by  the  defendant  before  the  Magistrate 
on  the  23rd  January,  1866.  Plaintiff  sued  for  damages 
in  March,  1867.  As  there  was  nothing  to  show  that  any 
of  the  resulting  damages  which  would  constitute  a  cause 
of  action  occurred  within  12  months  previous  to  the  suit, 
the  plaintiff's  claim  was  held  barred. ' 


Time  held  to 
ran   from  final 
discharge   of 
plaintiff    and 
not   from  the 
date  that  cl 
was 


24 For     compensation 

libel. 


for  I  One  year 


When  the  libel  is  pub- 
lished. 


Libel  denned.  (a)  (No.  24,  Act  IX ;  sec.  1,  cl.  2,  Act  XIV.)  A  libel 
"  may  be  defined  to  be  some  writing,  picture,  or  the 
like,  containing  malicious  and  defamatory  matter  (besides 
defamatory  libels,  there  are  those  of  a  blasphemous,  sedi- 
tious, or  immoral  kind,  as  to  which  vide  post,  Vol.  IV,  p. 
344.)"<8) 

(1)  8  W.  E.,  443.  |         (2)  1  Beng.,  S.  N.,  17. 

(3)  Stephen's  Commentaries,  Vol.  Ill,  p.  503. 


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AST.  25]         THE  SBCOND  SCHEDULE,  FIKST  DIVISION — SDIT8. 


839 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  IV. 
One  year. 

(b)  In  Robert  and  Charriol  v.  Lombard*1)  it  was  held 
that  limitation  rang  from  the  time  when  the  libel  is 
published,  and  not  when  the  plaintiff  becomes  aware  of  it. 

(0)     "  In  an   action   for  libel   brought  in   1848,   the 
statute  was  pleaded  to  the  first  count,  which  complained 
of  a  libel  printed  and  published  in  the   Weekly  Despatch,   ^tive^teVea 
to  wit,  on  the  19th  September,  1830,  and  it  was  held  that   * UmifcBtion- 
the  plea  was  negatived  by  proof  of  the  sale  of  one  copy 
just  before  the  action  commenced."*2) 


Time  runs  from 
the  date  of  pub- 
lication. 


Sale  of  one  copy 
of  the  libel  with- 
in one  year  of 


25. — For    compensation 
slander. 


for  One  year  . . .  When  the  words  are 
spoken,  or,  if  the 
words  are  not  ac- 
tionable in  them- 
selves when  the  spe- 
cial damage  com- 
plained of  results. 

(a)      (No.    25,   Act    IX;    sec    1,    clause    2,    Act    XIV.)    Words  of  aland- 
x    '       v  '  er  which  are  in 

"  The  principal  cases  in  which  words  will  be  considered  themselves  ac- 

.  tionable. 

defamatory,   so   as   to   amount    to   the   legal    injury    of 

which  we  now  speak,  are  as  follows :  viz.,  where  a  man 
utters  anything  of  another  (which  may  either  endanger 
him  in  law,  by  impeaching  him  of  some  punishable  crime, — 
as  to  say  that  he  hath  poisoned  another,  or  is  perjured ; 
or  which  may  exclude  him  from  society, — as  to  charge 
him  with  having  an  infectious  disorder  tending  so  to 
exclude  him ;  or  which  may  impair  or  hurt  his  trade  or 
livelihood, — as  to  call  a  tradesman  a  bankrupt,  a  physi- 
cian a  quack,  or  a  lawyer  a  knave  ;)  or  which  may  dis- 
parage him  in  an  office  of  public  trust, — as  to  say  of  a 
Magistrate  that  he  is  partial  and  corrupt."(3> 

(b)     "  If  I  say  of  a  Commission  Agent,  that  he  is  an  Words  which 

.    ,    ,  ,   i  .,,  .are  not  action- 

unprmcipled  man,  and  borrows  money  without  repaying  able  in  them- 

(1)  1  Ind.  Jnr.,  N.  S.  192.   |  (2)  Darby  and  Boaanquet,  p.  29.       ^Sts!**111**8  "" 
(3)  Stephen's  Commentaries,  Vol.  Ill,  p.  499. 


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340 


THE  SECOND  SCHEDULE,  FIRST  DIVISION — SUITS.  [ART.  26 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  IV. 
One  year. 

it,  this  is  not  in  itself  actionable ;  bnt  if  I  say  this  to  a 
person  who  was  going  to  deal  with  him,  and  he  forbear 
to  do  so  in  consequence  of  its  being  said, — here,  there 
being  special  damage,  an  action  will  lie  against  me.  So 
if  I  impute  heresy  or  adultery  to  another,  if  he  can  show 
that  he  was  thereby  exposed  to  some  temporal  damage,  he 
may  sue  me  in  a  court  of  common  law  and  recover  damages 
for  such  injury ;  and  the  case  is  the  same  if  I  impute 
nnchastity  to  a  woman,  and  she  can  shew  that  she  has 
thereby  lost  a  marriage  or  some  pecuniary  advantage. 
Slander  of  title.  And  in  like  manner,  if  I  slander  another  man's  title,  by 
spreading  (not  in  the  bond  fide  assertion  of  my  own  title) 
such  injurious  reports  (as,  if  true,  would  deprive  him  of 
his  estate — as  to  call  the  issue  in  tail,  or  one  who  hath 
land  by  descent,  a  bastard, — it  is  actionable,  provided  any 
special  damage  accrues  to  the  proprietor  thereby  ;  as  if  he 
loses  an  opportunity  of  selling  the  land.")  (*) 
in  such  cases  (o)  Cases  of  slander  actionable  when  the  special 
rrom^the  tSSe  damage  complained  of  results,  come  under  section  24- 
mage^Sfts?**  The  plaintiff  it  is  apprehended  cannot  recover  subsequent 
damages  by  series  of  subsequent  actions.  See  Land  v. 
Walker  in  (Note  D,  under  section  24,  p.  208.) 


One  year 


When  the  loss  occurs. 


26. — For  compensation  for 
loss  of  service  occa- 
sioned by  the  seduction 
of  the  plaintiff's  ser- 
vant or  daughter. 

(a)  (No.  27,  Act  IX.)  A  parent  is  enabled  to  claim 
redress  for  a  battery,  or  other  ill  usage  inflicted  on  his 
child  or  even  for  the  seduction  of  his  daughter.  Where  a 
parent  is  plaintiff  in  a  case  of  seduction,  the  courts  inclin- 
ed to  relieve  him,  as  much  as  possible,  from  any  difficulty 
connected  with  proof  of  the  loss  of  service ;  considering 
(1)  Stephen's  Commentaries,  Vol.  Ill,  pp.  500-501. 


Action   under 
this   Article   is 
brought  to  re- 
pair the  out- 
rage  done  to  pa- 
rental feeling. 
A  master  may 
sue  for  debauch- 
ing his  servant. 


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ART.  26]         THE  SECOND  SCHEDULE,  FIRST  DIVISION — SUITS.  341 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  IV. 
One  year. 

the  action  as  brought  in  substance  to  repair  the  outrage 
done  to  parental  feeling, — and  it  has  been  held,  therefore, 
in  such  an  action  the  mere  residence  of  the  child  with 
him,  at  the  time,  affords  sufficient  proof  that  the  relation 
of  master  and  servant  existed  between  them.  No  action 
for  seduction  can  in  any  case  be  maintained  by  the 
daughter  herself. (*)  A  master  standing  in  loco  parentis 
may,  according  to  English  Law,  maintain  an  action  for 
debauching  his  servant. 

(b)     In  Ram  Lai  v.  Tula  Ram,<2)  A  Hindu  father  sued         a.  h. 
for  compensation  for  the  loss  of  his  daughter's  services  in  suit  for  compen- 
consequence  of  her  abduction  by  the  defendant,  and  for  ioss°of  his  abt 
the  costs  incurred  by  him  in  prosecuting  the  defendant.   tor's  service, 
The  daughter  was  a  married  woman,  deserted  by  her  hus-   taiSaWe.  mam* 
band  and  at  the  time  of  her  abduction,  she  was  living   <AugU8t  1881,) 
with  her  father  attending  to  his  household   affairs  and 
rendering  him  services.     Stuart,  C.  J.,  was  of  opinion  that 
the    suit    was    maintainable    under    the   circumstances, 
while    Oldfield,   J.,    held  otherwise.     Stuart,  C.  J.,   ob-   observations  of 
serves :    "  now   it   appears   to   me  that   it   would   be   a     fcua^t,    *  ' 
very  unsatisfactory  state  of  the  law  in  this  country  if 
such  conduct  against  the  peace  and  honor  of  respectable 
families  were  allowed  to  pass  without  a  remedy,  and  I 
think  we  must  for  that  remedy  hold  that  the  suit  at  the 
instance  of  the  father  was  properly  and  validly  entertain- 
ed by  the  Lower  Courts."     Oldfield,  J.,  while  holding  that   observations  of 
the  father  can  recover  the  costs  of  prosecuting  the  defen-         e  * 
dant,  observes :  "  the  claim,  however,  in  respect  of  the  loss 
of  the  daughter's  services  stands  on  quite  a  different  foot- 
ing.    It  has  evidently  been  brought  with  reference  to  the 
law  of  England  as  to  an  action  for  seduction,  where  the 
basis  of  the  action  is  founded,  not  upon  the  wrongful  act 

(1)  Stephen's  Commentaries,  Vol.  Ill,  p.  567. 

(2)  I.  L.  R.,  4  All.,  97. 


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342 


THE  8BC0ND  8CHKDULK,  FIRST  DIVISION — SUIT8.         [ART.  27 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  IV. 
One  year. 

of  the  defendant  in  the  seduction,  but  upon  the  loss  of 
service  of  the  daughter,  in  which  service  the  parent  is 
supposed  by  a  fiction  to  have  a  legal  right  or  interest. 
It  would  be  very  undesirable  to  introduce  a  fiction  of  this 
kind  into  the  law  of  this  country."  Hindu  women's 
"  position  is  not  one  of  servitude  from  which  any  contract 
of  service  can  be  implied." 


One  year 


The     date 
breach. 


of     the 


Inveigling  or 
hiring  another's 
servant  is  an  in- 
jury to  master. 


27. — For  compensation  for 
inducing  a  person  to 
break  a  contract  with 
the  plaintiff. 

(a)     (No.  28,  Act  IX.)     The  inveigling  or  hiring  an- 
other's servant  which  induces  a  breach  of  contract  is  an 
injury  to  the  master  and  his  action  for  compensation  comes 
under  this  Article. 
Defendant  per-       (b)     In  Bowen  v.  HalU1)  it  was  held  that  an  action 

suading   third       ...  _ 

person  to  break   J  ic8   against  a   third   person   who    maliciously    induces 

contract   is   an  ,,,.  *  i  , 

actionable  act    another  to  break  his  contract  of  exclusive  personal  service 

if  injury  ensues 

from  it.  with  an  employer,  which  thereby  would  naturally  cause, 

and  did  in  fact  cause,  an  injury  to  such  employer,  al- 
though the  relation  of  master  and  servant  may  not  strictly 
exist  between  the  employer  and  employed.  Brett,  L.  J., 
observes :  "  the  act  complained  of  in  such  a  case  as  Lum- 
ley  v.  Gye  (2  B.  and  B.  216  ;  22,  L.  J.,  Q.  B.  463),  and 
which  is  complained  of  in  the  present  case,  is  therefore, 
because  malicious,  wrongful.  That  act  is  a  persuasion 
by  the  defendant  of  a  third  person  to  break  a  contract 
existing  between  such  third  person  and  the  plaintiff.  It 
cannot  be  maintained  that  it  is  not  a  natural  and  pro- 
bable consequence  of  that  act  of  persuasion  that  the  third 
person  will  break  his  contract.  It  is  not  only  the  natural 
and  probable  consequence,  but  by  the  terms  of  the  pro- 

(1)  L.  E.,  Q.  B.  6,  p.  833. 


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ART.  28]  THB  SECOND  8CHKDULK,  FIRST  MVI8ION SOITS. 


343 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  IV. 
One  year 

position  which  involves  the  success  of  the  persuasion,  it 
is  the  actual  consequence." 

(c)     In  Meer  Mahomed   Kazem  v.  Forbes^1)  it   was  inducing  ryota 

...  to  break  oon- 

held  that  a  suit  by  an  indigo  planter  against  an  instigator  tract  with 
brought  under  section  3,  Act  X  of  1836,  is  governed  by  tivate  indigo, 
the  six  years'  limitation  provided  by  clause  16,  section  1, 
Act  XIV  of  1859.     In  this  case  it  was  alleged  that  at  the 
instigation  of  the  defendant,  the  plaintiffs  ryots  refused 
to  grow  the  indigo  for  which  they  had  contracted. 

28. — For    compensation    for  One  year    . . .  The  date  of  the  dis- 
an  illegal,  irregular  or  tress, 

excessive  distress. 

(No.  29,  Act  IX.)  Section  140  of  the  Bengal  Tenancy 
Act  VIII  of  1865,  provides  for  suits  for  compensation  for 
wrongful  distraint.  This  Act  repeals  Act  VIII  of  1869, 
B.  C.  which  by  sections  97  to  100  specially  provided  for 
distraint  of  crops  and  suits  in  respect  of  such  distraint. 

(a)     In  Ladji  Naik  v.  Musabi,<s)  the  Collector,  under  the  Suit  for  money 
Vatandor's  Act  3  of   1874,  ordered  that  a  contribution  of  what***?8 
should  be  paid  by  the  holders  of  a  part  of  the  Shetsandi  apneai  does  not 
Vatan  towards  the  annual  emolument  of  the  office  holder.  Article,  bnt 
The  defaulter's  property  was  sold  in  May,  1881,  as  for  an 
arrear  of  land  revenue,  and  part  of  the  sale  proceeds  was 
paid  to  the  office  holder.     On  the  defaulter's  appeal  in  the 
meantime,  the  Revenue  Commissioner  reduced  the  amount 
of   contribution  in   December,    1881.     The   defaulter   in 
April,  1884,  sued  to  recover  from  the  office  holder   the 
difference  between  what  he  had  received  under  the   Col- 
lectors order  and  what  he  ought  to  have  received  according 
to  the  Revenue  Commissioner's  order.     It  was  held  that 
the  suit  was  governed  by  Article  62  and  not  by  28  or  29. 

(1)  8  W.  R.,  267. 

(2)  I.  L.  E.,  10  Bom.,  665. 


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344  THE  SECOND  SCHEDULE,  PIBST  DIVISION — 8UIT8.    [ART.  29 — 31 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  IV. 
One  year  . 


The  date 
zure. 


of  the  sei- 


Limitation  com- 
mences from 
the  date  of 
seizure  and  not 
from  the  date  of 
release  of  pro- 
perty. 


29. — For  compensation  for 
wrongful  seizure  of 
moveable  property  un- 
der legal  process. 

(a)  (No  30,  Act  IX.)  In  Ram  Singh  Mohapattur  v. 
Bhottro  Manjee  Sonthal/1)  plaintiff's  bullocks  having  been 
seized  in  execution  of  a  decree  obtained  by  defendant 
against  third  parties,  plaintiff  put  in  a  claim  and  the 
bullocks  were  released  on  15th  January,  1874.  On  15th 
January,  1875,  plaintiff  instituted  an  action  for  damages 
caused  by  the  detention  of  the  bullocks.  It  was  held 
that  the  case  fell  under  Act  IX  of  1871,  schedule  2, 
Article  30,  and  that  the  suit  was  barred  by  limitation. 
Suit  for  money       (K)     Jairjivan  Javherdas  v.  Gulam  Jilani  Chandri /*> 

wrongly  taken  **"         ^J  ' 

under  a  decree  was  a  suit  brought  to  recover  money  wrongfully  drawn  in 
this  Article.  1875  by  the  defendant  from  the  Government  Treasury  in 
execution  of  a  decree  he  had  obtained  against  the  plain- 
tiff's father.  The  defendant  in  1867,  attached  the  allow- 
ance annually  payable  to  the  plaintiff's  family,  and  the 
plaintiff  having  become  entitled  to  the  allowance  from 
the  death  of  his  father  in  1869,  sued  to  recover  what  the 
defendant  had  drawn  since.  It  was  held  that  compen- 
sation for  the  money  wrongly  seized  and  for  the  loss  of 
gain  or  interest  upon  it  may  blend  in  a  single  claim  for 
compensation,  and  that  in  either  case  the  limitation  is 


one  year. 


30. — Against  a  carrier  for 
compensation  for  los- 
ing or  injuring  goods. 

31. — Against    a   carrier    for      Do. 
compensation  for  delay 
in  delivering  goods. 

(a)     (Nos.  36  and  37,  Act  IX.) 


Part  V. 
Two  years... 


To   suit  for 
value  of  goods 
lost  by  Railway 


(1)  24  W.  R.,  298.  | 


When  the  loss  or  in- 
jury occurs. 

When  the  goods 
ought  to  be  deliver- 
ed. 

In  Mohan  Sing  Chawan 
(2)  I.  L.  R.,  8,  Bom.,  17. 


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ART.  31]  THJ6  SECOND  SCHEDULE,  FIRST  D1VI8I0N — SUITS.  845 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  IV. 
One   year. 

v.  Henry  Conder.W  563  bags  of  grain  were  made  over  to  Company  time 

*  rL  runs   from  the 

the  defendants  at  Cawnpnr  and  Nagpur,  for  carriage  to   date  of  an. 

*~  nounoement  of 

Sholapnr.  All  that  was  proved  was,  that  the  defendants  such  loss, 
delivered  to  the  plaintiff,  the  owner  of  the  grain,  512 
bags  only,  having  previously  obtained  from  his  agent 
receipts  for  the  full  number  as  arrived  at  Sholapnr.  In 
a  suit  by  the  plaintiff  to  recover  the  price  of  the  bags  not 
delivered,  brought  after  more  than  two,  but  within  three 
years  of  the  time  when  the  rest  of  the  goods  were  deli- 
vered, the  defendants  claimed  that  the  suit  was  barred  by 
the  provisions  of  this  Article,  as  not  having  been  brought 
within  two  years  of  the  time  when  the  loss  occurred.  It 
was  held,  that  mere  non-delivery  of  the  bags  was  no  proof 
of  their  loss,  the  onus  of  proving  which  as  an  affirmative 
fact  lay  on  the  defendants  before  they  could  claim  the 
benefit  of  the  special  limitation  of  two  years  provided  in 
this  Article,  and  that  the  suit,  therefore,  was  in  time. 

(b)     In  Hassaji  v.  The  East  India  Railway  Company/2)   Suit  by  ©on- 
it  was  held  that  for  a  suit  against  a  Railway  Company  by   pensation  for 

xi_  .  *  j    ,      x  x  1*1      non-delivery 

the  consignee  of  goods  (not  sent  on  sample  or  for  approval)   against  Rail- 

.  . .         -  i    i  •  j  i  .i-,..  wy  Company 

for  compensation  for  non- delivery,  the  period  of  hmita-  does  not  fan  no- 
tion is  not  two  years  under  this  Article,  but  three  years 
under  Article  115. 

(C)     In  the  British  India  Steam  Navigation  Company   suit  against 
v.  Hajee  Mahomed  Esack  <fc  Company/3)  plaintiff  claimed   Son^omplSy" 
Rs.  6,304,  compensation  for  value  of  goods  short  delivered.   gorods  short  de- 
It  was  held  that  the  Steam  Navigation  Company,  though   fail  under  this 
they  are  not  common  carriers  for  the  purposes  of  Indian 
Carriers'  Act,  the  operation  of  which  is  restricted  to  Inland 
Carriers,  are  nevertheless  common  Carriers,  so  long  as  the 
goods  remained  in  their  hands  and  undelivered,  and  that  the 

(1)  I.  L.  R.,  7  Bom.,  478.    |    (2)  I  L.  R.,  6  Mad.,  388. 
(3)  I.  L.  R.,  3  Mad.,  107. 

44 


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346  THK  SECOND  SCHEDULE,  FIK8T  DIVISION — SUITS.  [aBT.  31 


Description  of  Bait. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  IV. 
One  year. 

suit  was  not  governed  by  this  Article,  but  by  Article  115. 
Observation*  of  The  court  observe :  "  looking  to  the  terms  of  clause  30 
tide  so.  *  and  the  place  in  which  it  is  found  in  the  schedule,  we 

understand  it  to  apply  to  suits  for  compensation  for 
loss  of  damage  to  goods  arising  from  malfeasance,  mis- 
feasance or  non-feasance  independent  of  contract.  There 
may  no  doubt  be  reasons  for  prescribing  a  short  period 
of  limitation  for  suits  against  carriers,  but  the  principle 
has  not  apparently  been  adopted.  On  the  other  hand,  a 
shorter  period  of  limitation  has  been  in  the  earlier  Limi- 
tation Acts  provided  for  suits  for  tort  than  for  suits  for 
breach  of  contract."  The  above  decision  was  followed  in 
Bolt  for  com-  Kslu  Ram  Maigraj  v.  The  Madras  Railway  Company,  W 
the  ▼sloe  of        in  which  the  plaintiff  claimed  compensation  for  the  value 

rli  damaged  .  . 

^  the  oompa-  of  goods  consigned  by  him  in  September,  1877,  and  which 

and  destroyed    he  alleged  were,  owing  to  the  Company's .  negligence  and 
order.  want  of  proper  care,  damaged  by  rain  and  were  afterwards 

destroyed  by  order  of  a  Magistrate.     As  this  suit  was  not 
founded  upon  a  contract,  the  court  held  that  this  Article 
applied.     It  was  further  held  that  when  two  Railway 
Companies  interchange  traffic,  goods,  and  passengers  with 
through  tickets,  rates  and  invoices,  payment  being  made 
at  either  end  and  profits  shared  by  mileage,  the  receiving 
Company,  by  granting  a  receipt-note   for  goods   to  be 
carried  over  and  delivered  at  a  station  of  the  delivering 
Company's  line,  does  not  thereby  contract  with  the  con- 
signor of  the  goods  as  the  agent  of  the  delivering  Com- 
8oit  for  and  va-  pany.     In  Dan  Mull  v.  British  India  Steam  Navigation 
when  the  com-  Company/2)  plaintiff  claimed  damages  for  the  defendant's 
SeSrer.  failure  to  deliver  to  him  at  Rangoon,  a  bale  of  piece  goods 

shipped  under  a  bill  of  lading,  dated  3rd  December,  1881. 
The  defendant  Company  denied  the  receipt  of  the  bale 

(1)  I.  L.  R.,  3  Mad,,  240.    \    (2)  I.  L.  R.,  12  Calc,  477. 

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ART.  32]         THE  8BC0ND  80HEDUL16,  FIB8T  DIVISION 8UIT8. 


347 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  IV. 
One  year. 

and  endeavoured  to  prove  that  what  was  shipped  was  a 

bale  of  gunnies,  and  pleaded  that  the  suit  was  barred  by 

this  Article.     It  was  held,  that  in  this  case  it  was  not  open 

to  the  defendants,  after  havfng   denied   receipt  of   the 

goods,  to  set  up,  or  for  the  court,  after  finding  that  the 

goods  had  been  shipped,  but  not  delivered,  to  assume 

without  evidence,  that  the  goods  were  lost  in  order  to 

bring  the   case   within  Article   30,   schedule   2,   of  the  Limitation  of 

Limitation  Act  of  1877.     Garth,  C.  J.,  was  of  opinion  that  would  ^ ply 

where  a  plaintiff  sues  for  breach  of  contract  and  proves  sues  tor  breach 

his  case,  the  three  years'  limitation  would  be  applicable,  though  defend- 

although  the  defendants  were  to  prove  that  the  breach  breach  occured 

occurred  in  consequence  of  some  wrongful  act  of  theirs,  of  wrongTaTact 

to  which  the  shorter  limitation  would  apply.  %   tm9 

32. — Against  one  who,  having  Two  years  . . . 
a  right  to  use  property 
for    specific  purposes, 
pervertsit  toother  pur- 
poses. 

(a)  (No.  38,  Act  IX.)    In  Kedarnath  Nag  v.  Khettur-   This  Article 

doee  not  apply 
paul  Sritirutno/1)  the  defendant  took  certain  land  from  to  suit  to  com. 

.  pel  defendant 

the  plaintiff  under  a  registered  lease,  which  contained  a  to  Ail  a  tank  or 

clause  prohibiting  the  defendant  from  digging  a  tank  on  eation. 
the  land  without  the  plaintiff's  permission.  The  defen- 
dant having,  nevertheless,  constructed  a  tank  without 
such  permission,  the  plaintiff  brought  a  suit  to  compel 
him  to  fill  up  the  tank,  or,  in  case  he  should  fail  to  do  so, 
for  compensation.  It  was  held  that  the  period  of  limita- 
tion applicable  to  such  a  suit  was  Article  120  of  schedule 
2  of  the  Limitation  Act. 

(b)  Gangadhar  v.  Zahurriya,W  was  a  suit  brought  by  Applies  to  a 
the  plaintiffs,  who  were  admittedly  Zemindars  of  the  land,  tenant  from 
against  the  defendants,  who  were  occupancy-tenants  of  the  ab^Uwdwto  a 

(1)  I.  L.  R.,  6  Calc,  3*      |      (2)  I.  L.  R.,  8  All.,  446.  gr0ve* 


When  the  perversion 
first  becomes 
known  to  the  per- 
son injured  thereby. 


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348 


THJfi  SECOND  8CH1DULB,  FIRST  D1V1810N SUITS.    [AST.  33 35 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


33.- 


Pakt  V. 
Two  years. 

land,  seeking  to  restrain  the  defendants  from  converting 
arable  land  into  a  grove  or  wood.  It  was  held  that 
Article  32  applied  to  this  case,  and  that  limitation  began 
to  run  from  the  date  when  the  perversion  first  became 
known  to  the  plaintiff.  In  Raj  Bahadur  v.  Birmha 
Singh/1)  a  landlord's  suit  to  demolish  a  well  constructed 
by  a  tenant  was  held  cognizable  by  a  Civil  Court.  In 
Amrit  Lai  v.  Balbir,W  it  was  held  that  a  decision  of  a 
Revenue  Court  disallowing  an  application  to  eject  a 
tenant,  because  he  has  built  on  his  land,  does  not,  under 
section  13  of  the  Civil  Procedure  Code,  bar  a  suit  in  the 
Civil  Court  to  have  the  building  demolished. 


-Under  Act  No.  XII  of 
1855  (to  enable  execu- 
tors, administrators  or 
representatives  to  sue 
and,  be  sued  for  certain 
wrongs)  against  an  exe- 
cutor, administrator  or 
other  representative. 

(No.  39,  Act  IX.) 

34. — For  the  recovery  of  a 
wife. 

35. — For    the  restitution   of 
conjugal  rights. 


Two  years .. 


When  £he  wrong  com- 
plained of  is  done. 


See  Notes  under  Article,  20. 
Two  years  . . 


When    possession    is 
demanded  and  re- 
fused. 
Do.  When    restitution   is 

demanded  and  is  re- 
fused by  the  hus- 
band or  wife,  being 
of  full  age  and 
sound  mind. 
suits  for  resti-       (a)     (Nos.  41   and  42,  Act  IX.)    Held,  by  a  Full 

tution  of  conju-         x    '  '  '  —*       j 

Ki  righto  may   Bench,  that,  in  a  suit  between  Mahomedans,  when  a  hus- 
brought  . 

within  two        band  claims  as  against  his  wife  restitution  of  conjugal 

years  of  any  de-      .    .  ,  ' 

mand  and  refu-  rights,  and,  as  against  the  person  detaining  her,  recovery 
(1)  I.  L.  R.,  8  All.,  86.      |      (2)  I.  L.  K.,  6  All.,  68. 


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ART.  36]         THK  8KC0ND  8CHBDULB,  FIB8T  DIVISION — SUITS. 


349 


Description  of  Bait. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  V. 
Two  years. 

of  his  wife,  each  suit  being  instituted  more  than  two   neoessariiy 

from  first  de» 

years  after  a  demand  and  refusal  (a)  of  restitution  of  con-  mand  and  refu- 
jugal  rights  and  (b)  of  possession  of  his  wife,  the  relation 
of  husband  and  wife  still  subsisting,  the  suit  is  not  bar- 
red, (a)  H8  against  the  wife  under  Article  42,  schedule  2, 
Act  IX  of  1871,  (Article  35  of  this  schedule)  by  reason 
of  section  23  of  that  Act ;  but  is  barced,  (6)  against  the 
other  defendant  under  Article  41,  (34  of  this  Act).  In 
the  case  of  the  other  defendant,  however,  it  is  open  to  the 
husband  to  make  a  demand  of  possession  of  his  wife,  and, 
if  it  be  not  complied  with,  to  institute  a  fresh  suit,  and 
enforce  his  right,  notwithstanding  the  dismissal  of  the 
former  suit.  Ghizni  v.  Mussammat  Mehran.  (Punj. 
Rec.  No.  60  of  1879). d>      . 

(b)     When  a  third  person  detains  the  wife,  a  suit  for  See  sections  259 

...  ••      i.  .  i  ,     .,        mm*  260  of  the 

recovery  of  the  wife  lies  against  such  person  and  the   Civil  Procedure 
decree  is  executed  under  the  provisions  of  section  259  of 
the  Code  of   Civil  Procedure.     A  decree  in  a  suit  for 
restitution  of  conjugal  rights  is  executed  under  section 
260  of  the  Code: 

(C)  The  Indian  Divorce  Act  (IV  of  1869)  relates  to  This  Article  in- 
persons  professing  the  Christian  religion.  It  also  applies  suits  for  restitn- 
to  marriages  contracted  under  Act  III  of  1872.  Unrea-  righuumTerS© 
sonable  delay  in  presenting  or  prosecuting  a  petition  for  Act.  y0r°° 
dissolution  of  marriage  is,  under  the  Divorce  Act,  a 
ground  for  disallowing  the  petition. 


Two  years . . . 


36. — For  compensation  for  any 
malfeasance,  misfeas- 
ance or  nonfeasance  in- 
dependent of  contract 
and  not  herein  special- 
ly provided  for. 

(No.  40,  Act  IX.)     The  words  torts  is  a  term 
(1)  Rival's  Limitation  Act,  p.  102. 


When    the    malfeas- 
ance,   misfeasance 


(a) 


or    nonfeasance 
takes  place. 


Explanation  of 
terms  malfeas- 
ance, miaf eas- 


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350 


THE  SECOND  8CHEDULE,  FIK8T  DIVISION 80 ITS.  [ART.  36 


Description  of  soit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


anoe,  nonfee*- 


Suit  for  com- 
pensation for 
crops  wrongful- 
ly removed  held 
to  fall  under 
this  Article ; 
standing  crops 
are  immoveable 
property. 


But   suit  for 
standing  crops 
carried  away 
under  an  eject- 
ment decree 
subsequently 
reversed  beld  to 
fall  not    under 
this  Article. 


Carrying  away 
crops  preceded 
by  trespass  on 
land  may  fall 
under  Article 
39. 


PABT    V. 

Two  years. 

used  to  signify  such  wrongs  as  are  in  their  nature  dis- 
tinguishable from  breaches  of  contract ; — and  these  torts 
are  often  considered  as  of  three  kinds,  viz,  nonfeasance, 
or  the  omission  of  some  act  which  a  man  is  by  law  bound 
to  do ;  misfeasance,  being  the  improper  performance  of 
some  lawful  act ;  or  malfeasance,  being  the  commission 
of  some  act  which  is  in  itself  unlawful. 0) 

(b)  In  Pandah  Gazi  v.  Jennuddi,(S)  plaintiff  sued  in 
December,  1877,  for  compensation  for  crops  wrongfully 
removed  by  the  defendants  in  December,  1875.  The 
Lower  Court  rejected  the  suit  as  barred  by  Article  26  of 
Act  IX  of  1871.  It  was  held  that  standing  crops  are  not 
moveable  property  and  that  the  suit  was  governed  by  this 
Article  and  that  it  was  not  barred. 

(0)  The  Shurnomoyee  v.  Pattarri  Sirkar,<S)  the  defen- 
dant obtained  a  decree  in  a  suit  brought  against  the  plaintiff 
for  arrears  of  rent  and  for  ejectment,  in  execution  of  which 
he  evicted  the  plaintiff  from  his  holding,  and,  after  getting 
possession  thereof,  carried  away  certain  crops  which  were 
then  standing  on  the  land.  The  plaintiff  appealed  from 
the  decree  obtained  by  the  defendant,  and  on  appeal  it 
was  set  aside,  on  the  plaintiff  depositing  the  rent  due, 
and  the  plaintiff  recovered  possession  of  his  tenure.  It 
was  held  that  such  a  suit  was  a  suit  "  for  profits  of  im- 
moveable property  belonging  to  the  plaintiff  wrongfully 
received  by  the  defendant"  within  the  meaning  of  Act 
IX  of  1871,  section  109,  and  not  a  suit  for  "  compensation 
for  any  wrong,  malfeasance,  nonfeasance  or  misfeasance 
independent  of  contract"  within  the  meaning  of  Article 
40  of  the  same  Act. 

(d)     In    Narasimmacharya  v.    Ragnpathyacharya,*4) 
plaintiff  sued  on  the  9th  of  February,  1880,  for  compen- 

(1)  Stephen's  Commentaries,  p.  485.  |  (3)  I.  L.  R.,  4  C&lc,  625. 


(2)  I.  L.  E.,  4,  Cale.  665. 


(4)  I.  L.  R.,  6  Mad.,  176. 


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ART.  36]  THE  6BC0ND  SCHEDULE,  FIRST  DIVISION — SUITS.  351 


Description  of  Bait. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  V. 
Two  years. 

satiou  for  loss  of  crops  caused  by  the  defendant's  taking 
possession  of  his  well  in  January,  1877.  The  District 
Judge  on  appeal  dismissed  the  suit  on  the  ground  that 
time  began  to  run  against  the  plaintiff  from  January, 
1877,  and  that  the  claim  was  barred  by  section  36,  37, 
39  or  40  of  schedule  2  of  the  Limitation  Act,  1877.  It 
was  held  that  the  plaintiff  was  entitled  to  sue  for  compen- 
sation for  the  trespass  within  three  years  from  the  date 
on  which  the  defendants'  possession  ceased,  and  that  the 
defendants  were  liable  for  any  loss  suffered  within  three 
years  preceding  the  date  of  the  suit.  It  has  been  observed 
that  the'seizure  of  the  well  is  a  continuing  trespass  and 
that  the  limitation  for  suits  for  compensation  in  such  a 
case  is  three  years.  "  Justice  Field,  however,  in  an  un- 
reported case  held,  that  as  snch  carrying  away  is  prece- 
ded by  a  trespass  on  immoveable  property,  it  may  be 
treated  as  matter  in  aggravation  of  the  trespass  and  as 
such  governed  by  Article  39,"<1)  Form  No.  71,  for  plaints 
for  trespass  on  land  appended  to  the  Civil  Procedure 
Code  is  worded  as  follows  :  "  entered  upon  certain  land  of 
the  plaintiff  and  depastured  the  same  with  cattle,  trod 
down  the  grass,  cut  the  timber,  and  otherwise  injured 
the  same." 

(6)     On  the  26th  July,  1878,  defendant  complained  to  To  *mt  for  da- 
the  Magistrate  that  plaintiff  committed  theft  of  his  grain.  wronfffui°deten- 
The  Magistrate,  of  his  own  motion,  attached  the  grain  on  by  Maristrate 
the  10th  of  Angust,  1878,  pending  inquiry  into  the  com-  complaint,  run* 
plaint,  then  proceeded  with  the  inquiry  and  dismissed  complaint  or  at- 
the  complaint,  but  continued  the  attachment  pending  the 
decision   of  the   Civil  Court  to  which    he   referred  the 
parties.     Defendant,  in  1 879,  brought  a  suit  against  plain- 
tiff to  establish  his  title  to  the  grain,  which  was  finally 

(1)  Mitra's  Limitation  Act,  p.  564. 


tachment. 


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352 


THE  8KC0ND  8CHEDULE,  FIRST  DIV18I0N — 8U1T8.     [ART.  57 38 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  V. 
Two  years. 

rejected  on  the  21st  June,  1880,  and  plaintiff' recovered  bis 
grain  on  the  30th  of  September,  1880,  bat  in  a  damaged 
condition.  Plaintiff,  on  the  13th  November,  1881,  sued 
the  defendant  for  damages  for  wrongful  detention  of  his 
grain  and  its  consequent  deterioration  in  quality  and 
value.  It  was  held  that  the  date  of  the  complaint  was 
the  date  of  the  wrong,  and  limitation  ran  from  that  date 
or  at  the  latest  from  the  date  of  the  attachment,  and  that 
the  plaintiff's  suit  was  therefore  barred,  whether  the 
period  applicable  was  one  year  under  Article  23  or  two 
years  under  Article  36  of  schedule  2  of  Act  XV  of  1877. 
Mudvirapa  Kulkarni  v.  Fakirapa  Kenardi.W 
Part  VI.  I 
Three  years  .|The  date  of  the  ob- 
struction. 


87. — For  compensation  for  ob- 
structing a  way  or  a 
water-course. 

38. — For  compensation  for  di- 
verting a  water-course. 


Do.  . . .  The  date  of  the  diver- 

sion. 

(a)  (Nos.  31  and  32,  Act  IX.)  These  two  Articles  only 
provide  for  obstructing  a  way  or  water-course,  and  no 
special  provision  has  been  made  for  obstruction  of  the 
right  to  light  or  air.  Article  36  will  apply  to  suits  for 
compensation  in  such  cases. 

whei*  obetmc-  (*b)     In  Rajrup  Koer  v.  Abul  Hos8ein,(2)  defendants 
tion  is  con- 
tinuous, oaaae  obstructed  the  flow  of  water  along  an  artificial  water- 
held  to  accrued*  course  which  the  plaintiff's  ancestor  constructed  on  their 

dU  in  ditm  un-  _  . 

der  Article 31  of   land,  making  compensation  to  them.     It  was  held  that 
ActDC  of  1871.  ,       ,  .         *     .  . 

such  obstructions  being  continuous  acts  as  to  which  the 

cause  of  action  accrued  de  die  in  diem,  Act  IX  of  1871, 
schedule  2,  Part  V,  clause  31,  fixing  two  years  from  the 
date  of  the  obstruction  as  the  period  of  limitation  for 
obstructing  a  water-course,  did  not  preclude  a  suit  com- 
plaining of  obstructions,  though  made  more  than  two 
(1)  I.  L.  B:,  7  Bom.,  427.    |    (2)  I.  L.  B.,  6  Calc,  394. 


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▲KT.  39]  THK  8KCOHD  8CHED0LB,  fIBST  DIVISION— 601TB. 


358 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

years  preceding  the  date  of  the  commencement  of  the 
suit. 

(o)  I»  Sri  Vi8wambhara  v.  Sri  Saradhi  Charana,*1) 
it  was  held,  that  an  obstruction  to  a  right  to  water  would 
be  a  continuing  injury  giving  rise  to  a  fresh  cause  of 
action  as  fresh  damage  results  from  it.  In  Ponnusawmi 
Tewar  v.  The  Collector  of  Madura, W  it  was  held  that 
the  diversion  of  water  was  a  continuing  injury  down  to 
the  institution  of  the  suit. 

(d)  Iu  Oodoyes8uree  v.  Huro  Kishore  Dntt,W  plain- 
tiff sued  for  recovery  of  possession  of  land  and  for  opening 
a  water-course  through  it,  alleged  to  have  been  stopped 
by  the  defendant  It  was  held  that  the  plaintiff's  title  to 
the  land  being  established,  his  suit  ought  not  to  be 
dismissed  on  a  mere  inference  of  his  assent  to  the  defen- 
dant's acts,  and  that  the  suit  was  for  an  interest  in 
immoveable  property,  and  therefore  subject  to  the  limi- 
tation prescribed  by  clause  12,  section  1,  Act  XIV  of 
1859. 

(e)  "  An  obstruction  to  the  migration  of  fish  to  and 
fro  in  plaintiff  8  jalkar  is  not  an  obstruction  to  a  water- 
course. See  Moharanee  Surnomoyee  v.  Degumbary,  2 
Shome  93."(*> 


Fresh  damage 
resulting  from 
continuing  ob- 
struction gives 
a  fresh  cause  of 
action. 


These  two  Arti- 
cles apply  only 
to  suits  for  da* 
mages  and  not 
for  the  removal 
of  obstruction 
by  injunction. 


Obstruction  to 
migration  of 
fish  is  not  ob- 
struction to  a 
water-course* 


The  date  of  the  tres- 
pass. 


39. — For    compensation     for  Three  years 
trespass  upon  immove 
able  property. 
(a)     (No.  43,  Act  IX.)     Every  entry  upon  another's  what  is  tres- 

.       .      ,      .         ,       . .  ,,  .  pass  upon  im- 

lands  (unless  by  the  owner  s  leave,  or  in  some  very  parti-  moveable  pro- 
cular  cases),  is  an  injury  or  wrong,  for  satisfaction  of 
which  an  action  will  lie  to  recover  such  damages  as  a 
jury  may  think  proper  to  assess ;  and  this  injury  is  called 
trespass  quare  clausum  fregid.     (Stephen's  Commentaries, 

(1)  3  M.  fl.  C.  E.,  111.      I   (3)  4  W.  E.,  107. 

(2)  6  M.  H.  C.  R.,  6.  |    (4)  Mitra's  Limitation  Act,  p.  564. 

45 


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354 


THE  8ICOND  SCHEDULE,  FIR8T  DIVISION — SUITS.         [AST.  40 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

Vol.  Ill,  page  523.)  A  man  is  answerable  not  only  for 
his  own  trespass,  but  for  that  of  his  cattle  also  :  for  if  by 
his  negligent  keeping,  they  stray  upon  the  land  of  another 
(and  much  more  if  he  permits  or  drives  them  on),  and 
they  there  tread  down  his  neighbour's  herbage,  or  spoil 
his  corn  or  his  trees,  this  is  a  trespass  for  which  the 
owner  must  answer  in  damages.  (Stephen's  Commen- 
taries, Vol.  Ill,  page  525.) 

(b)  In  Nara8imma  v.  Ragupathy,*1*  plaintiff  sued  on 
9th  February,  1880,  for  compensation  for  loss  of  crops 
caused  by  the  defendant's  taking  possession  of  his  well  in 
January,  1877.  The  District  Judge  on  appeal  dismissed 
the  suit  on  the  ground  that  time  began  to  run  against 
the  plaintiff  from  January,  1877,  and  that  the  claim  was 
barred  by  Articles  36, 37, 39  or  40.  It  was  held  that  the 
seizure  of » well  seizure  of  a  well  was  a  trespass  on  immoveable  property, 
and  contEmed  that  it  continued  to  be  a  trespass  until  the  possession  of 
the  trespasser  came  to  an  end,  that  the  limitation  for  suits 
for  compensation  is  three  years,  and  that  for  any  damage 
which  accrued  within  three  years  before  the  date  of  the 
suit,  the  defendant  would  be  liable. 


Suit  for  dam- 
age from  seisure 
of  a  well  fall* 
under  (hit  Arti- 
cle. 


as  each  till  tres- 
passer's posses- 
sion came  to  an 
end. 


Three  years. 


The  date  of  the 
fringement. 


m- 


40. — For  compensation  for.  in- 
fringing copyright  or 
any  other  exclusive  pri- 
vilege. 

This  Article  is  a  reproduction  of  Article  11  of  Act  IX  of 
1871,  with  the  alteration  of  the  word  "damage"  into 
"  compensation.' ' 

(a)  In  Kinmond  v.  Jackson/2)  plaintiff  sued  for  an 
injunction  to  restrain  the  defendant  from  infringing  an 
invention  of  the  plaintiff  for  the  rolling  of  tea  leaf,  and 
also  for  an  account  of  the  profits  made  by  the  defendant 
or  for  damages.  On  the  defendant's  objection  that  the 
(1)  1.  L.  R.,  6  Mad.,  176.      |     (2)  I.  L.  R.,  3  Calc,  17. 


Suit  for  dam- 
ages for,  or  for 
an  account 
of  profits  ob- 
tained by  in- 
fringement of 
exclusive  privi- 
lege held  to  fall 
under  Artiole 
11  of  Act  IX  of 
1871. 


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ART.  41]  THE  SECOND  SCHEDULE,  FIRST  DIVISION — SUITS.  855 


Description  of  emit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

plaintiff  was  not  entitled  both  to  damages  and  account,  the 
plaintiff  elected  to  have  an  account  of  the  profits.  The 
question  was,  for  how  many  years  before  suit  the  account 
is  to  be  taken.  The  plaintiff  contended  that  his  claim 
was  governed  by  Article  118  of  Act  IX  of  1871,  corres- 
ponding to  120  of  the  Act  of  1859.  Section  16  of  the 
Indian  Copyright  Act  XX  of  1847,  provided  that  "all 
actions,  suits,  bills,  indictments,  informations,  for  any 
offence  against  the  Act,  shall  be  brought,  sued,  and  com* 
menced  within  12  calendar  months  next  after  such  offence 
committed."  This  section  was  repealed  by  the  Indian 
Limitation  Act  IX  of  1871  to  the  extent  of  the  words 
"  actions,  suits,  and  bills,"  and  the  limitation  prescribed 
by  that  section  for  "actions,  suits,  and  bills"  was  re- 
enacted  by  Article  11.  It  is  observed  that  the  words  of 
Act  IX  of  1871,  ought  to  be  read  as  meaning  generally, 
every  Civil  Suit  seeking  a  remedy  for  infringement.  Sec- 
tion 22  of  the  Patent  Act  XV  of  1859,  provides  for  an 
action  for  infringement  of  any  exclusive  privilege  granted 
under  the  Act.  The  term  "  an  action"  used  in  the  section 
includes  every  form  of  suit  whether  for  damages  or  for  an 
account  of  profits*  This  Article  embraces  any  suit  or 
action  brought  under  section  22  of  Act  XY  of  1859,  and  it 
would  appear  that  there  was  no  intention  of  drawing  any 
distinction  between  a  suit  framed  as  one  for  damages  and 
one  for  an  account,  which  is  only  a  mode  of  ascertaining 
the  amount  of  damages.  In  this  case  it  was  held  that  the 
plaintiff  was  entitled  to  an  account  for  the  profits  of  one 
year  only  from  the  date  of  the  filing  of  the  plaint. 

41. — To  restrain  waste.  Three  years..!  When  the  waste  be- 

I     gins. 
Illustrations  M  &  N  under  section  54  of  Act  I  of  1877, 
give  instances  of  suits  to  restrain  waste  by  Hindu  Widows 
and  undivided  co-parceners. 


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356 


TH8  SECOND  8CHIDULI,  FIE8T  D1YI8IOM — SU1T8.    [ABT.  42—48 


Description  of  rail. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  mn. 


Part  VI. 
Three  years. 


When  the  injunction 
ceases. 


for  injury 
canted  to  move- 
able property 
while  under  at- 
tachment held 
to  fall  under 
thii  Article. 


42. — For  compensation  for  in- 
jury caused  by  an  in- 
junction wrongfully 
obtained. 

(a)  (No.  86,  Act  IX.)  Section  497  of  the  Civil  Pro- 
cedure  Code  of  1882,  provides  for  the  award  of  compen- 
sation to  defendant  for  issue  of  an  ad  interim  injunction 
obtained  on  insufficient  grounds  and  bars  any  suit  for 
compensation  in  respect  of  the  issue  of  such  injunction. 
Suit  for  damage  (J))  "Plaintiffs  sued  to  recover  damages  for  injury 
caused  to  certain  moveable  property  while  under  attach- 
ment. After  defendant  had  attached  the  property,  plain- 
tiffs, on  July  3rd,  1878,  obtained  an  order  removing  the 
attachment  under  section  280  of  the  Civil  Procedure 
Code.  Defendant  then  brought  a  suit  under  section  283 
to  maintain  the  attachment ;  whereupon,  on  the  26th  July, 
the  court  issued  an  injunction  maintaining  the  attach- 
ment till  the  Civil  Suit  was  decided.  That  suit  was 
decided  against  defendant  on  the  13th  November,  1878, 
and  on  the  25th  August,  1879,  plaintiff  brought  the  pre- 
sent suit.  Held,  that  Article  42  of  this  schedule  and  not 
Article  29  was  the  provision  applicable  to  the  suit,  which 
was  accordingly  within  limitation.  Haji  Pir  Muhammad 
v.  Thakur  Dase,  (Punj.  Rec.,  No.  40  of  1881.)"U> 

43.— Under  the  Indian  Sue-  Three  years. .  The  date  of  the  pay- 
cession  Act  1865,  sec.  ment    or   distribu- 
320  or  821  or  under  the  tion. 
Probate  and  Adminis- 
tration Act,  1881,  sec. 
139  or  140,  to  compel  a 
refund  by    person   to 
whom  an  executor  or 
administrator  has  paid 
a  legacy  or  distributed 
assets. 

As  amended  by  Act  V  of  1881,  section  156. 

(1)  Biraz's  Limitation  Act  XV  of  1677,  p.  104. 


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ART.  44]         THE  BKCOND  SCHKDOLK,  FIRST  DIVISION — SUITS. 


857 


Description  of  suit. 


Period«of 
limitation. 


Time  from  which  period 
begins  to  run. 


44. — By  a  ward  who  has  at- 
tained majority,  to  set 
aside  a  sale  by  his 
guardian. 


Part  VI. 
Three  years. 


When   the  ward  at- 
tains majority. 


This  Article  is  new.  Canse  of  action  does  not  accrue  to 
the  minor  daring  his  minority,  because  an  alienation  of  a 
ward's  property  by  the  guardian  or  manager  is  not  void 
ab  initio,  but  voidable  by  the  ward  on  attaining  majority. 

(a)  In  Prosonna  Nath  Roy  Chowdry,  v.  Afzolonnessa 
Begum,  (1>  a  Hindu  died  in  1844,  leaving  a  widow  and  a 
minor  son.  In  1847,  the  widow  granted  to  the  defendant 
a  Mourasi  Izara  of  certain  property,  but  it  did  not  appear 
whether  she  so  acted  as  guardian  or  mother  of  the  minor 
son.  The  minor  son  died  in  1855  before  attaining  ma- 
jority, and  under  an  Anumathi  patro  executed  by*the 
deceased  father  before  his  death,  the  plaintiff  was  adopted 
in  1858.  The  widow  died  in  1861.  The  plaintiff  brought 
the  suit  in  1873,  to  set  aside  the  alienation  made  by  the 
widow  in  1847.  It  was  held  that  if  the  alienation  was 
made  by  the  widow  as  guardian  of  the  minor  son,  the  suit 
was  not  barrel,  it  having  been  brought  within  three  years 
after  the  plaintiff  attained  his  majority ;  and  that  if  it 
were  made  by  her  as  a  Hind  a  widow  the  suit  was  still 
not  barred,  the  cause  of  action  not  arising  until  her  death 
when  the  plaintiff  was  minor. 

(b)  In  Ramansar  Pandey  v.  Baghubar  Jati,W  plain- 
tiff sued  to  set  aside  a  mortgage  by  conditional  sale,  of 
certain  immoveable  property  belonging  to  him  made  on 
his  behalf  by  his  mother  during  his  minority  in  October, 
1865,  and  for  possession  of.  the  property.  The  plaintiff 
attained  his  majority  in  November,  1878.  It  was  held 
that  the  suit  was  governed  by  Article  142  and  not  by  44 
or  91. 

(1)  I.  L.  ».,  4  Calc,  528.         |         (2)  I.  L.  B.,  6  AH.,  496. 


Suit  filed  in 
1878  by  a  son 
adopted  in  1868 
after   natural 
son's   death 
while  a  minor, 
to  cancel  alien- 
ation made  by 
widowed 
mother  in  1847, 
held  not  barred. 


Suit  for  proper- 
ty sold  by  plain- 
tiffs  guardian  is 
not  governed  by 
this  Article. 


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858 


TH«  SECOND  SCHEDULE,  PIEST  DIVI8I0N 8UIT8.  [ART.  45 


• 

Period  of 

Time  from  which  period 

Description  of  suit. 

limitation. 

begins  to  ran. 

Paet  VI. 

45.- 

—To  contest  an  award  un- 

Three years.. 

The  date  of  the  final 

der  any  of  the  follow- 

award or  order  in 

ing  Regulations  of  the 

the  case. 

Bengal  Code  : — 
VII  of  1822, 

IX  of  1825,  and 

IX  of  1838. 

(a)  (No.  44,  Act  IX ;  sec.  1,  cl.  6,  Act  XIV.)  The 
Regulations  referred  to  in  this  and  the  following  Article 
relate  to  the  settlement  of  lands,  Ac.,  and  empower  the 
Revenue  authorities  to  take  judicial  cognizance  of  certain 
claims  and  disputes  respecting  lands,  Ac. 

(b)  Before  Act  XIV  of  1859,  Act  XIII  of  1848  con- 
tained special  limitation,  and  it  was  held  in  Pnreeag 
Singh  v.  Shib  Ram  Chunder  Mundul/1)  that  the  limita- 
tion did  not  apply  to  a  suit  brought  by  an  auction 
purchaser  to  set  aside  an  award  made  by  the  survey 
authorities. 

A  person  (o)     In  Mohima  Chunder  Chuckerbutty  v.  Raj  Coomar 

bound  or  not  by  Chuckerbutty/2)  Peacock,  C.  J.,  observes,  "  the  plaintiff  is 
sue  to  rectify  it  not  entitled  to  ask  to  have  the  thakbust  maps  rectified  in 
three  yean  af-  a  suit  commenced  more  than  three  years  after  the  date  of 
the  award,  whether  he  is  legally  bound  by  the  award  or 
not.  If  the  award  was  a  nullity,  and  the  map  was  recti- 
fied by  virtue  of  that  award,  plaintiff  cannot  ask  us  to 
rectify  an  award  which  he  says  was  a  nullity.  The 
award  was  de  facto,  made  under  Regulation  IX  of  1825, 
and  a  suit  to  contest  an  award  or  a  map  made  under  it  is 
barred  unless  brought  within  three  years."  In  Rajah 
Saheb  Perhlad  v.  Rajendro  Kishore  Singh,W  the  Privy 
Council  observe :  "  they  are  not  prepared  to  say  that  the 
thakbust  proceeding  of  the  11th  of  February,  1848,  may 
not  be  an  award  under  Regulation  IX  of  1825  within  the 
meaning  of  the  Act." 

(1)  3  W.  R.,  166.     |    (2)  10  W.  R.,  22.     |    (3)  12  W.  R.  P.  C,  18. 


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ART.  45]  THB  SECOND  SCHEDULE,  FIRST  DIVISION SUITS.  359 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

(d)  Where  a  Collector,  acting  in  exercise  of  his  Collector's  ad- 
powers  under  section  20  of  Regulation  YII  of  1822,  has  der  afctkm  ^of 
adjudicated  upon  a  claim  to  proprietary  rights  of  land  in  of  *882  upon  a 
a  Khana  Khali  estate,  such  adjudication  is,  as  between  prietary  lights 
the  parties  contesting  between  themselves  before  the  award  within 
Collector,  an  award  by  the  Collector  within  the  meaning  i,  of  Actxrvof 
of  Act  XIII  of  1848,  or  Act  XIV  of  1859,  section  1,  44 of  Act  ixo? 
clause  6,  (re-enacted  in  this  Article  and  the  corresponding 

one  of  Act  IX  of  1871)  and  becomes  conclusive  between 
such  parties,  unless  mthin  the  period  of  three  years  pre- 
scribed by  the  above  enactments,  a  suit  is  instituted  in 
the  Civil  Courts  in  order  to  contest  the  justice  of  such 
award  or  to  recover  any  property  comprised  therein.    But  But  a  CoUect- 

_  .  or*s  declaration 

a  declaration  by  the  Collector,  proprto  motu  that  a  farmer  proprio  mot* 
is  proprietor,  and  an  order,  that  he  be  so  registered,  or  an  proprietor  and 
order  declining  to  investigate  a  claim  is  not  an  award,  tered  is  not  an 
which,  unless  contested,  becomes  final.    Lutf  Ali  v.  Khush- 
wakt  Rai  (Punj.  Rec.  41  of  1881.)  0) 

(e)  The  finding  of  a  Survey  Deputy  Collector,  that  a  An  award  snp- 
party  has  been  in  possession  of  a  certain  land  for  more  tion  between 
than  a  year,  where  the  fact  is  not  disputed  is  not  a  sum.  ciaion  after  in. 
mary  award  under  Regulation  YII  of  1822.     An  award  points  at  issue. 
supposes  a  contention  between  parties,  and.a  decision  after 

proper  investigation  into  the  points  at  issue.  The  adjudi- 
cation by  Revenue  authorities  of  the  boundaries  of  two 
districts  is  not  an  effectual  settlement  of  the  question  of  . 
jurisdiction  which  must  be  tried  by  the  Civil  Court  itself 
under  section  14  of  the  Code  of  Civil  Procedure.  Radha 
Pershad  Singh  v.  Ram  Jeewun  Singh.  (2>  In  Hur  Lai 
Roy  v.  Sooruj  Narain  Roy.O  It  was  held  that  a  co-pro- 
prietor of  a  joint  undivided  estate  is  bound  by  a  survey 
award  and  compromise  to  which  the  other  joint  pro- 

(1)  Rivaz's  Limitation  Act,  p.  107.  |  (2)  11  W.  R.,  389. 

(3)  3  W.  R.,  7. 


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360  THE  8ECOND  SCHEDULE,  FIH8T  DIVISION — SXIiT8.         [ART.  45 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

prietors  were  parties,  where  notice  of  the  survey-proceed- 
ings was  served  on  the  proprietors  jointly  and  not  on 
him  individually. 
Settlement  (f)     In  Bhaoni  v.  Maharaj  Singh/1)  a  Hindu  died  in 

posaiontheevi-   1860,  leaving  two,  widows,  a  mother  and  a  son,  by   a 
by  hi*  assistant,  woman  married  by  Gandharf  form  of  marriage.     When 
under  Kerala-    the  senior  widow  who  held  the  registry  of  a  village  died 
in  1871,  the  Settlement  Officer,  on  the  claims  of  the  junior 
widow,  mother  and  son,  held  on  the  evidence  recorded  by 
the  assistant  Settlement  Officer  that  the  claimants  held 
joint  possession  of  the  right  and  directed  that  the  name 
of  each  be  registered  for  one-third.     In  1673,  the  mother 
died  and  her  registry  was  transferred  to  the  son's  name.. 
In  1879,  the  juuior  widow  sued  the  son  for  possession  for 
the  one-third  given  him  by  the  Settlement  Officer  and  for 
the  mother's  one-third,  alleging  that  he  was  not  the  legiti- 
mate son  of  her  husband.     It  was  held  that  the  suit  was 
not  barred  by  limitation  as  the  proceeding  of  the  Settle- 
ment Officer  was  not  an  award  under  Regulation  VII  of 
1822,  and  decreed  the  plaintiff's  claim  with  costs. 
This  Article  is       (g)     At  the  framing  of  a  record  of  rights,  a  dispute 
toa  decision  of  arose  between  the  appellant  and  the  respondent  as  to 
Settlement  °      whose  name  should  be  recorded  in  respect  of  certain  land, 
Act  xix  of  1873.  of  which  both  parties  claimed  to  be  in  proprietary  pos- 
session.    On  the  8th  June,  1876,  the  Settlement  Officer 
ordered  that  the  respondent's  name  should  be  entered  in 
respect  of  such  land.     The  dispute  was  subsequently  re- 
opened, and  on  the  3rd  Jane,  1879,  the  then  Settlement 
Officer  ordered  that  the  record  of  rights  should  be  amended 
and  the  appellant's  name  should  be  recorded  in  respect 
of  the   land.      Thereupon   the  respondent  brought  the 
present  suit  against  the  appellant  for  possession  of  such 

(1)  I.  L.  R.,  3  All.,  738. 


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AST.  46]  THB  SXCOMD  6CHBDULJ,  FIRST  DIVISION — SUITS. 


361 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VL 
Three  years 

land,  asking  that  the  order  of  8th  June,  1876,  might  be 
affirmed,  and  that  of  the  3rd  June,  1879,  cancelled.  The 
suit  was  instituted  on  the  28th  July,  1879.  The  Lower 
Courts  gave  respondent  a  decree,  holding  that  the  order 
of  8th  June,  1876,  not  having  been  set  aside  by  a  suit  for 
that  purpose  within  three  years,  had  finally  settled  the 
dispute  between  the  parties.  Held,  by  the  High  Court, 
that  the  decision  of  the  Settlement  Officer  on  a  question 
of  title  such  as  was  raised  in  this  suit,  was  not  final,  nor 
was  there  any  limitation  in  Act  XV  of  1877  for  a  suit  to 
contest  orders  such  as  that  of  the  8th  June,  1876,  made 
under  Act  XIX  of  1873.     Ibrahim  AH  v.  Hadi  Ali.W 

Three  years 


The  date  of  the  final 
award  or  order  in 
the  case. 


46. — By  a  party  bound  by 
such  award  to  recover 
any  property  compris- 
ed therein. 

(a)      (No.  45,   Act  IX ;  sec.  1,  clause  6,  Act  XIV.)     In    Purchaser  at 

Pureeag  Singh  v.  Shib  Ham  Chunder  Mundul/2)  it  was  not  being  legal 
held  that  a  suit  to  set  aside  an  award  made  by  the  Survey  of  any  of  the 
authorities  is  not  barred  by  Act  XIII  of  1848,  when  the  award*  is  not* 
plaintiff  was  no  party  to  that  award  but  is  an  auction-  award.   y 
purchaser  at  a  sale  for  arrears  of  Government  Revenue 
subsequent  to  the  award. 

Ob)    In  Mohima  Chunder  Chuckerbutty  c.  Raj  Coomar  Suit  by  person 
Chuckerbutty/3)  it  was  held  that  a  suit  to  recover  any  for  confirmation 
property  comprised  in  an  award  must  be  brought  within  suit  for  pro- 
three  years  from  the  date  of  the  award ;  but  a  suit  by  a        y" 
person  in  possession  to  have  his  title  confirmed  is  not  a 
suit  to  recover  property.     Peacock,  C.  J.,  observes:    "We 
think  that  a  person  who  remains  in  possession  for  three 
years  and  upwards  after  the  making  of  a  revenue  award 
is  not  barred  by  clause  6  from  maintaining  a  suit  to  con- 


(1)  1  Weekly  Notes,  19.    | 

(3)  10  W.  RM 

46 


(2)  8W.  R.,  165. 


22. 


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362  THI  8ECOSD  SCHEDULE,  FIEST  DIT18ICWI — BUTTS.         [AST.  46 


Description  of  suit. 


Mod  of 
limitation. 


Time  froB  which  period 
i  to  J 


PabtVL 
Three  years. 

firm  his  title.  Such  an  award  could  not  by  virtue  of 
section  22  of  the  Act  be  executed  by  turning  him  out  of 
possession."  The  award  and  the  map  do  not  determine 
the  title  of  the  parties,  nor  are  they  evidence  of  title. 

Plaintiff  ditpos-       (c)     In  Mozuffur  Ali  v.  Grish  Chunder  Doss,*1)  it  was 

•ward,  ening      held  that  where  a  plaintiff  sued  not  only  for  the  cancel- 

h* 'twere0"*    ment  of  a  survey  award,  but  also  to  be  restored  to 

jm***  possession  of  land  from  which  he  had  been  subsequently 

dispossessed,  his  suit  was  held  not  to  be  barred  because 

not  brought  within  three  years  of  the  award,  the  latter 

claim  being  a  different  cause  of  action,  to  be  governed  by 

the  limitation  of  12  years  in  clause  12,  section  1,  Act  XTV 

of  1859. 

But  »  rait  for       (d)     Where  a  Settlement  Officer  by  a  certain  proceed- 

SroagS*  three     ing,  recognized  the  plaintiffs'  right  to  the  property  in  suit, 

award  without    and  declaring  them  not  to  be  clearly  shown  to  be  out  of 

•eMta? sSeeT^  possession  of  it,  ordered  their  names  to  be  recorded  in  the 

JJ  beU  bar*    proprietary    register,    and  the    plaintiffs    subsequently 

brought  a  suit  for  establishment  and  declaration  of  right 

to  partition  and  possession  of  the  property,  it  was  held,  that 

the  proceeding  of  the  Settlement  Officer  was  undoubtedly 

an  award  under  Regulation  VII  of  1822,  and  that  as  the 

plaintiffs  sued  for  possession  and  did  not  allege  that  they 

had  been  dispossessed  since  the  award,  thus  raising  the 

presumption  that  they  were  not  in  possession  at  the  time, 

and  as  their  suit  was  in  substance  and  effect,  a  suit  to 

recover  property  comprised  in  an  award,  it  was  barred  by 

limitation  not  having  been  instituted  within  three  years. 

Onneshee  Lall  v.  Mussumat  Tekum  Kooer.W 

Limitation  does       (q)     In  Kristo  Chunder  Sundyal  v.  Kashee  Kishore 

as  long  as  plain-  Roy   Chowdhry,(8>  Markby,   J.,  observes  :  "Moreover,  I 

tiff's  claim  i*  J  j>  j>        >  > 

recognised  by  _    _ 

temporary  act-  (1)  10  W.  R.,  71.         |    (2)  5  N.-W.  P.  H.  C.  B.,  78. 

tton»nt-  (3)  17  W.  B.,  146. 


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AKT.  46]         THE  8IC0ND  SCHEDULE,  FIRST  DIVISION — SUITS.  363 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

think,  there  is  authority,  which  we  ought  not  now  to 
dispute,  for  holding  that  this  right  is  not  barred  by  lapse 
of  time  so  long  as  it  is  formally  and  distinctly  recognized 
by  the  Revenue  authorities  when  making  the  temporary 
settlements.  No  doubt  such  temporary  settlements  inter- 
fere in  some  measure  with  the  full  enjoyments  of  the 
Zemindar's  rights,  but  both  here  and  in  the  courts  of  the 
North- Western  Provinces  :  (See  Thomson,  ubi  supra),  it 
has  been  held  that  the  period  of  limitation  which  bars 
the  claim  to  a  settlement  does  not  begin  to  run  so  long 
as  the  proprietary  right  of  the  Zemindar  is  recognised, 
and  no  permanent  settlement  is  made  with  any  other 
person,  and  it  seems  to  me  sufficient  in  this  case  to  say 
that  we  ought  to  follow  the  rule  which  has  been  so  long 
acted  on."  The  payment  of  malikana  is  not  the  only  Mode  of  reoog- 
method  in  which  a  proprietary  right  can  be  recognized,  ?f  the  malik? 
But  the  keeping  of  the  malikana  in  deposit,  as  in  this 
case,  for  the  benefit  of  the  recorded  proprietors  gene- 
rally, is  a  sufficient  recognition  of  a  sharer's  proprietary 
right. 

(f)     Zemindari  rights  are  not  extinguished,  but  are  Possession  be- 
only  in  abeyance  during  periods  of  temporary  settlement ;   from  the  date  of 

.         -  permanent  set- 

and  possession  under  a  permanent  settlement  is  adverse  tiement. 

from  the  date  on  which  the   permanent  settlement  is 

made.    Where  malikana  is  in  deposit  with  the  Collector  proprietor  fail- 

m        j         . «  .     ■  i_       ing  to  claim  for 

on  behalf  of  proprietors  who  have  refused  settlement,  the   is  years  maii- 

,  .,     .        .-ii.  ..    .*   .,  ,  ,     kana in  deposit, 

proprietors  lose  their  right  to  recover  it  if  tney  do  not  loses  right. 
claim  it  for  more  than  twelve  years.     Kristo  Chunder 
Sandel  Chowdhry  v.  Shama  Soonduree  Debia  Chowdh- 
rain/1). 

(*)     Clause  6,  section  1,  Act  XIV  of  1859,  provides  settlement  of 

.  ,  •  ,  *  j  j         j.t_       the  estate  will 

that  possessory  titles  by  virtue  of  awards  under  the  not  give  the  per- 

r  *  son  obtaining 

the  settlement 
(1)  22  W.  E.,  620. 


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364  THB  SECOND  SCHEDULE,  FIRST  DIVISION — SUITS.  [ART.  445 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

the  right  lost  by  Regulations  there  mentioned,   shall  become  final  unless 

limitation.  ° 

questioned  within  three  years.  But  that  will  not  enable 
a  person  to  come  in  within  three  years  after  the  date  of 
such  award  and  recover  possession  of  lands  in  respect  of 
which  his  suit  has  been  barred  by  the  other  provisions  of 
the  law  of  limitation.  Beer  Chunder  Joobraj  v.  Ram 
Gutty  Dutt.M  Parties  claiming  as  heirs  of  property  sold 
without  their  consent,  held  by  the  purchaser  in  adverse 
possession,  are  bound  to  appear  and  press  their  title 
within  the  period  prescribed  by  law :  the  mere  fact  that 
by  some  proceedings  of  the  Settlement  Officers  they 
obtained  a  settlement  of  the  estate,  cannot  give  them  a 
right  which  they  bave  lost  by  limitation.  Moula  Buksh 
Khan  v.  Koshoram  Pandey.<8) 

Coiiectortaking       (h)     But  that,  in  any  event,  inasmuch  as  in  the  year 
party  whose        1886,  the  Collector  refused  to  recognise  B*8  right  to  the 

claim  he  recoff-  , ..  _       -  . 

nisedwiiibead-  mahkana  and  adverse  possession,  so  far  as  possession 
whose  claim  he  could  be  taken  of  such  an  interest  in  immoveable  property, 
was  then  taken  by  A,  or  in  other  words,  by  E,  because  it 
must  be  taken  that  the  Collector  since  that  date  had  been 
holding  for  A,  whose  right  he  had  then  recognised,  after 
refusing  to  recognise  the  right  claimed  by  B,  the  present 
suit  having  been  instituted  in  1880,  was  equally  barred 
whichever  of  the  above  Articles  was  held  to  apply. 
Gopi  Nath  Chobey  v.  Bhugwat  Pershad.(3> 
Adult  co-shar-        (j.)     Where  one  co-sharer  managed  the  property,  and  in 

er's    possession  -i»i»»#i* 

after  temporary  the  absence  or  during  the  minority  of  the  other  co-sharer, 

settlement  in  . 

his  name  during  obtained  from  the  Collector  a  temporary  settlement  in  his 

minority  of  the  *  * 

other  co-sharer,  own  name  of  chur  lands,  accreting  to  the  parent  estate,  it 
is  not  adverse  ,°  r 

to  the  latter.       was  held  that  the  latter  was  entitled  to  participate  in  the 
temporary  settlement,  and  that  the  possession   of  the 

(1)  8W.R.,  209.  |  (2)  10  W.  R.,  249. 

(3)  I.  L.  R.,  10  Calc.,  697. 


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ART.  47]  THB  SECOND  SCHEDULE,  FIRST  DIVISION — SUITS. 


865 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

former  tinder  that  settlement  was  not  adverse  to  the 
latter.     Bissessuree  Dossee  v.  Kalee  Koomar  Roy/1) 

(j)  Where  an  award  hy  a  Survey  Depnty  Collector, 
confirmed  hy  the  Superintendent  of  Survey,  is  appealed 
successively  to  the  Commissioner  and  the  Board  of  Reve- 
nue, both  of  whom  declined  to  go  into  the  merits  of  the 
case,  a  suit  to  contest  the  justice  of  the  award  and  obtain 
a  declaration  of  title  may  be  brought  within  three  years, 
(clause  6,  section  1,  Act  XIV  of  1859),  from  the  date,  not 
of  the  Deputy  Collector's  award,  but  of  the  order  of  the 
Board  of  Revenue.  The  fact  that  the  Board  summarily 
dismissed  the  appeal  without  entering  into  the  merits  of 
the  case,  does  not  make  it  the  less  a  final  order.  Kishen 
Chunder  Dass  v.  Mahomed  AfzuL<2> 

(k)  Where  a  survey  award  relates  to  lands  belonging 
to  parties  whose  rights  and  interests  are  distinct  and 
separate,  and  one  of  the  parties  appeals  against  the 
award,  limitation  runs  against  the  other  party,  not  from 
the  date  of  such  appeal,  but  from  the  date  of  the  survey 
award.     Toolsee  Ram  Doss  v.  Mahomed  Afzul.G) 


Limitation  runs 
from  the  date 
of  the  final  or- 
der in  appeal 
though   it   was 
dismissed  with- 
out investiga- 
tion into  the 
merits. 


Where  one  of 
two  parties 
whose  interests 
are  distinct  ap- 
peals, limitation 
runs  against  the 
other  from  the 
date  of  the 
award. 


47. — By  any  person  bound 
by  an  order  respecting 
the  possession  of  pro- 
perty made  under  the 
Code  of  Criminal  Pro- 
cedure, Chapter  XL, 
or  the  Bombay  M&m- 
latd&rs'  Courts  Act,  or 
by  any  one  claiming 
under  such  person,  to 
recover  the  property 
comprised  in  such  or- 
der. 


Three  years.. 


The  date  of  the  final 
order  in  the  case. 


(1)  18  W.  R.,  198.  I  (2)  10  W.  R.,  51. 

(3)  10  W.  R.,  48. 


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366  THl  SICOND  8CH2DULI,  FIB8T  DIVISION — 8UIT8.         [ART.  47 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


it  conclusive. 


Part  VI. 
Three  years. 

(a)  (No.  46,  Act  IX ;  section  1,  clause  7,  Act  XIV.) 
Section  3  of  Act  X  of  1882,  expressly  enacts  that  refer- 
ences in  former  Acts  to  the  old  Code  shall  be  read  as 
applying  to  the  corresponding  parts  of  the  new  Code  and 
consequently  orders  passed  under  chapter  12  of  the  Crimi- 
nal Procedure  Code  of  1882  are  governed  by  this  Article. 
Magistrate's  (ft)     In  Lillu  Bin  Baghushet  v.  Annaji  Parashram/1) 

possession  un-     it  was  held,  a  Mamlatdar's  finding  as  to  the  point  of 

oer  section  MO  ...  ,..  ,  , 

of  Act  x  of  1873  actual  possession  is  not  conclusive  m  any  subsequent  suit, 
as  the  Bombay  Act  V  of  1864  contains  express  provi- 
sion to  that  effect.  But  a  Magistrate's  finding  is  conclu- 
sive as  to  possession  under  section  530  of  Act  X  of  1872. 
Possession  actually  taken  by  a  person  having  a  right  to 
it,  is  not  the  less  effective,  as  perfecting  his  title  by  reason 
of  an  irregularity  in  taking  it.  Subsequent  ouster  will 
give  rise  to  a  new  cause  of  action.  West,  J.,  observes,  *•  the 
general  principle  is  that,  a  man  who  acquires  possession 
is  remitted,  as  it  is  said, — that  is,  he  may  rely  for  the 
support  of  his  possession  on  any  still  subsisting  title 
vested  in  him,  and  for  which  a  legal  remedy  is  still  open 
to  him  (Coke  Lit.,  349-a.)  Brassington  v.  Llewellyn, 
(27  L.  J.  Ex.  297.)  Of  two  persons  entering  simultane- 
ously, the  English  Law  assigns  possession  to  him  that  has 
the  right,  by  a  rule  identical  in  substance  with  that  of 
the  Hindu  Law  on  the  same  subject,  (Perkin's  Prof.  Bk. 
213,  Narada  1 ;  4 ;  12,  13.)  Consistently  with  this,  a  per- 
son having  a  right  to  possession  may  enter  peaceably,  and 
may  then  maintain  the  possession  thus  acquired.  Taylor 
v.  Cole,  (1  S.  L.  C,  6th  ed.,  115,  so  also  Brinsmead  v.  Har- 
rison, L.  R.  7,  C.  P.,  547.  Ez-parte  Drake,  L.  R.,  W.  N. 
for  1877,  p.  119.)  This,  as  Lord  Kenyon  said,  *  will  not 
break  in  upon  any  rule  of  law  respecting  the  mode  of 

(1)  I.  L.  R.,  5  Bom.,  887. 

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ART.  47]         THE  8EC0ND  SCHEDULE,  WEST  DIVISION — SUITS.  367 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

obtaining  the  possession  of  lands.'  (See  3  T.  R.,  at 
p.  295.)  If  there  is  a  breach  of  the  peace  in  attempting 
to  take  possession,  that  affords  a  ground  for  a  criminal 
prosecution,  and,  if  the  attempt  is  successful,  for  a  sum- 
mary suit  also  for  a  restoration  to  possession  under 
section  9  of  the  Specific  Belief  Act  I  of  1877— Dadabhai 
Narsidas  t;.  The  Sub-Collector  of  Broach,  (7  Bom.,  H.  C. 
Rep.  82,  A.  C  J. ;)  but  an  unlawful  act  in  entering,  does 
not  make  the  owner  a  trespasser  ab  initio,  (1  Hilliard  on 
Torts,  p.  600.  See  1  and '2  Vic,  C.  74,  section  6.  That 
a  landlord  entering  by  force  is  answerable  for  an  injury 
to  the  tenant's  property.  See  Beddall  v.  Maitland,  L.  R., 
W.  N.  for  1881,  p.  43  ;)  the  law  will  still  annex  the  right 
to  the  possession." 

(C)     Certain  chur  lands  which  had  been  submerged  This  article  can 
having  reformed,  were  claimed  by  a  number  of  parties,  tween  parties 
In  a  proceeding  under  section  318  of  Act  XXV  of  1861,  Zonh^beni 
the  Magistrate,  in  January,  1871 ,  directed  possession  to  the  Magistrate. 
be  given  to  certain  persons  known  as  the  Roys,     In  1872,  apply  in  favour 
the  present  defendants  instituted  a  suit  against  the  Roys  parties  who 
to  set  aside  the  order  of  the  Magistrate,  and  on  the  16th  oSstsby suit 
December,  1873,  obtained  a  decree  in  the  High  Court,  wbosTposses- 

i>inTi  was  so 

under  which  possession  was  given  on  the  10th  July,  1874.  oonflrmed. 
In  1874,  more  than  three  years  after  the  Magistrate's 
order,  the  plaintiffs  instituted  two  suits  against  the  Roys, 
and  the  defendants,  for  possession  of  the  lands,  made  over 
to  the  latter  under  the  decree  of  1873.  It  was  held  that 
these  suits  were  not  barred  by  limitation  under  Article  46, 
schedule  2  of  the  Limitation  Act  IX  of  1871.  That 
Article  can  only  apply  between  the  parties  whose  posses- 
sion has  been  confirmed  by  the  Magistrate,  and  each  one 
of  the  parties  to  that  proceeding  who  claimed  against 
them.  It  does  not  apply  in  favour  of  one  of  the  parties 
who  has  subsequently    succeeded   by  regular   suit    in 


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368  THE  8IC0HD  8CHCDULI,  FIR8T  DIYI8I0H — 6UIT8.         [AST.  47 


Description  of  fait. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

ousting  the  parties  put  in  possession  by  the  Magistrate. 

Aukhil  Chnnder  Ghowdhiy  «.  Mirza  Delewar  HosseinJ1) 

Verbal  order  is        (<J.)     A  verbal  order  alleged  to  have  been  passed  by 

not  one  falling 

within  this         the  Magistrate  is  not  an  order  within  the  meaning  of  this 

Article.  ,-*«-  ,  ,        ^  r**  /w»  w«* 

clause  ;   (Mahomed  v.  (xunga,  2  Agra,  26.  )W 
b.  h.  held  that       (6)     In  Bhaguji  v.  Aniaba  and  others/3)  plaintiff  sued, 
order  under        in  1876,  to  establish  his  right  to  and  recover  a  fourth 
of°i8M,ydoes  not  share  of  certain  property  alleged  to  be  ancestral     He 
tionsuit.        *  stated  his  cause  of  action  to  have  accrued  on  the  17th 
May,  1871,  on  which  day  he  had  been  dispossessed  by  an 
order  by  the  Mamlatdar,  made  under  Bombay  Act  Y  of 
J  864.     The  District  Judge  held,  that  the  suit  was  barred 
by  Article  46  of  Act  IX  1871,  schedule  2.     It  was  held 
that  the  Mamlatdar's  order  does   not  interfere  with  a 
partition  suit  such  as  this,  which  is  not  a  suit  to  recover 
property  within  the  meaning  of  this  Article.     This  deci- 
sion was  followed  in  Shivaram  v.  Narayan  and  others.^) 
A  Mamltadar's  order  is  not  conclusive  evidence  of  posses- 
sion and  dispossession ;  Basapa  v.  Lakshmapa.(*> 
Magistrate's  (f)    Chapter  XXI  of  Act  XXV  of  1861  corresponds  to 

and  ptSngE  Chapter  XII  of  Act  X  of  1882. 

Migrate  pro-  In  AkJlandammal  v.  Periasami  Pillai,(*>  the  plaintiff's 
Civif  Court  de-  deceased  husband  and  the  defendant  were  sons  of  brothers, 
does  not  faifun-  The  former  died  in  1871,  and  a  dispute  arose  between  the 
plaintiff  and  defendant  as  to  the  property  in  question. 
The  Joint  Magistrate,  hearing  of  this  dispute,  held  an 
inquiry  under  the  provisions  of  chapter  22  of  Act  XXV 
of  1861,  and  finding  himself  unable  to  decide  which  party 
was  in  actual  possession  of  the  property,  placed  them  in 
charge  of  the  Sub-Magistrate  under  an  order  of  27th  May, 
1871.     It  was  held  that  this  was  not  an  order  respecting 


g 


6  Calo.  L.  R.,  93.  I      (4)  I.  L.  R.,  5  Bom.,  27. 

Mitra's  Limitation  Act,  p.  669.        (5)  I.  L.  R.,  1  Bom.,  624. 

(3)  L  L.  R.,  6  Bom.,  25.  |      (6)  I.  L.  R.,  1  Mad.  309. 


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ART.  48]         THB  SBCOND  SCHIDULI,  FIRST  DIVISION — SUITS. 


369 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Warning  a 
party  not  to  go 


Part  VI. 
Three  years. 

"the  possession  of  property,"  but  an  attachment  proceeding 
recorded,  because  the  Magistrate  was  unable  to  determine 
which  party  was  in  possession.  In  Durga  v.  Mangal/1) 
a  Magistrate,  in  the  matter  of  a  dispute  as  to  a  bathing  near  a  .^ajni 
place,  bound  the  parties  to  recognizance  and  directed  the  tochment under 
Tahsildar  to  warn  them  not  to  go  near  it  till  Civil  Court  had 
settled  the  quarrel.  It  was  held  that  the  order  to  the 
Tahsildar  was  not  an  attachment  contemplated  by  the 
Criminal  Procedure  Code. 

(g)     In   Kangali    Churn    Sha    v.   Zomur    Budonissa  Limitation  runs 
Khatoonf*)  the  plaintiff,  as  purchaser  in  auction  held  in  theMagiatrate's 
1871,  sued  for   possession  on  the  1st  March,  1879.     In  from    that  "of 
1875,  the  defendant,  who  claimed  possession,  was  directed  refusing  to  refer 
by  the  Magistrate  on  the  30th  June,  1875,  to  be  retained  the  High  Court. 
in  possession,  and  the  plaintiff's  petition  to  the  Sessions 
Judge  to  Jiave  the  matter  referred  for  the  orders  of  the 
High  Court  was  rejected  on  the  5th  April,  1876.     It  was 
held  that  the  suit  must  be  brought  within  3  years  from  the 
date  of  the  Magistrate's  order  and  not  from  the  date  of  the  This  Article  re- 
order of  the  Sessions  Court.    It  was  further  held  that  this  able  as'roii'as 
Article  refers  to  immoveable  as  well  as  moveable  property,  property. 


When  the  person  hav- 
ing the  right  to  the 
possession .  of  the 
property  first  learns 
in  whose  possession 
it  is. 


48. — For  specific  moveable  Three  years, 
property  lost,  or  ac- 
quired by  theft,  or 
dishonest  misappropri- 
ation or  conversion,  or 
for  compensation  for 
wrongfully  taking  or 
detaining  the  same. 

(a)     (Nos.  47  and  48,  of  Act  IX;  sec.  1,  cl.  2,  Act  XIV.)  standing  crops 

In  Pandah  Gazi  v.  Gennuddi,(3>  it  was  held,  that  standing  property,  but 

crops  are  not  moveable  property,  but  immoveable  property  maynbeUtreat2 

within  the  meaning  of  the  Limitation  Act. 

(1)  7  N.-W.  P.  H.  C.  R.,  35.      |      (2)  I.  L.  E.,  6  Cal.,  709. 
(3)  I.  L.  R.,  4  Calc,  665. 


as  moveable. 
(July  1878.) 


47 


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370 


THB  SECOND  SCHEDULE,  MB8T  DIVISION — 8UIM.  [ABT.  49 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


8  aits  for  money 
entrusted  to  the 
defendant  and 
misappropri- 
ated by  him,  fall 
under  this  Ar- 
ticle. 


Bait  for  pro- 
ceeds in  the  de- 
fendant's hands 
as  agent  of  his 
deceased  prin- 
cipal, against 
whom  a  decree 
had  been  made 
for  conversion 
of  goods,  falls 
neither  under 
this  Article  nor 
Article  60;  bat 
under  Article 
118. 


Part  VI. 
Three  years. 

(b)  In  Rameshar  Chaubey  v.  Matabhikh,*1)  plaintiff 
sued  the  defendant  for  a  certain  sum  of  money,  on  the 
ground  that  he  had  given  it  to  him  to  deliver  to  his 
family,  and  that  the  defendant  had  not  done  so,  and  that 
when  the  fact  became  known  to  him  and  he  demanded  the 
money,  the  defendant  denied  having  received  it.  It  was 
held  that  the  suit  was  governed  by  this  Article,  and  that  the 
time  from  which  the  limitation  began  to  run  was  when 
plaintiff  first  learned  that  defendant  had  retained  the 
money. 

(C)  The  defendant,  as  an  agent,  sold  goods  entrusted 
to  him  by  his  principal,  who  died  after  a  decree  had  been  ob- 
tained against  him  for  their  conversion  ;  and,  as  agent  for 
the  representative  of  the  deceased,  retained  the  proceeds 
which  the  decree-holder  had  an  equitable  right  to  follow 
in  the  agent's  hands.  It  was  held  that  neither  Article 
48  of  schedule  2  of  Act  IX  of  1871,  fixing  the  limitation 
of  three  years  to  suits  for  moveable  property  acquired  by 
dishonest  misappropriation  or  conversion,  nor  Article  60 
of  the  same  schedule,  fixing  the  limitation  of  three  years 
to  suits  for  money  payable  by  the  defendant  to  the  plain- 
tiff and  to  suits  for  money  received  to  the  plaintiff's  use 
were  applicable  to  this  suit ;  but  that,  as  a  suit  for  which 
no  period  of  limitation  was  provided  elsewhere,  it  fell 
within  Article  118  of  the  same  schedule,  fixing  for  such 
suits  the  limitation  of  six  years.  Gurudas  Pyne  v.  Ram 
Narain  Sahu.W 


49. — For  other  specific  move- 
able property,  or  for 
compensation  for 
wrongfully  taking  or 
injuring  or  wrongfully 
detaining  the  same. 

(1)  I.  L.  E.,  5  All.,  341. 


Three  years. 


When  the  property  is 
wrongfully  taken  or 
injured,  or  when 
the  detainer's  pos- 
session becomes  un- 
lawful. 

(2)  I.  L.  R.,  10  Calc,  860. 


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ART.  49]  THE  SECOND  SCHEDULE,  PIEST  DIVISION — SUITS.  371 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

(a)  In  Mudvirapa  Kulkarni  v.  Fakirapa  Kenardi.W   This  Article  is 

...  intended  toap- 

West,  J.,  observes,  that  this  Article  is  intended  to  apply  to  ply.  to  cases  of 

cases  of  detinue.     Articles   123,  126  and   127,  allowing 

a  period  of  12  years,  apply  to  certain  suits  in  respect  of  Articles  123. 

moveable  or    immoveable   property.      Article  133   pre-   and  lie'. 

scribes  a  period  of  12  years  for  suits  for  the   recovery 

of  moveable  property   sold  by  a  trustee,  depository  or 

pawnee.     Article  145  allows  a  period  of  thirty  years  for 

the  recovery  of  moveable  property  from   the  depository 

or  pawnee  himself. 

(b)  A  testator  bequeathed  certain  specific  moveable  Suit  for  sped- 
property  to  A,     B  applied  for  and  obtained  a  certificate  property  be- 
under  Act  XXVII  of  1860,  on  behalf  of  the  testator's  plaintiff's  ven- 
widow  and  took  possession  of  the  property  bequeathed.   District  judge 
A  appealed,  and  the  case  was  remanded  for  re-trial.     On  surrender  by 
the  27th  of  March,  1873,  the  District  Judge  cancelled  the  had  obtained  a 
former  order  and  granted  a  certificate  to  A,  and  on  the  under  this  Arti- 
19th  August,  1873,    B  was  directed  to  deliver  up  the 

property  to  -4,  or  his  vendee  0,  who  had  purchased  it 
from  4.  On  the  22nd  of  March,  1878,  0  instituted  a 
suit  to  recover  the  property.  It  was  held  that  the  suit 
was  barred  under  this  Article.  Issur  Chunder  Doss  v. 
Juggut  Chunder  Shaha.<2) 

(c)  In  Dhondiba  Krishnaji  Patel  v.  Bamchandra  suit  for  move- 
Bhagvat,<8>  A  entered  into  an  agreement  with  B  for  the  In  1*  decree  for 
purchase  of  moveable  and  immoveable  property  and  made  S^ceoFan ag- 
a  deposit.  B}  however,  conveyed  the  property  in  question  them^nd^some 
to  0  and  put  him  in  possession.  A  brought  a  suit  for  withFarSm/if" 
specific  performance  against  B  and  0  and  obtained  a  threejeara 
decree  and   a  conveyance  executed  by  the  court  upon 

B  declining  to  obey  the  decree.  The  physical  possession 
of  the  properties  not  having  passed  to  -4,  he  brought 

(1)  I.  L.  R.,  7  Bom.,  427.    |  (2)  I.  L.  R.,  9  Calc,  79. 
(3)  I.  L.  R.,  5  Bom.,  554. 


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372 


THE  SKCOND  SCHEDULE,  FIRST  DIVISION — SUITS.    [ART.  50 — 51 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VI. 
Three  years. 

this  suit  within  three  years  from  the  date  of  the  said 
decree  to  recover  from  C  the  properties  in  question. 
For  the  defendant,  it  was  contended  that  the  starting 
point  of  limitation,  being  the  original  cause  of  action, 
namely,  the  breach  of  contract,  the  suit  as  to  moveable 
property  is  barred,  though  that  as  to  immoveable  property 
is  not,  being  within  12  years  from  the  date  of  the  breach 
of  coutract.  It  was  held  that  according  to  section  85  of 
the  Indian  Contract  Act  the  ownership  in  moveable 
property  not  passing  before  that  in  immoveable  property 
passes,  and  as  the  right  to  possession  of  the  immoveable 
property  accrued  at  the  earliest  on  the  date  of  the  final 
decree  for  specific  performance,  the  starting  point  of 
limitation  under  Article  49,  schedule  2,  of  Act  XV  of 
1877,  was  the  date  of  the  said  decree. 


Three  years.. 


When    the   hire   be- 
comes payable. 


50. — For  the  hire  of  animals, 
vehicles,  boats  or 
household  furniture. 

(No.  49,  Act  IX ;  sec.  1,  cl.  8,  Act  XIV.)  This  Article 
refers  to  the  hire  of  certain  things  for  use  while  Article 
56  refers  to  the  price  of  work  done  by  plaintiff. 


51.- 


Balance. 


When  the  goods  ought 
to  be  delivered. 


"  Money"   in- 
cludes any  cur- 
rency usually 
employed   in 
selling  and  buy* 
ing   as  the 
equivalent  of 
money. 


For  the  balance  of  money  Three  years . . 
advanced  in  payment 
of  goods  to  be  delivered. 

(a)  (No.  50,  Act  IX.)  Balance  is  that  which  expresses 
the  difference  between  the  debtor  and  creditor  sides 
of  an  account ;  also  used  commercially  to  express  the 
difference  between  the  value  of  the  exports  from  and  im- 
ports into  a  country. — Wharton. 

(b)  Money  means,  (1)  coin  ;  stamped  metal ;  pieces  of 
metal,  usually  gold,  silver,  or  copper  stamped  by  public 
authority,  and  used  as  the  medium  of  commerce.  (2)  Hence, 
any  currency  usually  and  lawfully  employed  in  buying" 
and  selling  as  the  equivalent  of  money,  as  bank-notes  and 


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ART.  51]         THE  SECOND  SCHEDULE,  FIRST  DIVISION — SUITS.  373 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VI. 
Three  years. 

the  like. —  Webster,  "Money"  is  the  name  given  to  the 
commodity  adopted  to  serve  as  the  merchandise  bennale, 
or  universal  equivalent  of  all  other  commodities,  and  for 
which  individuals  readily  exchange  their  surplus  pro- 
ducts or  services. — Brande.  Even  provincial  notes  if  re- 
ceived as  money,  are  money,  but  stocks  are  not  money. 
(Rosco's  Digest,  543.) 

(c)  On  reference  by  the  Board  of   Revenue,  N.-W.   Money  also  in- 

eludes  any  pa- 

P.W  Stuart,  C.  J.,  observes  :    "  There  was  a  good  deal  of  per,  obligation 

'  '  °  or  security 

discussion  at  the  hearing  as  to  what "  money"  legally  cerfcab*lyi*Jn" 
meant,  that  is,  what  is  included  in  the  word,  and  it  cash, 
seemed  to  be  thought  that  in  law,  money  only  meant  coin 
in  gold,  silver,  or  copper.  That,  however,  is  not  the  legal 
meaning  of  the  term ;  it  means  and  includes  not  only  coin, 
but  also  bank-notes,  Government  promissory  notes,  bank 
deposits,  and  otherwise  and  generally  any  paper  obliga- 
tion or  security  that  is  immediately  and  certainly  con- 
vertible into  cash,  so  that  nothing  can  interfere  with  or 
prevent  such  conversion."  These  observations  were  made 
with  reference  to  the  word,  "  Money"  used  in  clause  6, 
Article  12,  schedule  2  of  The  Indian  Stamp  Act  I  of 
1879. 

(d)  Boiddonath  Shah  v.  Lalunnissa  Bibee,<2)  was  a  Time  for" deii- 
suit  for  balance  of  account  consisting  of  monies  advanced  was  'no  fixed 
in  payment  for  goods  to  be  subsequently  supplied,  and  it  would  be  a  rea- 
was  governed  by  limitation  prescribed  by  clause  9,  section  after  the  ad- 
1,  Act  XIV  of  1859.     The  cause  of  action  accrued  at  the 

time  that  the  goods  ought  to  have  been  delivered.  Pea- 
cock, C.  J.,  observes  :  "  If  there  was  no  usage  and  no  time 
fixed,  then  we  think  that  the  time  for  the  delivery  of 
the  goods  would  be  a  reasonable  time  after  the  advance 
of  the  money,  having  reference  to  all  the  circumstances." 

(1)  I.  L.  E.,  3  All.,  793.      |  (2)  7  W.  R.,  164. 

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374  THB  SECOND  SCHEDULE,  FIRST  DIVI8ION SU1T8.    [ABT.  52 53 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


52 


Part  VI. 
Three  years.. 


The  date  of  the  deli- 
very of  the  goods. 


For  the  price  of  goods 
sold  and  delivered, 
where  no  fixed  period 
of  credit  is  agreed 
upon. 

As  to  goods  (a)     (No.  51,  Act  IX.)     In  Satcowree  Singh  v.  Kristo 

tSftfti^on  Bangal,W  it   was   held,    that  where   a  tradesman    sup- 
credit,  do  fixed  plies  goods  from  time  to  time  on  credit  to  a  customer 

period  of  credit   *  o 

being  agreed  who  makes  payments  from  time  to  time  on  account,  no 
runs  from  the  fixed  period  of  credit  being  agreed  upon,  the  cause  of 
Sem  was  su?  a0**01*  for  purposes  of  limitation  must  be  taken  to  arise 
on  tiie  date  when  each  item  claimed  was  supplied,  and  that 
where  the  parties  intend  that  all  goods  delivered  within 
a  fixed  period  are  not  to  be  paid  for  until  the  end  of  such 
period  of  credit,  limitation  runs  not  from  the  time  of 
the  purchase  or  delivery,  but  from  the  expiration  of  credit. 
As  to  what  constitutes  delivery,  see  sections  90  to  92  of 
the  Contract  Act 


plied. 
(May  1869.) 


53. — For  the  price  of  goods 
sold  and  delivered  to 
be  paid  for  after  the 
expiry  of  a  fixed  period 
of  credit. 


Three  years 


When  the  period  of 
credit  expires. 


Bait  for  value 
of  wood  claim- 
able under  con- 
tract after  its 
completion  falls 
under  this 
Article. 


(a)  (No.  52,  Act  IX.)  See  Notes  to  Article  52.  In 
Pragi  Lai  v.  Maxwell,  W  plaintiff  brought  the  suit  on  the 
10th  of  October,  1882,  to  recover  the  balance  due  to  him 
from  the  defendants  for  firewood  supplied  by  the  former, 
the  bill  for  the  said  balance  having  been  presented  by  the 
plaintiff  to  the  defendants  on  the  11th  of  November,  1879. 
The  defendants  pleaded  the  bar  against  a  portion  of  the 
claim  of  the  plaintiff  on  the  ground  that  the  value  of  fire- 
wood became  due  on  the  several  dates  on  which  the  fire- 
wood was  supplied  and  that  therefore  Article  52  applied. 
It  was  held  that  the  plaintiff's  claim  was  not  barred 
as  Article  53  and  not  52  applied  inasmuch  as  the  con- 
tract specified  that  the  price  of  wood  was  claimable  after 
the  completion  of  the  contract. 

(1)  11  W.  R.,  529.  |      (2)  I.  L.  R.,  7  All.,  284. 


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ABT.  54 — 56]  THE  SECOND  SCHKDULK,  tlBST  D1VI8ION — SUITS. 


375 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which 
period  begins  to  run. 


When  the  period  of 
the  proposed  bill 
elapses. 


Part  VI. 
54. — For  the  price  of  goods   Three  years 
sold  and  delivered  to 
be  paid  for  by  a  bill 
of  exchange,  no  such 
bill  being  given. 

(a)     (No.  53,  Act  IX.)    "  When  the  contract  was  for  six  in  an  action  for 

months'  credit,  the  payment  then  to  be  made  by  a  bill  at  at  two  or  three 

two  or  three  months,  at  the  purchasers  option,  it  was  held  chasers'  option" 

that  an  action  for  the  price  would  not  lie  at  the  expiration  was  for  six 

months,  and  that  the  time  began  to  ran  from  the  time  rans  from 

,,,.,,  .  ,,  .,  eighth  or  nineth 

^of  the  eight  or  nine  months  ;  it  was  unneces-  month. 
Le  which.     It  was  intimated  that  the  only 
-.Id  lie  till  then  was  an  action  for  breach  of 
c  giving  the  bill.     (Helps  v.  Winterbottom, 


*♦. 


,  431.)(D 


Three  years . 


The  date  of  the  sale. 


Three  years 


When    the    work    is 
done. 


55,  the  price   of  trees 

growing  crops  sold 

>y  the  plaintiff  to  the 

defendant    where    no 

fixed  period  of  credit 

is  agreed  upon. 

(No.  54,  Act  IX.) 

56. — For  the  price  of  work 
done  by  the  plaintiff 
for  the  defendant  at 
his  request,  where  no 
time  has  been  fixed  for 
payment. 

(a)     (No.  55,  Act  IX.)     "  A  suit  for  the  price  of  work  completion  of 
done  by  an  Attorney  or  Vakeel  is  specially  provided  for.   action. 
(See  Article  84,  and  W.  R.  Gap  No.  18.)  Where  a  duty  re- 
quires continuation  of  services,  the  completion  of  the  duty 
is  the  cause  of  action.     (Angell,  148.)     The  work  must 
have  been  done  at  the  request  of  the  defendant."*2) 
(1)  Darby  and  Bosanquet,  p.  19.  |  (2)  Mitra's  Limitation  Act,  p.  572. 


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THB  SECOND  8CHEDULB,  FIRST  DIVISION SUITS.  [ART.  57 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


57. — For  money  payable  for 
money  lent. 


Part  VI. 
Three  years. 


When    the 
made. 


loan 


is 


(a)     (No.  56,  Act  IX  ;  section  1,  clause  9,  Act  XIV.) 
In  Rameshwar  Mandal  v.  Ram  Chand  Roy,W  plaintiff 


Observations  of 
Garth,  C.  J.,  as 
to  verbal  agree- 
ment of  loan. 


Articles  67  and 
60  apply  only  to 
suits  for  a  loan 
repayable  at 

once  or  on  de-    sued  for  a  loan  which  the  defendant  was  said  to  have 

mand. 

Suit  for  money   agreed  verbally  to  repay  at  the  end  of  a  year  with  interest. 

lent  on  debtor's    ^  J  r    J  J 

verbal  agree-      The  Small  Cause  Judge  was  of  opinion  that  it  was  not 

ment  to  repay  . 

at  the  end  of  a     the  intention  of  the  Legislature  m  cases  of  money  lent 

year,  falls  under  . 

Article  116.  unsecured  by  any  instrument,  that  any  specified  date  for 
payment  would  save  limitation,  and  that  limitation  there- 
fore should  run  from  the  date  of  the  loan.  Garth,  C.  J., 
being  of  opinion  that  Articles  57  and  59  would  apply 
only  to  suits  for  a  loan  repayable  at  once  or  on  demand, 
held,  that  the  suit  was  governed  by  Article  115,  which 
virtually  provides  for  the  case  of  all  contracts  which  are 
not  in  writing,  registered,  and  not  otherwise  specifically 
provided  for.  With  reference  to  the  contract  in  the  case, 
Garth,  C.  J.,  observes  "this  being  the  contract,  it  is 
clear  that  the  plaintiffs  would  have  no  right  of  suit  until 
the  expiration  of  the  year ;  and  therefore  it  would  seem 
obviously  unjust  and  contrary  to  the  meaning  of  the 
Limitation  Act,  that  limitation  should  run,  not  from  the 
time  when  the  plaintiff's  right  of  action  accrued,  but 
from  the  time  when  the  advance  was  made,  which  was 
the  consideration  for  the  defendants'  promise.  Suppose 
that  by  a  contract  of  this  nature,  instead  of  the  money 
being  repayable  at  the  end  of  one  year,  it  were  repayable 
at  the  end  of  four  years.  It  is  clear,  that  if  the  Munsiff 
were  right  in  his  construction  of  Article  57,  the  plaintiff, 
however  honest  and  bond  fide  his  bargain  may  have 
been,  would  never  have  a  right  to  enforce  it,  because  by 
the  time  when  his  right  to  sue  accrued  it  would  be 
barred  by  limitation.  In  England,  by  the  Statute  of 
Frauds,  a  contract  which  is  not  to  be  performed  within 
(1)  I.  L.  R.,  10  Calc,  1088. 


ute  of 
Is  requires 
•a-act 
a  not  to 
rmed 


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ART.  58 — 59]    THE  8IC0ND  80HBDULI,  FIRST  DIVI8I0N — SUITS.  377 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VI. 
Three  years. 

three  years  from  the  making  thereof,  must  necessarily 
he  in  writing.  Bat  here,  we  have  no  Statute  of  Frauds ; 
and  in  commercial  affairs,  people  are  at  liberty  to  make 
any  verbal  contracts  they  please.  And  it  seems  to  me 
that  it  could  never  have  been  the  intention  of  the  Legis- 
lature to  prohibit  verbal  contracts  by  means  of  an  Act 
which  was  passed  for  a  totally  different  purpose,  and 
which  merely  professes  to  regulate  the  time  within  which 
different  suits  are  to  be  brought."  This  Article  was  held 
not  to  apply  to  a  verbal  contract  by  which  a  debtor 
promised  to  pay  the  whole  sum  due  on  default  of  three 
successive  instalments :  Kylash  Chunderdass  v.  Roy- 
konto.W      (Vide  Note  A  under  Article  75.) 


within  8  yean 
to  be  in  writing. 

In  India,  people 
are  at  liberty  to 
make  any  ver- 
bal contract 
which  the  Legis- 
lature could  not 
have  intended 
to  prohibit. 


When  the   cheque  is 
paid. 


58. — Like  suit  when  the  lend-   Three  years, 
er  has  given  a  cheque 
for  the  money. 

(ft)  (No.  57,  Act  IX.)  A  cheque  is  a  bill  of  exchange  in  case  of  loan 
generally  drawn  on  a  banker  and  payable  on  demand.  If  cheque,  cause  of 
a  loan  is  made  by  means  of  a  cheque  given  by  the  lender,  J^^i^the** 
cause  of  action  does  not  arise  against  the  debtor  till  the  cheque  is 
cheque  is  cashed,  even  if  the  debtor  makes  use  of  the 
cheque  and  receives  credit  for  it  from  his  own  banker 
before  the  cheque  is  actually  paid.  (Garden  v.  Bruce,  L. 
R  3.,  C.  P.  300  ;  Banning  25.) 


oashed. 


59. — For  money  lent  under  an  Three  years, 
agreement  that  it  shall 
be  payable  on  demand. 

(ft)  (No.  58,  Act  IX.)  The  corresponding  Article  of 
Act  IX  of  1871,  provided  that  limitation  should  run 
when  the  demand  was  made.  Before  the  passing  of  the 
Act  of  1871,  the  law  of  the  country  was  that,  in  a  suit  for 
money  lent  upon  an  agreement  that  it  shall  be  repayable 
on  demand,  the  Statute  should  run  from  the  date  of 
the  loan.  See  Eathamu  Kala  Subbammah  v.  Ragiah,W 
Hempammal  v.  Hanuman.<8> 

G.  R.,  293. 


When    the    loan    is 
made. 


(1)  L  L.  R.,  3  Gale.,  619      | 
(8)  2  M.  H. 

48 


(2)  1  M.  H. 
C.  R.,  472. 


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378  THK  SECOND  8CHBDDLE,  FIS8T  DIVISION — SUITS.  [aBT.  59 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VI. 
Three  years. 

English  law  (b)     If  a  bill  or  note  be  made  payable  on  demand,  the 

payable  on  do-   Statute  runs  from  tbe  date  of  making  or  accepting,  be- 
cause the  bill  or  note  is  payable  immediately,  and  no 
demand  is  necessary.     Christie  v.  Fonsick  (1  Sel.  N.  P., 
399),  and  Rumball  v.  Ball  (10  Mod.,138).    And  the  same 
rule  applies  to  any  promise  to  pay  on  demand.     Collins 
v.  Banning  (12  Mod.,  444).     Nor  will  it  make  any  differ- 
ence in  this  respect  that  the  debt  is  to  be  repaid  with 
simple,  or  even  with  compound  interest.    Norton  v.  Ellam 
(2  M.  and  W.,  461)  and  Jackson  v.  Ogg  (1  Johns,  397).<*> 
Suit  on  a  pro-         (c)     In  Sanjivi  17.  Errapa,(*)  it  was  held  that  a  suit 
payable  at  any  brought  in  March,  1881,  upon  a  promissory  note  dated  the 
years  upon  de-  12th  of  September,  1875,  payable  at  any  time  within  six 

mand,  does  not  »  ,  .  ,  -,  ,       ,.     .,    ,.         •■     . 

fall  nnder  this  years  upon  demand,  was  not  barred  by  limitation,  being 
de  C73.°r(Sep-  governed  not  by  Article  73,  but  by  Article  120  of  sche- 
fcemberl882)       dule  2  of  The  Indian  Limitation  Act  of  1877. 
where  a  pro-  (d)     In  Ram  Chuuder  Ghosaul  v.  Juggut  Monmohiney 

consideration  of  Dabee/3)  Garth^  C.  J.,  observes:  "  where  a  man  promises 
thing  being  to  pay  a  sum  of  money,  &c.,  on  demand,  which  it  is 
mand,  demand  his  duty  to  pay,  whether  a  demand  be  made  or  no,  then 
before  pr  miae  the  money  becomes  payable  at  once,  and  no  demand  is 
necessary  before  suing  him  for  it ;  as  for  instance  in  the 
case  of  money  lent  and  money  due  for  goods  sold  or 
for  work  done.  But  where  a  promise  is  made  in  con- 
sideration of  some  collateral  thing  being  done  on  demand, 
there  the  demand  must  be  made  before  the  promise  can 
be  enforced,  as  in  the  case  of  a  promise  to  pay  Bs.  100 
to  B,  HA  should  go  to  Dacca,  on  demand,  or,  if  A 
should  pay  Rs.  100  to  0  upon  demand.'9  "  My  difficulty 
in  saying  that  a  demand  was  unnecessary  and  that  the 
plaintiff  had  a  right  without  any  demand  to  enforce  his 
remedies  upon  the  mortgage  is   this — that  there  is   a 

(1)  Darby  and  Bosanqnet,  p.  20.  |       (2)  I.  L.  B.,  6  Mad.,  290. 
(3)  I.  L.  R.,  \  Calc.,  294. 


can  be  enforced. 


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ART.  59]         THB  SECOND  SCHEDULE,  WBST  DIVISION — SUITS.  379 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VI. 
Three  years. 

special  provision  that,  on  demand  of  the  debt  due,  he  may 

take  possession  of  the  mortgaged  property,  which  means, 

I  conceive,  that  he  cannot  take  possession  until  demand. 

(6)     Two  brothers,  V  and  R,  in  1861,  agreed  together  Oase  where  de- 
mand was  held 
that  part  of  their  house  should    be   divided  and  part  a  condition  pre- 
cedent to  en- 
enjoyed  in  common.     Each  brother  was  to  occupy  an  force  an  agree. 

assigned  division  and  have  the  use  in  common  of  the  rest. 

If  either  wished  to  leave  the  house,  he  was  bound  to 

offer  his  share  to  the  other  at  a  fixed  price;  or  if  he 

wished  to  purchase  the  share  of  the  other,  and  the  other 

refused  to  sell,   then   the  party  refusing  to   sell   at    a 

fixed  price  was  bound  to  buy  the  share  of  the   other 

brother  who  wished  to  purchase.     V  called   upon   E,  in 

1877,  either  to  pay  Be.  418  or  give  up  the  house.  It  was 
held,  that  this  was  an  agreement  enforceable  by  law  ; 
that  until  demand  no  cause  of  action  arose,  and  limitation 
only  began  to  run  from  the  demand,  and  that  specific 
performance  should  be  granted  in  the  alternative.  Vira- 
sami  Mudali  t?.  Bamasami  Mudali.M 

(f)     In  May,  1857,  J.  R.  gave  to  R.  R.  a  promissory  English  case. 

note  for  payment  of  £150,  three  months  after  demand,  no  Whre™ayabiey 

interest  being  reserved.    J.  R.  died  in  1869,  and  2E.  R,  in  afj£  de?nand, 

1878.  The  note  was  in  R.  R's  possession  at  his  death,  and  necessary*  and 
he  had  endorsed  upon  it  receipts  in  November,  1857,  and  payee8 oTpay- 
August,  1858,  each  for  half  a  year's  interest.     It  appeared  S^denc<?re,,t 
that  no  other  interest  had  ever  been  paid.     /.  R.'s  estate  of  demand- 
being  administered  by  the  Court,  R.  R,9$  executor  claimed 

to  prove  on  the  promissory  note.  Hall,  V.  C,  was  of  opinion 
that  the  claim  must  be  allowed  for  £1 50  with  interest 
from  May,  1858.  It  was  held  on  appeal,  that  the  admis- 
sions by  the  payee  of  the  payment  of  interest  were 
evidence  of  a  demand  having  been  made  in  1857,  so  as  to 


(1)  I.  L.  B.,  3  Mad.,  87. 


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380 


THE  SECOND  8CHEDULE,  PIBST  DIVI8ION — SUITS.         [ABT.  60 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Though  action 
against  prin- 
cipal was  bar- 
red, surety  was 
held  liable  un- 
der section  72 
of  the  Deccan 
Agriculturists' 
Belief  Act. 


Pabt  VI. 
Three  years. 

make  the  £150  immediately  payable,  and  that  the  Sta- 
tute of  Limitation/ was  a  bar  to  the  claim.  Brown  v. 
Rutherford.*1) 

(g)  Hajarimal  v.  Krishnarav,!*)  was  a  suit  instituted 
on  the  11th  September,  1880,  against  a  non-agriculturist, 
principal  and  agriculturist  surety  for  money  due  on  a 
bond  dated  the  5th  August,  1877,  and  payable  on  demand. 
The  action  being  barred  against  the  principal  debtor 
under  the  Limitation  Act  XV  of  1877,  schedule  2,  Article 
59,  the  question  was  referred  to  the  High  Court,  whether, 
under  section  72  *  of  the  Deccan  Agriculturists'  Belief 
Act  XVII  of  1879,  the  agriculturist  surety  was  still 
liable  for  the  amount  sued  for.  It  was  held,  that  although 
the  suit  was  barred  as  against  the  principal  debtor  under 
this  Article,  yet  the  surety,  being  an  agriculturist,  was 
still  liable,  inasmuch  as  section  72  of  the  Deccan  Agri- 
culturists' Belief  Act,  which  extends  the  period  of  limi- 
tation in  the  case  of  suits  against  agriculturists,  applies 
to  all  agriculturists,  whether  principals  or  sureties  in 
the  districts  affected  by  that  Act. 


60. — For  money  deposited  un- 
der an  agreement  that 
it  shall  be  payable  on 
demand. 


Three  years. 


When  the  demand  is 
made. 


When  money 
deposited  is 
withdrawable 
at  the  depoei- 


(a)  This  Article  is  new,  and  a  distinction  is  now  for 
the  first  time  drawn  between  money  lent  and  money 
deposited  under  an  agreement  that  it  shall  be  payable  on 
demand 

(b)  In  Hingun  Lall  v.  Debee  Pershad,^)  it  was  held 

(1)  14  L.  R.,  Ch.  D.,  687.       |       (2)  I.  L.  R.,  6  Bom.,  647. 
(8)  24  W.  R.,  42. 

*  Section  72  of  the  Deccan  Agriculturists'  Act  was  once  amended 
by  Act  XXIII  of  1881  and  further  amendment  has  been  proposed  by 
Bill  No.  XVIII  of  1886,  now  before  the  Legislative  Council. 


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AET.  60]  THS  8ECOND  SCHEDULE,  FIRST  DIVISION — SUITS. 


381 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

that  where  money  deposited  in  a  hank  is  withdrawable  at  tor's  pleasure, 
the  depositor's  will  and  pleasure,  and  the  deposit  carries  cifdn^ETuinited 
compound  interest  with  it,  a  debt  becomes  due  at  the  end  from cuuaof* 
of  each  year  without  demand,  and  the  depositor's  claim 
is  limited  to  three  years  from  the  date  of  deposit. 

(o)     In  Bam  Snkh  Bhunjiv.  Brohmoji  Dasi,W  it  has  The  word 
been  held  that  the  word  "  deposit"  in  this  Act,  as  distin-  fers  to  cases  ' 
guished  from  a  loan,  refers  to  cases  where  money  is  lodged  lodged  with7 

.,,  ,,  ,  ,         ,  j  another  under 

with  another  under  an  express  trust,  or  under  circum-  an  express 
stances  from  which  a  trust  can  be  implied. 

(d)  In  Foley  v.  Hill/2)  it  is  decided  that  a  banker  The  relation  be- 
and  his  customer  do  not  stand  in  the  relation  of  trustee  and  his  custom- 
and  cestui  que  trust,  but  only  of  debtor  and  creditor  by  debtorand  ere- 
simple  contract,  and  an  agreement  to  pay  interest  makes  contract.     p 
no  difference  in  this   respect.     In  Nasir  Bin  Abdul  v. 
Dayabhai  Itcha  Ghand/8)   A,  deposited   certain  monies 

with  J5,  a  banker,  and  drew  against  them,  but  not  to  the 

full  extent :  the  residue  was  employed  on  A's  account  by 

B9  according  to  an   agreement  between  them.     It   was  in  addition  to 

held  that  besides  the  ordinary  relation  of  banker  and  iaUon^ba?te 

customer,  there   subsisted  also    between    them  that  of  wiatio^prtn- 

principal  and  agent,  and  that,  therefore,  the  right  of  action  may1  sub^st*1" 

arose  at  the  time  of  demand.     It  was  further  held  that 

three  years'  limitation  applied  under  Act  XIV  of  1859, 

section   1,   clause  9.     With  regard  to  deposits,  see  also 

Parbati  Charan  Mookerjeav.  BamnarayanMatilal,(4)  Tarini 

Prasad  Ghose  v.  Bam  Krishna  Banerjee/5)  and  Bram-    . 

mamayi  Dasi  v.  Abhai  Charan  Ohowdhry.(6) 

(e)  The  respondents  kept  a  floating  account  with  the  Suit  for  money 
appellant,   receiving  interest  on  the  monies  in  deposit  for  interest,  was 

.,,„,.,!  o  a  .  i_    held  to  be  with- 

with  the  appellant  at  the  rate  of  ten  annas  per  cent.,  such  in  time  as  the 

*  *  n/)/«/\iiTif      ana     a 


(1)  6  C.  L.  R.,  470. 

(2)  2  H.  L.,  Calc,  28. 
(8)  10  B.  H.  C.  R.,  800. 


(4)  5  B.  L.  R.,  896. 

(5)  6  B.  L.  R.,  160. 

(6)  7  B.  L.  R.,  489. 


account  was 
running  one  and 
interest  was  cre- 
dited yearly. 


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3S2  TH»  SECOKD  SCHEDULE,  FIKST  DIT18IOK SCTTB.  [AKT.  61 

Deaeriptio.  of  «rit-  j      1ferio'i.of       .    ^uoe  Inm  whicfc  paiod 

^  I       limiTJttMm.  begins  to  nm. 

I     PaetYL 
I  Three  years. 

interest  being  credited  to  them  yearly.  On  the  25th 
November,  1878,  the  account  was  stated,  and  a  balance  of 
Rs.  584-11-0  was  found  to  the  credit  of  the  respondents. 
On  the  following  day,  the  26th  Norember,  the  appellant 
paid  the  respondents  Its.  60  on  account  of  interest.  On 
the  12th  April,  1880,  the  respondents  brought  the  pre- 
sent suit  against  the  appellant,  claiming  Be.  584-11-0,  and 
Rs.  55-5-0  interest  on  that  sum.  It  was  held  that 
whether  Article  59  or  60  of  this  schedule  applied,  the  suit 
was  within  time,  as  the  account  was  a  running  one,  and 
interest  was  credited  yearly.  Kabari  Puri  v.  Ratan 
Chand.U) 
Money  deposit-  (f)  The  case  of  money  deposited  in  a  sealed  bag,  or 
bag.  which  may  otherwise  be  ear-marked  and  recovered  in 

specie,  is  different.     (Banning  15). 

61. — For   money   payable   to  I  Three  years. '  When  the   money  is 
the  plaintiff  for  money  |  I     paid, 

paid  for  the  defendant,  j  | 

(No.  59,  Act  EX.)     Before  applying  this  Article  to  a 
particular  case,  it  must  be  seen  that  if  Article  81, 82,  99, 
100  or  107  does  not  apply  to  it. 
When  e co-par-       (a)     In  Bam  Kisto  Boy  v.  Muddun  Gopal  Boy.W  the 

cener't  mana-  #    .  "  r  J 

ger  borrowing     manager  of  a  joint-family  sued  for  contribution,  on  the 

money  applies  .      . 

it  to  tamiiy  ground  that  plaintiff  had  borrowed  money  and  applied  it 
soefor contri-  in  the  payment  of  certain  joint-family  expenses,  and  that 
from  date  of        he  had  borrowed  again  to  pay  off  the  first  loan  and  had 

application  of         .  -©  r   j 

money  to  join  liquidated  the  second  loan  from  his  private  funds.  It 
was  held  that  plaintiff's  cause  of  action  arose  from  the 
date  on  which  he  had  made  payments  on  account  of  the 
joint  estate,  and  not  having  sued  within  six  years  of  that 
date,  he  was  out  of  court.     (Under  Act  XTV  of  1859.) 

Suit  ieren  years       (b)     In   Sunkur   Pershad  v.    Goury   Perahad/3)    the 

fo^m^i^o?  (1)  1  Weekly  Notes,  63.      |  (2)  12  W.  R,  194 

debt  raised  by  (3)  I.  L.  R.,  5  Calc,  321. 


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ART.  61]         THE  8HCOND  SCHEDULE,  FIRST  DIVISION — SUITS.  888 


Description  of  suit. 


Period  of 
limitation. 


Time  from  whioh  period 
begins  to  ran. 


Paet  VI. 
Three  years. 

plaintiff  who  was  living  jointly  with  his    brother  the   defendant's 
defendant,  in  1867,  executed  a  bond  for  monies  advanced  jo^tJheTd  bar- 
to  him,  which  monies  were  applied  by  him  for  the  joint  SebtwEid ad- 
benefit  of  himself  and  the  defendant.     In  the  year  1868,   tSSS^SS?1 
the  plaintiff  executed  another  bond  for  the  same  purpose.    ore  8mt' 
In  1870,  the  plaintiff  and  defendant  separated,  and  the 
lender,  thereupon,  sued  the  plaintiff  upon  the  bond  exe- 
cuted in  1867  and  obtained  a  decree.     In  1874,  the  plain- 
tiff executed  a  fresh  bond  in  favor  of  the  decree-holder 
in  order  to  avoid  execution  of  the  decree  and  to  retire  the 
bond  of  1868.     In  1877,  (within  three  years  from  the  date 
of  the  fresh  bond),   the   plaintiff   sued  his  brother  to 
recover  a  moiety  of  the  sum  secured  thereby.     It  was   suit  was  held 
held,  that  the  date  upon  which  money  was  paid  by  the  Article  69  of  Act 
plaintiff  for  the  defendant  must  have  been  before  1870, 
and  that,  therefore,  the  suit  was  barred  by  limitation 
under  Act  IX  of  1871,  schedule  2,  Article  59. 

(C)  In  Tor  Abali  Khan  v.  Nilruttun  Lai/1)  one  T,  drew  Suit  for  money 
on  the  29th  May,  1873,  from  the  plaintiffs'  firm  a  sum  of  was  obliged  to 
money  which  T  had  deposited  with  them  in  the  name  and  guenceof  defen- 

*  dant's  act,  held 

to  the  credit  of  a  third  person.     On  the  death  of  such  to  fail  under 

r  thisArticle. 

third  person,  his  heirs  sued  the  plaintiffs  for  the  money, 
obtained  a  decree  in  January,  1878,  and  recovered  the 
money  in  January,  1883.  In  February,  1884,  the  plain- 
tiffs' sued  T,  the  heirs  of  the  third  party  and  another 
person  to  recover  the  money  they  had  been  compelled  to 
pay  under  the  decree.  It  was  held,  that  the  plaintiffs' 
cause  of  action  arose  when  he  actually  paid  the  money  on 
the  15th  January,  1883,  and  that  though  there  is  no 
Article  precisely  applicable  to  the  case,  the  court  thinks 
that  this  Article  (61)  appears  most  applicable. 

(1)  I.  L.  R.,  13  Calc,  155. 


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THE  8RCOND  SCHEDULE,  FIRST  DIVISION — SUITS.  [AET.  62 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


When  the  money  is 
received. 


Part  VI. 

62. — For  money  payable  by   Three  years, 
the  defendant  to  the 
plaintiff  for  money  re- 
ceived by  the  defendant 
for  the  plaintiff's  nse. 

Suit  to  reco-  (a)     This  Article  is  exactly  similar  to  Article  60  of 

money  which  Act  IX  of   1871.     In  Raghumoni  Adhikari  v.   Nilmoni 

wrongfully  ob-  Singh  Deo,*1)   the   plaintiff,   sned  in   January,  1874,   to 

third-party  on  recover  money    which  a  third-party  had  deposited    in 

false    Dretence 

held  to  fall  unl  plaintiff 's  name  in  the  Collectorate,  and  which  the    first 
der  this  Article. 

defendant,  in  collusion  with  the  second  defendant,  drew 

in  January,  1869,  without  the  plaintiff's  knowledge  and 

consent.     The  Lower  Courts  allowed  the  claim,  which  they 

considered  to  fall  under  Articles  48  and  90  of  Act  IX  of 

1871.     The  High  Court  on  appeal  reversed  the  decision, 

holding   that  the  claim  was  barred  by  this  Article  62- 

Markby,   J.,  observes  that  the  plaintiff,  "  does   not  sue 

the  defendant  on  the  ground  that  he   had  committed  a 

criminal  offence,  but  that   by  means   of  some  fraud  in 

combination  with  another  person  he  got  possession  of  the 

plaintiff's  money.     Now,  that  is  exactly  the  case  which 

would  be  covered  by  Article  60  of  the  schedule  of  the 

Limitation  Act,  if  we  read  that  Article  as  we  think  we 

ought  to  do  in  connection  with  the  English  Law.     A  suit 

for  money  received  by  the  defendant  for  the  plaintiff's  use 

evidently  points  to  the  well-known  English  action  in  that 

form,  and  it  appears  from  two  cases  quoted  in  Bullen  and 

Leake  on  Pleading,  3rd  edition,  page  47  (the  cases  alluded 

to  by  the  learned  Judge  are,  Litt  t?.  Martdndale,  18  C.  B., 

314 ;  and  Andrews  v.  Hawley,  26  L.  J.,  Ex.,  323),  that  that 

form  of  action  is  appropriate  to  the  recovery  of  money 

under  such  circumstances  as  these.     It  is  said  there  that 

where  the  defendant  has  wrongfully  obtained  the  plaintiff's 

money  from  a  third-party,  as  by  a  false  pretence,  it  may 

(1)  I.  L.  R.,  2  Calc,  393. 


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ART.  62]  THE  SECOND  SCHEDULE,  FIE8T  DIVISION — SUITS.  385 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

be  recovered  in  this  court.  So  where  defendant  wrong- 
fully obtained  from  the  plaintiff's  debtors  the  payment  of 
their  debts  under  a  fraudulent  misrepresentation  that  he 
had  an  authority  to  collect  them,  the  plaintiff  was  held 
entitled  to  recover  the  amount  under  this  count.  We 
think,  therefore,  that  Article  60  of  the  2nd  schedule  of  the 
Limitation  Act  contains  the  law  which  ought  to  govern 
this  case,  and  that  the  limitation  ought  to  run  not  from 
the  time  when  the  money  was  demanded,  but  from  the  time 
when  the  money  was  received/ ' 

(b)  In  Johuri  Mahton  v.  Thakoor  Nath  Lukee,W  the  Suit  for  return 
plaintiff  deposited  money  with  defendant  on  the  under-  as  returnable 
standing  that  it  should  be  with  the  latter  as  security  for  event,  tails  un- 
the  due  performance  of  a  lease  to  be  renewed,  but  it  should 

be  returned  if  the  lease  were  not  renewed.  It  was  held 
that  the  suit  is  governed  by  this  Article  and  that  the 
period  begins  to  run  on  the  happening  of  the  event. 

(c)  After  the  separation  of  two  members  of  a  joint  a  divided  mem- 
Hindu  family,  certain  bonds  and  landed  property  con-  cover  bis  share 
tinued  to  be  held  jointly.     The  defendant  as  head  of  the  ed  under  a  bond 
family,  held  most  of  the  bonds  in  his  name.     In  1874,  he  comes  under 
obtained  a  decree  on  one  of  the  bonds  and  realised  the 

amount  the  same  year,  when  the  plaintiff's  claim  to  a 
share  was  disallowed.  The  plaintiff  sued  to  recover  his 
share  in  October,  1882.  It  was  held  that  the  claim  was 
barred  under  this  Article  and  that  Article  127  did  not 
apply.     Thakur  Prasad  v.  Partab.W 

(d)  In   Kundun  Lai  v.  Bansi  Dhar,<3)  plaintiff  and  This  Article 
defendant  were  brothers,  and  they  were  heirs  to  one  who  plaintiff's  share 
died  in  1874,  leaving  a  house  and  a  sum  of  money  with  money  drawn 
a  banker.     The   defendant  realised  the   money  on   the 

22nd  July,  1875,  and  the  plaintiff  sued  for  his  share  on 

(1)  I.  L.  R.,  5  Calc,  830.  |      (2)  I.  L.  R.,  6  All.,  442. 

(8)  I.  L.  R.,  3  All.,  170. 

49 


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386 


THE  8BC0NU  SCHEDULE,  FIRST  DIVISION 8UIT8.  [ART.  62 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Suit  of  one  co- 
sharer  for  his 
share  against 
another  bound 
to  recover  ar- 
rears, falls  un- 
der this  Article. 


Non-participa- 
tion of  profits 
by  plaintiff  for 
more   than  12 
years  from  pre- 
vious decree 
does  not  ex- 
tinguished his 
title. 


Divided  son's 
suit  for  his 
share  of  debt 
realised  by 
father,  falls  un- 
der this  Article. 


Part  VI. 
Three  years. 

the  6th  November,  1878.  The  plaintiff  alleged  that  he 
knew  of  the  realization  of  the  money  in  August,  1878. 
It  was  held  that  the  claim  was  governed  by  this  Article 
and  that  time  ran  from  the  date  that  the  money  was 
drawn  by  the  defendant. 

(6)  In  Dulabh  Vahuji  v.  Bansi  Dharrai/1*  plaintiff, 
with  another  person,  obtained  in  1862,  a  declaration  of  his 
title  to  a  share  in  a  deshpande  vatan  against  the  defendant 
who  was  bound  by  the  decree  to  recover  the  arrears.  The 
plaintiff  brought  the  present  suit  to  recover  his  share  of 
the  arrears  collected.  The  District  Judge  gave  six  years' 
arrears.  Following  Harmukhgauri  v.  Harisukh  Prasad/2) 
it  was  held,  that  the  plaintiff  was  entitled  to  three  years 
arrears  only,  and  that  non- participation  of  profits  by  the 
plaintiff  for  more  than  12  years  from  the  date  of  the 
previous  decree  does  not  extinguish  his  title,  and  that  he 
can  recover  arrears  for  three  years  preceding  the  date  of 
his  suit  to  recover  them.  The  above  decision  was  fol- 
lowed in  Desai  Maneklal  Amratlal  v.  Desai  Shivlal 
Bhogilal,<8)  in  which  it  was  held  that  the  limitation  of 
three  years  under  Article  62  of  the  Limitation  Act  XV  of 
1877,  schedule  2,  and  not  that  of  12  years  under  Article 
132  was  applicable  to  a  claim  by  one  sharer  against 
another  of  an  allowance  attached  to  a  hereditary  office, 
and  not  more  than  three  years'  arrears  to  recover  arrears 
of  the  Amin  Sukhdi  allowance  could,  therefore,  be 
awarded. 

(f)  In  Arunachala  v.  Ramaswamya,(4>  a  son  sued  his 
father  and  brother  for  partition,  and  obtained  a  decree  in 
April,  1878,  for  one-third  of  the  property  and  one- 
third  of  the  debt  due  to  the  family.  In  May,  1878,  the 
debtor  having  received  no  notice  of  the  divided  son's 

(1)  I.  L.  B.,  9  Bom.,  111.    I    (3)  I.  L.  R.,  8  Bom.,  426. 

(2)  I.  L.  R.,  7  Bom.,  191.    |    (4)  I.  L.  R.,  6  Mad.,  402. 


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ART.  62]  THE  SECOND  8CHBDULB,  FIRST  D1VI8ION — SUITS.  387 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

claim,  paid  the  debt  to  the  father,  who  died,  and  his 
estate  passed  to  the  surviving  son.  The  decree-holder 
sued  in  July,  1881,  his  brother,  for  one-third  of  the  debt. 
It  was  held  that  the  suit  was  barred  by  this  Article. 

(g)  Bhawani  Kuar  v.  Bikhi  Ram/1)  was  brought  by  Suit  for  money 
the  holder  of  a  decree  for  money  which  had  been  sold  in  tion  purchaser 
the  execution  of  a  decree  against  him  to  recover  from  the  sale  of  which 

was  since  set 

auction  purchaser  the  money  he  had  realised  under  the  aside,  fails  un- 
decree,  the  sale  thereof  having  been  set  aside.     It  was 
held  that  the  suit  was  governed  by  this  Article  and  was 
not  one  for  damages. 

(h.)     In  Ram  Kishan  v.  Bhawani  Dae,(2)  A,  in  execu-  Suit  to  recover 

money  paid  to 

tion  of  his  money  decree  dated  August,  1871,  attached  defendant  un- 
his   debtor's  property  in  April,   1872.     B  subsequently  der,  held  to  fail 
attached  and  sold  it  for  his  mortgage  decree  of  August,  responding 

lfthl        „  .,    x       ~  ?   °  «      i       Ax      i  •  Article  60  of  Act 

1871.  Money  was  paid  to  B;  and  A,  as  first  attaching  ixofisn. 
creditor,  obtained  the  Appellate  Court's  order  for  pay- 
ment. B  refunded  the  money  which  was  paid  to  A. 
B  sued  A  to  recover  the  money  by  establishing  his 
prior  right  to  the  same.  It  was  held  by  a  majority  of  the 
Full  Bench  that  the'  suit  was  governed  by  Article  60 
of  Act  IX  of  1871,  on  the  ground  that  this  was  not  a 
suit  to  set  aside  the  order  inasmuch  as  it  was  a  nullity. 

This  case  was  distinguished  from  Gowri  Prosad  Kundu  v.  This  is  dis- 
tinguished from 
Ram    Ratan    Sircar/8)    which   was  a  suit  brought   in  suit  for  refund 

of  sale  proceeds 

August,  1888,  for  refund  of  sale  proceeds  paid  in  accord-  under  an  order 

.  \  i  #i  -i        •        o  i  i  o™       0f    COUrfc  Whi0h 

ance  with  an  order  of  the  court  made  m  September,  1880,  feu  under  Arti- 
for  rateable  distribution  under  section  295  of  the  Crimi- 
nal  Procedure   Code  of   1882.     In   this   case  the  court 
held  that  the  suit  was  one  to  set  aside  the  order  and  was 
barred  under  Article  13. 

(i)     Under  section  8  of  the   Vatandars'  Act  III  of  suit  for  differ- 
ence between 
(1)  I.  L.  E.,  2  All.,  354.       |         (2)  I.  L.  R.,  1  All.,  833.  what  was  paid 

(3)  I.  L.  R.,  13  Oalo.,  159. 


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THB  SECOND  8CHKDULB,  PIR8T  DIVISION SUITS.  [ART.  62 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Paet  VI. 
Three  years. 

under  Coiiec-  1874,  (Bombay)  the  Collector  passed  an  order  that  a 
the  amount  contribution  should  be  paid  by  the  holders  of  a  part  of 
appeal  by  Reve-  of  the  shetsandi  vatan  towards  the  annual  emolument  of 

nue  Commiij-  ,  ,       •  j 

sioner,  fails  un-  the  office-holder.     As  payment  was  not  made,  he  caused 

the  defaulter's  moveable  property  to  be  sold  on  the  18th 

May,  1881,  as  for  an  arrear  of  land-revenue   and  part 

of  the  sale-proceeds  to  be  -paid  over  to  the  office-holder. 

The  defaulters  had,  in  the  meantime,  appealed  to  the 

Revenue    Commissioner,    who    eventually,    on   the    17th 

December,  1881,  amended  the  Collector's  order  by  reducing 

very  considerably  the  amount  of  contribution  to  be  paid 

to  the  office-holder.     Thereupon,  the  defaulters  filed  a  suit 

on  the  9th  April,  1884,  to  recover  from  the  office-holder 

the  difference  between  what  he  had  received  under  the 

Collectors's  order  and  what  he  ought  to  have  received 

according  to  the  Revenue  Commissioner's  order.     It  was 

held  that  the  suit  was  one  for  money  had  and  received  by 

the  defendant  to  the  plaintiff's  use,  and  as  such,  governed 

by  Article  62  of  schedule  2  of  the  Limitation  Act  XV 

of  1877.     Ladji  Naick  v.  Musabi.W 

Suit  by  a  clerk       (j)     In  Abhaya  Charan   Dutt  v.  Haro  Chandra  Das 

drawn  from        Banik/2)    the   defendant,   who  was  a  Batwarra  Ameen 

heaToFthe  of*  employed  by  the  Collector,  drew  from  the  public  Treasury, 

m^neyahadand  at  Backergunge,  a  sum  of  money  to  pay  the  establishment, 

received.  kut  failed  to  pay  the  plaintiff  who  was  a  mohurir  under 

him.     In  a  suit  against  the  Ameen  for  recovery  of  the 

salary  after  a  lapse  of  three  years  from  the  time  when  the 

salary  became    due,  it  was  held  that  the  claim  was  for 

money  had  and  received  on  account  of  plaintiff,  and  that 

he  might  bring  his  suit  within  three  years  from  the  date 

of  such  receipt. 

Suit  by  one  of       (k)     A  decree  obtained  by  A  and  B,  was  transferred  by 

two  decree- 
holders  for  his 
share  against  (1)  T   L   R     10  Bom  ^  p>  qqq     |  (2)  4  B.  L.  R.,  App.,  68. 


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AET.  62]  THE  SECOND  SCHEDULE,  FIRST  DIVISION SUITS.  889 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

B  to  0,  without  the  knowledge  of  A.     G  executed  the  the  assignee  of 
decree  ;  and  A  subsequently  sued  0  for  his  share  of  the  under  this 
proceeds.     It  was  held  that  if  A  had  any  cause  of  action 
against  0,  it  would  be  for  money  had  and  received  to  A1 8 
use,  and  the  suit  would  be  governed  as   to  limitation  by 
this  Article.     Webor  Ali  v.  Gaddai  Behari.W 

(1)     A  suit  to  recover  certain  sums  of  money  which  the  suit  to  recover 
defendants,  who  held  a  usufructuary  mortgage  of  certain   for^Stnd  drawn 
lands  belonging  to  the  plaintiffs,  bad  received  as   com-  inort^agee/faS 
pensation  for  portions    of   such   land  which   had  been  cie. 
taken   up   for  public  purposes,   was   held  to   be  barred 
by  this   Article  not   having   been  brought  within  three 
years   of  the   date   when  the  monies  were   paid  to  the 
mortgagees.     The  right  to  such  monies  was  wholly  inde-  The  right  to 
pendent  of,  and  distinct  from,  the  right  of  redemption  of  independent  of 
the  mortgaged  property.     Abul  Hassan  v.  Chiranji.W  demption. 

(m)     Where  there  was  a  contract  between  plaintiff  Suit  to  recover 

what  was  over* 

and  defendant,  that  defendant  should  purchase  a  dwell-  paid  by  mis- 
ii  ,      •      -    •    i-i*        i  -x    take,  falls  under 

luff-house  benamee  on  account  of  plaintiff  and  reconvey  it  this  Article, 

,..«.,.  .  .      .  ,  .  (May  1876.) 

to  plaintiff  on  his  paying  up  in  instalments  a  certain  sum 
of  money  with  interest,  and  plaintiff,  seven  years  after  his 
last  payment,  sued  to  recover  some  payments  which  he 
had  made  in  excess  of  his  agreement,  and  the  first  court 
dismissed  the  suit  as  being  barred  by  limitation,  but  the 
second  court  decreed  the  suit  on  the  plea  that  the  plain- 
tiffs payments  were  deposits,  and  fell  within  Article  147 
of  the  2nd  schedule  of  the  law  of  limitation  ;  it  was  held  by 
the  High  Court,  that  Article   147   applies   to   deposits  Article  U7  of 
recoverable  in  specie  ;  that  plaintiff's  payment  in  this  case  applies  to  de- 
was  a  simple  over-payment ;  and  that  the  recovery  of  it  able  in  specie. 
was  barred  by  limitation  under  Article  60.     Badha  Nath 
Bose  v.  Bama  Churn  Mookerjee.W 

(1)  2  C.  L.  R.,  165.  |  (2)  Weekly  Notes,  54. 

(3)  25  W.  R.,  416. 


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390 


THE  SECOND  8CHEDULE,  FIRST  DIVISION — SUITS.  [jJET. 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


8nit  for  sate 
proceeds  which 
the  plaintiff  had 
an  equitable 
right  to  follow 
in  the  defen- 
dant's hands, 
does  not  fall 
tinder  this  Arti- 
cle. 


So  is  a  suit 
against  trustee 
for  possession 
of  share  and  for 
account  and 
profits. 


Suit  by  proprie- 
tor of  a  "  mo- 
halla"  for  one- 
fourth  of  the 
value  of  a  house 
sold  according 
to  ancient  cus- 
tom, held  not 
governed  by  this 
Article,  but  by 
Article  130. 


Suit  for  com- 
pensation 
money  drawn 
out  of  the  Col- 
lectorate  by  a 
widow's  lessee 
when  widow's 


Part  VI. 
Three  years. 

(n)  In  Gurudas  Pyne  v.  Bam  Narain  Sahn,*1)  the 
defendant,  as  an  agent  of  J,  sold  goods  entrusted  to  him 
by  A,  who  died  after  the  plaintiff  had  obtained  a  decree 
against  him  for  their  conversion ;  and  where  the  defendant, 
as  agent  of  the  representative  of  A,  retained  the  proceeds 
which  the  plaintiff  who  brought  the  present  suit,  had  an 
equitable  right  to  follow  in  the  defendant's  hands, the  Privy 
Council  observed  that  the  suit  did  not  fall  either  within 
Article  No.  60  or  No.  48,  but  came  within  Article  118. 

(O)  In  Muhammad  Habibullah  Khan  t>.  Safdar 
Husain  Khan,M  which  was  a  suit  against  trustee  for 
possession  of  share,  and  for  account  and  recovery  of 
profits,  it  was  held  that  Article  62  did  not  meet  a  claim 
like  the  present  relating  to  an  equitable  claim  against  a 
trustee  liable  to  account  in  which  the  relief  sought  was 
to  have  an  account  taken  of  the  trust,  property,  and  to 
recover  what  might  be  due. 

(p)  0,  the  proprietor  of  a  certain  "  mohaUa,"  sued  K, 
who  had  purchased  a  house  situated  in  the  mohalla,  at  a 
sale  in  the  execution  of  his  own  decree,  for  one-fourth  of 
the  purchase-money,  founding  his  claim  upon  an  ancient 
custom  obtaining  in  the  mohalla,  under  which  the  pro- 
prietor thereof  received  one-fourth  of  the  purchase-money 
of  a  house  situated  therein,  whether  sold  privately  or  in 
the  execution  of  a  decree.  It  was  held  that  the  period  of 
limitation  applicable  to  such  a  suit  was  that  prescribed 
by  Article  120,  schedule  2  of  Act  XV  of  1877,  and  not 
by  Article  62  or  by  Article  132  of  that  schedule.  Kirath 
Chand  v.  Ganesh  Prasad.*3) 

(q)     In  Nund  Lall  Bose  v.  Meer  A  boo  Mahomed,  (*)  a 

suit  was  instituted  by  the  heirs  of  a  Hindu  widow  against 

her  Mokurari  lessee,  to  recover  compensation  money  drawn 

(1)  I.  L.  R.,  10  Calc,  860.     I      (3)  I.  L.  R.,  2  All.,  358. 
2)  I.  L.  R.,  7  All.,  25.  |      (4)  I.  L.  R.,  5  Calc,  597. 


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AST.  63]         THE  8KC0ND  8CHBD0LE,  FIRST  DIVI8I0N — 8U1T8. 


391 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

by  him  out  of  the  Collectorate,  while  the  heir's  suit  against  heirs  suit 
the  lessee  for  possession  was  pending.     It  was  held  that  possession  was 
the  suit  was  governed  by  Article  118  and  not  60  of  Act  IX  not  fait  under 
of  1871.  thU  Artiote- 

63. — For  money  payable  for   Three  years.  When  the  interest  be- 
interest    upon    money  comes  due. 

due   from    the  defen- 
dant to  the  plaintiff. 

(a)  In  Makundi  Kuar  v.  Balakisben  Das/1)  plaintiff  Suit  for  balance 
deposited  his  money  with  the  defendants,  a  firm  of  bankers,  abiefoHnterwt 
on  the  30th  August,  1863.  In  January,  1867,  an  account  SSedwitJanrm 
was  stated  showing  a  balance  due  to  plaintiff,  consisting  of  under  this  Ar- 
the  original  deposit  and  interest  at  6  per  cent,  per  annum. 

In  February,  1876,  the  defendant  offered  to  pay  plaintiff 
the  said  balance  with  interest  at  4  per  cent,  from  January 
1867,  while  the  plaintiff  claimed  interest  at  6  per  cent. 
The  plaintiff,  however,  on  the  14th  and  17th  February, 
1876,  accepting  payment  of  the  balance  and  interest 
at  4  per  cent.,  sued  on  the  11th  February,  1879,  for  the 
difference  between  4  and  6  per  cent.  It  was  held,  that 
the  suit  must  be  regarded  as  one  for  a  balance  pf  money 
payable  for  interest  for  money  due,  to  which  clause  9, 
section  1,  of  Act  XIV  of  1859 ;  Article  61  of  Act  IX  of 
1871,  and  Article  63  of  Act  XV  of  1887,  had  successively 
applied,  and  that  the  suit  was  barred  by  limitation. 

(b)  In   Ganpat   Pandurang  v.   Adarji   Dadabhai,(*)    Period  of  limi- 


Westropp,  C.  J.,  observes  :  "  We  think  that  the  intention  oabie  to  prlnci- 

.  ,  pal,  applies  to 

of  the  parties  to  it  was  that  both  interest  and  principal  interest  when 

both  are  oharg- 

should  be  charged  upon  the  property  mentioned  in  it,  and  ed  on  real  pro- 
the  subject  of  the  title-deeds  previously  deposited,  and 
therefore,  that  neither  the  interest  nor  the  principal  is 
barred,  whether  regard  be  had  to  Article  132  or  Article 
149."  The  Madras  High  Court  have  also  held  so  in 
(1)  I.  L.  R.,  3  All.,  328.  |        (2)  I.  L.  R.,  3  Bom.,  332. 


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392 


THE  8EC0ND  SCHEDULE,  PIB8T  D1VI8I0N — 8UITS.  [ART.  64 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Pabt  VI. 
Three  years. 

Agreement  to     Davani  Ammal  v.   Eatna  Chetti.W    In  Baldeo  Panday  v. 
rate  of  interest   Gokal  Rai,^   it  was  held  that  when  a  bond  contains  an 

even  after  due  .         ,     »  *     *  .       *         i 

date  is  enfor-    express  contract  for  payment  of  the  stipulated  rate  of 
interest  even  after  due  date,  such  contract  is  enforcible. 


64. — For  money  payable  to 
the  plaintiff  for  money 
found  to  be  due  from 
the  defendant  to  the 
plaintiff  on  accounts 
stated  between  them. 


Three  years.  When  the  accounts 
are-  stated  in  writ- 
ing signed  by  the 
defendant  or  his 
agent  duly  autho- 
rised in  this  behalf, 
unless  where  the 
debt  is,  by  a  simul- 
taneous agreement 
in  writing  signed 
as  aforesaid,  made 
payable  at  a  future 
time,  and  then  when 
that  time  arrives. 

(a)  (No.  62,  Act.  IX.)  Article  62  of  Act  IX  of  1871 
covered  any  verbal  or  unsigned  statement  of  accounts. 
Nand  Ram  v.  Ram  Prasad  ;<8)  but  it  was  held  by  a  Full 
Bench  of  the  Punjab  Chief  Court,  that  a  statement  of 
accounts  does  not  give  a  fresh  starting  point  under  Act 
IX  of  1871,  unless,  1st, — it  is  in  writing,  and  satisfies  the 
requirements  of  section  20,  Act  IX  of  1871,  (section  19 
of  this  Act) ;  or  2nd, — it  amounts  to  a  new  oontract 
between  the  parties,  in  which  case  it  furnishes  a  new  cause 
of  action.  Ratta  Ram  v.  Mussammat  Nano.  (Punj.  Rec., 
No.  3  of  1878).  <«>  Article  64  of  the  Act  of  1877  attached 
a  new  condition  to  the  suit,  viz.,  that  the  accounts  must 
be  signed  by  the  defendant  or  his  agent  duly  authorized 
in  that  behalf.  An  account  stated  not  signed  by  the 
defendant  and  a  suit  on  which  would  have  been  within 


(1)  I.  L.  R.,  6  Mad.,  417. 

(2)  I.  L.  K.,  1  All.,  604. 


(8)  I.  L.  R.,  2  All.,  641. 

(4)  Riyaz's  Limitation  Act,  p.  117* 


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ABT.  64]  THE  8B0OND  8CHKDDLH,  FIRST  DIVISION — SUITS.  893 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VI. 
Three  years. 

time  if  instituted  when  Act  IX  of  1871  was  in  force,  was 

held  not  to  fall  under  Article  64  of  the  Act  of  1877.     Zul- 

fikar  Husain  v.  Munna  Lal.W 

(b)     In  Laljee  Sahoo  v.  Rughoonundun  Lall  Lahoo,@)    Account  stated 

Garth,  0.  J.,  observes  :  "  It  was  contended  before  us  in  the   ment  assented 

to  by  both  par- 

first  instance,  tbat  the  admission  made  by  the  defendant  ties. 
in  the  ikrarnama  of  24th  December,  1874,  amounted,  in 
fact,  to  an  account  stated  with  the  plaintiff ;  and  if  that 
were  so,  of  course  the  account  stated  would  be  itself 
sufficient  to  enable  the  plaintiff  to  maintain  an  action. 
But  in  order  to  make  it  an  account  stated,  the  plaintiff 
must  have  been  a  consenting  party."  Defendant's  firm 
balancing  the  plaintiff's  deposit  account  and  signing  the 
statement  does  not  constitute  account  stated.  It  is 
necessary  to  have  entries  of  debits  and  credits  on  both 
sides.     (See  Notes  0.  and  H.) 

(C)     The   "  ruzu"   or  adjustment  of  an  account  can   Account  stated 
operate  either  as  a  revival  of  an  original  promise  or  as  either  asrevivai 
evidence  of  a  new  contract.     If  it  is  to  be  used  as  an  promise,  or  as 
acknowledgment,  giving  a  fresh  starting  point  for  com-   new  contract, 
puting  a  new  period  of  limitation,  it  must  be  made  in 
writing  and  signed  before  the  expiration  of  the  period  of 
limitation  prescribed.     If  it  is  to  be  used  as  evidence  of 
a  new  contract,  furnishing  a  basis  for  a  new  cause  of  action, 
it  must  contain   a  promise  in  writing  duly   signed  as 
required  by  the  Contract  Act  IX  of  1872,  sec  25,  clause 
3,  a  bare  statement  of  an  account  not  being  such  a  pro- 
mise.    Ramji  v.  Dharma.l3) 

(d)     In  Dukhi  Sahu  v.  Mahomed  Bikhu,<4)  defendant      c.  h.  f.  b. 
was  a  customer  of  the  plaintiff  who  had  a  shop  for  the   account  not 
sale  of  cloth.     He  used  to  take  articles  on  credit  and   fondant,  does°~ 
make  part-payments  from  time  to  time.     An  account  was   SSs  Article.^ 


(1)  I.  L.  R.,  3  All.,  148,  P.  B.  I      (3)  I.  L.  R.,  6  Bom.,  683. 

(2)  I.  L.  R.,  6  Calc.,  451.         |      (4)  1.  L.  R.,  10  Calc,  284. 


(Sept.  1883.) 


50 


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394 


THE  8BC0ND  8CHEDULB,  FIRST  DIVISION — SUITS.  [ART.  64 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Unsigned  state- 
ment of  account 
does  not  amount 
to  a  new  con- 
tract. 


A.  H.  also  held 
so  and  neverthe- 
less  remarked 
that  unbarred 
items  might  be 
recovered. 


Adjustment  of 
cross  demands 
constitutes  a 
new  contract 
under  Act  XIV 
1859. 
(May  1871.) 


Part  VI. 
Three  years. 

kept  by  the  plaintiff  of  these  transactions.  The  account 
was  examined  in  the  presence  of  the  defendant,  and  the 
amount  claimed  in  the  suit  was  found  to  be  the  balance 
of  the  debt  due  from  the  defendant,  who  admitted 
its  correctness.  It  was  held,  that  the  above  statement  of 
account  not  being  signed  by  the  defendant  did  not  fall 
within  the  terms  of  this  Article  inasmuch  as  it  did  not 
amount  to  a  new  contract  so  as  to  entitle  the  plaintiff  to 
claim  a  new  period  of  limitation  from  the  date  thereof. 
This  Full  Bench  Ruling  overrules  the  decision  in  Sheikh 
Akbar  v.  Sheikh  Khan,*1)  in  which  a  Division  Bench  had 
held  in  May,  1883,  that  the  period  of  limitation  for  suits 
on  accounts  stated  is  the  same,  whether  the  accounts  are 
stated  verbally  or  in  writing,  and  is  governed  by  Act  XV 
of  1877,  schedule  2,  clause  64.  In  Thakurya  v.  Sheo 
Singh/2)  the  Allahabad  High  Court  held  so,  and  remarked 
that  as  the  account  has  not  been  signed  by  the  defendant, 
the  plaintiff  cannot  claim  the  benefit  of  Article  64,  but 
might  be  regarded  as  suing  merely  for  money  lenta 
and  some  of  the  items  of  money  lent  that  were  not  barred 
by  limitation  might  be  recovered. 

(e)  To  render  an  arrangement,  come  to  orally,  for  the 
payment  of  the  balance  of  an  antecedent  debt  on  a 
settlement  of  accounts  available  here  in  support  of  a  suit 
brought  after  the  expiration  of  the  period  of  limitation 
applicable  to  such  debt,  it  must,  we  are  of  opinion,  be 
clearly  shown  to  have  amounted  to  a  new  valid  contract 
to  pay  the  balance,  which  extinguish  the  original  cause 
of  action.  As  observed  by  Parke,  B.,  in  James  v.  Ryder, 
4  M  and  W  32,  a  mere  acknowledgment  within  the  six 
years  of  an  antecedent  debt  cannot  be  sufficient ;  there 
must  be  a  new  contract."     In  England,  such  an  arrange- 

(1)  I.  L.  R.,  7  Calc,  256.      |      (2)  1.  L.  R.,  2  Allv  872. 


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ART.  64]  THE  8BC0ND  SCHEDULE,  FJR8T  DIVISION — SUITS.  395 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VI. 
Three  years. 

ment  might  also  be  made  available  in  answer  to  a  plea 
of  the  Statute  of  Limitations,  on  the  ground  of  part- 
payment  evidencing  a  promise  to  pay  the  balance  : — 
See  on  this  point  Worthington  v.  Grimsditch,  7.  Q.  B., 
479,  and  the  judgment  of  Baron  Alderson  in  Ashby  v. 
James,  11  M.  and  W.,  542.  But  that  ground  is  excluded 
by  the  provisions  of  the  Indian  Act  of  Limitations. 
Then,  does  the  arrangement  alleged  to  have  taken  place 
between  the  appellant  and  the  respondent  evidence  a  new 
contract  P  The  striking  of  the  balance  and  the  admission 
that  the  amount  was  due  evidenced  a  present  promise 
to  pay  it,  but  that  was  nothing  more  than  the  law  already 
implied  from  the  previous  existence  of  the  debt,  and 
was  all  that  such  an  executed  consideration  could  support, 
and  it  is  obvions  that,  if  nothing  more  than  that  were 
necessary,  the  limitation  bar  might  always  be  evaded  by 
acknowledgments  and  admissions  not  in  writing.  What 
we  must  look  to  see  is,  whether  the  arrangement  involved 
any  new  consideration  for  the  promise  to  pay  the  balance. 
Now,  where  there  are  cross  demands,  and  on  a  settlement 
of  accounts,  items  agreed  to  on  one  side  are  wiped  out 
by  an  appropriation  to  their  discharge  of  admitted  items 
of  claim  on  the  other  side,  and  thereupon  a  balance  is 
struck  and  payment  promised,  the  mutual  agreement 
to  set  off,  protanto,  one  set  of  items  against  the  other 
constitutes  a  new  consideration  for  the  promise  to  pay  the 
settled  balance,  and  both  make  a  new  contract.  For  this, 
Ashby  v.  James  (11 M  and  W.,  542)  is  a  direct  authority. 
But  where  there  is  no  cross  claim  to  be  set  off,  and  no 
new  agreement  of  appropriation,  a  settlement  of  the 
balance  due  on  the  examination  of  accounts  is  merely  a 
statement  of  an  antecedent  debt.  The  parties  simply 
agree  as  to  how  much  of  the  debt  remains  due.  In  such 
a  case  there  is  plainly  no  new  contract.     This  distinction 

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396  THE  SECOND  8CHEDULE,  F1R8T  DIVISION — SUITS.  [ART.  64 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

is  briefly  expressed  in  Layoock  v.  Pickles  (33  L.  J.  Q.  B., 
43.)  Blackburn,  J.,  there  said:  "In  common  talk  an 
account  stated  is  treated  as  an  admission  of  a  debt  due 
from  the  defendant  to  the  plaintiff,  bnt  there  is  also  a 
real  account  stated,  which  is  equivalent  to  what  is  called 
in  the  old  law  an  insimul  compntaverunt,  when  several 
items  of  claims  are  brought  into  account  on  either  side,  and 
being  set  against  one  another,  a  balance  was  struck,  and 
the  consideration  for  the  payment  of  the  balance  was  the 
discharge  on  each  side.  And  the  arrangement  in  that 
case  was  upheld  as  being  such  a  real  statement  of  account." 
Hirada  Karibasappah  v.  Gadigi  Muddappa.W 
Claim  on  »c  (f)     In  Dagdnsa  Tilakchand  v.  Shamad,<2>  the  defen- 

dStodlmt!  cal-  dant  undertaking  to  pay  plaintiff  on  behalf  of  a  third- 
SSnuSonoous  y  party,  signed  an  account  by  his  mark  on  2nd  January, 
menttapaythe  1881.  The  suit  was  brought  on  the  account  on  the  14th 
time.  January,  1884,  or  12  days  after  three  years,  and  the  plaintiff 

alleged  that  the  defendant,  while  signing  the  account, 
made  a  verbal  agreement  to  repay  the  debt  one  month 
after  that  date,  and  contended  that  the  cause  of  action 
arose  on  the  2nd  February,  1881.  A  Division  Bench 
(Sargeant  C.  J.,  and  Nanaboy  Haridas  J.)  held  that  this 
Article  is  too  clear  to  admit  of  any  doubt  on  the  point. 
As  provided  therein,  the  ordinary  period  of  limitation  for 
a  suit  on  an  account  stated  within  the  meaning  of  the 
Article  is  three  years  from  the  date  of  the  statement  of 
account.  The  only  thing  which  extends  such  period  is  a 
simultaneous  written  agreement  signed  by  the  defendant 
or  his  agent  making  the  debt  payable  at  a  future  time. 
The  simultaneous  verbal  agreement  therefore,  though 
held  proved  in  this  case,  cannot  have  the  effect  of  extend- 
ing the  three  years'  limitation. 

(1)  6  M.  H.  C.  E.,  197.      |      (2)  I.  L.  R.,  8  Bom.,  542. 

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ART.  64]         THE  8KC0ND  8CHEDULE,  F1R8T  DIVISION — 8UIT8. 


897 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

(g)  In  Nahanibai  t?.  Nathu  Bhau,W  a  sum  of  money 
was  deposited  with  the  defendant's  firm  in  1857  ;  three 
years  afterwards,  interest  was  paid  by  the  firm,  which 
was  debited  in  the  ledger  to  the  creditor  against  the 
credit  of  a  like  amount.  In  1875,  a  balance  was  struck 
and  carried  to  another  account  signed  by  the  defendant, 
acknowledging  the  same  to  be  "  due  for  balance  of 
old  account."  In  1878,  the  account  was  again  balanced, 
and  the  balance  was  again  transferred  to  a  fresh  account 
similarly  signed.  The  plaintiff  sued  in  1880  to  recover 
the  balance  due  on  account  signed  by  the  defendant 
on  the  26th  October,  1878.  It  was  held  that  the  trans- 
action did  not  amount  to  an  account  stated  within  the 
meaning  of  this  Article  to  constitute  which,  it  is  necessary 
to  have  entries  of  debits  and  credits  on  both  sides. 

(h.)  A  Khata  consisting  of  one  item  only  on  the  debit 
side  and  bearing  the  mark  of  the  debtor  was  held  to  be  a 
mere  acknowledgment,  and  not  an  account  stated.  Tri- 
bhovan  Gangaram  v.  Amina.W 

(i)  A,  being  the  holder  of  a  decree  against  B,  B  on 
the  7th  July,  1885,  entered  into  a  Kistbandi  and  filed  it 
in  court,  setting  out  that  he  would  pay  off  the  debt  due 
under  the  decree  *by  certain  instalments,  and  that,  in 
default  of  payment  of  one  instalment,  the  whole  amount 
of  the  debt  might  be  recovered  by  taking  out  execution 
of  the  decree.  By  the  Kistbandi,  certain  immoveable 
property  was  pledged  to  secure  the  debt,  but  the  Kist- 
bandi was  not  registered.  B  failed  to  pay  the  first  instal- 
ment, which  fell  due  on  the  14th  August,  1875,  and  A, 
on  the  19th  June,  1878,  applied  for  execution  of  his 
decree,  but  the  application  was  refused  and  A  referred  to 
a  regular  suit.     In  a  suit  brought   by  A  on  the  29th 


Case  of  an  ac- 
count signed, 
not  held  to  be 
an  account 
stated  as  there 
were  no  entries 
of   debts   and 
credits  on  both 
Bides. 


Khata  is  not  an 
account  stated. 


Kistbandi 
agreement  filed 
during  execu- 
tion, treated  as 
account  stated 
in  a  suit 
brought  on  the 
Kistbandi  to  en- 
force it. 


(1)  I.  L.  R.,  7  Bom.,  414.    |     (2)  I.  L.  R.,  9  Bom.,  616., 


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398 


THE  8EC0ND  8CHKDULE,  PIR8T  DIVISION — SUIT8. 


[art.  63 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

January,  1 879,  against  B  for  the  whole  debt  dne  under 
the  decree,  it  was  held,  that,  inasmuch  as  no  appeal  had 
been  preferred  against  the  order  disallowing  execution, 
A  was  bound  by  that  decision,  but  that  the  suit  might  be 
taken  to  be  one  for  an  account  stated  in  writing  with  an 
agreement  for  payment  at  a  certain  stated  period  of  .time 
as  regards  the  instalments  due,  which  were  not  barred 
by  limitation,  the  suit  as  regards  the  instalments  which 
had  not  fallen  due  being  premature,  and  those  previous 
to  the  29th  January,  1876,  being  barred  by  this  Article. 
Bhekhan  Dobey  v.  Rajroop  Kooer.(1> 

(j)     In  Dhum  Singh  v.  Ganga  Ram,<2)  in  September, 
1879,  D  executed  to  B  a  sale-deed  for  Rs.  55,000,  which  B 
m£hle  be*  was  *°  P11^  ky  giv^g  -0  credit  for  Rs.  33,000  which  he  owed 

sumedasanac-  to  B  before  September,  1879,  and  pay  the  balance  in  cash 


Old  balance 
shown  as  con* 
sideration  in  a 
sale-deed    not 


count  stated 

and  3  years  ai-  to  D.     B's  suit  for  specific  performance  of  the  contract  of 

lowed  from  the  r  r 

date  of  the  deed.  gaie  against  D  was  rejected  by  the  High  Court  in  March, 
1884.  In  September,  1884,  B  sued  D  for  recovery  of  the 
sum  of  Rs.  33,000  with  interest.  B  contended  that  the 
debt  should  be  treated  as  a  deposit  made  on  account  of 
sale.  It  was  held  that  assuming  that  an  account  was 
stated,  the  suit  was  barred,  as  it  was  not  brought  within 
three  years  from  the  latest  possible  date  on  which  the 
debt  can  be  said  to  have  become  due,  namely,  1st  Septem- 
ber, 1879. 


Three  years. 


When  the  time  speci- 
fied arrives  or  the 
contingency  hap- 
pens. 


65. — For  compensation  for 
breach  of  a  promise  to 
do  anything  at  a  speci- 
fied time,  or  upon  the 
happening  of  a  speci- 
fied contingency. 

(a)     (No.  63,  Act  IX.)     This  is  a  general  Article  for 
suits  for  compensation  for  the  breach  of  a  promise  not 
(1)  I.  L.  R.,  8  Calc,  912.        |        (2)  I.  L.  R.,  8  All.,  214. 


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ART.  65]  THE  SECOND  8CHKDULB,  FIRST  DIVISION — SUITS.  399 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

in  writing  to  do  anything,  while  Article  115  refers  to 
suits  for  compensation  for  breach  of  any  unregistered 
contract.  Article  116  relates  to  a  suit  on  a  registered 
contract.     Kishen  Lai  v.  Kinlock.W 

(b)  "Compensation"  is  the  general  term  used  in  the  "Compensa- 
Indian   Contract  Act  (section  73)  to  denote  the  payment 

which  a  party  is  entitled  to  claim  on  acccount  of  loss  or 
damage  arising  from  breach  of  contract.  Vythilinga 
Pillai  v.  Thetchanamurti  Pillai,W  and  the  suit  is  none 
the  less  a  suit  for  compensation,  because  it  is  brought  for 
the  specific  sum  due  on  a  bond.  G-anesh  Krishn  v. 
Madhavrav  Ravji.*3) 

(c)  A,  verbally  became  surety  upon  a  bond  executed  Where  &  surety 
by  B,  for  repayment   in  May,   1872,  to  the  plaintiff  of  principal  does 

.  i  ..  ,*-i.-r»i  .  not  pay  eventn- 

certam  advauces,  promising  "  if  B  does  not  pay  eventu-  ally  {»he$k  jm>. 
ally  (shesh  prqjunto)  I  will."     Default  was  made,  and  in  time  does  not 

.      .  .  run  in  favour  of 

April,  1878,  the  plaintiff  filed   a   suit   against  both  A  surety  until 

and  B,  the  suit  being  clearly  barred  as  against  the  latter,  mands  oompen- 

Held,  that  the  words  "  shesh  prqjunto"  could  not  be  taken 

as  limited  to  the  time  specified  in  the  bond,  and  that  the 

Lower  Court,  in  order  to  determine  whether  the  suit  was 

barred  against  A>  must  find  upon  the  evidence  when  a 

demand  was  made  upon  him  for  payment,  and  then  apply 

this  Article.     Bishumber  Dey  Poddar  v.   Hungsheshur 

Mookerjee.W 

(d)  Where  a  vendor  contracts  to  deliver  goods  within  When  a  party 
a  reasonable  time,  and  payment  is  to  be  made  on  delivery,  repudiates  it 
if  before  the  lapse  of  that  time  he  merely  expresses  an  party  may  at 
intention   not  to   perform   the   contract,   the   purchaser  at  once  or  wait 

*       x  1.   •         i-  x-  i  i.  .        -L-      tm«*piryof 

cannot  at  once  bring  his  action  unless  he  exercise  his  time  for  perfor. 
option  to  treat  the  contract  as  rescinded.     Mansuk  Das  v. 

(1)  I.  L.  R.,  3  All.,  712.  I  (3)  I.  L.  E.,  6  Bom.,  76. 

(2)  I.  L.  K.,  3  Mad.,  77.         |  (4)  4  C.  L.  B.,  34. 


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400  THK  8ECOND  8CHKDULB,  FIRST  DIVISION — BUIT8.  [ART.  66 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VI. 
Three  years. 

Rangayya  Chetti.W  As  to  the  doctrine  that  where  ap  arty 
to  contract  utterly  repudiates  it,  or  puts  it  out  of  his  power 
to  perform  it,  the  injured  party  may  at  his  option  sue  at 
once  or  wait  till  the  time  for  performance  has  elapsed, 
see  Hochster  v.  DeLatour  (2  E  A  B,  678 ;  22  L.  J.  Q.  B. 
455  S.  C.)  in  which  Campbell  C.  J.,  overruled  Parke  B'* 
doctrine  in  Phillpotts  v.  Evans,  (5  M  &  W.  475)  that  the 
injured  party  must  wait  till  the  time  fixed  for  perfor- 
mance. 


The  day  so  specified. 


66. — On  single  bond  where  a   Three  years, 
day  is  specified  for  pay- 
ment. 

single  bond  ex-        (a)     "  A  single  or  simple  bond  expresses  a  single  obli- 

ob^ation8with!  gation  without  alternative  conditions.    Compare  Lachman 

condition*.  w     Singh  v.  Kesri.    (1  Weekly  notes,  117.)     It  has  been  held 

by  the  Chief  Court,  Punjab,  that  the  word  bond,  as  used  in 

the  corresponding  Article  of  the  Act  of  1871,  includes  a 

tamssuk.     See  Shadiram  v.  Abdal  Rahman  (Punj.  Bee, 

No.  3  of  1874,)  and  Haji  v.  Mussammat  Hasan   (Ibid, 

No.  6.  of  1874.)     The  correctness   of  the  former  ruling 

has,  however,  been  doubted  by  a  majority  of  the  Pull 

Bench  of  the  same  court,  in  Nathu  v.  Darbari  (Punj.  Rec., 

No.  77  of  1879) ,  though  this  latter  case  was  decided  on 

the  ground  that  even  if  Article  66  of  the  second  schedule 

of  Act  IX  of  1871  applied  to  the  suit,  Article  58  of  the 

Act  xv  of  1877   same  Act  also  applied,  and  under  that  Article,  applying 

section  2  of  this  Act,  the  suit  was  in  time.     Under  the 

present  Act  this  question  will  have  to  be  decided  with 

reference  to  the  definition  of  "  bond"  now  given  in  section 

3."<2) 

dingle  bond  u »       (b)     In  Lachman  Singh  v.  Kesri/8)  plaintiff  sued  on 

bill  or  written  nnr^ 

engagement  for  the  loth  January,  1879,  on  a  mortgage  deed  by  way  of 

payment  of  * 

money  without  (i)  i  M.  H.  C.  E.,  162.   |   (2)  Rivaz'g  Limitation  Act,  p.  118. 

*»»**•  (3)  I.L.R.,4AU.,3.  P 


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ART.  66]         THE  SECOND  SCHBDULBJ,  FIRST  DIVISION — SUITS.  401 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

conditional  sale,  dated  3rd  February,  1871.     The  plaintiff  suit  for  money 

waived  his  claim  on   property  and  sued  for  money  as  mortgage  deed 

simple  debt.     It  was  held  that  this  Article  was  not  appli-  foreclosure  does 

cable,  as  the  claim  of  the  plaintiff  was  not  based  on  a  this  Article. 
single  bond,  that  is  to  say,  a  bill  or  written  engagement 
for  payment  of  money  without  a  penalty. 

(c)  In  Ganesh  Krishn  v.  Madhavrav  Ravji/1)  it  was  Suit  on  regis- 

i     in     ,i     j  -j    i  ./.  i.  i         tered bond  does 

held,  that  a  suit  to  recover  specific  sum  of  money  due  not  fail  under 

,  .  this  Article  116. 

upon  a  registered  bond  or  other  written  contract,  is  a  suit 

'  for  compensation  for  breach  of  contract  in  writing  regis- 
tered, within  the  meaning  of  Article  116. 

(d)  In  Narain  Babu  v.  Gouri  Persad  Bias/2)  the  de-  Bond    whioh 

v    '  makes  interest 

fendant  executed  a  bond,  which  provided  that  interest  payable  month- 

.      .  ly»  loan  in  six 

should  be  payable  monthly,  and  that  the  principal  should  months,  and  en- 

r   J  J  •  titles  creditor  to 

become  due  within  six  months  from  the  date  of  execution  ;  sue  within  time 
the  bond  contained  a  clause  to  the  effect  that  if  the  inter-  doubt  of  deb- 
est  should  not  be  paid  according  to  the  terms  of  the  bond,  fails  under  this 
or  if  the  creditor  should  feel  any  doubt  as  to  his  being  able 
to  realise  the  principal,  he  should  not  be  bound  to  wait  until 
the  expiry  of  the  six  months  in  order  to  bring  his  suit, 
but  should  be  at   liberty  to  realize  the  principal  and 
interest  in  any  manner  he  might  choose.     It  was  held 
that  the  suit  brought  •  within  three  years  from  the  date 
of  the  day  specified  for  payment,  was  not  barred  by  limi- 
tation and  that  the  suit  fell  under  the  corresponding 
Article  65  of  Act  IX  of  1871  and  not  under  Article  75. 

(6)  In  Ball  v.  Stowell,*8)  bond  specified  a  day  for  Bond  specify- 
repayment  of  principal,  and  entitled  the  creditor  to  sue  repayment  of 
before  or  after  the  term  on  failure  to  pay  any  instalment  entitling  oredi- 

•    *  .    ,  .  .  ,.  -  .  j  tor  to  sue  before 

of  interest  or  premium  on  a  policy  of  insurance  made  over  or  after  term 
to  the  creditor  by  way  of  collateral  security.    Spankie,  J.,  pay  interest  or 
observes:  "after  full  consideration  of  the  point,  I  come  Bervednotto 

fall  under  this 
(1)  I.  L.  R.,  6  Bom.,  75.         |  (2)  I.  L.  R.,  5  Calc,  21.  \rtiole. 

(3)  I.  L.  R.,  2  All.,  881 

51 

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402 


THE  8ECOND  8CHEDULK,  FIB8T  DIVISION — 8UIT8.    [AET.  67 69 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


When  the   condition 
is  broken. 

When  the  bill  or  note 
falls  due. 


Part  VI. 
Three  years, 

to  the  conclusion  tbat  there  is  something  more  in  the  bond 
than  meets  Article  66.  It  is  a  single  bond,  and  there  is 
a  day  specified  for  payment,  bnt  there  is  also  a  liability 
for  immediate  demand  of  the  entire  amount  due  before  the 
expiration  of  the  term  of  the  bond  on  the  occasion  of  default 
of  payment.  This  provision  may,  and,  I  think,  does  take 
the  bond  out  of  Article  66,  and,  in  the  absence  of  any  pro- 
vision for  it  in  the  schedule,  places  it  under  Article  80." 

67. — On  a  single  bond  where  I  Three  years.  IThe  date  of  executing 
no  such  day  is  specified.  |  |     the  bond. 

(No.  66,  Act  IX.) 

68. — On  a  bond  subject  to  a   Three  years, 
condition. 

(No.  67,  Act  IX.) 
69. — On  a  bill  of  exchange  or   Three  years, 
promissory  note   pay- 
able  at   a  fixed  time 
after  date. 

(a)  (No.  68,  Act  IX.)  Bill  of  exchange  is  a  negotiable 
security  in  the  form  of  an  open  letter  of  request,  or  an 
order  from  one  person  to  another,  desiring  him  to  pay, 
on  his  account,  a  sum  of  money  therein  mentioned  to  a 
third  person.  It  is  consequently  an  assignment  to  a 
third  person  of  a  debt  due  to  the  person  drawing  the  bill, 
from  the  person  upon  whom  it  is  drawn. — Wharton. 
Definition  by         Section  5,  Act  XXVI  of   1881,  defines   a  bill  of  ex- 

■ection  6  of  Act  .  ...  .    . 

xxn  of  1881.  change  to  be  an  instrument  in  writing  containing  an 
unconditional  order  signed  by  the  maker,  directing  a 
certain  person  to  pay  a  certain  sum  of  money  only  to,  or 
to  the  order  of,  a  certain  person  or  to  the  bearer  of  the 
instrument. 
Promiaaory  (b)     Section  4,  of  Act  XXVI  of  1881,  defines  a  pro- 

note*,  missory  note  to  be  an  instrument  in  writing  (not  being 

a  bank  note  or  a  currency  note)  containing  an  unoondi- 


Bill  of  ex. 
change. 


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ART.  70 — 72]     THE  SECOND  SCHEDULE,  FIR8T  DIVISION — 8UITS. 


403 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

tional  undertaking,  signed  by  the  maker,  to  pay  a  certain 
sum  of  money  only  to,  or  to  the  order  of,  a  certain 
person,  or  to  the  bearer  of  the  instrument. — It  is  generally 
negotiable  by  being  made  payable  to  order  or  to  the 
bearer,  for  it  is  rarely  made  payable  only  to  a  particular 
person  named  therein. — Wharton.  Regarding  the  date, 
maturity  of  the  negotiable  instrument,  see  sections  22 
to  25,  Act  XXVI  of  1881.  Article  78  provides  for  a  suit 
on  a  bill  of  exchange  dishooored  by  non-acceptance. 


When  the  bill  is  pre- 
sented. 


70. — On  a  bill  of  exchange   Three  years, 
payable   at    sight,   or 
after  sight,  but  not  at 
a  fixed  time. 

(No.  69,  Act  IX.)     As  to  presentment  for  payment,  see 
sections  62  to  76,  Act  XXVI  of  1881. 

(a)  Section  21  of  Act  XXVI  of  1881,  runs  thus  : — In  «At  sight"  "on 
a  promissory  note  or  bill  of  exchange,  the  expressions  "at  ^a^'right." 
sight"  and  "on  presentment"  mean  on  demand.  The 
expression  "  after  sight"  means,  in  a  promissory  note, 
after  presentment  for  sight,  and,  in  a  bill  of  exchange, 
after  acceptance,  or  noting  for  non-acceptance  or  protest 
for  non-acceptance. 

Three  years. 


When  the  bill  is  pre- 
sented at  that  place. 


When  the  fixed  time 
expires. 


71. — On  a  bill  of  exchange 
accepted,  payable  at  a 
particular  place. 
(No.  70,  Act  IX.) 

72. — On  a  bill  of  exchange  or  Three  years, 
promissory  note   pay- 
able  at   a  fixed   time 
after    sight    or    after 
demand. 
(a)     (No.  71,  Act  IX.)    Where  a  promissory  note  was   b.  h.  construed 

made  payable  "  after  six  months,   whenever  the  payee   six  months. 

should  demand  the  same,"  with  interest,  it  was  held  that   payee  should 

the  law  of  limitation  began  to  run  upon  the  expiration  of 


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THK  8ICOND  8CHBDULS,  FIE8T  DIVI8ION — BUIT8.  [ABT.  73 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


•under 
Act  XIV  of  1869. 
(March  1870.) 

Bnglith 


Past  VI. 
Three  years. 

six  months  from  the  date  of  the  note.     Jeaunissa  Ladli 
Begam  Saheb  v.  Manikji  Kharsetji.W 

(b)  "  In  the  case  of  a  bill  or  note  payable  at  a  fixed 
time  after  date,  the  Statute  runs  only  from  the  time  at 
which  they  become  due,  and  that  even  if  the  action  is  for 
money  lent  for  which  the  note  is  a  security,  (Witter- 
sheim  v.  Countess  of  Carlisle,  1  Hy.  Blacks.  631  ;  Buckler 
v.  Moore,  1  Mod,  89),  because  the  money  does  not  become 
payable  till  the  time  has  expired.  If,  however,  the  bill 
be  payable  at  sight,  the  Statute  runs  from  the  present- 
ment,  (Dixon  t>.  Nuttall  1  Cr.  M.  and  R.  307  ;  Holmes  v. 
Kerrison,  2  Taun,  323,)  but  if  payable  at  a  specified  period 
after  sight  or  after  demand,  it  does  not  begin  to  run  till 
the  expiration  of  such  period.  (Thorpe  v.  Booth,  1  Ry. 
and  Moo.  388  ;  and  see  Moore  v.  Petchell,  22  Beav,  172.) 
Where,  however,  a  defendant  accepted  a  bill  in  blank 
which  was  not  filled  up  for  12  years,  it  was  held  that  he 
was  liable  at  the  suit  of  an  innocent  holder  for  value,  and 
that  the  time  did  not  begin  to  run  till  the  bill  became  due 
as  filled  up.  If,  however,  a  bill  or  note  be  made  payable 
on  demand,  the  Statute  runs  from  the  date  of  making  or 
accepting,  because  the  bill  or  note  is  payable  immediately, 
and  no  demand  iB  necessary.  And  the  same  rule  applies 
to  any  promise  to  pay  on  demand/2) 


Three  years. 


The  date 
or  note. 


of  the  bill 


73. — On  a  bill  of  exchange  or 
promissory  note  pay- 
able on  demand  and 
not  accompanied  by 
any  writing  restrain- 
ing or  postponing  the 
right  to  sue. 

This  Article  (a)     (No.  72,  Act  IX.)  In  San jivit>.  Errapa,W  plaintiff 

p?£no£^I™  sued  for  money  on   a  pro-note  dated  September,  1875, 

*l6^dSS?ia  thereby  defendant  promised  payment  with  interest  at 

within  six  any  time  within  six  years  on   demand.     Demand  was 

(1)  7  B.  H.  C.  R.,  36.  |  (2)  Darby  and  Boeanqnet,  p.  19. 

(8)  I.L.R.,6Mad.,290. 


years. 


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ART.  74 — 75]   THE  SECOND  SCHEDULE,  FIRST  DITI8ION — 8UIT8. 


405 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years 

made  in  February  and  the  suit  brought  in  March,  1881. 
It  was  held  that  it  was  not  simply  a  pro-note  payable 
on  demand,  bat  a  special  agreement  which  is  not  forbid- 
den by  the  Limitation  Act,  and  as  no  period  of  limitation 
has  been  specially  provided  for  suit  on  such  an  agreement 
the  case  was  governed  by  Article  120. 

(b)     In  Natha  Hira  v.  Janardhan  Ramchandra,*1)  the  o.  s. 

holder  of  a  promissory  note  payable  on  demand,  dated  ~  Jote°payi 
14th  •  April,  1870,  demanded  payment  on  8th  December,  We  ondemai 
1872.  The  maker  then  paid  interest  in  advance  np  to  terest  in  ad- 
1st  April,  1873,  upon  the  condition  that  the  holder  should  ttxtsta'&g'o 
make  no  demand  until  that  date.  It  was  held  that  this 
transaction  amounted  to  the  substitution  of  a  new  con- 


-  on 

condition  of  not 
demanding  np 
to   that  day, 
.  ,  makes  the 

tract  for  that  contained  in  the  promissory  note  ;  that  the  transaction  a 

period  of  limitation  must  be  reckoned  from  1st  April,  new  ono' 

1873  ;  and  that  consequently,  a  suit  to  recover  the  balance 

due  on  the  note  instituted  on  27th  March,  1876,  was  not 

barred  under  schedule  2,  clause  72  of  Act  IX  of  1871. 


74. — On  a  promissory  note  or 
bond  payable  by  in- 
stalments. 


(No.  74,  Act  IX.) 

75. — On  a  promissory  note  or 
bond  payable  by  instal- 
ments, which  provides 
that,  if  default  be  made 
in  payment  of  one  in- 
stalment, the  whole 
shall  be  due. 


Three  years. 


Three  years. 


The  expiration  of  the 
first  term  of  pay- 
ment, as  to  the  part 
then  payable ;  and, 
for  the  other  parts, 
the  expiration  of  the 
respective  terms  of 
payment. 

When  the  first  default 
is  made,  unless 
where  the  payee  or 
obligee  waives  the 
benefit  of  the  pro- 
vision, and  then 
when  fresh  default 
is  made  in  respect 
of  which  there  is  no 
such  waiver. 


(1)  I.  L.  R.,  1  Bom.,  603. 


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406 


THK  8BCOND  SCHEDULE,  FIRST  DIVISION — 8UITS.  [ABT.  75 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


C.H. 
This  clause  does 
notapply  to 
Torbsl  oon- 
trscts. 


C.H. 

Suit  on  an  in- 
stalment bond 
entitling  cre- 
ditor to  sue  for 
the  whole  debt 
on  first  default 
or  not  to  wait 
till   expiry  of 
term  if  he  doubt- 
ed his  ability  to 
realise  debt, 
held  to  fall  un- 
der Article  66 
Act  IX  of  1871. 

Creditor  may 
waive  the  bene- 
fit of  the  pro- 
vision flwflffi^g 


Part  VI. 
Three  years. 

(a)  (No.  75,  Act  IX.)  The  principle  of  waiver  was 
applied  by  the  Madras  High  Court  in  February,  1870, 
in  the  case  reported  at  5  Mad.  H.  C.  Report,  p.  198,  and 
the  principle  was,  for  the  first  time,  introduced  in  the 
corresponding  Article  of  Act  IX  of  1871.  The  same  pro- 
vision has  been  reproduced  with  the  addition  of  the 
words,  "  in  respect  of  which  there  is  no  such  waiver,"  thus 
making  it  clear  that  waiver  may  be  repeated. 

(b)  In  Koylash  Ghunder  Dass  v.  Boykoonto  Nath 
Chundra,^)  a  debtor  entered  into  a  verbal  contract  with 
his  creditor  to  pay  a  debt  due  in  monthly  instalments, 
the  creditor  reserving  to  himself  the  right  to  claim 
payment  of  the  whole  sum  due  on  default  of  three  succes- 
sive instalments.  The  debtor  failed  to  pay  any  instalment. 
Four  years  after  the  first  instalment  was  due,  the  credi- 
tor sued  the  debtor  to  recover  the  sum  due  on  the  various 
instalments  not  barred  by  limitation.  It  was  held,  that 
the  creditor  was  not  bound  to  sue  for  the  whole  amount 
due  directly  on  the  debtor's  failure  to  pay  the  three 
successive  instalments.  It  was  further  held  that  this 
clause  does  not  apply  according  to  its  strict  terms  to  a 
suit  brought  upon  a  verbal  contract.  Vide  last  note  under 
Article  57. 

(C)  In  Narain  Babu  v.  Gouri  Persad  Bias/*)  bond 
provided  for  payment  of  interest  monthly  and  principal 
within  six  months  from  the  date  of  the  bond  and  allowed 
the  creditor  that  in  default  of  payment  of  interest,  or  if 
he  felt  any  doubt  as  to  his  being  able  to  realize  the  debt, 
he  was  not  bound  to  wait  till  the  expiry  of  the  term.  It 
was  held  that  the  suit  was  not  governed  by  Article  75  of 
Act  IX  of  1871. 

(d)    In  Sri  Raja  Satracherla  v.  Sri  Raja  Setarama,<3> 

(1)  I.  L.  E.,  3  Calc,  619.      |        (2)  I.  L.  E.,  5  Calo.,  21. 
(3)  I.  L.  E.,  3  Mad.,  61. 


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ART.  75]         THB  SECOND  SCHEDULE,  FIRST  DIVI8ION — SUITS.  407 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which 
period  begins  to  run. 


Part  VI. 
Three  years. 

loan-bond  dated  April  1867,  provided  for  repayment  of  Rs.   him  to  recover 

entire  debt  not 

6,000,  by  eight  equal  yearly  instalments  of  Rs.  750  each,  the  only  on  the 
first  to  be  paid  on  the  18th  February,  1868.  The  first  subsequent  de- 
instalment  was  not  paid  on  the  due  date,  but  was  paid  in 
May,  1868.  Default  was  made  in  the  2nd,  3rd  and  4th  in- 
stalments. Eight  months  after  the  4th  instalment  fell  due, 
the  defendant  paid  into  the  Collector's  treasury  Rs.  937 
towards  the  bond  amount,  as  the  Collector  was  in  charge 
of  the  plaintiff's  estate  as  agent  for  the  Court  of  Wards. 
The  bond  provided  that  in  default  of  payment  of  any  one 
of  the  instalments  the  sum  then  remaining  unpaid  should 
become  due.  It  was  held,  that  the  creditor,  though  he 
can  elect  but  once  to  enforce  the  alternative  provision  in 
the  document,  may  waive  the  benefit  of  it  not  only  on  the 
first,  but  on  any  subsequent  default. 

(6)     Where  a  bond  for  the  payment  of  money  by  in-  Waiver  is  not 
stalments  contains  a  condition  that  on  failure  to  pay  any  from  a  mere  ab- 
one  instalment  the  whole  sum  then  remaining  due  shall  from  accept- 
become  payable,  the  creditor  who  seeks  to  recover  instal-  ment  after  'de- 


ments which  in  due  course  would  have  been  due 
subsequent  to  the  date  on  which  the  recovery  of  the  debt 
in  full  has  become  barred,  must  prove  a  waiver  of  his 
right  to  enforce  the  condition.  In  this  case  plaintiff 
offered  no  evidence  of  anything  by  which  a  waiver  could 
be  proved,  or  from  which  it  is  to  be  inferred ;  all  that  ap- 
peared was  that  the  creditor  had  remained  inactive. 
Waiver  is  not  to  be  inferred  from  a  mere  abstinence  to 
enforce  the  remedy  which  accrued  to  the  creditor  on  the 
default.     Gopala  v.  Paramma/1)  Sethu  v.  Nayana-W 

(f)     In  the  matter  of  Cheni  Bash  Shaha  v.  Kadum  Aooeptanoe  of 

lnetalmenta  af- 

Mundul,<8)  it  was  held,  that  a  waiver  of  the  condition  by  ter  default  ope- 
which  in  default  of  payment  of  any  one  instalment,  the  waiver. 


(1)  I.  L.  R.,  7  Mad.,  583.      |     (2)  I.  L.  R.,  7  Mad.,  577. 
(3)  I.  L.  R.,  5  Calc.,  97. 


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408 


THE  SECOND  SCHEDULE,  FIRST  DIVISION — 8UITS.  [ABT.  75 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


A.  H. 
A  waiver  most 
be  an  intention- 
al act  with 
knowledge,  and 
it  is  incumbent 
on  any  party 
insisting  on  a 
verbal  agree- 
ment  in  substi- 
tution of  a 
written  con- 
tract, to  show 
that  both 
parties  under- 
stood the  terms 
of  the  substi- 
tuted agreement 
(April,  1880.) 


Decision  of  the 
Bombay  High 
Court. 
(January  1876.) 


Subsequent 
payment  will 
not  defeat 
plaintiff's  right 
to  immediate 
payment  of  the 
whole  debt. 


Before  Act  IX 
of  1871,  mere 
acceptance  of 


Part  VI. 
Three  years. 

whole  amount  unpaid  became  immediately  payable,  con- 
sists in  the  receipt  of  an  instalment  after  due  date  instead 
of  insisting  on  payment  in  full.  But  a  creditor  merely 
allowing  the  default  to  pass  unnoticed,  does  not  operate 
as  a  waiver. 

(g)     In  Mumford  v.  Peal/1)  it  was  held,  that  the  mere 
acceptance  by  the  obligee  of  a  bond  payable  by  instalments, 
of  instalments  after  default,  does  not  constitute  a  waiver 
within  Article  75  of  Act  IX  of  1871,  and  that  limitation 
runs  in  such  a  case  from  the  first  default.     Straight,  J- 
observes  :  "  On  the  contrary,  I  think  that  the  most  cogent 
and  conclusive  proof  must  be  demanded  to  establish  that 
a  party  to  a  contract  has  abandoned  a  right  accruing  to 
him  under  its  provisions  on  breach,  and  has  entered  into 
some  fresh   parol   arrangement    condoning   such  breach 
and  creating  new  relations  with  the  party  in   default. 
A  waiver  must  be  an  intentional  act  with  knowledge,  and 
it  is  incumbent  on  any  party  insisting  on  a  verbal  agree- 
ment in  substitution  of  a  written  contract  to  show  that 
both   parties   understood  the   terms  of  the  substituted 
agreement.    The  Earl  of  Daraley  v.    The  London,  Chatham 
and   Dover  Railway,   00."     (L.  J.,  36  Eq.,  404.)     The 
Bombay  High   Court  in  Gumna  Dambershet  v.  Bhiku 
Hariba  and  another/2)  which  was  a  suit  instituted  in 
October,  1871,  upon  an  instalment  bond,  held  in  February, 
1876,  that  the  plaintiff's  right  to  the  immediate  payment 
of  the  whole  amount  was  not,  under   the  note,    subject 
to  be  defeated  by  any  subsequent  payment,  and  that  no 
such  subsequent  payment    (assuming  it  to   have  been 
made)   could,  in  the   absence   of  any  fresh  agreement, 
supersede  or  suspend  such  right. 

(h.)     In  Hurronauth  Roy  v.  Maheroollah  Moollah/8) 

(1)  I.  L.  E.,  2  AIL,  857.     |     (2)  I.  L.  R.,  1  Bom.,  126. 
(3)  7  W.  R.,  21. 


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AET.  75]  THK  SKCOND  SCHEDULE,  FIE8T  DIVISION — SUITS.  409 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
%  begins  to  ran. 


Part  VI. 
Three  years. 

which  was  a  suit  brought  upon  an  instalment-bond  and  an  instalment 
not  upon  any  fresh  agreement  between  the  parties,  the  thedefauit held 

.,,....  ,     ,,    ,  „  ,,         .  ,  not  to  help  the 

period  of  limitation  was  held  to  run  from  the  time  when  plaintiff  in  any 
default  was  made  in  payment  of  the  first  instalment  in  (January  1867.) 
consequence  of  which  the  whole  amount  became  due. 
In  Ahmad  Ali  v.  Hafiza  Bibi,M  defendant,  on  the  24th 
May,  1866,  gave  plaintiff  a  bond  payable  by  instalments, 
which  provided  that,  if  default  were  made  in  the  pay- 
ment of  one  instalment,  the  whole  should  be  due.  The 
first  default  was  made  on  the  28th  June,  1866.  No 
payment  was  made  after  Act  IX  of  1871,  schedule  2,  No. 
75  came  into  force.  It  was  held  in  a  suit  upon  such  bond 
that  limitation  began  to  run  when  the  first  default  was 
made,  and  that  no  waiver  before  Act  IX  of  1871  came 
into  force  could  affect  it. 

(i)     In   Racrho  Govind   Paranjpe  v.  Dipchand,W  the  Agreement 

*        /        *  *    j  *       a  *£         i_  j   i_x    entitling  credi- 

bond  sued  on  provided  for  the  recovery  of  the  whole  debt  tor  to  demand 
,  .      A    i  ,        t%   *      n  ,     .       the  whole  debt 

on  failure  to  pay  any  instalment.     Default  was  made  in  in  default  of 

the  second  instalment  due  in  August,  1878,  and  the  is  not  a  penal 
plaintiff  sued  for  the  whole  debt.  The  Lower  Court  gave 
judgment  for  plaintiff  for  payment  according  to  instal- 
ments. It  was  held  in  appeal  that  the  obligee  may  waive 
the  default  under  this  Article,  but  the  courts  have  no 
power  to  compoJ  him  to  waive  it.  The  stipulation  that 
creditor  may  demand  immediate  payment  of  the  whole 
debt  in  default  of  one  instalment  is  not  in  the  nature  of  Court  has  no 
a  penalty,  and  that  section  210  does  not  confer  any  autho-  5eve  acontract- 

rity  on  the  courts  to  relieve  a  contracting  party  from  such  such  eupuia- 

,.      ,   ,.  Won. 

stipulation. 

(j)     In  Hanmantram  Sadhuram  Pity  v.  Arthur  Bow-  where  the 

lea/3)  bond  dated  20th  August,  1879,  provided  that  in  default  of  one 

default  of  payment  of  any  one  instalment  and  of  the  payable  on 

(1)  I.  L.  R.,  3  All.,  514.      |      (2)  I.  L.  R.,  4  Bom.,  96.  tfa^on^- 

(3)  I.  L.  R.,  8  Bom.,  661.  es  from  demand. 

52 

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410  THE  SECOND  SCHEDULE,  FIRST  DIVISION — SUITS.  [ART.  75 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

premium  money  when  doe,  the  defendant,  if  so  required 

by  the  plaintiff,  his  executors,  Ac,  shall  pay  the  whole 

amount  which  may  be  due.     The  defendant  paid  three 

instalments,  the   last  of  which  was   paid  on  the   2nd 

December,    1879,   for  the  instalment   due   on    the   4th 

November,  1879.     No  further  instalments  were  paid,  and 

until  the  30th    January,    1884,   the    plaintiff  made  no 

demand  for  payment  of  the  entire  sum  and  filed  the  suit 

on  the  28th  April,  1884.     It  was  held,  that  the  suit  was 

not  barred  as  cause  of  action  did  not  arise  until  the  30th 

January,  1884.     It  was  held  that,  as  the  intention  of  the 

parties  was  that  in   case  of  default  of  payment  of  one 

instalment,  the  whole  amount  should  become  due  only  if  a 

demand  for  such  amount  was  made,  cause  of  action  did 

Birdwood,  J.,      not  arise  until  the  date  of  demand.    Bird  wood,  J.,  observes, 

this  case  from  "the  words;  if  so  required,  <fcc.,"  give  the  plaintiff   the 
cases  where 

payment  of  the  option  of  either  demanding  payment  of  the  whole  amount 

whole  debt  on  ,    ,      .,  ,     .  ,      .  A       .  .      x   _ 

default  of  one  on  default  being  made  in  payment  of  one  instalment,  or 

instalment  was 

not  conditional  of  waiving  the  benefit  of  the  provision  which  enables  him 

on  demand. 

to  make  the  demand.  In  such  a  case,  the  mere  forbearance 
to  make  a  demand  would  amount  to  a  waiver.  It  would, 
indeed,  be  a  deliberate  omission  to  realize  the  condition  on 
which  the  whole  amount  became  payable,  and  by  such 
forbearance  the  plaintiff  would  deprive  himself,  so  long 
as  he  continued  it  and  had  the  right  to  do  so,  of  the  right 
to  maintain  an  action  for  the  whole  amount.  It  would, 
of  course,  be  otherwise  if  the  whole  amount  of  the  bond 
had  become  payable,  irrespective  of  any  demand,  as  soon 
as  default  was  made  in  the  payment  of  any  one  instalment. 
In  that  case,  although  plaintiff  would  have  the  option  of 
suing  for  the  whole  amount  at  once  or  of  waiting,  yet  his 
forbearance  to  sue  would  not  affect  the  defendant's  liability 
to  a  suit  from  the  time  of  the  default.  To  such  a  case  the 
words  of  Lord  Denman,  C.  J.,  in  Hemp  v.  Garland  (quoted 


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ART.  75]  THE  SECOND  SCHEDULE,  FIB8T  DIVISION SUITS.  411 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

in  Navalmal  v.  Dhondiba,  11  Bom.,  H.  0.  Rep.  at  p.  158) 
would  be  applicable.  '  If  he  (the  plaintiff)  chose  to  wait 
till  all  the  instalment  became  due,  no  doubt,  he  might  do 
so ;  but  that  which  was  optional  on  the  part  of  the  plaintiff 
would  not  affect  the  right  of  the  defendant,  who  might 
well  consider  the  action  as  accruing  from  the  time  the 
plaintiff  had  a  right  to  maintain  it.'  In  the  case  of  an 
instalment  bond  providing  for  the  payment  of  the  whole 
debt,  on  default  of  payment  of  one  instalment,  the  creditor 
receiving  an  instalment  after  its  due  date,  instead  of 
insisting  on  payment  in  full,  would  clearly  be  a  waiver  of 
the  provision  made  for  his  benefit.     (Vide  also  Note  F.J 

(k)     This  Article  in  effect  creates  a  case  of  election  as   There  can  be  no 
each  instalment  becomes  overdue,  and  after  the  last  instal-   last7 Instalment 
ment  becomes  overdue,  there  can  be  no  election  for  the         me8  ue* 
obvious  reason  that  there  are  no  two  obligations  to  elect 
between.    Mackenzie  v.  Tiruvengadathan.t1) 

(1)     In  Ball  v.  Stowell,<3)  B  and  S,  executed  a  bond  Bond  specify, 
dated  the  15th  August,  1874,  in  favor  of  plaintiff  in  payment  <rf  **" 
consideration  of  a  loan  of  Rs.  15,000,  agreeing  to  repay  the  entitling  'credi- 
same  within  three  years  from  the  above  date  and  cove-  fore  or  after 
nanting  to  pay  every  half-year  interest  on  the  same,  at  to  pay  any 
the  rate  of  8  per  cent,  per  annum ;  and  also  to  pay  the  interest  or  pre- 


premia  on  certain  policies  of  insurance  made  over  to  is  not  an  instai- 
plaintiff  by  way  of  collateral  security.  In  the  event  of  ArUcie.eo  ap- 
failure  in  payment  on  due  date  of  interest  and  premia, 
the  obligors  made  themselves  liable  to  pay  the  full 
amount  of  the  bond  debt.  The  bond  also  contained  the 
stipulation  that  it  should  be  optional  with  the  obligee 
to  claim,  and  if  necessary,  to  sue  for  the  full  amount  of  the 
bond  on  the  failure  of  any  one  or  more  stipulated  payment, 
or  on  the  full  expiry  of  the  period  of  three  years.     It  was 


(1)  I.  L.  R.,  9  Mad.,  271.    |      (2)  I.  L.  R.,  2  All.,  322. 

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412  THE  SECOND  SCHEDULE,  FIRST  DIV18ION — 8U1TS.  [ART.  75 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

Limitation  runs  held,  that  the  hond  was  not  an  instalment  bond  under  this 

payment  of       Article.     Spankie,  J.,  observes,  that  Article  80  applies 

and  premium     to  the  suit  and  that  limitation  would  run  from  the  date 

lure  of  payment  when  the  bond  became  due,  and  that  according  to  the 

stipulation  in  the  bond  it  would  become  due  on  failure  in 

payment  on  date  of  both  the  interest  and  premia  and  not 

on  failure  of  payment  of  either  of  them  only. 

(m)     In  Dulsook  Rattanchand  v.  Chugon  Narrun,^)  it 

was  held  that  a  decree  payable  by  instalments  with  a 

proviso  that  in  default  of  payment  of  any  one  instalment, 

the  whole  amount  of  the  decree  shall  become  payable  at 

Some  decisions    once,  is  barred,  if  application  for  execution  be  not  made 

held  that  this  .      '  ,  r\  . 

Article  does  not  within   three  years   from  the   date  on  which  any  one 

apply  to  decrees    ..,.»,.,  ,  . ,        „,,  m 

directing  pay-    instalment  fell  due  and  was  not  paid.     The  payment  of 

ment  by  instal- 
ments and  pro-  instalments  subsequent  to  default  in  payment  of  the  first 

viding  for  pay- 
ment of  the       instalment  at  the  date  specified,  does  not  give  the  judg- 
whole  sum  on 

default  of  pay-  ment-creditor  a  fresh  starting  point.     Westropp,  C.  J., 

ment  of  any  one 

instalment.  observes  :  "  there  is  not  in  the  last  clause  of  Article  167 
of  schedule  2  of  Act  IX  of  1871,  which  relates  to  decrees 
payable  by  instalments,  any  provision  similar  to  that  in 
Article  75  of  the  same  schedule  with  respect  to  pro- 
missory notes  or  bonds  payable   by   instalments ;  where 

Observations  of  such  notes  or  bonds  provide  that,  if  default  be  made  in 
payment  of  one  instalment,  the  whole  shall  be  due,  fixing 
that  the  period  of  limitation  shall  begin  to  run  from  the 
time  of  the  first  default,  unless  where  the  obligee  waives  the 

Decisions  of  b.  benefit  of  the  provision,  and  then  when  fresh  default  is 

H  &  A  H 

made.     Nor  does  there  appear  to  be  in  the  new  Limita- 
tion Act  XV  of  1877,  schedule  2,  Article  179,  clause  6, 
relating  to  decrees  payable  by  instalments,  any  such  pro- 
Observations  of  vision."     In  Shib  Dat  v.  Kalka  Prasad/*)  it  was  held, 
uuthoit*  JE  J.      that  the  holder  of  a  decree  for  money  payable  by  instal- 

(1)  I.  L.  R.,  2  Bom.,  356.       |  (2)  I.  L.  R.,  2  AIL,  444. 

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AST.  76]  THJS  SECOND  8CHKDULE,  FIB8T  DIVISION — SUITS. 


413 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

ments  was  strictly  bound  by  the  terms  of  the  decree. 
Spankie,  J.,  observes  that :  "  In  my  opinion,  the  decree 
holder  was  bound  strictly  by  the  terms  of  the  decree. 
When  the  first  default  occurred,  under  the  wording  of  the 
decree,  he  was  bound  to  execute  it  in  one  lump.  The 
instalment  arrangement  then  ceased.  If  the  decree  holder 
chose  to  continue  to  receive  instalments,  he  did  so  at  his 
own  risk."  In  Ugrah  Nath  v.  Laganmani/1)  Duthoit,  J., 
observes :  "  our  sympathies  are  necessarily  with  the  res- 
pondent, but  we  are  of  opinion  that  the  appeal  must 
prevail.  The  provisions  of  column  3,  Article  75,  schedule 
2,  Act  XV  of  1877,  are  not  applicable  to  the  circumstances 
of  this  case ;  for  the  claim  is  not  on  a  promissory  note  or 
a  bond,  and  it  is  an  application,  not  a  suit.  Article  179, 
contains  the  law  which  most  govern  it." 

(n)  Several  decrees  holding  that  right  to  execute  the 
whole  decree  on  the  first  default  may  be  waived  so  as  to 
entitle  decree-holder  to  enforce  subsequent  instalments 
falling  due  within  three  years,  have  been  collected  under 
the  head  instalment  decrees,  under  Article  179. 


Court  expresses 
sympathy  with 
decree  holders 
losing  debt 
from  inapplica- 
bility of  the  Ar- 
ticle. 


Decisions  to  the 
contrary  hare 
been  collected 
nnder  Article 
179. 


Three  years. 


The  date 
very  to 


76. — On   a    promissory   note 

given  by  the  maker  to 

a   third  person  to  be 

delivered  to  the  payee 

after   a  certain   event 

should  happen. 
(ft)  (No.  76,  Act  IX.)  Where,  however,  a  note  payable 
on  demand  was  deposited  with  a  banker  for  delivery  to 
the  payee  on  his  producing  another  note  cancelled,  it  was 
held  that  the  payee  had  no  ground  of  action  till  the 
note  was  delivered,  and  that  therefore  the  statute  ran 
only  from  that  time.  (Savage  v.  Aldren,  2  Stark,  232.)(a> 
This  Article  76  does  not  say  that  the  promissory  note 
must  be  one  payable  an  demand. 

(1)  I.  L.  R.,  4  All.,  88.   )    (2)  Darby  and  Bonoanquet,  p.  20. 

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414  THE  8BC0ND  SCHEDULE,  FIB8T  DIVISION 8UIT8.    [ABT.  77 — 79 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 


When  the 
given. 


notice  is 


Inland  BilL 


77. — On  a  dishonoured  foreign 
bill  where  protest  has 
been  made  and  notice 
given. 

fa)  (No.  77,  Act  IX.)  Sections  11  and  12  of  Act 
XXVI  of  1881,  define  an  inland  and  foreign  bill.  Section 
11 :  A  promissory  note,  bill  of  exchange  or  cheque,  drawn 
or  made  in  British  India,  and  made  payable  in,  or  drawn 
upon  any  person,  resident  in  British  India,  shall  be  deemed 
to  be  an  inland  instrument.  Section  12.  Any  such 
instrument  not  so  drawn  or  made  payable  shall  be  deemed 
to  be  a  foreign  instrument.  As  to  dishonor,  notice  and 
protest,  see  sections  91  to  99  of  Act  XXVI  of  1881. 

(b)  When  a  foreign  bill  has  been  dishonored,  and 
duly  protested,  and  notice  given,  the  statute  begins  to 
run  immediately  notice  is  given,  not  from  the  time  at 
which  the  bill  would  have  become  due.  Whitehead  v. 
Walker,  9  M  and  W  506.)  (D 


Foreign  BUM 


English  Law. 


Three  years. 


78. — By  the  payee  against 
the  drawer  of  a  bill  of 
exchange  which  has 
been  dishonoured  by 
non-acceptance. 

(a)     (No.  78,  Act  IX.) 


The  date  of  the  refusal 
to  accept. 


According  to  English  cases, 
'Ifa 


According  to 

time  runs  from  time  runs  when  notice  of  non-acceptance  is  given. 

acceptance.  bill  of  exchange  is  dishonored,  an  action  lies  against  the 
drawer  at  the  suit  of  the  payee  immediately  upon  the 
latter  giving  notice  of  the  non-acceptance."  (Milford  v. 
Mayer,  1  Doug.  55  ;  Hickling  v.  Hardy,  7  Taun,  312.)<*> 


79. — By     the     acceptor     of 
an  accommodation-bill 
against  the  drawer. 
(No.  81,  Act  XI.) 


Three  years. 


When  the  acceptor 
pays  the  amount  of 
the  bill. 


(1)  Darby  and  Bosanqnet,  p.  23. 

(2)  Ibid. 


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ART.  80 — 83]    THE  SKCOND  SCHEDULE,  F1BST  DIVISION 8U1T8. 


415 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


When  the  bill,  note 
or  bond  becomes 
payable. 


Part  VI. 
80.— Suit   on   a  bill    of   ex*   Three  years, 
change,       promissory 
note  or  bond  not  herein 
expressly  provided  for. 

(ft)     (No.  80,  Act  IX.)    In  suits  against  Government,  suits  on  Go- 
on  Government  promissory  notes,  limitation  runs  from  missory\otes" 
the  date  on  which  the  note  becomes  payable  after  notice  nSnt!*'60™"1* 
given  in  the  Gazette  in  accordance  with  the  terms  of  the 
loan.     (See  Financial  Notification,  No.  59,  dated  the  1  lth 
January,  1882.) 

81. — By  a  surety  against  the  Three  years.  When  the  surety  pays 
principal  debtor.  the  creditor. 

82. — By  a  surety  against  a  Three  years.  When  the  surety  pays 
co-surety.  anything  in  excess 

of  his  own  share. 

(a)  (Nos.  82,  83,  Act  IX.)     Held,  "  that  this  Article  Article  si  ftp- 
should  be  construed  as  restricted  to  sureties  who  have  who  has  paid 
paid  the  creditor  and  not  as  extending  to  sureties  who  not  to  a  surety 
have  not  paid  the    creditor,   but  have  been  compelled  pay  contribu- 
te pay  contribution  to  a  co-surety  who   has   paid   the  surety. 
creditor.     Such  a  suit  by  a  co-surety  against  the  princi- 
pal debtor  would  fall  under  Article  86.    (Madar  Baksh  v. 

Ahmed  Ali,  (Punj  Rec.  No.  98  of  1881.)<D 

(b)  A  surety,  who  had  discharged  the  amount  of  a  Suit  by  surety 
bill  guaranteed  by  him,  and  another,  as  co-surety,  sued  his  surety.  °°^ 
co-surety  for  contribution.     It  was  held  that  the  cause  of 

action  in  the  suit  being  the  right  to  contribution,  that  right 
accrued,  not  when  the  bill  in  question  was  dishonored, 
but  when  the  surety  took  it  up  and  paid  it.  Constantino 
v  Drew.W 

83. — Upon  any  other  contract 
to  indemnify. 

(a)     (No.  84,  Act  IX.)    In  Pragi  Lai  v.  Maxwell,<3>    case  where  de- 
plaintiff  brought  the  suit  on  the  10th  of  October,  1882,  of  damages  as 

a  set  off  against 
(1)  Rivaz's  Limitation  Act,  p.  123.  |    (2)  1.  N.-W.  P.  H.  C.  R.,  100.   the  plaintiff's 
(3)  I.  L.  R.,  7  All.,  284. 


Three  years.  I  When  the  plaintiff  is 
I     actually  damnified. 


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416  THE  81C0ND  SCHEDULE,  F1E8T  DIVISION — SUITS.  [ART.  83 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

claim  was  held  to  recover  the  balance  due  to  him  from  the  defendants,  for 
this  Article.        firewood  supplied  by  the  former,  the  bill  for  the  said 
balance  having  been  presented  by  the  plaintiffs  to  the 
defendants  on  the   11th  November,  1879.     Defendants, 
who  claimed  a  set  off  of  damages  incurred  on  and  after 
the  25th  October,   1879,  were  made  parties  on  the  11th 
of  January,  1883.     Plaintiff  objected  to  the  set  off  claimed 
by  the  defendants,  upon  the  ground  that  the   damages 
were  admittedly  incurred  on  the   25  th  of  October,  and 
the  claim  for  the  same  was  actually  made  by  the  defen- 
dants on  the  14th  of  January,  1883,  or  after  three  years 
from  the  date  on  which   the  defendants    were  actually 
damnified.     The   defendants  pleaded  the  bar  against  a 
portion  of  the  claim  of  the  plaintiffs  on  the  ground  that 
the  value  of  firewood  became  due  on  the  several  dates 
on  which  the  firewood  was  supplied  and  that  therefore 
Article  52  applied.     It  was  held  that  the  Article  appli- 
cable to  the  defendants'  set  off  was  this,  and  the  period  of 
Limitation  cai-  limitation  ought  to  be  calculated  from  the  date  on  which 
the  date  of  da-  the  defendants  were  actually  damnified  to  the  date  of  the 
of  suit  though  suit,  although  the  defendants  were  made  parties  subse- 
were  made        quently,  and  that  therefore  the  set  off  was  not  statute 

parties  subse- 

quently.  barrred. 

Plaintiff's  right       (b)     In  Pepin  v.  Chunder  See  Kur  Mookerjee,*1)  lease 

to   indemnity  .  .    . 

against  defen-    of  a  house  containing  a  covenant  to  repair  was  granted 

last  assignee      in  1864,  to  A,  for  a  term  of  ten  years.     A  died,  and  B,  his 

rent  and  re-      administrator,  assigned  the  lease  to  another,  and  it  ulti- 

crue'from  the    mately  became   vested  in  the   plaintiff.     In   1872,   the 

was6 recovered7  plaintiff  assigned  the  lease  to  the  defendants,  "under 

p         *    and  subject  to  the   covenants"  therein  contained.     The 

defendants  failed  to    repair,  and    after    the    term  had 

expired,  0,  the  representative  of  the  lessor,  sued  B  for 

(1)  I.  L.  R.,  5  Calo.,  811. 

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ART.  84]         THB  SECOND  SCHEDULE,  FIRST  DIVI8ION — SUITS. 


417 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Paet  VI. 
Three  years. 

arrears  of  rent  and  damages  for  non-repair.  B  defended 
the  suit,  hut  0  obtained  a  decree  against  him  for  Rs. 
6,167-3-0  and  costs,  amounting  in  all  to  Rs.  8,328-3-0. 
His  own  costs  amounted  to  Rs.  1,491-1-0.  In  1876,  B  paid 
O  Rs.  8328-3-0.  In  1877,  B  sued  the  plaintiff  for  the 
amount  which  he  had  been  compelled  to  pay  0,  and  for 
the  amount  of  his  own  costs.  The  plaintiff  gave  notice 
to  the  defendants  to  intervene  and  defend  if  they 
desired,  but  they  did  not  reply,  and  the  plaintiff  con- 
sented to  a  decree  for  Rs.  6,932-12-11  with  costs.  There- 
upon the  plaintiff  instituted  tbe  present  suit  to  recover 
from  the  defendants  the  sum  recovered  from  him  by  B 
together  with  his  own  costs  of  defence.  It  was  held  that 
the  suit  was  not  barred  under  this  Article  as  the  time 
when  the  plaintiff  was  actually  damnified  was  when  B 
recovered  against  him. 

(C)  On  the  27th  July,  1868,  plaintiff  received  from 
defendant  an  indemnity  bond,  promising  to  indemnify 
plaintiff  against  the  misbehaviour  of  a  third  person.  On 
the  4th  June,  1870,  the  third  person  committed  an  act 
of  embezzlement.  In  an  action  brought  by  plaintiff  on  the 
20th  June,  1873  on  the  indemnity  bond,  the  1st  court 
held  the  claim  barred  under  clause  63  and  84,  of  schedule 
2,  Act  IX  of  1871.  In  appeal  that  decree  was  reversed, 
and  the  claim  allowed  under  clause  95  of  the  same 
schedule.  The  High  Court  held  that  the  suit  was  one 
not  for  relief  on  the  ground  of  fraud,  but  for  a  breach  of 
contract  to  indemnify  against  fraud  and  that  it  was 
governed  by  Articles  63  and  84  and  not  by  95  of  Act  IX 
of  1871.  Shapurji  Jahangirji  r.  The  Superintendent  of 
The  Poona  City  Jail.*1) 


B.  H.  held  suit 
for  breach  of 
contract  to 
indemnify 
against  the  mis- 
behaviour of  a 
third  person  is 
a  suit  to  indem- 
nify against 
fraud  and  falls 
under  corres- 
ponding Artiole 
84  of  Act  IX  of 
1871. 


84. — By  an  attorney  or  vakil 
for  his  costs  of  a  suit 
or  a  particular  busi- 
ness, there  being  no 
express  agreement  as 


Three  years. 


The  date  of  the  termi- 
nation of  the  suit  or 
business,  or  (where 
the  attorney  or 
vakil  properly  dis- 


(1)  B.  H.  0.  R.,  12,  p.  238. 


53 


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418 


THE  SECOND  SCHEDULE,  FIB8T  DIVISION — 8UIT8.  [ART.  84 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


to  the  time  when  such 
costs  are  to  be  paid. 


An  Attorney 
improperly  dis- 
continuing 
business  or  suit 
has  no  cause  of 
action  for  his 
costs. 

Suit  brought  in 
1875,  by 
solicitor 
engaged  in 
July,  1871,  to 
execute  decree 
which  was  set- 
tled out  of  oourt 
in  1872,  held  not 
barred  by  Arti- 
cle 86  of  Act  IX 
of  18*1. 


Attorney's 
application  that 
his  client 
should  show 
cause 

why  he  should 
not  pay  bill  of 
costs  held  not 
affected  by 
limitation. 


Would  Article 
178  apply  P 


rAET   VI.         continues  the  suit 
Three  years.      or    bn8ine88)     the 

date   of   such   dis- 
continuance. 

(ft)  (No.  85,  Act  IX.)  Where  the  business  or  suit  is 
improperly  discontinued,  an  attorney  (or  vakil)  has  no 
cause  of  action :  (see  NichoU's  v.  Wilson,  11  M.  and  W., 
106  ;  Thompson  Act  IX  of  1871.) 

(b)  In  Hearn  and  others  v.  Bapu  Saju  Naikin,*1)  a 
solicitor  was  retained  in  July,  1871,  to  execute  a  decree. 
In  November,  1871,  a  prohibitory  order  was  made  in  the 
cause  after  which  the  solicitor  did  nothing  more  in  the 
matter.  In  June,  1872,  the  decree-holder  and  judgment- 
debtor  settled  the  matters  in  dispute  between  them  with- 
out the  knowledge  of  the  solicitor,  but  this  compromise 
was  not  made  through,  or  certified  to  the  court  which 
passed  the  decree.  In  a  suit  brought  in  December,  1875, 
by  the  solicitor  against  the  decree-holder  to  recover  the 
amount  of  his  bill  of  costs,  it  was  held  that  the  plaintiff's 
claim  was  not  barred  by  Article  85  of  schedule  2  of  Act 
IX  of  1871. 

(O)  In  Abba  Haji  Ishmail  v.  Abba  Thara,<2)  it  was 
held  that  an  application  (under  Rule  149  of  the  Common 
Law  Rules  of  the  Supreme  Court  of  Bombay)  by  an 
attorney,  that  his  client  should  show  cause  why  he  should 
not  pay  the  balance  shown  by  the  Taxing  Master's  Alio- 
cator,  to  be  due  in  respect  of  his  bill  of  costs,  and  why,  in 
default  of  such  payment,  attachment  should  not  issue 
against  the  person  and  property  of  the  client,  is  not  "  a 
suit"  within  the  meaning  of  the  Limitation  Act  IX  of 
1871.  It  was  held  that  such  an  application  is  not  barred 
by  any  law  of  limitation  now  in  force  in  British  India. 

Noti.— Would  Article  178,  which  was  not  in  Act  IX  of  1871, 
apply  to  such  applications  ? 

(1)  I.  L.  R.,  1  Bom.,  505      |      (2)  I.  L.  B.,  1  Bom.,  253. 


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AET.  85]  THB  SECOND  8CHBD0LI,  FIB8T  DIVISION — SU1T8. 


419 


Description  of  suit. 


Period  of 
limitation. 


Part  VI. 
Three  years. 


Time  from  which  period 
begins  to  run. 


(d) 


In  Narayana  v.  Champion/1)  plaintiff,  as  solicitor,   Suit  does  not 
claimed  the  costs  dne  to  him  as  taxed  by  the  Registrar  of  decree  is  issued 
the  High  Court.     The  appeal  decree  in  which  costs  were  taxed, 
taxed  was  dated  5th  January,  1878.     On  the  22nd  Feb- 
ruary, 1878,  the  solicitor  received  the  usual  notice  that  a 
day  had   been    fixed   for  taxing  costs.     The   plaintiff's 
solicitor  having  informed  his  client  of  the  affair,  received 
instructions  not  to  appear  on  taxation.     The  solicitor  filed 
his  suit  on  the  22nd  February,  1881.     It  was  held,  that 
until  the  costs  were  taxed  and  inserted  in  the  decree  and 
the  decree  had  issued,  the  suit  had  not  terminated. 

(e)     In   Balkrishna  Pandurang  v.  Govind  Shivaji/*)    B.  h.  held 

...  termination  of 

which  was  a  suit  brought  by  a  vakeel  against  his  client  a  suit  is  deci- 
for  fee,  the  question  was  whether  termination  of  a  suit  the  court  in 
means  its  decision  or  any  event  after  decision.     It   was   is  commenced, 
held  that  termination  of  a  suit  is  when  judgment  is  given 
in  the  court  in  which  the  action  is  commenced  :  per  Black- 
burn, J.,  in  Harris  v.  Quine  (L.  R.  4,  Q.  B.  658),  and  that 
the  suit  was  barred  under  this  Article  as  it  was  brought  3 
years  after  the  termination  thus  defined. 


85. — For  the  balance  due  on 
a  mutual,  open  and 
current  account,  where 
there  have  been  re- 
ciprocal demands  be- 
tween the  parties. 


Three  years.  The  close  of  the  year 
in   which   the   last 
item    admitted    or 
proved  is  entered  in 
the  account ;  such 
year  to  be  comput- 
ed as  in  the  account. 
(a)     (No.  87,  Act  IX;  section  8,  Act  XIV.)     The  This  Article  ap- 
corresponding  provision  of  section  8  of  Act  XIV  of  1859  Lrountembe- 
was   applicable  to  suits   for  the  balances   of   accounts  persons.  y  w 
current  between  merchants  and  traders  who  have  had 
mutual  dealings,  and  provided  for  the  running  of  time 
from  the  close  of  the  year  in  which  the  last  item  is  entered. 
(1)  LLB.,7  Mad.,  1.        |    (2)  I.  L.  R.,  7  Bom.,  51& 


1 


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420  THE  SECOND  SCHEDULE,  FIRST  DIVISION — 8UIT8.  [ABT.  85 


Description  of  Buit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

Under  Article  87  of  Act  IX  of  1871,  limitation  commenced 
from  the  date  of  the  last  item  admitted  or  proved  in  the 
accounts.  This  Article  (85  of  the  Act  1877)  provides  for 
the  application  of  its  provisions  to  mutual  accounts 
between  any  two  persons,  and  makes  the  limitation  to  run 
as  under  Act  XIV  of  1859  from  the  close  of  the  year  in 
which  the  last  item  admitted  or  proved  is  entered  in  the 
account, 
what  conati-  (b)  InGhaseeram  v.  Monohor  Doss,(1>  which  was  a  case 
dealings  as  Mr  governed  by  Act  XIV  of  1859,  the  plaintiff  used  to  send 
'  '  '  hundies  and  treasury  drafts  from  Puttella  to  the  defendant 
at  Calcutta,  to  put  him  in  funds  to  meet  the  purchase  of 
goods  in  plaintiff's  behalf,  and  hundies  drawn  by  the 
plaintiff  on  the  defendant,  and  the  suit  was  for  balance  of 
accounts  current.  Phearl  J.,  held  that  this  did  not 
constitute  mutual  dealing.  Peacock,  0.  J.,  in  his  judg- 
ment said  that,  "  if  there  were  such  dealings  between  the 
plaintiff  and  the  other  firm  in  the  course  of  business,  that 
sometimes  the  balance  was  in  favour  of  one  party  and 
sometimes  of  the  other,  the  dealings  were  mutual  within 
the  meaning  of  the  sections." 
a  continuous  (c)     In  Alexander  Watson  v.  Aga  Mehedee  Sherazee<*> 

tween  principle  an  agreement  between  a  principal  and  his  agent  corn- 
debit*  and  menoed  with  an  admitted  balance,  and  clearly  contem- 

creditson  each       .    .     _    ,.  .    .  „  .  ... 

side  of  it,  was  plated  the  existence  of  an  account  current  containing 
within  section  mutual  items  of  debit  and  credit.  The  agreement 
1859.  contained  a  stipulation  that  on  the  adjustment  of  the 

accounts,  the  principal  should  be  bound  to  pay  such 
balance  as  might  be  found  due  from  him.  The  account 
was  kept  accordingly  as  a  continuous  account,  and  con- 
tained several  items  which  brought  down  the  mutual 
dealings  to  March,  1868.     The  agent  sued  in  February, 

(1)    2  Ind.  Jut.,  N.  8.,  241.     |      (2)  L.  E.,  1  Ind.  App.,  346. 

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ART.  85]  THE  SECOND  SCHEDULE,  PIB8T  DIVISION — SUITS.  421 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

1871,  to  reoover  the  balance  due  to  him  on  the  account. 

It  was  held  that  the  case  fell  within  the  8th  section  of  Suit  not  barred 

Act  XIV  of  1859,  and  was  not  barred  by  limitation,  even  dated  more 

as  to  the  items  which  were  dated  more  than  three  years  yean  before 
before  the  institution  of  the  suit.  *  * 

(d)     Following   the   above    decision,    Sargent,  J.,   in  Sargent,  J.,  ob- 

Narrandas  Hemraj  v.  Vissandas  HemrajW  observes,  that  mors  of  this 

this   clause  would  apply  only  to  those  cases  in   which  its  appiica- 

.  tion   to  cases 

both  parties  have,  in  the  course  of  their  dealings,  made  where  the 

actual  demands  on  one  another.     The  more  reasonable  new  was  such 

and  the  more  probable  intention  of  the  framers  of  the  torocfprocaiide- 

clause  appears  to  have  been,  that  it  should  apply  to  cases  parties. 

where  the  course  of  business  has  been  of  such  a  nature  as 

to  give  rise  to  reciprocal  demands  between  the  parties  ; 

in  other  words  where  the  dealings  between  the  parties 

are  such  that  sometimes  the  balance  may  be  in  favor 

of  one  party  and  sometimes  of  the  other.     In  Laljee  Sahoo 

v.    Bughoo  Nundun  Lallsahoot*)  Garth,   0.  J.,   observes,  observations  of 

"that  Article  (85)  as  it  seems  to  us,  is  intended  to  apply  ' 

to  cases  where  an  account  has  been  going  on  between 

two  parties,  and  balances  have  been  struck  from  time  to 

time,  showing  the  amount  due  from  one  of  such  parties  to 

the  other,  and  the  suit  to  which  that  Article  is  intended 

to  apply  is  a  suit  brought  by  one  of  those  parties  against 

the  other,  for  the  balance  found  to  be  due  to  him  on  that 

account.,,  In  Kushalo  v.  Behari Lai, W  Oldfield,  J.,  observes :  observations  of 

"  The  nature  of  the  transactions  between  plaintiffs  and  oldflold*   • 

Gulzari  Lai  were  such  that   sometimes   a  balance  was 

in  favour  of  plaintiffs  and  sometimes  of  Gulzari  Lai,  and 

we  are  disposed  to  hold  that  Article  85,  schedule  2  of  the 

Limitation  Act  would  apply,  and  the  limitation   for  the 

recovery  of  the  debt  would  run  from  the  close  of  the  year 

(1)  I.  L.  E.,  6  Bom.,  134.       |  (2)  I.  L.  E.,  6  Calo.,  447. 

(3)  I.  L,  E.,  3  All.,  623. 


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422 


THE  SECOND  SCHEDULE,  FIRST  DIVISION — SUITS.  [ABT.  85 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Depositing 
money  with  a 
banker  and 
usually  over- 
drawing it,  and 
sometimes  pay- 
ing  in  excess  of 
liability  do  not 
constitute 
mutual,  open 
andourrenfc 
account. 


Paet  VI. 
Three  years. 

in  which  the  last  item  admitted  or  proved  is  entered  in 
the  account." 

(6)  In  Hajee  Syud  Mahomed  v.  Mussamut  Ashruf- 
oonnissa/1)  the  manager  of  J,  the  proprietress  of  an  indigo 
factory,  on  the  20th  December,  1869,  paid  into  the  hothi 
or  bank  of  B,  a  banker,  the  sum  of  Rs.  1,200  to  the  credit 
of  Ay  and  from  that  time  onwards  sums  of  money  were 
drawn  by  A's  manager  out  of  2?'*  bank,  and  applied  to 
the  purposes  of  A's  factory ;  the  balance,  though  generally 
against  -4,  fluctuated,  A' 8  account  being  usually  over- 
drawn, but  there  being  sometimes  a  balance  in  her  favour, 
created  by  payments  made  on  her  account  into  Bys  bank. 
The  2nd  of  July,  1872,  was  the  last  occasion  that  any  ba- 
lance was  due  from  Bio  A.  Payments  continued  to  be  made 
on  behalf  of  A  into  B's  bank  up  to  the  12th  of  June,  1873, 
when  a  sum  of  Rs.  1,083-8-0  was  paid  into  her  account, 
but,  notwithstanding  this  payment,  the  balance  of  account 
was  on  the  date  against  her.     After  the  12th  of  June, 

1873,  B  continued  to  make  payments  on  behalf  of  A,  and 
also  to  render  monthly  accounts  in  which  he  charged  A 
with  such  payments,  and  also  with  the  principal  of,  and 
interest  upon,  the  balance  due  on  previously  rendered 
accounts.     This  continued  till  the   month   of  January, 

1874,  when  2?,  for  the  last  time  rendered  a  monthly 
account  to  Ay  the  last  item  in  which  was  a  payment  made  on 
the  6th  January,  1874.  On  the  23rd  December,  1876,  B 
instituted  a  suit  against  Ay  to  recover  the  balance  of 
principal  and  interest  due  to  him  on  the  footing  of  the 
last  account  rendered  by  him  to  A.  It  was  held,  that  the 
account  between  A  and  B  was  not,  and  never  had  been,  a 
mutual,  open,  and  current  account,  and  that  the  suit  was 
therefore  barred  by  limitation ;  and  that  the  payments 

(1)  I.  L.  R.,  6  Calc,  759. 


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ART.  85]         THE  8BC0ND  SCHEDULE,  FIRST  DIVISION — SUITS.  423 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VI. 
Three  years. 

made  by  B>  on  behalf  of  Ay  within  the  period  of  limitation 
even  if  authorized,  did  not  have  the  effect  of  keeping 
alive  his  previous  claim  against  her.  It  was  farther  held 
that  even  if  the  dealings  and  transactions  between  A  and 
B  could  be  so  construed  as  to  show  that  there  had  been 
at  any  time  a  mutual,  open,  and  current  account  between 
them,  that  mutual  relation  terminated  on  the  2nd  July, 
1872,  or  if  not  then,  on  the  12th  June,  1873,  when  the  last 
payment  was  made  on  A9 8  account  into  Bs  bank.  Pontifix,  observations  of 
J.  observes :  *'  In  order  to  bring  the  case  within  Article  87 
of  Act  IX  of  1871  and  to  prevent  limitation,  the  plaintiff 
would  have  to  show  that  there  was  a  mutual,  open  and  cur- 
rent account  between  the  parties  in  which  there  were 
reciprocal  demands.  Now  I  must  say  that  I  should 
have  considerable  hesitation  in  holding  that  there  was 
ever  between  these  parties  a  mutual  account,  although, 
in  the  instances  which  I  have  mentioned,  the  defendant 
had  in  fact  paid  monies  into  plaintiff's  bank  which  were 
in  excess  of  his  liabilities ;  for  I  do  not  think  that  the 
defendant  could  at  any  time  have  said — *I  have  an 
account  against  you,  the  banker.'  During  nearly  the  whole 
of  that  time,  the  banker  could  have  said,  *  I  have  an 
account  against  you,  the  defendant ;'  but  unless  they  could 
each  have  said  to  the  other.  *  I  have  an  account  against 
you,'  I  do  not  see  how  these  could  be  '  mutual'  accounts." 
"  But  besides  the  account  being  mutual,  open  and  current, 
there  must,  to  bring  it  within  clause  87,  have  been 
reciprocal  demands  between  the  parties."  "  Under  Article 
87,  the  time  within  which  the  plaintiff  must  sue  is  *  the 
time  of  the  last  item  admitted  or  proved  in  the  account.'  item  means  the 

"last"  admitted 

According  to  my  reading  of  the  Article,  the  word  *  item'  item  on  the  de- 

.  .  .  fondant's  side  of 

means  the  last  admitted  "  item  on  the  defendant's  side  of  the  aeootmt  or 

the  last  recipro- 

the  account,  or?  in  other  words,  the  last  reciprocal  item."  «*  **■*• 


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424  THI  8I0OND  SCHIDULI,  FIE8T  DIVISION — 8UIT8.    [AET.  86—88 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Paet  VI. 

Three  years. 

lent  on       (f)     In  Normul  v.  Pookermul,  decided  on  the  19th 

ranej^paid  on  August,   1879,  and  reported  in  the  Englishman  of    the 

26th  of  that  month,    Justice    Wilson    held  that  there 

should  be  on  each  side,  matters  which,  if  there  were  no 

running  account,  would  form  a  cause  of  action.     Money 

lent  on  one  side,  and  money  paid  on  account  on  the  other, 

with  the  balance   always  in  favour  of  the  first,  do  not 

constituted  reciprocal  demands. <*) 


account  on  the 
other  with 
balance  always 
in  favenr  of  the 
first,  do  not 
constitute  re- 
ciprocal de- 


Three  years. . 


86. — On  a  policy  of  insurance 
when  the  sum  assured 
is  payable  immediately 
after  proof  of  the  death 
or  loss  has  been  given 
to  or  received  by  the 
insurers. 

(a)    (No.  88,  of  Act  IX.) 


Provision  of  the 
Act  of  1859  was 
held  to  apply 
in  the  absence 
of  a  custom  al- 
io wing  a  certain 
time  of  grace. 


When  proof  of  the 
death  or  loss  is 
given  or  received  to 
or  by  the  insurers, 
whether  by  or  from 
the  plaintiff,  or  any 
other  person. 
A  suit  for  the  recovery  of 


the  amount  due  on  a  Policy  of  Marine  Insurance  falls 
under  clause  10  of  section  1  of  the  Limitation  Act.  In 
such  cases,  the  limitation  (in  the  absence  of  a  custom 
allowing  a  certain  time  of  grace)  begins  to  run  from  the 
date  when  the  defendant  has  notice  of  the  loss  and 
refuses,  or  neglects,  to  pay.  Norotamdas  Bhagtan  Das  v. 
Dayabhai  Ichhachand.<2> 


87. — By  the  assured  to  re- 
cover premia  paid  un- 
der a  policy  voidable 
at  the  election  of  the 
insurers. 

(No.  89,  Act  IX) 

88. — Against  a  factor  for  an 
account. 


Three  years. 


When  the  insurers 
elect  to  avoid  the 
policy. 


Three  years. 


(1)  Mitra'e  Limitation  Act,  686. 


When  the  account  is, 
during  the  continu- 
ance of  the  agency, 
demanded  and  re- 
fused, or  where  no 
such  demand  is 
made,  when  the 
agency  terminates. 
(2)  6  B.  H.  C.  R.,  A.  C,  34. 


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ART.  89]  THE  SECOND  SCHEDULE,  FIRST  DIVISION — SOU'S. 


425 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

(a)  (No.  64,  Act  IX.)     A  factor  is  an  agent  employed   who  is  a  fac- 
to sell  goods  or  merchandise  consigned  or  delivered  to    tor 

him  by,  or  for  his  principal,  for  a  compensation  commonly 
called  factorage  or  commission.     He   may  buy  and   sell 
in  his  own  name.     He  is  also  entrusted  with  the  pos- 
session, management,  control  and  disposal  of  the  goods,   During  con- 
and  has  a  special  property  in,  and  a  lien,  on  them. —   agency, e  right 
Wharton.     During    the  continuance   of  the  agency,    the   on^emandfand 
light  to  sue  accrues  on  demand  and  refusal.  refusal. 

(b)  But  if  the  agent  dies,  the  suit  against  his  repre-   if  agent  dies, 

sentative  must  be  brought  within  three  years  from  the   thee<S8ofr°m 

date  of  death,  provided  no  demand  had  been  made  during  Jj^jjj}  had  been 

his  lifetime.     Plaintiff's  case  will  be  protected  by  section   ma^e  during 
._    ..    ,,  .  .         .  *  *    .i         -i  -,     his  lifetime. 

17,  if   there    is  no  legal  representative  of  the  deceased    (August,  issi.) 

against  whom  a  suit  may  be  instituted.  Lawless  v.  Cal- 
cutta Landing  Company.*1)  In  Kalee  Kishen  Paul  Chow- 
dhry  v.  Mnssamut  Juggut  Tara,(2)  which  was  a  suit 
against  the  heirs  of  a  deceased  Gumastah  on  the  allegation 
that  the  gumastah  had  overdrawn  a  sum  of  money  from 
the  funds  of  three  guddees  under  his  charge,  at  various 
dates  from  his  appointment  in  1265,  to  the  date  of  his  death, 
it  was  held,  that  the  cause  of  action  accrued  not  from  the 
time  when  the  agent  drew  the  money,  but  from  the  time 
of  his  death. 

89. — By  a  principal  against 
his  agent  for  moveable 
property  received  by 
the  latter  and  not  ac- 
counted for. 


Three  years. 


When  the  account  is, 
during  the  continu- 
ance of  the  agency, 
demanded  and  re- 
fused, or  where  no 
such      demand     is 
made,     when     the 
agency  terminates. 
(a)     (No.    90,  Act    IX.)     In  Kally    Churn    Shaw  v.   son's  suit  for 
Dukhee  Bibee,(3)  plaintiffs  who  were  of   Hulwall  caste,  Ib^prop^rtT 
sued  their  mother  in   1879,  to  recover  possession  of  the  m?J}3agfJ?  by 
properties  left  by   their  father  who  died  in   1857.     In  ther,  fails  under 

(1)  I.  L.  R.,  7  Calc.,  632.        |  (2)  11  W.  E.,  76. 

(3)  I.  L.  R.,  5  Calc,  692. 


this  Article  or 
Article  90. 
(Dec.  1879.) 


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426 


THE  8SC0ND  SCHEDULE,  TIBST  DIVISION 80IT8.  [ART.  90 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

1865,  the  plaintiff's  mother  sued  the  plaintiffs  and  another 
widow  of  her  husband  who  had  possession  of  the  property, 
alleging  that  the  deceased  had  left  a  will.  The  suit  was 
compromised,  by  which  the  plaintiff's  mother  was  to 
manage  the  property.  It  was  held,  that  the  suit  as  to 
immoveable  property  fell  under  Article  144,  and  as  to 
moveable  property,  it  fell  under  this  Article  or  Article  90. 
if  agent  pro-        (b)     Where  the  agent,  on  the  demand  of  the  principal, 

miaes  to  render  . 

account  at  a      promises  to  render  accounts  on  a  future  date,  but  does 

future  date  and 

does  not,  limita-  not,  limitation  will,  it  has  been  held,   run  from  that  date, 
that  date.  and  that  is  the  date  when  he  virtually  refuses  to  render 

accounts.     Hori  v.  The  Administrator-General. M 
c.  H.  (c)     A  suit  against  an  agent  employed  in  the  manage- 

Suit   against  /    *    i       j  „      ...  .  A       1  •       j 

agent  employed  ment  of  land   or  collection  of  rents,  for  money  received 
ment  of  land    or  accounts  kept    in    the    course   of  such    employment, 

or  collection  of  -  ,  .  ,  . 

rents,  Ac,  ex-    or  for    papers   in  his    possession,    is   (except    in    cases 

fraudj^ffovern-  of  fraud)  governed  by  the  one  year's  rule  under  section 

y1wVrhuie0nSn.    30,  Act  VIII  of  1869,  B.  C,  and  section  24,  Act  X  of  1859. 

Acrt  vmV0'   (See  I.  L.  R.,  4  Calcutta,  550;  3   C.  L.  R.,   258,  440, 

i*»,b.c.  444;  8  C.  L.   R.,  285.)     If  such  an  agent  delivers  an 

account  showing  himself  to  be  indebted,  a  fresh  cause  of 

action  arises  upon  the  admission  by  the  settlement  of 

account.     An  action  for  the  balance  on  the  account  will 

be  governed  by  the  general  law  of  limitation.    Article  64, 

or  some  other  Article  will  apply.     (See  2  Hay,  509  ;  20 

W.  R.,  309  ;  22  W.  R,,  338.)     Suits  against  agents  are  not 

specially  provided  for  in  the  Bengal  Tenancy  Act,  1885.<2> 

90. — Other  suits  by  principals    Three  years.  When  the  neglect  or 

against  agents  for  neg-  misconduct   becomes 

lect  or  misconduct.  known  to  the  plaintiff. 

(a)     (No.  89,  Act  IX.)     This  Article  governs  a  suit 

for  damages  against  an  agent  in  respect  of  the  loss  arising 

from  his  misconduct  in  neglecting  to  sue  for  debts  due  to 

(1)  3  C.  L  R.,  446.        |  (2)  Mitra's  Limitation  Act,  p.  589. 


Bengal  Tenan- 
cy Act  of  1886 
does  not  speci- 
ally provide  for 
suits  against 
agents. 


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ART.  91]  THB  8BC0ND  SCHEDULE,  PIE8T  DIVISION — SUITS. 


427 


Description  of  suit. 


Period  of 
limitation. 


Time  from  whioh  period 
begins  to  run. 


Part  VI. 
Three  years. 

his  principal,  or  in  so  negligently  selling  his  principal's 
property  that  the  proceeds  cannot  he  realized.  (See 
Bahoo  Lall  v  Vaughan,  2  Agra,  306.)*1) 


91. — To  cancel  or  set  aside 
an  instrument  not 
otherwise  provided  for. 


A.  H. 

As  per  Straight, 
J.  This  Article 


Three  years..  When  the  facts  enti- 
tling the  plaintiff  to 
have  the  instrument 
cancelled  or  set  aside 

become  known    to 
him. 

(a)  (No.  92,  Act  IX.)     As  to  the  application  of  this  There  is  gome 
Article  to  suits  in  which  the  only  relief  sought  is  the  set-  opinion  as  to 

.  i        t>         -i  ,  ii        ,  ...  i-i.i  the  application 

ting  aside  of  an  instrument,  and  also  to  suits  m  which  the  of  this  Article, 
plaintiff  sues  for  possession  of  property  by  setting  aside 
an  instrument  said  to  be  fictitious  or  invalid,  there  has 
been  some  difference  of  opinion. 

(b)  Hazari  Lai  v.  Jadaun  Sigh(2)  plaintiff  sued  for 
possession  of  certain  immoveable  property,  by  avoidance 
of  aspurious  deed  of  gift  executed  by  one  N  deceased,  in  suSaofthefend 
favour  of  the  defendant.     Straight,  J.,  was  of  opinion  that  Son^o  *of  ttle 
the  suit  was  governed  by  Article  144  and  not  by  91.     He  i^^he* 
observes  :    "  After  giving  the  point  the  best  consideration  I  ^instrument 
can,  I  do  not  think  that  it  is.     In  my  opinion,  Article  91  asked forf  and 
is  intended  to  apply  to  suits  of  the  kind  mentioned  in  wMch5  seek™  for 
section  39  of  the  Specific  Relief  Act,  and  to  cases  where  a  a votdance1  of7  a 
plaintiff  seeks  to  have  cancelled  or  set  aside  some  instru-  (i^ust^sM.) 
ment  he  has  been  induced  by  misrepresentation,  conceal- 
ment of  facts,  or  other  means  of  a  like  kind  to  enter  into, 

or  where  the  cancelment  or  setting  aside  of  an  instru- 
ment is  the  only  relief  asked,  as  an  example  of  which 
latter  kind  of  suit  I  may  refer  to  a  case  reported  in  I.  L.  R., 

3,  All.,  395."     Stuart,  C.  J.,  was  of  opinion  that  the  suit  stuart,c.J.,was 

was  governed  by  Article  91  and  not  by  Article  144,  and  the^soi^waa 

distinguished  this  case  from  Sikher  Chund  v.   Dulputty  ArticiS  oi  and 

not  by  144. 
(1)  Mitra's  Limitation  Act,  p.  689.  |         (2)  I.  L.  R.,  5  All.,  76. 


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428 


THE  8KCOND  8CHEDULK,  F1R8T  DIVJ8I0N 8UIT8.  [ART.  91 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


0.  H.  held  that 
a  suit  to  recover 
property  sold 
by  a  guardian 
is  not  a  suit  to 
cancel  an  ins- 
trument not 
otherwise  pro- 
vided   for, 
falling  under 
Article  92,  but 
is  governed  by 
Article  144. 
(August  1879.) 


A.  H. 
Suit  for  posses- 
sion by  setting 
aside  a  mort- 
gage deed  was 
held  not  to  fall 
under  this  Arti- 
cle. 
(Feb.  1883.) 


A.  H. 
So  was  a  suit  for 
possession  by 
avoidance  of  a 
mortgage   by 
conditional 
sale. 
(March  1888.) 


Part  VI. 
Three  years. 

SinghW  in  which  it  was  held,  that  on  the  facts,  the  suit 
must  be  regarded  as  one  for  possession  of  immoveable 
property  under  No.  145  of  the  Act  of  1871,  correspond- 
ing to  No.  144  of  the  present  Act,  and  not  merely  for 
setting  aside  an  instrument  within  the  meaning  of  No.  92 
of  the  former  Act  corresponding  with  No.  91  of  the 
present.  A  Hindu  family  being  heavily  oppressed  with 
debts,  ancestral  and  otherwise,  the  two  elder  brothers  of 
the  family,  for  themselves,  and  as  guardians  of  their 
minor  brother,  applied  under  section  18  of  Act  XL  of 
1858,  and  obtained  from  the  District  Judge  an  order  for 
the  sale  of  several  portions  of  the  ancestral  estate,  and 
sold  the  same  under  registered  deeds  signed  by  the  Judge. 
Within  twelve  years  after  the  registration,  the  adopted 
son  of  the  minor  brother  brought  several  suits  against  the 
purchasers  to  set  aside  the  sales  and  recover  back  his 
share  of  the  property,  alleging  that  his  two  elder  brothers 
had  made  the  sales  fraudulently  and  illegally  to  satisfy 
personal  debts  of  their  own,  and  the  court  (Garth,  C.  J. 
and  Prinsep,  J.,)  held  that  the  suit  was  in  substance  one 
for  the  possession  of  immoveable  property. 

(C)  The  above  decision  of  Straight,  J.,  was  followed 
in  Sobha  Pandey  v.  Sahodra  Bibi,(2)  in  which  the  plaintiff 
prayed,  that  setting  aside  the  mortgage  deed  set  up  by 
defendant  No.  1,  the  land  be  protected  from  the  illegal 
foreclosure,  by  cancelment  of  the  foreclosure  proceedings. 
In  Ramausar  Pandey  Raghubar  Jati,<8)  the  plaintiff  sued 
to  set  aside  a  mortgage  by  conditional  sale  of  certain  im- 
moveable property  belonging  to  him,  made  on  his  behalf 
during  his  minority,  and  for  possession  of  the  property. 
It  was  held  that  the  suit  was  one  described  in  No.  142 
and  not  in  No.  91. 

(1)  I.  L.  R.,  5  Calc,  863.      |      (2)  I.  L.  R.,  6  All.,  822. 
(3)  I.  L.  R.,  5  All.,  490. 


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-ART.  91]  THE  8EC0NJ)  SCHEDULE,  PI  EST  D1V18ION — 8011*8.  429 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VI. 
Three  years. 

(d)  In   T.    Sivithri    Andarjanom    v.   M.   Vasudevan         m.  h. 
Nambudripad,*1)     "The  Subordinate  Judge  also  consi-   pear  to  be  of*P" 
dered  that  the  suit  was  barred  by  the  Law  of  Limitation   aP«mitnfor  po£ 
as  it  was  a  suit  to  set  aside  a  document,  and  the  pro-  avSSng  an 
visions  91  to  93  and  95  of  the  Limitation  Act  applied,  StSr^r^ief^is 
and,  under  the  circumstances  proved,  allowed  plaintiff  question!ntftl 
only  three  years  from  the  date  of  the  instrument.     The    (June  1881,) 
District  Judge  was  of  opinion  in  regard  to  this  point 

that  the  suit  being  substantially  a  suit  to  recover  the 
property,  consisting  of  land,  the  period  was  12  years  and 
that  the  suit  was  not  barred,  but  upon  the  other  grounds 
he  held  that  plaintiff's  suit  was  rightly  dismissed."  The 
High  Court  have  not  interfered  with  the  decision  of 
the  District  Judge  on  the  question  of  limitation. 

(e)  Peacock,  C.  J.,  observes  :      "  We  are  of  opinion  observations  of 
that  the  cause  of  action,  if  any,  accrued  when  possession  on  the  right  of  a 
of  the  land  was  taken  by  the   purchaser.     Suppose   a  For  The  oancei- 
person  not  having  any  title  to  the  land  were  to  mortgage  trument. En 
it,  the  owner  of  the  land  would  not  be  bound  to  bring 

an    action    directly    the    mortgage  deed   was   executed. 

Or  suppose  the  mortgagee  were  to  go  on  to   foreclose  Right  to  set 

the  land  and  not  to  make  the  owner  of  the  land  a  party,  is  distinct  from 

he   would  not  be  bound  to  come  in,  nor  would  he  be  cover  posses-1*" 

affected  by   the  decree  in  that  suit.     He    might    very   (Juneise7.) 

reasonably  say :    '  Why    should   I   be    obliged  to   incur 

the  costs  and  embarrassment  of  a  suit  when  the  property 

remains  in  my  possession  P     It  will  be  time  enough  for  canse  of  action 

me  to  interfere  when  my  possession  is  interfered  with.*  accrues  when 


That  appears  to  be  thefr  io,~   Ms  action  accrued,  session  is  inter- 

so  far  as  the  right  if  't~^-sncerned.  Plaintiff1  is' not 

mi  , .  ,'  ^^— *x^j       bound  to  sue  to 

Ihe  parties  were  not,  ^(,6    set  aside  a  deed, 

the  deed.     They  migh  tmght,when 

evidence  was 
•***hcoming. 

(i)  i.  l.;  hen  * 


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430 


THE  8BCOND  8CHBDULE,  PIR8T  DIVISION — BUJT8.  [ART.  91 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


A.  H. 
Purchaser's 
suit  for  posses- 
sion  by  avoid- 
ance of  mort- 
gage is  govern- 
ed not  by  this 
Article  or  ©5, 
but  by  Art.  138. 
(August  1883.) 


Purchaser's 
suit  for  posses- 
sion cancelling 
a  usufructuary 
mortgage  deed. 


This  Article  ap- 
plies to  third 
parties'  suits  to 
cancel  instru- 
ment. 
(June  1881.) 


Part  VI. 
Three  years. 

suit  if  they  had  pleased  to  do  so  that  they  might  have 
the  validity  of  it  tried  at  once  when  witnesses  wore  forth- 
coming to  prove  that  there  was  no  sufficient  cause  for 
the  mortgage.  The  right  to  set  aside  the  deed  is  a 
distinct  right  from  the  right  to  recover  possession." 
Raja  Ram  Tewary  v.  Luchmun  Pershad.W 

(f)  In  Uma  Shankar  v.  Kalka  Prasad,*2)  the  pur- 
chasers of  property  sold  in  execution  of  a  decree  having 
been  resisted  in  obtaining  possession  of  the  property  by 
a  person  claiming  under  a  mortgage  from  the  judgment- 
debtor,  sued  for  possession,  by  avoidance  of  the  mortgage, 
alleging  that  the  same  was  collusive  and  fraudulent. 
The  plaintiffs  did  not  ask  for  the  cancellation  or  setting 
aside  of  the  instrument  of  mortgage.  It  was  held  that 
the  law  of  limitation  governing  the  suit  was  not  Article  91 
or  95  of  the  Limitation  Act,  but  Article  138.  This  view 
of  the  law  is  supported  by  the  decision  of  the  Privy 
Council  in  Raj  Bahadur  Sing  v.  Achambit  LaU3)  This 
decision  was  followed  in  Ik  tarn  Singh  v.  Intizam  Ali,*4) 
in  which  purchaser  at  a  sale  in  execution  of  a  decree 
sued  for  possession  of  the  land  cancelling  an  instru- 
ment of  usufructuary  mortgage  which  was  alleged  to  have 
been  fraudulently  got  up.  It  was  held  that  the  decla- 
ration of  the  invalidity  of  the  defendant's  pretentions 
was  no  more  than  an  incidental  step  in  the  assertion  of 
the  plaintiffs'  title  and  right  to  possession,  and  that  the 
limitation  of  12  years  was  applicable  to  the  suit. 

(g)  In  Bhawani  Prasad  Singh  v.  Bisheshar  Prasad 
Misr,(6)  plaintiffs,  three  in  number,  sued  for  possession  of 
certain  land  by  cancelment  of  a  lease  or  Istimrari  Patta, 
dated  8th  June,  1876,  granted  by  one  of  the  defendants, 

(1)  8  W.  R.,  15.  I  (3)  L.  R.,  6  I.  A.,  110. 

'°*  I.  L.  R.,  6  All.,  76.  |  (4)  I.  L.  R.,  6  All.,  261. 

(5)   I.  L.  R.,  3  All.,  846. 


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AET.  91]  THI  SECOND  8CHEDULE,  P1E8T  DIVISION SUIT8.  431 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

who  was  a  widow  of  the  plaintiff's  cousin.     The  lessee's 
defence  was  that  the  lease  was  executed  with  the  know- 
ledge of  one  of  the  plaintiffs,  who  caused  it  to  be  attested 
and  registered,  and   that  the   other  two   adopting    the 
lease   allowed   him  to  take  possession  of  the  land  and 
accepted  payment  of  rent.     The  Lower  Appellate  Court 
allowed  the  plaintiff's  claim  on  the  ground  that  the  lessee 
knew  that  the  lessor  was  not  competent  to  grant  the 
lease.     It  was  held  that  the  suit  was  governed  by  this   Article  114  ap- 
Article,  which  barred  the  claim  of  one  of  the  plaintiffs   bYtween  pro?1 
who  had  been  aware  of  the  existence  of  the  lease  for  more   rnis»De^dPnot 
than  three  years  on  the  date  of  the  suit  and  remanded    party  uncancel 

.■■  -  v    ,  .v  •    •  instrument. 

the  case,  framing  proper  issues  between  the  remaining 
two  plaintiffs  and  the  lessee.  It  was  further  held 
that  Article  114  refers  to  the  recision  of  contracts  as 
between  promisor  and  promisee  and  not  to  suits  by  third 
parties  to  have  an  instrument  cancelled  or  set  aside. 

(h.)     One  of  the  heirs  of  a  deceased  Mahomedan  sued      a.  h.  n.  b. 

•       ,  ,  .  _  .  Cause  of  action 

for  her  share  under  the  Mahomedan  Law,  of  the  estate  of  to  sue  for  can. 
the  deceased,  setting*  aside  a  gift  made  by  him  by  reason  of  deed  of  gift 

.  made  by  a  Ma- 

possession  not  having  been  transferred  to  the  donee.     The  homedan,  ao- 

.  crues  when  eift 

Lower  Appellate  Court  rejected  the  suit  as  barred  as  it  becomes  vaud 

was  not  brought  within  three  years  from  the  date  of  the   (Feb.  1884.) 

gift.     It  was  held  by  a  Full  Bench  that  the  plaintiff's 

title  to  impeach   tbe  gift   could  only  accrue  from   the 

moment  when   by  receipt  of    possession   the   gift   had 

become  operative  in  law,  and  that  it  does  not  necessarily 

follow  that,  because  the  alleged  deed  of  gift  was  given 

on    a  particular  date   the   time   at   once  began   to  run 

against  the  plaintiff  under  this  Article.     Meda  Bibi  v. 

Imaman  Bibi.W 

(i)     In  Tawangar  Ali  v.  Kura  Mal,P)  plaintiff   sued         a.  h. 

v   '  6  '        r  Construed    this 

Article  to  mean, 

(1)  I.  L.  R.,  6  All.,  207.      |  (1)  I.  L.  R.,  3  All.,  394.  when  hAying 


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432 


THK  SECOND  SCHEDULE,  FJB8T  D1VI8ION — SUIT8.  [AKT.  92 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


knowledge  of 
such  facts,    a 
cause  of  action 
accrued   to 
plaintiff,  and  he 
was  in  a  posi- 
tion to  sue ;  and 
held  that  suit  to 
realise  decree 
amount  by  set- 
ting  aside  a 
fraudulent  sale 
deed  of   pro- 
perty granted 
by  debtor  to  the 
defendant,  falls 
under  this  Ar- 
ticle. 
(January  1881.) 


Cause  of  action 
accrued  when 
plaintiff  knew 
that  debtor  had 
no  otner  pro- 
perty than  that 
covered  by  the 
sale  deed. 


Part  VI. 
Three  years. 

on  a  simple  mortgage  deed  on  the  22nd  November,  1875, 
and  on  the  25th,  hearing  that  the  debtor  was  about  to  sell 
a  portion  of  his  property,  caused  a  notice  to  be  served  on 
him  on  the  29th  November,  1875,  under  section  8  of  Act 
VIII  of  1859,  but  on  the  1st  December  debtor  sold  his 
property  to  the  defendant.  The  plaintiff's  suit  on  his 
bond  against  the  debtor  was  rejected  by  both  the  Lower 
Courts,  but  was  decreed  on  appeal  on  the  7th  August, 
1876.  The  plaintiff  after  selling  a  portion  of  the  debtor's 
property,  had  yet  to  recover  a  balance,  and  to  recover  it 
by  voiding  the  sale  deed  of  1st  December,  1875,  on  the 
ground  of  fraud,  brought  this  suit  on  the  1st  of  July, 
1879.  It  was  held,  that  the  words  "  when  the  facts 
entitling  the  plaintiff,  <fec,"  must  be  construed  to  mean, 
when,  having  knowledge  of  such  facts,  a  cause  of  action 
has  accrued  to  plaintiff,  and  he  is  in  a  position  to  main- 
tain a  suit  and  that  until  the  result  was  known  of  the 
former  sale  in  execution  of  the  decree  of  court,  it  is 
difficult  to  see  what  locus  standi  the  plaintiff  could 
have  had  in  any  court  to  ask  to  have  the  deed  of  sale  set 
aside,  and  that  cause  of  action  accrued  to  him  when, 
having  knowledge  of  the  fraudulent  character  of  the  sale 
deed,  it  had  become  apparent  to  him  that  there  was  no 
other  property  than  that  covered  by  the  sale  deed  avail- 
able for  the  debt,  and  tho  suit  was  within  time. 


92. — To  declare  the  forgery 
of  an  instrument  issued 
or  registered. 


Three  years.. 


When  the  issue  or  re- 
gistration becomes 
known  to  the  plain- 
tiff. 


(a)  (No.  93,  Act  IX.)  Under  Act  IX,  the  date  of 
the  issue  or  registration  was  the  starting  point  of  limita- 
tion. Under  the  present  Act,  limitation  does  not  run 
until  the  issue  or  registration  becomes  known  to  the 
plaintiff. 


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AET.  98]         THE  SECOND  SCHEDULE,  F1EST  DITI8ION SUITS. 


433 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which 
period  begins  to  run. 


Part  VI. 
Three  years. 

(b)  Where  plaintiff  and  defendant  were  the  widows  of 
two  joint  uterine  brothers,  and  defendant  alleged  that 
plaintiff's  husband  had  left  his  share  by  will  to  her 
(defendant's)  husband,  it  was  held  that  in  a  suit  by 
plaintiff,  alleging  the  will  to  be  a  forgery,  and  praying  for 
a  declaration  of  her  right  to  her  husband's  share,  that  the 
substance  of  the  suit  being  for  such  declaration  of  right 
and  not  to  set  aside  the  will,  the  limitation  prescribed  in 
this  Article  did  not  govern  the  case.  Nistariny  Dossee  v. 
Anundmoye  Dossee.  W  So  where,  on  the  death  of  Ay  his 
property  was  taken  possession  of  by  G  under  an  alleged 
deed  of  sale  from  A  ;  it  was  held,  that  a  suit  by  A's  heir 
for  possession  and  to  set  aside  the  deed  was  governed  by 
Act  IX  of  1871,  schedule  2,  Article  145,  (144  of  this  Act,) 
and  not  by  Article  93.  Trilochun  v.  Nobokishore  Gut- 
tuck.W 


Three  years. 


93. — To  declare  the  forgery 
of  an  instrument  at- 
tempted to  be  enforced 
against  the  plaintiff. 

(a)  This  Article  and  Article  92  correspond  to  Article 
93  of  Act  IX  of  1871,  except  that,  by  the  latter,  the  date 
of  issue  or  registration  or  attempt  was  the  time  from 
which  the  period  was  to  run.  Where  no  fraud  is  alleged, 
the  three  years'  limitation  in  this  Article  will  run  from 
any  attempt  to  enforce  the  instrument,  although  that 
attempt  might  not  have  been  known  to  the  person  who 
brings  the  suit  to  declare  it  a  forgery. 

(b)  Fakharuddin   Mahomed    Ahsan  v.    The   Official 

Trustee  of  Bengal/9)  was  instituted  by  a  Mahomedan  wife 

against  her  husband  for  dower  and  was  appealed  to  the 

High  Court  and  then  to  the  Privy  Council.     Pending 

(1)  2  Calc.  L.  R.,  561.         |  (2)  2  Calc.  L.  R.,  10. 

(3)  I.  L.  R.,  8  Calc,  178. 


C.  H. 

Plaintiff's  suit 
alleging  her 
husband's    will 
to  be  forgery 
and  prajring  for 
declaration  of 
her  right  to  her 
husband's 
share,  does  not 
fall  under  this 
Article. 
So  is  a  suit  for 
possession   and 
to  set  aside  a 
sale  deed. 


The   date 
tempt. 


of  the  at- 


Knowledge  of 
attempt  is  not 
necessary. 


Setting  up  a 
deed  in  a  suit 
and  applying  to 
be  made  respon- 
dent constituted 
an  attempt  to 
enforce. 


55 


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434  THl  MCOND  BOHBDULE,  FIRST  DIVISION — SUITS.    [AET.  94 — 95 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Pabt  VI. 
Three  years. 

the  appeal  to  the  High  Court,  the  wife  executed  a 
hibbanamah,  giving  to  the  present  defendant  a  share  in 
whatever  she  should  recover.  She  died  while  the  appeal 
was  pending,  and  the  defendant,  on  the  basis  of  the  deed, 
applied  in  1865  to  have  his  name  put  upon  the  record  as 
one  of  the  respondents.  The  present  plaintiff  opposed 
the  application  on  the  ground  that  the  deed  was  a  forgery. 
The  defendant's  name  was  put  on  the  record  on  the 
ground  that  it  would  not  prejudice  the  plaintiff.  After 
the  disposal  of  the  suit  by  the  Privy  Council  in  December, 
1873,  the  plaintiff  sued  to  have  it  declared  that  the  sale 
it  is  not  neoes-  deed  was  a  forgery.  Jackson  J.,  observes :  "  It  seems  to 
•party seeking  me  it  clearly  was  such  an  attempt  to  enforce  the  instru- 
ment as  under  Article  93  obliged  plaintiff  to  bring  his 
suit  within  three  years  of  such  attempt.  It  is  not  neces- 
sary for  the  purposes  of  that  Article  that  the  person  who 
is  to  profit  by  that  instrument  should  seek  to  obtain  the 
entire  fruits  of  it.  It  is  quite  enough  in  my  opinion,  if, 
having  obtained  the  instrument,  he  seeks  to  place  himself 
in  an  advantageous  position,  which,  but  for  the  instrument 
he  could  not  occupy." 

Three  years. 


to  be  benefited 
by  the  forged 
instrument 
should  seek  to 
obtain  the  en- 
tire fruits  of  it. 
It  is  enough  if 
he  seeks  to 
place  himself  in 
an  advantage- 
ous position. 


94.— For  property  which  the 
plaintiff  has  conveyed 
while  insane. 


When  the  plaintiff  is 
restored  to  sanity, 
and  has  knowledge 
of  the  conveyance. 


(No.  94,  Act  IX.) 

95. — To  set  aside  a  decree  ob-   Three  years, 
tained    by    fraud,    or 
for  other  relief  on  the 
ground  of  fraud. 

where  right  to       (a)     This  Article  re-enacts  as  one   Article  the  pro- 
sue  is  founded       ..... 
on  a  dooument  visions  contained  in  Articles  95  and  96  of  Act  IX  of  1871. 

fraudulently  __ 

Where  the  right  to  sue,  or  the  title  upon  which  it  is 


When  the  fraud  be- 
comes known  to  the 
party  wronged. 


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Aft? .  95]  THE  SECOND  SCHEDULE,  FIBST  DIVISION— SUITS.  435 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

founded,  or  any  document  necessary  to  establish  such   concealed,  sec- 

right,  has  been  fraudulently  concealed  by  the  defendant, 

section   18   applies.     In   Opender  Narain   Mookerjee  v. 

Gudadhur  DeyM  it  has  been  observed  that  Article  95, 

schedule  2,  of  the  Limitation  Law  provides  a  period  of 

limitation  in  extension  of  the  period  which,  in  the  absence 

of  fraudulent    concealment,   would,   under    some    other 

Article,  apply  to  a  suit  and  not  a  period  less  than  that 

which  under  ordinary  circumstanced  would  be  allowed  for 

a  suit  of  the  same  nature.     This  Article  does  not  apply  to  This  Article 

a  suit  for  possession  of  immoveable  property  cancelling   to  suit  for  poa- 

.      1  r  ,,,*.,  ,    session  by  avoi. 

an  instrument  of  mortgage  set  up  by  the  defendant  and  ding  a  mort- 
which  the  plaintiff  alleged  was  fraudulent  and  collusive. 
Such  suits  are  governed  by  Article  138.     Uma  Shankar 
v,  Kalka  Prasad.W 

(b)     In    Cbunder   Nath   Chowdhry,   v.  Thirthanund  This  does  not 
Thakoor,<8)  the  plaintiff's  grand-father's  brother's  widow  forP!an£when 
had  granted  a  patni  lease  in  May,  1862,  to  the  1st  and  2nd  a partofThe* y 
defendants'  father  of  a  certain  joint  property,  and  the   which  plaintiff 
plaintiff's    father    obtained  in   August,  1867,  a  decree  possesion,  but 
declaring  that  the  lease  should  enure  only  during  the  life  SearS*  tobe 
of  the  widow.     In  execution  of  a  money  decree  against  transaction  into 
the  plaintiff's  father,  the  1st  defendant  purchased   the   fraudulently 
reversionary  right.     The  widow  survived  the  plaintiff's   enter. 
father  and  died  in  February  1869.    The  defendant's  father, 
who  held  possession  of  the  property,  having  made  default 
in  payment  of  revenue,  the  Government  sold  the  lands, 
and  the  3rd  defendant,   a  cousin  of  the  other  defen- 
dants, bought  it.     The  plaintiff  alleging  that  the  default 
was  fraudulent,  sued  to  recover  possession  of  the  property. 
The  Lower  Court  rejected  the  suit  as  barred  by  this  section, 
the  suit  not  having  been  brought  within  three  years  of  the 

(1)  25  W.  R.,  476.  |  (2)  I.  L.  R.,  6  All.,  75. 

(8)  I  L.  R.,  3  Gale,  504. 


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436  THI  8ICOND  8CHIDULB,  FIR8T  DIYI8I0N — BUIT8.  [ART.  95 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


I    Part  VI. 
I  Three  years. 

discovery  of  the  alleged  fraud.     It  was  held  that  this 

Article  was  not  intended  to  apply  to  suits  for  possession  of 

immoveable  property  when  fraud  is  merely  a  part  of  the 

machinery  by  which  the  defendant  has  kept  the  plaintiff 

out  of  possession,  and  that  the  Article  has  reference  to 

cases  where  a  party  has  been  fraudulently  induced  to  enter 

into  some  transaction,  execute  Borne  deed,  or  do  some  other 

Legislature         act,  and  desires  to  be  relieved  from  the  consequences  of 

intended  to  out  such  act.     Jackson,  J.,  observes,  that  it  could  not  have 

which  plaintiff  been  the   intention  of  the  Legislature  to  cut  down  the 

ly  have  to  three  limitation  of  12  years  which  the  plaintiff  would  ordinarily 

addition  to         have   to  three  years,  because,  in  addition  to  wrongful 

session  there  ie  possession  on  the  part  of  the  defendant,  there  had  been  a 

fraud.  _         , 

fraud. 
Suit  to  recover       (c)     The  plaintiff  alleged  that  the  defendants,  fraudu- 
which  defen.     lently  representing  themselves  to  be  agents  of  one   S., 
fraudulently       received  from  him  catties  in  payment  of  a  debt  which  he 

representing  he 

was  plaintiff's     owed  to  S,  and  that  they,  instead  of  giving  the  cattle  to 

creditor's  agent,  •   x    j   xi_  •  *i.-i_i_ 

fails  under  this  8.,  appropriated  them,  m  consequence  of  which  he  was 

Article. 

compelled  by  suit  to  pay  the  debt  a  second  time.     It  was 

held  that  a  suit  by  plaintiff  to  recover  the  value  of  the 

cattle  came  under  this  Article.     Budha  Singh  v.  Hira 

(Punj.  Rec,  No.  19  of  18780W 

To  a  suit  for         (d)     Where  A  sold  a  decree  to  B,  but  after  the  sale 

lenti /realized     realized  the  decree  amount  from  the  judgment-debtor,  and 

er  after  he  had    on  application  by  B  for  execution  the  fraud  was  discovered, 

runs  from  die-     it  was  held  in  a  suit  by  B  for  the  recovery  from  A  of  the 

to  very  .  pnrc]iage  money,  that  limitation  ran  from  the  discovery 

of  the  fraud.     Gopal  Chandra  Dey  v.  Pemu  Bibi.W 
Suit  for  breach       (6)     Plaintiff  received  .from   defendant  an  indemnity 
tademSfv  to      bond,  promising  to  indemnify  plaintiff  against  the  mis- 
fnud8oVaetfaird  behaviour  of  a  third  person.     The  third  person  committed 

party  is  not 

thUAr&lef         (1)  Rivals  Limitation  Act,  p.  131.  |      (2    1  B.  L.  R.  A.  C,  76. 


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ART.  95]         THE  SECOND  SCHEDULE,  FIRST  DIVI8TON — 8U1TS.  437 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

an  act  of  embezzlement.  In  an  action  brought  by  plaintiff 
on  the  indemnity  bond  more  than  three  years  after  the 
date  of  the  embezzlement,  it  was  held  that  the  Articles 
of  Act  IX  of  187 J,  corresponding  to  Articles  65  and  83  of 
this  Act,  barred  the  suit,  and  that  Article  95  was  not 
applicable  :  Shapnrji  Jahangirji  v.  Superintendent,  Poona 
City  Jail.U) 

(f)  Natha  Singh  v.  Jodha  Singh/2)  was  a  suit  brought  Suit  to  cancel 
by  plaintiffs  to  set  aside  the  sale  effected  in  execution  of  mere  ground  of 
a  decree  which  had  been  fraudulently  obtained  by  the  dor  this  Article 
defendant  who  sued  on  a  mortgage  deed  which  had  been  Articles  12  or 

.  144 

cancelled  by  being  included  in  a  subsequent  mortgage    (May  1884.) 
deed  executed  to  him  by  the  plaintiff's  ancestor  and  to 
recover  possession  of  the  property.     It  was  held,  that 
Article  95  alone  was  applicable  to  this   case,  inasmuch 
as  fraud  vitiates  all  things  and  prevents  the  application 
of  any  other  law  of  limitation  than  that  specially  pro- 
vided  for  relief   from    its   consequences,  and   that   the 
knowledge  predicated  by  the  terms  of  this  Article  is  not   Knowledge  pre- 
mere  suspicion,  but  such  definite  knowledge  as  enables  the   Article  is  not 
person  defrauded  to  seek  his  remedy  in  court.     It  was    buYd^nniteCM>n 
further  held,  that  Article  12  or  144  does  not  apply  to  this       ow  e(^' 
case.    (See  Notes  H.  and  0.  under  Article  12,  pp.  305, 309.) 

(g)  In  Viraragava  v.    Krishnasami/3)  a  mortgagee   To  auction  pur- 
sued the  mortgagor  in  1876,  upon  a  deed  dated  December,   compensation* 
1869,  and  in  execution  of  that  decree  himself  became  pur-   mortgagor  un- 
chaser  in  August,  1876  ;  afterwards  he  discovered  that  a  8iJon  Act, 'time 
part  of  the   land  had  been   acquired  by  the  Railway   of  knowledge. 
Company  under  the  Land  Acquisition  Act  in   1874,  and 

that  the  compensation  money  claimed  by  the  mortgagor's 
mother,  who  sold  it  to  the  Company,  was  lodged  in  the 
Treasury  in  her  name.    Purchaser's  application  for  money 

(1)  12  B.  H.  C.  R.,  238.  |         (2)  I.  L.  R.,  6  All.,  406. 

(3)  I.  L.  R.,  6  Mad.,  344. 


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438 


THB  SBOOND  flCHIDULl,  FIRST  DIVISION — BUM  [ABT.  96 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Claim  is  not 
barred  either 
under  this  Arti- 
cle or  Article  06. 


Trustee's  unit 
to  set  aside  for 
fraud,  decree 
obtained  by 
other  trustees 
falls  under  this 
Article. 


Part  VI. 
Three  years. 

to  the  court  in  February,  1880,  was  rejected,  and  he 
brought  a  regular  suit  in  September,  1880.  It  was  held, 
that  the  suit  was  not  barred  by  limitation  as  the  compen- 
sation was  awarded  to  mortgagor's  mother  either  through 
fraud  on  her  part,  or  mistake  on  the  part  of  the  Collector ; 
and  as  the  auction  purchaser  did  not  become  aware  of  the 
fraud  or  mistake  until  within  six  years  before  the  suit, 
his  claim  either  under  this  Article  or  Article  96  is  not 
barred. 

(h.)  Certain  of  the  grantees  of  lands,  granted  for  the 
maintenance  of  the  grantees  and  the  support  of  a  mosque 
and  other  religious  purposes,  sued  for  the  removal  of  the 
superintendent  of  the  property  from  his  office.  The 
parties  to  this  suit  entered  into  a  compromise,  which 
made  certain  arrangements  for  the  management  of  the 
property,  and  a  decree  was  made  in  accordance  with  the 
compromise.  The  grantees  who  were  not  parties  to  this 
suit  then  sued  to  have  the  compromise  and  decree  set 
aside  on  the  ground  of  fraud.  It  was  held,  that  the  suit 
fell  within  the  terms  of  Article  95,  and  there  was  nothing 
about  it  which  made  the  exemption  of  section  10  of  the 
Act  applicable  to  it :  Muhammad  Bakhsh  v.  Muhammad 
Ali.W 


96. — For  relief  on  the  ground 
of  mistake. 


This  Article  is 
intended  to  ap- 
ply to  suits  for 
relief  on  the 
ground  of  mis- 
take of  fact  and 
of  law. 


Although 
money  paid  un- 
der a  mistake 


Three  years.  When  the  mistake  be- 
comes known  to  the 
plaintiff. 

(a)  (No.  97,  Act  IX.)  Article  97  of  Act  IX  of  1871 
referred  to  "  mistake  in  fact.'*  The  omission  of  the 
words  "  mistake  in  fact"  in  the  Act  of  1877  shows  that 
this  Article  is  intended  to  apply  to  both  mistake  in  fact 
and  in  law. 

(b)  In  Edward  James  Daniell  v.  James  Sinclair, (*> 
(1)  I.  L.  R.,  5  All.,  294.  |  (2)  L.  R.,  6  App.  181. 


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ART.  96]         THI  SECOND  SCHEDULE,  FiJtST  DIVISION — SUITS.  439 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

it  was  held  that  a  mortgage  account  that  had  been,  set-  of  law  cannot  be 
tied  on  the  footing  of  compound  interest  with  half -yearly  courts  of  Com- 
rests,  both  parties  wrongly  understanding  the  mortgage  Equity,  the  line 
deed  to  require  the  same,  might  be  reopened.     Although   take* in  law  and 

,  ,    .  .  i.i_        •    •  j*i   •  .     mistake  in  fact 

under  certain  circumstances  the  giving  credit  in  account  has  not  been  so 
may  be  treated  as  so  far  equivalent  to  payment  under  *** y  wn* 
mistake  of  law  as  to  prevent  sums  wrongly  credited 
being  recoverable  at  law  ;  yet  in  Equity,  the  line  between 
mistakes  in  law  and  mistakes  in  fact  has  not  been  so 
clearly  and  sharply  drawn.  The  Privy  Council  observe. 
"  Undoubtedly  there  are  cases  in  the  courts  of  Com- 
mon Law,  in  which  it  has  been  held,  that  money  paid 
under  a  mistake  of  law  cannot  be  recovered,  and  it  has 
been  further  held  that,  under  certain  circumstances,  the 
giving  credit  in  account  may  be  treated  as  so  far 
equivalent  to  payment  as  to  prevent  sums  wrongly 
credited  being  made  the  subject  of  set-off.  (Skyring  v. 
Greenwood  4  B.  &  C,  281).  But  in  Equity,  the  line 
between  mistakes  in  law  and  mistakes  in  fact  has  not 
been  so  clearly  and  sharply  drawn."  In  Earl  Beanchamp 
v.  Winn,  (Law  Rep.,  6  H.  L.  234),  Lord  Chelmsford 
observes :  "  With  regard  to  the  objection,  that  the  mistake 
(if  any)  was  one  of  law,  and  that  the  rule  ignorantia  juris 
neminem  excusat,  applies,  I  would  observe  on  the  pecu- 
liarity of  this  case,  that  the  ignorance  imputable  to  the 
party  was  of  a  matter  of  law  arising  upon  the  doubtful 
construction  of  a  grant.  That  is  very  different  from  the 
ignorance  of  a  well  known  rule  of  law ;  and  there  are  many 
cases  to  be  found  in  which  Equity,  upon  a  mere  mistake 
of  the  law,  without  the  admixture  of  other  circumstances, 
has  given  relief  to  a  party  who  has  dealt  with  his 
property  under  the  influence  of  such  a  mistake." 

In    Cooper  v.    Phibbs,    (Law    Rep.,    2    H.    L.  170).  if  parties  con- 

.  .  .  tract   under  a 

Lord  Westbury  says  :     Private  right  of  ownership  is  a  mutual  mistake 


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440 


THE  8ECOND  SCHEDULE,  P1B8T  DIVISION — SUITS.  [ART.  96 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


as  to  their 
rights,  agree- 
ment is  liable 
to  be  set  aside. 


Suit  to  be  re- 
lieved against 
renunciation  of 
claim  made  un- 
der a  mistake 
respecting  the 
validity  of 
marriage. 


Mistake  result- 
ing from  a  mis- 
construction of 
a  will. 


Suit  for  the  re- 
covery of  excess 
payment  on 
account  of  road 
cess,  falls  under 
this  Article. 
(Feb,  1886.) 


Suit  for  money 
paid  to  defen- 
dant either 
through   his 
fraud  or  by 
mistake  on  the 
part  of  the  Col- 
lector, falls  un- 
der this  Article 
or  Article  86. 
(April  1883.) 


Pabt  VI. 
Three  years. 

matter  of  fact ;  it  may  be  also  the  result  of  matter  of 
law ;  but  if  parties  contract  under  a  mutual  mistake  as 
to  their  relative  and  respective  rights,  the  result  is  that 
that  agreement  is  liable  to  be  set  aside,  as  having  pro- 
ceeded upon  a  common  mistake. 

In  M'Carthy  v.  Decaix  (2  Buss,  and  My.,  614), 
where  a  person  sought  to  be  relieved  against  a  renuncia- 
tion of  a  claim  to  property,  made  under  a  mistake 
respecting  the  validity  of  a  marriage,  the  Lord  Chancellor 
observes  :  "  What  he  has  done  was  in  ignorance  of  law, 
possibly,  of  fact ;  but,  in  a  case  of  this  kind,  this  would  be 
one  and  the  same  thing. 

In  Livesey  v.  Livesey  (3  Buss.  287),  an  executrix 
who,  under  a  mistake  in  the  construction  of  a  will,  had 
overpaid  an  annuitant,  was  permitted  to  deduct  the 
amount  overpaid  from  subsequent  payments." 

(C)  In  Mathura  Nath  Kundu  v.  Debendra  Nath 
Kundu,*1)  plaintiffs  sued  in  July,  1882,  for  the  excess 
payments,  amounting  to  Bs.  6-14-7,  realized  from  them  as 
road  and  public  work  cesses  from  1873  to  1879.  Both 
the  lower  courts  dismissed  the  suit  as  barred  by  one 
year's  limitation  provided  in  section  27,  Bengal  Act  VIII 
of  1869.  It  was  held,  that  the  suit  was  governed  by  this 
Article  and  not  by  the  Bengal  Act  which  provides  only 
for  the  recovery  of  cess  as  rent,  and  not  for  the  recovery 
of  excess  payment. 

(d)  In  Viraragava  v.  Krishnasami/2)  K,  in  1876, 
sued  M  on  abond  dated  25th  December,  1869,  for  Bs.  5,000, 
by  which  certain  land  in  the  District  of  South  Tanjore 
was  hypothecated  as  surety  for  the  debt,  and  obtained 
a  decree  on  the  6th  of  April,  1876,  for  the  sale  of  the 
lands  which  he  purchased  on  the  17th  August,  1876,  for 

(1)  I.  L.  R.,  12  Cal.,    33.      |         (2)  I.  L.  R.,  6  Mad.,  345. 


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ART.  97]         THE  SBCOND  SCHEDULE,  FIRST  DIVISION — SUITS. 


441 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

Rs.  6,000.  K  then  discovered  that  part  of  the  land 
hypothecated,  situated  within  the  jurisdiction  of  the  Sub- 
ordinate Court  at  Kumbakonum,  had  been  acquired  by  a 
Railway  Company  under  Land  Acquisition  Act  inl874,  and 
that  the  compensation,  Us.  460  (claimed  by  M98  mother, 
who  sold  the  land  to  the  company),  was  lodged  in  the 
Treasury  of  Kumbakonum  in  the  name  of  M*8  mother. 
K.  having  applied  to  the  Subordinate  Court  for  an  order 
for  payment  out  of  this  sum,  the  court,  by  order  dated 
28th  February,  1880,  directed  that  the  question  of  title 
to  the  money  should  be  decided  by  a  suit.  K  then 
sued  M  as  the  sole  heir  of  his  deceased  mother  in  the 
District  Munsif 's  Court  of  Tiruvadi  (where  M  resided)  for 
a  declaration  of  right  to,  and  recovery  of,  the  said  sum  of 
Rs.  460.  The  suit  was  filed  on  the  4th  September,  1880. 
It  was  held  that  the  suit  was  not  barred  by  limitation, 
as  the  compensation  was  awarded  to  M'a  mother  either 
through  fraud  on  her  part,  or  mistake  on  the  part  of  the 
Collector,  and  K  did  not  become  aware  of  the  fraud  or 
mistake  until  within  six  years  of  the  suit.  (Articles  95, 
96  of  schedule  2  of  the  Indian  Limitation  Act.) 
97. — For  money  paid  upon  an  Three  years, 
existing  consideration 
which  afterwards  fails. 
(a)  (No.  98,  Act  IX.)  In  Koji  Ram  v.  Ishar  Das,*1) 
pending  an  appeal  from  a  decree  for  pre-emption  in  respect 
of  certain  property,  conditional  upon  payment  of  Rs.  1,595, 
the  pre-emptor-decree-holder,  in  August,  1880,  applied 
for  possession  of  the  property  in  execution  of  the  decree, 
alleging  payment  of  the  Rs.  1,595,  to  the  judgment- 
debtors  out  of  court,  and  filing  a  receipt  given  by  them 
for  the  money.  This  application  was  ultimately  struck 
off.  In  April,  1881,  judgment  was  given  in  the  appeal 
(1)  I.  L.  R.,  8  AIL,  273. 


The  date  of  the  fail- 
ure. 


Suit  for  money 
paid  by  a  pre- 
emptor  under  a 
decree  for  pre- 
emption which 
has  become 
void,  by  failure 
to  pay  the  sum 
enhanced  by 
the  appellate 
court  by  time 
fixed,  falls  un- 
der this  Article 
or  under  Article 
120. 


56 


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442  THE  SECOND  SCHEDULE,  FIB8T  DIVISION — SUITS.      [ART.  98 — 99 


Description  of  rait. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  mn. 


Part  VI. 
Three  years. 

increasing  the  amount  to  be  paid  by  the  decree-holder  to 
Rs.  1,994,  which  was  to  be  deposited  in  court  within 
a  certain  time.  The  decree-holder  did  not  deposit  the 
balance  thus  directed  to  be  paid,  and  the  decree  for 
possession  of  the  property  accordingly  became  void.  In 
1882,  the  decree-holder  assigned  to  K  his  right  to  recover 
from  the  judgment-debtors  the  sum  of  Rs.  1,595,  which 
he  paid  to  them  in  August,  1880.  In  December,  1883, 
K  sued  the  judgment-debtors  for  recovery  of  the  Rs.  1,595 
with  interest.  It  was  held  that  No.  97,  and  if  not, 
No.  120,  would  apply,  and  the  suit  was  therefore  not 
barred  by  limitation. 


98. — To  make  good  out  of  the 
general  estate  of  a  de- 
ceased trustee  the  loss 
occasioned  by  a  breach 
of  trust. 


Three  years. 


The  date  of  the  trus- 
tee's death,  or,  if  the 
loss  has  not  then  re- 
sulted, the  date  of 
the  loss. 


(No.  99,  Act  IX ;  sec.  2,  Act  XIV.)     As  to  the  liability 
for  breach  of  trust,  see  section  23,  Act  II  of  1882. 


Three  years. 


The  date  of  the  plain- 
tiff's advance  in  ex- 
cess of  his 
share. 


own 


99. — For  contribution  by  a 
party  who  has  paid  the 
whole  amount  due  un- 
der a  joint  decree,  or 
by  a  sharer  in  a  joint 
estate  who  has  paid  the 
whole  amount  of  reve- 
nue due  from  himself 
and  his  co-sharers. 

(a)  (No.  100,  Act  IX.)  This  Article  is  a  reproduction 
of  Article  100  of  Act  IX  of  1871.  In  Fuckoruddeen 
Mahomed  Ahsan  v.  Mohima  Chunder  Chowdhry,*1)  plaintiff 
and  defendants  were  jointly  liable  under  a  decree  which 
was  satisfied  solely  by  the  sale  of  the  plaintiff's  property 
on  the  7th  June,  1883.  In  June,  1876,  plaintiff  filed 
a  suit  for  contribution.  The  plaint  was  returned  for 
(1)  I.  L.  R.,  4  Calc,  529. 


Suit  for  contri- 
bution when 
money  was  rea- 
lised by  sale  of 
plaintiff's  pro- 


£*• 


doubted  to  fall 
under  this 
Article. 


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ART.  99]  THE  8EC0ND  SCHEDULE,  FIRST  DIVI8I0N — SUITS.  443 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VI. 
Three  years. 

amendment  on  the  14th  June,  to  be  re-presented  within  without  ded- 
one  week,  but  it  was  not  filed  until  17th  July,  1876.     The  Artfcieiooor 
Lower  Appellate  Court  rejected  the  suit  as  barred  by  the  the  High  Court 
corresponding  Article  100  of  Act  IX  of  1871.     As  limi-  suit  was  within 
tation  begins  to  run  from  the  date  of  the  plaintiff's  advance 
and  as  nothing  was  paid  in  this  case  by  the  plaintiff  whose 
property  alone  was   sold  and   money  realised,  it  was  a 
question  whether  Article  100  or  Article  118  corresponding 
to  120  of  the  Act  of  1877,  applied  to  this  case.     Without 
deciding  upon  that  point  the  court  held  that  the  suit  was 
within  time  from  the  date  that  sale  proceeds  were  paid  to 
the  decree-holder. 

(b)     A  suit  for  recovery  of  Government  revenue  which  Suit  for  Govern- 
the  defendant,  as  lessee,  was  bound  to  pay,  but  which  has  paid  by  a  leasee 
been  paid  by  the  plaintiff  to  save  the  whole  estate  from  estate  from  sale 
sale,  where  the  plaintiff  asks  to  have  the  amount  so  paid  under  this 
made  a  charge  on  the  portion  for  which  he  paid  it,  is 
governed  by  Article  132  and  not  by  this  Article.     Mitter, 
J.,  observes  :  "  We  think  Article  99  has-  no  application  to 
the  case,  the  plaintiff  having  paid  the  money,  neither 
under  a  decree  nor  as  a  joint  proprietor  of  this  estate." 
Ram  Dutt  Singh  v.  Horakh  Narain,  Singh.*1)      In  Deo 
Nundun  v.  Deshputty/2)  it  was  held,  that  a  suit  for  contri- 
bution, by  a  sharer  in  a  joint  estate,  where  the  amount  of 
revenue  paid  in  excess  is  sought  to  be  made  a  charge  on 
the  share  for  which  it  was  paid,  is  governed  by  Article 
132  and  not  by  this  Article. 

(C)     When  a  person  has  paid  more  than  his  share  of  a  Time  runs  from 

.    .    ,    ,  ,..!,.  .  .t  *  .,     ,.         the  date  that 

joint  decree,  limitation  runs  against  a  suit  for  contribution  excess  payment 

was  actually 

from  the  time  that  the  excess  payment  was  actually  made  made  to  decree- 
to  the  decree-holder :  Badha  Kristo  Balo  v.  Rup  Chunder 
Nundi.W 


(1)  I.  L.  R.,  6  Calc,  549.        |  (2)  8  C.  I..  R.,  210. 

(3)  8  C.  L.  R.,  480. 


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444        THE  SECOND  8CHEDULE,  PIEST  DIVISION SUITS.     [ART.  100 — 103 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 


When  the  right  to 
contribution  ac- 
crues. 


100. — By  a  co-trustee  to  en- 
force against  the  estate 
of  a  deceased  trustee  a 
claim  for  contribution. 

(No.  101  Act  IX;    sec.  2,  Act  XIV.)     As  to  contribu 
tion  between  co-trustees,  see  section  27,  Act  II  of  1882. 


101. — For  a  seaman's  wages. 


Three  years.  The  end  of  the  voyage 
during    which   the 
wages  are  earned. 
Seamen  are  (a)     (No.  102,  Act  IX.)     Seamen  are  persons  engaged 

edm°navi«a^  *&  navigating  ships,  barges,  <fcc.,  upon  the  high  seas, 
seas  M^npoaed  Rsgrutetions  regarding  seamen  differ  in  different  coun- 
to  watermen       tries  ;  but  in  all,  they  have  been  intended  to  obviate  the 

who  are  engag-  '  •    i  i  •  •'•  j 

ed  in  navigating  dispute  that  might  otherwise  arise  between  .a  master  and 
SkeJ.  *"  seaman  as  to  the  terms  of  the  contract  between  them,  to 
secure  due  obedience  to  the  master' s  orders,  and  to  interest 
the  seamen  in  the  completion  of  the  voyage  by  making 
their  earnings  depend  on  its  successful  termination. — 
Wharton. 

102. — For  wages  not  otherwise  Three  years, 
expressly  provided  for 
by  this  schedule. 

This  Article  is  general  and    covers  suits  for  wages 
which  do  not  fall  under  Articles  4,  7  and  101. 


When  the  wages  ac- 
crue due. 


103. — By  a  Muhammadan  for 
exigible  dower  (mv? 
ajjal.J 


"  Exigible" 
implies  that  it 
may,  not  that  it 
must,  be  exac- 
ted. 
(Dec  1872.) 


Three  years.  When  the  dower  is  de- 
manded and  refus- 
ed, or  (where  dur- 
ing the  continuance 
of  the  marriage  no 
such  demand  has 
been  made)  when 
the  marriage  is  dis- 
solved by  death  or 
divorce. 

(a)  (No.  103,  Act  IX.)  "  Prompt  dower  is  said  to  be 
exigible  immediately.  Macnaghten,  in  his  Principles  of 
Mabomedan  Law,  p.  59,  says  : — *  Where  it  has  not  been 
expressed  whether  the  payment  of  the  dower  is  to  be 


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ART.  103]        THE  8ECOND  SCHEDULE,  FIEST  D1VI8ION — SUITS.  445 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VI. 
Three  years. 

prompt  or  deferred,  it  must  be  held  that  the  whole  is  due 
on  demand/  The  word  'exigible'  implies  that  it  may, 
not  that  it  must,  be  exacted,  and  therefore  it  would  seem 
that  a  cause  of  action  in  respect  of  it  does  not  accrue  so 
long  as  the  marriage  exists  until  the  wife  does  something 
to  show  that  she  requires  it  to  be  paid.     According  to   As  to  prompt 

dower,  limita- 

the  Mahomedan  law,  a  woman  may  refuse  herself  to  her   tion  does  not 
husband  as  a  means  of  obtaining  so  much  of  her  dower  as   before  demand 

_        or  dissolution  of 

is  prompt.     Bailies  Digest  of  Mahomedan  Law,  p.  1225.    marriage  by 

.  .  .  .  death  or  other- 

That  is  a  mode  of  exacting  it.  But  she  is  not  obliged  to  wise, 
adopt  it.  It  is  optional  with  her  either  to  insist  upon  the 
payment  of  her  prompt  dower,  during  her  husband's 
lifetime,  or  to  wait  until  the  dissolution  of  the  marriage." 
In  respect  of  prompt  dower,  limitation  does  not  begin  to 
run  before  the  dower  is  demanded,  or  marriage  is  dis- 
solved by  death  or  otherwise.  Mussamut  Mulleeka  v. 
Mussamut  Jumeela.M 

(b)     The  prompt  or  exigible  dower  under  the  Mahome-   Unambiguous 

_  _  ,  ,    ,  i,i  i  ^    demandbywife 

dan   Law   may  be  regarded  as  a  debt  always  due  and   and  refusal  by 

.  .  husband  gives 

demandable  during  the  subsistence  of  the  marriage,  and   cause  of  action, 
certainly  payable  on  demand.    On  a  clear  and  unambiguous 
demand  by  the  wife  for  payment,  and  refusal  by  the  hus- 
band to  pay  such  dower,  a  cause  of  action  accrues,  against 

which  limitation  begins  to  run.     An  application  under   Leave  to  sue  as 

pauper  does  not 

section  299,  Act  VIII  of  1859,  by  a  Mahomedan  woman  amount  to  de- 
mand by  action 
for  leave  to  sue  her  husband  for  exigible  dower  in  forma  ^ntn  court's 

permission  to 

pauperis,  may  be  taken  to  express  her  intention  of  bring-   sue  is  obtained. 

ing  an  action  for  dower,  only  if  she  obtains  leave  to  do  so 

as  a  pauper.     Until  she  has  the  court's  permission  to 

sue,    her  application    does    not   amount    to    a    demand 

by  way  of  action.     A  counter-petition  by  the  husband  **  opposing 

J  J  r  J  pauperism,  bus- 

objecting  to  the  pauper  suit  being  allowed,  and  denying   Jj?!$vmtei^{ 

not  constitute 
(1)  11  B.  L.  R.,  P.  C,  375.  caMe  <*  action- 


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446  THK  8KCOND  SCHEDULE,   FIRST  DIVI8ION — 8DIT8.        [ART.  104 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VI. 
Three  years. 

his  liability  to  pay  the  dower,  does  not  alter  the  charac- 
ter of  the  proceedings,  since  no  opposition  on  his  part 
can  constitute  a  cause  of  action,  unless  there  has  been 
a  previous  demand  by  the  wife ;  the  option  being  with 
her  to  demand  the  dower  or  not,  and  to  elect  her  time 
for  demanding  it.  Ranee  Khajooroonnissa  v.  Mirza 
Saifoolla  Khan.d) 


104. — By  a  Muhammadan  for 
deferred  dower  (mv! 
ajjal.J 


Three  years.  When  the  marriage  is 
dissolved  by  death 
or  divorce. 


Limitation  runs  (a)  (No.  104,  Act  IX.)  It  is,  of  course,  indisputable 
tion  of  marri-  that  the  term  to  which  payment  is  to  be  deferred  may  be 
sence  of  any  fixed  by  the  contract ;  that,  for  example,  the  husband  is 
contrary.  at  liberty  to  stipulate  that  the  dower  shall  not  be  payable 

which  payment  until  divorce,  or  his  own  death.  The  difficulty  is  to  say 
may  be  fixed  by  what  is  the  rule  in  the  absence  of  express  stipulation,  as 
where  the  dower  is  merely  described  as  "  mowajjil"  or 
deferred.  Mirza  Bedar  Bukht  Mohummed  Ali  Bahadoor 
t?.  Mirza  Khurrum  Bukht  Yahya  Ali  Khan  Bahadoor. <*) 
This  Article  makes  the  limitation  to  run  from  the  dissolu- 
tion of  the  marriage  by  divorce,  or  by  the  death  of  either 
the  husband  or  the  wife,  in  the  absence  of  any  contract  as 
to  the  time  of  payment, 
wife's  hein'  (b)     According  to  Mohammedan  Law,  wben  the  heirs 

claim  for  defer-  .  °    _ 

red  dower  is  a     of  a  woman  claim  dower  from  her  husband,  which  was 

money  cl&im 

founded  on  hn»-  mowajjil  or  deferred,  and  not  due  or  payable  till  her 
band's  contract.  .... 

death,  their  claim  is  a  simple  money  claim  founded  solely 

on  the  contract  made  by  the  husband  ;  and  a  suit  for  such 

dower  must  be  brought  within  three  years  of  the  wife's 
The  wife  has  no  death  (Act  XIV  of  1859,  section  1,  clause  10.)  The  hus- 
band's pro-         band  is  not  a  trustee  for  his  wife  in  respect  of  her  dower, 

nor  has  the  wife  a  lien  on  her  husband's  property.     Mir 

Mahar  Ali  v.  Amani.W 

(1)  16  B.  L.  R.,  P.  C,  806.  |  (2)  19  W.  R.,  816.  |  (8)  2  B.  L.  R.,  806. 


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ART.  105 106]    THE  8BCOND  8CHKDULE,  FIRST  D1V18I0N — 8DJT8.         447 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begin 8  to  run. 


Part  VI 
105. — By  a  mortgagor  after  Three  years, 
the  mortgage  has  been 
satisfied,  to  recover  sur- 
plus collections  receiv- 
ed by  the  mortgagee. 

(No.  105,  Act  IX.)     The  term  trustee  is  defined 
include    a  mortgagee    remaining   in   possession 


When  the  mortgagor 
re-enters  on  the 
mortgaged  proper- 


(a) 

not  to 


Under  Act  XIV 
of  1869,  plaintiff 
was  held  entit- 

after  the  mortgage  has  been  satisfied.     In   Baboo  Lall  tiona  for  5x 
Doss  t>.    Jamal    Ally/1)   which  was  a  suit  governed  by  suit*     °m 
Act  XIV  of  1859,  it  was  held  that  a  claim  for  the  surplus      annary 
collections  which  have  been  received  by  the  mortgagee 
fell  under  clause  16,  and  that  he  was  entitled  to  whatever 
may  be  found  due  to  him  upon  a  balance  of  accounts  for 
six  years  before  the  commencement  of  the  suit. 

(b)     Under  this  Article,  whatever  may  be  found  due  This  Article  en- 
upon  a  balance  of  accounts  from  the  commencement  of  to  recover  ba- 

lanoe  from  the 
commencement 
of  mortgage. 


The  date  of  the  dis- 
solution. 


the  mortgage  would  not  be  barred  if  the  suit  is  instituted 
within  three  years  from  the  time  that  the  mortgagor 
re-enters  on  the  property  mortgaged. 

106. — For  an  account  and  a  Three  years 
share  of  the  profits  of  a 
dissolved  partnership. 

(a)     (No.  106,  Act  IX.)    If  from  any  cause  whatsoever,  This  Article 
any  member  of  a  partnership  ceases  to  be  so,  the  partner-   nntiidiaaohE7 
ship  is  dissolved   as  between    all    the   other  members,  ship  which ner" 
Unless  the  partnership  has  been  entered  into  for  a  fixed  either  by  a  part- 
term,  any  partner  may  retire  from  it  at  any  time.     Where  oeasingtobe 
a  partnership  has  been  entered  into  for  a  fixed  term,  no  P****61"' 
partner  can,  during  such  term,  retire  except  with  the 
consent  of  all  the  partners,  nor  can  he  be  expelled  by  his 
partners  for  any  cause  whatever,  except  by  order  of  court. 
Partnerships  whether  entered  into  for  a  fixed  term  or  not, 
are  dissolved  by  the  death  of  any  partner.     (Section  253, 
clauses  7,  8,  9  and  10,  Act  IX  of  1872.)     "  So  long  as  a 
partnership   continues   existing,  and  each  partner  is  in 
(1)  9  W.  R.,  185,  F.  B. 


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448  THE  81COND  8CHBDULS,  nit8T  DIT18ION SUITS.       [ART.  106 


Description  of  suit.  r"?t  °* 

r  limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

the  exercise  of  his  rights,  and  the  enjoyment  of  his  pro- 
perty, the  Statute  Law  of  Limitation  has  no  application 
at  all  between  the  partners.*'     (Banning,  204.) 
Although  a  rait       (b)     In  Merwanji   Hormusu  v.    Rustomji  Burjorji,(1) 

to  take  account 

and  obtain  a       it   was   held   that  a  suit  may  be  brought  by  the  repre- 
barred  under      sentative  of  a  deceased  partner  against  the  surviving  part- 

this  Article,  .       _  .  ,    ,        ,  - 

plaintiff  may      ner  of  a  firm  to  recover  a  snare  in  a  sum  received  by  toe 

sue  to  recover  a  .    .  ,  ,      .  ,  . 

share  in  a  sum  surviving  partner  in  respect  of  a  partnership  transaction 

reaiieed  by  a       within  the  period  of  limitation,  although  a  suit  to  take 
ner.  partnership  accounts  generally  would  be  barred.     It  was 

further  held,  that  the  defendant  might  deduct  the  amount 
(if  any)  which  might  be  found  due  to  him  on  taking  the 
partnership  accounts,  although  a  separate  suit  for  such 
account  would  be  barred  by  limitation.  Latham,  J.,  ob- 
serves :  "  I  think  that  the  opinions  of  the  majority  of  the 
Law  Lords  in  that  case  (Knox  v.  Gye,  L.  R.  5,  Eng.  &  Ir. 
Ap.  656,)  do  establish  that  a  suit  may  be  brought  by 
the  representative  of  a  deceased  partner  against  the 
surviving  partner  to  recover  a  share  in  a  sum  received  by 
the  surviving  partner  in  respect  of  partnership  transac- 
tions within  the  period  of  limitation,  although  a  suit  to 
take  the  partnership  accounts  generally  would  be  barred." 
Suit  for  an  (c)     Where  the  plaintiff  prays  that  the  account  of  a 

appointment  of  partnership   may  be   taken,   that   a   liquidator  may   be 
division  of  sur-  appointed  to  wind  up  the  affairs  of  the  partnership  and 
Fail  under  this  that  (after  realization  of  the  assets  and  satisfaction  of 
the  liabilities  of  the  same)  the  partners   may  severally 
be  decreed  in  a  certain  proportion  out  of  what  remains, 
the  suit  has  a  wider  scope,  and  is  not  governed  by  this 
Article,  but  by  Article  120.     Harrison  v.  The  Delhi  and 
London  Bank/2)  (see  Note  F  under  Article  120).     In  the 
above  case,  Straight,  J.,  has  discussed  upon  the  nature 
of  a  suit  falling  under  this  Article,  and  of  an  application 
(1)  I.  L.  R.,  6  Bom.,  628.         |         (2)  I.  L.  R.,  4  All.,  437. 


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ART.  107 — 109]    THB  8BCOND  8CHBDUL1,  PIB8T  DIVI8I0N — 8DIT8.         449 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years 

made  under  section  265  of  the  Contract  Act, 
Allahabad  High  Court,  in  Bamjiwan  Mai  v. 
Mai/1)  held  that  the  ordinary  Civil  Courts  have  juris- 
diction  to  try  a  suit  for  dissolution  of  a  partnership,  nership.*'"" 
their  jurisdiction  to  try  such  suits  not  being  ousted  by 
section  265  of  the  Contract  Act,  1872.  It  is  proposed  to 
make  suits  under  section  265  of  the  Contract  Act  cogni- 
sable by  District  Munsiffs  and  Subordinate  Judges.  See 
Bill  No.  Ill  of  1885. 


The         a.  h. 

ni  n„i    Ordinary  Civil 

Onand  co^  ^  try 

suits  for  disso- 
lution of  part- 


107. — By  the  manager  of  a 
joint  estate  of  an  undi- 
vided family  for  contri- 
bution in  respect  of  a 
payment  made  by  him 
on  account  of  the  estate. 
(No.  107,  Act  IX.) 

108. — By  a  lessor  for  the  value 

of  trees  cut  down  by 

his  lessee  contrary  to 

the  terms  of  the  lease. 

(No.  108,  Act  IX.) 


Three  years. 


The  date  of  the  pay- 
ment. 


109 — For  the  profits  of  im- 
moveable property  be- 
longing to  the  plain- 
tiff which  have  been 
wrongfully  received  by 
the  defendant. 


Three  years. 


Three  years. 


When  the  trees 
cut  down. 


are 


When  the  profits  are 
received,  or,  where 
the    plaintiff     has 
been    dispossessed 
by  a  decree  after- 
wards set  aside  on 
appeal,     when    he 
recovers  possession. 
(a)     (No.  109,  Act  IX.)     In  the  case  of  the  recovery 
of   mesne   profits  collected  or  received  under  a   decree, 
afterwards  set  aside  in  appeal,  this  Article  makes  the 
period  to  run  from  the  time  that  the  plaintiff  "  recovers 
possession"  instead  of  from  the  date  of  the  decree  of  the 
Appellate  Court  as  provided  for  by  the  corresponding 
Article  of  Act  IX  of  1871. 

(1)  I.  L.  E.,  7  All.,  227. 
57 


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450  THE  8BCOND  SCHEDULE,  F1E8T  DIVISION — 8UIT8.       [aET.  109 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VI. 
Three  years. 

Suit  for  the  (b)     In  Shurnomoyee  v.  Pattarri  Sirkar,*1)  the  defen- 

S^crop88w-d"  dant,  in  November,  1873,  obtained  a  decree  for  arrears 
Sr  ta£ng  pos-  of  rent  and  ejectment  and  in  execution  evicted  the  plain- 
dtox^OT&ct.  tiff  in  January,   1874,  and  afterwards  carried  away  the 
wSch*^*0111     standing  crops  on  the  land.     On  appeal  by  the  plaintiff 
SSdTneM  t!f     the  decree  was  modified,  and  the  plaintiff  was  allowed 
fan  under  thia  1&  dftys,  time  ^  depogit  the  ^^     The  p^^tiff  accord- 
ingly deposited  the  rent,  and  recovered  possession  of  the 
tenure  and  brought  the  suit  to  recover  the  value  of  the 
crops  carried  away.     It  was  held  that  such  a  suit  was 
governed  by  the  corresponding  Article  of  Act  IX  of  1871, 
and  that  it  was  not  a  suit  for  compensation  for  any  wrong, 
&c.,  within  the  meaning  of  Article  40  of  the  said  Act 
corresponding  to  Article  36  of  Act  XV  of  1877. 
Claim  for  mean©       (c)     A  claim  for  mesne  profits  during  a  period  preceding 
So^  preceding    the  three  years  next  before  the  filing  of  the  plaint  is  barred 
before  wityhtld  hy  Act  XV  of  1877,  schedule  2,  Article  109.     An  Under- 
bftm*L  proprietor  having  been  dispossessed  by  a  manager  of  the  su- 

perior estate,  appointed  under  the  Oudh  Talukdar's  Belief 
Act,  1870,  recovered  possession  under  a  decree,  and  after- 
wards sued  for  mesne  profits.  It  was  held  that  a  person  who 
had  not  himself  received  the  mesne  profits  having  come  into 
possession  of  the  Taluk  upon  its  being  released  from 
management  under  the  above  Act,  would  not  be  chargeable 
with  sums,  which,  as  it  was  alleged,  might  have  been  receiv- 
ed by  way  of  mesne  profits,  but  had  not  been  received  in  con- 
sequence of  the  manager's  wilful  default;  there  being 
nothing  to  show  that  such  Talukdar  could  be  charged  with 
it  is  discretion-  anything  more  than  was  actually  received  by  him.  There 
court  to  allow  being  no  rule  of  law  obliging  the  court  to  allow  interest  upon 

on  mesne  pro-    mesne  profits,  it  is  a  matter  for  the  discretion  of  the  court 
fits 

upon  consideration  of  the  facts  whether  to  allow  interest 

or  not.     Krishnanand  v.  Kunwar  Partab  Narain  Singh.M 

(1)  I.  L.  R.,  4  Calc.,  625.      |       (2)  I.  L.  R.,  10  Calc,  785. 


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ART.  110 — 111]     THI  8BCOND  SCHBDULB,  FIB8T  DIVISION — 8U1T8.        451 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

(d)  In  Byjqath  Pershad  v.  Badhoo  Singh/1)  it  was  When  the 
held  where  the  amount  of  mesne  profits  cannot  be  as-  ^profits  SSJ" 
oertained  till  after  the  end  of  the  year,  the  cause  of  action  £Sned  tmliiter 
does  not  arise  until  the  end  of  the  year.  Parties  in  pos-  SjJ^01^^  *£? 
session  are  liable  for  wasilat  to  the  legal  owners  whom  *2j|Jf£fl,}oe£ no* 
they  keep  out  of  possession,  even  though  there  was  no 
maid  fides  on  their  part. 

110. — For  arrears  of  rent    ...  I  Three  years.  [When  the  arrears  be- 

I  I     come  due. 

(a)     (No.  110,  Act  IX;  cl.  8,  sec.   1,  Act  XIV.)     In  Rent  becomes 
Kashikant  Bhuttacharji  v.  Rohinikant  Bhuttacharji,W  it  m^?oflath6 
was  held  that  the  last  day  on  which  a  suit  for  the  recovery  g«f  allowed  to 
of  arrears  of  rent  can  be  instituted  under  section  29,  Ben?,  ment. 

"  Aa  hum**'  in 

Act  VIII  of  1869,  is  the  last  of  the  third  year  from  the  section »  of  the 
close  of  the  year  in  which  the  rent   became   payable.  %£&&%?** 
Garth,  C.  J.,  observes :  "  the  rent  becomes  due  at  the  last  rear-" 
moment  of  the  time  which  is  allowed  to  the  tenant  for 
payment.     If  it  is  not  paid  within  that  time,  it  becomes 
an  arrear,  and  continues  an  arrear  until  it  is  paid." 


111. — By  a  vendor  of  im- 
moveable property  to 
enforce  his  lien  for  un- 
paid purchase-money. 


Three  years.  The  time  fixed  for 
completing  the  sale, 
or  (where  the  title  is 
accepted  after  the 
time  fixed  for  com- 
pletion) the  date  of 
the  acceptance. 

(a)  (No.  Ill,  Act  IX.)     The  right  of  a  vendor  to  English  case  on 
receive  his  purchase  money  which  is  secured  by  his  lien  vendor's  Uwu 
on  the  land  sold,  does  not  accrue  within  the  meaning  of 

this  section  until  the  time  for  completion  arrives,  or  until 
the  title  is  accepted,  if  that  is  subsequent  to  the  time  fixed 
for  the  completion  (Toft  v.  Stephenson,  5  D.  M  A  G.  442 ; 
Kennedy  v.  Whaley,  12  Ir.  L.  735.)<8> 

(b)  A  vendor  of  immoveable  property  who  has  given         B.  h. 

y    '  .  *  i  •         j.        i'ii   j    x  •    j    Vendor  has  ft 

possession   to  the  purchaser   is  not  entitled  to  rescind  Hen  on  the  pro- 

the  contract  of  sale  and  recover  possession  because  the  JS^p^hase 
(1)  10  W.  R.,  486.  |       (2)  I.  L.  R.f  6  Calc,  825. 

(3)  Darby  and  Boeanquet,  p.  122. 


money. 
(Not.  1878.) 


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452         THE  81C0ND  8CHIDULI,  FIR8T  D1VI8I0N — SUITS.    [ABT.  112 — 113 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Creditor  of  an 
unpaid  vendor 
cannot  claim  a 
lien. 


Part  VI. 
Three  years. 

purchase  money  is  not  paid.  His  remedy  is  to  sne  for  the 
sum  due,  and  he  has  alien  on  the  property  for  the  amount. 
Trimalrav  Baghavendra  v.  The  Municipal  Commissioners 
of  Hnbli.O) 

(C)  A  creditor  of  an  unpaid  vendor  cannot  claim  a 
lien  upon  the  property  sold  for  any  unpaid  portion  of  the 
purchase  money.     Huriram  v.  Dinapal.W 


1 1 2. — For  a  call  by  a  company 
registered  under  any 
Statute  or  Act. 


Three  years. 


When  the  call  is  pay- 
able. 


Suit  by  official 
liquidator  in  the 
name  and  be- 
half of  the  com- 
pany after  it 
was  wound  up, 
for  the  amount 
of  calls,  does  not 
fall  within  the 
words  of  this 
Article. 


113.— For 
ance 


(a)  (No.  112,  Act  IX.)  In  the  Parell  Spinning  and 
Weaving  Company,  Limited,  v.  Manek  Haji,<3)  the  suit 
was  filed  in  March,  1886,  by  the  official  liquidator  against 
the  defendant,  who  was  a  holder  of  21  shares  in  the 
company  to  recover  (along  with  other  calls)  the  amount 
of  the  said  call  of  1st  October,  1882.  As  to  this  part  of 
the  claim,  the  defendant  pleaded  limitation.  It  was  held 
that  the  suit  being  brought  not  by  the  company,  but  by 
the  liquidator,  Article  120  of  the  Limitation  Act  XV  of 
1877  applied,  and  that  the  claim  was,  therefore,  not  barred. 

specific  perform-  Three  years.  The  date  fixed  for  the 
of  a  contract. 


performance,  or  if 
no  such  date  is  fix- 
ed, when  the  plain- 
tiff has  notice  that 
performance  is  re- 
fused. 

(a)  (No.  113,  Act  IX.)  The  corresponding  Article 
of  Act  IX  of  1871,  made  the  period  to  begin,  "  when  the 
plaintiff  has  notice  that  his  right  is  denied,'9  while  this 
Act  makes  it  to  run  from  "  the  date  fixed  for  the  perform- 
ance, or  if  no  such  date  is  fixed,  when  the  plaintiff  has 
notice  that  performance  is  refused." 
Decreeing  spe-  (b)  The  jurisdiction  to  decree  specific  performance  is 
manceTiadiscre-  discretionary,  and  the  court  is  not  bound  to  grant  such 

tionary.  (1)  j   L   R     3  ^  m       |  (2)  n  0  L  R    M9 

(8)  I.  L.  R.,  10  Bom.,  488. 


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ART.  113]       THE  8EC0ND  8CHEDULE,  FIRST  DIVI8I0N — 8U1T8.  453 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

relief  merely  because  it  is  lawful  to  do  so  ;  but  the  discre-  Discretion  is 
tion  of  the  court  is  not  arbitrary,  but  sound  and  reason-  n°  ar  1  rary* 
able,  guided  by  judicial  principles  and  capable  of  correc- 
tion by  a  Court  of  Appeal. W 

(O)     In  Mokund  Lall  v.  Chotay  Lall,<*)  Pigot,  J.,  ob-         o.  ». 
serves  :    "  on  reference  to  Lord  Justice  Fry's  book  on  may  be  fatal  to 
specific  performance,  sections  1070  to  1079,  where  this  fl\?jerfornSnce 
subject  is  referred  to,  it  will  be  noticed  that  the  Lord  Specific  Belief 
Justice  mentions  several  cases  in  which  very  considerable   (Sept.  1884.) 
delay  was  held  in  England  to  be  fatal,  but  in  others  not 
so.     In  section  1078,  a  delay  of  fourteen  months  was  held 
not  to  be  such  a  bar.    In  another  case  three-and-half  years 
was  considered  fatal,  and  in  more  recent  cases,  a  delay  of 
one-and-half  years,  and  a  somewhat  lesser  delay,  was  held 
to  be  fatal."     "  The  principle  is  an  important  one,  and  The  principle  is 
under  the  new  Specific  Relief  Act,  it  is  a  principle  which  one  to  be  con- 
ought  to  be  considered  by  the  court  in  the  exercise  of  its  in  the  exercise 
judicial  discretion  under  section  22  of  that  Act."  cretion. 

(d)  In  New  Beerbhoom  Coal  Co.,  v.  Buloram  Maha-  Suit  brought  in 
ta,<3)  which  was  a  suit  for  the  specific  performance  of  an  agreement  of 
agreement  entered  into  in  1858,  to  grant  a  patta  when  refused  u?  1 874* 
required,  it  appeared  that  the  plaintiffs  applied  to  the   (AprUiW) 
defendants  for  a  patta  in  1874,  and  in  March,  1875,  the 
defendants  finally  refused  to  make  the  grant,  and  the 
plaintiffs  thereupon  instituted  their  suit  for  specific  per- 
formance.    It  was  held,  that  they  were  not  barred  by 
limitation,  as  under  the  corresponding  Article  of  Act  IX 

of  1871,  they  had  3  years  within  which  to  bring  their 
suit,  from  the  time  when  they  had  notice  that  their  right 
was  denied. 

(e)  Ahmed  Mahomed  Pattel  v.  Adjein  Dooply/*)  was  Suit  brought  in 
a  suit  for  specific  performance.     In  1860,  certain  shares  agreement  of 

1890,  the  condi- 

(1)  Sec.  22  of  the  Indian  Specific  Relief  Act  I  of  1877.  tion  precedent 

(2)  I.  L.  R.,  10  Calc,  1061.    |      (3)  I.  L.  R.,  5  Calc,  175.  of  which    was 

(4)  I.  L.  R.,  2  Gale,  323. 

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454 


THB  8EC0ND  8CHBDULB,  F1R8T  DIVISION — 8UIT8.       [ABT.  113 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  inn. 


performed  in 
1862,  held  not 
barred    as    de- 
fendant refused 
performance 
only  shortly  be- 
fore suit. 
(Sept.  1876.) 


Plaintiffs  wore 
not  disentitled 
to  the  rel'ef  by 
reason  of  any 
laches  or  delay. 


Salt  for  speci- 
fic performance 
of  contract  of 
sale  and  for  pos- 
session is  go- 
verned by  this 
Article. 
<Feb.  1841.) 


Part  VI. 
Three  years. 

in  a  company  then  formed  were  allotted  to  8,  on  the 
understanding  as  the  plaintiffs  alleged,  that  120  of  such 
shares  should,  on  the  amount  thereof  being  paid  to  8,  bo 
transferred  to,  and  registered  in  the  books  of  the  company 
in  the  names  of  the  plaintiffs.  In  1862,  the  plaintiffs 
completed  the  payment  to  S  in  respect  of  the  shares,  and 
during  his  lifetime  received  dividends  in  respect  of  the 
said  shares.  8  died  in  1870,  leaving  a  will,  probate  of 
which  was  granted  to  the  defendant  as  his  executor.  In  a 
suit  brought  by  the  plaintiffs,  after  demand  of  the  shares 
from  the  defendant,  and  refusal  by  him  to  deliver  them, 
to  compel  the  defendant  to  transfer  the  shares  to  the 
plaintiffs  and  register  the  same  in  their  names,  the  plain- 
tiff's case  was,  that  the  shares  had  been  held  in  trust  for 
them,  and  that,  consequently,  their  suit  was  not  barred  by 
lapse  of  time.  It  was  held,  that  the  transaction  between 
8  and  the  plaintiffs  did  not  amount  to  "  a  trust  for  any 
specific  purpose"  within  the  meaning  of  section  10  of  the 
Limitation  Act,  or  to  a  trust  at  all,  but  to  an  agreement 
of  which  the  plaintiffs  were  entitled  to  specific  perform- 
ance ;  and  the  limitation  applicable  was  that  provided  by 
the  corresponding  Article  113  of  Act  IX  of  1871,  and, 
therefore,  the  suit  was  not  barred,  nor  were  the  plain- 
tiffs disentitled  to  -relief  by  reason  of  any  laches  or  delay 
in  bringing  the  suit. 

(f)  A  contract  was  made  for  the  sale  of  certain 
immoveable  property,  in  the  event  of  the  vendor  obtaining 
a  decree,  establishing  his  title  to  the  property,  in  a  suit 
which  had  been  brought  for  that  purpose.  The  vendor 
obtained  such  decree  in  that  suit.  The  purchaser  subse- 
quently brought  a  suit  to  have  a  sale  deed  executed  and 
completed,  and  "for  possession  of  the  property.  It  was 
contended  that  the  limitation  applicable  to  the  suit  was 
that  provided  by  Article  144  of  the  Limitation  Act,  1877, 


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ART.  113]       THE  SECOND  BCHIDTTLl,  FIR8T  DIVISION — SUITS.  455 


Description  of  suit. 


Period  of 
limitation. 


Time  from  whioh  period 
begins  to  rnn. 


Part  VI. 
Three  years. 

and  not  this  Article.     It  was  held  that  the  suit  was  essen-   Belief  by  giving 
tiall y  one  for  specific  performance  of  contract,  and  the  limi-  comprised  hi 
*  tation  applicable  was  this  Article.     The  contention  that,   specttcperfor- 
80  far  as  the  suit  was  for  possession  of  immoveable  property  txactTtf  sSitfor 
it  should  be  governed  by  Article  144  was  invalid.     The  ^tSSu1^ 
right  to  possession  sprang  out  of  the  contract  of  sale  and  cannotbTmahi- 
the  relief  by  giving  possession   was   comprised   in  the   tained' 
relief  by  specific  performance  of  the  contract  of  sale,  and 
could  not  be  governed  in  this  suit  by  any,  but  this  Article. 
But  assuming  the  suit  might,  so  far  as  limitation  was 
concerned,  be  entertained,  still  as  the  right  to  possession 
was  dependent  on  the  contract  of  sale,  if  the  suit  could 
not  be  maintained  for  specific  performance  of  the  contract, 
it  could  not  be  maintained  for  possession  of  the  property 
sold  under  the  contract.     Muhiuddin  Ahmad  Khan  t>. 
Majlis  Rai.d) 

(g)     In  Sheo  Prasad  v.  Udai  Singh  W  a  vendee's  suit  for  vendee's  suit 
possession  against  the  vendor  who  had  to  recover  posses-  does^n^ffailnn. 
b ion  under  a  decree  and  who  had  not  in  the  conveyance  bat  under  Art£ 
expressly  promised  or  undertaken  to  put  the  vendee  in  pos-   (Feb.  isso.) 
session,  is  not  a  suit  for  the  specific  performance  of  a  con- 
tract.  It  is  governed  by  Article  136  or  144.    (See  Note  F.) 

(h)     In  Sukho  Bibi  v.   Bam    Sukh  Das/8)  plaintiffs  Suit  on  a  regis- 
sued  for  money  due  upon  a  registered  award  dated  1st  money  is  one  for 
April,  1877.     The  award  fixed  no  date  for  payment  of  the  manoe. 
money,  and  the  suit  was  filed  on  the  27th  July,  1881. 
Defendant  pleaded  that  the  suit  was  barred  by  limitation. 
It  was  held,  that  the  suit  was  to  have  the  award  speci- 
fically enforced  and  that  as  by  section  30  of  the  Specific  Section  so  of  the 
Belief  Act  1877,  awards  are  placed  on  the  same  footing  Act  places 
as  contracts  for  the  purposes  of  chapter  2  of  that  Statute ;  same  footing  as 

the  suit  was  governed  by  this  Article.     The  High  Court  the  purposes  of 

chapter  a  of  that 
(1)  T.  L.  R.,  6  All.,  231.      |       (2)  I.  L.  R.,  2  All.,  718.  AcV 

(3)  I.  L.  R.,  5  All.,  263. 


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456 


THI  8ICOND  SCHEDULE,  FIS8T  DIVI8I0H — BUIT8.       [AST.  114 


Description  of  rait. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


If  ft  demand 


from  plaintiff  U 
ft  condition, 
cause  of  action 
accrue*  only  on 
demand. 
(Nor.  1880.) 


Part  VI. 
Three  years. 

remanded  the  suit  for  a  finding  on  the  following  issues, 
Did  the  plaintiff  call  upon  the  defendants  to  carry  out 
the  terms  of  the  award ;  if  so,  when  ;  and  did  the  de- 
fendant refuse ;  (ii)  If  no  actual  demand  was  made,  had 
he  notice  that  the  defendant  refused  to  perform,  and  if  so, 
at  what  date  had  he  such  notice. 

(1)  In  Virasami  Mudali  v.  Ramasami  Mudalif1*  two 
brothers,  V  and  22,  in  1861,  agreed  together  that  part  of 
their  house  should  be  divided  and  part  enjoyed  in  com- 
mon ;  each  brother  was  to  occupy  an  assigned  division  and 
have  the  use  in  common  of  the  rest.  If  either  wished  to 
have  the  house,  he  was  bound  to  offer  his  share  to  the 
other  at  a  fixed  price ;  or  if  he  wished  to  purchase  the 
share  of  the  other,  and  the  other  refused  to  sell,  then  the 
party  refusing  to  sell  at  a  fixed  price  was  bound  to  buy 
the  share  of  the  other  brother  who  wished  to  purchase. 
V  called  upon  B,  in  1877,  either  to  pay  Bs.  418  or  give 
up  the  house.  It  was  held,  that  until  demand  no  cause  of 
action  arose,  and  that  limitation  began  to  run  from  the 
date  of  demand. 


1 14. — For  the  rescission  of  a 
contract. 


Three  years.  When  the  facts  enti- 
tling the  plaintiff  to 
have  the  contract 
rescinded  first  be- 
come known  to  him. 

Thie  does  not  (a)  (No.  114,  Act  IX.)  This  Article  refers  to  the 
party's  suit*  to  rescission  of  contracts  as  between  promisor  and  promissee 
eance  nstra-  ^^  ^  ^  suits  by  third  parties  to  have  an  instrument 
cancelled  or  set  aside,  which  fall  under  Article  91.  Bha- 
wani  Prasad  Singh  v.  Bisheshar  Prasad  Misr.<*> 

(b)    As  to  rescission  of  contracts,  see  sections  35  to  38 
of  Act  I  of  1877. 


Rescission  of 
contracts. 


(1)  I.  L.  R.,  3  Mad.,  87. 


(2)  I.  L.  R.,  3  AH.,  846. 


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ABT.  1 15]        THE  SECOND  SCHEDULE,  FIRST  DIVISION 8D1TS. 


457 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


115. — For  compensation  for 
the  breach  of  any  con- 
tract, express  or  im- 
plied, not  in  writing 
registered  and  not 
herein  specially  provi- 
ded for. 


Part  VI. 
Three  years. 


When  the  contract  is 
broken,  or  (where 
there  are  successive 
breaches)  when  the 
breach  in  respect  of 
which  the  suit  is  in- 
stituted occurs,  or 
(where  the  breach  is 
continuing)  when  it 
ceases. 


(a)  (No.  115,  Act  IX  ;  cl.  9  and  10,  sec.  1,  Act  XIV.) 
"  The  term  compensation  is  a  general  term  used  in  the 
Indian  Contract  Act,  section  73,  to  denote  the  payment 
which  a  party  is  entitled  to  claim  on  account  of  loss  or 
damage  arising  from  breach  of  contract.  The  effect  in 
this  place  is  to  exclude  suits  for  specific  performance." 
"  Compensation"  is  used  in  the  same  sense  in  this  Article. 
Vythilinga  Pillai  v.  Thetchanamurti  PillaU1)  Suit  for  a 
sum  of  money  is  none  the  less  a  "  suit  for  compensation," 
because  it  is  brought  for  the  specific  sum  due  on  a  bond. 
Ganesh  Krishn  ».  Madhavrav  Ravji.W 

(b)  Rameshwar  Mandal  v.  Bam  Chand  Boy/8)  was  a 
suit  brought  by  plaintiff  to  recover  money  lent  on  a 
verbal  agreement,  to  repay  it  with  interest  within  one 
year  from  the  date  of  the  loan.  The  suit  was  brought 
more  than  three  years  after  the  date  of  the  loan.  The 
defendant  pleaded  limitation  under  Articles  57  and  59. 
Garth,  C.  J.,  holding  that  the  suit  is  governed  by  this 
Article,  observes  :  "  that  the  contract  set  up  by  the 
plaintiff  is  one  of  a  special  nature.  In  consideration  of  a 
present  advance  by  him,  the  defendant  is  said  to  have 
agreed  to  repay  the  money  at  the  end  of  a  year  with 
interest.  This  being  the  contract,  it  is  clear  that  the 
plaintiff  would  have  no  right  of  suit  until  the  expiration 
of  the  year.     In  England,  by  the  Statute  of  Frauds,  a 

(1)  I.  L.  E.,  3  Mad.,  76.        |        (2)  I.  L.  R.,  6  Bom.,  75. 
(3)  I.  L.  £.,  10  Calc,  1033. 
58 

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"Compensa- 
tion." 


Suit  for  money 
is  none  the  lees 
a  "suit  for  com- 
pensation." 


This  Article 
applies  to  ail 
verbal  con- 
tracts. 


Observations  of 
Garth,  C.  J. 


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458 


THE  SECOND  SCHEDULE,  PI  EST  DIVISION — SUITS.        [ART.  1 15 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Thift  applies  to 
■aiU  by  con. 
signee  against 
Railway  Com- 
pany for  non- 
deliTery. 


Property  in 
goods  not  sent 
on  sample  passes 
to  consignee  on 
delirery  to  the 
company  and 
consignor  acts 
as  consignee's 
agent. 


Suit  against  a 
Steam  Naviga- 
tion Company 
for  valne  of 
goods  short  de- 
livered,  falls 
under  this 
Article. 


Though  Steam 
Navigation 
Company  are 


Part  VI. 
Three  years. 

contract  which  is  not  to  be  performed  within  three  years 
from  the  making  thereof  must  necessarily  be  in  writing. 
Bat  here  we  have  no  Statute  of  Frauds ;  and  in  commercial 
affairs  people  are  at  liberty  to  make  any  verbal  contracts 
they  please." 

(O)  Hassaji  v.  The  East  India  Railway  Company/1) 
was  a  suit  brought  by  the  consignee  of  goods  against  the 
company  for  non-delivery  of  93  bags,  and  consequently  for 
compensation.  Loss  was  discovered  on  the  28th  Sep- 
tember, 1877,  at  latest,  and  if  Article  30  applied  to  the 
case,  the  suit  was  barred,  as  it  was  brought  on  the  2nd 
October,  1879.  The  court  being  of  opinion  that  there 
was  a  privity  of  contract  between  the  consignee  and  the 
company,  inasmuch  as  the  property  in  the  goods  which 
were  not  sent  on  sample  or  for  approval,  passed  at  once 
to  the  consignees  on  delivery  to  the  company,  and  that 
the  consignor,  in  contracting  with  the  company,  acted  as 
consignee's  agent,  held,  that  under  this  Article  the  plain- 
tiff was  entitled  to  three  years  from  the  date  of  the 
breach  of  contract. 

(d)  In  the  British  India  Steam  Navigation  Company  v. 
Hajee  Mahomed  Esack  and  Company/5*)  plaintiffs  claimed 
Rupees  6,304  compensation  for  value  of  goods  short 
delivered.  Goods  were  shipped  in  different  vessels  of  the 
company  between  October,  1876,  and  March,  1878,  at 
Calcutta,  to  be  delivered  at  the  port  of  Madras,  under  the 
terms  of  the  bills  of  lading.  The  suit  was  brought  on 
the  3l8t  October,  1879.  With  the  exception  of  a  shipment 
made  in  February  or  March,  1878,  it  was  admitted  that 
the  other  contracts  were  made  and  should  have  been  per- 
formed more  than  two  years  before  the  suit.  It  was  argued 
that  the  claim  was  barred  by  Article  30  ;  the  court  held 
that  although  the  Steam  Navigation  Company  are  not 
(1)  I.  L.  R.,  6  Mad.,  888.       |        (2)  I.  L.  R.,  8  Mad.,  107. 


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ART.  116]      THK  SECOND  8CHBDULK,  FIRST  DIVISION — SUITS. 


459 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VI. 
Three  years. 

common  carriers,  for  the  purposes  of  Indian  Carriers'  Act,   not  common 

carriers  for  the 

they  are  nevertheless  common  carriers,  and  their  character  purposes  of 

.  .  .  ,  '  .       ,    .       Indian  Carriers' 

of  carriers  continues  so  lone  as  the  goods  remained  m   Act,  they  are 

oommon  carri- 

their  hands  and  undelivered,  and  that  this  suit  is  clearly   era  so  long  as 

goods  remain  in 

a  suit  for  breaches  of  the  contracts  to  deliver,  and  there  their  hands  and 
being  no  special  provision  for  compensation  for  the  breach 
of  such  contracts,  the  suit  is  governed  by  clause  115. 

(0)     In  Madda  v.  Sheo  Bakhsh,(1>  plaintiff  sued  in  July,  Suit  for  costs  of 

1880,  for  Bs.  300  as  compensation  due  by  defendant  in  marriage  as  per 

•  *  .    *  i    ^  •  .xi    ii        custom  of  Jats 

consequence  of  his  having  contracted  a  marriage  with  the  of  Ajmir  fails 
widow  of  the  plaintiff's  deceased  brother  according  to  a  So.  * 
custom  prevailing  among  their  caste.     The  defendant 
admitting  the  custom  pleaded  limitation.     It  was  held 
that  the  suit  was  governed  by  this  Article  and  not  by  120. 

(f)  Where  there  are  successive  breaches,  as  for  in-  Everysucoes- 
stance  in  the  case  of  non-payment  of  an  annuity  secured  giyes  fresh 
by  bond  or  covenant,  a  fresh  cause  of  action  arises  upon 
every  fresh  breach,  so  that  time  may  be  a  bar  to  the 
remedy  or  earlier  breaches  without  affecting  the  remedy 
on  subsequent  ones  ;  and  where  the  breach  is  a  continuing 
breach,  a  fresh  cause  of  action  arises  at  every  moment  of 
the  time  during  which  thejbreach  continues.**) 

Part  VII. 
Six  years  .. 


cause  of  action. 


116. — For  compensation  for 
the  breach  of  a  con- 
tract in  writing  regis- 
tered. 


When  the  period  of 
limitation  wonld 
begin  to  run  against 
a  suit  brought  on  a 
similar  contract  not 
registered. 

(a)  In  this  Article,  the  word  "  compensation"  seems  "Compensa- 
te be  used  in  the  sense  in  which  it  appears  in  section  73 
of  Contract  Act  IX  of  1872.  In  a  suit  for  compensation 
for  breach  of  a  contract  in  writing  and  registered, 
whether  such  compensation  be  for  a  liquidated  or 
(1)  I.  L.  R.,  3  All.,  385.       |  (2)  Darby  and  Bosanqnet,  p.  100. 


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460 


THI  SICOITD  SCHEDULE,  FIB8T  DIVISIOW — SUITS.       [AST.  116 


Description  of  rait. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


thi«  Article. 


Part  VII. 
Six  years. 

unliquidated  Bum,  the  limitation  applicable  is  six  yean, 

as  prescribed  by  this  Article  :  Harender  Kishore  Singh  t>. 

Obeenrmtions  of  The  Administrator-General  of  Bengal/1)      In  Hnsain  AH 

Straight.  J. 

Khan  v.  Hafix  AH  Khan,»  Straight,  J.,  observes  :  "  The 
introduction  of  the  word  '  compensation'  has  perhaps  not 
unnaturally  given  rise  to  some  difficulty,  but  I  cannot  so 
interpret  it  as  to  hold  that  the  longer  period  of  limitation, 
of  which  registered  instruments  had  the  advantage  before 
Act  XV  of  1877  became  law,  was  thereby  summarily 
abridged."  (See  also  Vy thilinga  Pillai  v.  Thetchanamurti 
PiUai,P>  and  also  Note  A  under  Article  115.) 
Suit  on  •  re-  fl>)  In  Noboooomar  Mookhopadhya  v.  Sirn  MulHck,<4> 
Bond  fail*  under  plaintiff  sued  on  a  registered  money-bond,  and  in  decid- 
ing upon  a  question  of  limitation,  it  was  held  that,  as 
under  the  Acts  of  1859  and  1871  the  period  of  limitation 
in  the  case  of  a  registered  bond  or  other  contract  was 
six  years,  unless  it  was  clear  from  the  later  Act  that  the 
Legislature  intended  to  change  the  period  from  six  to 
three  years,  it  would  be  unfair  to  oblige  persons  to  sue 
within  the  shorter  period,  and  that  this  was  a  suit  for 
compensation  for  breach  of  contract.  This  decision  was 
followed  by  A.  H.  in  Husain  AH  Ethan  v.  Hans  AH 
Ethan/6)  which  is  a  Full  Bench  case,  and  Gauri  Shankar 
v.  Surju,<6)  and  Khunni  v.  Nasir-ud-din  Ahmad/7)  Fol- 
lowing the  above  decisions,  B.  H.,  in  Ganesh  Krishn  v. 
Madhavrav  Ravji/8)  held  that  the  general  remedy  for 
breach  of  contract  registered,  is  a  suit  for  compensation  for 
any  loss  or  damage  sustained  by  the  plaintiff,  and  that  the 
suit  is  none  the  less  a  suit  for  compensation,  because  it 
is  brought  for  a  specific  sum  due  on  a  bond.     In  Magaluri 


(1)  I.  L.  R.,  12  Calo.,  357. 

(2)  I.  L.  R.,  3  AH.,  609. 

(3)  I.  L.  R.,  3  Mad.,  76. 

(4)  I.  L.  R.,  6  Gale,  94. 


(5)  I.  L.  R.,  3  AIL,  600. 

(6)  I.  L.  R.,  3  AH.,  276. 

(7)  I.  L.  R.,  4  Ail.,  256. 

(8)  I.  L.  R.,  6  Bom.,  76. 


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ART.  116]       THB  SECOND  SCHBDULE,  FIRST  DIVISION — S0IT8. 


461 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VII. 
Six  years. 

Garudiah  v.  Narayana  Rungiah/1)  plaintiff  sued  on  a 
registered  bond  payable  in  eleven  yearly  instalments  ;  the 
bond  was  dated  March,  1870.  The  snit  was  brought  to 
recover  the  5th  instalment,  which  fell  due  in  March,  1874, 
and  also  the  6th,  7  th,  8th,  9th  and  10th  instalments. 
Certain  persons  who  had  meddled  with  the  debtor's 
property  after  his  death  were  also  made  co-defendants. 
It  was  held  that  the  suit  was  governed  by  this  Article, 
and,  as  the  property  had  been  misappropriated  within 
three  years  of  the  suit,  the  suit  was  not  barred. 

(C)  Following  the  above  ruling,  A.  H.  in  Kishen 
Lai  t;.  Kinlock,(a)  in  which  plaintiff,  as  purchaser  from 
the  vendee  of  the  defendants  who,  by  sale  deed,  dated  8th 
June,  1873,  had  agreed  to  refund  a  sum  of  money  pro- 
portionate to  the  deficiency  in  the  area  of  the  land 
conveyed,  sued  the  defendants  on  the  7th  June,  1879, 
for  the  value  for  the  deficiency,  held  that  the  suit  was 
governed  by  this  Article  and  not  by  96. 

(d)  In  Vythilinga  Pillai  v.  Thetchanamurti  Pillai,(»> 
plaintiff  sued  for  arrears  of  rent  due  in  and  before  1876, 
on  a  registered  contract.  The  Small  Cause  Judge  rejected 
the  suit  as  barred.  It  was  held  that  the  suit  was 
governed  by  this  Article  and  that  "  the  word  compen- 
sation in  this  Article  is  used  in  the  same  sense  as  in  the 
Contract  Act,  section  73."  This  Article  is  observed  to 
cover  contracts  for  payment  of  rent  as  well  as  other 
contracts  when  in  writing,  registered. 

(9)  In  Harender  Kishore  Singh  v.  The  Administrator- 
General  of  Bengal/4)  A,  in  April,  1875,  entered  into  an 
agreement  in  writing  with  B,  whereby  he  agreed  to  act 
as  the  manager  of  B's  Zemindaries  and  other  landed 
properties    for  three  years,    on  certain    terms    therein 


Snit  for  refund 
of  proportion- 
ate  value  for 
deficiency  of 
land  sold,  falls 
under  this  Arti- 
cle. 


Suit  for  arrears 
of  rent  due  on  a 
registered  con- 
tract falls  under 
this  Article. 


Suit  against 
a  deceased 
agent's  repre- 
sentative for 
money  received 
by  agent  as 
such,  falls  under 
this  Article,  if 
the  agreement 
is  registered. 


(1)  I.  L.  R.,  8  Mad.,  859. 

(2)  I.  L.  B.,  3  All.,  712. 


(3)  I.  L.  R.,  3  Mad.,  77. 
(4  I.  L.  R.,  12  Calo.,  357. 


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462 


TH»  8BC0ND  8CHBDULE,  FIRST  DIVISION — SUITS.       [ART.  117 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Three  years' 
time  applies  to 
suits  for  monies 
not  coming 
within  the  scope 
of  registered 
agreement. 


Endorsee's  suit 
against  the  en- 
dorser of  a  re- 
gistered pro- 
missory note  is 
not  governed 
by  this  Article 
if  endorsement 
is  not  regis- 
tered. 


Part  VII. 
Six  years. 

mentioned ;  the  agreement  was  duly  registered.  On 
the  15th  June,  1882,  B  sned  the  Administrator-General 
of  Bengal,  as  administrator  of  A's  estate,  to  recover 
certain  sums  of  money  set  forth  in  detail  in  the  plaint, 
as  having  been  received  by  A,  and  not  accounted  for, 
stating  that  they  had  been  misappropriated  by  A.  It 
-was  held  that  in  respect  of  such  sums  as  were  received 
by  A  in  virtue  of  his  position  as  manager  under  the  re- 
gistered agreement,  the  limitation  of  six  years  applied  ; 
but  that  in  respect  of  the  sums  received  by  him  in  the 
course  of  transactions  which  did  not  come  within  the 
scope  of  the  registered  agreement,  the  limitation  of  three 
years  applied. 

(f )  In  Kylasanada  Moodelly  v.  Armugum  Moodelly/1) 
the  defendant,  the  payee  of  a  promissory  note,  endorsed 
it  to  the  plaintiff.  The  endorsement  was  '  Pay  to  K.  M. 
(plaintiff)  or  his  order.'  The  promissory  note  had  been 
registered  previous  to  the  endorsement  to  plaintiff.  A 
suit  was  brought  by  the  plaintiff  three  years  after  the 
date  of  the  endorsement  to  recover  the  amount  of  the 
note  from  the  defendant. 


Six  years 


The  date  of  the  judg- 
ment. 


117. — Upon  a  foreign  judg- 
ment as  defined  in  the 
Code  of  Civil  Proce- 
dure. 

(a)  (No.  116,  Act  IX.)  "  Foreign  Judgment"  means 
the  judgment  of  a  foreign  court.  "  Foreign  Court"  means 
a  court  situate  beyond  the  limits  of  British  India  and  not 
having  authority  in  British  India  nor  established  by  the 
Governor-General  in  Council.     (See  Act  XIV  of  1882.) 

(b)  No  suit  is  maintainable  in  any  court  in  British 
India  founded  upon  the  judgment  of  a  court,  situate  in  a 
Native  State.     The  courts  of  British  India  cannot  enforce 

(1)  4  M.  H.  C,  R.,  366. 


"  Foreign  Judg- 
ment"  means 
judgment  of  a 
court  beyond 
the  limits  of 
British  India. 


No  suit  is  main- 
tainable in 
any  court  in 
British  India 
founded  upon 
the  judgment  of 
a  court,  situate 


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AET.     117]     THE  SECOND  SCHEDULE,  FJEST  DIVISION — SUITS.  463 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VII. 
Six  years. 

the  decrees  of  any  Native  Courts,  except  as  provided  for  m  Native  states 
by  section  434  of  the  Civil  Procedure  Code.     Under  that      e  ' 
section,  the  decrees  of   certain  Native   Courts   may  be 
executed  in  British  India  as  if  they  had  been  made  by 
the  courts  of  British  India. 

A  suit  will  not  lie  in  the  Courts  of  India  upon  the  b.  h.  held  a  suit 
judgment  of  any  court  in  British  India.     The  only  excep-  the  courts  of 
tion  to  this  rule  was  the  case  of  judgments  of  a  Court  judgments0 of 
of  Small  Causes  on  which  suits  had  been  permitted  to  be  British  India, 
brought  in  the  High  Court  in  order  to  obtain  execution 
against  immoveable  property.     Bhavanishankar  Shevak 
Ram  v.  Pursadri  Kalidas.W     The  Madras  High  Court, 
dissenting  from  the  above  ruling,  held  in  Sama  Rayar  m.  h.  held 
v.  Annamalai  Chetti,<2)  in  August,  1883,  that  the  courts  (August  i'sss.) 
in  British  India  have  jurisdiction  to  entertain  suits  brought 
upon  the  judgments  of  courts  of  Native   States.     They 
adhered  to  their  own  decisions  in  Bhavanishankar  Sheva- 
kram  v.  Pursadri  Kalidas/3)  Mathappa  Chetti  v.  Chellappa 
Chetti,(4)  Kandasami  Pillai  v.  Moiden  Saib,<5)  Nallatambi  B.  h.  adhered 
Mudaliar,   v.    Ponnusami   Pillai/6)      The   Bombay  High  cision. 

(July  1884 ) 

Court  in  Himmat  Lai  «?.  Shivaji  Rav,*7)  adhered  to  their 
own  decision  in  July,  1884. 

(O)     Under  Section  434  of  the  Code  of  Civil  Procedure,  Government  of 
the  Governor-General  in  Council  is  pleased  to  declare  that  ed  enfOToement 
the  decrees  of  the  High  Court  of  the  State  of  Travancore  dourta  ofride-b 
and  of  the  Zillah  Courts  and  the   Courts  of  Munsiffs  co^of*  Trl- 
established  in  that  State,  and  that  the  decrees  of  the  cocMTsStes. 
Appeal  Court  of  the  State  of  Cochin,  and  of  the  Zillah 
Courts  and  the  courts  of  Munsiffs  established  in  that 
State,  may  be  executed  in  British  India  as  if  they  had 
been  made  by  the  Courts  of  British  India.     Provided  that 


(1)  I.  L.  R.,  6  Bom.,  292. 

(2)  I.  L.  R.,  7  Mad.,  164. 

(3)  I.  L.  R.,  6  Bom.,  292. 


(4)  I.  L.  E.,  1  Mad.,  196. 

(5)  1.  L.  B.,  2  Mad.,  337. 

(6)  I.  L.  R.,  2  Mad.,  400. 


(7)  I.  L.  R.,  8  Bom.,  693. 

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364        THK  8BC0ND  8CHRDULE,  PIR8T  DJV18I0N — SUM'S.     [ABT.  118 119 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VII. 
Six  years. 

when  the  decrees  sent  to  a  Court  in  British  India  for  exe- 
cution is  a  decree  of  the  Court  of  a  Munsiff,  the  docu- 
ments mentioned  in  section  224  of  the  Code  of  Civil  Pro- 
cedure bear  the  counter  signature  of  the  Judge  of  the 
Zillah  Court,  to  which  the  Court  of  the  Munsiff  is  subor- 
dinate ;  Government  of  India  Notification,  Fort  St.  George 
Gazette,  6th  January,  1886,  part  1,  p.  9,  No 8.  4035-4036. 


1 1 8. — To  obtain  a  declaration 
that  an  alleged  adop- 
tion is  invalid,  or  never 
in  fact  took  place. 

119. — To  obtain  a  declaration 
that  an  adoption  is 
valid. 


Six  years 


Do. 


When  the  alleged 
adoption  becomes 
known  to  the  plain- 
tiff. 

When  the  rights  of 
the  adopted  son  as 
such  are  interfered 
with. 


Article  120  of 
Act  IX  of  1871, 
bas  been  split 
into  118  and  119 
in  the  Act  of 
1877,  reducing 
the  period  from 
twelve  to  six 
years. 


The  expression 
"  suit  t-4  set 
aside  an  adop- 
tion" was  not 
quite,  precise  as 
an  adoption  can 
hardly  be  set 
aside  though  a 
pretended  adop- 
tion may  be  de- 
clared to  be  no 
adoption  at  all. 
Observations  of 
P.O. 


(a)  The  corresponding  Article  129  of  Act  IX  of  1871, 
gave  to  suits  to  establish  or  set  aside  an  adoption  twelve 
years  from  the  date  of  adoption,  or,  at  plaintiff's  option, 
the  date  of  the  adoptive  father's  death.  The  Limitation 
Act  of  1877  splits  the  Article  into  two,  one  (118)  pro- 
viding for  declaration  that  an  adoption  is  invalid  or 
never  in  fact  took  place  and  giving  it  six  years  from  the 
date  of  the  plaintiff's  knowledge  of  adoption,  and  the 
other  (119)  providing  for  declaration  that  an  adoption  is 
valid  and  prescribing  a  period  of  six  years  from  the  time 
that  the  adopted  son's  right  was  interfered  with. 

Cb)  The  expression  "  suit  to  set  aside  an  adoption"  in 
Article  129  of  Act  IX  of  1871  *  was  not  quite  precise  as 
applied  to  any  suit.'  An  adoption  may  be  established, 
but  can  hardly  be  set  aside,  though  an  alleged  or  pre- 
tended adoption  may  be  declared  to  be  no  adoption  at  all. 
The  Lords  of  the  Privy  Council  observe  :  "It  thus  appears 
that  the  expression  "  set  aside  an  adoption"  is,  and  has 
been  for  many  years,  applied  in  the  ordinary  language  of 


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ART.  118 119]    THE  SECOND  8CHEDULE,  FIRST  D1V18ION — 8UITS.         465 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which 
period  begins  to  run. 


Part  VII. 
Six  years. 

Indian  Lawyers  to  proceedings  which  bring  the  validity 
of  an  alleged  adoption  under  question,  and  applied  quite 
indiscriminately  to  suits  for  possession  of  land  and  to 
suits  of  a  declaratory  nature.     It  is  worth  observing  that  The  term  was 
in  the  Limitation  Act  of  1877,  which  superseded  the  Act  an^awyers* 
now  under  discussion,  the  language  is  changed.     Article  mmaaSyto 
118  of  Act  XV  of  1877,  which  corresponds  to  Article  129  and tosoiuof  a 
of  1871,  so  far  as  regards  setting  aside  adoptions,  speaks  tuns?"**017  na" 
of  a  suit  "  to  obtain  a  declaration  that  an  alleged  adoption 
is  invalid  or  never  in  fact   took   place,"  and  assigns  a 
different  starting  point  to  the  time  that  is  to  run  against 
it.    Whether  the  alteration  of  language  denotes  a  change  Act  of  1877  has 
of  policy,  or  how  much  change  of  law  it  affects,  are  guagea*  preci- 
questions  not  now  before  their  Lordships.     Nor  do  they  deredneoeft&ary! 
think  that  any  guidance  in  the  construction  of  the  earlier  notes  a  change 
Act  is  to  be  gained  from  the  later  one,  except  that  we  much  change  of 
may  fairly   infer  that  the   Legislature    considered   the  arenotoues- 
expression  '  suit  to  set  aside  an  adoption'  to  be  one  of  a  their  Lordships, 
loose  kind,  and  that  more  precision  was  desirable. 

If  then,  the  expression  is  not  such  as  to  denote  solely, 
or  even  to  denote  accurately,  a  suit  confined  to  a  declara- 
tion that  an  alleged  adoption  is  invalid  in  law  or  never 
took   place   in   fact,  is    there   anything  in  the  scope  or 
structure  of  the  Act  to  prevent  us  from  giving  to  it  the 
ordinary   sense  in  which  it  is  used,  though  it  may  be 
loosely,  by  professional  men  ?     The   plaintiff's    counsel   There  is  no 
were  asked,  but  were  not  able  to  suggest  any  principle   which  ^say0* 
on  which  suits  involving  the  issue  of  adoption  or  no  declare  adop- 
adoption  must,  if  of  a  merely  declaratory  nature,   be   tionmnstbe°P" 
brought  within  twelve  years  from  the  adoption,  while  yet  twe?fe  years 
the  very  same  issue  is  left  open  for  twelve  years  after  the   WhSe  the*  same 
death  of  the  adopting  widow,  it  may  be  fifty  years  more,  if  f^Tweile'vears 
only  it  is  mixed  up  with  a  suit  for  the  possession  of  the  w^ow^eaS 
same  property.     It  seems  to  their  Lordships  that  the  more  tf  only  itis 
59 


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466         THE  SECOND  SCHEDULE,  FIE8T  DIVISION — SUITS.    [ART.  118 — 119 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VII. 
Six  years. 

mixed  up  with  a  rational  and  probable  principle  to  ascribe  to  an  act 
,slon  ofpro?8^  whose  language  admits  of  it,  is  the  principle  of  allowing 
136  y*  on! j  a  moderate  time  within  which  such  delicate  and 

intricate  questions  as  those  involved  in  adoptions  shall 
be  brought  into  dispute,  so  that  it  shall  strike  alike  at  all 
suits  in  which  the  plaintiff  cannot  possibly  succeed  with- 
out displacing  an  apparent  adoption  by  virtue  of  which 
the  defendant  is  in  possession."     Jagadamba  Chaodhrani 
Suit  by  collate-  v.  Dakhina  Mohun  Boy   Chaodhri.^1)      In  this  case  the 
turning  adop-      plaintiffs,  as  collateral  heirs  of  a  childless  Hindu,  ques- 
barred  as  suit     tioned  adoptions  purporting  to  have  been  made  by  his 
more  than  widows  in  pursuance  of  authority  from  him  ;  such  adop- 

fromthedateof  tions  having  been  followed  by  continuous  possession,  and 
though  leas  than  having  been  recognized  in  formal  instruments,  proceed- 
from  the  death  ings,  and  decrees  to  which  the  plaintiffs  were  parties.  It 
widow  was  held,  that  on  the  ground  that  the  adoptions   were 

P  brought  into  question  more  than  twelve  years  after  their 

date,  though  less  than  twelve  years  after  the  plaintiffs' 
titles  (if  any)  had  accrued  at  the  death  of  the  surviving 
widow,  the  suits  were  barred  under  Article  129  of  schedule 
2  of  Act  IX  of  1871. 
The  above  case  This  case  was  distinguished  from  Baja  Bahadur  Singh 
ed  from  a  form-  v.  Aohumbit  LalU2>  in  which  plaintiff's  claim  was  not 

er  case  in  which  . 

the  widow  had    affected  by  the  widow's  adoption.    "  It  was  brought  by  the 

not  adopted  as  *  r  -©         ^ 

heir  to  her        heir  of  one  Durga  Pershad,  to  recover  possession  of  his 

husband,  but  as  °  '  r 

her  own  heir,  estate  after,  his  widow's  death.  The  real  contest  was 
whether  he  had  given  an  absolute  interest  to  his  widow 
which  she  could  transmit  to  the  defendant.  But  she  had 
executed  instrument  called  a  deed  of  adoption,  which 
their  Lordships  describe  thus :  '  this  document  cannot  be 
seriously  treated  as  an  attempt  on  the  part  of  the  widow 
to  adopt  a  son  or  sons  as  heirs  to  her  husband,  but  of 
merely  an  adoption  of  heirs  to  herself,  and  in  fact,  a 
(1)  I.  L.  R.,  18  Calc,  890.      \  (2)  L.  B.,  6  Ind.,  App,  110. 


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ART.    118 119]     TH£*  SECOND  SCHEDULE,  IIB8T  DIVISION — SUITS.        467 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VII. 
Six  years. 

disposition  of  her  property,  very  much  in  the  nature  of  a 
will,  to  them  after  her  death.'  On  the  above  view  of  the 
document,  the  words  of  the  Statute  would  seem  scarcely 
applicable  to  it.  The  plaintiff  could  recover  the  estate  of 
Doorga  Pershad  without  in  any  way  disturbing  the 
adoption." 

(C)     In    Srinath    Gangopadhya  v.    Mahes    Chandra  in  a  reversion. 

•r»        /i\   •      m.  tt.     ,  .,         .      ,  «rt,  ,    .       er's  suit  for  po«- 

Koy,*1)  in  this  case,  a  Hindu  widow  in  1824,  assumed  to  session  and  de- 
adopt  a  son  to  her  husband,  and  such  son,  and  after  him  adoption  hj 

vrido^v  nyim  ill  A* 

the  defendant,  his   heir,  was   put  in   possession  of  the  gal,  cause  of  ac- 
properties  in  suit.     The  widow  died  in  1861.     The  suit  accrue  on 
was  instituted  in  1866  to  recover  the   property  and  to  IE  tws  cue 
declare  the   adoption   illegal.      It  was   held   that   such  wiaow°wasynot 
possession  during  the  life  of  the  widow  could  not  be  said  j£  ^e^tl^her 
to  be  adverse  as  against  the  widow.     The  cause  of  action  (jJjJjjSw.) 
to  the  reversionary  heirs  arose  at  the  time  of  the  death 
of  the  widow,  and  was  consequently  not  barred  by  limi- 
tation.    Peacock,  C.  J.,  observes :    "  If  in  this  case  the  Peacock,  c.  J., 
adoption  had  been  an  act  done  by  the  widow  as  heir  of  the  case  could 
her  husband,  the  case  would  have  been  different ;  but  rent  if  the  wi- 
the adoption  by  the  widow  was  not  in  her  character  as  teTheir  to  her " 
heir  to  her  husband ;  and  the  possession  taken  under  her     m 
own  adoption,  and  with  her  permission,  was  not  adverse 
to  herself  as  heir.     It  appears  to  me,  that  on  the  authority 
of  the  Pull  Bench  case  of  Nobin  Chunder  Chuckerbutty 
v.  Issur  Chunder  Chuckerbutty,  (case  No.  460  of  1867 ; 
29th  April,  1868)  cited  by  the  learned  Advocate-General, 
we  ought  to  hold  that  the  cause  of  action  did  not  accrue  Reversionary 
until  the  widow's  death.     In  coming  to  this  conclusion,  I  acauseof  action 
do  not  mean  to  say  that  a  reversionary  heir  might  not  lifetime™  set  " 
have  a  cause  of  action  during  the  widow's  life  to  set  aside  op'tionby  a  de-" 
an  invalid  adoption,  but  that  would  be  in  the  nature  of  a 
declaratory  suit." 

(1)  4  B.  L.  B„  3. 


ry  suit. 


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468        THB  8EC0ND  SCHEDULE,  FIE8T  DIVISION — SUITS.    [ART.  118 119 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


S.  0. 

In  a  reversion- 
er's suit  for 
Sossession  from 
efendant  who 
set  up  adoption 
by  widow  with 
her  husband's 
permission,  it 
was  held  what 
limitation 
would  begin  to 
run  from  wid- 
ow's death. 
Under  Act  XIV 
of  1860. 
(Feb.  1871.) 


Sir  James  Col- 
ville. 


C.  H. 
In  a  suit 
brought  to   de- 
clare adoption 
invalid,  limita- 
tion was  held  to 
run  from  the 
date  of  adop- 
tion under  Act 
XIV  of  1859. 
(Dec.  1874.) 

Another  deci- 
sion of  C.  H. 
with  reference 
to  Article  120. 
Act  IX  of  1871. 
(Feb.  1875.) 


Part  VII. 
Six  years. 

(d)  In  Bajendra  Nath  Haldar  v.  Jagendra  Nath  Hal- 
dar/1)  by  a  Will  dated  1837,  a  testator  directed  his  pro- 
perty to  be  held  in  a  particular  way,  and  gave  his  widow 
power  to  adopt.  In  1848,  she  adopted  a  son  Tinder  the 
Will,  with  the  knowledge  of  the  members  of  the  family, 

and  the  Will  was,  for  a  period  of  twenty-seven  years, 
generally  recognized  and  acted  on  by  the  testator's  family. 
The  plaintiff  sued  for  possession  in  December,  1864,  when 
the  widow  died.     The  Principal  Sudar  Amin  rejected  the 

suit  on  the  ground  among  others  that  it  had  been  barred 
by  limitation.  The  High  Court  reversed  the  decision  on 
appeal  in  April,  1867,  holding  that  the  mere  fact  of  the 
adoption  of  another  party  does  not  prejudice  the  plain- 
tiff's rights  which  are  invaded  only  when  the  adopted  son, 
on  the  death  of  widow,  takes  possession  of  the  property 
as  adopted  son,  and  the  Privy  Council,  while  setting  aside 
the  judgment  of  the  High  Court,  observed,  "  it  has  been 
candidly  and  fairly  admitted  at  the  bar  by  Mr.  Bell,  that 
it  is  impossible  to  impeach  that  decision  ;  that,  according 
to  the  authorities  in  India,  time  would  only  begin  to  run 
against  the  respondent  from  the  date  of  the  widow's  death. 

(e)  In  Mrinmoyee  Dabea  v.  Bhoobunmoyee  Dabea,W 
which  was  brought  iu  January,  1873,  to  have  declared  in- 
valid the  defendant's  adoption  which  took  place  in  May, 
1856,  it  was  held  that  the  limitation  provided  by  clause  16, 
section  1,  Act  XIV  of  1859,  was  applicable  to  a  suit  for 
declaratory  decree  and  that  cause  of  action  arose  at  the 
date  of  the  adoption.  Siddhessur  Dutt  v.  Sham  Chand/9) 
was  brought  by  the  reversionary  heirs  of  a  Hindu  to  set 
aside  an  adoption  made  with  his  permission.  The  Hindu 
died  in  1844,  and  the  adoption  took  place  in  1845.  The 
suit  was  instituted  in  June,  1873.  It  was  held,  that 
under  Article  129  of  Act  IX  of  1871,  cause  of  action  arose 

(1)  7  B.  L.  E.  216,  P.  C.   |    (2)  15  B.  L.  E.,  1.    |    (3)  15  B.  L.  E.,  9. 


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ART.  118 119]    THB  SECOND  SCHEDULE,  FIRST  DIVISION — SUITS.         469 


Description  of  suit. 


Period  of  ' 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VII. 
Six  years. 

at  the  date  of  the  adoption,  viz.,  1845,  the  word  "  father" 
in  the  Article  not  including  mother. 

(f)  In  Raj  Bahadoor  Sing  v.  Achnmbit  Lall/1)  it  was  Decision  of 
held  by  the  Privy  Council  that  the  provisions  of  Article  to"  in'  (Note  a.) 
129  of  Act  IX  of  1871,  do  not  interfere  with  the  right  (Feb* 1880,) 
which,  but  for  it,  a  plaintiff  has  of  bringing  a  suit  to 

recover  possession  of  real  property  within  12  years  from 

the  time  when  the   right   accrued.     The  Calcutta  High       c.  h. 

Court  followed  the  above  ruling  in  Purna  Narain  Adhikar  *  e  ' 

v.  Hemokant  Adhikar/2)  in  which  plaintiff  sued  in  1877 

to  set  aside  an  adoption  which  was  alleged  to  have  taken 

place  twenty  years  before,  and,  as  heir  of  the  husband  of 

the  last  Adhikar,  who  died  in  1282,  to  obtain  possession 

of  a  certain  temple  and  properties  attached  thereto  which 

the  defendant  claimed  under  the  said  adoption. 

(g)  A  Hindu    died    leaving    two  widows,  K  and  JB,  Aithonffh  a 
of  whom   B  brought  forth  a   son   in    September,  1848.  S^rt^Jas 
Sometime    after,     B    moved    the    Revenue    authorities  sue  for  an  h!? 
claiming  the  vatan  lands  of  the  deceased  on  behalf  of  the  intervention  of 
minor  son,  part  of  which  had  been  made  over  to  K  by  opted  wn  in  * 
the  Revenue  authorities  and  a  part  had  been  placed  by 
Government  under  sequestration.     In  February,  1849,  the 
Revenue  authorities,  declining  to  recognize  the  minor  as 
son  of  the  deceased,  decided  that  K  was  entitled  to  the 
lands.     In  March,  1872,  K  adopted  a  son.      In  December, 
1872,  the  son  of  B  sued  for  a  declaration  that  he  was  the 
son  of  the  deceased  and  also  for  setting  aside  the  adoption 
by  K.     It  was  contended  that  the  claim  was  barred  under 
Act  XIV  of  1859.     It  was  held  that  the  suit  not  being 
one  to  recover  property,  but  to  set  aside  the  adoption,  was 
within  time  under  that  Act.     It  was  further  held  that 
under  the  circumstances  a  suit  for  a  declaratory  decree 
would  lie,  for,   the  plaintiff,   even  if  his  claim  to  the 

(1)  6  C.  L.  R.,  12  P.  C.      |  (2)  6  C.  L.  R.,  46. 


Bhraddh,  Ac. 


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470 


THE  SECOND  SCHEDULE,  FIRST  DIVISION SUITS.       [ART.  120 


Description  of  suit. 


Period  of 
limitation. 


Time  from  wbiob  period 
begins  to  run. 


Part  VII. 
Six  years. 

property  were  barred  as  against  Kt  would  yet  be  entitled 
to  obtain  an  injunction  against  any  intervention  of  the 
adopted  son  in  performing  the  shraddh  or  other  cere- 
monies for  the  benefit  of  the  deceased,  or  assuming  the 
status  of  the  deceased's  adopted  son,  and,  moreover,  the 
Legislature  has  in  Act  VII  of  1870  and  Act  IX  of  1871, 
recognized  the  right  of  a  person  to  bring  a  suit  to  set 
aside  an  adoption  as  a  substantive  proceeding  indepen- 
dent of  any  claim  to  property.  Kalova  Kon  Bhujangrav 
v.  Padapa  Valad  Bhujangrav. W 


Six  years 


When   the    right 
sue  accrues. 


to 


120. — Suit  for  which  no  pe- 
riod of  limitation  is 
provided  elsewhere  in 
this  schedule. 

(a)     This  Article  is  only  a  reproduction  of  Article  118 
It  is  of  exceptional  application,  and 


Before  apply- 
ing this  Article,       -    A    ,   TV     -   iom 
court  must  be       Of  Act  1A  Of   lo/JL 

other  Article       before  applying  it  to  a  case,  the  court  must  be  satisfied 

applies. 


Does  not  apply 
to  a  suit  for 


that   no  other  provision  of  the   Limitation   Act  is  ap- 
plicable. 

(b)    In  Jag ji van  Javherdas  v.  Gulam  Jilani  Chaudii,(s) 
money  wrongly   the  plaintiff  alleged  that  the  defendant  in  1861,  obtained 

taken  in  exe-  r  °  ' 

cution  of  a  de-  a  decree  against  the  plaintiff  s  father,  and  in  1867,  attached 
(Sept.  1883.)  in  execution  thereof  an  allowance  called  the  Chandhri 
bak,  annually  payable  to  the  plaintiff's  family  from  the 
Government  treasury  ;  that  the  plaintiff's  father  died  on 
the  7th  of  October,  1869,  and  that  from  the  moment  of 
his  death  the  plaintiff  succeeded  to  the  bak  in  his  own 
right ;  that  the  defendant  on  the  25th  of  August,  1875, 
wrongfully  drew  from  the  Government  treasury  the 
allowance  due  for  the  years  1871-72-73,  and  1874-75, 
amounting  in  all  to  Rs.  717-8-4,  and  prayed  that  the 
defendant  might  be  directed  to  pay  the  said  amount  to 
him.  It  was  held  that  a  suit  to  recover  money  wrongly 
(1)  I.  L.  R.,  1  Bom.,  248.      |  (2)  I.  L.  R.,  8  Bom.,  17. 


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ART.  120]      THE  8BCOND  SCHEDULE,  FIRST  DIVISION — SUITS.  471 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VII. 
Six  years. 

taken  under  a  decree  is  a  snit  for  compensation  to  which 
one  year's  limitation  under  Article  29  was  applicable  and 
that  the  same  limitation  wonld  apply  if  to  the  above 
demand  a  claim  be  added  to  recover  damages  for  the  loss 
of  gain  or  interest  npon  the  money. 

(O)     The  plaintiff  claimed  as  an  heir  to  N,  deceased,  One  heir's  snit 
a  moiety  of  moneys,  which,  at  the  time  of  N's  death  were  mone  ™dn*wn 
deposited  with  a  banker,  and  which  the  defendant,  the  of  a  deceased "" 
other  heir  to  N,  had  received  from  snch  banker.     It  was  does  not  fail  un- 
held  that  the  snit  was  one  for  money  received  by  the  de-  (August  isso )  * 
fendant  for  the  plaintiffs  use,  to  which  the  limitation 
provided  in  No.  62,  schedule  2  of  Act  XV  of  1877  applied, 
and  not  one  to  whioh  the  limitation  provided  in  No.  120 
applied.     Kundun  Lai  v.  Bansi  Dhar.W      (See  Note  D. 
under  Artiole  62,  p.  385.) 

(d)  A  suit  by  a  person  in  the  possession  of  land  for  a  suit  for  deeia- 

declaration  of  proprietary  right  being   substantially   a  prietLy  r£ ht 
...  -  .  ,,  ,      .  ,  j    to  land  does  not 

suit  for  possession  of  immoveable  property  is  not  governed  fan  under  this 
by  Article  118,  but  by  Article  145  of  Act  IX  of  1871.  (£W) 
Debi  Prasad  v.  Jafar  Ali.(2) 

(e)  In  Birj  Mohan  SiDgh  v.  The  Collector  of  Allaha-       *-  »-.    fc 
bad,<8>   as   President  of  the   Municipal  Committee,   the  Municipal 

'  r  '  Committee  for  a 

Municipal   Committee  refused  on   the  26th   November,  decnar^n  °£. 

1878,  the  plaintiff's  lessee's  application  dated  27th  Sep-  dM^^1^J!?le• 

tember,  1878,  for  leave  to  establish  a  market  and  build 

houses  and  shops  on  his  land  ;  and  on  the  22nd  November, 

1878,  the  plaintiff  addressed  a  petition  on  the  subject  of 

which  no  notice  was  taken.     The  plaintiff  then  sued  on 

the  18th  April,  1879,  for  a  declaration  of  his  right  and 

for  a  perpetual  injunction  restraining  the  Municipality 

from  interfering  with  it.   It  was  held  by  a  Full  Bench,  that 

the  suit  was  governed  by  this  Article  and  that  the  pro- 


(1)  I.  L.  B.,  8  All.,  170.      |        (2)  I.  L.  R.,  3  AIL,  40. 
(3)  L  L.  R.,  4  All.,  340,  102. 


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472  THE  8EC0ND  8CHEDULE,  PIBST  DIVISION SU1T8.       [ART.  120 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VII. 
Six  years. 

visions  of  section  43  of  Act  XV  of  1873  were  applicable 
only  to  suits  brought  against  the  committee  for  something 
done  under  that  Act,  in  which  compensation  was  claimed. 
As  to  the  non-applicability  of  the  special  limitation  in 
the  Municipal  Act,  the  court  followed  Manni  Kasaundhan 
v.  Crooke,(1)  which  was  a  suit  for  a  declaration  of  right 
to  reconstruct  buildings  which  the  Municipality  had 
directed  to  be  removed,  and  for  compensation  in  damages. 
The  President  of  the  Municipal  Committee  of  Morada- 
bad  v.  Chatri  Singh. W  The  same  view  has  been  held 
by  a  Full  Bench  in  Ohunder  Sikhur  Bundopad-hya  v. 
Obhoy  Churn  Bagchi,W  in  which  plaintiff  sought  to  re- 
cover land  taken  by  the  Santipore  Municipality.  Garth, 
C.  J.,  in  his  judgment  observes,  "  as  the  relief  which  has 

Special  provi-     been  decreed  in  these  suits  is  for  the  specific  recovery  of 
■ion  of  the  Mu-  ,    .  ,  „  .  -       , ,         ,.,.-.,  • 

nicipai  Act  ap-    land,  irrespective  of  any  damage  for  the  plaintiffs  dispos- 

cases  where        session,  we  consider  that  the  87th  section  of  Bengal  Act 

compensation  is 

claimed  for        III  of  1864  does  not  apply."     That  section,  as  it  seems  to 

wrongful  act  . 

of  the  Commis-  us,  is  applicable  only  in  those  cases  where  the  plaintiff 

sioners  in  the  * 

exerciae  of  now-  claims  damages  or  compensation  for  some  wrongful  act 
committed  by  the  Commissioners  or  their  officers,  in  the 
exercise,  or  the  honestly  supposed  exercise,  of  their  statu- 
tory powers. 

Suit  for  decia-        (f)     In  Harrison  v.  The  Delhi  and  Loudon  BankW  T, 

ration  of  part-    __,_-_.  .  .  .  ,    , 

nerahip  right,      R  R  and  W,  the  owners  of  a  certain  estate  in  equal  snares, 

for  dissolution,    .  .  .        .  * 

and  for  appoint-  in  1863,  entered  into  a  partnership  for  "  the  cultivation  of 

ment  of  liquida-  x  r 

tor  and  for  pay-  tea  and  other  products    upon  such  estate.     In  1864,  H,  iff, 
share  of  each      and  I.  joined  the  firm.     In  1870,  H.  died :  and  in  1871,  T, 

out  of  the  snr-  #  . 

plus,  falls  under  purchased  his  share  and  those  of  E.  and  I,  and  in  1873, 

this  Article  and   r 

not  under  106.     of  B.     In  1875,  T.  gave  the  Delhi  and  London  Bank  a 

(April  1882.)  '  ° 

mortgage  on  such  estate  as  security  for  the  repayment 
of  money  which  he  had  borrowed  from  the  bank  osten- 

(1)  I.  L.  R.,  2  All.,  296.  I  (3)  I.  L.  R.,  6  Calc,  8. 

(2)  I.  L.  E.,  1  All.,  269.  |  (4)  I.  L.  R.,  4  AH.,  437. 


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ABT.  120]       THE  8KCOND  8CHBDULB,  FIRST  DIVISION — SUITS.  473 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period  . 
begins  to  run. 


Part  VII. 
Six  years. 

sibly  for  the  purposes  of  the  estate.  The  bank  obtained 
a  decree  against  him  personally  for  the  money  in  execution 
of  which  his  rights  and  interests  in  the  estate  were  pnt 
up  for  sale  on  the  20th  June  1877,  and  were  purchased 
by  the  bank,  which  obtained  possession  of  the  estate 
in  August,  1877.  In  1879,  B  and  VTs  executor  sued 
T  and  the  bank,  claiming  a  declaration  that  they  were 
or  had  been  partners  with  T  in  the  estate ;  that  if  the 
partnership  should  be  held  to  be  subsisting,  it  might  be 
dissolved,  or  if  it  had  ceased  to  exist,  the  date  of  its 
termination  might  be  fixed ;  and  that  in  either  event  a 
liquidator  might  be  appointed  to  take  an  account,  and 
after  realising  assets  and  discharging  liabilities,  might 
be  ordered  to  pay  them  each  one-third  of  such  balance  as 
remained.  The  suit  was  iustituted  in  the  court  of  a 
District  Judge.  He  transferred  it  to  the  court  of  a 
Subordinate  Judge.  The  High  Court  subsequently  trans- 
ferred it  to  its  own  file.  It  was  held  that  the  suit  was 
governed  by  this  Article  and  not  by  Article  106.  As  the 
partnership  was  dissolved,  time  began  to  run  not  from  the 
death  of  JET,  or  the  purchases  by  T  of  his  share,  or  those 
of  E  and  I  in  1871,  or  of  B  in  1873,  but  in  August, 
1877,  when  the  defendant  bank  took  possession  of  the 
partnership  property. 

(g)     In  Kirath  Chand  v.  Ganesh  Prasad,  M  plaintiff,  as  suit  m  per  cus- 
proprietor  of   a  certain   "Mohalla,"    sued   on  the  28th  purohaL  money 
October,  1878,  for  £  of  the  purchase  money  of  a  house  under  this  Arti- 
pur chased  by  the  defendant  in  execution  of  his   money  (auk.  i87o.) 
decree,  stating  that  according  to  ancient  custom  the  pro- 
prietor of  the  "Mohalla"   received  J  of  the   purchase 
money  when  a  house  in  it  was  sold,  whether  privately  or 
in  the  execution  of  a  decree.     The  house  was  sold  on  the 
1st  July,   1875,   and  the   defendant  acknowledged  the 
(1)  I.  L.  E.,  2  All.,  358. 
60 

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THE  8JBC0ND  8CHEDULI,  FJB8T  DIVI8I0N — SUITS.       [ART.  120 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Promissory  note 
payable  on  de- 
mand at  any 
time  within  six 
years,  falls  un- 
der this  Article. 
(Feb.  1882.) 


Cause  of  action 
to  reoover  de- 
posit made  for 
discharge   of 
duty  arises 
when   account 
of  charges 
against  it   was 
sent  in. 
(June  1885.) 


The  High  Court 
are  not  quite 
sure  thai  the 
case  would  not 
come  under 
Article  146. 


Suit  to  enforoe 
one's  equitable 
claim  to  follow 
the  proceeds  of 
his  proi 
any  one^s 
"  lis  under 
rticle. 
1884.) 


Part  VII. 
Six  years. 

receipt  in  full  of  the  purchase  money.  It  was  held  that 
this  Article  applied  to  the  claim. 

(b.)  In  Sanjivi  v.  Errapa,<1)  it  was  held  that  a  promis* 
sory  note  by  which  the  debtor  promised  payment  of  money 
on  demand  at  any  time  within  six  years  from  the  date  of 
the  note,  contained  a  special  agreement  which  had  not  been 
forbidden  by  the  Limitation  Act,  and  a  suit  on  such  a 
note  was  governed  by  this  Article  and  not  by  Article  73. 

(i)  In  Upendra  Lai  Mukhopadhya  t>.  The  Collector  of 
Rajshahye,*2)  one  Raj  Kristo  made  a  deposit  as  security 
for  the  discharge  of  his  dnties  as  manager  of  an  estate 
under  the  Court  of  Wards,  which  deposit  was  liable  for 
all  sums  not  accounted  for  by  him.  He  was  removed 
from  his  appointment  in  1875,  and  in  March,  1878,  an 
account  was  drawn  up  and  sent  to  him  showing  certain 
sums  which  he  had  not  accounted  for.  The  Lower  Ap- 
pellate Court  rejected  the  suit  as  barred  under  Article  62, 
on  the  ground  that  the  suit  was  not  brought  within  3 
years  from  1875.  The  High  Court  held  that  the  suit 
was  within  time  under  this  Article,  although  they  were 
not  quite  sure  that  the  suit  would  not  come  under  Article 
145.  They  observe  "  It  may  be — and  authority  is  not 
wanting  for  this  view — that  the  amount  was  a  deposit, 
which  comes  under  Article  145,  and  that  the  plaintiff  had 
30  years  from  the  date  of  the  deposit.  But  we  think  it 
unnecessary  in  this  case  to  decide  this  question  in  the 
affirmative,  because  we  are  satisfied  that  no  specific  rule 
is  applicable  which  would  reduce  the  period  of  limitation 
to  less  than  six  years  as  provided  for  by  Article  120." 

(j)  In  Gurudas  Pyne  v.  Ram  Narain  Sahu,W  the 
plaintiff  had  obtained  a  decreNe  for  money  against  the 
widow  of  one  Modhosadan,  as  representing  the  latter  on 

(1)  I.  L.  R.,  6  Mad.,  290.        |     (2)^ •  I.  L.  R.,  12  Calc,  113. 
(3)  I.  L.  R.,  10  Calc,  *860. 


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ART.  120]       THK  SECOND  SCHEDULE,  FIR8T  DIVISION — SUITS.  475 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VII. 
Six  years. 

account  of  the  value  of  timber  converted  by  Modhosadan 
to  his  use.  Some  of  the  property  of  Modhosadan 's 
brother  was  attached,  and  was  released  on  the  claim  of  the 
defendant,  who,  as  Modhosadan 's  brother,  claimed  them  as 
his  separate  property,  and  the  plaintiff's  instituted  the  suit 
to  try  his  right  to  recover  the  amount  of  his  decree  by 
the  sale  of  that  property,  on  the  ground  that  Modhosadan's 
brother  had  misappropriated  the  proceeds  of  the  sale  of 
the  timber.  The  plaintiffs  alleged  that  the  defendant 
was  benefited  by  the  aforesaid  timber  taken  by  his  brother, 
and  after  his  death  himself  sold  the  timber  and  appropri- 
ated the  sale-proceeds,  and  that  both  the  brothers  were 
liable,  although  the  deceased's  name  alone  was  mentioned 
in  the  former  decree.  Their  Lordships  of  the  Privy 
Council  observing  that  this  was  a  suit  to  enforce  an 
equitable  claim  on  the  part  of  the  plaintiffs  to  follow  the 
proceeds  of  their  timber  and  finding  them  in  the  hands  of 
the  defendant  to  make  him  responsible  for  the  amount, 
held  in  February,  1884,  that  the  suit  was  governed  by 
Article  118  of  Act  IX  of  1871,  which  corresponds  to  this 
Article. 

(k)     The   above  ruling  was  followed  in  Muhammad   Equitable  claim 
Habihullah   Khan   v.   Safdar  Husain  Khan/1)  in  which  t%e*to  hav/an 
plaintiff  and  defendant  purchased  certain  property  jointly   profits  and   to 
in  1865,  and  had  equal  interest  in  it  till  1868,  when  plain-   Sounder  tt&« 
tiffs  interest  was  reduced  to  one-third.    Defendant  paid   (juiyww.) 
the  entire  purchase  money  and  incurred  expenses  of  suits 
for  possession,  Ac.,  and  obtained  possession  in  1870,  and 
took  the  profits  from  that  date.     Plaintiff  did  not  pay  any 
part  of  the  purchase  money  up  to  1870,  and  it  was  not  till 
1871  that  the  whole  of  his  share  of  it  was  subscribed. 
The  plaintiff  sued  the  defendant  for  his  share  of  the  pro- 
perty and  to  have  an  account  taken  of  the  profits.     It  was 
(1)  I.  L.  R.,  7  All.,  25. 


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476  THB  SECOND  8CHIDULE,  FIRST  DIVI8IOH — SUITS.       [ABT.  120 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  rim. 


i    Part  VII. 
I    Six  years. 

held  that  there  was  a  resulting  trust  in  favour  of  the 
plaintiff  and  that  the  suit  was  not  governed  by  section 
10  or  by  Article  89,  or  62. 
Suit  by  one  pre-       (1)     Two  so  its,  to  enforce  the  right  of  pre-emption  in 

emptor  against 

another  to  de-  respect  of  a  particular  sale  having  been  instituted,  the 
had  better  rig ht  plaintiff  in  the  one  first  instituted  was  added  as  a  defen- 

held  to  fall  an-    * 

derthu  Article,  dant  to  the  other.     It  was  held,  that  as  regards  him,  the 

fNoY    1884  \ 

second  suit  constituted  a  claim  by  one  pre-emptor  against 
another  for  determination  of  the  question,  whether  the 
plaintiff  or  the  defendant  had  the  better  right  to  pre- 
empt the  property  which  was  a  claim  essentially  decla- 
Rignt  to  sue  ac-  ratory  in  its  nature,  and  there  being  no  specific  provision 
first  suit  was    f or  such  a  claim  in  the  Limitation  Act,  it  was  governed  by 
Article  120  of  that  Act,  and  the  right  to  sue  accrued  when 
the  first  suit  was  instituted.     Durga  v.  Haidar  Ali.W 
Suit  for  title         (m)     In  Be8ses8ur  Bhugut  r.  Murli  Sahu,W  plaintiff's 
of  claim  under  suit  brought  in  June,  1878,  after  dismissal  on  the  15th 
Act1<vm  of°    August,  1877,  of  his  claim  petition  under  section  248  of 
under  tins  Arti-  Act  VIII  of  1859,  was  once  dismissed  for  default  on  the 
m?  laei.)         14th  March,  1879.     On  the  4th  March,  1880,  the  plaintiff 
again  brought  a  suit  to  establish  his  title.     It  was  held 
that  the  suit  was  governed  by  this  Article. 
Suit  for  an  ai-       (n)     In  Gunesh  Dass  v.  Gondour  Koormi,W  plaintiffs 

ternative  claim  r 

fails  under  this  sued  to  eject  the  defendant  or  in  the  alternative  to  coin- 
Article.  J 
(July  1882.)         pel  him  to  remove  the  trees.     It  was  held  that  section  27 

of  Bengal  Act  VIII  of  1869  will  not  apply  to  an  alter- 
native claim  to  which  this  Article  applied. 
Salt  for  tax  (o)     In  the  President  of  the  Municipal  Commission, 

improvement  Guntur,  v.  Sri  Kakulapu  Padmarazu,W  the  plaintiff 
this  Article,  sued  for  rent  imposed  under  the  Act  for  the  official  year 
lieson  the  sta-  1876-77.  Defendant  paid  the  first  instalment  and  appeal- 
(March  1881.)      ed  against  the  assessment  on  the  29th  June,  1876,  under 

(1)  I  L.  R.,  7  All.,  167.  I        (3)  I.  L.  R.,  9  CeJc,  147. 

(2)  I.  L.  R.,  9  Calc,  163.       |        (4)  I.  L.  R,.  3  Mad.,  124. 


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ART.  120]        THE  SECOND  SCHEDULE,  FIR8T  DIVI810N — Sun's.  477 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VII. 
Six  years. 

section  71  of  Act  HI  of  1871,  Madras.     The  second  instal- 
ment fell  due  in  October,  1876,  and  the  suit  was  not  brought  Tax  claimed  is 
till  July,  1880.     It  was  held  that,  assuming  that  the  debt  ty  nor  a  Jorfeil 
lies  on  the  Statute,  the  limitation  is  six  years  under  this 
Article.     The  tax  claimed  is  neither  a  penalty  nor  a  for- 
feiture, 

(p)     In  Kedarnath  Nag  v.  Khattur  Paul  Sritirutno/1)  suit  to  compel 
the  defendant  took  certain  land  from  the  plaintiff  under  a  nil  a  tank  con- 
registered  lease  which  contained  a  clause  prohibiting  the  lease  or  far* 
defendant  from  digging  a  tank  on  the  land  without  the  fa£Punder<Siis 
plaintiff's  permission.    The  defendant  having  nevertheless  (May  liao.) 
constructed  a  tank  without  such  permission,  the  plaintiff 
brought  a  suit  to  compel  him  to  fill  up  the  tank,  or,  in 
case  he  should  fail  to  do  so,  for  compensation.     It  was 
held  that  the  period  of  limitation  applicable  to  such  a  suit 
is  that  contained  in  this  Article. 

(q)  In  Durga  Pershad  v.  Ghosita  Goria,<2)  certain  suit  for  appor- 
butwara  proceedings  were  terminated  in  1877,  and  the  is  not  affected 
amount  of  the  land  held  by  the  plaintiff  in  the  portion  the  Beiiad  Act 
of  the  estate  allotted  to  the  defendant  was  ascertained,  has  six  i     ' 


The  rent  payable  was  admitted  to  be  at  the  rate  of  Rs.  4 
per  biggah.  In  1881,  the  defendants  sued  the  plaintiff 
for  rent  of  a  larger  amount  than  the  plaintiff  admitted  to 
be  due,  and  obtained  a  decree  on  the  31st  May,  1881. 
On  the  20th  September,  1881,  the  plaintiff  instituted 
a  suit  nominally  under  the  provisions  of  section  19  of 
Bengal  Act  VIII  of  1869,  for  abatement  of  rent,  upon  the 
ground  that  the  defendants  were  seeking  to  charge  him 
rent  upon  a  larger  amount  of  land  than  he  actually  held. 
The  defendants  pleaded  that  the  suit  was  barred  by  limi- 
tation as  being  brought  more  than  one  year  after  the 
cause  of  action  accrued.  The  court  found  that  the  amount 
of  land  held  by  the  plaintiff  was  the  amount  stated  by 
(1)  I.  L.  R.,  6  Calc,  34.         |      (2)  I.  L.  R.,  11  Calc,  284. 

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THB  8BCOND  SCHEDULE,  F1K8T  DIVISION BUIT8.       [ART.  120 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Reversioner's 
suit   for   com- 
pensation 
drawn  by 
widow's  moku- 
rari  lessee  dar- 
ing pendency 
of  reversioner's 
suit   for   land, 
falls  under  this 
Article. 


A  creditor's  suit 
on  behalf  of 
himwftlf  and 
other  creditors 
to  follow  pro- 
perty in  the 
hands  of  mort- 
gagee  under 
mortgage  given 
by  executors 
held  to  fall  un- 
der this  Article. 


Suit  to  establish 
right  to  turn  of 
worship  of  idol 
held  to  fall  on- 
dor  Article  118 


Part  VII. 
Six  years. 

him  in  bis  plaint,  and  not  that  alleged  by  the  defendants. 
It  was  held,  tbat  as  there  is  no  special  provision  in  the 
Limitation  Act  regarding  a  suit  of  this  description,  six 
years  is  the  period  of  limitation  for  this  suit.  A  suit  of 
this  description  is  not  included  in  the  third  schedule  ; 
limitation  of  the  Bengal  Tenancy  Act  VIII  of  1885. 

(r )  In  Nund  Lall  Bose  v.  Meer  Aboo  Mahomed,*1)  the 
next  heirs  of  a  Hindu  widow  from  whom  B  had  obtained 
a  mukurari  lease,  sued  B  in  October,  1871,  for  possession 
of  the  land,  but  they  were  not  aware  of  the  fact  that 
during  B*s  posssession  a  portion  of  the  land  had  been 
taken  up  by  Government,  and  compensation  lodged  in  the 
Collectorate.  While  the  suit  was  pending,  B  in  March, 
1872,  drew  the  compensation  money.  After  decree,  the 
heirs,  in  September,  1875,  brought  a  fresh  suit  for  the 
compensation  money.  It  was  held  that  the  claim  was 
not  barred  although  more  than  three  years  had  elapsed 
since  the  money  had  been  drawn  out  by  B,  and  that  the 
suit  was  governed  by  the  corresponding  Article  1 18  of 
Act  IX  of  1871. 

(S)  Greender  Chunder  Ghose  v.  Mackintosh,**)  was 
brought  in  November,  1876,  by  creditors  of  the  estate  of 
A,  on  behalf  of  themselves  and  all  the  other  creditors  of 
the  estate  against  the  executors  of  the  will  of  A.  and  also 
against  the  mortgagee  who  had  obtained  the  mortgage 
from  the  executors  in  1863.  The  object  of  the  suit  was 
to  follow  in  the  hands  of  the  mortgagee,  the  property 
mortgaged.  It  was  held  that  the  suit  was  governed  by 
Article  118  of  Act  IX  of  1871  and  that  cause  of  action 
first  accrued  in  1863  when  the  mortgage  was  made. 

(t)  In  Bshan  Chunder  Roy  v.  Monmohini  Dassi,W 
which  was  brought  in  1875,  the  plaintiff  claimed  as  heir 

(1)  I.  L.  B.,  5  Calc,  597.      |      (2)  I.  L.  R.,  4  Calc,  897. 
(8)  I.  U  R.,  4  Gale.,  688. 


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ART.  120]       THE  SECOND  SCHEDULE,  F1R8T  DIVISION — SUITS.  479 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VII. 
Six  years. 

of  her  husband,  a  share  in  a  certain  taluq,  together  with  where  right  to 
exclusive  right  of  worship  of  an  idol  A,  and  tbe  right  to  SSp  of  Ifoiheid 
the  worship  of  an  idol  B  for  one-sixth  of  every  year  SelTwi  o/aS 
from  the  possession  and  enjoyment  of  which  she  alleged 
she  had  been  dispossessed  by  the  defendants  in  1866.     It 
was  held  that  her  claim  as  to  the  idol  B  came  under  the 
provision  of  Article  131  of  Aot  IX  of  1871,  and  was  not 
barred ;  but  as  to  4,  the  claim  was  governed  by  Article 
118   of  the  same  Act,  and  not  baving  been  preferred 
within  six  years,  was  barred  by  lapse  of  time. 

(u)     In    a   son's    suit    against  mother    for   father's  Cases  that  were 
property,  whicb  she  managed,  supplying  son's  wants  out  of  either  under  this 
the  income  of  the  property,  it  was  held  that  so  far  as  the  Article  w*  or 
immoveable  property  was  concerned,  the  case  fell  either  tide, 
under  Article  120  or  Article  144  of  Act  XV  of  1877, 
schedule  2 ;  and  as  to  the  moveable  property,  under  Articles 
89  or  90  of  the  same  Act.     (See  Note  2-6?,  under  Article 
144.)      In   Fuckoruddeen   Mahomed      Ahsan  v.  Mohima 
Chunder  Ghowdhry/1)  which  was  a  suit  for  contribution 
on  the  ground  that  the   plaintiff  and  defendant  were 
jointly  liable  under  the  decree  in  execution  of  which  the 
plaintiff's  property  alone  was  sold,  it  was  doubted  whether 
Article  100  or  118  of  Act  IX  of  1871  applied. 

(V)     In  a  suit  between  cestui  que  trust  and  trustee,  if         o.  H. 

.,         '         L      ,   ,,  .,   .  .  *  '.       Suit  by  a<*t*rf 

the  object  of  the  suit  is  not  to  recover  any  property  in  que  trust 

against  &  tros* 
specie,  but  to  have  an  account  and  to  recover  the  balance  tee  for  an  a*» 

connt  falls  nn* 
of  money,  it  must  be  brought  within  six  years  from  the  Aer  Article  m 

time  when  the  plaintiff  had  first  a  right  to  demand  it. 

Saroda  Pershad  Chatto  Padhya  v.  Brojo    Nanth  Bhut- 

tachargee.^    (See  Note  0,  under  section  10,  p.  59,  supra.) 

(W)     Suit  by  a  pre- emptor  to  enforce  his  right  against  svft  by  pre- 

the  vendor  and  vendee  under  a  registered  conditional  sale  for^right011" 

deed  relating  to  a  fractional  share  of  an  undivided  Mahal  HftlLElte 

(1)  I.  L.  R.,  4  Calo.,  529.      |      (2)  I.  L.  R.,  5  Calc,  910. 


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480  THtt  8JBCOND  SCHEDULE,  PIB8T  DIVISION — SUITS.       [ABT.  120 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VII. 
Six  years. 

under  a  regis-   Has  six  years  under  Article  120  .     Nath  Prasad  v.  Bam 
ai  sale  deed  re-  Paltan  Ram.*1*  the  Legislature  appears  to  have  overlooked 

latin*  to  a  frac-  ,  .  ,     \  ...        .        .       , 

tionai  share  of  cases  of  pre-emption  in  respect  of  conditional  sale  of  an 

share  of  a  undivided  share  of  a  mahal.     Cause  of  action  to  enforce 

pre-emption  accrues  only  when  mortgagee  obtains  decree 

for  possession.     This  was  followed  in  Rasik  Lai  v.  Gajraj 

Singh. (2>     Article  120  was  held  to  apply  to  suit  by  pre- 

emptor  against   conditional  vendee  who    had   obtained 

decree,   declaring  sale   absolute   and  giving  possession. 

Cause  of  action  was  held  to  accrue  from  the  date  of  decree. 

Udit  Singh  v.  Padarath  Singh. <»     (Vide  Note  O,  under 

Article  10,  p.p.  281-282  and  283.) 

Salt  brought  (x)     The  directors  of  the  P  company  made  a  call  of 

pany,  but  by     Rs.  100  per  share  upon  its  shareholders  on  the  1st  Octo- 

qnidator  to  re-  ber,  1882.     On  the  8th  March,  1886,  the  company    was 

for  which  calls  ordered  to  be  wound  up  by  the  court,  and  an  official 

itTsharehoid.     liquidator  was  appointed.     On  the  17th  March,  1886,  the 

this  Article.        official  liquidator  filed  this  suit  against  the  defendant, 

who  was  a  holder  of  twenty-one  shares  in  the  company, 

to  recover  (along  with  other  calls)  the  amount  of  the 

said  call  of  1st  October,  1882.     As  to  this  part  of  the 

Though  liqui-     claim,  the  defendant  pleaded  limitation.     It  was   held 

tuted  for,  and    that  the  suit  being  brought,  not  by  the  company,  but  by 

right  of  the  ore-  the  liquidator,  Article  120  of  the  Limitation  Act  XY  of 

of  the  company,   1877  applied,  and   that  the  claim  was,   therefore,   not 

up  order  calls    barred.     In  his  judgment  in  re  Whitehouse   and  Co.,  (9 

new  rights  and  Ch.  Div.,  595  at  p.  599)  Sir  G.  Jessel  explains  the  lia- 

new  liabilities     ,  .,.,  /  ,  ,     ,,     '  ,    ..     ,  , 

that  did  not      bihty  of  a  shareholder  to  contribute  under  section  38 

exist  before, 

and  equities       after  a  winding  up  order  has  been  passed : — '  that  is  a 

which  might  ,.,.,.?.  .,  •     • 

have  been  set    new  liability ;  he  is  to  contribute :  it  is  a  new  contri- 

up  against  the  . 

company  can-    bution.     It  is  a  liability  to  contribute  to  the  assets  of 

not  prevail 

against  the  li-    the  company :  and  when  we  look  further  into  the  Act, 

quidator  as  re-  r      J  '  ' 


(3)  I.  L.  R.,  8  All.,  64. 

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ABT.  121]      THI  SECOND  SOHIPUM,  WRW  WVI8IOW-MBUIX9. 


481 


Deeoription  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VII. 
Si*  years. 

it  will  be  seen  that  it  is  a  liability  to  contribution  to  be 
enforced  by  the  liquidator.    It  ia  quite  true  that  a  call 
made  before  the  winding  up  is  a  debt  due  to  the  company, 
but  that  does  not  affeot  this  new  liability  to  contribution.' 
These  decisions  thus  discriminate  claims  like  the  present  These  decisions 
from  suits  for  calls  brought  by  a  company  itself  where  eiaimsfor  calls 
there  is  no  winding  up.     It  is,  therefore,  not  necessary  from  claims  for 
to  assume  that  Article  112  applies  to  suits  not  brought  pan?  itseif?°m~ 
by  the  company  itself.    As  observed  in  Balvantrav  v. 
Purshotam  (9  B.  H.  C.  R„  99,  at  p.  111.)    '  Limitation 
Acts  are  in  abridgment  of  the  common  law  right  to  sue, 
which  is  unlimited  as  to  time,  and  those  Acts  being  thus 
restrictive,  should  receive  a  strict  construction.'    "  I,  there- 
fore, exclude  the  present  suit,  which  being  brought  only 
in  the  name  and  behalf  of  the  company,  does  not  fall 
within  the  words  of  Article  112  strictly  construed.     I 
hold  the  Article  12Q  applicable."     The  Parell  Spinning 
and  Weaving  Company,  Limited  v.  Manek  HajU1) 

Part  VIII 
121.-— To    avoid    incumbran-  Twelveyears, 
ces  or  Tinder-tenures  in 
an  entire  estate  sold  for 
arrears  of  Government 
revenue  or  in  a  patni 
taluk  or  other  saleable 
tenure  sold  for  arrears 
of  rent. 
This  Article  contains  in  a  different  form  the  provisions 
of  Articles  119  and  120  of  Act  IX  of  1871. 

(a)  The  term  "  incumbrance,"  used  with  reference  Meaning  of  "in- 
to a  tenancy,  means  any  lien,  sub-tenancy,  easement  or 
other  right  or  interest  created  by  the  tenant  on  his  tenure 
or  holding  or  in  limitation  of  his  own  interest  therein,  and 
not  being  a  protected  interest  as  defined  in  the  last 
(1)  I.  L.  R.,  10  Bom.,  488. 


When    the  sale 
comes     final 
conclusive. 


be- 
and 


oumbranoe." 


61 


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THB  8IC0ND  8CHIDULK,  FIE8T  DIVISION — SUITS.       [ART.  121 


Pescription  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Neighbour's  en- 
croachment on 
the  estate  was 
held  an  incum- 
brance. 


Interpretation 
of  the  word 
"avoid." 


▲notion  pur- 
chaser is  not 
bound  to  stive 
notice  before 
suit  of  his  in- 
tention to  can- 
eel  under- 
tenure. 


Assignee  of 
auction  pur- 
chaser can  ex- 
ercise the  same 
right  as  pur- 
chaser. 


Part  VIII. 
Twelve  years. 

foregoing  section ;  (see  section  161  of  Bengal  Tenancy  Act 
VIII  of  1885.)  Section  167  contains  procedure  for  annul- 
ling incumbrances  under  the  foregoing  sections.  A  person 
seeking  to  obtain  the  benefit  of  section  12,  Beng.  Act  VII 
of  1868,  must  give  some  primd  facie  evidence  to  show 
that  the  incumbrance  which  he  seeks  to  avoid  is  an  in- 
cumbrance falling  within  the  terms  of  the  section,  that 
is,  an  incumbrance  imposed  on  the  tenure  by  some  one 
who  previously  held  it.  Koylashbashim  Dossee  v.  Go- 
coolmoni  Dossee.tt) 

(b)  The  principle  under  which  purchasers  of  estates 
at  revenue  sales  acquire  such  estates  in  the  condition  they 
were  in  at  the  Permanent  Settlement,  is  equally  recog- 
nized by  the  last  Sale  Law  (Act  XI  of  1859),  as  by  the  laws 
previous  to  it,  and  applies  as  much  to  actual  encroach- 
ments on  the  talook  or  estate  by  neighbours,  as  to  incum- 
brances or  nnder-tenures  created  on  it  by  the  old  pro- 
prietor or  by  his  laches.  Goluck  Monee  Dossee  v.  Huro 
Ohunder  Ghose.W 

(O)  In  Unnoda  Churn  Dass  Biswas  v.  Mothura  Nath 
Dass  Biswas/8)  it  was  held,  that  the  interpretation  which 
should  be  put  on  the  word  "  avoid"  in  schedule  2,  Articles 
119-120  of  Act  IX  of  1871,  is,  "  to  do  something  in  exer- 
cise of  the  right  of  avoidance."  Alluding  to  the  decision 
in  this  case,  which  appeared  not  to  have  been  carefully 
worded,  Garth,  C.  J.,  in  Titu  Bibi  v.  Mohesh  Chunder 
Bagchi,W  observes  that  "  all  that  we  really  decided  in 
that  case  so  far  as  I  am  aware,  was,  that  it  is  not  neces- 
sary for  the  purpose  of  avoiding  an  under-tenure  or  other 
incumbrance,  that  the  purchaser  should  give  any  notice, 
or  to  do  any  act  before  bringing  his  suit ;  and  that  his 
suit  must  be  brought  within  the  time  prescribed  by  the 
Limitation  Act." 

(d)  In  Koylash  Chunder  Dutt  v.  Gubur  Ali,W  it 
was  held  that  the  rights  which  are  conferred  upon  a 


(1)  I.  L.  E.,  8  Calo. 

(2)  8  W.  R.,  62. 


(3)  I 

(4)  I. 
(5)  22  W.E.,  29. 


L.  B.,  4  Calc,  860. 
L.  R.,  9  Calc,  688. 


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ART.  122]        THE  SKCOND  8CHBD0LB,  FIRST  DIVISION — 8D1TS. 


483 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelveyears. 

purchaser  at  a  sale  for  arrears  of  revenue  under  Act  XI 
of  1859,  section  37,  are  capable  of  being  transferred  to 
another  person,  if  the  transfer  follows  immediately  upon 
the  sale  or  within  a  reasonable  time  thereafter. 

(e)     In  Womesh  Chunder  Goopto  v.  Raj  Narain  Roy/1)   Purchaser's 
it  was  held,  that  the  cause  of  action  to  A,  who  was  a  pur-   gjjjjf  by°atj£. 
chaser  of  an  estate  free  from  incumbrance,  against  C  who  PaMOr,«  l<*ws 
was  a  trespasser  and  had  encroached  on  B  the  defaulter,  ^repurchase, 
must  be  taken  to  accrue  at  the  same  time  as  his,  A's, 
right   to  turn  out  under-tenants  of  the  defaulter,  viz., 
from  the  time  of    the  purchase   of  the    tenure  of  the 
defaulter ;  and  the  fact  that  A  was  both  talookdar  and 
purchaser,  did  not  prevent  him  from  exercising  the  same 
rights  as  any  other  purchaser  would  be  entitled  to  do. 


Twelveyears. 


122. — Upon  a  judgment  ob- 
tained in  British  India, 
or  a  recognizance. 

(a)  (No.  121,  Act  IX ;  clause  11,  section  1,  Act  XIV.) 
In  Fakirapa  v.  Pandurangapa,(2)  it  was  held  that  a  suit 
may  be  brought  in  the  High  Court  of  Bombay  upon  a 
judgment  of  the  Court  of  Small  Causes.  It  is  observed, 
that  plaintiff,  in  all  such  suits,  should  establish  that  the 
defendant  had  not  sufficient  moveable  property,  but  had 
real  property  against  which  alone  execution  of  such 
decrees  can  be  had.  The  Bombay  High  Court  declined 
to  follow  Moonshi  G-olam  Arab  v.  Curreembux  Shaikjee/3) 
in  which  the  Calcutta  High  Court  held  that  no  such  suit 
will  He.  The  Madras  High  Court  in  Mohomed  Ghore  v. 
Muster  Ally,<4)  assumed  that  a  suit  would  lie  on  a  judg- 
ment of  the  Small  Cause  Court.  The  point  however 
was  not  argued,  the  only  question  raised  being  that  as  to 
the  proper  period  of  limitation.  The  Bombay  High 
Court  in  Merwanji,  Nowroji  v.  Ashabai/6)  upon  a  review 
of  all  the  decisions  on  the  subject,  held  that  no  such  suit 
would  lie.     Section   94  of  the  Presidency  Small  Cause 


The  date  of  the  judg- 
ment or  recogni- 
zance. 


No  suit  will  lie 
in  the  oourt  on 
judgments  of 
Small  Cause 
Courts. 


(1)  10  W.  R.,  15. 

(2)  I.  L.  R.,  6  Bom.,  7. 

(5)  I.  L. 


I      (S)  I.  L.  R.,  6  Calc,  294. 
I      (4)  4  Mad.  Jur.,  127. 
R.,  8  Bom.,  13. 


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484 


THB  8EC0ND  SOtfRDULl,  tlt»t  DIVISION— SUITS.       [ART.  128 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelve  years. 

Court  Act  1882,  expressly  enacts  that  no  suit  snail  lie  on 
any  decree  of  such  court. 
No  suit  will  lie       (b)     In  Bhavani  Shankar  Shevakram  v.  Pnrsadri  Kali- 

up01l  S^lSE*   das,*1)  it  was  held  that  a  suit  will  not  lie  in  the  courts  of 

ment  of  a  court  »  #   m  m 

in  British  India.  India  upon  the  judgment  of  any  court  in  British  India, 
and  that  the  only  exception  to  this  rule  is  in  the  case  of 
judgments  of  a  Court  of  Small  Causes  on  which  suits  are 
permitted  to  he  brought  in  the  High  Court  in  order  to 
obtain  execution  against  immoveable  property. 

(0)  In  Sakharam  Dikshit  v.  Oanesh  Sathe/*)  the 
Subordinate  Judge,  to  whom,  on  the  cessation  of  the 
Sirdarship  in  the  defendant's  family,  the  agent  referred 
the  decree  for  further  execution,  proceeded  with  the  exe- 
cution up  to  the  year  1876,  when  these  proceedings  were 
pronounced  to  be  irregular.     The  plaintiff,  thereupon,  in 

CPeb.%5!)1887*  the  ?***  ^7>  filed  tne  P*08611*  8uifc  hased  on  the  decree 
of  1848.  It  was  held  that  the  period  of  limitation 
applicable  was  that  of  twelve  years  from  the  date  of  the 
decree  (Act  IX  of  1871,  schedule  2  Article  121),  but 
that  the  decree  should  be  viewed  as  analogous  to  an  in* 
stalment  decree  and  made  as  against  the  defendant  in 
1867,  down  to  which  time  the  proceeds  were  irregularly 
realised, — because,  it  then,  on  his  father's  death,  became 
first  operative  against  him.  The  court  observe  that  in 
the  case  of  a  decree  payable  by  instalments,  as  the  com- 
mand of  the  judge  prescribes  a  term  for  the  performance 
of  the  several  parts  of  his  order,  it  is  to  be  construed  as 
becoming  a  judgment  for  purposes  of  limitation  as  to  each 
instalment  only  on  the  day  when  payment  is  to  be  made. 

Twelve  years. 


roughtin 
'1877  on  a  decree 
of  1848  by  the 
court  of  the 
agent  for  Sir- 
dars directing 
payment  by  in- 
stalment, held 
not  barred  as 
money  was  rea- 


In  the  case  of 
instalment  de- 
cree each  Instal- 
ment is  to  be 
construed  as  a 
decree  for  the 
purpose  of  limi- 
tation. 


When  the  legacy  or 
share  becomes  pay- 
able or  deliverable. 


123. — For  a  legacy  or  for  a 
share  of  a  residue  be- 
queathed by  testator, 
or  for  a  distributive 
share  of  the  property 
of  an  intestate. 

The  correspond-       (a)     The  corresponding  Article  122,  of  Act  IX  of  1871, 
oficUXof  18*71  (3)  I.  L.  R.,  6  Bom.,  292.        |      (2)  I.  L.  R.,  3  Bom.,  193. 


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ABT.  128]      THB  SECOND  80HBDU11C,  »IE8T  DIVISION— SUITS.  485 


Description  of  rait. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelve  years. 

has  been  enlarged  in  its  scope  in  this  Article  by  omitting  has  been  eniarg- 

the  word  "  moveable"  and  by  the  additional  provision '  or  in  twa  Article. 

for  a  distributive  share  of  the  property  of  an  intestate.' 

This  alteration  haB  probably  been  made  with  reference  to 

the  observations  of  Pontifex,  J.,    in  Treepoorasoondery 

Dossee  v.  Debendronath  Tagore/ x>  to  the  following  effect: 

"  I  should  have  had  considerable  doubt  as  to  whether  the 

word  'legacy/  even  in  clause  122  of  the  Indian  Limitation 

Act,  applied  to  a  share  of  residue,  the  words  '  distributive 

share*  in  that  clause  applying  presumably  to  undisposed 

of  estate  only."     Following  Prior  t?.  Harniblane  (2  Y.  and 

C,  Ex.  Rep.  200)  which  has  never  been  overruled,   u  I  am 

therefore   bound  to  hold  that  clause  122  of  the  Indian 

Limitation  Act,  which  applies  not  only  to  a  legacy,  but 

also  to  a  distributive  share  of  the  moveable  property  of 

a  testator  or  intestate,  includes  a  share  of  the  residue  of 

a  testator's  moveable  property." 

This  Article  includes  both  moveable  and  immoveable  when  legacy  or 
property,  and  the  period  of  limitation  prescribed  is  twelve  payable  or  deli- 
years,  to  be  computed  '  when  the  legacy  or  share  becomes 
payable  or  deliverable.*     Ordinarily  they  become  pay-  ordinarily  they 
able  or  deliverable  from  the  testator's  death,  unless  the  fromteeESort* 
testator  wished  expressly  that  the  payment  of  the  legacy  Sd  otherwSe10 
shall  be  postponed  to  some  future  period  after  his  death,  directed* 
as  in  the  case  of  Tagore  t>.  Tagore,  IX  B.  L.  R.,  377.    But 
in  suits  for  a  distributive  share  of  the  property  of  an 
intestate,  the  share  becomes  deliverable  immediately  on  the 
testator's  death,  as  held  by  Mr.  Justice  Markby,  both  in 
cases  where  he  has  actually  left  some  property  undisposed 
of  by  the  will,  and  where  he  has  made  an  illegal  disposition 
of  property  which  must  go  to  the  heir-at-law.     This  has 
been  stated  at  page  799,  but  the  High  Court  have  not  decid-   The  h.  Court 
ed  the  question.   Hemangini  Dasi  v.  Nobin  Ghand  Ohose.  W   ed  the  question! 
(1)  I.  L.  R.,  2  Calc,  65.         |        (2)  I.  L.  B.,  8  Gale,  786. 

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486 


THB  SECOND  SCHEDULE,  PIE8T  DIVISION — SUITS.       [AET.  123 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Suit  to  fall  un- 
der tbia  Article 
must  be  to  re- 
cover legacy 
from  person 
bound  by  law 
to  pay  it. 


Executor's  as- 
sent is  neces- 
sary to  com- 
plete legatee's 
title  and  he  is 
not  bound  to 
pay  legacy  until 
one  year  bad  ex- 
pired from  tes- 
tator's death. 


As  to  legacy 
payable  on  the 
happening  of  a 
contingency, 
time  does  not 
run  till  contin- 
gency hap- 
pened. 


English  Law  on 
the  subject. 


Part  VIII. 
Twelve  years. 

(b)  This  Article  applies  only  to  eases  in  which  the 
property  sought  to  be  recovered  is  not  only  a  legacy,  but 
is  also  sought  to  be  recovered  as  such  from  a  person 
who  is  bound  by  law  to  pay  such  legacy,  either  because 
he  is  the  executor  of  the  will  or  otherwise  represents  the 
estate  of  the  testator.  Issur  Chunder  Doss  v.  Juggut 
Chunder  Sbaha.U) 

(C)  The  assent  of  the  executor  is  necessary  to  com- 
plete a  legatee's  title  to  his  legacy.  An  executor  is  not 
bound  to  pay  or  deliver  any  legacy  until  the  expiration  of 
one  year  from  the  testator's  death.  (See  Sections  112 
and  117  of  Act  V  of  1881,  and  also  sections  292  and  297 
of  Act  X  of  1865.) 

(d)  Iu  Prosunno  Chunder  v.  Cyan  Chunder, W  B,  by 
his  will,  gave  the  whole  of  his  property  to  his  brothers, 
making  a  specific  provision  of  Rupees  4,000  for  one  of  his 
daughters  (the  mother  of  the  plaintiffs)  which  was  to 
remain  as  amanut  in  the  family  treasury,  yielding  her 
interest,  if,  and  till,  she  gave  birth  to  a  male  child,  when 
she  should  also  have  200  beegahs  of  land.  Shortly  after 
this,  the  testator  died,  and  the  elder  of  the  plaintiffs  was 
born.  The  mother  having  since  died  without  drawing 
the  principal  or  taking  the  allotment  of  land,  and  the 
manager  of  the  family  estate  having  refused  to  give  the 
plaintiffs  their  due,  they  sued  to  recover  what  was  left  to 
their  mother.  It  was  held  that  this  was  a  suit  for  a 
legacy,  and  that  clause  11,  section  1,  Act  XIV  of  1859, 
applied  so  far  as  the  claim  for  the  money  was  concerned, 
and  that  the  cause  of  action  to  the  plaintiffs  accrued  at 
the  time  of  the  birth  of  the  elder  plaintiff,  when  his 
mother  became  immediately  entitled  to  the  principal 
sum  of  money  and  to  the  land. 

(6)  "  Until  there  are  assets  applicable  in  due  course 
(1)  I.  L.  R.,  9  Calo.  79.  |  (2)  13  W.  R.,  354. 


\ 


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ART.  128]        THE  SECOND  SCHEDULE,  FIRST  DIVISIONS-SUITS.  487 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VIII. 
Twelve  years. 

of  administration  to  the  payment  of  a  legacy,  the  legatee 
cannot  be  said  to  have  a  present  right  to  receive  it,  al- 
though it  may  have  become  payable  before  ;  but  if  there 
have  once  been  assets  sufficient  for  the  payment  of  the 
legacy   when  the  right  of  the  legatee  as  against  those 
assets  is  barred,  it  is  also  barred  as  against  all  other  assets 
subsequently  becoming  applicable.     If,   however,   when 
any  assets  become  applicable,  there  is  only  sufficient  to 
pay  a  part  of  the  legacy,  it  is  apprehended  there  can  only 
be  a  right  to  receive  such  part ;  and  that,  if  assets  subse- 
quently become  applicable,  time  will  begin  to  run  afresh 
as  against  the  right  of  the  legatee  to  receive  out  of  such 
assets  so  much  of  the  legacy  as  the  assets  before  becom- 
ing applicable  were  insufficient  to  pay.     By  assets  appli-  Assets  mean  not 
cable  for  the  payment  of  the  legacy  are  meant  not  merely  the  hands  of  the 
assets  in  the  hands  of  the  executor,  but  assets  which  could  assets  which 
be  got  in  and  so  applied,  for  the  legatee  has  a  right  to  and  applied  tom 
compel  the  executor  to  get  them  in  and  account  for  them,  legacies?11 
Although  it  is  apprehended  that  this  is  a  correct  conclu- 
sion, the  only  case  bearing  on  these  points  besides  those 
cases  just  referred  to  is  believed  to  be  Bright  v.  Larcher 
(27  Beav,  130 ;  affirmed  on  appeal,  4th  De.  G.  and  J.  608 ; 
28  L.  J.  ch.,  837.),,<1> 

(f)     In  Hemangini  Dasi  v.  Nobin  Chand  Ghose/2>  A,  by  Suit  b^  an  an- 
his  last  Will  and  Testament,  gave  his  property  to  trustees,  claiming  a  share 

,,..,.  ...  j    xv  ,         xi      underaWilland 

partly  in  trust  for  religious  and  other  purposes,  and  partly  also  for  a  share 

.  of  property  tin* 

to  pay  thereout  to  certain  persons  and  their  heirs  for  disposed  of. 
ever  certain  annuities,  being  fixed  portions  of  the  net 
profits  of  a  certain  estate  called  the  Hurro  Estate,  which 
amounted  to  Us.  3,150.  A  died  in  November  1863.  On 
the  11th  of  August,  1879,  the  heir  of  one  of  the  annuitants 
instituted  a  suit  claiming  a  share  under  the  Will,  and 
asking  for  a  partition  of  that  share.  The  plaintiff  alleged 
(1)  Darby  and  Boeanquet,  131.      |       (2)  I.  L.  R.,  8  Calc,  788. 


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488  THI  SECOND  8CHBDULB,  FIRST  DIVISION— SUITS.       [AST.  123 


Description  of  Bait. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Pabt  VIII. 
Twelve  years. 

besides,  that  certain  of  the  trusts  and  provisions  in  the 

will  were  invalid  in  law ;  that,  consequently  a  large  portion 

of  the  testator's  property  remained  undisposed  of  at  his 

death,  and  she  claimed  a  share  of  this  residue  as  one  of 

Gift  of  the  share  the  heirs  of  the  testator.    It  was  held  that,  under  the 

profits  held  to     circumstances,  the  gift  of  the  share  of  the  rents  and 

of  a°  share  in  the  profits  amounted  to  a  gift  of  a  share  in  the  corpus  of  the 

estate.  estate  ;  and  that  in  respect  of  that  portion  of  the  plain* 

tiff's  claim,  the  suit  was  not  barred  by  limitation.     It 

Testator's  heirs  was  further  held  that,  where  an  estate  is  given  by  Will 

might  sue  to 

compel  trustees  to  trustees  f  or  religious  and  other  purposes,  some  of  which 
trust  properly,  are  invalid  or  fail,  the  heirs  of  the  testator  may  be 
recover  pro-       barred  by  limitation  from  recovering  the  portion  undis* 

perty  undispos- 

ed  by  Will  be      posed  of ,  though  they  might  still  bring  a  suit  against  the 
trustees  to  oompel  them  to  properly  administer  the  trusts 
which  had  not  failed. 
Two  shares  (g)    In  Lokenath  Mullick  v.  Odoychurn  Mullick/1)  A 

withheld  till  and  B,  two  of  the  sons  of  one  N,  had  been  declared  in  a 
barred  debt  suit  brought  to  administer  IPs  estate,  to  be  indebted  to 
owed  to  the  the  estate  ;  it  was  also  declared  in  such  suit  that  a  certain 
sum  of  money  should  be  set  apart  for  the  performance  of 
certain  religious  ceremonies  and  paid  into  court.  A  and  B 
died  without  having  satisfied  their  debt.  In  a  suit 
supplemental  to  the  former  suit,  the  descendants  of  the 
sons  of  N.9  amongst  whom  were  the  descendants  of  A  and 
B  claimed  to  be  entitled  to  their  share  in  the  interest  on 
the  funds  in  the  hands  of  the  court,  and  sought  for  a 
division  of  such  accumulation  of  interest.  It  was  held 
that,  notwithstanding  that  the  debt  due  from  A  and  B 
to  the  estate  was  barred,  the  descendants  of  A  and  B 
could  not  be  allowed  to  share  in  the  accumulations  of 
interest  in  the  hands  of  the  court  without  first  satisfying 
the  debt  due  by  their  ancestors  to  the  estate. 
(1)  I.  L.  R.,  7  Calc,  644. 


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ART.  124]       THJB  SECOND  SCHEDULE,  FIB8T  DIVISION SUITS. 


489 


Description  of  suit. 


Period  of 
limitation. 


Time  from  whioh 
period  begins  to  ran. 


124. — For  possession   of 
hereditary  office. 


an 


Part  VIII. 
Twelve  years 


When  the  defendant 
takes  possession  of 
the  office  adversely 
to  the  plaintiff. 

Explanation. — An 
hereditary  office  is 
possessed  when  the 
profits  thereof  are 
usually  received,  or 
(if  there  are  no  pro- 
fits) when  the  duties 
thereof  are  usually 
performed. 

This  provision  was  first  introduced  in  the  corresponding 
Article  of  Act  IX  of  1871. 

(a)  InVenkatasubbaramayyat;.  Surayya/1)  plaintiff's  Suit  brought  in 
adoptive  father  was  dismissed  from  the  office  of  Karnam  1877^5  recover 
on  the  4th  of  April,  1862,  and  the  plaintiff  was  appointed  J2rm*3ȣi* 
in  his  stead  on  the  29th  April,  1865.  On  the  25th  J^J*JjJ^ 
September,  1865,  the  plaintiff  was  dismissed  and  the  years  under  Act 
second  defendant  appointed.  The  present  suit,  for  re- 
covery of  the  office  and  land  attached,  was  filed  on  21st 
September,  1877.  It  was  held  that  the  suit  was  barred, 
not  having  been  brought  within  six  years  from  the  25th 
September,  1865.  The  court  followed  Tammirazu  Rama- 
logi  v.  Pantina  Narsiah/2)  in  which  it  was  held  that  the  J£Ji£  claimed 
right  to  the  land  being  only  a  secondary  claim  and  ^JS^  SL 
dependent  upon  the  plaintiff's  title  to  the  office  of  Karnam,  £**|®°ffl08  of 
the  lapse  of  six  years  from  the  time  of  the  alleged  ouster 

by  defendant  was  fatal  to  the  suit. 

(b)  In  Papaya  v.  Ramana/8)  it  was  held,  that  it  is  a  Alienation  of 
general  principle  that  a  person  filling  an  office,   cannot  questioned  by 
alienate  the  emoluments  of  the  office  to  the  prejudice  of  his  EJ^JSJ £££ 
successors,  and  that  the  alienation  made  by  the  present  JgJ1  J^J^ 
holder  is  not  binding  on  his  successor,  who  may  question  devolve*  on 
the  alienation  within  twelve  years  from  the  date  when 

the  succession  to  the  office  devolves  on  him. 

(2)  I.  L.  R.,  2  Mad.,  283.      |  (2)  6  Mad.,  H.  C.  Rep.,  301. 
(3)  I.  L.  R.,  7  Mad.,  85. 

62 


Rightito 
only  a  a 


land  is 
seoon- 


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490 


THl  SECOND  SCHTOTJLI,  FIB8T  DIVISION — BUIT8.       [ABT.  125 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


asPatilof  a  vil- 
ified. 


lage  is  not  pro-    XXIII  of  1871. 
hSited 


Part  VIII. 
Twelve  years. 

Suit  to  declare  (c)  A  suit  for  a  declaration  of  the  plaintiff's  eligibility 
&iity  toofficiiate  to  officiate  as  Patil  of  a  village  is  not  prohibited  by  Act 

(The  Pensions'  Act).     That  Act  should 

receive  a  strict  construction,  as  being  in  derogation  of  the 

right  of  the  subject  to  resort  to  the  ordinary  Civil  Courts. 

Ourushidgavda   bim    Rudragavda   v.   Rudrajavdatikom 

Dyamangavda. W 

(d)  Where  the  plaintiff  sued  to  enforce  his  own 
personal  right  to  manage  an  endowment  dedicated  to 
religious  purposes,   there  being  no  question  whether  or 

was  held  to  fail  not  the  property  was  being  applied  to  such  purposes  by 

either  under  ,  r     f       J  -©      ff  Yij  - 

the  manager  in  possession,  the  above  section  was  held  in- 
applicable. The  possession  of  the  defendant  having  been 
adverse  for  more  than  twelve  years,  held  that  the  suit 
might  fall  within  Article  123  or  145  of  the  2nd  schedule 
of  Act  IX  of  1871,  in  force  when  the  suit  was  brought. 
Had  it  fallen  within  neither  of  the  above,  it  would  be 
barred  under  Article  118.     Balwant  Rao  v.  Puran  Mai.**) 

(e)  The  possession  of  the  office  of  Dharmakarta  of 
a  pagoda,  by  a  female,  married  and  estranged  from  the 
family   of  the  founder,  was  held  to  be  adverse  to  the 

SverseVpos»e8-   surviving  male  members  of  the  family,  and  may,  after 
twelve  years,  extinguish  their  right  to  the  office.    Manally 


P.O. 

Plaintiff's  (suit 
to  enforce  his 
own  personal 
right  to  manage 


Article  123  or 
146  of  Act  IX  of 
1871. 
(Feb.  1883.) 


Suit  for  posses- 
sion of  the  office 
of  Dharmakarta 
of  a  pagoda 
av  be  barred 


Chenna  Kesavaraya  v.  Vaidelinga.*3) 
section  28,  p.  264.) 

125. — Suit  during  the  life  of  Twelve  years. 
a  Hindu  or  Muhamma- 
dan  female  by  a  Hindu 
or  Muhammadan,  who, 
if  the  female  died  at 
the  date  of  instituting 
the  suit,  would  be  en- 
titled to  the  possession 
of  land,  to  have  an 
(1)  I.  L.  R.,  1  Bom.,  531.  |  (2)  I.  L.  R.,  6  All.,  1 


(See  Note  H,  under 


The  date  of  the  alien- 
ation. 


(3)  I.  L.  R.,  1  Mad.,  343. 


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ART.  125—126]     THE  8JBC0ND  8CHBDULK,  FIBST  DIVISION — BUIT8.        491 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Pabt  VIII. 
Twelve  years, 


alienation  of  snch  land 
made  by  the  female 
declared  to  be  void 
except  for  her  life  or 
until  her  re-marriage. 
(a)     (No.  124s  Act  IX.)    A  suit  brought  during  the  Persons  suing 

v     '      v  .  .  under  this  sec- 

life  of  a  Hindu  widow  by  the  presumptive  heir,  entitled  tionmustbethe 

•  •  i_»i_     presumptive 

on  her  death  to  the  possession  of  the  property  m  which  heir  who  would 

she  held  her  limited  estate,  to  have  an  alienation  by  her,  the  widow  died 

at  that  moment, 
declared  to  operate  only  for  her  life,  is  among  the  excep- 
tions to  the  general  rule  established  by  decision  upon 
Act  VIII  of  1859,  section  15,  viz.,  that,  except  in  certain 
cases,  a  declaratory  decree  is  not  to  be  made  unless  the 
plaintiff  shows  a  title  to,  though  he  does  not  ask  for, 
consequential  relief.  If  the  widow  "  executes  a  con- 
veyance valid  for  her  own  interest,  but  purporting  to 
convey  a  larger  interest  to  the  grantee,  it  is  difficult  to 
see  how  the  reversioner  can  get  any  relief  except  a  decla- 
ration that  the  conveyance  is  valid  pro  tanto.  He  cannot 
set  the  deed  aside,  because  it  is  partly  valid ;  nor  can  he 
affect  the  possession,  which  the  widow  has  a  right  to 
keep  or  to  give  up  to  another."  Isri  Dut  Koer  v.  Hans- 
butt  i  Koerain.C1)    Tba  cause  of  action  for  a  declaration 


Cause  of  action 
for  declaration 
is  not  revived 

that  the  alienation  is  void  pro  tanto,  is  not  revived  in  yersionen  born 
favour  of  reversioners  who  are  born  after  the  expiry  of  of  twelve  years 


Pershad  v. 


from  thee 
of  alienation. 


Twelve  years, 


When  the  alienee 
takes  possession  of 
the  property. 


twelve  years  from  the  date  of  alienation. 
ChedulalU2)     See  Notes  under  Article  141. 

126. — By  a  Hindu  governed 

by  the  law  of  theMitak- 

shara  to  set  aside  his 

father's  alienation    of 

ancestral  property. 
(a)     This  Article  provides  for  the  accrual  of  cause  of  Minor  can  sue 
action  from  the  time  that  alienee  takes  possession,  while  gears'1  of  his 
the  confesponding  Article,  125  of  Act  IX  of  1871,  made  ^£%*  ^ 

sold  by  father. 


the  Statute  to  run  from  the  date  of  the  alienation. 
(1)  I.  L.  E.,  10  Oalc.,  824.      |  (2)  15  W.  R.,  1. 


In 


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492 


THI  8ICOBD  8CHIDULE,  FIB8T  DIVISION — 8UIT8.       [AST.  127 


Description  of  rait. 


Period  of 
limitation  i 


Time  from  which  period 
begins  to  run. 


Part  Vm. 
Twelve  years. 

Rampbul  8ingh  v.  Deg  Narain   Singh/1)  it   was  held, 

under  Act  IX  of  1871,  that  a  suit  by  a  Hindu  governed 

by  the  Mitakshara  Law  to  recover  possession  of  property 

sold  during  his  minority  by  his  father  is  within  time  if 

brought  within  three  years  after  he  attains  his  majority. 

Order  appoint-        (b)     Whenever  an  application  is  made  for  the  appoint- 

nnderXc?XLof  ment  of  a  guardian  under  Act  XL  of  1858,  and  an  order 

minority  to  si     is  passed  appointing  a  person  to  be  guardian  of    the 

nooerUncMte  bo  minor,  even  though  no  certificate  be  taken  out  by  the 

t^8S  <m**  person  so  appointed,  the  minor  becomes  a  ward  of  court, 

and  the  period  of  his  minority  is  extended  to  twenty-one 

years.     Grish    Chunder  Chowdhry    v.  Abdul   Selam.W 

The  High  Court  followed  Chunee  Mul  Johary  v.  Brojo 

Nath  Boy  Chowdhry/9)   and   dissented   from    Stephen 

v.  Stephen, <*)  and  Stephen  v.  Stephen.**) 

(C)  Under  the  Mitakshara  Law,  a  son  may  not  only 
prohibit  his  father  from  improperly  alienating  ancestral 
property,  but  may  sue  to  set  aside  the  alienation  if  made. 
The  cause  of  action  to  the  son  accrues  when  possession  is 
taken  by  the  purchaser.     A  new  cause  of  action  does  not 


Canteof  action 
accrue*  when 
alienee  takes 
poaieaskmof 
property. 


Sabaeqnent 
birth  of  a 


yonngerbrother  accrue,  upon  the  subsequent  birth  of  a  younger  brother, 
a  new  caoas  of  either  to  the  elder  brother  alone,  or  to  him.  and  his  brother 

action. 

jointly.     Raja  Bam  Tewary  v.  Luchman  Pershad.(«) 


127. — By  a  person  excluded 
from  joint-family  pro- 
perty to  enforce  a  right 
to  share  therein. 


Twelveyears. 


When  the  exclusion 
becomes  known  to 
the  plaintiff. 


Defect  pointed        (a)     With  reference  to  the  provision  in  Article  127  of 
o.  j„  k  Article  Act  IX  of  1871,  as  to  the  time  from  which  period  began 

187  of  Act  EX  of    M  n      ,i      «     t      .      ^   ,.  tt.  i  „       r     „,  . 

1871,  has  been    to  run,  Garth,  C.  J.,  in  Kali  Kishore  Roy  v.  Dhunnjoy 
Act  of  1877,        Roy^7)  has  observed,  "  if  a  plaintiff  has  been  excluded  for 


(1)  I.  L.  R.,  8  Calc,  517. 

(2)  I.  L.  B.,  14  Calc,  65. 

(3)  I.  L.  R.,  8  dale,  967. 


(7)  I.  L.  R.,  3  Calc,  228. 


(4)  I.  L.  R.,  8  Calc,  714. 

(5)  I.  L.  R.,  5  Calc,  901. 

(6)  8  W.  R.,  15. 


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ART.  127]       THB  SECOND  SCHEDULE,  FIE8T  DIVJ8ION — 8UIT8.  493 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelve  years, 

fifty  years,  and  he  then  claims  his  share  and  is  refused,  he 
would  have  two  years  from  the  time  of  such  refusal  to 
bring  his  suit ;  or,  in  other  words,  he  would  have  sixty- 
two  years  from  the  time  of  his  exclusion  ;  and  if  he  never 
claims  or  is  refused,  the  period  within  which  he  may 
bring  his  suit  appears  to  be  indefinite.  This  apparent  Under  Article 
inadvertence  has  been  rectified  in  the  present  Limitation  of  1871,  time 
Act.  See  also  Hansji  Chhiba  v.  Valabh  Chbiba,W  in 
which  the  Bombay  High  Court  have  made  the  same 
remark  on  Article  127  of  Act  IX  of  1871. 

(b)  This  Article  shortens  the  period  by  making  it  to  Thia  Article  has 
run  from  the  time  the  exclusion  becomes  known  to  the  period  by  alter- 
plaintiff,  while  the  corresponding  Article  of  Act  IX  of  point.  K 

1871  allowed  the  period  to  commence  from  the  time  when 
the  plaintiff  claimed  and  was  refused  his  share.  In  this 
view  of  the  Article,  the  Calcutta  High  Court  in  Naraina 
Khootia  v.  Lokenath  Khootia,<3)  held  that  the  plaintiff 
was  entitled  to  the  benefit  of  section  2  of  the  Act. 

(O)     In  Obhoy  Churn  G-hose  v.  Gobind  Chunder  Dey,W  Plaintiff  to 
the  plaintiff  sued  for  a  share  in  certain  property  on  the  witSL  thin  Ar- 
allegation  that  his  ancestor  K  and  the  defendant's  an-  show  that  pro. 
cestor  R  were  uterine  brothers,  who,  while  they  were  m " 

living  in  commensality,  purchased  the  property  in  ques- 
tion with  their  joint  funds  in  the  name  of  R  and  that 
subsequently  K  left  his  home,  and  then  his  daughter,  the 
plaintiff's  mother,  enjoyed  the  property  jointly  with  R 
until  her  death,  when  the  plaintiff,  succeeding  to  his  right 
and  interest,  applied  to  have  his  name  registered  as  a 
joint  proprietor,  but  his  application  was  refused  ;  hence 
this  suit.  The  defence  was  that  R  bought  the  property 
in  question  with  his  own  funds,  after  he  and  his  brother 
K  had  separated ;  that  Badha  Mohun,  and  afterwards  the 

(1)  I.  L.  R.,  8  Bom.,  297.      |      (2)  I.  L.  B.,  7  Gale,  461. 
(8)  I.  L.  R.,  9  Calc,  237. 


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494  THE  8ICOND  SCHEDULE,  FIRST  DIVISION — SUITS.       [ART.  127 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 

Twelve  years. 

defendants,  had  been  in  exclusive  possession  for  more  than 
twelve  years ;  and  that  the  suit  was  barred  by  limitation. 
It  was  held  that  under  section  144,  defendant's  exclusive 
possession  for  upwards  of  twelve  years  gave  him  a  prima 
facie  right  to  the  property  against  all  the  world,  and  that  if 
the  plaintiff  wants  to  bring  himself  within  Article  127, 
which  places  him  in  a  more  advantageous  position  than 
other  claimants,  he  is  bound  to  show  that  the  property  is 
observations  of  joint.  In  Bannoo  v.  Kashee  Ram/1)  the  Lords  of  the 
eii.  Judicial  Committee  observe  :  "  In  the  case  of  an  ordinary 

Hindu  family  who  are  living  together,  or  who  have  their 
entire  property  in  common,  the  presumption  is,  that  all 
that  any  one  member  of  the  family  is  found  in  possession 
of,  belongs  to  the  common  stock.  That  is  the  ordinary 
presumption,  and  the  onus  of  establishing  the  contrary  is 
thrown  on  the  member  of  the  family  who  disputes  it. 
Having  regard,  however,  to  the  state  of  this  family  when 
the  present  dispute  arose,  their  Lordships  think*  that  that 
presumption  cannot  be  relied  upon  as  the  foundation  of 
the  plaintiffs  case,  and  therefore,  as  he  seeks  to  recover 
property  which  was  in  the  possesion  of  Bamdyal,  and  was 
ostensibly  his  own  at  the  time  of  his  death,  it  lies  upon 
him  to  establish  by  evidence  the  foundation  of  his  case, 
vi2.,  that  the  property  was  joint  property  to  which  he  and 
his  brother  Kasho  Bam,  as  surviving  members,  were 
Observations  of  entitled."  Garth,  C.  J.,  observes,  that  if  the  rule  be  other- 
wise, it  would  follow  "that,  however  long  a  Hindu  may 
have  been  in  the  exclusive  possession  of  property,  move- 
able or  immoveable,  he  would  always  be  subject  to  have 
his  title  to  it  questioned  by  any  distant  member  of  his 
family,  who  could  prove  that  at  some  prior  period,  even 
100  years  before,  their  common  ancestors  were  members 
of  a  joint-family ;  and  not  only  so,  but  that  in  all  such 
(1)  I..  L.  B.,  3  Caic,  316. 


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ART.  127]      THE  SECOND  8CHEDULE,  FIRST  DIVISION — SUITS.  495 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelve  years. 

cases  the  onus  of  proving  that  the  property  was  not  joint 
would  lie  upon  the  defendant."     In  Thakur  Prasad   v. 
Partab<1>   the  Lower  Appellate  Court  remarked,  "it  is 
not  enough  that  the  property  in  dispute  should  have  been 
joint-family  property  at  some  previous  period,  for  so  much 
might  he  predicated  of  most  property  in  the  possession  of  it  is  essential 
a  Hindu,  but  it  is  essential  that  it  should  have  been  the  shouffbethe 
property  of  an  existing  joint-family  at  the  date  when  the  of  an^xSSog67 
cause  of  action  accrued,  and,  if  this  cannot  be  shown,  I  when  cause  of 
hold  that  Article  127  is   inapplicable.' '     Straight  C.  J.,  actionaccraed- 
held  that  the  Lower  Appelate  Court's  decision  on  the 
question  of  limitation  was  correct. 

(d)     In  Issuridutt  Singh  v.    Ibrahim, <3>  one  of  the-  Date  of  attach- 
defendants  obtaining  a  decree  in  April,  1862,  against  the  payable  to  the 
plaintiff's  father  for  money  due  on  account  of  rent  under  was  held  excitJ 
a  Ticca  lease  taken  by  the  father,  attached  the  right  and     ^    m8 
interest  of  the  plaintiff's  grandfather  in  a  certain  share 
in  one  of  the  Mouzas  belonging  to  the  family  and  caused 
it  to  be  sold  in  February,  1866.     The  purchaser  dispos- 
sessed the  plaintiffs,  and  by  an  order  of  attachment,  the 
under  tenants  were  to  cease  paying  rent  to  the  head  of 
the  plaintiff's  family  from  the  13th  of  January,  1866, 
being  the  date  of  attachment.     It  was  held   that  the 
plaintiffs  became  aware  of  exclusion  on  the  date  of  the 
attachment,  and  that  the  claim  was  barred  inasmuch  as 
the  suit  was  brought  more  than  twelve  years  after  the 
date  of  the  attachment.     This  was  a  suit  for  partition  and 
not  a  suit  to  set  aside  father's  alienation,  but  to  obtain 
a  share  by  partition  of  a  joint-family  property,  the  inter- 
est of  the  father  having  been  sold  in  execution  of  a 
decree. 

(6)    Corresponding  Article  of  Act  IX  of  1871,  is  prac-  suit  for  shares 
tically  of  precisely  similar  import.     It  pre-supposes  the  who,  and  their 


(1)  I.  L.  R.,  6  All.,  442.  |         (2)  L  E.,  8  Calc,  653. 


predecessors, 


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496  THl  SKCOHD  8CHKDULK,  P1BST  DIVI8IOM — SUITS.       [AKT.  127 


Past  VnL  j 
.Twelve  years. 

never  held  poe-  existence  of  joint-family  property  and  an  exclusion  from 


governed  iff  participation  in  the  enjoyment  of  snch  property.  The  word 
"  excluded"  implies  previous  inclusion.  When  Act  IX  of 
1871  was  in  force,  Saroda  Soondury  Doesee  r.  Doyamoyee 
Dossee,(1>  was  institued  in  May,  1877,  by  plaintiffs,  who, 
as  daughters  of  their  deceased  mother,  claimed  a  share 
from  their  step-sister,  the  1st  defendant,  alleging  that 
the  property  vested  in  their  mother,  who  died  in  Septem- 
ber, 1869,  and  that  since  they  held  joint  possession  of  the 
property,  receiving  the  proceeds  according  to  their  res- 
pective shares.  The  Lower  Appellate  Court  found  that 
there  was  no  evidence  to  show  possession  in  the  plaintiffs 
or  their  immediate  predecessors  in  title,  at  any  time  within 
twelve  years  preceding  the  suit,  and  rejected  the  suit 
as  barred.  It  was  held  that  the  suit  was  not  governed  by 
this  Article,  and  that  the  right  of  a  Hindu  to  the  posses- 
sion of  immoveable  property  on  the  death  of  a  Hindu  widow, 
to  which  Article  142  of  Act  IX  of  1871  referred,  must  be 
one  in  being  at  the  time  of  the  death  of  the  widow  and 
that  the  determination  of  such  right  during  her  lifetime 
extinguishes  also  the  right  of  the  reversioner  on  her  death. 

Time  for  parti*       (f)     In  Hari  v.  Maruti/3)  plaintiff  sued   his    cousin 

tion  wonla  not 

begin  to  ran     for  half  share  on  the  23rd  November,  1880.     The  District 

nntil  plaintiff 

know*  hia  ex-  Judge  finding  that  the  property  in  dispute  was  not  in 
the  possession  of  any  person  from  whom  the  plaintiffs 
could  legally  claim  it  within  twelve  years  previous  to  the 
date  of  the  suit,  rejected  the  suit  as  barred.  The  High 
Court  reversing  the  decision,  held  that  time  would  not  run 
against  plaintiff  until  his  exclusion,  if  he  was  excluded 
from  the  property,  had  become  known  to  him. 

In  Bam  Lakhi  v.  Durga  Charan  Sen/3)  Garth,  C.  J.,  ob- 
serves :  "  I  conceive  that  in  Article  127  the  Legislature 

(1)  IL.E.,5  Calc,  938.        |       (2)  I.  L.  R.,  6  Bom.,  741. 
(3)  I.  L.  E.,  11  Cal.,  680. 


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ART.  127]        THE  8BCOND  SCHEDULE,  MB8T  DIYI8I0H — BU1T8.  497 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VIII. 
Twelve  years, 

intended  to  make  an  exception  from  the  general  rule  of  Reason  for  ex- 
limitation  in  favour  of  Hindus  and  others  to  whom  the  the  general  rale 


,  ,   .    .    ,   -       .,  .  .   „  ...       of  limitation  in 

Jaw  of  loint-family  property  more  especially  applies  in  favour  of  ffin- 

x  mi.  ^       ,  x,     -     i.  *        duaaadothera 

this  country.     Those  persons  often  leave  their  houses  for  to  whom  the  law 
long  periods  of  time  to  seek  employment  in  some  distant  property  ap- 
place,  and  their  relatives  may  take  steps  to  exclude  them 
from  their  family  property  without  their  knowing  it.     It 
has  therefore  been  considered  right  to  allow  them  to  bring 
a  suit  under  such  circumstances  to  enforce  their  right 
within  twelve  years  from  the  time  when  they  first  know 
of  their  exclusion.     But  this  reasoning  would  not  apply  That  reason 
with  equal  force  to  strangers,  who  purchase  joint-family  tostra%era 
property,  and  ought  to  make  enquiries  into  the  title  of  fotat-fanSiy 
their  vendors  before  they  make  their  purchase.     That  proporty- 
this  Article  does  not  apply  to  such  persons,  is  shown, 
I  think,  by  the  fact  that  limitation  is  to  run  from  the 
time  when  the  exclusion  becomes  known  to  the  plaintiff. 
Now,  who  is  meant  by  the  plaintiff  in  this  sentence?   "Plaintiff" 
The  plaintiff  there,  I  conceive,  must  mean  the  member  of  thejoint-fam- 
of  the  joint-family  who  has  been  excluded  from  possession,  not  include  pnr- 
and  the  expression  would  not  be  applicable  to  a  person  such  member, 
purchasing  from  such  a  member.     If  it  was  intended  to 
apply  to  a  purchaser  from  that  member,  this  strange 
result  would  follow : — that  the  member  of  the  joint- family  strange  result 
who  sold  to  the  stranger  might  have  known  of  his  own  plaintiff  be  con- 
exclusion  more  than  twelve  years  before  the  stranger  parchaaer'aiaof 
brought  his  suit ;  and  yet  the  stranger  would  not  be  barred 
if  he,  the  stranger  (who  would  be  the  plaintiff)  was  not 
aware  of  the  exclusion  of  his  vendor.    The  stranger  would 
then  have  twelve  years  to  sue  from  the  time  when  he 
was  first  aware  of  the  exclusion. 

(g)    In  Nilo  Bamchandra  v.  Qovind  Ballal  and  others,*1)  Ca*e  where  de- 

>'0,  m  fendant's  pos- 

the  defendant's  great  grand-father,  and  his  nephew,  who  session  of  joint- 

©  »  '  r  »  family  property 

(1)  I.  L.  R.,  10  Bom.,  24. 

63 


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498         THE  81C0ND  8CHEDULE,  FIRST  DIV18I0M — 60IT8.    [ART.  128 — 129 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelve  years. 

forss  ran  held  was  the  plaintiffs*  great  grand-father,  were  entitled  in 
Sirs'  MdtPfor  "  equal  half  shares  to  a  certain  vatan  property.  The 
plaintiffs'  father  lived  with  the  defendant  and  his  brothers 
as  one  undivided  family  up  to  1885,  when  the  plaintiffs' 
father  having  been  absent  from  the  village,  the  defend- 
ant's brothers,  two  in  number,  executed  a  deed  of  partition, 
whereby  they  divided  the  ancestral  property  into  two 
halves,  one-half  of  which  the  plaintiffs'  father  was  to 
receive  and  the  other  half  was  to  go  to  the  defendant  and 
his  brothers.  The  deed  contained  a  clause  to  the  effect 
that  the  defendant's  brothers  would  manage  the  plain- 
tiffs' father's  share  during  his  absence  and  hand  the  same 
over  to  him  on  his  return  on  his  paying  the  expenses  of 
management.  In  1873,  the  plaintiffs'  undivided  brother 
sued  the  defendant  and  others  for  a  third  share  on  an 
arrangement  said  to  have  been  entered  into  with  him 
by  the  defendant's  brothers,  and  the  suit  was  rejected 
as  against  the  defendant  as  he  had  not  been  a  party  to 
the  agreement.  The  plaintiffs  brought  the  present  suit 
claiming  their  share.  It  was  held  that  the  suit  was  not 
barred  by  limitation,  as  the  possession  of  the  share  in 
question  by  the  defendants  since  1845,  had  not  been  a 
possession  of  it  as  their  own  property  to  the  exclusion  of 
the  plaintiffs  or  their  father  and  that  the  plaintiffs' 
claim  was  not  barred  before  the  Limitation  Act  of  1871. 
In  this  case  the  Court  followed  the  ruling  in  Govindan 
Pillai  v.  Ghidambara  Pillai,W  and  Sidhojirav  v.  Naikoji- 
rav.<*> 


128. — By  a  Hindu  for  arrears 
of  maintenance. 

129.— By  a  Hindu  for  a  de- 
claration of  his  right  to 
maintenance. 

(1)  3  M.  H.  C.  R.,  99. 


Twelve  years. 
Do. 


When  the  arrears  are 

payable. 
When    the    right    ifr 

denied. 


(2)  10  B.  H.  C.  R.,  228. 


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ART.  128 — 129]    THB  SECOND  SCHEDULE,  FIK8T  D1V18ION — SUITS.        499 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelve  years. 

(a)  (No.  128,  Article  9;   clause  13,  section  1,   Act  Actxrvofisw, 
JL_  gave  twelve 

XIV.)    Act  XIV  of  1859,  clanse  13,  section  1,  provided  years  from  the 

that  suits  for  maintenance,  when  the  right  to  receive  such  person  on  whose 

estate  mainton- 

maintenance  is  a  charge  on  the  inheritance  of  any  estate,  anoe  was  a 

.  charge. 

must  be  brought  within  twelve  years  from  the  death  of 
the  person  on  whose  estate  the  maintenance  was  alleged 
to  be  a  charge.     On  the  above  section,  the  Privy  Council  Observations  of 

°  .  P.  C.  on  the  re- 

in Narayan  Rao  v.  Ramabai/1)  remarked  that  by  the  salt  of  the  above 

.  rule  which  un- 

Hindu  Common  Law,  the  right  of  a  widow  to  maintenance  necessarily 

.  .  forced  widows 

was  one  accruing  from  time  to  time  according  to  her  to  sue  merely  to 
want  and  exigencies,  and  that  a  Statute  of  Limitation  claims  alive, 
might  do  much  harm  if  it  should  force  widows  to  claim 
their  strict  rights  and  commence  litigation  which,  but 
for  the  purpose  of  keeping  alive  their  claims,  would  not 
be  necessary  or  desirable. 

(b)  Article  128  of  Act  IX  of  1871,  provided  for  a  suit  Article  iw  of 
by  a  Hindu  for  maintenance  to  be  brought  within  twelve  provided  for  the 
years  from  the  date  of  refusal  of  the  claim  for  main-  from  the  date  of 
teoance.     This  Article  has  been  split  into  two  (128  and  m 

129)  in  the  Act  of  1877,  ono  providing  for  a  suit  for  it  has  been 
arrears  of  maintenance  and  the  other  for  a  declaration  of  and  129  in  the 
right  to  maintenance.      In  the  above  Bombay  case,  it  has 
been  observed  by  P.  C,  "  taking  all  the  circumstances  p.  c.  held,  with, 
of  this  family  into  consideration,  their  Lordships  do  not  tenanoe  to 
doubt  that  there  was  a  withholding  of  this  maintenance  fusai. 
by  the  son  under  circumstances  which  would  amount  to 
a  refusal  of  it." 

(C)     In  Chaganlal  and  others  v.  Bapu  Bhai/2)  which  if  right  to  here- 

.  '         .  *    •  *  J  •  x         ditaryofflcebe 

is  a  suit  to  recover  arrears  of  income  of  a  certain  vatan  declared,  plain- 
connected  with  an  hereditary  office,  the  title  to  the  share  arrears  of  in- 
having  been  declared  in  a  former  suit,  it  was  held  that  it  years,  next  pre- 
was  no  longer  necessary  for  the  plaintiff  to  establish  his 
periodically  recurring  right  against  any  person  who  is 
(1)  I.  L.  R.,  3  Bom.,  415.        |         (2)  I.  L.  R.,  5  Bom.,  68. 


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500        THE  S1COND  SCHEDULE,  FIRST  PIVISION — SUITS.    [AST.  128 — 129 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VIII. 
Twelve  years. 

bound  by  that  decree ;  and  that  being  so,  there  was 
nothing  in  the  law  of  limitation  which  can  be  construed 
into  a  restriction  of  the  plaintiff's  right  to  recover  the 
arrears  falling  due  within  the  period  of  limitation, 
though  the  plaintiff  admitted  that  he  had  received  no 
payment  for  thirteen  years,  viz.,  from  1861  to  74,  and  that 
his  claim  for  1861  had  been  barred  on  the  date  of  the 
b.  h.         suit.     In  this  case  Baiji  Manor  v.  Desai  Kallianrai.W 

If  right  to  title  * 

be  barred,  rait    and  Madvaln  v.  Bhagvanta,*8)  were  cited,  where  it  was  laid 

to  reoorer  ar-  . 

rears  on  such     down  that  the  cause  of  action  to  establish  title  and  the 

title  i*  held  bar- 
red, cause  of  action  to  recover  arrears  which  rest  on  such  title 

are  not  distinct  and  independent  of  each  other ;  so  that 

if  the  former  be  barred,  even  the  arrears  which  may  be 

within  the  period  of  limitation  cannot  be  recovered. 

A  Hindu  widow       (d)     Article   128  prescribes  twelve   years  from  the 

can  recover  ar-  . 

rears  of  main-     time  that  the  arrears  are  payable  while  the  correspond - 

tenanoe  not  ex*  *  . 

eluded  by  law    ing  Article  of  Act  IX  of  1871,  made  the  same  period  to 

of  limitation  ap-  . 

piioabie.  run  from  the  date  of  demand  and  refusal.     In  Jivi  v. 

Bamji,<3>  plaintiff  in  June,  1877,  sued  her  brother-in-law 
for  four  years'  maintenance  from  1873  to  1877,  alleging 
that  she  demanded  payment  on  the  latter  date.  The 
Lower  Court  being  of  opinion  that  demand  and  refusal 
were  necessary  to  give  a  cause  of  action,  rejected  the  suit. 
Melville,  J.,  held  that  a  Limitation  Act  is  not  intended  to 
define  or  create  causes  of  action,  but  simply  to  lay  down 
the  periods  within  which  existing  rights  may  be  enforced. 
A  Hindu  widow  has  a  legal  right  to  maintenance,  and  may 
recover  arrears  for  any  period  not  excluded  by  the  law  of 
limitation  applicable  to  the  suit.  In  suits  coming  within 
the  operation  of  Act  IX  of  1871,  she  may  recover  arrears 
for  any  period,  unless  it  appear  that  there  has  been  a  de- 
mand and  ref usal,  in  which  case  she  can  recover  arrears  for 
twelve  years  only  from  the  date  of  such  demand  and  refusal. 

(1)  6  B.  H.  C.  fc.,  56  A.  C.  J.      |    (2)  9  B.  H.  C.  R.,  260. 
(S)  I.  L.  R.,  3  Bom.,  207. 


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AET.     130]     THE  SECOND  SCHEDULE,  PI  EST  DIVISION SUITS. 


501 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


130. 


Part  VIII. 
Twelve  years, 


For  the  resumption  or  Twelve  years.  When    the    right   to 
assessment  of  rent-free  resume  or  assess  the 

land.  land  first  accrues. 

(No.  130,  Act  IX;  cl.  14,  sec.  1,  Act  XIV.)  This  Article 
omits  the  proviso  to  Article  130  of  Act  IX  of  1871  and  to 
clause  14,  section  1,  of  the  Act  of  1859,  to  the  effect  "  that 
no  such  suit  shall  be  maintained  where  the  laud  forms  part 
of  a  permanently  settled  estate,  and  has  been  held  rent- 
free  from  the  time  of  the  permanent  settlement." 

(a)     In  Mt.  Bunnoo  v.  Moulvie  Ameeroodeen/1)  it  was   Revenue  pur- 
held  under  Act  XIV  of  1859,  section  1,  clause  14,  that  a  murtdate^rom 
person  whose  right  to  resume  and  assess  certain  land  is   right  first  ac- 
acq aired  by  purchase  from  Government,  must  date  such   vernment, 
right,  not  from  the  time  when  he  became  the  purchaser,   xivofisw.) 
but  from  the   time  when  the  right  first  accrued  to  the 
Government. 

Cb)     The  Talukdari  Settlement  Officer  having  assessed   Twelve  years 

n  i*        possession  by 

rent-free  land,  on  the  ground  that  it  had  been  granted  for  one  not  claim- 
service,  and  that  service  was  no  longer  required,  it  was   grantee,  bars 
held  that  if  the  grant  was  the  grant  of  an  office  remunerat-   land  granted  to 
ed  by  the  use  of  land,  the  right  to  assess  was  barred  by   numeration. 
the  possession  of  a  person  not  claiming  under  the  grantee 
for  a  longer  period  than  twelve  years  after  the  right  to 
resume  accrued,  under  Act   IX  of  1871,  section  29  (22 
of  this  Act),  and  Article  130,  schedule  2 ;  Keval  Kuber  v. 
The  Talukdari  Settlement  Officer.  (*) 

(C)     In  Protap  Chunder  Chowdhry  v.  Shukhee  Soon-    suit  to  assess 
duree  Dassee/3)  A  got  a  decree  against  B  which  declared   yeawafteTd™ 
that  certain  lands  in  B's  possession,  alleged  to  have  been    plaintiff's  right 
lakehraj  lands  from  before  1790,  were  A'b  mal  lands  and   not  barred, 
liable  to  assessment.     More  than  twelve  years  after  the 
date  of  this  decree,  A  sued  to  assess  the  lands.     It  was 
held  that  the  suit  was  not  barred  by  the  provisions  of  this 
Article. 

(1)  23  W.  R.,  24.  |      (2)  I.  L.*  R.,  1  Bom.,  686. 

(3)  2  C.  L.  R.f  569. 


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502  TH*  81COMD  8CH1DULB,  F1B8T  DIVISION — SUITS.        [AtCT.  130 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VIII. 
Twelve  years. 

in  eye  of  Mo-  (d)  In  Petambar  Baboo  v.  Nilmony  Singh  DeOjO)  it 
lieu  of  main,  was  held  that,  although  a  grant  of  a  Moknrrari  lease  in  lieu 
torOT°Bacce»or  of  maintenance  may  be  resumed  by  the  grantor  and  his 
for  the  time  of  heirs,  yet  if  the  grantor  or  any  of  his  successors  receives 
if  he  does  not  distinct  notice  of  a  claim  on  the  part  of  the  grantee  to 
twelve  years      hold  in  perpetuity   and  not  subject  to  resumption  and 

grantee  s  olaim      111  *  •  ■» 

to  hold  in  per-  allows  twelve  years  to  go  by  without  contesting  such 

7'  claims,  he  (such  grantor  or  successor)  will  be  barred  for 

the  time  of  his  own  enjoyment. 

a.  H.  held  that       (©)     In  Jagan  Nath  Panday  v.  Prag  Singh,  W  the  plaiu- 

ure,  the  revenue  tiff  claimed  possession  of  a  certain  land  in  virtue  of  a 

grantor0  took*    grant  thereof  to  him,  not  merely  of  the  proprietary  right 

payTie  liable  to  in  such  land,  but  of  the  rents  of  the  same  undiminished 

hu^preienu^  by  the  payment  of  the  revenue  assessed  thereon,  which 

(i>ec.  1879.)        the  grantor  took  upon  himself  to  pay.    It  was  held  by 

the  court,  that  the  grant  was  null  and  void  and  liable  to 

resumption  with  reference  to  sections  10  of  Regulation 

XIX  of  1793  and  Regulation  XLI  of  1795,  and  section  30 

of  Act  XVIII  of  1873  and  section  79  of  Act  XIX  of  1873. 

PosseMion  as         (f)     In   Koylashbashiny   Dossee  v.  Gocoolmoni  Dos- 

lakheraj  sinoo 

ut  Deoember.    see/3)  it  was  held,  if  a  person  claiming  under  a  badshahi 

1790,   oonclu-  r  ° 

aiveiybartare-  lakheraj  grant  made  before  the  1st  of  December,  1790, 

sumption  suit 

by  doTemment  can  show  that  he  has  held  the  land  as  lakheraj  since  the 

or  by  purchaser 

in  revenue  sale,  1st  of  December,  1790,  this  will  be  a  conclusive  bar  to  a 

or  by  any 

others.  suit  for  resumption,  whether  brought  by  the  Government 

or  by  a  purchaser  at  a  revenue  sale,  or  by  any  other 

person.     That  is,  in  order  to  prove  a  grant  anterior  to  the 

1st  of  December,  1790,  it  is  sufficient  to  give  evidence  of 

possession  dating  back  to  the  1st  of  December,  1790.     A 

person  seeking  to  resume  lakheraj  land  must  give  prima 

facie  evidence  to  show  that  rent  has  been  paid  for  that 

land  at  some  time  since  the  1st  of  December  1790. 

The  law  con-         (g)     Field,  J.,  observes  :  "  Now,  Badshahi  Lakheraj 

Jubjwt^lak!  (1)  I.  L.  B.,  3  Calc.,  798.      |        (2)  I.  L.  B:,  2  All.,  545. 

heraj  grants.  (3)  I.  L.  B.,  8  Calc,  230. 


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ABT.  130]       THB  8BCOND  SCHKDULE,  HBST  DIVISION — 8UIT8. 


508 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VIII. 
Twelve  years. 

grants  were  of  three  kinds :  Firstly,  grants  made  before 
the  12th  August,  1765 ;  secondly,  grants  made  after  the 
12th  Angnst,  1765,  bnt  antecedent  to  the  1st  December, 
1790 ;  and  thirdly,  grants  made  subsequently  to  the  1st 
December,  1790.  As  to  the  first  two  classes,  it  is  only 
necessary  to  remark,  that  if  a  person  claiming  to  hold 
nnder  a  grant  falling  within  either  of  these  two  classes 
can  show  that  he  has  held  the  land  as  lakheraj  since  the 
1st  December,  1790,  according  to  the  law  as  it  at  present 
stands,  this  will  be  a  conclusive  bar,  whether  the  suit  to 
resume  is  brought  by  the  Government,  by  a  purchaser  at 
a  revenue  sale,  or  by  any  other  person.  In  order  to 
prove  a  grant  anterior  to  the  1st  December,  it  is  thus 
sufficient  to  give  evidence  of  possession  as  lakheraj dar 
dating  back  to  1790 ;  see  the  case  of  Sristeedhur  Sawunt 
v.  Romanath  Rokhit  (6  W.  R.,  58).  Then  as  to  the  third 
class,  that  is,  grants  made  after  the  1st  December,  1790, 
the  old  Regulation  enacted  that  such  grants,  whether 
exceeding  or  not  exceeding  100  bighas,  shall  be  null  and 
void.  It  therefore  follows  that  apart  from  the  law  of 
limitation,  the  Government,  or  an  auction  purchaser,  or  a 
Zemindar  is  entitled  to  resume  any  lakheraj  grant  made 
subsequent  to  the  1st  December,  1790.  Then  we  must 
apply  the  law  of  limitation.  In  the  case  of  Government 
or  any  person  claiming  under  Government,  Article  149  of 
the  Limitation  Act  provides  the  period  of  60  years; 
and  it  therefore  follows  that  the  Government  or  an 
auction-purchaser  claiming  under  the  Government  must 
sue  within  60  years  after  the  cause  of  action  arose  to 
resume  lakheraj  land,  even  although  held  on  a  grant 
alleged  to  have  been  made  after  1790.  In  the  case  of  a 
mere  auction- purchaser,  Articles  121  and  130  would  apply, 
and  a  purchaser  at  a  revenue  sale  would  have  twelve 
years  within  which  to  bring  his  suit ;  but  it  appears  to 


Three  kinds  of 
grants. 

1.  Made  before 
12th  August, 
1765. 

2.  Made  after 
12th  August, 
1765. 

3.  Made  after 
1st  December, 
1790. 


To  prove  grant 
anterior  to  1st 
December,  1790, 
it  is  sufficient 
to  prove  posses- 
sion as  lakhe- 
rajdar  dating 
back  to  1790. 


Government,  or 
auction  pur- 
ehaser,  or  a 
zemindar  is  en- 
titled to  resume 
grant  made 
subsequent  to 
1790. 


Must  iue  with- 
in 60  yean  from 
cause  of  action. 


In  the  case  of  a 
mere  auction 
purchaser  Arti- 
cles 121  and  180 
would  japply. 
But  purchaser 


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504  THB  8ECOND  8CHSDULI,  FIR8T  DIVISION — SUITS.       [AKT.  130 


_        .   ..         .      ..  Period  of 

Description  of  suit.  |       Umitation. 


\j 


Time  from  which  period 
begins  to  ran. 


for  hit  suit. 


Part  VIII. 
|Twelve  years. 

•t  a  revenue  us  that  this  period  of  twelve  years  would  be  subject  to 
iwei^yew?^  the  limitation  of  60  years,  which  would  be  a  bar  to 
Government.  In  other  words,  if  the  period  of  60  years 
expired  before  the  expiry  of  the  twelve  years'  period  m 
any  case  in  which  the  purchaser  would  be  subject  to  the 
60  years'  rule,  such  purchaser  would  only  have  so  much 
of  the  twelve  years'  period  as  was  also  covered  by  the 
60  years'  period." 
Possession  for        (h)     In  a  suit  instituted  in  1877,  A  prayed  for  a  de- 


twewe*  years  claration  that  he  had  a  lakheraj  title  to  certain  lands : 
thcTriffht  to  as-  the  defendant  stated  that  the  lands  for  a  declaration  of  a 
Presumption,  title  to  which  A  now  sued  formed  part  of  certain  lands 
(Marc  .)  whicn  na(i  been  the  subject  of  resumption  proceedings, 
which  were  terminated  in  1863,  by  a  decree  declaring 
that  the  lands  which  were  the  subject  of  that  snit,  in- 
cluding the  lands  now  claimed  by  A,  were  not  lakheraj. 
It  being  found  as  a  fact,  that  A  had  neither  been  a  party 
to,  nor  been  represented  in,  the  resumption  proceedings, 
that  he  had  been  in  quiet  and  undisturbed  possession  of 
the  lands  which  he  now  claimed  for  more  than  twelve 
years  before  the  institution  of  his  suit,  and  that  proceed- ' 
ings  had  been  taken  by  the  defendant  calculated  to  dis- 
turb such  possession,  it  was  held  that  A  was  entitled, 
under  section  42  of  Act  I  of  1877,  to  the  declaration 
prayed  for.  It  was  further  held  that  although  the  onus 
of  proof  lay  on  the  plaintiff,  it  was  not  necessary  for  him 
to  prove  that  the  lands  claimed  by  him  to  be  held  as 
lakheraj  had  been  held  rent-free  from  before  the  date  of 
the  permanent  settlement ;  but  it  was  sufficient  for  him  to 
prove  that  the  defendant  was  at  the  time  of  the  institution 
of  the  suit  debarred  by  lapse  of  time  from  instituting  a 
suit  for  the  resumption  or  assessment  of  rent  upon  the 
land.  Abhoy  Churn  Pal  v.  Kally  Pershad  Chatterjee.W 
I.  L.  R.,  5  Calo.,  949. 


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ART.  131]       THK  SKCOND  8CHKDULB,  FJB8T  DIVISION BOITB. 


505 


Description  of  suit. 


Period  of  , 
limitation. 


Time  from  which  period 
begins  to  run. 


131. — To  establish  a  periodi- 
cally recurring  right. 


(a)     (No.  131,  Act  IX.) 


Part  VIII 
Twelve  years.  When  the  plaintiff  is 
first  refused  the  en- 
joyment  of  the  right. 
Right  to  receive  malikana  Periodically  re- 
atmually,  is  a  periodically  recurring  right.  Gopi  Nath  L  Right'to  re' 
Chohey  v.  Bhugwat  Pershad.W  Rent  falling  due  at  certain  ^iJ^eJ^na; 
periods,  and  the  failure  to  pay  it  becomes  a  recurring  pay  rent  failing 

.  .  _  ,    w        .     t»  -rr        •    ™        j         due  at   certain 

cause  of  action.     Poresh  Narain  Roy  t?.  Kassi  Chunder  periods ; 
Talukdar.(2>    In  a  suit  to  recover  burial  fees  the  right  to  2ive b^riaifeel! 
which  occurred  whenever  a  corpse  was  brought  for  burial, 
the  period  of  limitation  was  held  to  be  twelve  years  from 
the  date  of  the  first  refusal  of  the  enjoyment  of  the  right 
under  this  Article.     Bahar  Shah  t?.  Pero  Shah.*3) 

Cb  )     "  It  is  not  shown  that  any  demand  was  made  for  the  Refusal  must  be 

_  made  in  answer 

payment  of  the  allowance  on  behalf  of  the  respondent  until  to  a  demand  by 

.  or  in  behalf  of 

1872.     It  is  argued  that,  because  in  the  suit  brought  by  the  plaintiff . 

Kolanthai    Nachiar,  it    was    pleaded    that  the  payment 
ceased  to  be  due  on  the  death  of  Sivasami,  it  must  be 
taken  that  the  plea  amounted  to  a  refusal  of  the  right  of 
the  respondent ;  but,  although   it   may  be  allowed  that 
the  plea  was  equivalent  to  a  denial  of  the  right  as  apper- 
taining to  any  heir  of  Sivasami,  it  was  not  made  in  answer 
to   a  demand   by   or  on   behalf  of   the   respondent,  and 
therefore  in  our  judgment  the  period  of  limitation  is  not 
to  be  computed  from  that  period.     Consequently  we  hold 
that  the  claim  is  not  barred  by  limitation."     In  Ramnad   Claim  for 
Zemindar  v.   Dorasami,W  plaintiff   sought  for  a  decree  ance  from  «>-" 
holding  the  zemindari  liable  for  his  maintenance  at  Rs.   an  agreement  ia 
700  per  mensem,  under  the  terms  of  an  agreement  obtained   right.urrmg 
by  his  father  in  release  of  his  claim  to  the  zemindari. 
The  High  Court  held  that  the  right  sought  to  be  estab- 
lished was  a  recurring  right  and  that  the  plaintiff  was   Plaintiff  is  en- 
entitled  to  sue  within   twelve  years  from  the  date  on   within  twelve 
which  he  demanded  and  was  refused  the  right.  mand  and  refu- 

(1)  1.  L.  R.,  10  Calc.,  708.     I      (3)  24  W.  R.,  385.  **' 

(2)  I.  L.  R.,  4  Calc,  661.        |      (4)  I.  L.  R.,  7  Mad.,  341. 


64 


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THB  8KCOND  8CHKDOLE,  FIRST  DIVISION SUITS.       [AKT.  132 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Right  to  wor- 
ship an  idol  in 
torn  is  a  perio- 
dically recur- 
ring right. 


Part  VIII. 
Twelveyears. 

(C)  In  Gopee  Kishen  Gossamy  v.  Thakoor  Dass  Gos- 
samy(1>  three  brothers,  when  they  separated,  arranged 
amongst  themselves  that  each  should  worship  a  common 
idol  every  third  year  for  the  whole  term  of  forty-five  days. 
It  was  held,  following  the  decision  in  Eshan  Ghnnder  Roy 
v.  Monmohini  Dassi,<*>  that  the  right  to  such  worship  is 
a  periodically  recurring  right.  But  right  to  exclusive 
worship  is  not  a  recurring  one.  (See  Note  T,  under  Arti- 
cle 120,  p.  478.) 


132, 


-To  enforce  payment  of 
money  charged  upon 
immoveable  property. 
Explanation. — The  allowance 
and  fees  respectively 
called  mdlikdna  and 
haqqs  shall,  for  the  pur- 
pose of  this  clause,  be 
deemed  to  be  money 
charged  upon  immove- 
able property. 


Twelve  years. 


When  the  money  sued 
for  becomes  due. 


Act  XIV  of  1869 
allowed  three 
and  six  years 
for  money  suits 
on  mortgage 
deeds,according 
as  deeds  were 
and    were   not 
registered,  and 
twelve  years  to 
suits  to  enforce 
lien  by  sale  of 
property. 


Article  132  of 
Act  IX  of  1871 
led  the  courts  to 
doubt  if  it  appli- 
ed also  to  suits 
to  enforce  per- 
sonal remedies. 


(a)  (No.  132,  Act  IX.)  During  the  operation  of  Act 
XIV  of  1859,  suit  to  enforce  personal  remedy  against 
mortgagor  had  three  years  and  six  years  according  as 
the  mortgage  deed  was  duly  registered  or  not,  and  suit  to 
enforce  lieu  by  sale  of  property  had  twelve  years,  whether 
the  deed  was  registered  or  not.  Act  XIV  of  1859,  con- 
tained no  provision  similar  to  Article  132  of  Act  IX  of 
1871,  and  suits  for  the  enforcement  of  hypothecation  by 
the  sale  of  property  was  treated  as  a  suit  for  the  recovery 
"of  any  interest  in  immoveable  property"  within  the 
meaning  of  clause  12,  section  1,  of  Act  XIV  of  1859. 
Provisions  of  Article  132  of  Act  IX  of  1871,  allowed 
twelve  years  "  for  money  charged  upon  immoveable  pro- 
perty," and  this  led  the  courts  to  doubt  whether  that 
Article  was  applicable  also  to  suits  to  enforce  personal 
remedies  secured  by  a  mortgage  deed.     On  this  point  the 


(1)  I.  L.  R.,  8  Calc,  807. 


(2)  I.  L.  R.,  4  Calc,  688. 


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ART.  132]       THB  81COND  8CHEDULB,  FIRST  DIVISION — SUITS.  507 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VIII. 
Twelve  years. 

decisions  of  the  High  Courts  and  the  decisions  of  one  and  Decisions  on  its 
the  same  High  Court  are  conflicting.  oonmc«ng!  aP° 

(b)     Act  XV  of  1877,  while  retaining  Article  132  of  JEj^^Sfi 
Act  IX  of  1871,  with  a  slight  alteration,  introduced  a  new  147 of  Actxvof 
provision  by  Article  147,  giving  60  years  to  a  suit  by  a  Jher  donbt far 
mortgagee  for  foreclosure  or  sale.     This  created  a  doubt  Jnfo^SJJJ!.*0 
whether  this  special  provision  is  intended  to  cover  all  suits  gw  lien  that 
brought  by  a  mortgagee,  simple  or  usufructuary,  for  the  years  under 
realization  of  debt  by  the  sale  of  the  property  mortgaged,  Act  ix  of  i87i, 
or  whether  the  general  provision  contained  in  Article  132  fel1  underl47« 
as  regards  suits  "  to  enforce  payment  of  money  charged 
upon  immoveable   property"   must  be   construed   to   be 
subject  to   the    special   exemption,   as  regard   suits    by 
mortgagees,  contained  in  Article  147,  or  in  other  words, 
whether  the  Article  was  intended  to  cover  also  suits  to 
realise  money  due  upon  instruments  of  hypothecation  by 
the  sale  of  the  property  which  had  only  twelve  years' 
limitation  both  under  Act  XIV  of  1859,  and  IX  of  1871. 

The  Transfer  of  Property  Bill  of  1877  was  before  the  Transfer  of  Pro- 
Legislature  at  the  time  of  the  passing  of  the  Limitation  %££[  dutinc-** 
Act,  and  though  it  did  not  become  law  till  1882,  and  in  a  £ort^^d 
form  considerably  altered  from  the  Bill  of  1877,  the  latter  charge, 
recognised  the  distinction  between  mortgage  and  charge. 
Section  100  of  Transfer  of  Property  Act  enacts  "  where  it  i8  doubtful 
immoveable  property  of  one  person  is  by  act  of  parties  or  E^SunJ  by 
operation  of  law  made  security  for  the  payment  of  money  ^-^J^d!* 
to  another,  and  the  transaction  does  not  amount  to  a  mort-  tinction  be- 
gage,  the  latter  person  is  said  to  have  a  charge  on  the  pro-  and  charge. 
perty ;  and  all  the  provisions  hereinbefore  contained  as  to  a 
mortgagor  shall,  so  far  as  may  be,  applied  to  the  owner 
of  such  property,  and  the  provisions  of  sections  81  and 
82  and  all  the  provisions  hereinbefore  contained  as  to  a 
mortgagee  instituting  a  suit  for  the  sale  of  the  mortgaged 
property  shall,  so  far   as  may  be,  apply  to  the  person 
having  such  charge.*     Vendor  of  real  property  has  a  right  Vendor  of  real 
to  a  charge  on  the  property  for  the  unpaid  portion  of  JbargTon  pr£ 
the  purchase  money  and  the  vendee  has  a  charge  to  the  {^Voni^'of 
extent  of  seller's  interest  for  the  purchase  money  paid,  if  purchase 


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THE  SECOND  SCHEDULE,  FIRST  DIVISION SUITS.       [aRT.  132 


Description  of  suit. 


Period  of 
limitation- 


Time  from  which  period 
begins  to  ran. 


I  Part  VIIL  | 
Twelve  years, 
the  sale  fails  under  certain  circumstances.     Further  doubt 
was,  whether  by  introducing  Article  147,  the  Legislature 
had  in  view  the  distinction  between  a  mortgage  and  a 
charge.     The  decisions  upon  this  point  are  conflicting. 

(C)     In  Kadarsa  Bautan  v.  Baviah  Bibi/1*  a  Division 
Bench  (Scotland,  C.  J.,  Frere,  J,)  held  in  April,  1864, 
that  an  instrument  of  hypothecation  is  a  mortgage  instru- 
ment, and  that  a  suit  to  recover  the  money  lent  must  be 
mortgagor  had    brought  within  three  years  pursuant  to  Act  XIV  of  1859, 

years  according  section  1,  clause  10.     In  Pearee  Mohun  Bose  v.  Gobind 

as  the  mortgage   (jhunder,<*)  it  wag  held  ^  1868j  tnat  wnere  a  creditor 


money.  Vendee 
has  a  charge  for 
hi*  purchase 
money  if  aale 
fails. 


Decisions  of 
coons  daring 
the  operation 
of  Act  XIV  of 
l»*69t  holding 
suiU  to  enforce 
personal  re- 
medies against 


deed  was  duly 
registered  or 
not,  and  that 
suits  to  enforce 
lien  by  sale  of 
property  had 
twelve  years 
whether  the 
deed  was  regis- 
tered or  not. 


sues  to  recover  money  advanced  by  him  on  the  deposit 
of  title-deeds  of  property,  his  claim  is  governed  by  the 
limitation  applying  to  debts  ;  but  where  he  seeks  to  have 
his  lien  realized,  it  is  a  claim  to  realize  an  interest  in 
land  to  which  the  limitation  of  twelve  years  applies. 
In  Juneswar  Dass  v.  Mahabeer  Singh/3)  which  was  a 
suit  governed  by  Act  XTV  of  1859,  the  Privy  Council 
held  in  December,  1875,  that  in  an  action  brought  upon 
a  mortgage  bond  which  combines  a  personal  obligation 
with  the  pledge  of  property,  where  the  claim  is  founded 
not  upon  the  contract  to  pay  the  money,  but  upon  the 
hypothecation  of  the  land,  and  the  object  is  to  obtain  a 
sale  thereof  as  against  purchasers  under  a  subsequent 
mortgage  bond,  the  law  of  limitation  applicable  to  the 
suit  is  Act  XI V  of  1859,  section  1,  clause  12.  If  plaintiff 
sued  for  money  due  on  an  unregistered  bond  in  which 
lands  were  pledged  as  security,  it  had  three  years'  time 
under  clause  10,  section  1,  Act  XIV  of  1859.  Parushnath 
Misser  v.  Shaikh  Bundah  Ali.W  If  the  bond  was  regis- 
tered it  would  have  six  years'  time  under  clause  16. 
Seetul    Singh  v.  Scorn j  Buksh  Singh. (*)    On  the  above 

(1)  2  M.  H.  C  R.,  108.       |  (3)  25  W.  R.,  84. 

(2)  10  W.  R.,  56.  |  (4)  6  W.  R.,  132. 

(5)  6  W.  R.,  318. 


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ART.   182]       THK  8KCOND  8CHKDDLR,  FIRST  DIVISION SUITS.  509 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelve  years, 
points,  see  Nawab  Oomrao  Begum,(1)  Raja  Kaundan,W 
and  Kristna  Row.(s) 

(d)  In    Pestonji   Bezonji   v.   Abdool    Rahiman    Bin   b.  h.  held  this 
Shaik  Budoo/4)  the  plaintiff  sued  on  the  28th  April,  1881,   apply  to  a  suit 
on  a  mortgage  bond  dated  16th  February,  1870,  alleging  money-decree 
in  the  plaint  the  fact  of  the  mortgage,  bnt  praying  only  son  of  the  mort- 
for  a  money  decree.     The  deed  contained  a  personal  tin-  faf  edeea\m° 
dertaking  to  pay.     Sargent,  J.,  on  the  Original  Side  of 

the  High  Court,  held  in  June,  1880,  that  this  Article  does 

not  apply  to  the  plaintiff's  case,  who  was  too  late  in  bring-  There  is  no  rea- 

ing  the  suit  for  a  money  decree  on  the  promise  to  pay  the  piaintiS  in  a 

mortgage.     He  observes  that  there  is  no  reason  to  place  than  any  or- 

the  plaintiff  in  a  better  position  in  respect  of  obtaining 

a  money-decree  enf orcible  against  the  general  property  of 

the  defendant  than  any  of  the  ordinary  creditors. 

(e)  In  Lallubhai  v.  Naran,<6)  the  question  for  decision  B.  H.  since  held 
was  whether  this  Article  was  applicable  to  a  suit  brought  apply  to  amort- 
by  a  mortgagee  to  recover  his  debt  personally  from  the  recover  money 
mortgagor.     Article  147,  containing  special  provision  for  $3ept.  idi.) 

a  suit  by  a  mortgagee  for  foreclosure  or  sale,  gave  room  f.  b. 

to  doubt  whether  this  Article  132  was  intended  to  apply 
to  mortgages  at  all.  The  use  of  the  words  "  enforce 
payment,"  Ac.,  also  led  to  the  conclusion  that  this  Article 
was  intended  to  apply  only  to  suits  to  enforce  the  mort- 
gagee's claim  against  the  property.  A  Full  Bench  being 
of  opinion  that  the  explanation  to  this  Article,  that 
allowances  and  fees  called  malikana  and  haks  be  deemed 
to  be  money  charged  upon  immoveable  property  was 
opposed  to  the  supposition  that  the  Article  was  intended 
to  apply  to  suits  to  enforce  payment  out  of  immoveable 
property,  and  that  notwithstanding  Article  147  and  the 
meaning  of  the  word  '  charge'  in  section  100  of  the  Transfer 

(1)  1  N.-W.  P.  H.  C.  R.,  260.  I      (3)  2  M.  H.  C.  R.,  307. 

(2)  3  M.  H.  C.  R.,  92.  |      (4)  I.  L.  R.,  5  Bom.,  463. 

(5)  I.  L.  R.,  6  Bom.,  719. 


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510  THI  8BCOND  SCHEDULE,   FIK8T  D1VI8IOM SUITS.       [AST.  132 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VIII. 
Twelve  years. 

of  Property  Act,  money  lent  on  mortgage  was   money 

charged  upon    immoveable  property    in    ordinary    legal 

phraseology,   held  therefore  a  suit  by  a  mortgagee  for  a 

money-decree   was    strictly   within    the    words  of    this 

Melville,  J.,  oo-  Article.     Melville,  J.,  distinguishes  this  case  from  Pestonji 

words  "to  en-  Besonji  v.  Abdool  Bahiman  Bin  Shaik  Bndoo/1)  on  the 

of  money"  in      ground  that  the  latter  was  decided  with  reference  to  a 

this  Article  can-    7  *  ,,  i      •        .  *     * 

not  be  supposed  later  Act  and  that  substitution  of  the  words  "  to  enforce 

to  have  been 

substituted         payment  of  money"  in  this  Article  cannot  be  supposed 
tion.  to  have  been  made  without  intention. 

M.  h.  agreed  (f)     Following  the  above  decision,  the  Madras  High 

Vision!  how!8  Court  in  Davani  v  Batna,<»>  which  was  a  suit  brought 
may ^reooveS  to  recover  principal  and  interest  due  on  a  mortgage  deed, 
yt^whe^ius  dated  28th  July,  1868,  executed  by  1st  defendant  and 
ta*^*"1  on  2nd  defendant's  father,  and  also  for  a  decree  against  the 
<Apni  1881.)  defendants  for  the  balance,  if  any,  after  the  property  is 
sold,  held,  that  when  interest  is  charged  on  land,  it  may 
Decree  is  riven  be  recovered   for  twelve  years.     The  Judges   observed, 

against  defen-  "  " 

dants,b«titdoes  "  with  the  same  hesitation  as  is  expressed  by  the  learned 

not  appear  how  * 

many  years  had  Judges  of  the  Bombay  High  Court,  we  agree  with  that 
Tight  to  personal  court  that  Article  132  is  applicale."     A  decree  has  been 

remedy. 

given  against  the  defendants  also,  but  it  does  not  appear 

from  the  report  how  many  years  had  run  against  the 

right  to  enforce  personal  remedy. 

a.  h  dissented        (g)     In    Baghubar    Dayal  v.  Lachmin  Shankar,(*)  a 

d^£ioneinft?Ss!  simple  mortgage  deed  dated  5th  August,  1872,  fell  due 

to  i884.Uowed  il  on  the  12th  May,  1873.     Suit  was  brought  on  the   10th 

March,  1882.     The  Lower  Court  gave  decree  both  against 

the  property  and  person  of  the  debtor.     The  High  Court 

observing  that  they  are  not  prepared  to  follow  the  decision 

of  the  Bombay  High  Court,  held  that  this  Article  was  not 

applicable  so  far  as  relief  against  the  mortgagor  personally 

(1)  I.  L.  R.,  5  Bora.,  468.      |      (2)  I.  L.  E.,  6  Mad.,  418. 
(8)  L  L.  R.,  5  All.,  461. 


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ART.  182]        THK  8KCOND  8CHBDULK,  F1R8T  D1V18ION — sun's.  51 1 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelve  years. 

was  claimed.  In  Muhammad  •  Zaki  v.  Chatku/1)  which 
was  a  suit  to  recover  money  due  on  a  mortgage  bond,  the 
court  followed  the  view  of  the  law  taken  by  the  Bombay 
High  Court  in  the  above  Pull  Bench  case,  and  held  that 
this  Article  applied  to  such  cases.     (See  Note  L.) 

(h)  In  Bam  Din  v.  Kalka  Prasad,(2)  the  mortgagor  p.  c.  held  the 
gave  the  mortgagee  a  pledge  of  certain  moveable  property  Article  of  Act 

j     i  ♦      K  -x       i_.  iv       j  IXofl871,notto 

and  also  gave  as  a  further  security  his  personal  bond  or  apply  to  person. 

mi  ^  i  *  »       al  remedy  on  a 

covenant.     The  suit  was  instituted  after  a  lapse  of  nearly  mortgage  bond. 

,  ..  ,  ,  .....  (Dec.  1884.) 

ten  years  from  the  time  that  the  principal  and  interest 
became  due.     Their  Lordships  observe  :  "  Looking  at  the 
previous  language  with  reference  to  personal  suits  and  at 
the  language  of  Article  132,  (Act  IX  of  1871)  their  Lord-  Their  Lord- 
ships    think    great    inconveniences    and   inconsistencies  great  inoon- 
would  arise  if  they  did  not  read  the  latter  as  having  inconsistencies 
reference  only  to  suits  for  money  charged  on  immoveable  182  was  not  held 
property  to  raise  it  out  of  that  property.     That  seems  to  suit6  to  raise 
their  Lordships  what  the  Legislature  intended,  and  they  the  real  pw£ 
are  therefore  of  opinion  that  the  decision  of  the  High  discharged.0 
Court  was  right." 

(i)  In  Miller  v.  Runga  Nath  Moulick,<S)  a  mortgage  o.  h.  held  this 
deed  dated  9th  February;  1875,  provided  that  if  the  mort-  apply  to  mort- 
gagors should  fail  to  pay  the  money  secured  thereby  enforce  person- 
according  to  the  terms  thereof,  the  mortgagees  should  to  apply  only 

.....  .  _  ,         to  suit  to  enforce 

immediately  institute  a  suit  and  realize  the  amount  due  payment  of 

,  money  charged 

by  sale  of  the  mortgaged  property,  and  that  if  the  proceeds  on  immoveable 

of  such  sale  should  not  be  sufficient  to  liquidate  the  debt,  of  snch  pro- 

the  mortgagees  should  realize  the  balance  from  the  per-   (Jniy'ises.) 

sons  and   other   properties  of  the  mortgagors.     It  was 

further  agreed  that  the  principal  and  interest  secured  by 

the  bond  should  be  repaid  in  the  month  of  January  and 

February,   1876.     The   suit  was   instituted  on  the  9th 

(1)  I.  L.  R.,  7  All.,  121.  |  (2)  I.  L.  R.,  7  All.,  502. 

(8)  I.  L.  R.,  12  Calc,  889. 


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THK  8KC0ND  8CHB0ULK,  KIK8T  D1VI81QN — 8UITS.       [ART.  132 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


B.  H. 
Special  provi- 
sion of   Article 
I47applioetoall 
suits  properly 
brought  oy  a 
mortgagee  for 
foreclosure  or 
sale,  while   13S 
applies  to  suit* 
for  sale  of  pro- 
perty to  realise 
a  charge  not 
amounting  to 
mortgage. 


Part  VIII. 
Twelve  years. 

October,  1882,  to  recover  the  debt  by  the  sale  of  the  pro- 
perty and  the  balance,  if  any,  from  the  persons  of  the 
mortgagors.  It  was  held  that  the  bond  provided  for  two 
remedies  in  one  suit  and  did  not  contemplate  a  second 
suit  being  instituted  to  recover  the  balance  from  the 
persons  of  the  mortgagors  in  the  event  of  the  first 
remedy  against  the  mortgaged  property  proving  insuffi- 
cient to  pay  the  debt  in  full,  and  that  consequently  the 
cause  of  action  against  the  persons  of  the  mortgagors 
accrued  upon  the  date  on  which  the  mortgage  money 
became  due,  and  that  as  the  suit  was  instituted  more  than 
six  years  after  that  date,  the  plaintiff's  claim  was  barred  by 
limitation  so  far  as  the  personal  liability  of  the  mortgagors 
was  concerned,  and  that  this  Article  only  refers  to  suits 
to  enforce  payment  of  money  charged  upon  immoveable 
property  by  the  sale  of  such  property. 

(j)  In  Khemji  Bhagvandas  Gujar  t?.  Rama^1)  the 
plaintiff  sued  to  recover  Rs.  90,  being  the  amount  of 
principal  and  interest  due  on  two  bonds  (Exhibits  5  and  3,) 
dated  the  25th  April,  1861,  and  8th  October,  1866,  respec- 
tively, and  payable  respectively  in  ten  years  and  two 
years  from  those  dates.  Both  bonds  purported  to  be 
mortgage  bonds.  The  plaintiff  prayed  either  for  fore- 
closure or  for  sale  of  the  properties  mortgaged  and  for 
a  decree  against  the  defendants  personally.  The  suit  was 
brought  on  the  10th  August,  1882.  The  defendants  con- 
tended that  the  suit  was  barred  by  the  law  of  limitation. 
Both  the  Lower  Courts  held  that  the  personal  remedy 
against  the  defendants  were  barred ;  that  as  neither  bond 
provided,  expressly  or  impliedly,  for  foreclosure  and  sale, 
the  plaintiff  could  not  claim  the  60  years'  period  of  limi- 
tation laid  down  by  Article  147,  schedule  2,  of  Act  XV  of 
1877 ;  and  that  the  plaintiff's  clainvunder  the  bond  of  1866, 
(Exhibit  3)  was  barred  by  Article  132.  They  awarded  the 
claim  under  the  bond  of  1861,  (Exhibit  5,)  and  directed  the 
principal  and  interest  due  thereon  to  be  realised  by  the 
sale  of  the  property  hypothecated.  It  was  held  by  the 
(1)  I.  L.  R.,  10  Bom.,  519. 


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ART.  182]       THE  8SCOWD  SCHEDULE,  TIB8T  DIVISION— fiUlTB.  518 


Deeoription  of  Bait. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VIII. 
Twelve  years. 

High  Court  that  the  special  provision  of  Article  147  of 
the  Limitation  Act  (XV  of  1877)   applies  to  all  suits 
properly  brought  by  a  mortgagee,  for  foreclosure  or  sale, 
while  the  general  provision  of  Article  182  applies  to 
suits  for  sale  by  a  creditor  having  a  right  to  realise  a 
charge  not  amounting  to  a  mortgage.    Where  immoveable  Where  immove- 
property  is  made  by  act  of  parties,  security  for  the  pay-  mad^sewuSty 
ment  of  a  debt,  but  no  power  to  sell  without  the  inter-  J^^lSuS 
vention  of  a  court  is  given  to  the  creditor,  there  is  no  pressor  implied, 
*      .     i  •        •        .    j  a  .     .1  ,,.ii  the  transaction 

transfer  to  him  of  an  interest  in  the  property  until  a  decree  does  not  amount 
for  sale  has  been  made  in  his  favour,  and  the  transaction  (Maroh'im?' 
does  not  amount  to  a  mortgage.  When  immoveable  pro- 
perty has  been  so  made  security  for  the  payment  of  a 
debt,  there  can  be  no  foreclosure  by  the  creditor,  unless  the 
terms  of  the  contract  admit  of  it.  Birdwood,  J.,  remarks: 
"  It  is  not  contended  that  the  personal  claim  under  Ex- 
hibit No.  8,  dated  8th  October,  1866,  is  within  time." 

(k)  In  Govind  Bhaichand  v.  KaInak,Q>  plaintiff  filed  B.  H.  held  that 
his  suit  in  January,  1883,  to  realize  by  sale  of  the  mort-  g^to^S 
gaged  property,  a  mortgage  debt  secured  by  a  deed  dated  £^2,  wSSe 
January,  1864,  which  stipulated  among  other  tbincrs  that,  »  charge  not 

•e  xi_     j  i-j.  x         • j    ~«     x  xi_  •     x«        3  amounting  to  a 

if  the  debt  were  not  paid  off  at  the  expiration  of  seven  mortgage,  and 
years  from  the  date  of  the  mortgage,  the  same  might  be  pueato auiuita 
realized  by  the  sale  of  the  property.     The  Lower  Court  f&af£2S3K 
rejected  the  suit  as  barred  by  Article  182,  as  cause  of  £*****• 
action  arose  on  the  1st  January,  1881.     Sargent,  0.  J., 
held  :  "  Under  the  Limitation  Act  IX  of  1871,  a  suit  by 
the  mortgagee  to  realize  his  mortgage  olaim  by  sale  of  the 
mortgaged  premises  would  have  fallen  under  Artiole  132 
of  that  Act,  corresponding  with  the  same  Artiole  of  the 
Act  of  1877.     A  special  Article,  No.  147,  however,  has 
been  introduced  Into  the  latter  Act,  which  provides  for 
suits  by  a  mortgagee  for  foreclosure  and  sale,  and  places 
them,  as  regards  limitation,  on  the  same  footing  as  suits 
by  the  mortgagor,  for  redemption  had  already  been  placed 
by  Article  148,  of  the  Act  of  1871,     Such  suits,  therefore, 
since  the  passing  of  the  Act  of  1877,  must  be  regarded  as 
(1)  I.  L.  R.,  10  Bom.,  592. 
65 


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514 


THE  8K00ND  8CHXDULI,  FIRST  DIVISION — SUITS.      [ABT.  132 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


It  was  held  that 
thia  suit  falls 
under  Article 
147  as  the  mort- 
gage instru- 
ment contained 
an  implied  if  not 
express    power 
to  sell  the  pro- 
perty on  default 
of  payment  of 
money. 

O.  H.  and  A.  H. 
held  133  not  to 
apply  to  a  mort- 
gagee's suit  to 
enforce  lien  by 
sale  of  the  pro- 
perty hypothe- 
cated, while  M. 
H.  held  other- 


Money  charged 
upon  rents  and 
profits  is  money 
charged  upon 
immoveable 
property. 


Real  property 
comprehends  all 
that  would  be 
such  aooording 
to  English  Law 
and  possibly 
more. 

P.O. 
Younger 
brothers  main- 
tenance being  a 
charge  on  in- 


Part  VIII. 
Twelve  years, 

falling  nnder  that  Article.  By  the  instrument  sued  on 
the  property  in  question  was  mortgaged  to  the  plaintiff's 
father  with  an  implied,  if  not  express  power  to  sell  the 
same  in  the  event  of  the  mortgage  debt  not  being  paid  at 
the  expiration  of  seven  years,  and  the  period  of  limitation 
was  therefore,  60  years  from  the  1st  January,  1871. 
The  suit  was,  therefore,  not  barred." 

(1)  The  Allahabad  High  Court  in  Shib  Lai  v.  Gunga 
Prasad,®)  held  in  June,  1884,  that  a  suit  by  a  simple 
mortgagee  to  enforce  lien  by  sale  of  property  was  not 
governed  by  Artiole  132,  but  by  Article  147.  The  Cal- 
cutta High  Court  likewise  held  in  August,  1885,  in  Brojo 
Lai  Singh  v.  Gour  Charan  Sen.<s>  But  the  Madras  High 
Court  in  Aliba  v.  Nanu,(*>  held  in  February,  1886,  that 
such  suit  was  governed  by  Article  132  and  not  by  147. 
This  question  is  now  before  a  Full  Bench  of  the  Madras 
High  Court,  which  have  reserved  judgment. 

(m)  In  Muhammed  Gaki  t>.  Chatku,(4>  defendant 
borrowing  from  plaintiff  a  certain  sum  of  money,  executed 
a  bond  mortgaging  usufructuarily  his  entire  right  and 
share  in  a  particular  estate,  in  lieu  of  the  above-mentioned 
sum ;  and  it  was  agreed  that  the  plaintiff  might  realize  the 
debt  from  the  rents  and  profits  of  two  years,  and  that,  as 
soon  as  it  had  been  realized,  his  possession  should  cease. 
It  was  held  that  the  money  borrowed  was  money  charged 
upon  immoveable  property,  and  that  the  suit  to  recover 
it  fell  under  this  Article.  Their  Lordships  of  the  Privy 
Council  in  Maharana  Futteh  Sangji  Jaswant  Sangji 
v.  Desai  Kullianraiji  Hakoomutroiji,  <6>  ruled  that  the  ex- 
pression "  immoveable  property"  as  used  by  the  Indian 
Legislature  comprehends  certainly  all  that  would  be  real 
property  according  to  English  Law  and  possibly  more. 

(n)  Ahmad  Hossein  Khan  v.  Nihaluddin  Khan/*) 
was  a  suit  for  arrears  of  maintenance  brought  by  a 
younger  brother  against  the  elder,  who  had  succeeded  his 


1)  I.  L.  R.,  6  All.,  551. 

2)  I..  L.  R.,  12  Gala,  111. 
8)  I.  L.  R.,  9  Mad.,  218. 


(4)  I.  L.  R.,  7  All.,  120. 

(5)  13  B.  L.  R.,  265. 

(6)  I.  L.  R.,  9  Gala,  945. 


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ART.  132]       THE  SBCOND  SCHEDULE,  PI  EST  DIVISION — BU1T8.  515 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelve  years. 

deceased  father  in  the  possession  of  the  estate.    The  neritanoe  fails 
allowance  for  the  maintenance  of  a  younger  member  of  a  Article. 
family  was  charged  upon  inheritance  to  which  the  eldest 
male  member  alone  succeeded.    It  was  held  by  P.  C.  that 
the  suit  had  twelve  years. 

(O)  In  Harmukhgauri  v.  HarisukhpraeadW  the  plain-  This  Article  ftp- 
tiff  sued  in  August,  1877,  his  paternal  uncle's  widows  for  a  hakdar  agahmt 
declaration  of  his  right  to  payment  to  Desaigiri  allowance 
and  to  collect  the  rents  of  certain  lands  and  also  for 
arrears  of  allowance  and  rents.  The  Lower  Appellate 
Court  gave  decree  for  rent  also.  The  High  Court  dis- 
allowed the  claim  to  arrears  of  rent  holding  that  this 
Article  applies  to  a  case  in  which  the  person  entitled  to 
money  charged  upon  immoveable  property,  including 
haks,  claims  such  money  from  the  person  liable  originally 
to  pay  it,  the  Inamdars  of  the  village  or  the  Government. 
The  Inamdar  or  Government  or  other  person  collecting 
the  money  of  the  village  and  paying  it  to  the  vatandars 
is  liable  for  twelve  years'  claims  ;  but  when  the  money  is 
paid  to  a  person  who  is  one  of  several  persons  entitled 
to  it,  it  ceases  after  payment  to  be  charged  upon  immove- 
able property,  and  the  claim  by  another  of  them  for  his 
share  falls  under  Article  60. 

(p)     In  Chaganlal  and  others  v.    Bapubhai,**)  plain-  Suit  for  arrears 
tiff  had  obtained  a  decree  in  1861,  declaring  his  right  to  income  ofFvL 
a  share  in  the  vatan  and  awarding  him  his  share  of  the  with  an  beredi- 
arrears  of  income  for  six  years.     The  vatan  was  connected  to  which  had 
with  an  hereditary  office,  but  was  not  charged  upon  im-  declared  by  a 
moveable  property.     Under  this  decree  the  plaintiff  had  not  barred 
received  his  share  up  to  1860,  and  he,  in  the  present  suit,  was  not  paid  for 
claimed  arrears  from  1862  to  1874,  alleging  that  his  claim  shuT**™     or* 
for  1861  had  been  barred.    It  was  contended  that  the  claim 
which  had  only  six  years  under  Act  XIV  of  59,  and  which 
(1)  I.  L.  R.,  7  Bom.,  191.       |      (2)  I.  L.  B.,  6  Bom.,  68. 


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516  THB  SECOND  SCHEDULE,  PIB8T  DIV18I0N— SUItt.       [ART.  132 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelve  years. 

had  been  barred  when  that  Act  was  in  force,  could  not  be 

revived  by  Act  IX  of  1871.    It  was  held  that  the  period 

of  limitation  applicable  to  the  cape  was  twelve  years, 

cause  of  action  whether  Act  XIV  of  1869  or  IX  of  1871  applied.     Cause  of 

to  establish  title  .  .  _  _ 

and  cause  of       action  to  establish  title  and  cause  of  action  to  recover 

arrears  of  in-       arrears  of  income  resting  on  such  title  are  not  distinct 

such  title  are     and  independent  of  each  other.    Article  182  requires  a 

if  title  is  barred  plaintiff  seeking  to  establish  a  periodically  recurring 

of  income  is  also  right  to  bring  a  suit  within  twelve  years  from  the  time 

that  he  was  first  refused  the  enjoyment  of  that  right.    If 

such  plaintiff  were  to  allow  the  period  to  elapse,  he  oould 

not  be  allowed  to  gain  the  object  by  bringing  a  suit 

indirectly  for  arrears  of  income  falling  due  within  the 

period  of  limitation.     In  this  case  the  plaintiff  having 

already  obtained  a  decree  establishing  his  right,  it  was 

held  that  there  was  nothing  in  the  Limitation  Law  which 

can  be  construed  into  a  restriction  of  the  plaintiff's  right 

to  recover  the  arrears  falling  due  within  the  period  of 

Melville,  J.         limitation.     Melville,  J.,  observes  that  assuming  for  the 

observes    that 

his  decision  is  sake  of  argument  that  the  plaintiff  might  keep  his  decree 
of  any  legal  for  50  years  in  his  pocket  and  then  sue  for  arrears,  and 
p    ° p  that  there  would  be  practically  no  such  thing  as  limita- 

tion, he  does  not  see  that  there  would  necessarily  be  any 
violation  of  the  legal  principles  in  the  conclusion  he  has 
arrived  at  in  this  case. 
Boit  for  Govern-       (q)    In  Bamdutt  Singh  v.  Horakh  Narain  Singh/1) 
paid,  and  for  de-  the  plaintiff  sued  for  money  he  paid  between  1866  and 
is  a  charge  on  1878,  as  revenue  of  a   mouaa  belonging  to  defendant. 

the  estate   falls 

under  this         The  plaintiff  held  the  other  mouaa  of  the  defendant's 
**  estate  under  a  lease  by  which  he  was  to  pay  the  revenue 

of  them.     The  plaintiff's  allegation  was  that  the  defen- 
dant having  neglected  to  pay  the  revenue  on  the  mouza 
not  included  in  the  lease,  he  (plaintiff)  was  compelled  to 
(1)  I.  L.  R.t  6  Oalc,  648. 


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ABT.  132]        THB  SECOND  SCHIDULl,  FIB8T  DIVI8I0N — 8DIT8.  517 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelve  years. 

pay  it.     It  was  held  that  the  suit  was  governed  by  this 
Article  and  not  by  Article  99. 

(r)     InHnrmuzi  Begum  v.  Hirday  Narain,^)  tho  plain-   Malikana  being 
tiff,  the  purchaser  of  a  seven-anna  share  of  the  malikana  currin*  charge 
rights  in  a  certain  mouza,  sued  in  February,  1878,  the  wSLn  twelve 
defendants,  the  purchasers  of  the  remaining  nine-anna  y 
share  of  the  malikana,  to  recover  the  malikana  due  on 
seven-annas  share  from  1873  to  1877,  the  whole  having 
been  collected  by  the  defendants.     The  defendants  plead- 
ed limitation.     It  was  held  that  malikana  is  an  annual 
recurring  charge,  and  that  the  claim  is  not  barred  as  the 
sum  sued  for  became  due  within  twelve  years  preceding 
the  suit. 

(8)     In  Sirdar  Khan  t>.  Buldeo  Singh/2)  the  plaintiff  Salt  to  enforce 

,  ,      ,  \  ,    .  lien  on  confls- 

was  the  mortgagee  of  the  property  confiscated  in  the  cated  property 
mutiny.     He  asserted  his  lien  in  May,  1859,  and  when  by  limitation 

.  ,  /         ,        ,    -       ,  contained  in 

the  property  was  afterwards  granted  to  the  defendants,  Act  ix  of  isw. 
it  was  granted  subject  to  any  claims  that  might  be  made 
in  respect  of  it,  and  they,  in  June,  1859,  executed  an 
agreement  which  had  reference  to  the  plaintiff's  claim, 
binding  themselves  to  take  the  risk  of  any  lien  subsist- 
ing on  the  property.  In  July,  1861,  they  were  informed 
by  the  Collector  that  they  were  answerable  for  the  plain- 
tiff's lien.  The  plaintiff  sued  the  defendants  to  enforce 
his  lien  against  the  property.  It  was  held  that  the  suit 
was  not  barred  by  limitation  under  Act  IX  of  1859. 

(t)     In   Ganpat    Pandurang   v.    Adarji   Dadabhai,<3>    Period  of  limi- 
Westrop,  0.  J.,  observes,  "  we  think  that  the  intention  of  the  w«u>  principal 

r>  '  '  #  debt  applies  to 

parties  to  it  was  that  both  interest  and  principal  should  interest  when 

r  ...  both  are  charg- 

be  charged  upon  the  property  mentioned  in  it,  and  the  ®d  °n  ^  pro- 
subject  of  the  title-deeds  previously  deposited,  and,  there- 
fore, that  neither  the  interest  nor  the  principal  is  barred, 

(1)  I.  L.  R.,  6  Oalc,  921.      |     (2)  6  N.-W.  P.  H.  C.  R.,  99. 
(3)  I.  h.  R.,  3  Bom.,  832. 


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518 


THE  81C0UD  SCHEDULE,  FIB8T  DIVISION — BUIT8.       [AKT.  132 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


There  is  no  pro- 
vision in  IX  of 
1871,  with  res- 
pect to  interest 
on  mortgages  or 
other  incumb- 
rances as  in  the 
English  statute. 


When  a  bond 
provides  for 
payment  of  sti- 
pulated interest 
even  after  due 
date  it  is  enfor- 
ceable. 


In  the  absence 
of  an  agreement 
fixing  rate  of  in- 
terest after  due 
date,  court  must 
determine  what 
rate  would  be 
reasonable. 


Part  VIII. 
Twelve  years. 

whether  regard  be  had  to  Article  132  or  Article  149. 
Hunter  v.  Nockalds  (1  Mac.  and  Gor.  640  ;  S.  C,  14  Jur., 
256 ;  19  L.  J.,  N.  S.  Ch.,  177 ;  18  Ibid,  Ch.  407)  was 
referred  to ;  bnt  we  have  no  such  provision  in  Act  IX  of 
1871,  with  respect  to  arrears  of  interest  on  mortgages  or 
other  incumbrances,  as  the  English  Statute  3  and  4,  Wm. 
IV,  c.  27,  8.  42,  on  which  that  case  turned.  (See  Note  1, 
at  p.  144,  of  Sugden's  Real  Property  Acts,  ed.  of  1852). 
In  Davani  Ammal  v.  Ratna  Chetti,*1)  it  was  held  that  in 
suits  to  recover  the  principal  and  interest  of  a  loan 
secured  by  a  mortgage  of  immoveable  property,  interest 
for  twelve  years  is  recoverable  by  virtue  of  Article  132  of 
schedule  2,  of  the  Indian  Limitation  Act  1877. 

(u)  0  gave  B  a  bond  for  the  payment  of  certain 
money  within  a  certain  time  with  interest,  at  the  rate  of 
If  per  cent,  per  mensem,  in  which  he  agreed  that  in 
case  of  default,  the  obligee  "  should  be  at  liberty  to  re- 
cover the  principal  money  and  interest  from  his  person 
and  property,"  and  mortgaged  "  his  four-anna  share  in 
mouza  Ky  until  payment  of  the  principal  money  and 
interest."  It  was  held,  that  the  bond  contained  an  express 
contract  for  the  payment  of  interest  after  due  date  at  the 
rate  of  If  per  cent,  per  mensem,  and  that  such  contract 
was  enforceable.  Semble — that,  where  there  is  no  express 
agreement  fixing  the  rate  of  interest  to  be  paid  after  the 
date  a  bond  becomes  due,  an  agreement  to  pay  at  the  rate 
of  interest  agreed  to  be  paid  before  such  date,  cannot  be 
implied,  but  the  court  must  determine  what  would  be  a 
reasonable  rate  to  allow.  In  such  a  case  the  rate  agreed 
to  be  paid  before  such  date  may  ordinarily  be  regarded 
as  the  rate  to  be  allowed  after  such  date,  provided  that 
the  rate  agreed  to  be  paid  before  such  date  is  not  exces- 
sive.    Baldeo  Panday  v.  Gokal  Rai.W 

(1)  I.  L.  E.,  6  Mad.,  417.       |     .  (2)  I.  L.  E.,  1  All.,  603. 


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AKT.  183 — 184]    THl  SECOND  SCHEDULE,  FIRST  DIVI8ION — 8UITS.         519 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII 
Twelve  years. 


133. — To  recover  moveable 
property  conveyed  or 
bequeathed  in  trust,  de- 
posited or  pawned, 
and  afterwards  bought 
from  the  trustee,  depo- 
sitary or  pawnee  for  a 
valuable  consideration, 

134. — To  recover  possession  Do. 
of  immoveable  pro- 
perty conveyed  or  be- 
queathed in  trust  or 
mortgaged  and  after- 
wards purchased  from 
the  trustee  or  mort- 
gagee  for  a  valuable 
consideration. 

(a)  In  these  Articles  and  in  section  10  of  the  Act  of 
1877,  the  Legislature  have  omitted  the  words  "  good  faith" 
used  in  the  explanation  to  section  10,  and  in  the  corres- 
ponding Articles  of  Act  IX  of  1871.  This  appears  to 
have  been  made  with  reference  to  the  observations  of 
Green,  J.,  in  Manik  Lai  Atmaram  v.  Manchershi,*1)  in 
which  he  remarked  that  the  Indian  Limitation  Act  was 
less  liberal  than  the  English  Statute  in  the  protection  of 
a^purchaser  for  value.  As  Act  IX  of  1871  required  a 
purchaser  from  trustee  to  prove  not  only  that  he  gave 
value,  but  that  the  purchase  was  bond  fide,  while  lapse  of 
time  under  the  English  Act  protected  him  whether  pur- 
chase was  bond  fide  or  not.  It  has  been  decided  by  the 
highest  tribunal  in  England,  that  a  vendee,  for  value  of 
lands  devoted  to  charity,  might  rely  upon  limitation  as  a 
defence.  (See  Note  2),  under  section  10,  p.  51,  and  Note 
Q,  pp.  54,  55.) 

(b)  In  Bhagwan  Sahai  v.  Bhagwan  Din,(*)  the  Allaha- 
bad High  Court  held : — It  was  not  intended  that  property 

(1)  I.  L.  E.,  1  Bom.,  281.      |         (2)  I.  L.  E.,  9  AIL,  97. 


The  date  of  the  pur- 
chase. 


The  date  of  the  pur- 
chase. 


The   words 
"good   faith" 
used  in  Act  IX 
of   1871,    have 
been  omitted  in 
the  Act  of  1877. 


Act  IX  of  1871 
required  a  pur- 
chaser to  prove 
not  only  he  gave 
value,  out  that 
purohase  was 
bondJUU. 


This  Article  is 
intended  to  pro- 
tect a  purchaser 
who  believes 
that  his  vendor 
had  power  to 


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520         THE  8BCOND  SCHEDULE,  FIRST  DIVISION — SUITS.    [ART.  133 134 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


sell  absolutely 
and  not  the 
interest  of  a 
mortgagee. 
(Nov.  1886.) 


Suit  by  son  as 
trustee  for  trust 
property  sold 
by  court  for 
father's  debt  in 
execution  of  the 
decree  obtained 
against   son  as 
representative 
of  nis  father  and 
brothor. 


Hindu  Law 
makes  no  dis- 
tinction be- 
tween religious 
endowment  to  a 
household  idol 
and  to  one 
which  is  for  the 
benefit  of  the 
general  public 


Mortgagee's 
suit  for  pro- 
perty pur- 
chased by  him- 
self under 
power  of  sale. 


Part  VIII. 
Twelve  years, 

which  would  pass  on  the  sale  by  a  mortgagee  of  his 
interest  should  come  within  the  scope  of  Article  134, 
schedule  2,  of  the  Limitation  (Act  XV  of  1877.)  That 
Article  was  intended  to  protect,  after  the  expiration  of 
twelve  years  from  the  date  of  a  purchase,  a  person  who, 
happening  to  purchase  from  a  mortgagee,  had  reasonable 
grounds  for  believing  and  did  believe,  that  his  vendor 
had  the  power  to  convey,  and  was  conveying  to  him  an 
absolute  interest  and  not  merely  the  interest  of  a  mort- 
gagee :  The  court  referred  to  Radanath  Doss  v.  Gisborne 
and  Go./1)  Piarey  Lai,  v.  Saliga,(*)  and  Kamal  Singh  v. 
Batul  Fatima.<8> 

(C)  In  Eupa  Jagshet  v.  Krishna ji  Govind/4)  the 
owner  of  certain  land  assigned  it  in  1870,  by  a  deed  of 
gift,  to  the  plaintiff  and  his  deceased  brother  and  to  their 
descendants  in  perpetuity  in  consideration  of  their  per- 
forming the  worship  of  the  donor's  family  God.  In  1874 
and  1875,  the  right  of  the  plaintiff's  father  and  brother 
(deceased)  were  sold  by  auction  in  execution  of  money 
decrees  obtained  against  the  plaintiff  as  their  representa- 
tive. On  the  10th  June,  1881,  this  suit  was  brought  to 
recover  the  property  from  the  purchaser.  It  was  held 
that  the  suit  was  not  barred  until  twelve  years  from 
dispossession,  there  being  no  necessity  to  set  aside  the 
sale.  The  Hindu  Law,  unlike  the  English  Law  with 
respect  to  charities,  makes  no  distinction  between  a 
religious  endowment  having  for  its  object  the  worship  of 
a  household  idol  and  one  which  is  for  the  benefit  of  the 
general  public. 

(d)  In  Purmanand  Das  Jiwandas  v.  Jamnabai,($  the 
plaintiff,  as  assignee  of  a  mortgage  of  March,  1867,  of  an 
undivided  moiety  of  a  land  and  house  thereon  sold  the 

(1)  14  M.  I.  A.,  1.  I      (3)  I.  L.  R.,  2  All.,  460. 

(2)  I.  L.  R.,  2  All.,  394       |      (4)  [.  L.  R.,  9  Bom.,  169. 

(5)  I.  L.  R.,  10  Bom.,  49. 


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ART.  135]      THI  SECOND  SCHEDULE,  FIRST  DIVISION — SUITS. 


521 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelve  years. 

undivided  moiety  by  public  auction  in  April,  1872,  and 
bought  in  the  name  of  his  brother-in-law.  The  mortgagor 
assented  to  this  purchase  in  August,  1882.  The  plaintiff 
sued  for  possession  of  his  moiety.  It  was  held  that 
obstruction  by  persons,  who,  while  claiming  a  lien  on  the 
property,  admitted  the  mortgagor's  title  to  the  property, 
was  not  adverse  possession  as  against  the  mortgagee's 
title  as  purchaser.  It  was  further  held  that  a  mortgagee 
purchasing  the  mortgaged  property  with  the  consent  of  the 
mortgagor,  under  the  power  of  sale  contained  in  the 
mortgage  deed,  acquires  an  unimpeachable  title  derived  Mortgagee  by 

Dure  has©  ac~ 

from  the  power  of  sale,  which  is  however  distinct  from  quires  an  mum- 
and  overrides  his  title  as    a  mere  incumbrancer:    the  which  is  distinct 
effect  of  such  purchase  being  to  vest  the  ownership  of,  a  mere  incumb- 
and  the  beneficial  title  to,  the  property  for  the  first  time 
in  himself,  who  had  been  previously  a  mere  incumbrancer. 


When  the  mortga- 
gor's right  to  pos- 
session determines. 


135. — Suit  instituted  in  a  Twelve  years. 
Court  not  established 
by  Royal  Charter  by  a 
mortgagee  for  posses- 
sion of  immoveable 
property  mortgaged. 

(a)     In    Ghinarain  Dobey    v.   Ram    Monaruth  Ram  Under  the  Act 

Dobey/1)  it  was  held  that  under  the  Limitation  Act  of  gagee  who  ha* 

1871,  a  mortgagee  who  has  taken  foreclosure  proceedings  closure  proceed- 

may  bring  a  suit  for  possession  at  any  time  within  twelve  for  possession 

years  from  the  expiration  of  the  year  of  grace.     Article  within  twelve 

.  years  from  the 

135  of  schedule  2  does  not  apply  to  such  a  case.     This  deci-  expiration  of 

sion  was  followed  in  Bromhomoyi   Dasi  v.  Jugobundhu  grace. 

Ghose,(2)  in  which  default  was  made  on  the  12th  June, 

1859,  by  the  mortgagor  under  a  mortgage,  which  stipulated 

that  if  default  should  be  made  on  that  date,  the  mortgagee 

should  become  the  owner  of  the  mortgaged  property  by  Another  case  of 

O.  H.  dated. 
(Dec.  1880.) 


(1)  0.  L.  R.,  7,  580. 
66 


|         (2)  0.  L.  E.,  7,  583. 


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522 


THE  8EC0ND  SCHEDULE,  FIE8T  DIVISION — 8UIT8.       [ART.   135 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Right  to  posses- 
sion  becomes 
complete  after 
decree  for  pos- 
session is  ob- 
tained. 


Mortgagee's 
right  to  posses- 
sion under  a 
deed  expressly 
allowing  him  to 
take  possession 
on  default  com- 
mences from 
default. 
(May  1883.) 

In  the  absence 
of  such  stipula- 
tion right  ac- 
crues at  the, 
expiry  of  the 
year  of  grace. 


P.O. 
Second  mort- 
gagee in  posses- 
sion under  de- 
cree for  it,  dis- 
possessed by 
first  mortgagee 
by  decree,  can 
recover  posses- 
sion within 
twelve  years 
from  date  of 
redemption  by 
mortgagor. 
(Nov.  1876.) 


Part  VIII. 
Twelve  years. 

purchase  and  entitled  to  possession.  The  mortgagee  in 
October,  1866,  foreclosed  the  mortgage  tinder  Regulation 
XVII  of  1806,  the  year  of  grace  expiring  in  the  following 
October,  and  on  the  10th  of  April,  1878,  or  more  than 
twelve  years  from  the  date  of  the  default,  sued  for  pos- 
session of  the  property.  It  was  held  that  the  suit  was 
not  barred  as  the  right  to  possession  did  not  become 
complete  until  after  the  decree  for  possession. 

(b)  Under  a  mortgage  deed,  which  by  its  express 
terms  allows  the  mortgagee  a  right  to  take  possession  upon 
default  by  the  mortgagor  in  payment  of  the  mortgage 
money,  the  mortgagee,  as  absolute  owner  of  the  property, 
has  twelve  years  from  the  time  at  which  his  right  to 
possession  commences,  in  which  he  may  bring  his  suit  for 
possession.  But  where  there  is  no  such  stipulation  in 
the  mortgage,  the  right  of  the  mortgagee  to  take  possession 
does  not  accrue  until  after  the  expiration  of  the  year  of 
grace.    Modun  Mohun  Chowdhry  v.  Ashad  Ally  Beparee .0) 

(c)  Second  mortgagee  obtained  a  decree  for  pos- 
session and  obtained  possession  of  property  in  1846.  The 
first  mortgagee  subsequently  brought  a  suit  as  such, 
for  possession  against  the  mortgagor,  and  the  second 
mortgagee  obtained  possession  in  1847.  In  1870,  the 
heirs  of  the  mortgagor  having  paid  the  debt  due  to  the 
first  mortgagee  and  resumed  possession,  whereupon  the 
second  mortgagee's  heirs  applied  to  be  restored  to  pos- 
session in  execution  of  the  decree  already  obtained  in 
1846.  This  application  having  been  rejected  on  the 
ground  that  that  decree  had  been  already  fully  executed, 
the  heirs  of  the  second  mortgagee  brought  a  suit  to 
recover  possession.  The  High  Court  rejected  the  suit 
as  barred,  remarking  that  no  right  of  action  accrued  to 
the  second  mortgagee  by  reason  of  the  satisfaction  of  the 

(1)  I.  L.  B.,  10  Calo.,  68. 


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ART.  135]       THE  SECOND  SCHEDULE,  FIBST  DIVI8I0N — SUIT8.  523 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VIII. 
Twelve  years. 

debt  of  the  first  mortgagee  and  recovery  of  possession  p.  c.  held  that 
by  the  mortgagors  or  their  heirs.     Their  Lordships  of  accrued  from 
the  Judicial  Committee,  reversing  the  decision  of  the  High   the  heirs  of  the 
Court,  held  that  the  second  mortgagees  were  entitled  to  somed  poMee- 
possession  and  that  their  cause  of  action  accrued  and 
limitation  ran  against  them  from  the  time  when  the  heirs 
of  the  mortgagor  resumed  possession.     Narain  Singh  and 
others  v.  Shimbhoo  Singh  and  others.  0) 

(d)     In  Shurnomoyee  Dasi  v.  Srinath  Das,<*>  certain  suit  by  a  mon- 
property  situate  in  the  District  of  the  24-Pergunnahs  was  signee  for  pos- 
mortgaged  by  the  owner  thereof  on  the  17th  November,  the  mortgagors' 

vfiiiddM    hold 

1865,  to  secure  the  repayment  of  mouey  lent  with  interest  barred  under 
on  the  1 7th  February,  ]  866.  The  mortgagor  and  mort-  (Nov.  1886.) 
gagee  were  Hindus,  and  the  mortgage  was  in  the  ordinary 
form  of  an  English  mortgage  of  real  property.  After 
the  date  of  mortgage  and  before  the  15th  of  February, 
1872,  the  mortgagor  sold  various  portions  of  the  mort- 
gaged property.  On  the  15th  of  February,  1872,  the 
mortgagee  filed  a  foreclosure  petition  in  the  court  of  the 
Judge  of  the  24-Pergunnahs  under  Regulation  XYII  of 
1806.  Notice  of  the  petition  was  served  on  the  mortgagor 
alone.  Neither  principal  nor  interest  was  paid  by  the 
mortgagor,  and  on  the  6th  September,  1882,  the  assignee 
of  the  mortgagee  filed  a  suit  for  foreclosure  against  the 
mortgagor,  and  the  purchasers  of  the  various  portions 
of  the  property  under  the  provisions  of  the  Transfer  of 
Property  Act,  praying  for  foreclosure  and  sale.  The 
mortgagor's  right  to  possession  determined  on  the  date 
of  default,  namely, .  February,  1866,  and  the  suit  for 
possession  would  be  barred  on  the  17th  February, 
1878.  The  suit  was  barred  against  the  mortgagor  him- 
self. It  was  held  that  as  against  the  purchasers  from  the 
mortgagor  the  suit  was  barred  under  this  Article. 

(1)  I.  L.  E.,  1  All.,  326.      |    (2)  I.  L.  R.,  12  Calc,  614. 


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524 


THl  81COND  SCHEDULE,  FIRST  DIVISION — SUITS.       [ABT.  186 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


136. — By  a  purchaser  at  a 
private  sale  for  posses- 
sion of  immoveable 
property  sold,  when 
the  vendor  was  out  of 
possession  at  the  date 
of  the  sale. 


Part  VIII. 
Twelve  years. 


When  the  vendor  is 
first  entitled  to  pos- 
session. 


c.  H. 

Suit   against  a 
vendor  himself 
when   he   re- 
covers posses- 
sion does   not 
fall  under  this 
Article  bat  un- 
der Article  144. 
(July  1886.) 


A.  H.   held 
either  this  Ar- 
ticle or  144  ap- 
plied to  a  simi- 
lar case. 
(Feb.  1880.) 


(a)  In  Ram  Prosad  Janna  t>.  Lakhi  Narain  Pradhan,W 
a  vendor  who  was  at  the  time  out  of  possession  of  certain 
immoveable  property,  sold  a  share  in  it  to  a  purchaser  by 
a  kobala ;  after  the  date  of  the  sale,  the  vendor  recovered 
possession,  and  the  purchaser,  within  twelve  years  of  the 
vendor  having  so  recovered  possession,  but  more  than 
twelve  years  after  he  had  been  originally  dispossessed, 
instituted  a  suit  to  obtain  possession  of  the  share  covered 
by  the  kobala.  It  was  held  by  the  High  Court  that  tbis 
Article  is  not  intended  to  apply  to  a  suit  brought  against 
the  vendor  himself  upon  his  recovering  possession  and 
that  the  suit  was  governed  by  Article  144.  In  Sheo  Pra- 
sad v.  Udai  Singh/2)  which  is  a  suit  of  a  similar  nature, 
A.  H.  held,  that  either  this  Article  or  Article  144  was 
applicable.  In  this  case  the  plaintiff  obtained  on  the 
22nd  October  1865,  a  sale  deed  from  the  defendant  who 
then  was  not  in  possession,  although  his  title  to  it  had 
been  declared  by  a  decree  dated  9th  August,  1864,  against 
which  an  appeal  was  pending  before  the  Privy  Council. 
The  defendant  obtained  possession  of  a  larger  portion 
of  the  property  on  the  24th  February,  1870,  and  of  the 
remainder  on  the  23rd  August,  1872.  The  deed  provided 
that  the  vendee  should  remain  in  possesion  from  the  date 
that  the  vendor  obtained  possession  in  execution  of  his 
decree.  The  Lower  Court  rejected  the  suit  as  barred 
under  Article  1 13. 


(1)  I.  L.  R.,  12  Calc,  197. 

(2)  I.  L.  B.,  2  All.,  718. 


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ART.  137 — 138]     THE  SECOND  SCHEbtJLE,  FIR8'H>IVI8ION — SUITS.        525 


Description  of  suit. 


137. — Like  suit  by  a  pur- 
chaser at  a  sale  in  exe- 
cution of  a  decree,  when 
the  judgment-debtor 
was  out  of  possession 
at  the  date  of  the  sale. 


Period  of 
limitation. 


Part  VIII. 
Twelve  years. 


Time  from  which 
period  begins  to  run. 


When  the  judgment- 
debtor  is  first  enti- 
tled to  possession. 


vendor  is  out  of 
possession,  falls 
under  this  Arti- 
cle. 


(a)  In  Ram  Lakhi  v.  Durga  Oharan  Sen/1)  plaintiff  suit  by  pu 
sued  for  a  third  share  which  he  purchased  from  a  Hindu  ohmeT  w 
widow  who  professed  to  have  inherited  it  from  her 
husband  who  was  a  member  of  a  joint-family.  The  Dis- 
trict Munsif  rejected  the  suit  as  barred.  The  Lower  Ap- 
pellate Court  decreed  the  property  on  the  ground  that 
the  defendants  had  failed  to  show  under  Article  127,  that 
exclusion  from  the  joint-family  property  was  known  to 
the  vendor  more  than  twelve  years  ago.  The  High  Court  Any  stranger 
was  of  opinion  that  any  stranger  purchasing  joint-family  Jo1nt!temify 
property  from  a  member  of  the  family  is  in  the  same  {£ePIame  %^ 
position,  as  regards  limitation,  as  the  purchaser  of  any  ***"*  ""  — — u~ 
other  property,  and  that  in  Article  127,  the  Legislature 
intended  to  make  an  exception  from  the  general  rule  of 
limitation  in  favor  of  Hindus  and  others,  to  whom  the 
law  of  joint-family  property  specially  applies,  and  that 
the  word  "  plaintiff"  in  Article  127  means  the  member  of 
the  family  and  was  not  intended  to  apply  to  a  purchaser 
from  that  member,  and  held  that  the  material  issue  was, 
when  did  the  possession  of  the  defendant  become  adverse  intended  to  ap- 

.  .  ply  to  a  pur- 

to  the  plaintiff  or  to  the  person  under  whom  he  claims  by  chaser  from  a 
purchase.     Garth,  C.  J.,  observes  that  the  onus  lies  upon  famUyf  ° 
the  purchaser  to  show  that  the  exclusion,  if  any,  took 
place  within  twelve  years  of  the  institution  of  the  suit. 


tion  as  purcha- 
ser of  any  other 
property  as  to 
limitation. 


"Plaintiff"  in 
Article  127 
means  the  mem- 
ber of  the  fami- 
ly and  was  not 


138. — By  a  purchaser  of  land 
at  a  sale  in  execution 
of  a  decree,  for  posses- 
sion of  the  purchased 
land,  when  the  judg- 
ment-debtor was  in 
possession  at  the  date 
of  the  sale. 


Twelve  years. 


The  date  of  the  sale. 


(1)  I.  L.  B.,  11  Calc,  680. 


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526  THC  8ECOBD  8CHKDDLI,  WB8T  DIVJ8IOH — 8UIT8.       [AST.  138 


Description  of  rait. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


i  Past  VIII. 
•Twelve  years. 

in  an  aaetkm        (a)     In  Anand  Coomari  v.  Ali  Jamin,^)  the  defendant 

for  possession,  executed  a  conveyance  of  his  property   to  one  Abdnl 

▼etidor'^possM-  Byhim,  on  the  26th  September,  1867,  and  acknowledged 

rate  sale  oat    its  execntion  on  the  same  day  to  the  registrar,  who  regis- 

advem>  to  the  tered  it  on  the  19th  October,  1867.     The  vendee  never 

w&a  entered  into  possession.     The  plaintiff,  in  execntion  of  bis 

decree  obtained  against  Abdnl  By  him,  purchased  the  same 

property  in  Conrt  sale  on  the  14th  November,  1874,  and 

sned  the  defendant  on  the  25th  September,  1879,  for 

possession.     The  conrt  held  that  the  plaintiffs  claim  was 

barred,  observing  that  the  case  of  Tew  t>.  Jones  was  "  an 

authority  for  holding  that  in  the  case  of  a  sale  ont  and 

This  construe-     ont,  the  vendor  remaining"  in  possession,  that  possession  is 

tion  is  in  har-  '  ,  m,  .         .      .      , 

mony  with  the     adverse  to  the  purchaser.     That  construction  is  in  har- 

Inference  to  be  f 

drawn  from  Ar-  mony  with  the  inference  to  be  drawn  from  Articles  loo 

tides  196  and 

137.  and  137  of  the  Limitation  Act." 

Auction  our-  (*b)     In  Jagan  Nath  v.  Baldeo,W  plaintiff  purchased 

sue  for  posses-  the    property  in    auction  in  October,   1873.     The  same 

sion  on  failing  *  . 

in  a  summary  property   was   attached  for  another  decree  against  the 
CFebTi883.)        debtor,  and  the  plaintiff's  objection  petition  was  disallowed 
and  the  property  was  sold  and  purchased  by  a  third  party. 
The  plaintiff  brought  the  present  suit  in  July,  1881,  for 
possession  against  the  judgment-debtor,  who  held  posses- 
sion, and  against  the  subsequent  auction  purchaser.     It 
was  held  by  a  Full  Bench  in  February,  1883,  that  the  suit 
G.  p.  c.  con-     was  maintainable.     Whether  an  auction  purchaser  took 
•ion  for  deli  very  delivery  or  not  of  possession  of  the  property,  his  suit  for 

of  possession  in  ..  _  _  ,  ,    .       n.    .     _  . 

execntion  does    possession  is  not  barred  by  reason  of  the  Uivil  Procedure 
for  possession.    Code  containing  special  provisions  for  putting  au  auction 

purchaser  in  possession  in  execution  proceedings.    Sevu  v. 

Muttusami.fc) 
b.  h.  (c)    In  Govind  Bagunath  v.  Govinda  Jacoji/4)  the 

Vendee  of  ano-        v    ,  ^  ^  J  ' 

n^htQl^w1se  (1)  I.  L.  R.,  11  Calc,  229.      I    (8)  I.  L.  B.,  10  Mad.,  53. 

(2)  I.  L.  E.,  6  AU.,  805.  |    (4)  I.  L.  E.  1  Bom.,  600. 

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ART.  138]       THE  SECOND  SCHEDULE,  FIRST  DIVISION — SUITS.  527 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VIII. 
Twelveyears. 

plaintiff,  as  vendee  of  an  anction  purchaser's  right,  sued  sue  for  posses- 
for  possession.  The  Lower  Appellate  Court  rejected  the  (Nov.  1876.) 
suit  as  it  thought  the  transfer  before  the  purchaser  had 
obtained  possession  was  against  public  policy  and  justice. 
The  High  Court  held  in  November,  1876,  that  there  was 
nothing  in  either  the  Hindu  or  the  English  Law  which 
debars  a  third  person  from  taking  an  assignment  of  such 
property  from  the  auction-purchaser  although  it  has  not 
been  reduced  into  possession  by  him.  In  Seru  Mohun  v.  c.  H. 
Bhagoban  Din  Pandey/1)  auction  purchaser,  who  pur- 
chased on  the  21st  December,  1878,  sold  it  to  the  plaintiff 
on  the  5th  July,  1879,  who,  failing  to  get  possession  by 
enforcement  of  the  courts'  order,  brought  this  suit  for 
possession.  The  Lower  Court  rejected  the  suit  as  barred 
by  Article  13.  It  was  held  that  the  suit  was  maintainable 
under  this  Article.     Iswar  Pershad  Gurgo  v.  Jai  Narain  c.  H. 

Giri/2)  was  brought  by  the  plaintiff  as  assignee  of  the 
heir  of  the  certificated  auction-purchaser  of  certain  real 
property  sold  for  a  decree  against  the  defendant  on  the 
22nd  April,  1876.     The  plaintiff's  father  was  the   real 
purchaser  and  the  certificated  purchaser  was  a  benamidar 
for  him.     The  Lower  Appellate  Court  rejected  the  suit 
on  the  ground  that  the  suit  was  not  maintainable.     The 
benami  purchaser  obtaining  a  sale  certificate  in  May,  1876, 
applied  for  possession  in  October,  1876.     The  application  Application  for 
was  opposed  by  the  debtor's  wife  and  the  objection  was  allowed  in 
overruled  in  March,  1877,  and  possession  was  ordered  to  Betting  aside 
be  given  on  the  same  date.     The  debtor's  wife's  regular  objeotion,  and 

.         her  sait  was  re- 
sult was  disposed   of  in  June,  1879,  when  the  auction  jected  in  June, 

purchaser  died  without  taking  possession  under  the  order 

of  March,  1877.     The  plaintiff  after  taking  an  assignment 

from  the  purchaser's  son  in  May,   1880,  stating  in  the 

conveyance    that  the    purchase    was    benami  for  the 

(1)  I.  L.  B.,  9.  Gale,  602.       |    (2)  I.  L.  B.,  12  Calo.,  169. 


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528 


THE  SECOND  SCHEDULE,  FIRST  DIVISION SUITS        [ART.  138 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


The  order  for 
delivery  of 
March,  1877, 
was  set  aside 
by   the  court 
on  the  defen- 
dant's plea  of 
limitation. 
Held  the  re- 
gular suit  would 
He. 


Auction  pur- 
chaser's suit 
brought  14 
years  after  pur- 
chase, held  not 
saved  by   sym- 
bolical posses- 
sion or  momen- 
tary and  partial 
possession. 


This  is  the  case 
of  a  dwelling 
house  of  whioh 
actual  posses- 
sion might  have 
been  given. 


Auction  pur- 
chaser's minor 
son's  suit  for 
lands   after 
formal  posses- 
sion was  had. 


Part  VIII. 
Twelve  years. 

plaintiff's  father  obtained  from  the  court  in  March,  1881,  a 
sale  certificate  and  an  order  for  possession.  The  defen- 
dant pleaded  that  the  application  was  barred  and  the 
court  set  aside  the  order  for  delivery.  The  plaintiff  in- 
stituted the  suit  in  January,  1883,  for  possession.  It  was 
held  the  suit  will  lie  when  it  is  shown  that  an  attempt 
has  been  made  to  obtain  possession  in  execution  proceed- 
ings and  that  such  attempt  has  been  unsuccessful.  The 
court  remanded  the  suit  to  be  decided  on  the  merits. 

(d)  In  Shoteenath  Mookerjee  v.  Obhoy  Nund  Roy/1) 
the  plaintiffs  on  the  31st  January,  1863,  purchased  a 
half  share  in  a  certain  house  at  a  sale  in  execution  of  a 
decree,  but  took  no  steps  at  the  time  to  take  possession 
of  it.  In  1869,  the  Nazir  of  the  court  was  directed  to 
put  them  into  possession,  and  he  gave  them  symbolical 
possession.  Afterwards,  in  1871,  the  plaintiffs,  again 
with  the  assistance  of  the  Nazir,  entered  upon  and  for 
the  space  of  about  a  minute  remained  in  possession  of 
one  of  the  rooms  in  the  house,  until  they  were  turned 
out  by  the  defendants.  On  the  18th  November,  1876, 
the  plaintiffs  filed  a  suit  praying  for  a  declaration  of 
right,  and  for  a  partition,  and  to  be  put  into  separate 
possession  of  the  share  that  might  be  allotted  to  them  on 
such  partition.  It  was  held,  that  neither  the  symbolical 
possession  given  to  them  in  1869  by  the  Nazir  nor  the 
momentary  and  partial  possession  which  they  had  obtained 
in  1871,  was  sufficient  to  save  limitation ;  and  that  as 
their  suit  was  brought  on  the  18th  November,  1876,  more 
than  twelve  years  after  the  31st  January,  1873,  when 
they  first  became  entitled  to  possession,  it  was  now  barred 
by  limitation. 

(e)  In  Koonjo  Mohun  Dass  v.  Nobo  Coomar  Shaha,<2> 
A  purchased  the  right,  title,  and  interest  of  B,  a  judg- 

(1)  LLB.,6  Calo^  381.        |        (2)  I.  L.  R.,  4  Calo.,  216. 


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ART.  138]        THE  SECOND  SCHEDULE,  FIRST  DIVISION — SUITS.  529 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelve  years. 

ment  debtor,  in  certain  lands,  at  an  auction  sale  in  exe- 
cution of  a  decree  in  October,  1863,  was  put  in  formal 
possession  in  January ,  1865,  and  died  without  ever  having 
obtained  actual  possession.    After  his  decease  a  suit  was 

filed  in   September,  1875,  on  behalf  of  his  minor  son  0,  it  was  heidthat 

...  .if  judgment- 

against  the  defendants  who  obstructed  his  taking  actual  debtor  was  in 

.  _  possession 

possession.    It  was  held,  that  if  B  was  in  possession  at  the  within  twelve 

time  of  the  sale,  that  is  to  say,  within  twelve  years  before  Subclaim  was 
the  institution  of  the  suit,  0  was  not  barred  by  limitation. 

(f)  If  the  symbolic  possession  obtained  by  an  auction  on  symbolic 
purchaser  through  court  become  infructuous,  he  is  entitled  proving  in- 
to bring  a  suit  to  obtain  actual  possession,  but  is  bound  to  chaser  might 
bring  it  within  twelve  years  from  the  date  of  purchase  twelve  years 
under  this  Article.  Krishna  Lall  Dutt  v.  Badha  Krishna  purchase. 
SurkhelJ1)     Where  in  execution  proceedings  symbolical  Symbolic  pos- 

.  i  .  ,  sessionamounts 

possession  is  given  to  a  person,  such  possession  amounts  to  actual  trans- 

to  an  actual  transfer  of  possession  as  between  the  parties  sion  as  between 

,  . ,       t»    ,  i  .i  i  ,.  parties  to  suit, 

to  the  suit.     But  such  possession  has  no  such  operation  but  it  does  not 

.  operate  so 

against  third  persons  who  are  not  parties  to  the  suit,  against  third 
Ramit  Singh  v.  Bunwari  Lai   Sahu.W     See  also  Juggo- 
bundhn  Mukerjee  v.  Bam  Chunder  Bysack.*3) 

(g)  In  Umma  Shankar  v.  Kalka  Prasad,  ^  the  pur-  Purchaser's 
chasers  of  property  sold  in  execution  of  a  decree,  having  sion  by  avoid- 

r  °  anoe  of  mort- 

been  resisted  in  obtaining  possession  of  the  property  by  a  gage,  fails  un- 

...  A  t  *_      il     •    j  i.  5er  this  Article. 

person  claiming  under  a  mortgage  from  the  judgment- 
debtor,  sued  for  possesssion  by  avoidance  of  the  mortgage, 
alleging  that  the  same  was  collusive  and  fraudulent. 
The  plaintiffs  did  not  ask  for  the  cancellation  or  setting 
aside  of  the  instrument  of  mortgage  which  was  found  to 

be  a  colourable  transaction.     It  was  held  that  the  avoid-  suit  for  posses- 

ance  of  the  mortgage  does  not  necessarily  involve  the  is  not  affected 

by  the  inciden- 

cancellation  of  the  instrument  and  this  suit  which  is  for  tai  question 


(1)  I.  L.  E.,  10  Oalo.,  402.     I      (3)  I.  L.  R.,  5  Calc,  682. 

(2)  I.  L.  R.,  10  Calc.,  999.      |      (4)  I.  L.  R.,  6  All.,  76. 


whether  claim 
can  be  defeated 


67 


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530  THl  8ECOKD  SCHXTXTLl,  FUST  DITI8IOV— *urra.      [aft.  139 


Description  of  rait. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Past  VIII. 
Twelve  years, 

bribeezMeace  poooeookra  of  real  properly  is  not  affected  by  theinci- 
in  defendant's  dental  question  being  raised  whether  the  claim  to  posses- 
sion can  be  defeated  by  the  existence  of  a  mortgage  in 
favor  of  the  defendant.  In  this  view  the  court  followed 
the  decision  of  the  Privy  Council  in  Raj  Bahadur  Singh 
v.  Achambit  LaLW  The  above  decision  was  followed  in 
Scram  Singh  v.  IntizamaK,W  in  which  purchasers  in 
court  sale  sued  to  set  aside  a  usufructuary  mortgage  deed 
executed  by  the  judgment-debtor  before  sale  and  for  pos- 
session of  property  on  the  ground  that  the  mortgage  was 
collusive  and  fraudulent. 

139. — By  a  landlord  to  re- [Twelve  years.  When  the  tenancy  is 
cover  possession  from  determined, 

a  tenant.  | 

This  Article  (No.  140,  Act  IX.)  This  Article  applies  only  when  the 

applies  only  v  '  7  .  r*\  J  _ 

When  defendant  person  from  whom  possession  is  sought  to  be  recovered 

is  a  tenant  of  the  plaintiff. 
Landlord  may        (a)     It  is  open  to  a  landlord,  where  his  title  is  in 
daring  continu-  jeopardy  from  the  aggressions  of  a  neighbouring  Zemin- 
ancy.  dar,  and  where  his  title  may  be  damaged  by  a  denial  of 

his  rights  over  his  land,  to  bring  a  suit  for  the  purpose 
of  having  his  rights  declared  as  against  such  wrong-doer 
and  for  the  purpose  of  being  put  into  possession  of  the 
land  as  against  them.  Bissesuri  Dabeea  17.  Baroda  Kanta 
Boy  Chowdry.(8>  In  Sheo  Sohye  Boy  v.  Luchmeshur 
SiDgh,(4)  plaintiff  sued  in  1880,  to  recover  possession  of 
certain  lands  from  which  his  predecessor  in  title  had  been 
dispossessed,  in  which  suit  the  court  of  first  instance  found 
that  the  defendant  had  dispossessed  the  plaintiff's  father 
in  1860,  during  the  unexpired  term  of  a  lease  granted  by 
the  plaintiff's  father  to  a  ticcadar.  It  was  held,  that  the 
preponderance  of  authority  in  India  was  in  favour  of  the 

(1)  I.  L.  R.,  6  Ind.  App.  110.  I   (3)  I.  L.  R.,  10  Calc,  1076. 

(2)  I.  L.  R.,  6  AIL,  260.  |   (4)  1.  L.  R.,  10  Calc.,  577. 


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ART.  139]      THE  SECOND  8CHEDDLE,  PIR8T  DIVI8ION— SUITS.  531 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelve  years. 

view  that  limitation  ran  from  the  date  of  the  expiry  of 
the  ticca  and  not  from  the  time  when  the  defendant  had 
been  held  by  the  court  of  first  instance  to  have  dispossessed 
the  plaintiff's  father.     Mitter,  J.,  observes  :  "  It  was  also  observation*  of 

_  ,  .  ,        Hitter,  Ju  on 

not  disputed  that  if  the  twelve  years  be  counted  from  the  the  points 

-..  *  ,i,  *,ij.  j.  ji.i_       whether  limita- 

date  when  the  term  of  the  ticca  came  to  an  end,  tne  tion  runs  from 
plaintiff  would  not  be  barred  by  limitation.    On  the  other  aession  or  from 
hand,  if  the  period  prescribed  by  the  law  of  limitation  is  the  term  of 
to  be  computed  from  the  date  of  dispossession  as  found 
by  the  First  Court,  the  claim  of  the  plaintiff  would  be 
barred  by  limitation.    Upon  this  point,  viz.,  whether  the 
one  or  the  other  period  of  time  is  the  proper  point  from 
which  limitation  is  to  run,  there  is  a  conflict  of  authority." 

(b)     In  Ghandmal  t7.  Bachraj,^  plaintiff  on  the  30th   Publication  in  a 
October,  1879,  sued  to  eject  the  defendant,  a  tenant,  who,  notice  to  quit 
the  Lower  Court  found  had  been  such,  down  to  14th  April,  sufficient  to  de- 
1866,  and  after  that  date  had  been  in  adverse  possession  ancy. 
as  he  had  been  served  with  notice  to  quit.     The  notice 
given  was  by  means  of  an  advertisement  in  a  newspaper, 
and  it  was  not  proved  that  the  same  form  of  notice  was 
sent  to  the  defendant  by  hand  or  post.     It  was  held  that 
such  publication,  even  under  circumstances  which  made 
it  highly  probable  that  it  came  to  the  knowledge  of  the 
tenant,  is  not,  without  more,  such  proof  of  service  as  will 
suffice  to  terminate  the  tenancy  or  entitle  the  tenant  to 
contend  that  he  remained  after  the  date  fixed  by  the 
notice  for  vacation,  in  adverse  possession  of  the  premises. 

(C)     In  Maidin  Saiba  v.  Nagapa,<2>  plaintiff  sued  to         b.  h. 
recover  certain  lands  which  the  defendant  pleaded  was  niay^iead^ten- 
included  in  a  permanent  lease  in  1849,  by  the  plaintiff's  52 tLstattSof 
predecessor  in  title.     It  was  found  that  the  land  was  not  Linutation8' 
included  in  the  permanent  lease  and  that  the  defendant  had 
been  in  actual  possession  from  1849,  claiming  throughout 
(1)  7  Bom.,  I.  L.  E.,  474.         |       (2)  I.  L.  R.,  7  Bom.,  96. 


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532 


THI  8I00KD  8CHIDUL1,  FIRST  DIVISION — SUITS.       [ACT.  139 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


B.  H. 

Tenant  not  pay- 
ing rent  for 
more  than 
twelve  years 
does  not  consti- 
tute adverse 
possession. 
(Jan.  1679.) 


Tenant  plead- 
ing that  the 
relation  has 
ceased  is  bound 
to  prove  it  by 
affirmative 
proof. 
(Jane  1878.) 


Madras  case. 
(March  1881.) 


Part  VIII. 
Twelve  years. 

to  hold  it  as  permanent  tenant  while  the  plaintiff  was 
denying  such  right.  The  plaintiff  contended  that  as 
the  defendant  had  claimed  the  land  as  a  tenant,  his  pos- 
session was  not  adverse  under  Article  144.  Following 
the  Full  Bench  Ruling  in  Dinomoney  Dabea  v.  Doorga 
Persad  Mouzoomdar/1*  which  upheld  the  right  of  a 
defendant  to  set  up  the  defence  of  tenancy,  and  at  the 
same  time  to  rely  on  the  Statute  of  Limitations,  it  was 
held  that  under  the  circumstances  of  this  case,  the  defen- 
dant's possession  was  adverse,  that  the  defendant  was  a 
trespasser  and  that  the  case  therefore  was  not  as  one 
between  landlord  and  tenant.  This  case  was  distinguished 
from  the  case  reported  at  the  foot  of  12  B.  L.  R.,  282,  on 
the  ground  that  such  possession  in  that  case  was  held  not 
adverse,  because  notice  of  the  defendant's  claim  under  a 
mokerrari  tenure,  had  not  been  given  to  the  plaintiff. 

(d)  If  possession  can  be  referred  to  contract  of  tenancy 
under  which  the  tenant  entered,  mere  length  of  enjoy- 
ment without  payment  of  rent  does  not  under  ordinary 
circumstances  affect  the  relation  of  the  parties.  Non- 
payment of  rent  by  a  tenant  for  more  than  twelve 
years  does  not  constitute  adverse  possession.  Dadoba  v. 
Krishna.*2)  In  Buugolall  Mundul  v.  Abdool  Guffoor/8)  it 
was  held,  that  where  the  relationship  of  landlord  and  ten- 
ant is  once  proved  to  exist,  the  mere  non-payment  of  rent, 
though  for  many  years  is  not  sufficient  to  show  that  the  re- 
lationship has  ceased  and  that  a  tenant  contending  in  a  rent 
suit  that  such  relationship  has  ceased,  is  bound  to  prove 
that  fact  by  some  affirmative  proof,  and  more  especially 
is  he  so  bound  when  he  does  not  expressly  deny  that  he 
still  continues  to  hold  the  land  in  question  in  the  suit. 
Following  the  above  decision,  the  High  Court  of  Madras 

(1)  12  B.  L.  R.,  274.  |  (2)  I.  L.  K.,  7  Bom.,  34. 

(3)  1.  L.  B.,  4  Gale,  314. 


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ART.  139]       THB  SECOND  SCHEDULE,  FIRST  DIVISION — SUITS.  533 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelve  years. 

in  Tiruchurna  Perumal  Nadan  v.  Sanguvien,*1)  held  that 
non-payment  of  rent  for  upwards  of  twelve  years  and  a 
grant  of  Patta  by  Government  to  defendant  for  five  years 
do  not,  when  Government  claims  no  interest  adverse  to 
plaintiff,  and  plaintiff  does  not  consent  to  defendant 
becoming  tenant  to  Government,  create  any  adverse  pos- 
session in  the  defendant,  adverse  to  plaintiff.  In  Poresh 
Narain  Roy  v.  Kassi  Chunder  Talnkdar,<2)  the  Calcutta       o.  h. 

J  (Dec.  1878.) 

High  Court  held  that  non-payment  of  rent  for  twelve 
years  and  more  does  not  relieve  an  occupancy  ryot  from 
the  status  of  a  tenant  so  as  to  give  him  a  title  to  the  land. 
Bent  falls  due  at  certain  period,  and  the  failure  to  pay  it 
becomes  a  recurring  cause  of  action,  and  therefore  where 
the  right  to  take  rent  is  admitted  by  the  ryot,  no  question 
of  limitation  can  arise.     In  Prem  Sukh  Das  v.  Phupia/8)        a.  h. 

(Dec.  1879  ) 

it  was  held  that  if  once  the  relation  of  landlord  and  tenant 
were  established,  non-payment  of  rent  by  the  defendants 
for  twelve  years  prior  to  the  institution  of  the  suit  would 
not  suffice  to  establish  that  the  tenancy  had  determined, 
and  that  the  defendant  had  obtained  the  title  by  adverse 
possession,  so  as  to  defeat  the  claim  for  rent. 

(e)     When  a  permanent  tenure  has  been  granted  by  a  This  Article 
ghatwal,  if  the  successor  of  such  ghatwal,  being  one  of  to  a  pennanent 
the  ghatwals  to  whom  Regulation  XXIX  of  1814  applies,  determinable 
wishes  to  resume  that  tenure,  he  must  bring  his  suit 
within  twelve  years  after  succeeding   to  the  ghatwali 
estate.     The  possession  of  the  tenant  is  adverse  to  him  Possession  of 
from  the  time  of  the  decease  of  his  immediate  predeces-  ghatwal  for 

m-i  «Ai»iT  t  •  twelve  years 

sor.     1  his  Article  does  not  apply  to  cases  in  which  the  is  adverse  from 
.    .    ,.-        ,       .  .      .  the  time  of  the 

plaintiff  seeks  to  recover  a  tenure  permanent  in  its  nature  decease  of  his 
and  not  determinable  by  notice.     Modho  Kooery  v.  Tekeit  decessor. 
Bam  Chunder  Singh.  W 


tt)  I.  L. 
(2)  I.  L. 


B.,  3  Mad.,  118.       I         (3)  I.  L.  E.,  2  All.,  617. 
B.,  4  Calc,  661.       |  (4)  I.  L.  B.,  9  Calc.,  411. 


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534 


THl  SIOOVD  SCHEDULE,  FIB8T  DITIBIOH — BUTTS.        [AST.  139 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


If  &  tenant  for 
years  holds 
over  in  India, 
time  does  not 
begin  to  run 
until  the  tena 
cy  on  suffer- 
ance  is  deter- 
mined. 


Possession  of  a 
tenant  by  suf- 
ferance is  not 
adverse. 


Landlord  might 
by  assent  con- 
vert tenancy  at 
sufferance  into 
a  tenancy  at 
will,  or  by  dis- 
sent make  the 
continuance  in 
possession  tor- 
tious. 


Pact  VIII. 
Twelve  years. 

(f)  In  Adimnlam  v.  Pir  Ravuthan^1)  the  plaintiff,  in 
April,  1881,  purchased  a  house  from  defendant  No.  1  for 
Bs.  800 ;  the  house  was  in  the  occupation  of  defendant 
No.  2,  who  denied  the  title  of  defendant  No.  1.  The 
plaintiff  brought  this  suit  to  obtain  possession  of  the 
house  and  mesne  profits,  or  for  the  recovery  of  his  pur- 
chase-money. It  is  asserted  that  in  a  suit  brought  by 
one  Gurusami  against  defendant  No.  2,  the  latter  entered 
into  a  compromise,  whereby  it  was  agreed  that  he  Bhould 
hold  the  house  as  Gurusami's  tenant  and  surrender  it  to 
him  on  the  expiry  of  seven  years  which  expired  in  1863. 
Defendant  No.  1  alleged  that  Gurusami  was  a  mere 
name-lender  for  him  and  assigned  the  house  to  him  in 
1863.  The  Lower  Appellate  Court  dismissed  the  claim 
for  possession  as  barred,  but  decreed  the  purchase-money 
to  the  plaintiff.  It  was  held,  that  if  a  tenant  for  years 
holds  over  in  British  India,  time  does  not  begin  to  run 
against  the  landlord  until  the  tenancy  on  sufferance  has 
been  determined.  The  court  observe  :  "  Where  a  person 
who  has  been  let  into  or  allowed  to  remain  in  possession 
as  a  tenant  for  a  term  of  years,  holds  over,  he  becomes  a 
tenant  by  sufferance.  The  possession  of  a  tenant  by 
sufferance  is  not  adverse  to  the  landlord,  and  under  the 
English  Law  until  the  passing  of  the  Limitation  Act, 
3  and  4,  Wm.  IV,  clause  27,  limitation  would  not 
have  begun  to  run  against  the  landlord  until  the  tenancy 
had  determined.  It  might  be  determined  by  the  act  of 
the  landlord,  who  by  assent  might  convert  it  into  a  tenancy 
at  will,  or  by  dissent  make  the  continuance  in  possession 
tortious.  Or  it  might  be  determined  without  the  land- 
lord's intervention  by  the  transference  of  possession  to  a 
third-party  ;  for,  having  no  title,  the  tenant  on  sufferance 
could  convey  none.  For  the  same  reason,  if  a  tenant  by 
(1)  I.  L.  B.,  8  Mad.,  424. 


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ART.  140]       THE  SECOND  SCHEDULE,  FIRST  DIVISION — 8OTT8. 


535 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VIII. 
Twelve  years. 

sufferance  dies,  and  his  representative  enters  and  holds 

on,  he  holds  as  a  trespasser.     The  Statute  3  and  4,  Wm.   Difference  be- 

IV,  c.  27,  effected,  however,  change  in  the  law  of  limita-  dian   and  En- 
glish Limita* 
tion,  and  debarred  the  landlord,  who  was  entitled  to  the  tion  Law  with 

ii  *  .i      «  *  •    i    .    .  ..     respect  to  such 

reversion  on  the  expiry  of  the  term,  from  maintaining  smt  tenancies, 
nnless  he  instituted  proceedings  within  20  years  from  the 
date  when  the  right  to  enter  accrued  to  him.  The  English 
rule  of  law  as  to  the  nature  of  the  possession  of  a  tenant 
who  holds  over  after  the  expiry  of  a  term  has  been  adopted 
in  this  country ;  but  the  Indian  Law  of  Limitation  differs 
essentially  from  that  of  the  present  English  Law  with 
respect  to  such  tenancies.  By  Article  139,  Act  XV  of 
1877,  the  landlord  has  a  right  to  sue  to  recover  possession 
from  a  tenant  any  time  within  twelve  years  from  the 
determination  of  the  tenancy.  It  is  for  the  person  who 
resists  the  right  to  show  that  the  tenancy  has  determined. 
That  the  Legislature  intended  this  result  is  indicated  by 
the  following  Article,  which  provides  that  the  twelve 
years  allowed  for  a  suit  to  a  remainder-man  or  reversioner 
(other  than  a  landlord)  shall  run  from  the  date  when  his 
estate  falls  into  possession.1' 


Twelve  years, 


When  his  estate  falls 
into  possession. 


140. — By  a  remainderman,  a 
reversioner  (other  than 
a  landlord),  or  a  de- 
visee, for  possession  of 
immoveable  property. 

(a)     (No.  141,  Act  IX.)     Remainder  is  that  expectant  Remainder, 
portion,  remnant,  or  residue  of  interest  which,  on  the 
creation  of  a  particular  estate  is  at  the  same  time  limited 
over  to  another,  who  is  to  enjoy  it  after  the  determination 
of  such  particular  estate.    A  remainder  does  not,  like  a  a  remainder 
reversion,  arise  by  operation  of  law,  but  is  always  created  reversion  arise 

,  .        .  ..  T.  ,  ,,  *  j     by operation  of 

by  act   of  parties.     It  may  be  granted  over,  charged,  law,  bat  is  ai- 
devised,  or  barred  by  a  prior  tenant-in-tail.  act  of  parties. 


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536 


THE  SECOND  SCHEDULE,  PIR8T  DIVISION — 8UIT8.       [ART.  140 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Remainder- 


Reversion. 


Reversioner. 


The  question 
was  whether,  if 
a  person  dies 
leaving  a  female 
as  heir-at-law, 
the  reversionary 
heirs  have  a 
fresh  cause  of 
action  as  to  the 
estate  at  the 
time  of  her 
death,   or 
whether  they 
are  barred  by 
limitation  if  she 
would  have 
been  barred. 


Part  VIII. 
Twelve  years. 

Remainder-man  is  a  person  entitled  to  an  expectant 
estate. —  Wharton. 

(b)  Reversion.  When  a  person  has  an  interest  in 
lands,  and  grants  a  portion  of  that  interest,  or  in  other 
terms,  a  less  estate  than  he  has  in  himself,  the  possession 
of  those  lands  shall,  on  the  determination  of  the  granted 
interest  or  estate,  return  or  revert  to  the  grantor.  This 
interest  is  what  is  called  the  grantor's  reversion,  or,  more 
properly,  his  right  of  reverter,  which,  however,  is  deemed 
an  actual  estate  in  the  land,  bearing  the  fruits  of  seig- 
nory.  Thus,  a  grant  of  an  estate  by  the  owner  of  the 
fee-simple  '  to  A  for  life,'  leaves  in  the  grantor  the  rever- 
sion in  fee-simple,  which  will  commence  in  possession  after 
the  determination  of  A!%  life-estate;  and  this  is  called  the 
particular  estate ;  particular  as  carved  or  sliced  out  of 
the  larger  estate  or  reversion.  Reversioner  is  one  who 
has  a  reversion. —  Wharton. 

(C)  In  Nobin  Chunder  Chuckerbutty  v.  Issur  Chunder 
Chucker  butty/1)  "  Ramdoollub  Chuckerbutty  died  leav- 
ing two  sons,  two  daughters,  and  a  widow.  The  two  sons 
died  without  issue  in  the  lifetime  of  the  widow,  and 
upon  their  death  their  respective  estates  descended  to  the 
widow  as  heir.  The  two  daughters  each  had  son  or  sons, 
who,  upon  the  death  of  the  widow,  succeeded  to  the 
estate  of  their  uncle.  After  the  death  of  the  sons,  a 
stranger  entered,  and  the  widow  never  took  possession. 
The  widow  died  in  1266.  The  question  is,  whether  the 
sons  of  the  daughters  had  a  fresh  cause  of  action  upon 
the  death  of  the  widow.  The  question  of  law  which  is 
raised  for  our  opinion  is,  whether,  if  a  person  dies  leaving 
a  female  as  his  heir  at  law,  the  reversionary  heirs  have  a 
fresh  cause  of  action  in  regard  to  the  estate  of  the  an- 
cestor at  the  time  of  the  death  of  the  female  heir,  or 
(1)  9  W.  B.,  505. 


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ART.  140]       THE  SECOND  SCHEDULE,  FIRST  DIVISION — SU1T8.  537 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VIII. 
Twelve  years. 

whether  they  are  barred  by  limitation  if  the  female  heir 
would  have  been  barred. 

(d)  Peacock,  C.  J.,  observes  :  "  Sir  Lawrence  Peel  in  widow  succeed- 
Goluck  Monee  Dabee  v.  Degumber  Dey,  says  it  has  been  i^rtsents  the7 
invariably  considered  for  many  years  that  the  widow,  Se^possession 
(speaking  of  the  widow  succeeding  as  heir)  '  fully  repre-  barstheeheir° 
sents  the  estate,  and  it  is  also  the  settled  law  that  adverse  not  be  uncase 
possession  which  bars  her,  bars  the  heir  also  after  her,  tenant  for*iife 
which  would  not  be  the  case  if  she  were  a  mere  tenant  S^uahLaw? 
for  life,  as  known  to  the  English  Law.  (Nov- 1852,) 

(e)  It  was  also  held  by  the  Privy  Council  in  the  p.  c.  held  that 
Shivagunga  case/1)  9th  Moore's  Indian  Appeals,  that  in  fraud  or  eoiiu- 
the  absence  of  fraud  or  collusion  a  decision  against  a  against  widow 
widow,  with  regard  to  her  deceased  husband's  estate,  reversionary 
would  be  binding  upon  the  reversionary  heirs.  (March  1868.) 

(f)  In  the  8th  Moore's  Indian  Appeals,  page  550,  it  comparing  a 
was  said,  that  comparing  a  Hindu  widow  to  a  tenant  for  nant  for  life  was 
life  was  calculated  to  mislead.     In  the  Shivagunga  case,  mislead. 

the  widow  was  compared  to  a  tenant-in-tail ;  but  the  heirs  compared"*)  a 

in  that  case  were  not  likened  to  remainder-men,  and  must,  and  heirs  were 

therefore,  have  been  in  the  position   of  tenants-in-tail,  remainder-men 

Such   heirs   would  be  bound,  if  the  tenant-in-tail  was  in-taii. 

barred,  though  the  remainder-man  might  not  be.    If,  then,  in  a  suit  by  the 

in  the  Shivagunga  case,  the  widow  was  like  a  tenant-in-  against  the 

tail,  and  the  reversionary  heirs  were  like  the  issue-in- tail,  hTsucoeededin 

and  the  same  likeness  exists   in  the  present  case,  the  purchase  from 

reversionary  heirs  would  be  barred  by  limitation  which  the  reversion.  • 

ran  against  the  female  heir.     If  the  female  heir  in  the  w7uid1be*bound 

present  case  had  sued  the  wrong-doer,  and,  without  fraud  in  the  absence 

or  collusion,  had  failed  to  make  out  her  case  to  turn  him  fusion.    °r 
out  of  possession,  the  reversionary  heirs  would  have  been 
bound  by  the  decision.     I  am  assuming  that  they  are  not 
claiming  through  the  female  heir.     For  instance,  if  the 
(1)  2  W.  R.  P.  C.  31. 
68 

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538 


THR  8B0OND  SCHEDULE,  FIE8T  DIVISION SUITS.       [AW.  140 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


It  would  be  ano- 
malous to  hold 
that  the  re- 
versionary 
heirs,  who 
would  have 
been  barred  by 
a  decision 
against  the  wi- 
dow if  she  had 
brought  her 
suit  In  time, 
would  not  be 
barred  by  limi- 
tation against 
her. 


B.  H. 

Garth,  0.  J.,  ob- 
serves that  a 
reversioner 
under  the  Acts 
of  1871  and  1877, 
has  twelve 
years  to  sue  for 
possession 
from   the  time 
the  estate  falls 
into  possession 
i. «.,  from  the 
date  of  widow's 
death,  though 
under  Act  XIV 
of  1869,  he   had 
twelve  years 
from  the  date 
of  disposses- 
sion, and  twelve 
years  advene 
possession 
which   barred 
the  widow 
barred  him  also. 
(August  1888.) 


The  provision 
in  the  Acts  of 
1871  and  1877 
regarding  re- 
mainder-men 
and  reversio- 
ners assimilates 
the  law  in  this 


Part  VIII. 
Twelve  years. 

female  heir  had  sued  the  wrong-doer,  and  he  had  set  up  * 
purchase  from  the  ancestor,  and  had  succeeded  in  that 
defence  at  the  suit  of  the  female  heir,  the  reversionary 
heirs  won  Id  be  barred  by  the  decision  in  the  absence  of 
fraud  or  collusion. 

(g)  The  law  of  limitation  is  passed  for  the  benefit 
of  defendants,  partly  upon  the  ground  that  after  length  of 
time  they  may  have  lost  the  evidence  in  support  of  their 
right ;  and  it  would  be  anomalous  to  hold  that  a  female 
heir  was  barred  by  limitation,  lest  the  defendant  should 
have  lost  his  evidence  to  prove  his  right  against  her,  and 
to  hold  that  the  reversionary  heirs,  who  would  have  been 
barred  by  a  decision  against  the  widow  if  she  had  brought 
her  suit  in  time,  are  not  barred  by  limitation  against  her." 

(h)  In  Srinath  Kur  v.  Prosanno  Kumar  Ghose,M 
Garth,  C.  J.,  observes  :  "  A  reversioner  who  succeeds  to 
immoveable  property  has  now  twelve  years  to  bring  his 
suit  from  the  time  when  his  estate  falls  into  possession. 
(See  Article  141  of  the  Act  of  1871,  and  Article  140  of  the 
Act  of  1877).  Under  the  Act  of  1859,  the  language  was 
very  different.  The  suit  under  that  Act  must  have  been 
brought  within  twelve  years  from  the  time  when  the 
cause  of  action  arose ;  and  as  it  was  considered  by  the 
Full  Bench  of  this  court,  that  the  cause  of  action  arose  at 
the  time  when  the  owner  of  the  inheritance  was  first 
dispossessed,  they  held  that  a  twelve  years'  dispossession 
which  barred  the  owner  of  the  inheritance  for  the  time 
being,  (although  a  female),  barred  also  the  reversioner. 
See  Nobin  Chunder  Chuokerbutty  v.  Guru  Persad  Doss.t2) 
The  provision  in  the  present  Act,  as  well  as  that  in 
the  Act  of  1871,  as  regards  remainder-men  and  rever- 
sioners, assimilates  the  law  in  this  country  to  the  law  of 

.      (1)  I.  L.  R.,  9  Calo.,  934. 

(2)  B.  L  R.,  Sup.,  Vol.,  1008:  S.  C,  9  W.  R.,  606. 


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ART.   140]       THE  8RCOND  SCHEDULE,  FIR8T  DIVI8IOH 8UIT8.  539 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Pakt  VIII. 
Twelve  years. 

England.     (See  3  and  4,  Wm.  IV,  chapter  27,  section  4.)"  country  to  the- 

In  Azam  Bhuyan  v.   Faizuddin  Ahamed,*1)  Wilson,   J.,  (Feb.  isSs.) 

observes  :  "  Article  141  of  schedule  2  of  Act  XV  of  1877, 

refers  to  suits  by  persons  claiming  on  the   death  of  a 

Hindu  or  Mahomedan  female,  under  an  independent  title, 

in  the  same  way  as  in  respect  of  suits  by  remainder-men, 

reversioners,  and  others,  Article  140  does.     It  does  not 

apply  to  the  case  of  a  person  suing  on  the  very  same 

cause  of  action  which  accrued  to  a  female,  and  suing  by 

right  of  being  her  heir." 

(i)     In  Parekh  Ranchor  v.  Bai  Vakhat,<*)  Birdwood,  Awidowoouid 
J.,  observes  :    '  A  decree  obtained  against  the  widow,  will  present  tne  ** 
enable  a  creditor  to  attach  and  sell,  not  only  the  widow's  certain  circum- 
life  estate  in  the  immoveable  property,  but  also  the  re-  tatioifmight 
versionary  estate  of  the  remainder-man ;'  and  in  the  case  hSiri^the the 
referred  to  at  p.  96  of   West  and   Buhler's    Digest  of  ~e^1nl«hh?beT 
Hindu  Law,  3rd  Ed.,  it  was  held  that  the  widow  would 
completely  represent  the  estate,   and  under  certain  cir- 
cumstances the  Statute  of  Limitations  might  run  against 
the  heirs  to  the  estate,  whoever  they  might  be. 

"  But  though  a  sale  under  a  decree   against  the  de-  Bat  statute 

would  not  run 

fendant  Bai  Vakhat,   for    Odhav's  debt   might,   under  against  the 

.      't+        i_      heirs   if  he 

certain   circumstances,   have   bound    the   plaintiff,    the  sought  for 

t*  ii  •  l  •         •»  ■■        •     •  relief  on  the 

Statute  would  clearly  not  run  against  him  if  he  is  in  a  ground  of 

position  to  seek  relief  on  the  ground  of  fraud.     The  case 

would  then  be  governed  by  other  considerations  than 

those  ordinarily  applicable.     As  pointed  out  by  Markby, 

J.,  in  Brammoye  Dasee  v.  Kristo  Mohun   Mookerjee,<3) 

'  the  rule,  that  a  decree  against  a  widow  binds  the  rever-   That  a  decree 

.  against  a 

sioner,  is  subject  to  this  qualification,  that  there  has  been  widow  binds 
a  fair  trial  of  the  right  at  the  former  suit.  That  is  laid  is  subject  to 
down  in  what  is  commonly  called  the  Shivagunga  case/4)    tion  that  there 

has  been  a  fair 

(1)  I.  L.  E.,  12  Calc,  594.       I      (3)  I.  L.  R.,  2  Calc,  222.  iTiBl  °tth° 

(2)  I.  L.  R.,  11  Bom.,  119.       |      (4)  9  Moore's  L  A.,  543. 


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540  THI  SECOND  8CHIDULI,  F1E8T  DIVISION — SUITS.       [ART.  140 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelveyears. 

right  at  the  and  in  Mohima  Chnnder  Roy  Chowdhry  v.  Bam  Kishore 
Acharjee  Chowdhry.  M  It  was  there  pointed  out  that  the 
Privy  Council,  in  a  more  recent  case  (N.  0.  Ghose  v. 
Sreemutty,(*)  have  said  that,  while  they  adhere  to  the 
rule  that  the  widow  represents  the  estate  of  the  rever- 
sioner for  some  purposes,  it  is  her  duty  not  only  to 
represent  the  estate,  but  to  protect  it  also.'  Where 
the  ground  of  action  really  is  that  the  widow  did  not  in 
the  former  suit  protect  the  interests  of  the  person  who 
was  to  take  after  her  death,  but  collusively  suffered 
judgment  against  herself  and  sale  of  her  husband's 
property  in  execution,  then  if  such  person  on  such 
grounds  treats  the  sale  as  inoperative,  and  seeks  for  a 
declaration  that  it  is  not  binding  on  him,  Article  12, 
clause  (a)  of  schedule  2  of  the  Limitation  Act  would  not 
apply  to  the  suit." 
if » conveyance  (j)  In  respect  of  vatans  appendent  to  hereditary 
officer  gave  to  offices,  the  Bombay  High  Court  observe :  *'  No  doubt,  if  a 
er  estate  than    conveyance  by  an  hereditary  officer  purported  to  give  to 

one  for  life,  _*  *  x   x    J  r,   r  ...    ° 

court  would  cut  the  alienee  a  greater  estate  than  one  for  the  life  of  the 
estate  for  life,     alienor,  the  court  would,  under  the  Regulation,  have  cut 
it  down  to  an  estate  for  his  life.     The  heir's  title  to  the 
land  would  not  accrue  until  the  death  of  A  (the  alienor), 
and  the  possession  of  the  alienee  would  not  be  regarded 
as  adverse  to  the  heir,  inasmuch  as  it  would  be  a  posses- 
sion in  no  wise  inconsistent  with  his  title  so  long  as  the 
if  successor        incumbent  A  lived.     But,  from  the  moment  of  A's  death, 
years*  to  elapse  the  possession  would  be  adverse  to  B,  and,  if  B  suffered 
death,  not  only  twelve  years  from  that  event  to  elapse  without  bringing 
hein°woaid  *be  ^18  8Uit  to  recover  the  land,  we  think  not  only  B  him-' 
Ac^VonSw.  8e^>  DUt  also  B's  heir,  would  be  barred  by  the  Limitation 
Law  applicable  to  this  case,  Act  XIV  of  1859.     To  hold 
otherwise  would  be  to  put  an  end  to  the  Law  of  Limitation 
(1)  16  Bengal,  L.  R.,  142.        |     (2)  11  Moore's  I.  A.,  241. 


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AET.  140]        THB  SECOND  8CHEDULB,  PIE8T  DIVI8ION — 8UIT8.  541 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begin s  to  run. 


Part  VIII. 
Twelve  years. 

altogether  as  to  vatans  appendant  to  hereditary  offices, 
a  course  which  we  do  not  see  any  valid  ground  for  adopt- 
ing.    Babaji  t?.  Naua^1)  (See  Notes  under  Article  141). 

(k)     In  Radhabai  and  Bamchandra  Konher  v.  Anan-   Advene  posses- 

_,  _      .  .     /0.    .  i     t  «■     *  i     *      •       j  1        8*on  f or  twelve 

trav  Bhagvant  Deshpande,*2'  it  was  held  that,  in  the  yean  daring 

absence  of  fraud  and  collusion,   adverse  possession  for  one  holder  of 

twelve  years  during  the  lifetime  of  one  holder  of  service  lands  is  a  bar  to 

vatan  lands  is  a  bar  to  succeeding  holders,  and  that  in  the  den  in  the  at* 

sence  of   fraud 

absence   of  fraud  and  collusion,  judgment  against  one  of  coUmion, 

holder  of  service  vatan  lands  is  res  judicata  as  regards  a  against  one  noi- 

*  °  ,      der  of  service 

succeeding  holder.     West,  J.,  observes:    "The  recent  Li-   vatan  lands  is 

ret  judicata  as 

mitation  Acts,  though  less  distinctly  expressed   for  the   regards  a  suc- 

.  ,  .  „  ceeding  holder. 

conversion   of  possession  into   ownership,   are,   for   the   (Jan.  1885.) 

purposes  of  the  present  discussion,  laws  of  acquisitive 

prescription ;  the  right  acquired  under  them  is  gained  in 

a  shorter  time,  but  is   of  the  same  kind  as  under  the 

earlier  law;  M.   S.  Sinde  v.  G.    P.  Sinde   (4  B.  H.    C. 

R.,  51.  A.  C.  J) ;  Grundo  Anandrav  t?.  Krishnarav  Govind 

(Ibid   55,   A.   C.  J);  Giriapa   v.  Jakana    (12   B.  H.   C. 

R.,  172).     If  the  successor,  by  virtue  of  the  grant  to  The  successor 

a  vatandar,  who  has  aliened  part  of  the  vatan,  is  not  grant  to  a  «**<«»- 
i  i     •      n         i  ,    -i  .j  j    dar  i»  not  mere- 

mere  ly  an  heir,  then  he  must  be  a  remainder-man,  and  iy  an  heir,  then 

this,    according    to  the   Hindu   Law,   he  could  not   be  remainder-man 

after    the    decease  of    contemporaries  of    the    original  ing  to  Hindu 

grantee — Kumar    Tarakeshwar    Roy    v.    Kumar     Joshi  not  be  after  the 

Shikhareswar  (L.  R.,  10,  I.  A.   60).     Under  Article  140,  temporaries  of" 

schedule  2  of  Act  XV  of  1877,  he  is  barred  by  twelve  grantee? 

years'  possession  after  his  heirship  has  become  a  present  twelve  years 

estate  (see  per   Lord  Mansfield,  G.   J.,   in  Fischer  and  his  heirship  has 

Taylor  v,  Prossesr  Cowper,  at  p.  218),  and  by  section  28  sent^state!* 

of  the  Act  his  right  has  at  the  same  moment  become 

extinguished.      The  decisions   say   that  it  has   become 

extinguished  in  favour  of  the  adverse   holder  for   the 

(1)  I.  L.  R.,  1  Bom.,  537.       |      (2)  I.  L.  R.,  9  Bom.,  198. 


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542 


THK  8KOOND  3CHBDUL1,  FIROT  DIVI8ION — SUIT8.       [aRT.    141 


Description  of  so  it. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
;Twelve  years. 

prescribed  time,  whose  ownership,  except  as  against  some 
wholly  independent  title,  must  thns,  at  the  same  moment, 
have  became  complete.  (Badha  Govind  v.  Inglis,  Calc, 
L.  R.,  364).  That  this  was  the  intention  of  the  Acts, 
appears  from  their  preambles,  thongh  it  mnst  be  admit- 
ted that  the  enacting  parts  are  by  no  means  perfectly 
adapted  to  the  purpose." 

141. — Like  suit  by  a  Hindu  Twelve  years.  When  the  female  dies, 
or  Muhammadan  enti- 
tled to  the  possession 
of  immoveable  pro- 
perty on  the  death  of 
a  Hindu  or  Muham- 
madan female. 

(a)     In  Nobin  Chnnder  Chnckerbntty  v.  Guru  Persad 
DosSjW  it  was  held  under  Act  XIV  of  1859,  that  cause 
of  action  arose  at  the  time  that  the  owner  of  the  inheri- 
tance was  first  dispossessed,  and  that  a  twelve  years'  dis- 
possession which  barred  the  owner  for  the  time  being, 
although  a  female,  barred  also  the  reversioner.     To  this 
it  was  held  that  general  proposition,  the  Full  Bench  laid  down  the  exception, 
could  not  apply  "  that  the  same  rule  of  law  would  not  apply  to  alienations 
made  by  widow,  made  by  a  Hindu  widow  while  in  possession  of  the  estate, 

in  which  case 


C.  H.  P.  B.  held 
under  Act  XIV 
of  1850,  that  ad- 
verse possession 
barring  widow, 
bars  the  rever- 
sioner. 
(27th  Ap.  1868.) 


cause  of  action  in  which  case  cause  of  action  to  recover  possession  would 

accrue  on  the  death  of  the  widow".    Following  the  above 

the 


her  death. 

P.  C.  adopted 
the  above 
ruling. 
(Jan.  1876.) 


case  the  Privy  Council  in  Amirto  Lai  v.  Rajoneekant 
Mitter/2)  held  in  January,  1875,  that  where  a  Hindu 
widow,  who  takes  by  inheritance  from  her  husband  is 
dispossessed,  the  period  of  limitation  as  against  the  re- 
versionary heir  claiming  the  succession  after  the  widow's 
death  is,  in  the  absence  of  fraud,  to  be  reckoned  not  from 
the  time  of  the  widow's  death,  but  from  the  time  from 
which  it  would  have  run  against  the  widow  had  she  lived 
(1)  B.  L.  E.,  Sup.,  Vol.,  1008.  |         (2)  15  B.  L.  R.,  P.  C,  10. 


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ART.  141]       THK  8KC0ND  SCHEDULE,  FIRST  DIVISION — 8U1T8.  548 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelve  years. 

and  fined  to  recover  the  inheritance.     In  Pnrsnt  Koer  v.  o.  h. 

Paint  Roy,!1)  plaintiff's  mother  became  a  widow  in  1842,  Buit  for°proper- 

and  constant  squabbles  between  her  and  husband's  brother  by  widowtoner 

resulted  in  an  ikararnama  in  1846,  by  which  the  widow  brother  by  an 

j  ,      i  i       ,i         .      ,  ,    •  x*         i_         ikarar  entered 

made  over  to  her  brother-in-law  certain  properties  be-   into  in  compro- 

longing  to  the  estate  of  her  husband.     The  widow  died  in  J^J®  hei2Unot 

1878.     In  March,  1879,  her  daughters  sued  for  possession   |22£  was1™* 

of  their  father's  properties  which  had  then  passed  into    (Dec!*i88i.) 

the  hands  of  certain  vendees.     It  was  held  that  the  suit 

was  not  barred  under  Article  141  of  Act  XV  of  1877, 

there  having  been  no  possession  adverse  to  the  widow  by 

dispossession  for  more  than  twelve  years,  the  widow's 

cause  of  action  having  ceased  when  she  entered  into 

ikarar  in  1846  and  gave  up  her  right  to  the  property. 

When  the  same  question  arose  before  a  Full  Bench  in  o.  h. 

Suit  by  grand* 

Srinath   Kur  v.  Prosunno    Kumar   Ghose,W    in  which  son  by  a 

daughter  for 

grandsons  by  a  daughter  who  died  in  1877,  sued  for  pos-   share  of  pro- 

perty  from  de- 

session  of  their  shares  of  property  of  their  grandfather  fendant  another 

grandson  by 

from  a  grandson,  by  another  daughter  who  died  in  1863,  another 

..         _    _  ,1,11  .  *  io/»«»     daughter,    held 

the  defence  was  that  by  adverse  possession  from  1868,  not  barred  tho' 

the  defendant  and  his  father  had  acquired  a  good  title,   his  father  held  it 

The  First  Court  decided  that  the  plaintiff's  mother  alien-   (August  1883.) 

ated  her  share,   and   so   effected  a   partition,  and  that 

therefore  she  did  not  hold  any  title  after  her  sister's 

death.     It  was  found  that  the  plaintiff's  mother  was  out 

of  possession  from  1863.     It  was  held  that  under  Article 

141  of  Act  XV  of  1877,  a  reversioner  has  twelve  years  to 

bring  a  suit  for  possession  from  the  time  when  his  estate 

falls  into  the  possession,  i.e.,  from  the  date  of  the  death 

of  the  widow.     Garth,  C.  J.,  observes  that  the  provisions  of  Provisions  of 

the  Limitation  Acts  of  1871  and  1877,  regarding  reversion-  Acts  regarding 

ers  and  remainder-men  assimilate  the  law  in  this  country  simiiate  the  law 

to  the  Law  of  England.    (3  and  4,  Willm.  IV,  ch.  27,  s.  4.)  to  tneWLa*r  of*7 

England. 
(1)  I.  L.  R.,  8  Calc,  p.  442.    |  (2)  I.  L.  R.,  9  Calc,  p.  954. 


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544  THI  StCOTO  SCHZDUU,  YflflT  PfTISIOM      It  I  IS.       [a«T.  141 


«^ •  ^  Period  of  Tne  from  vhiek 

Description  of  cut.  n_^  ^  ■„  - 

r  i       limit* turn,  begins  to  ivl. 

.  Pabt  VIII.  ! 
Twelve  years. 

(t>)     In  Gya  Persad  v.  Heet  Narain,  which  was  a  nit  to 

em  dvinote  recover  possession  of  certain  houses  with  mesne  profits,*1) 

widow.  it  was  held,  that  a  title  by  adverse  possession  for  more 

0110  than  twelve  years  accrues  even  during  the  lifetime  of  a 

in  cm  of  'po*   Hindu  widow,  bat  if  possession  arises  directly  from  any 


T^d^iien»tion  invalid  alienation  on  her  part,  special  provision  is  made 

mm  oa°wU     for  the  right  to  sue  on  the  parts  of  the  reversioners  within 

twelve  years  from  her  death,  and  the  accrual  of  their  title. 

c   R  (c)     The  right  of  a  Hindu  to  the  possession  of  immore- 

d^pmZemkm  a°le  property  on  the  death  of  a  Hindu  widow,  to  which 

ot'w^T*7  Article  142,  schedule  2,  Act  IX  of  1871  refers,  must  be 

mu?hiwmJ£  «t  one  tw  «**«  *t  the  time  of  the  death  of  the  widow.     The 

death!mTtae  de-  determination,  therefore,  of  such  right  during  her  lifetime 

•^S^HffbTdor-  extinguishes   also  the  right  of  the  reversioner   on   her 

iS5  St£f*      death.      S  a  rod  a  Soon  d  wry  Dossee  v.  Doyamoyee  Dossee  .& 

S!£?b  riSl'    *"  K-  Subramaniam  Chetti  e.  T.  Subramaniam  Chetti,(*> 

^e^i**M  ***      Kindersley,  J.,  observes  :  I  am  inclined  to  think  that  the 

m.  h.  suit  is  barred,  because,  since  the  death  of  the  testator  in 

og.       .)         1858,  the  widows  have  not  been  in  possession  of  their  full 

rights  under  Hindu  Law,  but  only  of  such  allowances  as 

they  received  under  the  will.    The  case  of  Saroda  Soondury 

Dossee  v.  Doyamoyee  Dossee  is  an  authority  for  saying 

that,   if  the   widow  in  her  lifetime  was  debarred  from 

bringing  the  suit,  the  reversioner  on  her  death  would  also 

be  debarred. 

p;  c-  (d)     In  Bibi  Sahodra  v.  Rai  Jang  Bahadur/4?  a  Hindu 

tion  againet       widow,  by  a  Solenama  with  her  deceased  husband's  cousin 

which  provide*   which  gave  her  no  power  to  alienate  held  for  life  her 

UonnJ!i  not         husband's  share.     She  sold  it  as  if  she  had  absolute  in- 

feiture  under      terest,  and  the  vendee's  name  was  entered  in  the  Revenue 

(July  1881.)         records  ;  but  no  change  of  possession  took  place  till  her 

death.     It  was  held  by  P.  C,  that  the  suit  by  the  cousin 

(1)  I.  L.  R.,  9  Calc,  93.  I        (3)  I.  L.  R.,  4  Mad.,  129. 

(2)  I.  L.  R.,  5  Calc.,  938.        |        (4)  I.  L.  K.,  8  Gale,  224. 


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ART.  141]      TH1  8B0OND  SCHIDUH,  FIRST  DIVI8I0N — 8UIT8.  545 


Description  of  rait. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Pabt  VIII. 
Twelve  years. 

after  her  death  was  not  barred  by  Article  144  of  Act  IX 
of  1871,  which  corresponds  to  Article  148  of  Act  XV  of 
1877.  It  is  observed  that  there  was  no  condition  against 
alienation  of  the  widow's  life  interest,  and  if  there  had 
been,  there  was  neither  any  rule  of  law  nor  anything  in 
the  words  need  in  the  Solenama  attaching  forfeiture  to 
the  breach  of  such  a  condition. 

(6)  A  widow  "  so  completely  represents  the  inheri-  B.  h.  held,  a 
tanoe,  that  in  a  suit  (in  which  she  is  a  defendant)  to  pietefr  repre- " 
foreclose  a  mortgage  made  by  him,   (her  husband)  his  tanoe  that  the 

_..  ,%%!■%       next  male  heir 

next  male  heir  is  not  a  necessary  party,  although  he  is  not  a  neoes- 
has  sometimes  been  made  so  ex  majori  cautela.    In  Doe  eulTto  tawcioee 
d'Goluckmoney  Dabee  v.  Diggumber  Dey,  Peel,  C.  J.t  *mort*a*t- 
observed  :  '  It  has  been  invariably  considered  for  many 
years  that  the  widow  fully  represents  the  estate;  and 
it  is  also  the  settled  law  that  adverse  possession,  which 
bars  her,  bars  the  heir  also  after  her,  which  would  not 
be  the  case  if  she  were  a  mere  tenant  for  life  as  known 
to  the  English   Law;    on  the  contrary,   if  such   were 
her  estate,  her  heir  would    have    20  years  after  her 
death  for  making  biB  entry,  which  would  be  a  most  mis- 
chievous rule  to  establish.'     The  completeness  of  her  title  obeerratione  of 

PfifJ    o  J 

to  the  inheritance  is  further  illustrated  by  the  same        '    *  * 
learned  Judge's  observations  and  those  of  Colvile,  J.,  in 
Mohar  Ranee  Essadah  Bai  v.  the  East  Indian  Company 
and  the  other  cases  mentioned  in  Lalohand  Ramdyal  v. 
Gumtibai,  and  there  quoted  at  pp.  155  to  157  of  the  o.  h.  held  the 
Report  in  8  Bombay,  H.  C.  Rep.,  0.  G.  J.    In  Ramchandra  irtTexpeetant 
Tantra  Das  v.  Dharmo  Narayan  Chuckerbutty,  it  was  JSa5dSTnot 
held  by  a  Full  Bench  in  Calcutta,  that  the  interest  of  an  g?rogffjrhl^> 
heir,  expectant  on  the  death  of  a  widow  in  possession,  is  and  eaie  under 
so  mere  a  contingency,  that  it  cannot  be  regarded  as  vmitfs. 
property,  and,  therefore,  was  not  liable  to  attachment 
and  sale  under  section  205  of  Act  VIII  of  1859."    Bhala 
Nahana  v.  Parbhu  Hari.t1) 

(I.)  I.  L.  R.,  2  Bom.,  74. 
69 


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546 


THI  SECOND  8CHIDULB,  ?1E8T  DIVISION— SUITS.      [ABT.  141 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


It  Tight  to  pre- 
sent enjoyment 
resting  m  the 
senior  of  the 
family  is  bar- 
red, right  of  sur» 
Yivoronipat- 
tacbinff  to  end 
dependent  on, 
it  is  also  barred, 
(July  1861.) 


It  may  be  that 
the  rights  of  snr- 
rivorship  Test- 
ing in  the  other 
eo-paroenera 
cannot  arise  as 
between  them- 
selves until  each 
branch  entitled 
to  preferential 
enjoyment  be- 
comes either  ex- 
tinct or  relin- 
quishes it. 


Part  VIII. 
Twelve  years. 

(f)  In  Vijayaeami  t>.  Periasami,*1)  plaintiff,  as  grand- 
son of  the  Zemindar  of  Sivaganga,  sued  to  recover  the 
zemindari.  Upon  the  death  of  Gouri  Yallaha  Tevar  in 
1829,  the  impartible  zemindari  of  Sivaganga,  which  had 
been  acquired  by  him,  was  taken  possession  of  by  the 
representative  of  his  elder  brother,  Oya  Tevar,  from 
whom  it  was  recovered  by  Kattama  Nachiyar,  the 
daughter  of  Gouri  Vallaba  Tevar  in  1863,  by  suit.  From 
that  date  until  her  death  in  1877,  the  estate  remained  in 
the  possession  of  Kattama  Nachyar.  It  was  subsequently 
recovered  by  suit  from  her  sons  by  the  defendant  (the 
son  of  her  elder  sister),  as  being  the  eldest  surviving' 
grandson  of  Gouri  Vallaba  Tevar.  The  plaintiff  alleging 
that  he  was  the  third  son  of  Namasivaya,  who  was  the 
second  son  of  Gouri  Vallaba  Tevar,  by  his  wife  Manik- 
kathal,  and  that  he  and  not  the  defendant  was  the  eldest 
surviving  grandson  of  Gouri  Vallaba  Tevar,  sued  in  1881, 
to  recover  the  estate  from  the  defendant.  Admitting 
that  he  was  born  in  the  lifetime  of  Gouri  Vallaba  Tevar, 
the  plaintiff  pleaded  that  it  was  not  open  to  him  to  sue 
for  the  estate  until  the  year  1870,  when  his  father,  his 
elder  brothers,  and  a  son  of  his  father's  elder  brother  had 
all  died.  It  was  held,  that  from  1829,  limitation  began 
and  continued  to  run  against  the  descendants  of  Manikka- 
thal.  The  court  observe :  "  This  right  of  the  joint-family 
became  barred  by  its  non-exercise  for  upwards  of  50 
years.  It  may  be  that,  when  an  impartible  estate  vests 
in  a  joint-family  consisting  of  several  co-parceners  and  is 
capable  of  enjoyment  but  by  a  single  member  at  a  time, 
the  rights  of  survivorship  vesting  in  the  other  co-parceners 
cannot  arise  as  between  themselves,  until  each  branch 
entitled  to  preferential  enjoyment,  according  to  seniority 
of  descent,  becomes  either  extinct  or  relinquishes  its 
(1)  I.  L.  B.,  7  Mad.,  242. 


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ART.  141]       THtt  8BC0ND  SCHEDULE,  FIRST  DIVISION— 6U1T8.  547 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Pact  VIII. 
Twelve  years. 

rights.    But  as  between  the  joint-family  and  claimants  As  between 

under  a  title  adverse  to  it,  the  co-parcener  in  enjoyment  itoniants  under 

and  the  Zemindar  for  the  time  being  represents  for  par-  it,  co-parcener 

poses  of  limitation  the  entire  joint-family  consisting  of  andZemtadar 

his  lineal  and  collateral  heirs.     The  right  of  survivorship  ing  represents, 

is  a  limiting  incident  attaching  to,  and  dependent  on,  the  UinitaUonTthe 

right  of  present  enjoyment  vesting  in  the  senior  repre-  miiy  consisting 

sentative  of  the  family,  and  when  the   last-mentioned  collateral  heir*, 
right  is  barred,  the  former,  which  iB  only  its  offshoot,  is 

also  barred.     If  the  contention  be  valid  that  limitation  if  limitation 

would  commence  to  run  against  each  collateral  heir  or  ran  against 

co-parcener  only  when  his  right  of  survivorship  accrues,  heir  or  co-par. 

the  statute  would  practically  have  no  application  as  be-  his  right  of  tor- 

tween  the  joint-family  entitled  to  an  impartible  estate  ernes,  t£>  eta- 

and    adverse    claimants.      This    representation    of    the  no  application 

appellant  in  the  person  of  the  senior  member  is  even  joint-family  en- 

,.,,,,  ,    ,.  .  .  titled  to  an  im- 

more  complete  than  the  representation  of  a  reversioner  partiaWe  esta 

and  adverse 


by  a  childless  widow.  But  the  case  of  Nobin  Chunder 
Chuckerbutty  v.  Issur  Ohunder  Chuckerbutty/1)  was 
approved  by  the  Privy  Council  in  Aumirtolall  Bose 
v.  Bajooneekant  Mitter.<*)  The  appellant  must,  therefore, 
be  considered  for  purposes  of  limitation  as  between  him- 
self and  claimants  in  possession  under  a  title  adverse  to 
that  of  the  family,  to  be  entitled  to  take  the  zemindari 
under  the  person  entitled  to  present  enjoyment  as  the 
representative  of  the  joint-family  of  which  he  is  a 
member." 

(ft)    In  Azam  Bhuyan  v.  Faizuddin  Ahamed,<*)  N,  a  Suit  as  heir  of 

a  deceased  Co* 

Mahomedan,  died  in  1849,  leaving  immoveable  property  male  on  the 

.  •      very  same  cause 

which  was  inherited  by  his  mother  B,  his  brother  B  and  his  of  action  which 

.  .         accrued  to  her 

sister  A.    It  was  found  that  A  was  never  in  possession  does  not  fan 

under  this  Arti- 

of  the  share  inherited  by  her  and  that  she  died  in  1878.  oie. 


(1)  9  W.  E.,  605.  |    (2^  L.  R.,  2  Ind.  App.,  121. 

(3)  LL.  B^12Calc.,594. 


(Feb.  1886.) 


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THE  SECOND  SCHEDULE,  TIE8T  D1VI8ION — SUITS.       [ART.  142 


Description  of  rait. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


CteMwhere  a 
rerenioner 
vm  held  not 
entitled  to  avail 
himself  of  the 
plea  of  limita- 
tion which  the 
deceased  widow 
had  waived. 
(June  1877.) 


Part  VIII. 
Twelve  years. 

It  was  held  in  a  suit  against  E  and  his  son  brought  in 
1884,  by  A9$  heirs  for  possession  of  that  share,  that  Arti- 
cle 141  of  the  Limitation  Act  did  not  apply,  and  that  the 
suit  as  to  that  share  was  barred.  Per  Wilson,  J.,  Article 
141  of  schedule  2  of  Act  XV  of  1877,  refers  to  suits  by 
persons  claiming  on  the  death  of  a  Hindu  or  Mahomedan 
female  under  an  independent  title,  in  the  same  way  as  in 
respect  of  suits  by  remainder-men,  reversioners,  and  others, 
Article  140  does.  It  does  not  apply  to  the  case  of  a 
person  suing  on  the  very  same  cause  of  action  which 
accrued  to  a  female,  and  suing  by  right  of  being  her 
heir. 

(h)  In  Bhala  Nahana  0.  Parbhu  Hari,W  a  member  of 
the  Talabda  Koli  caste  of  Hindus,  by  an  express  promise 
to  settle  his  property  upon  the  boy,  induced  the  parents 
of  the  defendant  to  give  him  their  son  in  adoption,  but 
died  without  having  executed  such  settlement.  In  such 
a  case,  the  equity  to  compel  the  heir  and  legal  represen- 
tative of  the  adoptive  father  specifically  to  perform  his 
contract  survived  and  the  property  in  the  hands  of  his 
widow  was  bound  by  that  contract.  Therefore,  when 
the  widow  of  the  adoptive  father,  nearly  30  years  after 
his  death,  gave  effect  to  his  undertaking  by  executing  a 
deed  of  gift  of  his  property  in  her  hands  in  favor  of  the 
adopted  son,  it  was  held  that  such  an  alienation  was 
valid  as  against  the  next  heir  by  blood  of  the  adoptive 
father,  and  he  could  not,  on  the  death  of  the  widow,  avail 
himself  of  the  plea  of  limitation  which  she  had  waived. 


142. — For  possession  of  im- 
moveable property, 
when  the  plaintiff, 
while  in  possession  of 
the  property,  has  been 
dispossessed  or  has  dis- 
continued the  posses- 
sion. 


Twelve  years, 


The  date  of  the  dis- 
possession or  dis- 
continuance. 


(1)  I.  L.  R.,  2  Bom.,  67. 


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ART.  142]       THE  SECOND  SCHEDULE,  FIB8T  D1YI8ION-H9UIT8.  549 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran, 


Past  VIII. 
Twelve  years. 

(a)  (No.  148,  Act  IX.)  Garth,  C.  J.,  observes:  "I  -  Disposse*. 
think  the  words  "  dispossession"  and  "  discontinuance"  continuance^*" 
(which  are  borrowed  from  the  English  Limitation  Act  of  cases7  where10 
William  IV)  apply  only  to  cases  where  the  owner  of  land  has-been  SS* 
has,  either  by  his  own  act,  or  that  of  another,  been  Somlnbm  over 
deprived  altogether  of  his  dominion  over  the  land  itself,  of  ^profits!* 
or  the  receipt  of  its  profits." 

(b)  "  But  where  the  owner,  in  the  exercise  of  his  own  owner  permit- 
proprietary  right,  permits  some  other  person  to  occupy  his  occupy  land  5 
land,  or  to  receive  his  rents,  then,  whether  the  relation  of  See  of?^*" 
landlord  and  tenant  exists  between  the  parties  or  not,  I  MMlon> 
consider  that  the  possession  of  the  owner  is  not  discon- 
tinued, because,  under  such  circumstances,  the  possession 

of  the  occupier  is  the  possession  of  the  owner."     Gobind 
Lall  Seal  v.  Debendro  Nath  Mullick.W 

(C)     In  a  suit  brought  by  plaintiff  to  recover  posses-  Limitation  runs 
sion  of  certain  lands  from  which  his  father  had  been  dis-  o^S^iease^ 
possessed  during  the  unexpired  term  of  a  lease  granted  £$?  to*reeow 
by  him  to  a  Ticcadar,  it  was  held  that  the  preponderance  J^bsforeS8-*" 
of  authority  in  India  was  in  favor  of  the  view  that  limita- 
tion ran  from  the  date  of  the  expiry  of  the  ticca,  and  not 
from  the  time  when  the  defendant  had  been  held  by  the 
court  to  have  dispossessed  the  plaintiff's  father.     Sheo 
Sohye  Roy  v.  Luchmeshur  Singh.<2> 

(d)     In  Juggobundhu  Mukerjee  v.  Bam  Ghunder  By-  Defendant  fan- 
sack,<3)  the  decree-holder  who  obtained  symbolical  posses-  Eg ren£  duTto 
sion  of  lands  in  the  occupation  of  the  tenants  awarded  to  amounts  to  dis- 
him  by  a  decree  having  lost  possession  sued  for  it.     The  voemmmm* 
court  held  that  as  against  third-parties  such  symbolical 
possession  is  of  no  avail,  because  they  are  not  parties  to 
the  proceedings.     But  if  the  defendant  subsequently  dis- 
possesses the  plaintiff  by  receiving  the  rents  and  profits, 

(1)  I.  L.  R.,  6  Calc,  811.        |     (2)  I.  L.  R.,  10  Calc,  577. 
(3)  I.  L.  R.,  5  Calc,  584. 


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THE  SECOND  8CHEDULE,  FIRST  DIVISION— SUITS.       [ABT.  142 


Description  of  suit. 


The  meaning  of 
the  Article  U 
that  where 
there  has  been 
possession  fol- 
lowed by  dis- 
continuance of 
possession,  time 
runs  from  dis- 
continuance 
whether  there 
has  or  has  not 
been  adverse 


Plaintiff  aeek- 
ing  for  posses- 
sion on  the 
ground  of  dis- 
possession 
should  show 
possession  by 
him  within 
twelve  years 
before  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelve  years, 

the  plaintiff  will  have  twelve  years  from  each  disposses- 
sion to  bring  another  suit. 

(6)  In  a  suit  to  recover  possession  of  a  house,  the 
plaintiffs  alleged  that  their  predecessor  in  title  had  per- 
mitted A,  the  father  of  the  defendants,  to  occupy  the  house 
in  question  without  paying  any  rent  for  it,  and  that  since 
A's  death,  which  took  place  about  20  years  before  the 
institution  of  the  suit,  the  defendants  had  been  permitted 
to  reside  therein  without  paying  rent.  The  defendants 
contended  that  the  plaintiffs'  predecessor  in  title  had  made 
gift  of  a  house  to  A,  that  he  had  remained  in  possession 
of  it  until  his  death  ;  and  that,  since  then,  they  had  been 
in  possession  of  the  house  by  virtue  of  the  gift.  It  was 
held  that  the  suit  was  barred  by  limitation  under  Act 
XV  of  1877,  schedule  2,  Article  142.  The  meaning  of 
Article  142  is,  that,  where  there  has  been  possession 
followed  by  a  discontinuance  of  possession,  time  ruus  from 
the  moment  of  its  discontinuance,  whether  there  has  or 
has  not  been  any  adverse  possession,  and  without  regard 
to  the  intention  with  which,  or  the  circumstances  under 
which  possession  was  discontinued.  Gobind  Loll  Seal  v. 
Debendro  Nath  Mullick.W 

(f)  In  Bhootnath  Chutterjee  v.  Kedarnath  Baner- 
jee,<*)  plaintiff  sued  for  possession  of  land  on  the  ground 
that  the  defendant  by  falsely  alleging  that  he  bad 
obtained  the  land  as  gift  from  plaintiff's  father  got 
himself  registered  as  the  owner  thereof  under  Bengal 
Act  VIII  of  1876.  The  defence  was  that  the  suit  was 
barred  and  that  plaintiff's  father  had  made  a  verbal  gift 
of  the  land  which  has  been  with  defendant  for  25  yean. 
It  was  held  that  until  the  plaintiffs  could  show  that  th^r 
suit  was  not  barred  by  limitation, — that  is  to  say,  that  the\ 
were  in  possession  within  twelve  years  from  the  date  of  \ 
(1)  I.  L.  IL,  5  Cftlo.,  679.       |       (2)  I.  L.  R.,  9  Calo.,  126. 


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AHT.  142]       THE  SECOND  SCHEDULE,  FIRST  DIVISION— SUITS.  551 


~    .   . .        -      ..  Period  of 

Description  of  «mt.  limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelve  years. 

the   suit, — they   could   not  call  upon   the  defendant  to 

prove  his  title  nnder  the  alleged  verbal  gift.     Prinsep,  JM 

observes  :    **  To  make  out  his  cause  of  action  in  a  case  of 

this  kind,  the  plaintiff  had  to  a  how  the  date  on  which  he 

was  dispossessed, — that  is  to  say,  to  show  that  either 

ou  the  particular  date  on  which  he  stated  the  disposition 

to  have  taken  place,  or  some  other  period   within  twelve 

years  from  the  date  of  institution  of  the  suit,  he  was  in 

possession  of  his  land.    As  an  authority  for  this  view  of  the    Under  the  for* 

law,  we  could  refer  to  the  judgment  of  the  Privy  Council    Act  mm*i  *c- 

in  the  ease  of  Rajah  Sahib  Perhlad  Sein  v.  Maharajah   i™«it  Acttb* 

Rajender  Ki  shore  Singh,*1*  Dawk  ins  v*  Penrhyn,*a>  and   which  iimita- 

Noyes  e.  Craw  ley,  ^    Under  the  former  Limitation  Act,    ran,  muat  hara 

the  cause  of  action,  and  under  the  present  law  the  event   tht  pre*arii»a 

from  which    limitation    is   declared   to  ran,  must  have   pen 

occurred  within  the  prescribed  period,  and  it  lies  on  the 

plaintiff  to  show  this. 

(g)     Accordingly,  where  the  suit  is  for  possession,  and  When  cn«w  or 
canse  of    action  is  dispossession,  the  plaintiff  is  bound  §6&*>on, plaintiff 

.  ...  is  houna  to 

to  prove  possession  and  dispossession  within  twelve  years,  pwt*  now*. 

■ion  anddUpG*- 

Possossion   is  not  necessarily  the  same  thine-  as  actual   wwsio *  within 

#  tweiirc  ymfc 

user.     When  land  has  been  shewn  to   have  been  in  a 

condition  unfitting  it  for   actual  enjoyment  in    the  usual 
modes,  at  such   a   time  and  nnder   such  circumstances 
that  that  state  naturally  would,  and  probably   did  con- 
tinue till  within  twelve  years  before  suit,  it  may  properly   For  tha  cue  of 
be  presumed  that  it  did  so  continue,  and  that  the  previous  actual  cnjoy- 
possession  continued  also   until  the   contrary   is  proved,   mima  wtmie. 
Such  a  presumption  is  in  no  sense  a  conclusive  one.     Its 
bearing  upon  each  particular  case  must  depend  upon  the 
circumstances  of  that  case.      Many  acts  which  would  be 
clearly  adverse,  and  might  amount  to  a  dispossession  as 


(1)  12  Moore's  I.  A.,  337.       |  (2)  4  App.  Caa,  5L 

(3j   10  Ch.  31f  36. 


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552  THB  SICOVD  SCHKPPH,  FIMT  DITUJOV — SUITS.       [aK.  142 


Period  of 


!  pact  vm. 

JTwelveyears. 

between  a  stranger  Mid  the  true  owner  of  land,  would 
between  joint-owners  naturally  bear  a  different  construc- 
tion. Mahomed  AH  Khan  v.  Khaja  Abdul  Gunny.M 
When  a  person  seeks  to  eject  persons  from  premises 
claimed  by  him,  on  the  grumnd  that  they  are  in  wrongful 
possession  of  the  premises,  he  is  bound  to  show  that  he 
or  some  of  the  persons  under  whom  he  claims  hare  been 
in  possession  of  the  property  within  twelve  yean  before 
suit.  A  mere  allegation  in  the  plaint  that  the  persons 
sought  to  be  ejected  were  the   tenants  of  the  person 

SvwbompkZI   through  whom  the  plaintiff  claims,  will  not  shift  the 

not  Am  the     burden  of  proof.     Gopaul  Ch  under  Chnckerbntty  v.  Nil- 

barf*a*prooL  money  Mitter.W 

Whenptaintfff  (h)  In  a  suit  to  recover  possession,  where  defendant 
pleads  limitation  and  plaintiff  proves  that  the  commence- 


dutebuoM  mi  ment  of  the  possession  of  the  party  through  whom  defen- 

tonsiitb  it  is  tor 

defendant  dant  claims  was  as  tenant,  it  is  for  the  party  who  sets 

pleading  timi-  ,  ,  #».-.*  . 

te*ion  to  pro*e  up  the  plea  of  limitation  to  show  when  the  nature  of 

of  poeeeestoa  that  possession  was  changed,  and  how  it  became  adverse. 


Ramdhnn  Satra  v.  Nobin  ChunderJ3> 
Oeeppeaej  (i)     The  only  remedy  for  a  party  in  the  position  of  an 

olberir&etaui  occupancy  ryot,  who  alleges  he  has  been  ejected  in  contra- 
nfot  Acfvm  ventionof  the  proviso  to  sections  22  of  Bengal  Act  VIII  of 
rae1^'  mmm.  1869,  is  a  suit  on  the  ground  of  the  illegal  ejectment,  and 
^fe»ej£S  8nch  a  8uit  mu8t>  xmder  section  27,  Bengal  Act  VIII  of 
1869,  be  brought  within  one  year  from  the  ejectment. 
Golabolee  v.  Kootoobootlah  Sircar.  W  Section  27  of  Bengal 
Act  VIII  of  1869,  applies  only  to  such  suits  for  possession 
as  the  court  is  asked  to  decide  irrespectively  of  any  title, 
but  simply  on  the  ground  that  the  plaintiffs  have  been 
ousted  otherwise  than  by  legal  means  ;  Forbes  v.  Sree  Lai 
Jha.(6>     Where  landlord  does  not  himself  directly  take 

(1)  I.  L.  R.,  9  Calc,  744.        I      (3)  12  W.  R.,  250. 

(2)  1.  L.  &.,  10  Calc,  374.      |      (4)  I.  L.  B.,  4  Gate.,  627. 
(5)  1.  L.  &.,  8  Gftlc.,  365. 


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ART.  143]      TBI  SECOND  SCHEDULE,  91EST  DIVISION — SUITS. 


553 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelve  years. 

steps  to  interfere  with  the  rights  of  cultivation  of  his 
tenants,  hut  does  so  to  other  persons  whose  acts,  he  may,  if 
it  so  pleases  him,  afterwards  ignore,  he  is  not  in  a  position 
to  set  up  a  special  plea  of  limitation  under  the  Bent  Law. 
Kallida    Pershad  Dutt  v.   Ram   Hari   Chuckerbutty.W 
Where  a  tenant's  suit  is  both  in  form  and  substance  one  to 
recover  possession  on  the  ground  of  illegal  dispossession  by 
the  landlord,  the  insertion  in  the  plaint  of  a  claim  for  decla- 
ration of  the  plaintiff's  title  is  not  sufficient  to  prevent  the 
application  of  the  limitation  prescribed  by  section  27  of  Act  x  of  i860 
Bengal  Act  VIII  of  1869.     Imam  Buksh  Mondul  v.  Momin  jurisdiction  of 
Mondul,<2>  Clause  6,  section  23,  Act  X  of  1859,  referred  over  suite  in 
only  to  possessory  suits.     It  did  not  bar  the  jurisdiction  of  seeks  for  deoia- 
Civil  Courts  over  suits  in  which  plaintiff  seeks  to  have  his  and  for  posses- 
title  declared  and  possession  given  him  in  pursuance  of  ance  of  that1* 
that  title.     Gooroo  Doss  Roy  v.  Bishtoo  Churn.*3) 


title. 


When  the  forfeiture 
is  incurred  or  the 
condition  is  broken. 


143. — Like    suit,    when    the  Twelve  years, 
plaintiff  has  become  en- 
titled by  reason  of  any 
forfeiture  or  breach  of 
condition. 

(a)     (No.  144,  Act  IX.)     A  Hindu  widow,  under  an  Saiebyaffindu 
arrangement  dated  1826,  with  her  deceased  husband's  husband's  pro- 
cousin,  was  in  possession  for  life  of  a  share  of  an  ancestral  held  under  an 
property  of  her  husband's  family,  in  which  he,  jointly  with  wSaher 
the  cousin,  had  held  a  share  in  his  lifetime.     This  share  cousin  was  held 
she  sold  in  1845,  as  if  she  had  held  an  absolute  interest,  condition  or 
and  the  purchaser's  name  was  entered  instead  of  hers  in  ingtheroudn^s 
the  revenue  records ;  but  no  change  of  possession  took  lion  w^iun^i 
place  till  her  death,  which  occurred  in  1862.     To  a  suit  Article# 
brought  in  1874 by  the  cousins'  heirs  to  recover  the  property 
purchased  from  the  widow  more  than  twelve  years  after 
the  sale,  but  less  than  twelve  years  after  the  widow's 

(1)  I.  L.  E.,  5  Calc,  317.        |       (2)  I.  L.  R.,  9  Calc,  280. 
(8)  7  W.  B.,  186. 

70 


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554  THK  8KCOBD  SCHEDULE,  FIRST  DIVISION 8UIT8.       [ART.  143 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VTII. 
iTwelve  years. 

death,  the  defence  was  limitation  under  Act  IX  of  1871, 
schedule  2,  Article  144,  commencing  from  the  date  of  the 
sale,  there  having  been,  it  was  alleged,  "  a  breach  of  con- 
dition or  forfeiture"  within  the  meaning  of  that  clause. 
By  the  terms  of  the  arrangements  contained  in  a  solenama* 
the  widow  was  to  have  no  power  to  alienate,  and  after  her 
death  her  share  was  to  belong  to  the  cousin.  It  was  held, 
that  these  terms  prohibited  only  such  an  alienation  by 
the  widow  as  would  prevent  the  cousin's  succeeding  after 
her  death,  and  the  alienation  made  was  good  for  the 
p.  c.  obwrre     widow's  lifetime.    The  Privy  Council  observe :  "  The  terms 

that  there  are 

no  words  of  for-  of  the  compromise  are,  that  the  property  shall  remain  in 

foiture,  end  it 

would  be  a  very  equal  shares  in  the  joint  possession  and  enjoyment  of 

strong  thifiy  to 

import  a  forfei-  the  two  parties ;  but  the  Mussamat  Mainan  shall  have  no 

tore  where  the  _.  .  ,  , 

parties  have  not  power  to  alienate  the  moveable  or  immoveable  properties, 

provided  for 

one  and  where  and  after  her  death,  those  properties  shall  be  the  right 

there  is  no  role 

of  law  attaching  of  Kill  dip  Ram.     There  are  no  words  of  forfeiture  and 

forfeiture  to  a 

particular  Act.  it  would  be  a   very  strong  thing  and  a  very  unusual 
thing  to  import  a  forfeiture  where  the  parties  have  not 
provided  for  one,  and  where  there  is  no  rule  of  law  at- 
taching forfeiture  to  a  particular  Act.     But  in  point  of 
fact,  the  language  of  the  deed  of  compromise  points  to 
quite  a  different  result."     It  was  held,  accordingly,  that 
Article  144  did  not  apply,  and  the  suit  was  not  barred 
by  limitation.     Bibi  Sahodra  v.  Rai  Jang  Bahadur,  t1) 
Suit  for  cancel-       (b)     In  Sadha  v.  Mussumat  Bhagwani,W  in  November, 
gage  deed  and    1873,  M  sued  for  the  cancelment  of  a  deed  of  usufructuary 
ground  of  mortgage  executed  by  her  in  November,  1856,  and  for  the 

tion  to  pay  a  ejectment  of  the  mortgagees  on  the  ground  of  the  breach 
held  to  fa5  un!  of  a  condition  in  the  deed  that  the  mortgagees  should  pay 
of  Act  ex  of      her  a  life   annuity  of  Rs.  15,  during  the  term  of  the 

1871 

mortgage  (20  years)  and  also  after  foreclosure,  otherwise, 

on  any  failure,  they  would  be  liable  to  ejectment  and  to 

(1)  I.  L.  £.,  8  Calc,  224.      |    (2)  7  N.-W.  P.  H.  C.  E^  58. 


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ART.  144]       THB  SECOND  8CHKDULI,  FIRST  DIVI8ION — S0IT8. 


555 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VIII. 
Twelve  years. 

the  forfeiture  of  the  mortgage.  It  did  not  appear  that 
any  payments  of  the  annuity  had  been  made.  The  plea 
of  limitation  having  been  taken,  the  Lower  Courts  held 
that  the  suit  was  within  time  as  the  case  fell  within 
Article  148,  schedule  2,  Act  IX  of  1871.  It  was  held  in 
Special  Appeal  that,  assuming  that  they  were  in  error  in 
so  holding,  the  case  was  governed  by  Article  144,  and  the 
provisions  of  section  23  enabled  the  plaintiff  to  treat  each  section  23  of 
failure  to  pay  the  stipulated  annuity  as  a  new  breach,  isn,  enabled 

plaintiff  to  treat 

giving  a  new  right  to   eject,   and  that  the  suit  was  each  failure  to 

.  psy  *s  a  new 

therefore  within  time.  It  was  also  held,  that  if  there  Sreach. 
had  not  been  so  many  successive  breaches,  and  if  the 
defendants  had  at  any  time  brought  into  court  the 
arrears  with  interest  or  offered  to  do  so,  the  courts  below, 
although  they  could  not  have  passed  a  decree  for  the 
money,  might  have  withheld  a  decree  for  enforcing  the 
forfeiture. 


When  the  possession 
of  the  defendant 
becomes  adverse  to 
the  plaintiff. 


144. — For  possession  of  im-  Twelve  years, 
moveable  property  or 
any    interest    therein 
not  hereby   otherwise 

specially  provided  for. 

• 

(a)     (No.  145,  Act  IX;  s.  1,  c.  12,  Act  XIV.)     Markby,  what  is  meant 
J.,  observes  :   "  By  adverse  possession,  I  understand  to  be  sesifon?86  P°*" 
meant  possession  by  a  person  holding  the  land  on  his  own 
behalf,  of  some  person  other  than  the  true  owner  having  a 
right  to  immediate  possession.     If  by  this  adverse  posses- 
sion the  Statute  is  set  running,  and  it  continues  to  run  for 
twelve  years,  then  the  title  of  the  true  owner  is  extinguised 
and  the  person  in  possession  becomes  the  owner.     One  who  One  who  holds 
holds  possession  on  behalf  of  another,  does  not  by  a  mere  another,  does 
denial  of  other's  title  make  his  possession  adverse  so  as  to  ria^oY^othe^r 
give  himself  the  benefit  of  the  Statute  of  Limitation.,,  title  make  his 

*"*  nntUMinn    art 

Bejoy  Chunder  Bannerjee  t>.  Kally  Prosonno  Mookerjee.O) 
(1)  I.  L.  R.,  4  Calc,  327. 


possession  ad- 
verse. 


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556  THE  SECOND  SCHEDULE,  FIB8T  DIVISION— SUITS.       [AET.  144 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelve  years. 

"  Advene  pos-       (b)    In  Umr-un-nissa  v.  Muhammad  Yar  Khan/1)  plain- 
proprietary        tiff  and  defendants  were,  according  to  the  Mahomedan  Law 
not^ento^ent    of  inheritance,  heirs  of  their  father  who  died  in  1861, 
mortgagor. y      leaving  a  zemindari  estate,  a  moiety  of  which  at  the  time 
of  death  was  in  the  possession  of  a  mortgagee.     The  defen- 
dants since  caused  their  names  to  be  recorded  as  heirs  to 
the  exclusion  of  the  plaintiff  and  appropriated  to  their  own 
use  continuously  for  more  than  twelve  years  the  profits  of 
the  unmortgaged  moiety  and  the  malikhana  paid  by  the 
Defendant's  ex-  mortgagee  of  the  mortgaged  property.      In   1877,  the 

elusive  posses-      ,    _  ^V°  ,  _     ,  e^    .  .  ,      ,     . 

sion  of  the  on-  defendants  redeemed  the  moiety  with  their  own  money 
moiety  from       In  1878,  the  plaintiff  sued  for  possession  of  her  share  of 

fathers  death  in 

i86i(  was  held     the  estate.     The  court  rejecting  his  claim  for  share  in  the 

adverse  while  /J       ^       ,     ,     . 

enoiusive  enjoy-  unmortgaged  moiety  on  the  ground  of  adverse  possession, 
the  mortgaged  held,  with  reference  to  the  mortgaged  moiety,  that  the 
^"adverse  till  defendant's  possession  did  not  become  adverse  within  the 
1877.  meaning  of  this  Article,  on  the  death  of  the  father  in  1861, 

but  on  the  redemption,  in  1877,  it  became  adverse,  mean- 
ing the  same  sort  of  full  proprietary  possession  as  the 
plaintiff  claimed,  and  that  the  suit  with  respect  to  that 
moiety  was  therefore  within  time. 
h^'SSTSSlt       (°)     In  SoDnaS  Chand  Gulab  Chand  v.  Bhai  Chand.(*> 
So?  between10"  ^e8fcroP>   *>.   J.,   observes,    in    Raja  Enayet  Hossain  v. 
the  right  of  a     Girdhari  Lall/8)  "  the  question  was  one  of  limitation,  and 
Satofaerivate  w^a^  fckeir  Lordships  said — was  that  there   was,  as  to 
purchaser,  sim-  limitation,  no  distinction  in  favour  of  the  purchaser  at 

ply  expressed  '  r 

▼afof^ePvtow  a  iu^c^  8a^e  between  his  right  and  that  of  a  private 

of  C.  H.  purchaser,  and  in  this  remark  they  were  simply  expressing 

their  disapproval  of  the   view   of   the   High   Court  of 

Calcutta,  that,  although  the  suit  of  a  private  purchaser 

might  have  been  barred  by  lapse  of  time,  the  suit  of  a 

purchaser  at  a  judicial    sale   was  not   so  barred.     In 

(1)  I.  L.  E.,  3  All.,  24.  |     (2)  I.  L.  R.,  6  Bom.,  206. 

(3)  12  Moore's  Ind.  App.,  366. 


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ART.  144]       TH1  8BCOND  SCHEDULE,  FIEST  DIVI8I0N SUITS.  557 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelve  years. 

the   second  case,   Anaodo  Moyee   v.   Dhonendro,^)   the  p.  c.  held  that 
Privy  Council  held,  that  the  possession  of  a  person  who  purchaser  at 
purchased  at  a  court  sale  in  execution  of  a  decree  against  execution  of  a 

,  .  ,      decree  against 

a  mortgagor  is  an  adverse  possession,  inasmuch  as  such  mortgagor  is  ad. 

purchaser  claims  to  be  the  owuer  of  the  whole  estate 

whether  he  be  so  or  not,  and  that,  consequently,  a  suit 

against  such  a  purchaser  is  barred  after  twelve  years." 

"  On  the  other  hand,  the  view  taken  by  the  Privy  Council 

in  Radanath  Doss  v.  Gis borne/2)  as  to  who  is  a  bond  fide  The  remarks  of 

purchaser  for  valuable  consideration  within    section  15  ease'  tend  to 

of  Act  XIV  of   1859,  and  the   remarks  there  of  Lord  would  hold  that 

^    •  *  i,  ..        ,     ..  .,  .a  purchaser  at 

Cairns  as  to  what  are  the  indispensable   averments  m  an  ordinary  sale 

,  -  ,  -  i-it  .-,  •  ...  under  Act  VIII 

a  plea  of  purchase  for  valuable  consideration  without   of  1859,  under  a 

money  decree 

notice  tend  strongly  to  show  that  their  Lordships  would  could  not  be  re- 
hold  that  a  purchaser  at  an  ordinary  judicial  sale  under  londjuu  pur- 
Act  VIII  of  1859,  under  a  mere  money  decree  could  not  solute  interest 
be   regarded   as  a  bond  fide   purchaser  of    an  absolute 
interest  without  notice,  and  could  not  truly  make  the 
averments  requisite  for  a  plea  that  he  was  so. 

(d)     In    Kristo   Comul  Hitter  v.     Suresh    Chunder  insolvents  pos- 

Deb,W  plaintiff's  brother  was  declared  an  insolvent  in  acquired  pro- 

1860,  but  never  obtained  his  final  discharge.     In  1862,  twelve  years 

by  the  death  of  his  father,  he  became  entitled  to  certain  the  official 


family  property  as  one  of  three  sons,  and  continued  in 
undisturbed  possession,  and  the  Official  Assignee  never  in- 
terfered or  made  any  claim  so  long  as  the  property  was 
undivided.  In  1876,  the  plaintiff  and  his  third  brother 
sued  for  division  and  obtained  a  decree  in  1877,  and  the 
insolvent  remained  in  possession  of  his  divided  share,  the 
Official  Assignee  making  no  claim.  In  June,  1880,  the 
insolvent  sold  his  interest  to  the  defendant,  who  was 
found  to  have  purchased  it  in  good  faith  without  notice 

(1)  14  Koore'slnd.  App.,  101.      |    (2)  14  Moore's  Ind.  App.,  1. 
(3)  I.  L.  R.,  8  Calc,  556. 


Assignee. 


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558*  THB  8BC0ND  SCHEDULE,  FIRST  DIVISION — SUITS.       [ABT.  144 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelve  years. 

and  paid  full  value.     In  December,  1880,  the  plaintiff 
purchasing  the  same  share  from  the  Official  Assignee  for 
a  small  sum,  and  with  full  knowledge  of  the  defendants 
purchase,   sued    for  possession.     It  was   held  that  the 
insolvent's   possession   from    1862,  was   adverse  to  the 
Official  Assignee  so  as  to  bar  his  title  by  lapse  of  time. 
An  insolvent      It  was  further  held,  that  subject  to  the  right  and  claim 
tained  fln&i  dis-  of  the  Official  Assignee,  and  so  long  as  he  does  not  inter- 
power  with  res-  fere,  an  insolvent  who  has  not  obtained  his   final  dis- 
quired  property  charge  has  power,  with  respect  to  after  acquired  property, 
7  *  to  buy  and  sell,  and  give  discharges,  and  do  all  other  acts 

which  he  could  have  done  before  insolvency. 

Collector's  pos-       (e)     In  Karan  Singh   v.     Bakar  Ali   Khan,*1)  P.    C. 
session  of  land  v-**^  o  » 

for  revenne  is    held  under  the  corresponding  Article  (145)  of  Act  IX  of 

not  adverse  by 

reason  of  his      1871,  that  where  the  Government,  in  the  Revenue  Depart- 

paying  the  sur- 

plus  collection     ment,  has  taken  possession  of  land,  it  is  the  duty  of  the 
claimant.  Collector,  after  payment  of  the  revenue  and  the  expenses 

of  the  collection,  to  pay  over  the  surplus  proceeds  of  the 
estate  to  the  true  owner.      The   Collector's  possession 
does  not  become  adverse  to  the  owner  by  reason  of  his 
making  this  payment  to  another  claimant. 
Possession  by  (f)     In    Dadoba  v.      Krishna/2)  the  plaintiffs    sued 

one  of  three  do-         v*'  .  .  #.r 

noes,  without     for  possession  of  a  third  share  in  certain  immoveable  pro- 
intimation  to  r  r 
the  other  two      perfcy,  alletrine:  that  they  were  entitled  to  it  under  an 

that  such  was       r       J  7  °     °  " 

opposed  to  their  agreement  dated  the  1st  December,  1848,  and  executed  by 
not  adverse.  one  Balaji,  deceased.  By  that  document,  Balaji  appoint- 
ed as  successors  to  his  estate,  after  his  death,  three 
persons  B>  JB,  (plaintiff's  father)  and  8  on  condition  that 
they  should  maintain  him  during  the  remainder  of  his 
life,  pay  off  his  debts  and  perform  his  obsequies.  Ac- 
cordingly one  of  the  three  donees,  B,  lived  with  Balaji  and 
managed  the  property.  Balaji  died  in  1852.  B  continued 
to  manage  the  property  till  his  own  death  in  1865, 
(1)  I.  L.  R.,  5  All.,  1.  |         (2)  I.  L.  R.,  7  Bom.,  84. 


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ART.  144]       THB  SECOND  8CHBDDLB,  FIE8T  DIVISION — SUITS. 


559 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which 
period  begins  to  run. 


Part  VIII. 
Twelve  years. 

when  By8  eldest  son  took  np  the  management,  and  he  and 
the  other  heirs  of  B  subsequently  gold  a  portion  of  the 
property.  The  suit  was  principally  against  the  sons  and 
heirs  of  B  and  the  purchaser.  The  plaint  was  field  on 
the  8th  September,  1873,  and  alleged  (inter  alia)  that  B 
managed  the  property  as  trustee.  The  defence  substan- 
tially was,  that  B  held  it  exclusively  as  owner  and  not  as 
trustee,  and  that  the  suit  was  barred  by  limitation. 
Both  the  Lower  Courts  dismissed  the  suit  as  barred  by 
limitation,  holding  that  B's  possession  was  adverse  and 
that  B  had  no  possession  or  enjoyment  within  twelve 
years  previously  to  the  institution  of  the  suit.  On  appeal 
the  High  Court  held,  that  B's  possession,  whether  it 
commenced  before  the  death  or  only  on  the  death  of 
Balaji,  was  held  after  that  event  consistently  with 
and  in  fulfilment  of  the  agreement.  B  having  entered 
into  possession  and  been  left  in  possession  in  the  first  ins- 
tance in  accordance  with  the  contract,  could  not  change 
the  character  of  the  possession  by  his  mere  will.  He  did 
not  intimate*  to  B  or  S  that  he  repudiated  the  contract 
and  intended  to  go  into  possession  in  opposition  to  any 
rights  which  they  might  assert.  As  he  entered  and 
continued  to  hold  in  a  character  consistent  with  the  sub- 
sistence of  Jiheir  rights,  they  were  never  called  on  to  eject 
him  or  \**ot  >  *her  process  to  establish  rights  which  were 


b^'-a  -here  subsisted  any  contract,  express 


not  denie^ 

or  imp/  4£e"®*]iw*G  parties  in  and  out  of  possession 

to  whi  ^       might  be  referred  as  legal  and 

mounced  adverse. 

'fobind  Dhur  v.    Hari  Churn 
^bia  v.  Bhobo  Pershad 
jssion  taken  by  a/ re s- 
aara  lease  does. 


proper 

(g) 

Dhur,( 

Khan  ^ 
passer  during  - 


(1)  1.  L.  K.,  9  Can.., 


z  I.  L.  E.,  13  Calc,  10?1' 


While  a  contract 
subsisted  be- 
tween parties  in 
and  out  of  pos- 
session to  which 
the  possession 
might  be  refer- 
red as  legal,  it 
could  not  be 
pronounced  as 
adverse. 

C.  H. 

Trespasser's 
possession  dur- 
ing the  cur- 
rency of  an 

begins  to 

-o  after 

of 


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560  THK  8KCOND  8CHKDULE,  F1R8T  D1VI8I0N — 8UIT8.       [AET.  144 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelve  years. 

come  adverse  to  the  Zemindar  (lessor)  until  the  expiration 

of  the  term,  and  a  suit  for  possession  may  be  brought  within 

twelve  years  of  that  date  under  the  provisions  of  this  Article- 

Possession  by         (h)     In  Durga  Prasad  v.  Shambhu  Nath/^the  mort- 

purchaser  from  -      ,  .    .  .    ,  ,.    .  .  , 

mortgagor  and  gagee  had  a  right  to  immediate  possession  under  a  regis- 

uSde^decree1^    tered  deed  of  mortgage  dated  May,  1869,  but  by  arrange- 

he^dPrnotmad-°n  ment  between  the  parties,  the  mortgagors  remained  in 

mortgagee         possession,  the  right  of  the  mortgagee  to  obtain  possession 

possession  was  as  against  them  being,  however,  kept  alive.     In  October, 

1869,  the  mortgagors  sold  the  property,  and  thereupon 

one  R  brought  a  suit  to  enforce  the  right  of  pre-emption 

in  respect  of  the  sale  and  obtained  a  decree,  and  got  the 

property  and  sold  it  in  1871  to  D.     In  1883,  the  mortgagee 

brought  a  suit  against  D  to  obtain  possession  under  his 

mortgage.     It  was  contended  that  the  pre-emptor  and  his 

vendor  having  been  in  adverse  possession  of  a  share  of 

the  village  for  more  than  twelve  years,  the  suit,  as  regards 

that  share,  was  barred  by  limitation.     It  was  held  that 

The  position  of  the  position  of  a  person  who  purchased  property  by  assert- 

a  person  who     ....  .  ,  » 

purchases  by  ing  a  right  of  pre-emption  was  not  analogous  to  that  of 
right  of  pre-  an  auction-purchaser  in  execution  of  a  decree,  but  that 
analogous  to      such  person  merely  took  the  place  of  the  original  pur- 

thatofanauc-     ,  r        ,        A         ,  .    x     A,  r  ,,,,.,., 

tion-pnrchaser  chaser  and  entered  into  the  same  contract  of  sale  with  the 
a  decree.  vendor  that  the  purchaser  was  making,  and  that  there  was 

privity  between  him  and  the  vendor,  and  he  came  in  under 
the  vendor,  and  his  holding  must  be  taken  to  be  in  acknow- 
ledgment of  all  obligations  created  by  his  vendor.  It  was 
further  held,  that  although  it  would  be  material  to  show 
that  the  defendant  had  in  any  way  by  fraud  been  kept 
out  of  knowledge  of  the  mortgage,  his  not  having  notice 
of  it  would  not  otherwise  affect  his  liability,  inasmuch 
as  ***&  principle  on  which  the  Courts  of  Equity  in  England 
to  manfo  interfere  against  bond  fide  purchasers  for  a 
(  (1)  I.  L.  R.,  8  All.,  86. 


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ART.  144]        THE  8BC0ND  SCHEDULE,  PIBST  DIVISION — SUITS.  561 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelve  years. 

valuable  consideration  without  notice,  when  clothed  with 
the  legal  title,  had  no  applicability  in  the  courts  of 
British  India. 

(i)  In  Shiro  Knmari  Debi  v.  Govind  Shaw  Tanti,(1>  Declaration  of 
a  declaration  of  title  may  be  made  npon  proof  of  twelve  made  on  twelve 
years'  adverse  possession  and  that  snch  declaration  cannot  possesion  dis- 

,  _  ,  ,  ,.     .  ,     ,    .      ,_        tinctly  stated  in 

however  be  given  on  a  title  not  distinctly  stated  in  the  plaint  or  raised 

.  #  #  in  the  issue. 

plaint  or  the  issues.  When  a  plaintiff  claims  a  title  npon  (April  1877.) 
twelve  years'  possession,  he  mnst  draw  the  attention  of 
the  defendant  to  the  fact  that  he  is  going  to  claim  a  decla- 
ration npon  that  title  in  order  that  the  defendant  may  give 
his  own  evidence  and  scrutinize  the  evidence  of  the 
plaintiff  npon  that  point,  and  see  whether  possession  for 
twelve  years  is  proved,  and  whether  he  can  contradict  it 
during  any  portion  of  the  period.  He  mnst  at  least  clearly 
raise  that  question  in  the  issues  in  the  case. 

(j)  Suit  for  specific  performance  of  contract  of  sale  Suit  for  specino 
and  for  possession  is  not  governed  by  this  Article,  but  by  contract  of  sale 
Article  113.  The  contention  that,  so  far  as  the  suit  was  Son  faUsT>under 
for  possession  of  immoveable  property,  it  should  be  govern-  vendee's  suit  for 
ed  by  Article  144,  was  invalid.  The  right  to  possession  vendor  has  not 
sprang  out  of  the  contract  of  sale  and  the  relief  by  giving  nSed  to7put 
possession  was  comprised  in  the  relief  by  specific  perform-  session  fails 
ance  of  the  contract  of  sale,  and  could  not  be  governed  cie. 


in  this  suit  by  any  but  Article  113.  But  assuming  the 
suit  might,  so  far  as  limitation  was  concerned,  be  enter- 
tained, still  as  the  right  to  possession  was  dependent  on 
the  contract  of  sale,  if  the  suit  could  not  be  maintained 
for  specific  performance  of  the  contract,  it  could  not  be 
maintained  for  possession  of  the  property  sold  under  the 
contract.  Muhiuddin  Ahmad  Khan  v.  Majlis  Rai.W 
In  Sheo  Prasad  v.  Udai   Singh/3)  it  was  held  that  a 

(1)  I.  L.  R.,  2  Calc,  418.        |         (2)  I.  L.  R.,  6  All.,  2S1. 
(8)  I.  L.  R.,  2  All.,  718. 

71 

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562 


THE  SECOND  80HEDUL1,  FIRST  DIVISION — SUITS.       [ART.  144 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Suit  by  trustee 
held  barred  by 
twelve  yearar 
possession  by 
defendant  as 
trustee. 
(Jany.  1884.) 


Judgment-debt- 
or  suing  in  a 
different  capa- 
city for  proper- 
ty sold  in  auc- 
tion has  twelve 
years. 
(Dec.  1881) 


Bait  for  land  by 
avoidance  of  a 
deed  of  gift  falls 
under  this  Arti- 
cle, the  suit 
being  in  subs- 
tance one  for 
the  recovery  of 
real  property. 
(August  1882.) 


Part  VIII. 
Twelve  years. 

vendee's  suit  for  possession  againt  the  vendor  who  had  to 
recover  possession  under  a  decree  and  who  had  not  in  the 
conveyance  expressly  promised  or  undertaken  to  put  the 
vendee  in  possession,  was  not  a  suit  for  the  specific  per- 
formance of  a  contract.  It  is  governed  by  Article  136  or 
144.     (See  Note  F,  Article  113,  p.  454.) 

(k)  Where  a  person  purchased  from  one  of  the  two 
co-trustees  of  a  temple,  the  right  to  manage  the  affairs  of 
the  temple  and  enjoy  certain  land  which  formed  the 
endowment  of  the  temple  and  held  possession  of  it  for 
more  than  twelve  years,  it  was  held  by  the  Madras  High 
Court  that  a  suit  brought  by  the  other  trustee  against 
such  person  to  recover  the  land  was  barred  by  limitation. 
Kannan  v.  Nilakandan.W 

(1)  /  obtained  a  money-decree  against  0  as  the  re- 
presentative of  his  father  and  mother  and  bought  the 
plaint  land  in  the  execution  of  the  same.  0  subsequently 
brought  a  suit  for  possession  of  the  same  property  as 
trustee  under  a  deed  of  gift  to  a  family  idol.  /  con- 
tended that  the  suit  being  brought  one  year  after  the 
order  for  sale,  was  barred  by  the  Statute  of  Limitation. 
Held,  that  the  plaintiff  suing  in  a  different  capacity  can 
bring  the  suit  within  twelve  years  from  the  date  of  dis- 
possession, there  being  no  necessity  for  setting  aside  the 
court  sale  ;  Rupa  Jagshet  v.  Erishnaji  Govind.W 

(m)     In  Hazari  Lai  t>.  Jadaun  8ingh,<3)  plaintiffs  sued 

for  possession  of  real  property  by  right  of  inheritance 

under  Hindu  Law  by  avoidance  of  a  deed  of  gift  said  to 

have  been  fraudulently  and  collusively  brought  about.    It 

was  held,  that  in  substance  this  was  a  suit  for  the  recovery 

of  real  property,  and  that  a  prayer  for  the  avoidance  of  a 

deed  of  gift  would  not  alter  its  nature  and  character,  and 

(1)  I.  L.  R.,  7  Mad.,  887.      |        (2)  I.  L.  R.,  9  Bom.,  169. 
(3)  I.  L.  B.,  5  AH.,  78. 


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ART.  144]       THB  SECOND  SCHEDULE,  FIRST  DIVISION — SUITS.  563 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelve  years. 

a  abject  it  to  a  shorter  period  of  limitation,  and  that  Arti- 
cle 91  apply  to  suits  of  the  kind  mentioned  in  section  39 
of  the  Specific  Relief  Act. 

(n)     In  Nathu  v.  Badri  Das,<l>  the  plaintiff  alleging  fruit  for  pwae»- 
that  certain  immoveable  property  belonging  to  his  father  oonri MtemuS 
had  heen  sold  in  execution  of  a  decree  as  the  property  of  property/  ?Rii» 
another,  sued  the  purchaser  to  have  the  sale  set  aside  and   do. " 
to  recover  possession  of  the  property.     It  was  held  that 
the  suit  was  one  for  possession  of  real  property  to  which 
the  puriod  of  limitation  of  twelve  years  was  applicable. 

(O)     In  Debi  Prasad  v*  Jafar   Ali/3'  the  plaintiff  in   Plantar*  itiit 
possession  of  certain  land  who  lost  in  August,  1865,  his  (./r^HflSJy 
revenue  suit  to  have  declared  his  non- liability  to  pay  rent   E*  jv^^n" 
to  the  defendant,  and  who,  nevertheless,  paid  rent  to  the   dw  Article  us 
defendant  up  to  August,  1877,  instituted  this  suit  on  the   *"*  1™L 
said  date  for  a  declaration  of  his  proprietary  right  to  the  fjniie  is*U  ' 
land  as  against  the  defendant     It  was  held  that  the  suit 
was  governed  by  145  of  Act  IX  of  18715  as  the  suit  was 
substantially  a  suit  for  possession  of  immoveable  proper- 
ty, although  the  person  in  possession  asked  for  a  declara-  Bnh  for  ded*- 
tion  of  his  right.     It  was  further  held,  that  Articles  14  SEL*^ 
and  15  of  Act  IX  of  1871  did  not  apply,  as  there  wna  no  fw  e0"""1^ 
binding  decree  of  a  Ee venae  Court  which  the  plaintiff  was 
bound  to  have  set  aside  wit  bin  one  year, 

(p)     A  Hindu  who  held  certain  property  died  before        r,<x 
ia38,  having  instituted    a   worship   and    celebration   of  ^h^in- 
festivals.     His  son  died  in  1838,  leaving  a  widow  and  a  ^*Sftttle- 
widowed  mother.     One  Tr  father  of  the  minor  respondents,  o^mofh™?™1, 
was  one  of  the  relations  who  expected  to  bo  heirs  on  the  SSSSSf* 
death  of  both  the  widows.     In  1841,  the  daughter-in-law  ™£wj Z%*har. 
by  an  agreement  of  gift,  transferred  her  interest  in  her  (j^i^^*1* 
husband's  property  to  her  mother-in-law  for  the  perfor- 
mance of  the  worship    and    tho    festivals.     In    1865,  a 
(I)  I.  L,  H.T  5  AH,,  614.         J  (2  L  L.  R.,  3  All,  4a 

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564  THE  SECOND  SCHEDULE,  FIE8T  DIVISION — SUITS.        [ART.  144 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelve  years. 

creditor  of  the  mother-in-law  in  execution  of  his  decree 
sold  her  interest,  and  one  K  bought  it  and  obtained  pos- 
session of  the  property.     The  mother-in-law  died  in  1867, 
and  after  her  death,  the  daughter-in-law  and  T  executed 
to  the  plaintiff's  wife  an  agreement  in  February,  1876, 
giving  the  property  in  question  and   alleging  that  it 
reverted  to  them  on  the  death  of  the  mother-in-law. 
The  plaintiff's  wife  died  in  1878,  and  the  plaintiff  sued 
the  auction-purchaser  of  the  mother-in-law's  right  for 
possession.     The  Court  of  First  instance  rejected  the  suit 
as  barred  by  Article  144,  as  it  was  of  opinion  that  the 
auction-purchaser's  possession  for  more  than  twelve  years 
before  the  suit  was  adverse  both  to  the  mother-in-law 
and  the  daughter-in-law.     Their  Lordships  of  the  Privy 
Council  held  that  the  purchase  at  the  sale  in  execution 
of  the  right  and  interest  of  the  mother-in-law  could  not, 
as  between  the  purchaser  and  the  daughter-in-law,  be 
considered  to  fall  under  Article   134,   and  that  under 
Article  144,  which  gives  twelve  years  from  the  time  that 
possession  of  the  defendant  becomes  adverse  to  the  plain, 
tiff,  possession  during  lifetime  of  the  mother-in-law  was 
not  adverse  to  the  daughter-in-law  and  that  the  suit  was 
brought  within  twelve  years  of  the  death  of  the  mother- 
in-law:  Kalidas  Mullick  v.  Kanhaya  Lai  Pundit.*1) 
Person  failing        (Q)     In  Baghubar  Dyal  Sahu  v.  Bhikya  Lai  Misser,(*> 
withto^e,  an  the  father  of  the  plaintiff  and  his  two  brothers  who  were 
atooting'biB      minors   in  the  capacity  of  their  guardian  borrowed  a 
pro^rty,^ht  certain  sum  of  money  on  the  19th  May,  1873,  by  a  bond 
Btoaf^it£ntoS  to  protect  their  estate.    The  creditor  on  the  18th  August, 
aiiOTedPprorid-  1876,  obtained  a  decree  against  the  plaintiff  and  his  two 
thatet^instn£  brothers,  one  of  whom  had  then  attained  his  age.     In 
^dt«on«ar  as*  execution  of  that  decree,  the  property  that  had  been 
concerned.*0  ***  mortgaged  by  the  bond  as  well  as  another  was  sold  and 

(August  1886.)  (1)  L  k  R ^  u  CaJo ^  121        i        (2)  j   L   j^  12  Calc ^  ^ 

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ART.  144]       TH*  SECOND  SCHTOUL1,  FIBST  DIVISION — 8DITS.  565 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Pabt  VIII. 
Twelve  years. 

the  mortgagees  became  the  purchasers.  In  1880,  the 
plaintiff  attained  his  majority,  and  in  1883  brought  the 
suit  to  have  the  court  sate  set  aside  and  to  be  put  in 
posses s ion  of  the  property.  It  was  contended  that  the 
suit  was  barred  because  it  was  not  brought  within  throe 
years  from  the  date  of  sale  under  the  decree,  It  was  held, 
that  where  a  period  is  allowed  by  the  Law  of  Limitation, 
within  which  an  instrument  affecting  the  persons1  rights 
or  immoveable  property  must  be  impugned,  and  such 
person  fails  to  impugne  such  instrument  within  that 
period,  he  will  not  be  precluded  from  availing  himself  of 
the  longer  period  allowed  for  the  recovery  of  immoveable 
property,  provided  that  he  can  prove  that  aueh  instru- 
ment is  null  aud  void,  so  far  as  his  interests  are  concerned. 

(r)     In  Dharm  Singh  v,  Hurpershad  Singh/1)  plaintiff   where  evidence 
claimed  certain  land  as  part  of  a  plot  of  ground  descended   is  conflkrtmi°° 
to  them   from  one  U*     The  defendants  contended  that  the   goa  th*t  pos- 
plot  of  ground  was  acquired  by  R*s  father,  who  had  given   witb  title,  held 
to  his  daughter's  son  the  portion  in  the  a  ait  by  a  deed  of   {Augfira.} 
gift  and  that  they  were    entitled  to  it  as  his  heirs,  and 
that  the  suit  was  barred  as  they  had  been  in  possession 
for  more  than  twelve  years.     The  Lower  Appellate  Court 
decreed  the  property  to  plaintiff.     It  was  held  by  the  High 
Court  that  where  two  adverse  parties  are  each  trying  to 
make  out  a  possession  of  twelve  years,  and  the  evidence  is 
conflicting  and  conclusive  on  either  side,  the  presumption 
that  possession  goes  with  the  title  must  prevail. 

(s)     In  Ram    Prosad  Janna  v.    Lakhi  Narain  Prad-  c\H, 

han/2)  defendants,  who  were  out  of  possession  of  their  session  a^&inst 
shares  of  a  certain  Mahal  in  1871,  aold  a  portion  of  it  to  when  be  i*. 
the  plaintiff  on  the  7th  June,  1871,   agreeing  to   take  itatwF^Jor 
proceedings  jointly  with  the  plaintiff  to  recover  the  pro-   (July  ib».) 
perty.     The  defendants  neglected  to  do  so.     The  plaintiff 
(I)  t  L,  R.,  12  Gale,  88,    |       (2)  I.  L.  IL,  12  CaJc,  197. 


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TH1  8BCOND  8CH1DULE,  F1R8T  DIVISION BUIT8.       [ART.   144 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


A.  H.  held  that 
such  Bait    was 
govered  by  this 
Article  orArti- 
cle  136. 
Vendee's  suit 
for  property 
outstanding  on 
ijara  for  a  term 
on  the  date  of 
purchase  has 
twelve  years 
from  expiry  of 
the  term. 
(Aug.  1888.) 


Possession  ad- 
verse to  the 
ijaradars  was 
not  adverse  to 
plaintiff. 

Suit  against  son 
to  enforce 
decree  against 
father  charging 


Part  VIII. 
Twelve  years. 

alleged  that  it  had  lately  oome  to  his  knowledge  that 
since  June,  1871,  the  defendants  had  amicably  recovered 
possession  and  had  their  names  registered  in  the  Collec- 
torate  in  March,  1879.  On  the  4th  May,  1883,  the  First 
Court  found  that  the  vendor  had  been  out  of  possession 
about  eight  or  nine  years  at  the  date  of  the  sale  and  that 
the  suit  having  been  brought  about  21  years  after  the  ven- 
dor's dispossession,  was  barred  under  Article  136.  It  was 
held  by  the  High  Court  that  Article  136  is  not  intended  to 
apply  to  a  suit  brought  against  the  vendor  himself  upon 
his  recovering  possession  and  that  the  suit  was  governed 
by  this  Article  and  was  not  barred  by  limitation.  In 
Sheo  Prasad  v.  Udai  Singh,  W  which  was  a  suit  of  a  similar 
nature,  A.  H.  held  that  either  this  Article  or  Article  136 
was  applicable  and  that  the  suit  was  within  time. 

(t)  In  Krishna  Gobind  Dhur  v.  Hari  Churn  Dhur,^ 
plaintiffs  purchased  in  June,  1862,  land  in  dispute  which 
was  held  on  ijara  for  a  certain  term  of  years  which  was 
to  expire  in  April,  1868.  During  the  currency  of  the 
ijara,  ijaradars  were  dispossessed.  The  plaintiff's  brought 
the  suit  in  1880,  and  the  Lower  Appellate  Court  finding 
that  the  defendants  other  than  the  ijaradars  had  been  in 
possession  previously  to  the  sale  in  1862,  and  that  there 
was  no  collusion  between  the  ijaradar  defendants,  and 
the  other  defendants,  rejected  the  suit  as  barred.  It  was 
held  in  appeal  that  the  plaintiff's  cause  of  action  arose  on 
the  expiration  of  the  ijara  and  that  the  suit,  whether 
governed  by  this  Article  or  by  Article  139,  was  not  barred, 
and  that  possession  adverse  to  the  ijaradars  was  not 
possession  adverse  to  the  plaintiffs. 

(u)     In  Arunachala  v.  Zemindar  Sivagiri,(8>  plaintiff. 

in  1867,  obtained  a  decree  against  the  defendant's  father, 

(2)  I.  L.  E.,  2  All.,  718.  |       (2)  I.  L.  B.,  9  Calc,  867. 

{3)  I.  L.  R.,  7  Had.,  828. 


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ART.  144]       THE  8EC0ND  SCHEDULE,  FIRST  DIVISION — 8UIT8.  567 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelve  years. 

the  holder  of  an  impartible  eemindari  by  consent,  to  the  the  nume  on 

effect  that  the  Zemindar  undertook  to  pay  a  certain  sum  by  consent,  held 

by    yearly   instalments    and  hypothecated   certain  land  when  brought 

as  security.    A  memorandum  of  this  decree  was  registered  years  from 

under  section  42  of  Act  XX  of  1866.     The  last  instalment  (Deo.  1883.) 

fell  due  in  February,  1870,  and  the  decree  was  kept  alive 

against  the  Zemindar  up  to  his  death  in  1873.     Upon  the 

death  of  the  Zemindar,  proceedings  in  execution  were 

taken  against  his  son,  who  succeeded  to  the  zemindari, 

but  were  set  aside  on  appeal.     In  January,  1882,  a  suit 

was  brought  against  the  son  to  recover  the  amount  of  the 

last  instalment  due  by  his  father  under  the  decree  of 

1867.    It  was  held  that  cause  of  action  against  the  son 

only  arose  on  the  father's  death  in  1873,  and  that  as  the 

suit  was  brought  within  twelve  years  from  the  date  on 

which  the  debt  charged  on  real  property  become  due,  the 

suit  was  not  barred. 

(V)     In  Madhava  v.  Narayana/1)  the  plaintiff  having  Suit  to  eject 
removed  in  1875  his  father,  the  1st  defendant,  a  Namboo-  demption  aiieg- 
dry  of  North  Malabar,  from  management,  sued  in  1883,  to  of  kanom  held 
recover  lands  demised  by  him  in  January,  1868  to  the  twelve  years. 
2nd  and  3rd  defendants'  ancestor  in  January,  1868.     The 
plaintiff    alleged  that    the    kanom    not   being  granted 
for  family  necessity  was  not  binding  on  the  family.     De- 
fendants two  and  three,  pleaded  that  the  suit  to  eject  was 
barred  and  that  the  plaintiff's  remedy  was  to  redeem  the 
kanom.     In  this  case  it  is  observed  that  the  defendants 
who  came  into  possession  under  the  demise  on  which  they 
rely  were  either  trespassers  or   kanomdars,  and  their 
possession  for  the  statutory  period  in  either  capacity 
adversely  to  the  family  was  a  bar  to  their  ejectment. 
Muthusawmy  Ayer,  J.,  observes :  "  under  the  Act  of  Limi- 
tation, 60  years  is  the  Statutory  period  for  enforcing  a 
(1)  I.  L.  R.,  9  Mad.,  244. 


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568 


THE  SECOND  SCHEDULE,  PIR8T  DIVISION — 8UJT8.       [ABT.  144 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Observations  of 
Hutcbins,  J. 


A  priest's  suit 
to  recover  land 
mortgaged  by 
bis  deceased 
predecessor 
who  had  a  life 
estate,  held  to 
have  twelve 
years  from 

Sredecessor's 
eath  from 
which  posses- 
sion becomes 
adverse. 
(May  1886.) 


In  this  case 
Government 
had  issued  in 
1862,  a  sanad, 
declaring  the 
property  to  be 
private  proper- 
ty, and  with- 
drew it  in  1868, 
granting  a  new 
one  declaring 
the  property  to 
be  service 
emolument  ap- 
pertaining to 
office. 


Part  VIII. 
Twelve  years. 

right  to  redeem,  whilst  twelve  years  is  the  ordinary  period 
for  ejecting  a  person  from  immoveable  property  or  some 
interest  in  it  when  the  right  to  redeem  is  admitted  and 
the  right  to  eject  is  denied.  I  consider  that  the  latter 
right  should  be  dealt  with  nnder  the  twelve  years'  rule. 
The  cases  of  Dinomoney  Dabea  v.  Doorgapersad  Mozoom- 
dar,W  and  Maid  in  Saiba  v.  Nagapa,<2)  show  that  a  party 
who  cannot  by  his  admission  plead  prescriptive  title  in 
regard  to  general  ownership  may  rely  on  it  in  regard  to  a 
subsidiary  interest  claimed  by  him."  Hutchins,  J.,  obser- 
ves :  "  that  adverse  possession  for  twelve  years  of  a  limited 
interest  in  immoveable  property  is  a  good  plea  to  a  suit 
for  ejectment  to  the  extent  of  that  interest."  The  suit  was 
rejected. 

( W)  In  Jamal  Saheb  v.  Murgaya  Swami,*3)  the  plain- 
tiff's predecessor  in  office  as  jangam,  who  had  a  life  estate 
in  certain  properties  appertaining  to  the  Math,  originally 
mortgaged  two  items  of  property  to  A  in  1863.  In  July, 
1866,  the  priest  obtaining  a  fresh  loan  on  the  same  secu- 
rity from  A* 8  son,  executed  to  him  a  fresh  deed  which 
superseded  the  first  one.  A* 8  son  assigned  his  mortgage 
to  the  defendant  in  1871,  and  the  plaintiff's  predecessor 
died  in  January,  1874,  and  the  plaintiff  sued  for  possession 
in  February,  1882.  The  property  was  not  alienable  by 
the  jangam  of  the  Math  beyond  his  lifetime  as  it  was 
held  on  a  tenure  of  successive  life  estate.  It  was  held  that 
the  suit  was  not  barred,  as  the  cause  of  action  accrued  to 
the  plaintiff  on  his  predecessor's  death,  and  the  suit  was 
brought  within  twelve  years  from  that  event.  In  this 
case  the  Government  had  originally,  in  1862,  issued  a  sanad 
to  the  plaintiff's  predecessor  declaring  the  land  to  be  his 
private  property  and  withdrew  the  sanad  in  1868  and 

(1)  12  B.  L.  R.,  274.  |    (2)  I.  L.  R.,  7  Bom.,  96. 

(3)  I.  L.  R.,  10  Bom.,  34. 


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ART.  144]       THE  8BC0ND  SCHEDULE,  FIRST  DIVISION — SUITS.  569 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelve  years. 

granted  another,  declaring  the  land  to  be  service  emolu- 
ment appertaining  to  the  office  of  jangam. 

(x)     In  Kally  Cham  Sahoo  i\  The  Secretary  of  State  vuuvum. 
for  India  in  Council/1)  it  was  held  that,  where  a  person  can  iutfon°has " 
show  that  he  had  been  in  possession  of  certain  lands  prior  from^adverie 
to  such  lands  becoming  diluviated,  his  possession  must  SS^o/iand  * 
be  considered  as  continuing  during  the  time  of  diluvion  SeSSXfSte, 
until  such  time  as  he  becomes  dispossessed  by  some  other  h uoapaw^of 
person ;  and  in  such  a  case  the  onus  lies  upon  the  dis-  SSe^fo?  the 
possessor  to  show  that  he  has  acquired  a  title  under  the  mit" 
Law  of  Limitation  which  has  put  an  end  to  the  rights  of  the 
original  possessor.  White,  J.,  observes,  that  owners  of  land 
which  has  suffered  from  successive  diluviations  and  re- 
formations, must,  if  they  wish  to  preserve  their  rights, 
bring  their  suit  within  twelve  years  of  the  time  when 
adverse  possession  is  first  taken  of  land  reforming  on  the 
original  site,  whether  at  the  time  of  suit  the  land  is  capa- 
ble of  occupation  or  is  lying  under  water  in  consequence 
of  a  second  diluvion.    In  Mano  Mohun  Ghose  v.    Mothura  Submergence 
Mohun  Boy,*2)  it  was  held  that  the  submergence  of  the  ought  toUbe  pie- 
land  after  diluvion  ought  to  be  presumed  until  the  con-  contrary  is 
trary  is  shown,  and  that  the  onus  of  proving  reforma-      own# 
tion  before  twelve  years  and  adverse  possession,  is  on  the 
defendant  pleading  the  same. 

(y)     In    Lopez    v.  Muddun   Mohun  Thakoor,(8>  the  Doctrine  in 

-...__.._  .  Lopez's  case  is 

plaintiff,  Felix  Lopez,  was  the  proprietor  of  a  very  con-  that  diluviated 
siderable  estate,  a  Mouza,  on  the  banks  of  the  Ganges.    By  ing  on  their 
the  year  1840,  by  reason  of  the  continued  encroachment  of  mam  the  pro- 
that  river,  it  was  wholly  submerged,  and  it  was,  to  adopt  original  owner. 
an  expression  used  in  this  class  of  cases  in  India,  "  dilu- 
viated ;"  that  is,  the  surface  soil,  the  culturable  soil,  was  What  is  meant 

by  diluviated  P 
wholly  washed  away.     After  the  lapse  of  some  years,  and 


(1)  I  L.  R.,  6  Calc,  725.       |      (2)  I.  L.  R.,  7  Calc,  225. 
(3)  13  Moore's  I.  A.,  467 

72 


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THE  8ECOND  SCHEDULE,  FIRST  DIVISION SUITS.       [AKT.  144 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Plaintiff  Bays 
the  Ganges 
which  swallow- 
ed his  property 
has  again  yield- 
ed it  up. 


English  Law 
bearing  on  the 
subject. 


This  principle 
is  founded  on 
universal  law 
and  justice. 


Part  VIII. 
Twelve  years. 

after  one  temporary  recission  and  re-encroachment  which 
has  occurred  in  the  interval,  the  water  has  ultimately 
retired,  and  the  land,  having  been  for  some  time  in  a 
state  described  as  admitting  of  only  temporary  cultiva- 
tion by  hand  sowing,  has  become  hard  and  firm  soil, 
capable  of  being  cultivated  in  the  usual  manner.  The 
plaintiff  says  :  "  This  was  my  property.  The  Ganges, 
which  swallowed  it,  has  again  yielded  it  up,  and  I  claim 
my  property,  which,  having  been  buried  and  lost  to  sight, 
has  again  reappeared." 

(2)  "  The  rule  of  the  English  Law  applicable  to  this 
case,  is  thus  expressed  in  a  work  of  great  authority,  Hale, 
de  Jure  Maris,  p.  15 : — *  If  a  subject  hath  land  adjoining 
the  sea,  and  the  violence  of  the  sea  swallow  it  up,  but  so 
that  yet  there  be  reasonable  marks  to  continue  the  notice 
of  it ;  or  though  the  marks  be  defaced,  yet  if  by  situation 
and  extent  of  quantity  and  bounding  up  on  the  firm  land, 
the  same  can  be  known,  or  it  be  by  art  or  industry 
regained,  the  subject  doth  not  lose  his  property.'  'If 
the  mark  remain  or  continue,  or  the  extent  can  reason- 
ably be  certain,  the  case  is  clear.9  And  in  another  place, 
p.  17,  he  says :  *  But  if  it  be  freely  left  again  by  the 
reflux  and  recess  of  the  sea,  the  owner  may  have  his  land 
as  before,  if  he  can  make  out  where  and  what  it  was  ;  for 
he  cannot  lose  his  propriety  of  the  soil,  although  it  for  a 
time  becomes  part  of  the  sea,  and  within  the  Admiral's 
jurisdiction  while  it  so  continues." 

(2-a)  "  The  principle  is  one  not  merely  of  English 
Law,  not  a  principle  peculiar  to  any  system  of  Municipal 
Law,  but  it  is  a  principle  founded  on  universal  law  and 
justice ;  that  is  to  say,  that  whoever  has  land,  wherever 
it  is,  whatever  may  be  the  accident  to  which  it  has  been 
exposed,  whether  it  be  a  vineyard  which  is  covered  by 
lava  or  ashes  from  a  Volcano,  or  a  field  covered  by  the 


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ARtf.  144]       THE  SECOND  8CHEDULE,  FIB8T  DIVISION — SUITS.  571 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelve  years. 

sea  or  by  a  river,  the  ground,  the  site,  the  property, 

remains  in  the  original  owner.     There  is,  however,  another  Another  princi- 

°  .  pie  is  that  if 

principle  recognised   in  the  English  Law,  derived  from  there  be  acqui- 

the   Civil  Law,   which  is  this, — that  where  there  is  an  from  sea  or 

acquisition  of  land  from  the  sea  or  a  river  by  gradual,  dual  means,  the 

slow,  and  imperceptible  means,  there,  from  the  supposed  alluvion  belongs 

...  ,,,       ,.,«,,         -  ,        .  ,    .  to  the  owner  of 

necessity  of  the  case,  and  the  difficulty  of  having  to  deter-  the  adjoining 


mine,  year  by  year,  to  whom  an  inch,  or  a  foot,  or  yard, 
belongs,  the  accretion  by  alluvion  is  held  to  belong  to 
the  owner  of  the  adjoining  land,  Bex  v.  Lord  Yarborough 
(2.  Bligh,  N.  R,  147).     And  the  converse  of  that  rule  was,  Converse  of 

that  rule  was 

in  the  year  1839,  held  by  the  English  Courts  to  apply  applied  by 

A      xi_  *         •       i  -  fl,      ,        ,         K        Bn^lishdourts 

to  the  case  of  a  similar  wearing  away  of  the  banks  of  a  to  the  case  of 
navigable  river,   so  that  there  the   owner  of  the   river  away  of  the 
gained  from  the  land  in  the  same  way  as  the  owner  of  the  gable  river. 
land  had  in  the  former  case  gained  from  the  sea.    (In  re 
the  Hull  and  Selby  Railway,  5  Mee  and  Wei.  327).     To  To  what  extent 

that  rule  would 

what  extent  that  rule  would  be  carried  in  this  country    be  carried  in 

.  . »    .  '    this  country 

if  there  were  existing  certain  means  of  indenturing  the  has  not  been 
original  bounds  ef  the  property,  by  land  marks,  by  maps,  mined.  7 
or  by  a  mine  under  the  sea,  or  other  means  of  that  kind, 
has  never  been  judicially  determined." 

This  principle  of  law,  so  far  as  relates  to  accretion,  has,  This  principle 
to  some  extent  been  made  part  of  the  positive  written  law  to  accretion, 
of  India,  and  it  is  to  be  found  in  the  Regulation  XI  of  1825,  tent,  been  made 
a  Regulation  for  declaring  the  rules  to  be  observed  on  the  twe  written  law 
determining  of  claims  to  lands  gained  by  alluvian  or  by 
the  dereliction  of  a  river,  or  the  sea.     Id  this  case,  apply- 
ing the  principles  of  English  Law,  and  following  Mussumat 
Imam  Bandi  v.  Hurgovind  Ghose  (4  Moore's  I.  A.,  403,) 
it  was  held  that  the  land  washed  away  and  afterwards 
reformed  on  the  old  ascertained  site,  was  not  land  gained 
by  increment,  within  the  meaning  of  section  4  of  Bengal 
Regulation  XI  of  1825. 


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572  THE  SECOND  SCHEDULE,  FIBST  DIVISION — SUITS.       [ART.  144 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelveyears. 

Doctrine  in  (2-b)     In  Radha  Proshad  Singh  v.  The  Collector  of 

does  not  apply    Shababad/1)  it  was  held  that  the  doctrine  in  Lopez's  case 

when  title  has  r 

been  acquired     does  not  apply  to  lands,  in  which,  after  their  reformation, 

by  adverse  pos-  ... 

session  or  an  indefeasible  title  has  been  acquired  by  lone  adverse  pos- 

otherwise.  .  7     .  . 

(Nov.  1877.)  session,  or  otherwise,  and  that  where  a  plaintiff  relies  on 
an  alleged  adverse  possession  of  lands  for  more  than  twelve 
years  after  their  reformation,  the  question  to  be  decided 
is  whether  he  has  had  such  possession  for  twelve  years. 

Suits  for  pro-       (2-C)    In  Gobind  Lall  Seal  v.  Debendro  Nath  Mullick, <*> 

perty  from  ».,.,,  . 

perron  who  had  it  was  held  that  a  suit  for  the  recovery  of  immoveable 

originally  been  ' 

**  PoaUnheid  P^P6^  against  a  person  who  had  originally  been  in  mere 
thifArtMder  permissive  occupation  or  possession  accorded  on  the 
(August  1880.)  ground  of  charity  or  relationship,  is  governed  by  this 
Article  and  not  by  Article  142.  In  this  case,  plaintiffs 
alleged  that  their  predecessor  in  title  who  died  in  1854, 
had  permitted  the  defendant's  father,  who  was  a  friend, 
and  the  object  of  his  bounty,  some  30  years  ago,  to  occupy 
a  house  without  paying  rent  for  it,  and  that  since  his  death, 
20  years  before  the  suit,  the  defendant  had  been  permitted 
to  reside  without  paying  rent.  The  defendants  contended 
that  their  occupation  was  by  virtue  of  a  gift  to  their 
father.  It  was  held  that  as  the  defendant's  possession 
has  been  permissive  only,  the  plaintiffs  were  not  barred 
by  limitation,  and  that  the  suit  was  governed  by  this 
Article  and  not  by  Article  142.  Garth,  C.  J.,  observes  : 
"  Where  the  owner,  in  the  exercise  of  his  own  proprietary 
right  permits  some  other  person  to  occupy  his  land,  or  to 
receive  his  rents,  then,  whether  the  relation  of  landlord 
and  tenant  exists  between  the  parties  or  not,  I  consider 
that  the  possession  of  the  owner  is  not  discontinued, 
because,  under  such  circumstances,  the  possession  of  the 
occupier  is  the  possession  of  the  owner." 


(1)  I.  L.  R.,  3  Calc,  796. 

(2)  I.  L.  R.,  6  Calc,  811. 


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ART.  144]        THB  8EC0ND  8CHEDULI,  FIRST  DIVI8I0N— SUITS.  578 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VIII. 
Twelve  years. 

(2-d)     Burma  Moye  Dassee  v.  Dinobundhoo  Ghose/1)    Mortgagee's 

...  .  ,  .    .  .  m.       .  suit  For  posses- 

was  a  suit  by  a  mortgagee  to  obtain  possession  after  fore-  sion  after  fore- 
closure instituted  more  than  twelve  years   after  such  have  twelve 
mortgagee  had  upon  default,  become,  under  the  words  of  expiry  oAhe 
the  deed  entitled  to  possession,  but  within  twelve  years  fito^isfo!)56, 
of  the  date  of  the  expiry  of  the  year  of  grace  granted 
under  the  foreclosure  proceedings.     It  was  held  under  the 
corresponding  Article  145  of  Act  IX  of  1871,  that  the 
period  of  limitation  must  be  calculated  from  the  date  of 
the  expiry  of  the  year  of  grace  and  not  from  the  time 
when  the  default  was  first  made. 

(2-6)     In  Kasu  Munnissa  Bibee  v.  Nilratna  Bose,<2>    Possession  of 

_  .  .  purchaser  in 

B  obtained  a  Patni  lease  of  certain  land  from  the  Zemin-  Sheriff's  sale 
dar  in  September,    1865,  and  in   February,    1867,  pur-   mence  from  the 

,  ,      ,        „        .     ,      ,       .  .  date  of  the  con- 

cnased  the   Zemindar  s  interest  at  an  auction  sale  by  veyance  by  the 
the  Sheriff  of  Calcutta,  who  executed  a  conveyance  in  purchaser 

a       «i     *o/*rr       rt       i       i      i  i  i     i  .  already  held  it 

April,  loo 7.  (J,  who  had  purchased  the  property  in  exe-  under  a  lease, 
cution  of  a  decree  made  in  November,  1865,  on  a  mort- 
gage dated  January,  1865,  sued  J?  in  March,  1879,  for 
Khas  possession.  B  pleaded  adverse  possession.  It  was 
held  that  B's  possession  as  purchaser  could  not  be  con- 
sidered to  have  commenced  before  the  date  of  the  Sheriff's 
conveyance  and  that  the  plea  of  adverse  possession  was 
bad,  the  suit  having  been  brought  within  twelve  years 
from  the  date  of  the  conveyance. 

(2-f)     In   Gopinath   Chobey  v.  Bhugwat   Pershad,(3>    Plaintiffs'  suit 
the  plaintiffs,  0  and  Z>,  sought  for  a  declaration  of  their  of  right  to  maH- 
right  to   6   annas  of   the  malikana  money  of  dearah  of  reversal  of  Coi- 
Afzulpur  which  had*  formed  in  front  of  what  they  alleged  refusing  to  re- 
to  be  their  estate  and  to  have  their  names   registered  names  held 
in  the  Collector's  office  in  place  of  the  defendants.     The  by  this  Article 
facts  of  the  case  are  as  follow  :     Previous  to  1825,  dearah  Jsi  w  uoasop- 

ponent  enjoyed 
(1)  I.  L.  R.,  6  Calc,  664.       |         (2)  I.  L.  R.,  8  Calc,  79. 
(3)  I.  L.  R.,  10  Calc,  697. 


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THB  8BCOMD  8CHIDDLI,  PIB8T  DIVI8I0N — SUITS.       [ART.  144 


Description  of  suit. 


Period  of 
limitation. 


malikana  ad- 
versely from 
1366. 
(May  1884.) 


144  would  apply 
if  it  was  a  safe 
for  possession 
of  interest  in 
real  property. 


191  would  apply 
if  it  was  to  esta- 
blish a  periodi- 
cally recurring 
right. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
jTwelve  years. 

X  accreted  to  mouza  Y,  and  some  time  before  I860,  the 
malik  or  owner  of  Y  executed  two  conveyances  in  favor 
of  A  and  B  respectively.  In  1860,  A  sued  B  in  the  Mun- 
sif  *b  Court  for  possession  of  a  share  in  X,  which  B  claimed 
under  his  conveyance.  In  that  suit  A  succeeded  on  the 
ground  that  B*s  conveyance  did  not  cover  the  share  claim- 
ed by  him  in  X,  but  merely  covered  the  share  in  the 
mouza  itself,  whereas  by  his  conveyance  A  had  acquired 
the  right  to  the  share  in  X  which  he  claimed.  In  1866, 
the  Collector  refused  to  recognise  B's  right  to  malikana 
payable  in  respect  of  the  share  in  X  which  had  been  the 
subject  of  the  suit  in  1860,  or  to  register  his  name  in  res- 
pect thereof,  but  acknowledged  A9$  right  thereto,  relying 
on  the  decision  of  the  Civil  Court  in  the  suit  between  A 
and  B.  Subsequently  B's  representatives,  0  and  D,  in 
1876,  sought  to  have  their  names  registered  in  respect  of 
the  same  malikana,  but  they  were  opposed  by  E,  who 
alleged  that  A  had  been  acting  throughout  as  his  benami- 
dar.  The  Collector  referred  the  case  under  section  55  of 
Act  VII  of  1876,  to  the  Civil  Court,  and  the  application  of 
0  and  D  was  eventually  disallowed.  G  and  D  thereupon, 
on  the  5th  November,  1880,  instituted  the  present  suit 
against  E  in  the  Court  of  the  subordinate  Judge,  for  a 
declaration  of  their  right  to  the  malikana,  and  for  a 
reversal  of  the  order  refusing  to  allow  their  names  to  be 
registered  in  respect  thereof.     It  was  held — 

(1)  There  being  no  allegation  of  dispossession,  if  it 

were  contended  that  the  suit  was  one  for  posses- 
sion of  an  interest  in  immoveable  property,  this 
Article  would  apply ; 

(2)  If  it  were  contended  that  the  suit  was  for  the  pur- 

pose of  establishing  a  periodically  recurring 
right,  pure  and  simple,  Article  131  would  apply, 
and  the  period  must  be  reckoned  from  1866, 


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ART.  144]       THE  SECOND  8CHEDULE,  FIR8T  D1VI8ION — 8U1TS.  575 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VIII. 
Twelve  years. 

when  the  plaintiff  was  first  refused  the  enjoy- 
ment of  the  right ; 

(3)  If,  however,  it  were  said  to  be  a  suit  to  establish  120  would  apply 
a  periodically  recurring  right,  and  something  in   a  periodically 
addition,  inasmuch  as  the  right  carried  with  it  and  something 
a  right  to  the  property  itself,  if  the  parties  con- 
sented to  take  a  settlement  when  the  time  for 
concluding  the  next  temporary  or  permanent  set- 
tlement came,  Article  120  must  be  held  to  apply. 

But  that,  in  auy  event,  inasmuch  as  in  the  year  1866,   The  suit  was 
the  Collector  refused  to  recognise  By$  right  to  the  mali-  ever  of  the 

,  ,      ,  .  .,  ,        above  Articles 

kana  and  adverse  possession,  so  far  as  possession  could  be  applied. 
taken  of  such  an  interest  in  immoveable  property  was 
then  taken  hj  A,  or  in  other  words  by  E,  because  it  must 
be  taken  that  the  Collector  since  that  date  had  been  Collector's  pos- 
holding  for  A,  whose  right  he  had  then  recognised,  after  person  after 
refusing  to  recognise  the  right  claimed  by  B ,  the  present  cofrnise  the 
suit  having  been  instituted  in  1880,  was  equally  barred,  Sadversetothe 
whichever  of  the  above  Articles  was  held  to  apply. 

(2-g)     In  Juggobundhu  Mukerjee  v.   Ram  Chunder  symboUcaipos- 
Bysack/1)  it   was    held  that  delivery  of  possession  by  decree,  of  pro- 
going  through  the  process  prescribed  by  section  224  of  occupation^ 
Act  VIII  of   1859,   by  proclamation,  is  the  only  way  will  avail  as 
in  which  the  decree  of  the  court  awarding  to  the  plain-  dants,  but  not 
tiff  possession  of  land  in  the  occupation  of  the  tenants  parties. 


can  be  enforced ;  and,  as  in  contemplation  of  law,  both 
parties  must  be  considered  as  being  present  at  the  time 
when  the  delivery  is  made,  such  delivery  must,  as  against 
the  defendant,  be  deemed  equivalent  to  actual  possession. 
As  against  third  parties,  such  symbolical  possession  is  of 
no  avail,  because  they  are  not  parties  to  the  proceedings. 
But  if  the  defendant  subsequently  dispossess  the  plain- 
tiff by  receiving  the  rents  and  profits,  the  plaintiff  will 
(1)  I.  L.  R.,  6  Calc,  584. 


Feb.  1880.) 


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THE  8ICOND  SCHEDULE,  FIRST  DIT18IOH — SUITS.       [ART.  144 


Description  of  suit. 


Period  of       I    Time  from  which  period 
limitation.      i  begins  to  ran. 


Suit  for  land 
after  formal 


r  decree  he* 
twelre  Tears 
from  each  pos- 


(March  1879.) 


Son's  suit 
against  mother 
for  father's 
property  she 
managed  sop- 
plying  son's 
wants  oat  of 
income,  falls 
under  this  Arti- 
cle. 
(Dec.  1870.) 


Possession  for 
twelve  years 
by  grantee  of  a 
married  woman 
during,  her  bus- 


j  Part  VIII. 
jTwelve  years. 

have    twelve  years   from   such    dispossession  to  bring 
another  suit. 

(2-h)  In  Umbicka  Churn  Goopta  v.  Madhnb  Gho- 
sal/1)  it  was  held  that  formal  possession  given  to  a 
decree  holder  by  an  officer  of  the  court  in  execution  of 
his  decree,  is  sufficient  to  give  him  a  fresh  cause  of  action, 
and  notwithstanding  that  he  may  never  have  obtained 
actual  possession,  he  or  his  assigns  may  sue  to  recover 
possession  at  any  time  within  twelve  years  from  the 
time  when  such  formal  possession  was  given. 

(2-i)  In  Kalley  Churn  Shaw  v.  Dukhee  Bibi,<*>  the 
parties  are  of  HulwaJl  caste.  In  the  year  1857,  A  died, 
leaving  a  son,  the  plaintiff  2?,  and  the  defendants  G  and 
D,  his  widows,  him  surviving.  0  took  possession  of  all 
A's  property.  The  plaintiff  B  was  the  son  of  D,  and 
shortly  after  Ay$  death,  D  gave  birth  to  another  son,  the 
plaintiff  E.  In  1865,  D  instituted  a  suit  against  G  and  2? and 
JEr,  alleging  that  A  had  left  a  will.  In  this  suit,  G  claimed 
to  be  the  heiress  of  A.  No  decree  was  made  in  the  suit, 
which  was  compromised,  by  which  the  elder  widow 
managed  the  family  property  generally  and  supplied  the 
plaintiffs  with  all  their  wants  out  of  the  proceeds  of  the 
property.  In  November,  1877,  B  and  E  entered  into 
possession  of  a  shop,  which  had  belonged  to  their  father, 
and  which  had  been  managed,  during  their  minority,  by 
the  defendant  0.  In  1879,  the  plaintiffs  instituted  the 
present  suit,  claiming  to  recover  from  0  the  property 
of  A  come  to  her  hands.  It  was  held  that  so  far  as  the 
immoveable  property  was  concerned,  the  case  fell  under 
this  Article  or  120,  and  as  to  moveable  property,  under 
Article  89  or  90. 

(2-j)     In  Bejoy  Ch under  Banerjee  v.  Kally  Prosonno 
Mookerjee/8)  defendant  left  his  home  in  1847,  leaving  his 
(1)  I.  L.  R.,  4  Oalc,  870.        |        (2)  I.  L.  R.,  5  Calc,  692. 
(3)  I.  L.  R.,  4  Calc,  327. 


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ART.  144]       THE  SBOOND  SCHEDULE,  FIE8T  DIVISION — SUITS.  577 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  mn. 


Part  VIII. 
Twelve  years. 

wife,  then  a  child  of  nine  or  ten  years  and  certain  landed  band's  long  ab- 
property.    When  she  reached  the  age  of  •  16,  she  formed  adverse  to  hus- 
an  intimacy  with  plaintiff  and  made  to  him  in  1855,  a  retaraed°ande 
grant  in  perpetuity  of  a  portion  of  the  land  reserving  an 
annual    fixed  rent.     As    she  got  no  information   as  to 
whether  the  defendant  is  alive  or  dead,   she  described 
herself  the  widow  of  the  defendant.     Plaintiff  held  pos- 
session paying  rent  up  to  1872,  when  the    defendant 
returned  and  ousted  the  plaintiff  from  the  land.     The 
plaintiff  sued  the  husband,  making  the  wife  a  pro  forma 
defendant.     The  Lower  Court  allowed  the  plaintiff's  claim 
on  the  ground  that  plaintiff's  possession  was  not  adverse 
to  the  wife  and  therefore  not  adverse  to  the  husband. 
The  High  Court  held  that  the  position  of  the  plaintiff  Plaintiff's  pos- 
was  not  that  of  a  lessee,  an  dthat  his  possession,  (although  SnacTof  tres-h 
in  its  inception  an  act  of  trespass  against  the  husband)  Seption^  having 
having  continued  for  upwards  of  twelve  years  had  per-  tweive^eara 
fected  his  title  to  the  lands.  iff JSt*-* 

(2-k)     House  property   in  Lucknow,   of  which   the  p.c. 

Government  had  assumed  possession  as  confiscated  under  iiTiands^uod 
the  proclamations  issued  by  Lord  Canning  and  Sir  James  o^ei^fheirs 
Outram  in  March,  1858,  was  released  under  an  order  tdon^Govern- 
passed  on  the  6th  July,  1863,  whereby  the  Government  J^^ETthe 
abandoned  the  confiscation  and  left  the  former  owners  to  £ien£  °r  M 
their  rights.     This  property  had  previously  to  the  confis- 
cation belonged  to  one  A.    Lands  in  Oudh  confiscated 
under  Lord   Canning's  proclamation  were,  in  October, 
1863,  directed  to  be  settled  with  the  heirs  of  A.     In  a 
suit  brought  in  March,  1875,  by  a  plaintiff  who  claimed 
a  share  of  the  house  property  and  lands  as  one  of  the 
heirs  of  A  against  a  defendant  who  was  an  heir  of  -4, 
and  who  had  obtained  possession  of  the  houses  and  lands 
under  the  orders  passed  for  the  release  of  the  one  and 
the  settlement  of  the  other,  the  defendant  pleaded  that 
73 

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578  THI  8I0OND  SCHJDULI,  FlEflT  DIYI8I0* — 8UIT8.      [AST.  144 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Paet  VIII. 
Twelve  years. 

the  entire  property  had  oome  into  her  possession  in  1856, 
under  a  deed  of  gift  from  4,  and  that  the  plaintiff's  suit 
was  barred  by  limitation. 
Suit  for  a  share  It  was  held  by  the  Privy  Council  (first),  in  respect  of 
rectedtoberea-  the  house  property,  that  if  the  defendant  was  in  posses- 
owners  after  sion  at  the  time  when  the  proclamations  were  issued,  the 
should  be  dealt  question  of  limitation  must  be  decided  as  if  there  never 

with  as  if  there    ,  ..      ,  _ 

waanoconflsca-  had  been  a  confiscation ;    and  (second),  in    respect  of 

tion  if  defend-  .,,...,,.. 

ant  was  in  pos-  the  lands,  that  no  question  of  limitation  could  arise,  since 
timeofconnsca-  the  suit  was  brought  within  twelve  years  from  the  date 
of  the  Government  Order  for  settlement,  under  which  alone 
any  title  to  the  lands  could  have  been  acquired  by  either 
Conrt  should  as-  of  the  parties.  It  is  observed  that  the  court  should 
defendant  took  ascertain  by  referring  to  the  kabuliat  executed,  whether 
on  her  own  be-  the  defendant  took  the  settlement  on  her  own  behalf 
to  other  heirs  for  adversely  to  the  other  heirs,  or  whether  she  took  it  as  a 
herself  and  trustee  for  herself  and  the  other  heirs.  Mirza  Jehan 
0ther,,•  Kadr  v.  Afsur  Bahu.O) 

a  jaikarheid  (2-1)     In  Parbutty  Nath  Boy  Chowdhry  v.  Mudho 

not  an  easement 

but  an  interest    Parce,(2>  which  was  a  suit  governed  by  Act  IX  of  1871, 

in  immoveable      .  #  . 

property  under  it  was  held  that  a  jalkar  is  not  an  easement  within  the 

Article  146  of  J 

Act  ix  of  1871.    meaning  of  section  27  of  Act  IX  of  1871,  but  is  an  inter* 
est  in  immoveable  property  within  the  meaning  of  sche- 
dule 2,  Article  145  of  that  Act.    Where  the  defendant 
had  been  exercising  a  right  of  fishing  in  certain  water 
adversely  to  the  plaintiff  for  more  than  twelve  years,  it 
was  held,  that  a  suit  by  the  plaintiff  for  a  declaration 
that  he  was  entitled  to  the  exclusive  right  of  fishing  in 
such  water  was  barred  by  limitations. 
For  a  suit  by       (2-m)     In  Narain  Chunder  t;.  Tayler/8>  plaintiff  pur- 
Government       chased  in  May,  1874,  the  land  in  the  suit  when  sold  for 
time  runs  from  arrears  of  Government  revenue  under  Act  XI  of  1859,  and 

purchase. 

(1)  I.  L.  E.,  4  Calc,  727.       |      (2)  I.  L.  R.,  3  Ode.,  276. 
(3)  I.  L.  E.,  4  Calc.,  103. 


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AIM.  144]        THE  SECOND  SCHEDULE,  FIR8T  DIVISION — 8U1T8.  579 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelve  years. 

sued  for  possession.  The  Lower  Court  rejected  the  suit 
as  barred  by  twelve  years'  time  from  the  accretion  of  the 
land  taken  possession  of  by  the  defendant,  and  secondly, 
that  three  years'  limitation  applied  from  the  date  of  the 
Survey  Deputy  Collector's  award.  In  appeal,  Jackson,  J.,  No  special  pro- 
held  that  the  plaintiff  would  not  be  barred  because  he  is  mitatkmActfor 
an  auction-purchaser  of  the  estate,  and  as  such  is  entitled 
to  recover  free  of  all  incumbrances,  and  that  his  cause  of 
action,  by  whatever  period  of  limitation  it  would  be 
restricted,  would  arise  from  the  time  of  his  purchase ;  and 
that  the  plaintiff  has  brought  his  suit  within  three  years 
from  the  date  of  his  purchase.  It  was  further  held  that 
limitation  in  such  a  case  cannot  be  calculated  under  any 
circumstances  from  a  day  anterior  to  the  date  of  purchase. 

(2-n)     Khajah  Ashanoolah  v.  Bamdhone  Bhuttachar-  Suit  for  posses- 

n\  »i   <•  #         i    •      i       -i     **i  .         sion  with  mesne 

jee/1'  was  a  suit  for  possession  of  certain  lands     by  esta-  profits  by  esta- 
blishing the  plaintiff's  howla  right,"  and  for  mesne  profits,  tiff's  right  is 
brought  against  a  shareholder  of  the  talook  in  which  the  one  year's  limf- 
lands  are  situated,  a  former  talookdar,  and  certain  ryots  section  27  of 
who  paid  rent  to  the  1st  defendant.     It  was  held  that  of  i860, 
this  is  not  a  suit  to  recover  the  occupancy  of  the  land 
from  which  the  plaintiff  has  been  illegally  ejected  by  the 
person  entitled  to  receive  the  rent,  within  the  meaning  of 
section  27  of  Bengal  Act  VIII  of  1869,  and  is  not  governed 
by  the  limitation  provided  by  that  section. 

(2-0)     In  Papammal  v.  Bamaswami  Chetti,(2>  plain-  a  married 

\m*  w/  r  i        r  woman  held  en- 

tiff  sued  to  procure  delivery  to  her  of  a  share  of  land  titled  to  sue  for 

.  .  her  absent  hus- 

purchased  with  money,  subject  to  the  provisions  of  a  deed  band's  pro- 
of partition  executed  by  her  husband  and  the  undivided 
members  of  his  family.  Plaintiff's  husband  had  been 
absent  in  a  foreign  country  from  1854.  It  was  held  that 
the  plaintiff  sufficiently  represented  her  absent  and 
divided  husband  to  enable  her  to  sue  for  his  share. 
(1)  I.  L.  B.,  1  CaJc,  325.    |       (2)  2  M.  H.  C.  R.,  366. 


perty. 


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580  TEW  raCOVD  8CH1DULB,  FIB8T  DTTfSTOV — SUITS.       [ABT.  144 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


PaetVIIL 
Twelve  years. 

Minor's  nit  (2-p)     On  the  7th  December,  1863,  A,  in  execution  of 

broaffhtl  one  . 

year  after  at-     bis  decree,  purchased  and  obtained  symbolical  possession 

taininir  major* 

ity  to  recover     of  a  certain  4-annas  share,  the  property  of  bis  judgment- 

property  sold  in 

execution  of      debtor.     The  4-annas  share  was  at  the  time  under  a  mort- 

4wtm?  obtained 

against  him       gage  to  B,  who  happened  to  be  in  possession  of  the  share 

held  iiottofeu  as  lessee.     The  term  of  the  lease  expired  in  1870  or  1871. 

under  Article  # 

is.  A,  0  and  P,  who  were  members  of  a  Hindu  joint-family, 

afterwards  came  to  a  partition  of  their  common  estate  in 
which  was  included  the  4-annas  share,  and  one  of  them, 
D,  sold  his  share  in  the  4-annas  to  2?,  who,  on  the  22nd 
December,  1871,  purchased  it  in  the  name  of  E.  B  then 
brought  a  suit  to  enforce  his  mortgage  against  Ff  the  heir 
of  his  mortgagor,  and  on  the  8th  December,  1873,  obtained 
a  decree,  which,  on  special  appeal,  was  confirmed  by  the 
High  Court  on  the  21st  December,  1875.  On  the  6th 
December,  1875,  A,  0  and  E  had  brought  a  suit  for  the 
possession  of  the  4-annas  share  against  one  Mokund 
Kishore,  who  had  wrongfully  taken  possession  of  the  pro- 
perty in  1870  or  1871,  soon  after  the  expiration  of  the  lease 
to  B.  The  suit  was  finally  decided  in  their  favor  on  the 
29th  July,  1879.  In  the  meantime,  that  is  somewhere  in 
1876,  B  had  contrived  to  take  possession  of  the  whole 
share.  In  1883,  symbolical  possession  was  obtained  under 
the  decree  of  the  29th  July.  B  then  executed  his  mort- 
gage decree,  and  attached  the  4-annas  share  excluding 
the  portion  which  stood  in  the  name  of  his  benamidar.  Z, 
the  heir  of  A,  having  failed  to  make  good  his  claim  to  a 
share  of  the  property  in  the  execution  proceedings,  now 
brought  a  suit  for  possession  against  By  on  the  19th 
July,  1884.  Bam  Kishore  Gangopadhya  v.  Bandikaratan 
Tewari  Chowdhry.W 
52!J£!(m*hfc  *»       (2-a)     Vishnu    Keshav  v.  Bamchandra  Bhaskar,(*> 

1682  by  one  who  v      ^'  ' 

Hy^in^isS^to"  was  a  8U**  brought  by  a  minor  one  year  after  attaining 
recover  land  (i)  j,  L.  B.,  13  Calc,  203.      |     (2)  I.  L.  B.,  11  Bom.,  130. 

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ABT.  144]       THE  8IC0ND  8CH1DUMD,  PIB8T  DIVI8I0N— flUITB.  581 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelve  years, 

majority  to  recover  property  sold  in  execution  of  a  decree  sold  bv  court  in 
obtained  against  him  during  minority.     In  1870,  a  creditor  cree'in  which 
of  the  plaintiff's  father  brought  a  suit  against  the  plain-  presented  by  his 
tiff  and  obtained  a  money   decree  against    him.     The  guardian,  held 
plaintiff  was  then  a  minor,  and  his  estate  was  adminis-  Article  is. 
tered  by  the  Collector  of  Ratnagiri.     In  this  suit,  he  was 
represented  by  his  mother  and  guardian.     At  the  sale 
held  in  1871,  in  execution  of  the  decree,  the  property  in 
question  was  purchased  by  the  defendant,  who  obtained 
possession  in  1876.     In  1879,  the  plaintiff  attained  major- 
ity, and  in  1882  he  brought  the  present  suit  to  recover 
the  property  from  the  defendant.     The  Lower  Courts, 
regarding  the  suit  as  one  to  set  aside  the  sale  to  the 
defendant,  held  that  it  was  barred  by  limitation  under 
Article  12  of  schedule  2  of  the  Limitation  Act  XV  of 
1877.     On  appeal  by  the  plaintiff  to  the  High  Court,  it  Though  minor 
was  held  that  Article  12  of  the  Limitation  Act  XV  of  by  his  mother 
1877,  did  not  apply,  and  that  the  suit  was  not  barred,  proceedings  ' 
That  Article  applies  only  to  cases  in  which  the  plaintiff  to  bar  him  as  he 
would  be  bound  by  the  sale  if  he  did  not  succeed  in  getting  properly  repre- 
it  set  aside,  but  in  the  present  case  the  plaintiff  was  not  quired  bv  sec- 
bound  by  the  proceedings  in  suit  No.  573  of  1870,  as  he  of  lsei 
had  not  been  properly  represented  as  required  by  sec- 
tion 2  of  Act  XX  of  1864. 

(2-r)     The  plaintiff,  as  the  nearest  heir  of  one  Odhav  Suit  by  the  heir 
Tulja,  who  died  intestate  in  1873,  sued  to  set  aside  a  sale  to  set  aside 
of  certain  immoveable  property  belonging  to  the  estate  of  under  a  ooiiu. 
the  deceased,  which  had  been  sold  on  3rd  November,  obtained 

1875,  in  execution  of  a  money  decree  obtained  by  the  and  to  recover 
defendant,  Jagannath,  against  Bai  Vakhat,  the  widow  of  SHwi  under 
Odhav  Tulja.     Bai  Vakhat  had  married  a  second  time  in 

1876,  and  her  second  husband  was  the  brother  of  the 
purchaser  at  the  execution  sale.  The  plaintiff  alleged 
that  the  decree  had  been  fraudulently  and  oollusively 


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582  THl  SECOND  9CHBDUL1,  FIBST  DIYI8IO* — SUITS.       [AKT.  144 


Description  of  soil. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VIII. 
Twelve  years. 

obtained  on  a  bond  in  Odhav  Tnlja's  name  which  had 
been  forged  by  Jagannath.     The  suit  was  brought  on  the 
28th  January,  1878,  and  the  plaintiff  prayed  that  the  sale 
might  be  cancelled,  haying  been  made  in  order  to  defeat 
his  rights  :  that  he  might  be  declared  the  heir  of  Odhav 
Tulja,  and  that  possession  of  the  property,  with  mesne 
profits,  might  be  awarded  to  him.     The  Lower  Courts 
dismissed  the  suit,  holdiog  that  it  was  barred  by  Article  12 
clause  (a)  of  schedule  2  of  the  Limitation  Act  XV  of  1877. 
On  appeal  to  the  High  Court,  it  was  held  that  Article  12 
did  not  apply,  for  although  the  plaintiff  sued  to  set  aside 
a  sale  held  in  execution  of  a  decree,  he  did  so,  not  as  one 
who  would  have  been  bound  by  the  sale  if  the  suit  had 
not  been  brought,  but  in  order  to  obtain  a  declaration 
that  he  was  not  bound  by  it,  the  decree  under  which  the 
sale  was  held  having  been  fraudulent  and  collusive,  so 
that  the  cause  of  action  could  only  have  arisen  when  he 
became  aware  of  the  fraud.     Article  95  of  schedule  2  of 
Act  XV  of  1877  applied  to  the  present  suit,  which  was 
a  widow  is        therefore  in  time.     A  widow  of  a  deceased  Hindu  repre- 
to  represent  the  sents  the  estate  of  the  reversioner  for  some  purposes,  but 
to  protect  it.       it  is  her  duty  not  only  to  represent  the  estate,  but  to  pro- 
tect it.     When  a  suit  is  brought  on  the  ground  that  the 
widow  did  not  in  a  former  suit  protect  the  interests  of 
the  person  who  was  to  take  after  her  death,  but  collusive- 
When  plaintiff    ly  suffered  judgment  against  herself  and  sale  of  her  hus- 
inoporative  and  band's  property  in  execution,  then  if  such  person  on  that 
ciaration  that  it  ground  treats  the  sale  as  inoperative,  and  seeks  for  a 
hiS^  Article*?*    declaration  that  it  is  not  binding  on   him,  Article   12 
to^eStT17  clause  (a)   of  schedule  2  of  the  Limitation  Act  XV  of 
1877  does  not  apply  to  the  suit.    It  was  held,  also,  on  the 
evidence,  that  the  suit  against  Bai  Vakhat  was  collusive, 
and  that  the  sale  in  execution  was  in  fraud  of  the  plain- 
tiff's right.  He  was  therefore  entitled  to  a  decree  declaring 


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ART.  144]       THI  8B00ND  SCHEDULE,  MRST  DIVI8I0N— 8DIT8.  583 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VIII. 
Twelveyears. 

that  he  was  not  bound  by  the  sale  of  the  3rd  November, 
1875,  in  the  suit  brought  by  Jagannath   against  Bai 
Vakhat  as  representative  of  her  deceased  husband  Odhav 
Tulja.    Whether  the  plaintiff  was  entitled  also  to  immedi-  whether  plain- 
ate  possession  of  the  property  in  the  suit  depended  on  to  immediate 
the  question  whether  Bai  Vakhat's  life  estate  was  de-   pended  on  the 
feasible  on  her  remarriage.     She  belonged  to  a  caste  in  tier  the  wi- 
which  remarriage  was  permitted.    The  following  issue  was  defeasible 
was  accordingly   sent  to  the  Lower   Court  for  trial: —  riage. 
"  Whether  by  the  usage  of  the  country,  the  rights  and 
interests  of  Bai  Vakhat  by  inheritance  in  her  deceased 
husband's  property,  the  subject  of  this  suit,  ceased  and 
determined  on  remarriage  in  1876,   as  if  she  had  then 
died."     Parekh  Rancher  Bai  Vakhat.U) 

(2*8)    Boojinatboo  v.  Sha  Nagar  Valab  Kanji,W  was  a         b.  h. 
suit  brought  to  set  aside  four  instruments  of  mortgage  oreat-  mortgage  bonds 
ing  a  charge  on  immoveable  property,  and  to  recover  posses-  o?  fraud  ^anJuo 
sion.    West,  J.,  observes:    "We  do  not  think  that  Article  a^Tof  KSST" 
92,  schedule  2  of  Act  IX  of  1871  applies  to  a  case  like  the  £S&,^!SS 
present,  in  which  the  remedy  sought  is  the  recovery  of  but^y  rArticie 
land  alleged  to  be  wrongly  withheld  from  the  plaintiffs.   Jily  whS?? 
Effect  can  be  given  to  the  Article  in  question  by  applying   jfa^ht^**1011 
it  to  the  well  known  class  of  cases  of  outstanding  instru- 
ments by  which,  should  they  pass  into  the  hands  of  an 
innocent  holder  for  value,  such  holder  would  have  a  right 
to  recover  on  them.     Should  the  person  who  has  given 
any  such  instrument  leave  it  outstanding  for  any  length 
of  time,  he  would  enable  the  holder  to  raise   money, 
perhaps,  on  a  false  show  of  wealth.     Here  the  defendants 
hold  possession  and  use  the  bonds  taken  by  them  to  guard 
it.     The  object  of  the  suit  is  to  deprive  them  of  that 
possession  and  recover  it  for  the  plaintiffs.    If  it  were 
possible  for  the  court  to  award  to  the  plaintiffs  possession 
(1)  I.  L.  B.,  11  Bom.,  119.     |      (?)  I.  L.  B.  11  Bom.,  7a 


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584  THE  8EC0ND  SCHEDULE,  FIRST  DIVI8I0N— SUITS.       [A£T.   144 


Description  of  snifc. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  VIII. 
Twelve  years. 

of  the  land  and  hold  that  the  defendants  had  no  right 

to  keep  the  same  without  declaring  the  bonds  to  be 

void,  the  plaintiffs  would  hardly  care  much  whether  the 

bonds  were  cancelled  or  not ;    whilst,  in  order  to  bring 

the  case  under  Article  92,  schedule  2  of  the  Limitation 

Act,  there  must  be  a  bare  declaration  asked  regarding 

the  cancellation  of  the   bonds.     B.  H.  followed  Sikher 

We"ee  ttiatwlt.    ^nan^  v'  Dalputty  Singh.U)  Notwithstanding  the  possible 

32h8tanibjJ*      analogy  of  a  recent  case  in  the  Privy  Council,  we  must 

analogy  of »  re-  follow  the  principle  laid  down  in  the  Calcutta  case  cited, 

tS  ^dacteio0110?  an^  ru^e  ^a*  *k®  period  of  limitation  is  twelve  years. 

<ju£  law.)*  °      (Vide  Note  B  Under  Article  118>  119>  P-  364-) 

Where  the  has-       (2-t)     The  Collector  of  Godaveri  v  Addanki  Bamanna 

member*  of  a  °  Pantulu/*)  was  a  suit  brought  against  the  defendant,  the 
family  bad  been  Collector  of  the  District  of  Godavery,  as  agent  to  the 
of  aneetate ad-  Court  of  Wards  and  guardian  of   Ramalaksmamma,  a 
male  members     minor,  who  was  the  widow  of  one  Sarvaraya  deceased.   The 
tor  *n  respect  of  plaintiff  claimed  as  a  purchaser  of  the  undivided  fourth 
Bha^^oBees-     share.     He  alleged  that  one  Anandaraya,  who  aa    the 
of°ttie  whoufer  joint  proprietor  of  the  mutta  had  been  entitled  to  a  fourth 
toBuch^cSpro!6  share  thereof,  and  had  been  in  enjoyment  of  the  same,  on 
Bhe^n^Sye  the  26th  of  May,  1868,  by  a  registered  sale  deed,  sold  his 
beenautho-        right,  title,  and  interests  therein  for  Rs.  10,000  to  Sashayya, 
(July  1888.)        whoon  the  8th  of  March,  1880,  sold  the  same  to  him, 
the  plaintiff,  for  Be.  5,000.     It  appeared  that  the  estate  of 
which  the  plaintiff  claimed  an  undivided  fourth  share 
was  originally  purchased  some  time  about  the  year  1848, 
before  the  birth  of  Sarvaraya,  the  deceased  husband  of 
Laksmamma,  by  his  father  Krishnayya  in  his  own  name ; 
that  at  that  time   Krishnayya  and  his  two  brothers, 
Pattabhi  Bamaya  and  Adinarayya,   constituted   a  joint 
Hindu  family  governed  by  the  Mitakshara  Law  of  inheri- 
tance.    There  was  no  direct  evidence  to  show  what  funds 
(1)  I.  L.  R.,  6  Calc,  363.     |     (2)  13  L.  R.,  Ind.  App.,  148. 


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ABT.  145]      THE  SXCOND  SCHEDULE,  NB8T  DIVISION — SUITS. 


585 


Description  of  Bait. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  VIII. 
Twelve  years. 

were  employed  in  the  purchase  of  the  estate.  The  absence 
of  possession  was  carried  as  far  back  as  the  26th  of  May, 
1868,  the  date  of  the  sale  to  Sash  ay  y  a,  a  period  of  twelve 
years,  minns  two  days,  prior  to  the  24th  of  May,  1880,  the 
date  of  the  commencement  of  the  suit.  One  of  the  issues 
raised  in  the  suit  was,  whether  the  plaintiff  or  those  under 
whom  he  claims  ever  had  possession  of  the  property  in 
the  suit,  and  whether  the  suit  was  barred  by  limitation. 
The  only  question  to  be  considered  is  whether  during  the 
two  days  prior  to  the  26th  of  May,  1868,  Anandaraya  had 
an  actual  or  constructive  possession  of  a  one-fourth  share, 
or  whether  the  possession  of  Sarvaraya  was  not  adverse 
to  him  during  that  period.  It  was  held  that  where  the 
husband  of  a  female  member  of  a  Hindu  joint-family  had 
been  on  the  purchase  of  an  estate  admitted  by  the  male 
members  as  a  co-proprietor  in  respect  of  a  one-fourth  share 
thereof,  that  possession  of  the  whole  estate  by  the  joint- 
family  or  its  manager  was  adverse  to  such  co-proprietor 
in  respect  of  his  fourth  share  unless  shewn  to  have  been 
authorized  by  him,  and  consequently  that  the  plaintiff, 
who  claimed  title  from  him,  was  barred  by  Limitation 
Act  XV  of  1877,  schedule  2,  Article  144. 

Part  IX 

145. — Against    a    depositary  Thirty  years.  The  date 
or  pawnee   to  recover  posit  or 

moveable  property  de- 
posited or  pawned. 
(a)     (No.  147,  Act  IX ;  section  1,  clause  15,  Act  XIV.) 
This  Article  makes  the  time  to  run  not  from  the  date 
when  the  property  is  to  be  returned  or  the  debt  is  agreed 
to  be  paid,  but  from  the  date  of  the  deposit  or  pawn 
without  any  reference  to  the  contract  or  understanding 
between  the  parties.     In  Badhanath  Bose  v.  Bama  Churn 
Mookerjee,^)  plaintiff  and  defendant  entered  into  a  con- 
tract to  the  effect  that  the  defendant  should  purchase  a 
dwelling  house  benami  on  account  of  plaintiff,  and  reconvey 
it  to  plaintiff  on  his  paying  up  in  instalments  a  certain 
(1)  25  W.  R.,  415. 
74 


P.  C.  reversed 
the  decision  of 
M.H. 


of  the  de- 
pawn. 


This  Article  ap- 
plies only   to 
deposits  re- 
coverable in 
specie. 

Under  Act  IX 
of  1871 P 
(May  1878.) 


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586 


THB  8KOOHD  8CHIDULI,  I1RST  DIV18I0B — SUITS.       [ART.  146 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  IX. 
Thirty  years. 

Bum  of  money  with  interest.  Plaintiff,  seven  years  after 
his  last  payment,  sued  to  recover  some  payments  which 
he  had  made  in  excess  of  his  agreement,  and  the  First 
Court  dismissed  the  suit  as  being  barred  by  limitation,  but 
the  Second  Court  decreed  the  suit  on  the  plea  that  the 
plaintiffs  payments  were  deposits,  and  fell  within  Article 
147  of  the  Act  of  1871.  It  was  held  by  the  High  Court 
that  Article  147  applies  to  deposits  recoverable  in  specie 
and  that  the  over-payment  claimed  by  plaintiff  was  barred 
under  Article  60.  In  Parbutty  Churn  v.  Ram  Narain,tt> 
it  was  held  in  March,  1870,  that  suit  to  recover  money 
deposited  with  defendants  on  their  agreement  to  repay 
the  same  with  interest,  was  not  governed  by  clause  15, 
section  1,  of  Act  XIY  of  1859,  as  there  was  no  deposit  of 
property  or  money  intended  to  be  returned  specifically. 

(b)  In  Gobind  Chunder  Sein  *.  The  Collector  of 
Dacca/2*  plaintiff  claimed  the  balance  of  monies  paid 
over  in  a  certain  number  of  years  to  meet  certain 
demands  on  account  of  Government  Revenue.  It  was 
held  in  May,  1869,  that  the  Collector  could  not  be 
regarded  as  a  "  depositary"  in  the  sense  of  clause  15,  sec- 
tion 1,  Act  XIV  of  1859. 

146. — Before  a  Court  esta-  Thirty  years. 
Wished  by  Royal  Char- 
ter in  the  exercise  of 
its  ordinary  original 
civil  jurisdiction  by  a 
mortgagee  to  recover 
from  the  mortgagor 
the  possession  of  im- 
moveable property 
mortgaged. 

(a)     (No.  149,  Act  IX;  section  6,  Act  XTV.)  This  Arti- 
cle provides  for  the  institution  of  suits  against  the  original 
(1)  16  W.  R.,  164»  Note.         |  (2)  11  W.  E.,  491. 


Collector  re- 
ceiving money 
to  meet  uncer- 
tain demands 
on  account  of 
revenue  is  not 
a  depositary. 


When  any  part  of  the 
principal  or  interest 
was  last  paid  on  ac- 
count of  the  mort- 
gage debt. 


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ABT.  146]       TH1  SECOND  SCHEDULE,  FIBST  DIVISION — 8UIT8.  587 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  IX. 
Thirty  years. 

mortgagor,  while  Article  135,  which  provides  for  similar 
suits  in  the  mofussil,  is  silent  as  to  against  whom  the  suit 
under  that  Article  must  he  brought.  Under  Act  XIV  of 
1859,  the  period  of  limitation  was  twelve  years,  under 
Article  149  of  Act  IX  of  1871  it  was  60  years,  while 
under  this  Act  it  is  30  years. 

(b)     As  to  the  special  exemption  to  the  special  case  of         p.  c. 
mortgage  referred  to  in  this  Article,  which  makes  limita-  introduction  of 
tion  run  from  the  time  when  any  part  of  the  principal  or  ^ptioirhlQited 
interest  was  last  paid  on  account  of  the  mortgage  debt,  cue  of  mSrt.1&1 
the  Privy  Council,  in  Brojonath  Koondoo  Chowdhry  v.  fjS^"i87i.) 
Khelut  Chunder  Ghose/1)  have  observed :    "  It  may,  how- 
ever, have  been  deemed  necessary  to  introduce  the  excep- 
tion stated  above  in  order  to  put  mortgages  in  the  Eng- 
lish form,  when  put  in  suit  in  the  Supreme  Court  which 
was  generally  governed  by  English  Law,  upon  the  same 
footing  as  that  in  which  English  mortgages  are  under  the 
existing  Statutes   of  Limitation;  and   their  Lordships, 
dealing  with  suits  upon  mortgages  in  the  ordinary  courts 
of  India,  might,  in  the  simple  case  of  a  mortgagee  and  his 
mortgagor  permitted  to  remain  in  possession  so  long  as  he 
paid  interest,    Lave  found   ground  for  considering  that 
there  was  a  permissive  possession,  and  that  a  new  cause 
of  action  and   right  of   entry   accrued   when   that   per-  o.  H. 

mission  ceased."  In  Ram  Chunder  Ghosaul  v.  Juggut  Julyit7^llgust 
Monomohiney  Dabee,W  Markby,  J.,  observes  :  "This  would  Observations  of 
seem  as  if  the  clause  only  applied  to  transactions  where 
something  had  been  paid  for  principal  or  interest ;  and 
there  be  a  good  reason  for  this ;  for  where  some  part  of 
the  principal  and  interest  has  been  paid,  there  is  not 
likely  to  be  any  dispute  as  to  the  original  transaction,  of 
which  the  payment  operates  as  an  acknowledgment/' 
In  the  same  case,  Garth,  C .  J.,  observes :  "  That  where  there  Observations  of 

Garth,  0.  J. 
(1)  14  Moor  I.  A.,  144.  |        (2)  I.LE.,4  Calc,  283. 


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588  THE  SECOND  8CHIDUM,  FIU8T  DIV18ION — 8UITB.       [ART.  146 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  IX. 
Thirty  years. 

has  been  no  payment  of  any  part  of  the  mortgage  debt  or 
interest,  the  plaintiff's  remedy  would  be  barred  at  the 
end  of  twelve  years  from  the  date  of  demand."     "  And  in 
cases  where  any  part-payment  could  be  proved,  the  pre- 
sumption that  would  arise  from  lapse  of  time  (which  is 
the  principle  upon  which  all  Limitation  Acts  are  founded) 
would  not  arise,  or  at  any  rate,  it  would  not  be  nearly  so 
strong  as   in  a  case  where  no  part-payment  had  been 
made.    And  this  might,  in  some  degree,  explain  the  extra- 
ordinary length  of  time  which  is  allowed  to  a  mortgagee 
under  Article  149  of  Act  IX  of  1871. 
Observation*  of       (c)     In  Oanpat    Pandurang  v.  Adarji    Dadabhai/1) 
High  Court  as     plaintiff  sued  in  August,  1874,   for  foreclosure   of  an 
Article  H©  or     equitable  mortgage  created  in  1862,  by  deposit  of  title 
isn  applied  to    deeds.     The    defendants   contended    that    inasmuch    as 
closure"  °**m    Act  IX  of  1871  contained  no  special  provision  for  a  suit 
for  foreclosure  it  must  come  within  six  years'  limit  under 
Article  118  of  that  Act.     Sargent,  J.,  observes :  "  It  is 
admitted  that  the  suit  was  brought  within  twelve  years 
from  the  date  of  the  mortgage  (15th  August,  1862),  and, 
in  my  opinion,  it  falls  either  within  Article  132  of  the 
Limitation  Act  IX  of  1871,  schedule  2  (which  corresponds, 
in  general  terms,  with  section  40   of    Statute  3  and  4, 
Wm.  IV,  C.  27,  which  V.  C.  Shad  well,  in  Dearman  v. 
Wyche   (9  Sim.  570)  and  V.  C.  Wigram,  in  Du  Vigier 
v.  Lee  (2  Hare  326 ;  See  pp.  334-335)  thought  applied  to 
suits  for  foreclosure),  or  Article  149  of  Act  IX  of  1871, 
schedule  2  (which  provides  for  a  mortgagee  recovering 
the  lands  mortgaged,   using  the   same  language   as  in 
section  24  of  Statute   3  and  4,  Wm.  IV,  C.  27,  which 
Lord  St.  Leonards,  in  Wrixon,  v.  Vize   (3  Dr.   and  W. 
104,  120)  thought  applicable  to  suits  for  foreclosure),  and 
if  either  clause  is  applicable  the  suit  is  not  barred.     The 
(1)  I.  L.  K.,  3  Bom.,  312. 


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ART.  147]       THR  8BC0ND  8CHKDUT.V,  FIRST  DIVISION — 8UIT8. 


589 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  IX. 
Thirty  years 

latter  clause,  though  somewhat  unfortunately  worded, 
would  appear  to  be  tbe  clause  applicable  to  suits  of  this 
nature,  as  it  is  not  probable  that  it  was  intended  to  make 
a  distinction  between  suits  for  foreclosure  and  redemp* 
tion,  and  Article  148  clearly  applies  to  suits  for  redemp- 
tion, as  appears  from  the  language  in  the  third  column." 

Part  X. 
147. — By    a    mortgagee   for   Sixty  years.  When  the  money  se- 
f  oreclosure  or  sale.  cured  by  the  mort- 

gage becomes  due. 

(a)     This  Article  is  new,  and  there  was  no  provision  This  Article  is 
similar  to  it  in  the  Acts  of  1859  and  1871.     Article  132  created  much 
was  introduced  for  the  first  time  in  the  Act  of  1871,  but  doubMn^eaiing 
in  different  terms  f  rom  Article   132  of  Act  XV  of  1877,  of  suits  coming 
being  "  for  money  charged  upon  immoveable  property." 
Act  XV  of  1877  has  prefixed  the  words,  "To  enforce 
payment  of."     Suits  brought  for  the  recovery  of  money 
secured  by  mortgage,  whether  usufructuary,  or  simple  or 
instrument  of  hypothecation,  as  it  had  been  commonly 
called  by  all  the  courts  in  this  count iy  until  the  intro- 
duction of  the  Transfer  of  Property  Act  in   1882,  were 
dealt  with  under  clause  12,  section  1,  Act  XIV  of  1859, 
and  Article  132  of  Act  IX  of  1871,  which  allowed  only 
twelve  years.    Since  the  passing  of  Act  XV  of  1877,  with 
the  special  provision  contained  in  Article  147,  the  difficulty 
was  to  reconcile  it  and  Article  132,  and  give  effect  to  them 
both.     The  question  was  whether  a  suit  by  a  creditor  to  The  doubt  is 
realise  his  debt  by  the  sale  of  the  property  hypothecated  is  to  realise  money 
entitled  to  the  extended  period  of  60  years  under  Article  perty  Jypo^"* 
147.  Straight,  Offg.  C.  J.,  in  Shib  Lai  v.  Ganga  Prasad/1)    twelve  years  or 
observes,    "the   question  is  one  of  serious   importance,  observations 
because,  at  first  sight,  it  does  seem  somewhat  startling  j.,  on"the  above 
to  allow  a  limitation  period  of  60  years  to  a  suit  by  an  {Je  considers  to 

,,,   ,   ^    -r*     «   .,.     „..«.  be  one  of  serious 

(1)  I.  L.  K.,  6  All.,  552.  importance. 


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590  THE  8KCOND  SCHEDULE,  FIR8T  DIVISION SUITS.       [ART.  147 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  X. 
Sixty  years. 

obligee,  under  what  is  popularly  spoken  of  in  this  court 
as  an  hypothecation  bond,  for  enforcement  of  his  lien,  by 
sale  of  the  immoveable  property  hypothecated.  But  this, 
after  all,  is  only  matter  of  first  impression,  because  the 
legal  status  and  responsibilities  of  the  obligor  and  obligee, 
arising  under  one  and  the  same  contract,  in  which  the 
There  is  no  in-  immoveable  property  is  hypothecated,  there  would  seem 

tellijrible  reason  \.    *        *  i         .#    ,  n      . 

whytherightof  to  be  no  intelligible  reason  why,  if  there  really  is  a  mort- 
saie  and  of  the  gage  of  the  land,  the  right  of  the  one  to  brine  to  sale, 

other  to  pay  off    6^     .     ,  ,  „     *        •  ,  in 

the  incumb-       and  of  the  other  to  pay  off  the  incumbrance,  should  not 

ranee  should  .  .  ,       ,, 

not  stand  upon  stand  upon  precisely  the  same  footing  as   regards  the 

the  same  footing  .         . 

as  to  limitation,  rule  of  limitation  by  which  its  enforcement  in  court  is  to 

tion  is  not  dif.  be  governed.     An  hypothecation  of  immoveable  property 

simple  mort-      for  money  borrowed,  in  the  absence  of  anything  to  show 

the  contrary,  is  only  in  name,  but  not  iu  its  incidents, 

different  from   what  is  known  as  a  simple   mortgage. 

The  obligor  is  nothing  more  nor  less  than  a  mortgagor : 

when  Article     the  obligee  nothing  other  than  a   mortgagee.      When 

plaintiff  stand.  Article  147  of  the  Limitation  Act  speaks  of  a  suit  by  a 

tion  of  a  mort-  mortgagee  for  sale,  why  should  we  go  out  of  our  way  to 

frafroc    why 

should  we  go  hold  that  it  does  not  cover  a  case  in  which  the  plaintiff 

to  hold  that  it  in  his  relation  towards  the  defendant  legally,  and  to  all 

his  case.  intents  and  purposes,  stands  in  the  position  of  a  mort- 
gagee." 
o.  h.  and  a.  h.       (b)     The   High   Courts   of   Calcutta  and  Allahabad 

cie  to  apply  to  have  held,  that  a  suit  by  a  simple  mortgagee  to  enforce 

Hen,  while  b.  his  lien  by  sale  of  the  property  mortgaged,  is  governed 

apply  toMch  by  Article  147,  while  the  Madras  High  Court  have  held 

the  instrument  otherwise.     The  Bombay  High  Court  hold  this  Article 

e^pmTor1m-er  to  apply  to  such  suits  only  when  mortgage  deed  gives 

property  out  of  the  creditor,  expressly  or  by  implication,  power  to  sell  the 
property  out  of  court.     (See  Notes  under  Article  132.) 
o.  h.  (c)     •#   mortgaged  his  property  to  J?  in  1867,  by   a 

purehisOTof °n  simple  mortgage  (hypothecation.)     In  1868,  A  sold  the 


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ART.  147]       THE  SECOND  SCHEDULE,  FIR8T  DIVJ8I0N — 8UIT8.  591 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which 
period  begins  to  run. 


Part  X. 
Sixty  years. 

property  to  0  and  2>.  In  1870,  B  bronght  a  suit  on  his  mortgagee's 
mortgage  against  A  only  and  obtained  a  mortgage  decree,  to  enforce  Hen 
In  execution  of  this  decree,  and  on  the  14th  September,  Article. 
1871,  the  mortgagor's  interest  was  sold  and  purchased  by  UgU* 
K,  who,  on  the  25th  January  1872,  got  formal  possession 
through  the  court,  but  never  succeeded  in  getting  ac- 
tual possession.  The  auction-purchaser's  son  instituted 
this  suit  on  the  11th  September,  1883.  The  suit  was 
treated  by  both  the  Lower  Courts  as  a  suit  brought  to 
enforce  the  lien  on  the  land  of  the  purchasers.  The  Lower 
Appellate  Court  rejected  the  suit  as  barred  under  section 
132.  It  was  held  that  the  suit  fell  within  the  terms  of 
this  Article  and  was  not  barred  by  limitation.  Prinsep, 
J.,  observes  :  "  The  point  for  our  decision  in  this  appeal 
is  simply  whether  the  suit  falls  under  Article  132  or 
Article  147  of  schedule  2  of  Limitation  Act  1877.  The  suit 
has  been  tried  in  the  courts  as  a  suit  by  which  the  pur- 
chaser of  the  rights  of  the  mortgagee  endeavours  to 
bring  the  mortgaged  property  to  sale  by  enforcing  his 
lien,  the  mortgage  being  a  simple  mortgage.  It  appears 
to  us  that  a  suit  of  this  description  falls  within  the  terms 
of  Article  147,  and  that  the  suit  was  consequently  not 
barred.     Brojo  Lai  Singh  v.     Gour  Charan  Sen.*1) 

(d)     Shib  Lai  v.     Ganga  Prasad/2)  was  a  Full  Bench  a.  h. 

.         ,.,_,.*.«.,.  ,  ..       Suit  by  a  Sim- 

case,  in  which  plaintiff  sued  for  money  due  upon  a  simple   pie  mortgagee 

to  enforce  lien 

mortgage  deed  by  the  sale  of  the  mortgaged  property,  by  sale  fails  un- 
The  question  was  whether  the  claim  was  governed  by  this  (Jane  lsta.)  * 
Article  or  by  Article  132.  It  was  held  that  the  language 
of  this  Article  leaves  no  room  for  doubt,  and  that  a 
suit  by  the  holder  of  a  simple  mortgage  or  hypothecation 
for  the  enforcement  of  his  lien  by  sale  of  mortgaged  pro- 
perty is  a  suit  which  falls  under  this  clause.  The  Trans- 
fer of  Property  Act  makes  the  distinction  between  a 
(1)  L  L.  E.,  12  Calo.,  111.      |      (2)  I.  L.  E.,  6  AIL,  551. 


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592  THB  8KC0ND  8CHKDULB,  F1B8T  DIVISION — 8UIT8.       [ART.  147 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


PaktX. 
Sixty  years. 

mortgage  and  charge  in  sections  58  and  100,  and  Article 

132  applies  to   the  enforcement  of  payment   of  money 

charged  upon  immoveable  property.     Vide  Notes  under 

Article  132. 

H.  H.  (e)     In  Aliba  v.     Nanu,<*)  plaintiff  sued  in  1884,   to 

Court  held  this  recover  the  money  due  on  a  simple  mortgage  deed  dated 

apply  to  a  aim-  1870,  which  provided  for  repayment  in  1871.    It  was  held 

suit  to  enforce     that  the  suit  did  not  fall  under  this  Article,  but  under 

It  An  Iwr  omIa 

(Feb.  I8».j  Article  132.  Muttusawmy  Ayer,  J.,  observes  :  Although 
the  words  "  by  a  mortgagee  for  foreclosure  or  sale"  would, 
underthe  definition  of  "  mortgagee"  given  in  the  Transfer  of 
Property  Act,  1882,  section  58,  include  an  hypothecatee, 
it  must  be  remembered  that  there  was  no  such  definition 
of  the  term  "mortgagee"  in  1877,  when  the  present 
Limitation  Act  was  passed.  For  some  80  years  previous 
to  1877,  an  hypothecatee  (or  simple  mortgagee  as  now 
defined)  had  always  been  regarded  as  one  who  had  a 
•  Mortgagee  charge  upon  immoveable  property,  and  the  "  mortgagee" 

having  been  who  according  to  the  old  law  could  be  sued  within  60 
Son, an  extendi  years  of  the  mortgage  was  the  party  in  possession.  An 
flnition  of  that  extended  technical  definition  given  to  the  term  "  mort- 
not  also  extend  gagee"  by  legislation  subsequent  to  1877,  will  not  also 
limitation,  extend  the  period  during  which  one  who  was  not  techni- 

cally a  mortgagee  at  the  time  of  the  passing  of  that  Act 
can  sue  to  enforce  a  claim." 
B.  h.  (f)     In  Govind  Bhaichand  v.  Kalnak,(*)  1st  defendant 

debt  by  sale  of  by  a  mortgage  bond  dated  1st  January,  1864,  mortgaged 
gaged  by  a  deed  certain  property  to  plaintiffs'  deceased  father,  with  im- 

flrivinff  nowor  to 

sell,  foils  under  plied  power  to  sell  the  same  if  the  debt  was  not  satis- 
fied at  the  expiration  of  seven  years  from  that  date.  On 
the  2nd  January,  1883,  the  1st  plaintiff  filed  a  suit  in  his 
own  name,  as  manager  of  the  family,  to  have  the  debt 
realized  by  the  sale  of  the  mortgaged  property.  The  3rd 
(1)  I.  L.  R.,  9  Mad.,  218.    |    (2)  I.  L.  B.,  10.  Born.,  692. 


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ART.  147]        THE  8IC0ND  8CHBDULB,  FIRST  DIVISION — 8UITS.  598 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Part  X. 
Sixty  years. 

defendants  insisted  upon  plaintiff's  other  two   brothers 
being  joined  as  co-plaintiffs,  and  they  were  so  joined  on  the 
1st  March,  1883,  at  which  date  both  the  Lower  Courts 
were  of  opinion  that  the  suit  was  barred  under  Article 
132  of  the    Limitation  Act   XV  of    1877.     On  appeal 
by  the  plaintiffs  to  the  High  Court,  it  was  held,  revers- 
ing the  Lower  Court's  decrees,  that  plaintiffs'  suit  was 
governed  by  Article  147  of  the  Limitation  Act  XV  of 
1877,   and,    therefore,  not    barred.     By  the  instrument 
sued  on,  the  property  in  question  was  mortgaged  to  the 
plaintiffs'  father  with  an  implied,  if  not  express  power  to 
sell  the  same  in  the  event  of  the  mortgage  debt  not  being 
paid  at  the  expiration  of  seven  years  from  the  date  of  the 
mortgage.     The  period  of  limitation  was  60  years  from  Another  Bom- 
the  1st  January,  1871.    In  Khemji  Bhagvandas  Gujar  v.  t^0*"1' 
Rama,*1)    the  plaintiff  sued  to  recover  Be.  90,  being  the 
amount  of  principal  and  interest  due  on  two  bonds,  (Exhi- 
bits 5  and  3),  dated  the  25th  April,  1861,  and  8th  October, 
1866,  respectively,  and  payable,  respectively,  in  ten  years 
and  two  years  from  those  dates.     Both  bonds  purported 
to  be  mortgage  bonds.     The  plaintiff  prayed  either  for  Plaintiff  sued 
foreclosure  or  for  sale  of  the  properties  mortgaged  and  or'saSTand^r 
for  a  decree  against  the  defendants  personally.     The  suit  aU^agSnat11" 
was  brought  on  the  10th  August,  1882.     The  defendants  <k'endMlt- 
denied  the  execution  of  the  bonds  in  dispute,  and  con- 
tended that  the  suit  was  barred  by  the  Law  of  Limitation. 
Both  the  Lower  Courts  found  that  the  bonds  were  execu- 
ted by  the  defendants'  father.    As  to  the  plea  of  limitation, 
they  held  that  personal  remedy  against  the  defendants 
was  barred ;  that  as  neither  bond  provided  expressly  or 
impliedly  for  foreclosure  and  sale,  the  plaintiff  could  not 
claim  the  60  years'  period  of  limitation  laid   down    by 
Article  147,  schedule  2  of  Act  XV  of  1877 ;  and  that  the , 
(1)  I.  L.  R.,  10  Bom.,  519. 

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594  THE  SECOND  8CHBD0L*,  FIRST  DIVISION — SUIT8.       [ART.  147 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  X. 
Sixty  years. 

plaintiff's  claim  under  the  bond  of  1866,  (Exhibit  3)  was 

barred  by  Article  132.     They  awarded  the  claim  under 

the  bond  of  1861,  (Exhibit  5),  and  directed  the  principal 

and  interest  due  thereon  to  be  realised  by  the  sale  of  the 

property  hypothecated.     It  was  held  that  the  provision  of 

B.  H.  held  that  Article  147  of  the  Limitation  Act  (XV  of  1877)  applies 

plies  to  ail  suits  to  all  suits  properly  brought  by  a  mortgagee  for  foreclosure 

brought  by  a     or  sale,  while  the  general  provision  of  Article  132  applies 

foreclosure  or      to  suits  for  sale  by  a  creditor  having  a  right  to  realise  a 

sale  while  132        ,  .  \.  x  * 

applies  to  a  suit  charge  not  amounting  to  a  mortgage.     Where  lmmove- 

creditor  having  able  property  is  made  by  act  of  parties,  security  for  the 

a  charge  not     payment  of  a  debt,  but  no  power  of  sale,  without  the  inter- 
amounting  to  a  .  .        .  .  _ .  .  . 
mortgage.           vention  of  a  court,  is  given  to  the  creditor,  there  is  no 

transfer  to  him  of  an  interest  in  the  property  until  a 
decree  for  sale  has  been  made  in  his  favour,  and  the 
transaction  does  not  amount  to  a  mortgage.  When  im- 
moveable property  has  been  so  made  security  for  the  pay- 
ment of  a  debt,  there  can  be  no  foreclosure  by  the  creditor 
Observations  of  unless  the  terms  of  the  contract  admit  of  it.     Bird  wood. 

Bird  wood,  J. 

J.,  observes :  "  (Exhibit  No.  3,)  with  which  we  are  more  im- 
mediately concerned,  simply  recites  that  the  land  '  stands 
security'  for  the  money  due  under  it.  The  property  is 
also  spoken  of  as  mortgaged  ;  but  the  word  must  be  con- 
strued as  meaning  only  that  the  land  has  been  made 
security  for  the  payment  of  the  money,  so  that  the  creditor 
has  a  charge  upon  the  property,  within  the  sense  of 
section  100  of  the  Transfer  of  Property  Act  IV  of  1882. 
He  has  the  right  to  have  his  charge  realised  by  sale  under 
a  decree ;  but  he  is  not  a  mortgagee,  as  no  power  is  given 
him,  expressly  or  by  implication  to  sell  the  property  out 
of  court.  Until  he  obtains  a  decree  against  the  land,  no 
interest  in  it  is  transferred  to  him  such  as  is  transferred 
by  a  power  of  sale  in  an  ordinary  mortgage.  Gopal 
Pandey  v.  Purshotam  Das/1)  He  must,  therefore,  bring 
(1)  I.  L.  B.,  6  All.,  121. 


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ART.  147]        THB  8BC0ND  SCHEDULE,  FIRST  DIVISION — SUITS.  595 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


PABT  X. 

Sixty  years. 

his  suit  for  sale  within  twelve  years  tinder  Article  132  of 
the  schedule  to  the  Limitation  Act,  and  cannot  he  allowed 
the  extended  period  under  Article  147.     In  Gopal  Pandey  a.  h.  observed 
v.  Parshotam  Das,  Sir  R.  Stuart  remarks  that '  it  matters  security  has 
not  whether  the  security  may  have  the  name  of  a  simple  simple  mort- 
mortgage  or  usufructuary  mortgage  or  a  conditional  sale  ;  tuary  mortgage 
*  in  all  cases,  foreclosure  may  take  place  if  the  terms  of  sale,  foreclosure 
the  contract  admit  of  that  remedy.'     In  the  present  case,  if  the  terms  of 
the  terms  of  the  contract  do  not  admit  of  foreclosure,  and  mit  the  remedy." 
the  remedy  by  sale  through  the  court  is  barred. 

(e)     The  Privy  Council  held  when  the  Limitation  Act  p.  c.  held  that 

°  when  by  an  act 

of  1859  was  in  force,  that,  when  by  an  Act  of  Law,  there  of  law  there  has 

"  #  been  alienation 

has  been  an  alienation  from  a  mortgagor  to  a  third  person,  from  mortgagor 

00  r  to  a  third  per- 

the   Limitation   Law  applicable  between  mortgagor  and  son  limitation 

rr  t  ...         applicable   be- 

mortgagee  ceases  to  apply,  and  the  ordinary  limitation  tween  mort- 

00  rr  •"  *  gagorandmort- 

thenceforward  applies.     Anundo   Moyee  Dossee  v.  Dho-  gagee  ceases  to 

appiy« 
nendro  Chunder  Mookerjee.M      In  Manly  v.  Patterson/2) 

the  mortgagor,  who   was   first   tenant  for  life  under  a 

marriage   settlement,  was  entitled  to  hold  possession  of 

the  house  mortgaged  as  long  as  he  pleased,  the  rent  being 

set  off  against  the  income  of  the  trust  fund  due  to  him 

under  the  settlement.     In  execution  of  a  money  decree 

against  the  mortgagor,  his  right,  title,  and  interest  in  the 

premises  were  purchased  by  the  judgment-creditor,  a  lady 

who,  at  the  time  of  execution  and  sale,  lived  in  the  mortga-  Case  where 

gor's  house.    After  the  purchase,  all  parties  continued  to  ditor's^osses- 

sion  of  a  mort- 


live  in  the  house  as  before.     The  mortgagor  died  on  the  J^d  house* as 

inot 


14th  of  August,  1867,  and  on  the  13th  of  August,  1869,  the  ™^  figS* 


present  suit  for  sale  or  foreclosure  was  instituted  by  the  adverse. 
plaintiff,  in  whom  the  legal  and  beneficial  interest  in  the 
trust-funds  had  become  vested.  It  was  held  that  the 
position  of  the  judgment-creditor  under  the  sale  of  1866 
was  not  adverse  to  the  plaintiff,  and  that,  as  the  tenant 
for  life  died  within  twelve  years  of  the  institution  of  the 
suit,  the  claim  was  not  barred. 

(1)  14  Moore's  I.  A.,  101.         |     (2)  I.  L.  R.,  7  Calc,  394. 


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596 


THE  SECOND  SCHEDULE,  fIBST  DIVISION — SUITS.        [ART.  148 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


148. — Against  a  mortgagee 
to  redeem  or  to  recover 
possession  of  immove- 
able property  mortga- 
ged. 


Part  X. 
Sixty  years. 


When  the  right  to 
redeem  or  to  re- 
cover possession  ac- 
crues. 

Provided     that     all 


claims  to  redeem,  arising  under  instruments  of  mortgage 
of  immoveable  property  situate  in  British  Burmah,  which 
have  been  executed  before  the  first  day  of  May,  1863, 
shall  be  governed  by  the  rules  of  limitation  in  force  in 
that  province  immediately  before  the  same  day. 
No  limitation  (a)     (No.   148,   Act  IX;   section  1,  clause   15,  Act 

suits  before  aS  XIV  of  1859.)     Before  Act  XIV  of  1859,  there  was  no 
limitation  to  suits  for  redemption  of  mortgages.     Act 
Act  xiv  of  i860  XIV  of  1859,  section  1,  clause  15,  prescribed  a  limitation 
years  for  suit  to  of  60  years  for  suits  against  a  mortgagee  of  immove- 
Son dTimmove-  able  property  for  the  recovery  of  the  same.     An  acknow- 
mortgagedfrom  ledgment  "  in  the  meantime"   of  mortgagor's  title  or  of 
mortgage  or      his  right  of  redemption  gave  to  the  plaintiff  a   fresh 
knowiedgment.    starting  point.     The  words  "in  the  meantime"  having 
given  room  for  doubt  whether  it  referred  to  the  pres- 
cribed period  of  limitation,  the  Legislature  in  re-enacting 
the  above  provisions  in  Act  IX  of  1871,  distinctly  stated 
that  the  acknowledgment  must  have  been  made  "  before 
Act  of  1877  re-  the  expiration  of  the  prescribed  period."    Act  XV  of  1877, 

f  ers  to  Baits  f  or     .     ..   ,      ,  Ar.         *  .  .  .  ., 

redemption  and  Article  14o,  refers  to  suits  for  redemption  as  well  as  to 

for  possession  .  . 

of  property        suits  to  recover  possession  of  immoveable  property  mort- 
making  time  to  gaged,    and  makes  the  period   of  60  years  to  run,  not 
the  right  ao-      from  the  date  of  the  mortgage  as  under  the  Acts  of  1859 
and  1871,  but  from  the  time  "  when  the  right  to  redeem 
or  to  recover  possession  accrues."     As  to  when  this  right 
accrues,  see  sections  60  and  62  of  the  Transfer  of  Property- 
Act.     A  written  acknowledgment   of  the   right  of  the 
mortgagor  gives  a  fresh  starting  point  under  section  19. 
o.  h.  (b)     In   Raghoo   Pandey  v.  Kassy  Parcy,W  plaintiff 

Righttoredeem         V"'    £  j  ..  ,       J     ,    .       ,J         £ ,    .\  .  7 

a  share  of  right  sought  for  redemption  of  a  certain  share  of  ortt  jugmanka, 
._  ~m ~"*~  ~  (1)  j  L  R ^  1Q CjJc ^  73 


to  officiate  as 


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ART.  148]      THE  SECOND  SCH1DUL*,  flEST  DIVISION— SUIT8.  597 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


PabtX. 

Sixty  years. 

which  is  a  right  to  officiate  as  priest  at  funeral  ceremonies  priest  at  aftme- 

of  Hindus.     The  Lower  Appellate  Court  rejected  the  suit  this  Article, 
as  barred  under  Article  146.     It  was  held  that  the  right      12gus 

claimed  was  in  the  nature  of  immoveable  property  accord-  Right  claimed 

was  held  to  be 

ing  to  Hindu  Law,  and  that  the  suit  fell  under  this  Article   in  the  nature  of 
and  not  under  145.     The  texts  of  the  Hindu  Law  bearing  property. 
upon  this  question  are  collected  in  Krishnabhatbin  Hns- 
gange  v.   Kapabhatbin  Mahalbhat,(1>  and  Balvantrav  v. 
Purshotram  Sideshvar.W    In  Futtehsangji  Jaswantsangji 
v.Desai  Kalliansangi  Hukoomut  Raiji,W  the  Judicial  Com- 
mittee of  the  Privy  Council,  after  referring  to  the  rule  of 
construction  adopted  by  the  Bombay  High  Court  in  the   p.  o.  observes 
two  cases  cited  above,  observe :  "  To  the  application  of  tion'  whether 
this  rule   within  proper  limits,  their  Lordships  see  no  Buit  is  in  the 
objection.     The  question  must,  in  every  case,  be  whether   moveable  pro- 
the  subject  of  the  suit  is  in  the  nature  of  immoveable  be  afetermined7 
property,  or  of  an  interest  in  immoveable  property ;  and  and  usage,  the 
if  its  nature  and  quality  can  be  only  determined  by  Hindu  be  invoked"^ 
Law  and  usage,  the  Hindu  Law  may  properly  be  invoked         purpose. 
for  that  purpose." 

(0)  In  Ali  Muhammad  v.  Lalta  Bakhsh,W  certain  Mortgagees 
immoveable  property  was  mortgaged  in  June,  1854,  for  ing  adverse  title 
a  term  which  expired  in  June,  1874,  and  in  July,  1863,  the  ate  eo  years' 
equity  of  redemption  of  such  property  was  transferred  by   (April  1876.) 
sale  to  the  mortgagees  by  a  person  who  was  not  competent 

to  make  such  transfer,  and  the  mortgagees  in  the  suit 
brought  in  1877  set  up  a  proprietary  title  to  such  property 
in  virtue  of  the  sale.     It  was  held  that  the  mere  assertion 
of  an  adverse  title  would  not  enable  the  mortgagee  in  pos-  Mortgagee  set 
session  to  abbreviate  the  period  of  60  years  which  the  law  years  before 
allows  to  a  mortgagor  to  prosecute  his  right  to  redeem,   not  competent 
and  that  the  suit  was  not  barred,  though  brought  after  to  d0  *°' 
twelve  years  from  the  date  of  deed  of  sale. 

(1)  6  B.  H.  0.  B.,  A.  0.,  187.  I  (3)  1 1.  L.  B.,  I.  A.,  84 

(2)  9  B.  H.  C.  B.f  99.  |         (4)  I.  L.  B.,  1  AIL,  666. 


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598  THE  SECOND  SCHEDULE,  FIR8T  DIVI8ION — SUIT8.       [ART.  148 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


PartX. 
Sixty  years. 

Agreement  (d)     In   Gopil  Sit4r&m  Gune  v.  Desii,*1)    plaintiff's 

Sated  term1  for  ancestor  mortgaged  his  property  in  1814,  for  a  term  of 
lOTrin^mortga'  years.     After  the  expiration  of  the  term  in  the  agreement 
a tormanS^hen  for  redemption,  the  mortgagor  and  mortgagee  agreed,  in 
ty*  wu  PconBjT  1829,  that  the  mortgagee  shonld  hold  possession  for  28 
mortgage.  *       years  and  get  his  money  paid  with  the  usufruct,  and  in 
the  29th  year  should  hand  over  the  property  to  the  mort- 
gagor.    This  term  expired  on  the  23rd  October,  1857,  on 
which  date  the  plaintiff  was  entitled  to  get  hack  the 
village.     The  plaintiff  filed  this  suit  in  September,  1873, 
for  the  recovery  of  the  property  16  years  after  1857.     It 
was  held  that  the  suit  was  barred.     Pinhey,  J.,  observes, 
that  the  agreement  of   1829  is  not  a  mortgage  bond  and 
that  there  can  he  no  suit  for  an  account,  for  foreclosure  or 
for  redemption  on  payment  of  money,  and   under  that 
document  the  plaintiff  was  entitled  to  assume  possession 
in  1857. 
Mortgagor's  re-       (q\     ln   Ammu  v.  Bamakrishna    Sastri,<*>    O  mort- 

demption  suit  v     ' 

against  one  who  gaged  in  November,  1829,  a  garden  to  J,  and  gave  posses- 
years'  adverse     sion.    On  /'*  death,  her  interest  passed  to  her  heirs.    The 

possession  and  '  * 

who  did  not        defendant,  who  was  one  of  the  heirs,  obtained  possession 

claim  under  .  .     ,         .  r 

mortgagee  held  of  the  three  plots  in  this  suit  in  virtue  of  a  decree  passed 

barred. 

in  1852.  Before  1861,  the  defendants  Samuel  and  Ammu 
obtained  possession  of  two  of  the  plots  as  tenants,  and  the 
third  plot  was  with  the  mortgagee.  In  1861,  the  Deputy 
Collector,  on  an  enquiry  to  which  the  son  of  the  original 
mortgagor  represented  by  his  mother  was  a  party,  held  in 
August,  1862,  that  the  three  plots  belonged  to  Government, 
and  granted  them  under  three  separate  puttahs  to  the 
defendants  Tungu,  Samuel  and  Ammu,  and  the  last  two 
paid  no  rent  to  the  mortgagee  from  1861,  but  paid  assess- 
ment to  Government.  In  February,  1862,  the  plaintiff 
sued  Tungu  for  redemption  and  obtained  a  decree  in 
(1)  I.  L.  E.,  6  Bom.,  674.      |      (2)  I.  L.  E.,  2  Mad.,  226. 


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ART.  148]       THE  8IC0ND  SCHEDULE,  FIRST  DIVISION — 8UIT8. 


599 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


PartX. 
Sixty  years. 

February  1866,  to  which  neither  Samuel  nor  Ammu  nor 
the  Government  were  parties.  The  plaintiff  filed  the 
present  suit  in  1S76,  for  redemption  against  Tungu  and 
her  daughter  alone.  The  court  made  Samuel  and  Ammu 
as  defendants  in  May,  1876.  The  Munsiff  decreed  the 
olaim  against  Tungu  and  Ammu  and  rejected  the  claim 
against  Samuel  and  Ammu  as  barred  by  twelve  years' 
adverse  possession.  The  District  Judge  held  that  there 
could  be  no  trespass  on  the  title  of  the  mortgagor  so  long 
as  he  had  only  an  equitable  interest.  It  was  held  that 
this  Article  does  not  apply  to  suits  against  strangers  nor 
to  suits  which  are  not  suits  for  redemption,  and  that  this 
suit  was  barred  under  Article  145  of  Act  IX  of  1871  cor- 
responding to  Article  144  of  the  Act  of  1877.  The  court 
observe  that  the  contention,  that  so  long  as  the  mortga- 
gor is  entitled  only  to  the  equity  of  redemption  there  can 
be  no  invasion  of  his  interest,  cannot  be  assented  to. 
There  are  cases  in  which  the  rights  and  interests  of  the 
mortgagor  and  mortgagee  are  equally  invaded,  and  in 
such  cases  the  mortgagor  must  come  into  court  within 
the  time  allowed  for  the  recovery  from  trespassers  of 
interests  in  land.  Section  116  of  the  Evidence  Act  does 
not  debar  one  who  has  once  been  a  tenant  from  contending 
that  the  title  of  his  landlord  has  been  lost  or  that  his 
tenancy  has  determined.  It  precludes  him  only  during 
the  continuance  of  the  tenancy  from  contending  that  his 
landlord  had  no  title  at  the  commencement  of  the  tenancy. 
(f)  In  Periandi  v.  Angappa,^)  plaintiff  purchased 
certain  property  in  July,  1880,  in  execution  of  a  decree 
subject  to  a  prior  mortgage  in  favor  of  defendants  one  to 
four.  The  judgment-debtor  had  previously  sued  the 
mortgagees  and  obtained  a  decree  on  a  compromise  to  the 
effect  that  the  mortgage  was  redeemable  on  the  owner 
(1)  I.  L.  B.,  7  Mad.,  423. 


This  Article 
does  not  apply 
to  suits  against 
strangers  nor 
to  Buits  which 
are  not  suits  for 
redemption. 


There  are  cases 
in  which  the 
rights  and  inte- 
rests of  mort- 
gagor and  mort- 
gagee are  equal- 
ly  invaded 
when  the  mort- 
gagor is  entitled 
to  the  equity  of 
redemption. 
Mortgagor  must 
come  in  such 
cases  within  the 
time  allowed  to 
recover    land 
from  trespas- 
sers. 

Second  suit  to 
redeem  allowed 
when  execution 
of  decree  ob- 
tained for  re- 
demption is  bar- 
red. 


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600  THE  SECOND  SCHEDULE,  FIRST  DIVISION — SUITS.       [aBT.  148 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


PabtX. 
Sixty  years. 

paying  the  money  in  July,  1877 ;  execution  became  barred 
by  limitation  on  the  date  of  the  court  sale.  The  plaintiff 
having  purchased  judgment-debtor's  right,  title  and  inter- 
est, the  question  was,  whether  the  plaintiff  might  sue 
again  for  redemption.  It  was  held  that  although  the 
decree-holder  lost  his  right  to  recover  the  property  in 
execution  of  the  decree,  inasmuch  as  there  was  no  fore- 
closure, he  can  still  assert  his  right  to  redeem. 
Suit  wm  (g)     Contemporaneously  with  the  execution  of  a  re- 

to  redeem*  pro-  gistered  deed  of  sale  of  zemindari  property  in  1835,  for 
ed  in  ism H>y*a  Rs.  4,000,  the  vendee  executed  a  deed  in  favour  of  the 
deed  accom-  vendors  which  also  was  registered,  and  by  which  he 
registered  agreed  that  if  within  ten  years  the  vendors  should  pay 

redeem  within     Rs.  4,000  in  a  lump   sum  without  interest,  he  would 
accept  the  same  and  cancel  the  sale,  and  that  he  should 
be  in  possession  during  that  period*     This  transaction 
admittedly  amounted  to  a  mortgage  by  conditional  sale. 
The  mortgagee  remained  in  possession,  and  his  name  was 
entered  as  that  of  proprietor  in  the  Collector's  register, 
in  1840,  the  pro-  in  which  no  allusion  was  made  to  a  mortgage.     In  1840, 
for  Government  his  rights  in  this  property  were  sold  by  auction  for  arrears 
mortgageeUon     of  Government  revenue  due  by  him  on  account  of  other 
land,  and  apparently  no  notice  was  given  by  any  one  at 
or  prior  to  the  sale  that  it  was  the  mortgagee's  interest 
only  which  was  about  to  be  or  was  being  sold.     The 
property  was  purchased  for  Rs.  3,000  by  8,  who  took 
Purchaser  took  possession,  and  in  1847  sold  it  for  the  same  sum  to  0.    On 

possession  in 

1847  and  sold  it  the  occasion  of  each  transfer,  the  name  of  the  transferee 

to  another  for 

the  same  price  was  entered  in  the  Collector  s  register  as  that  of  pro- 
he  paid  first.  .   ,  __  ......  ,  , 

pnetor.  No  application  for  foreclosure  was  made  at  any 
time.  In  1885,  the  representatives  of  the  mortgagors 
'  brought  a  suit  against  the  representative  of  0  for  re- 
demption of  the  mortgage,  and  for  mesne  profits. .  The 
defendant  pleaded;    (i)   that  the  suit  was  barred  by 


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ART.  148]       THE  SECOND  SCHEDULE,  PIR8T  DIVISION — SOITS.  601 


Description  of  suit. 


Period  of 
limitation. 


Time  from  whioh  period 
begins  to  ran. 


Part  X. 
Sixty  years. 

limitation  under  Article  134,   schedule  2  of  Act  XV  of   Defendant  plea- 
1877 ;  (ii)  that  the  several  transferees  were  innocent  par-   under  Article* 
chasers  for  valuable  consideration  without  notice,  who  had  seveSdtran£ 
purchased  in  each  case  from  the  person  who  was,  with  the   nooent  purchal 
consent,  express  or  implied,  of  the  persons  for  the  time  without  notice, 
being  interested,  the  ostensible  owner,  and  had  in  each 
case,  prior  to   the   purchase   taken   reasonable  care  to 
ascertain  that  the  transferor   had   power  to  make   the 
transfer,  and  had  acted  in  good  faith.     Held,  that  Article   it  was  held  that 
134  of  the  Limitation  Act  did  not  apply  to  the  case,  inas-  not  apply  as  it 
much  as  that  Article  referred  only  to  persons  purchasing  persons  pur? 
what  was  de  facto,  a  mortgage,  having  reasonable  grounds  was  &  jZ*o,  a 
for  the  belief,  and  believing  that  it  was  an  absolute  title  ;  ing HKat  it  was 
and  that  having  regard  to  section  29  of  Regulation  XI  of 
1822,  to  the  presumption  that  the  several  transferees  knew 
the  law  and  made  inquiries  as  to  the  interest  they  were 
purchasing,  and  examined  the  register  in  which  the  deed 
constituting  the  transaction  of  1835  a  mortgage  was  regis-  Transferees 
tered,  and  also  having  regard  to  the  fact  that  Bs.  3,000  cumstanoes 
only  were  paid  as  purchase-money  in  each  case,  and  to  the  known  uniessV 
circumstance  tha,t  it  was  doubtful  whether  a  purchaser  abstained  from 
at  a  formal  auction  sale  such  as  that  in  question  could  be  interest  they  e 
said  to  have  purchased  without  notice  an  absolute  interest   that  of  a  mort- 
from  the  mortgagee,  it  must  be  inferred  that  the  trans-  Ra*ee# 
ferees  knew,  or  might,  or  ought  to  have  known,  unless 
they  wilfully  abstained  from  inquiry,  that  the  interest 
which  they  respectively  were  purchasing   was  merely 
that  of  a  mortgagee.     Bhagwan  Sahai  v.  Bhagwan  Din.*1) 

(h)     In  Nura  Bibi  v.  Jagat  Narain,(*>  K  and  /jointly  Suit  by  one  of 

,  «„       ,  i  #  j.   x     x     n       •    •  two  joint-mort- 

mortgaged  3o  sahams  or  shares  of  an  estate  to  u,  giving  gagors  to  re- 

,  .  .  ~  ,  -  ,  ,  .       .    ,  .  ,  .       deem  his  por- 

him  possession.    C  transferred  his  rights  as  mortgagee  to  tion  from  the 
Tand  M.     In  execution  of  a  decree  for  money  against  K  gorwhorSfeem- 
held  by  Jf,  K's  rights  and  interests  in  the  mortgaged  property  fails 

*  under  this  Arti- 

(1)  I.  L.  R.,  9  AH.,  97.  |  <2)  I.  L.  E.,  8  All.,  295.  de. 

76 

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602  THE  SECOND  SCHEDULE,  FIEBT  DIVISION — SUITS.       [ART.  148 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Part  X. 
Sixty  years. 

property  were  sold,  and  were  purchased  by  P,  whose  heirs 
paid  the  entire  mortgage  debt.     R,  an  heir  of  /,  sned  the 
heirs  of  P  to  recover  from  tliem  possession  of  Ts  sahams 
in  the  mortgaged  property,  on  payment  of  a  proportionate 
amount  of  the  mortgage  money  paid  by  P.     The  plaintiff 
alleged  that  the  mortgage  to  C  had  been  made  40  years 
before   suit.      The   defendants   contended   that   a   much 
longer  period  had  expired  since  the  date  of  the  mortgage; 
that  41  years  had  elapsed  since  C  transferred  his  rights 
as  mortgagee  ;  that  they  had  redeemed  the  property   21 
years  ago  and  had  been  since  its  redemption  in  proprie- 
tary and  adverse  possession  of  the  sahams  in  suit,  and  that 
Neither  party      the  suit  was  barred  by  limitation.     Neither  party  was 
the*  date  of°      aware  of  the  date  of  the  mortgage  and  neither  adduced  any 
n^ther&dduced  proof  on  the  point.     It  was  held,  applying  the  equitable 
am  principle  adopted  in  sections  95  and  100  of  the  Transfer  of 

Property  Act  (IV  of  1882),  that  the  owner  of  a  portion  of 
a  mortgaged  estate  which  has  been  redeemed  by  his  co- 
mortgagor,  has  the  right  to  redeem  such  portion  from  his 
co-mortgagor,  and  a  suit  brought  for  that  purpose  would 
be  in  the  nature  of  a  suit  for  redemption,  and  would 
it  was  held  that  naturally  fall  within  the  definition  of  Article  148,  and  it 

it  is  not  possible  .  .,,      -  -   ,  ,  j  . 

for  one  of  two  was  not  possible  for  one  of  two  mortgagors,  redeeming 
ieenung  the  the  whole  mortgaged  property  behind  the  back  of  the 
the  back  of  the  other,  to  change  the  position  of  that  other  to  something 
the  position  of  less  than  that  of  a  mortgagor,  or  to  abridge  the  period  of 
something  less  limitation  within  which  he  ought  to  come  in  to  redeem, 
mortgagor  ;a  co-  The  decision  in  Pancham  Singh  v.  Ali  Ahmad,  ^>  was  to 
dMmmg°entire  the  effect  that  a  co-mortgagor  who  redeems  the  entire 
mthe  shoes  of  mortgage  stands  in  the  shoes  of  the  mortgagee  in  respect 
as  to  theehare  of  such  portion  of  the  redeemed  property  as  belongs  to 

of  the  other  ,      r  i  r 

mortgagor.         the  other  mortgagor. 

(1)  I.  L.  E.,  4  All,  58. 

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ART.  149]       THE  SECOND  SCHEDULB,  F1K8T  DIVISION SUITS. 


603 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


149. — Any  suit  by  or  on  be- 
half of  the  Secretary 
of  State  for  India  in 
Council. 


Part  X. 
Sixty  years.  When  the  period  of 
limitation  would 
begin  to  run  under 
this  Act  against  a 
like  suit  by  a  pri- 
vate person. 

(a)  (No.  150,  Act  IX ;  section  17,  Act  XIV.)  Ben- 
gal Regulation  II  of  1805,  section  1,  clause  2,  allowed  60 
years  to  suits  by,  or  on  behalf  of  Government  for  the 
recovery  of  Public  Revenue,  or  for  any  public  right  or 
claim  whatever.  Section  17  of  Act  XIV  of  1859  left  the 
law  on  the  subject  unaffected  by  its  provisions  by  pro- 
viding :  "such  suits  shall  continue  to  be  governed  by  the 
laws  or  rules  of  limitation  now  in  force."  Act  IX  of  1871, 
Article  150,  prescribed  60  years'  limitation  to  suits  in 
the  name  of  the  Secretary  of  State  for  India  in  Council. 
Act  XV  of  1877  allows  the  same  period  of  limitation  for 
suits  by,  or  on  behalf  of  the  Secretary  of  State  for  India 
in  Council. 

The  Bombay  High  Court  in  Veuubai  v.  The  Collector  of  b.h.  held  under 
Nasick,*1)  have  held  under  Act  IX  of  1871,  that  as  regards  that  the  LegW 

lature  made  no 

the  question  of  limitation,  so  far  as  appeals  and  applica-  difference  be- 
tions  were  concerned,  the  Legislature  made  no  difference  ment  and  ita 
between  Government  and  its  subject.     Act  XV  of  1877 
contains  express  provision  in  Article  157  prescribing  limi- 
tation for  the  presentation  of  Criminal  Appeals.     Though 
the  3rd  Division  of  the  2nd  schedule  of  the  Act  relating  to 
applications  does  n»t  make  any  express  provision  as  to 
applications  by  Government,  the  Madras  High  Court  in  m.  h.  held  that 
Appaya  v.  The  Collector,**)  have  observed  that  applications  execution  by  °r 
for  execution  of  decrees  by  or  on  behalf  of  Government  aregoverned by 
are  governed   by   the  ordinary  limitation   applicable   to  tattonappii." 
private  suitors.  SKJ*  private 

(b)  Certain  property  in  the  actual  possession  of  a  The  savin* 
rebel  was  confiscated  by  the  Government  in  1858.     In  a  respect  to  mi- 

(1)  L  L.  R.,  7  Bom.,  552,  Note.      |      (2)  I.  L.  E.,  4  Mad.,  1*6.        Stt^iSSSj 


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604 


THK  8BCOND  8CHIDUL*,  FIRST  DIVI8I0N BDIT8.       [ART.  150 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


to  toe  contain- 
ed in  Act  XIV 
of  I860,  held  in- 
applicable to  a 
suit  against  Go- 
▼ernment  under 
Act  IX  of  1860 
f  or  possession 
of  confiscated 
property. 


Saving  clauses 
contained  in  the 
general  Limita- 
tion Act  cannot 
be  imported  in- 
to a  special  en- 


Time  for  snit 
against  Govern- 
ment for  confis- 
cated property 
runs  from  date 
of  actual  attach- 
ment. 


A  list  of  confis- 
cated houses  is 
not  by  itself 
proof  of  attach- 
ment. 


PabtX. 
Sixty  years. 

suit  brought  on  the  1st  May,  1865,  to  recover  the  property, 
it  appeared  that  the  plaintiffs  were  the  sons  and  heirs  of 
one  M  who  died  in  1854,  legally  entitled  to,  though  not 
in  possession  of,  the  property  in  question  ;  that  at  the 
date  of  his  death,  and  at  the  date  of  the  confiscation,  the 
plaintiffs  were  minors,  and  that  they  came  of  age  in  1861, 
and  February,  1864,  respectively.  It  was  held  that  the 
suit  not  having  been  brought  within  one  year  from  the 
date  of  the  confiscation,  was  barred  by  section  20,  Act  IX 
of  1859.  There  is  no  saving  clause  in  Act  IX  of  1859, 
with  respect  to  minors  or  parties  under  disability  to  sue, 
and  such  saving  cannot  be  held  to  be  implied  upon  any 
principle  of  equitable  construction ;  nor  can  the  saving 
clauses  contained  in  the  general  Limitation  Act  XIV  of 
1859  be  imported  into  a  special  enactment.  Mahomed 
Bahadur  Khan  *.  The  Collector  of  Barielly.O) 

(C)  In  Deo  Karun  v.  Nawab  Syu  Mahomed  Ali 
Sbab,<*)  it  was  held  that  in  cases  of  confiscation,  limita- 
tion runs  not  from  the  date  on  which  confiscation  is  sanc- 
tioned by  the  Government,  but  rather  from  the  date  on 
which  the  property  is  actually  attached  on  the  part  of 
the  Government.  An  order  of  confiscation  or  an  order 
sanctioning  confiscation  is  not  equivalent  to  an  actual  con- 
fiscation by  way  of  attachment  or  seizure.  A  list  of  con- 
fiscated houses  is  not  by  itself  proof  of  actual  attachment. 


THK  8KCOND  SCHEDULE,  SECOND  DIVISION APPEALS. 


Description  of  appeal. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


150.— Under  the  Code  of  Cri- 
minal Procedure  from 
a  sentence  of  death 
passed  by  a  Sessions 
Judge. 

(1)  13.  B.  L.  R.,  292. 


Seven  days. 


The  date  of  the  sen- 
tence. 


(2)  3.  N.-W.  P.  H.  C.  R.,  328. 


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ART.  151 — 152]       TH1  SECOND  SCHEDULE,  SBCOND  DIV. — APPEAL8.      605 


Description  of  appeal. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


The     date     of     the 
decree  or  order. 


151. — From  a  decree  or  order  Twenty  days, 
of  any  of  the  High 
Courts  of  Judicature 
at  Fort  William, 
Madras  and  Bombay, 
or  the  Chief  Court  of 
the  Punjab*  in  the  ex- 
ercise of  its  original  ju- 
risdiction. 

(ft)  In  Barney  v.  Broughton/1)  which  was  a  suit  on  the  Delay  in  a  case 
Original  Side  of  the  High  Court,  decree  was  signed  on  as  "time  ra- 
the 6th  September,  1883,  and  on  the  7th,  the  defendant's  taining  a  oodj 
attorney  obtaining  a  copy  thereof,  served  a  copy  at  the 
office  of  the  plaintiff's  attorney  on  the  8th.  The  plaintiff, 
on  the  5th  September,  presented  a  memorandum  of  appeal 
without  a  copy  of  the  decree  to  the  Registrar,  who  refused 
to  accept  it.  Plaintiff  applied  for  a  copy  on  the  12th, 
obtained  it  on  the  13th,  and  tendered  it  with  his  appeal 
memorandum  on  the  15th,  which  the  Registrar  refused  to 
accept  as  being  out  of  time.  On  the  6th  December,  1883,  a 
single  Judge  admitted  the  appeal.  When  it  came  on  for 
hearing,  the  court  held  that  the  appeal  was  barred.  It 
was  held  on  review  tbat  the  plaintiff  having  allowed  five 
days  to  expire  after  the  decree  was  signed  before  applying 
for  a  copy,  and  not  having  filed  his  appeal  after  so  obtain- 
ing a  copy,  at  the  earliest  opportunity  possible,  such  a 
delay,  being  entirely  unaccounted  for,  could  not  be  held 
to  be  '  time  requisite  for  obtaining  a  copy  of  the  decree/ 
and  that,  therefore,  the  appeal  was  out  of  time. 


152.— Under  the  Code  of  Civil 
Procedure  to  the  Court 
of  a  district  Judge. 


Thirty  days. 


The  date  of  the  decree 
or  order  appealed 
against. 


an 


(a)     In  Venkatarayudu  v.  Nagadn,(*)  it  was  held  that  District  Judge 

order  made  em  parte  under  section  5  of  the  Indian  original  order 

(1)  I.  L.  R.,  10  Calc.,  652.      |      (2)  I.  L.  R.,  9  Mad.,  450.  SSanmmSd 

— — ^— ^— — — — — — ^— — ^—^— — — — — — —  out  of  time. 

•  The  words  "  or  the  Chief  Court  of  the  Punjab"  were  inserted  (July  1886.) 


after  "  Bombay"  by  Act  XVII  of  1877,  seo.  12. 


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606 


THE  SECOND  SCHEDULE,  8ECOND  DIVISION — APPEALS.     [ART.  152 


Description  of  appeal. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Sub-Judge  can- 
not canoel 
District  Judge's 
order. 


A  party  on 
whose  review 
application, 
decree  was 
modified,  can 
treat  the  order 
on  review  as 
final  decree  or 
order  and  ap- 

Sal  within  30 
ysfrom  iu 


If  theoourt 
amends  clerical 
error  in  its 
judgment  or  or- 
der as  to  costs 
and  draws  up  a 
decree  an  ap- 
peal will  lie 
within  30  days 
from  that 
decree. 


Thirty  days. 

Limitation  Act  1877,  admitting  an  appeal  after  the 
period  prescribed  therefor,  may  be  set  aside  on  proper 
cause  being  shown  by  the  court  which  made  it.  The 
Calcutta  High  Court  also  held  so  iu  Jhotee  Sahoo  v.  Omesh 
C bunder  Sircar/1)  and  further  ruled  that  such  an  order 
made  by  a  District  Judge  cannot  be  afterwards  cancelled 
by  a  Subordinate  Judge  upon  the  appeal  coming  on  for 
hearing  before  him. 

(b)  Any  order  made  upon  an  application  for  review 
of  judgment  except  an  order  absolutely  rejecting  an 
application,  becomes  if  it  modifies  or  alters  the  original 
order,  the  final  order  in  the  case,  and  the  party  aggrieved 
by  the  original  decree  is  entitled,  although  the  modifica- 
tion or  alteration  was  made  in  his  favor,  to  treat  the  order 
upon  review  of  judgment  as  the  final  decree  or  order  in 
the  case,  and  if  it  was  made  by  a  court,  an  appeal  from 
which  lies  to  the  court  of  a  District  Judge,  he  is  entitled 
to  prefer  his  appeal  at  any  time  within  30  days  from  its 
date.  When  an  application  for  review  of  judgment  is 
made  upon  several  grounds,  one  of  which  refers  only  to 
the  question  of  adjudication  of  costs,  and  the  court  to 
whom  the  application  is  made  holds  all  the  grounds  to  be 
untenable,  but  is  of  opinion  that  there  has  been  a  clerical 
mistake  in  that  part  of  its  order  or  judgment  which  refers 
to  costs,  it  may  reject  the  application  absolutely  and 
permit  the  applicant  to  apply  under  section  206  of  the 
Civil  Procedure  Code  for  a  rectification  of  the  clerical 
mistake ;  but  if  it  does  not  do  so,  but,  on  the  application 
for  a  review  of  judgment,  amends  the  clerical  mistake  in 
its  original  order,  the  decree  drawn  up  in  confoimity  to 
this  order  becomes  the  final  decree,  and  an  appeal  will  lie 
against  it  if  brought  within  the  time  prescribed  for  bring- 
ing an  appeal  against  any  other  similar  decree.  Joy- 
kishen  Mookerjee  v.  Ataoor  Rohoman.(2> 

(1)  I.  L.  JL,  5  Calo.,  1.         |        (2)  I.  L.  R.,  6  Calo.,  22. 


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ABT.  158 154]  THE  SECOND  SCHEDULB,  SECOND  D1V. — APPIAL8.   607 


Description  of  appeal. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Thirty  days. 

(C)     In  Huro  Chnnder  Roy  v.  Surnamoyi/1)  plaintiff  Court  might 
valued  his  suit  at  Bs.  18,000,  which  was  reduced  to  less   after  time  if 
than  Rs.  5,000  by  the  court  of  first  instance  at  Rajshahye.    *J&  ™  o2? 
A  decree  dated    the  20th  December,   1883,  was    given  «gj  amjKj[JLof 
against  the   defendant,  who   applied   for  copies   on   the 
3rd  of  February,  and  the  decree  was  ready  on  the  7th. 
The  defendant  was  apparently  under  the  impression  that 
the  appeal  would  lie  to  the  High  Court ;  but  on  the  16th 
of  March,  a  letter  was  despatched  by  his  Calcutta  agent 
informing  him  that  he  was  mistaken  and  that  the  appeal 
lay  to  the  District  Judge.     This  letter  reached  Rajshahye 
on  the  17th,  and  the  appeal  was  filed  on  the  23rd  of  March. 
Held,  that  under  the  circumstances  the  court  might  admit 
the  appeal  in  the  exercise  of  its  discretion  under  section 
5  of  the  Limitation  Act. 


Thirty  days. 


153. — Under  the  same  Code, 

Section  601,*  to  a  High 

Court. 

This  appeal  is  from  an  order  refusing  to  certify  that  a 
final  decree  passed  by  a  court  other  than  a  High  Court 
is  such  that  it  may  be  appealed  to  Her  Majesty  in  Coun- 
cil. Section  598,  of.  C.  P.  C,  provides  for  application 
for  a  certificate  to  the  court  against  whose  decree  appeal 
to  Her  Majesty  in  Council  is  sought  to  be  preferred. 


The  date  of  the  order 
refusing  the  certifi- 
cate. 


The  date  of  the  sen- 
tence or  order  ap- 
pealed against. 


154. — Under  the  Code  of  Cri-  Thirty  days, 
minal  Procedure  to  any 
Court    other    than    a 
High  Court. 

(a)     This  Article  is  similar  to  Article  152  of  Act  IX  of 
1871.    Section  272  of  Act  X  of  1872,  which  provided  for  an 
appeal  by  the  Local  Government  from  a  judgment  of 
(1)  I.  L.  R.,  13  Calc,  266. 

*  601.    If  such  certificate  be  refused,  the  petition  shall  be  dismissed. 

Provided  that,  if  the  decree  complained  of  be  a  final  decree  passed  by  a  Court 
other  than  a  High  Court.,  the  order  refusing  the  certificate  shall  be  appealable 
within  30  days  from  the  date  of  the  order,  to  the  High  Court  to  which  the  former 
Court  is  subordinate. 

Bill  No.  23  of  1886,  proposes  to  repeal  section  509  and  the  words  **  within  80  days  from 
the  date  of  the  order**  in  section  601  of  O.P.C. 


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608         THC  8KCOND  SCHEDULE,  SECOND  DIV. — APPEALS.   [ABT.  155 156 


Description  of  appeal. 


Period  of 
HmHntioiL. 


Time  from  which  period 
begins  to  run. 


Time  taken  in 
obtaining  copy 
should  be  ex- 
cluded. 

Presenting  ap- 
peal petition  to 
the  officer  in 
charge  of  jail 
U  efficient. 


Thirty  days. 

acquittal,  declared  "the  roles  of  limitation  shall  not 
apply"  to  such  appeals.  This  provision  was  repealed  by 
Act  XI  of  1874,  section  23,  which  provided  against  the 
presentation  of  such  appeals  after  six  months  from  the 
date  of  the  judgment.  A  Full  Bench  of  the  Calcutta  High 
Court  held  in  March,  1877,  that  60  days*  rule  under  this 
Article  does  not  apply  to  such  appeals.  Empress  v.  Jya- 
dulla-d)  Article  157  of  the  Act  of  1877  provides  for  an 
appeal  from  a  judgment  of  acquittal  within  six  months, 
(b)  Time  in  obtaining  copy  of  judgment  should  be  ex- 
cluded in  a  Criminal  Appeal.  Time  taken  in  forwarding 
a  prisoner's  application  for  copy  and  transmitting  copy  to 
the  officer  in  charge  of  the  jail  was  excluded.  Presenta- 
tion of  the  petition  of  appeal  to  the  officer  in  charge  of 
the  jail  is  equivalent  to  presentation  to  the  court.  See 
Notes  H  and  /,  under  Article  12,  p.p.  88-89. 


Sixty  days. 


Ninety  days. 


The  date  of  the  sen- 
tence or  order  ap- 
pealed against. 


The  date  of  the  decree 
or  order  appealed 
against. 


155. — Under  the  same  Code 

to  a  High  Court  except 

in  the  cases  provided 

for  by  No.  150  and  No. 

157. 
156.— Under  the  Code  of  Civil 

Procedure    to  a  High 

Court    except    in   the 

cases  provided  for  by 

No.  151  and  No.  153. 

(a)  In  Dubey  Sahai  v.  Ganeshi  LaV2*  it  was  held  that 
the  order  admitting  an  appeal  after  time,  made  ex  parte  by 
a  single  Judge  of  the  High  Court  sitting  to  receive  appli- 
cations for  the  admission  of  appeals  under  a  rule  of  the 
court  made  in  pursuance  of  24  and  25  Vic,  Cap  104,  sec- 
tion 13,  and  Letters  Patent  of  the  court,  section  27,  was 
liable  to  be  impugned  and  set  aside  at  the  hearing  by 
the  Division  Court  before  which  it  was  brought  for  hear- 
ing on  the  ground  that  the  reasons  assigned  for  admit- 
ting it  were  erroneous  or  inadequate.  This  has  been 
(1)  I.  L.  R.,  2  Calc.,  436.       \         (2)  I.  L.  R.,  1  All.,  34. 


Single  Judge's 
order  ex  parte 
admitting  an 
appeal  after 
time  can  be  eet 
aside  by  a  Divi- 
sion Court. 


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ABT.  157 — 158]    TH*  6K00ND  SCHBDULB,  8IC0ND  DIV. — APPIALB.        609 


Description  of  appeal. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Ninety  days. 

referred  to  in  Huasini  Begara  v.  The  Collector  of  Mozaffar- 
n agar/1)  in  which  Petheram,  G.  J.,  allowed  the  appellant, 
whose  first  application  for  leave  to  sue  as  a*  pauper  was 
rejected,  to  file  her*  appeal  on  fall  stamp  paper.  She 
thereupon,  borrowing  money  on  onerous  conditions,  pre- 
sented her  appeal,  which  was  admitted  by  a  single  judge. 
But  a  Division  Bench  rejected  the  appeal. 

(b)     In  Aga  Mahomed  Hamadani  t>.  Cohen/2)  it  was  Appeal  from 
held  that  an  appeal  from  the  Court  of  the  Recorder  of  SSEdSi? 
Rangoon,  to  the  High  Court,  is  an  appeal  under  the  Civil  Ra?g0?vifaU* 
Procedure  Code,  and  must  be  made  within  the  time  pre-  Article. 

I  Julv  1HRA  \ 

scribed  by  Article  156.  In  Mahomed  Hossein  v.  Inodeen,(8> 
it  was  held  that  this  Article  does  not  apply  to  proceedings 
under  section  27  or  section  34  of  the  Burma  Courts'  Act. 


157. — Under    the     Code    of 
Criminal       Procedure 
from   a   judgment    of 
acquittal. 
See  Note  A,  under  Article  154. 


Six  months. 


The  date  of  the  judg- 
ment appealed 
against. 


THE  8KCOND  SCHEDULE,  THIRD  DIVISION — APPLICATIONS. 


Description  of  application. 


Period   of 
limitation. 


Time  from  which  period 
begins  to  ran. 


158.— Under  the  Code  of  Civil 
Procedure  to  set  aside 
an  award. 


Ten  days 


When  the  award  is 
submitted  to  the 
Court. 


(a)     In  Chhiddu  v.  Narpat,*4)  an  agreement  to  refer  This  Article 
certain  matters  to  Arbitration  was  filed  in  court  under  ™to6appiic^ 
section  523  of  the  Civil  Procedure  Code  and  an  order  of  J^Ilfej^L 

to  in  section  683 

reference  was  made  thereon  by  the   court.     It  did  not  of  the  c.  p.  o. 
provide  for  difference  of  opinion  between  the  two  arbitra-   award  on  any  of 
tors  named  therein  by  appointing  an  umpire  or  otherwise,   t^e^hi1611" 
The  arbitrators  being  unable  to  agree  upon  the  matters   aection  621« 
referred,  the  court,  on  the  application  of  one  of  them, 
appointed  an  umpire  and  directed  that  the  award  should 
be  submitted  on  a  particular  date.     An  award  was  made 

(1)  I.  L.  R.,  9  An.,  11.  I      (3)  I.  L.  R.,  10  Calc,  946. 

(2)  I.  L.  JR.,  13  Calc,  221.     |      (4)  I.  L.  R.,  8  All.,  62. 


77 


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610  THI  SIOOND  8CHEDUL1,  THIRD  DIV. — APPLICATIONS.  [ART.  159 — 160 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Ten  days. 

by  the  umpire  and  one  arbitrator,  without  the  concur- 
rence of  the  other  arbitrator,  and  submitted  to  the  court 
which  passed  a  decree  in  accordance  with  its  terms.     On 
appeal  by  the  defendant,  the  District  Judge  reversed  the 
Defendant  not     decree.     It  was  contended  that  the  defendant  was  pre- 
aroSotiinjof  eluded  from  appealing  inasmuch  as  he  had  not  applied 
grands  ig*not     to  set  aside  the  award  within  ten  days  under  this  Article, 
appealing  It  was  held  that  this   Article  applied  to    applications 

noTmoved  the  referred  to  in  section  522  of  the  Civil  Procedure  Code, 
•et  aside  the     *'•  *.,  applications  to  set  aside  an  award  on  any  of  the 
grounds  mentioned  in  section  521,  and  that  as  the  defen- 
dant did  not  contest  the  award  on  any  of  those  grounds, 
he  was  not  precluded  from  appealing.     Petheram,  C.  J., 
Whether  in  ap-  observes :  "  Whether  or  not  the  defendant  would  be  pre- 
any  ofthe1**^  eluded  in  appeal  from  making  objections  on  any  of  the 
grounds  mentioned  in  section  521,  because  he  had  not 
applied  to  set  aside  the  award  on  those  grounds  within 
the  time  allowed  by  the  Limitation  Act  for  making  the 
application  is  a  question,  which  we  need  not  determine,  as  it 
does  not  arise  here ;  but  there  is  nothing  with  reference 
to  the  Limitation  Act  to  prevent  him  from  raising  the 
question  he  now  does." 


grounds  men- 
tioned in 
section  6S1. 


When  the  summons  is 
served. 


159. — For  leave  to  appear  and  iTen  days 
defend   a  suit    under 
Chapter  XXXIX  of  the 
Code   of   Civil  Proce- 
dure. 

Chapter  39  of  the  Code  of  Civil  procedure  refers  to 
summary  procedure  on  Negotiable  Instruments. 


160. — For  an  order  under  Sec- 
tion 629*  of  the  same 
Code  restoring  to  the 
file  a  rejected  appli- 
cation for  review. 


Fifteen  days, 


When  the  application 
for  review  is  re- 
jected. 


*  629.  An  order  of  the  Court  for  rejecting  the  application  shall  be  final ;  but 
whenever  such  application  is  admitted,  the  admission  may  be  objected  to  on  the 
ground  that  it  was— 


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ART.  161]  THE  8RC0ND  8CHBDULB,  THIRD  DIV. — APPLICATIONS.      611 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Twenty  days, 


When  the  payment  or 
adjustment  is  made. 


161. — For  the  issue  of  a  notice 

under  section  258*  of 

the  same  Code,  to  show 

cause  why  the  payment 

or  adjustment  therein 

mentioned  should  not 

be   recorded   as  certi- 

fied.t 

(a)     In  Patankar  v.  Devji,W  plaintiff  sued  for  money  he  This  Article  is 
paid  out  of  court  to  the  defendant  for  a  money  decree  he  der  in  effect 

section  366  nu- 
(2)  I.  L.  R.,  6  Rom.,  146.  gatory. 

(a)  in  contravention  of  the  provisions  of  section  624, 
(6)  in  contravention  of  the  provisions  of  section  626,  or 
(c)  after  the  expiration  of  the  period  of  limitation  prescribed  therefor  and 
without  sufficient  cause. 

Such  objection  may  be  made  at  once  by  an  appeal  against  the  order  granting 
the  application,  or  may  be  taken  in  any  appeal  against  the  final  decree  or  order 
made  in  the  suit. 

Where  the  application  has  been  rejected  in  consequence  of  the  failure  of  the 
applicant  to  appear,  he  may  apply  for  an  order  to  have  the  rejected  application 
restored  to  the  file,  and,  if  it  be  proved  to  the  satisfaction  of  the  Court  that  he  was 
prevented  by  any  sufficient  cause  from  appearing  when  such  application  was  called 
on  for  hearing,  the  Court  may  order  it  to  be  restored  to  the  file  upon  such  terms 
as  to  costs  or  otherwise  as  it  thinks  fit,  and  shall  appoint  a  day  for  hearing  the  same. 

No  order  shall  be  made  under  this  section  unless  the  applicant  has  served  the 
opposite  party  with  notice  in  writing  of  the  latter  application. 

No  application  to  review  an  order  passed  on  review  or  on  an  application  for  a 
review  shall  be  entertained. 

•258.  If  any  money  payable  under  a  decree  is  paid  out  of  Court,  or  the 
deorees  otherwise  adjusted  in  whole  or  in  part  to  the  satisfaction  of  the  decree- 
holder,  or  if  any  payment  is  made  in  pursuance  of  an  agreement  of  the  nature 
mentioned  in  Section  257 — A,  the  decree-holder  shall  certify  such  payment  or 
adjustment  to  the  Court  whose  duty  it  is  to  execute  the  decree. 

The  judgment-debtor  also  may  inform  the  Court  of  such  payment  or  adjust- 
ment, and  apply  to  the  Court  to  issue  a  notice  to  the  decree-holder  to  show  cause, 
on  a  day  to  be  fixed  by  the  Court,  why  such  payment  or  adjustment  should  not  be 
recorded  as  certified  j  and  if,  after  due  service  of  such  notioe,  the  decree-holder 
fails  to  appear  on  the  day  fixed,  or  having  appeared  fails  to  show  cause  why  the 
payment  or  adjustment  should  not  be  recorded  as  certified,  the  Court  shall  record 
the  same  accordingly. 

No  such  payment  or  adjustment  shall  be  recognized  by  any  Court  unless  it  has 
been  certified  as  aforesaid. 

t  Act  XII  of  1879. 


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612   THI  S1COHD  8CHKDULR,  THIBD  DIV. — APPLICATION.  [ART.  162 — 164 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Observations  of 
Melville,  J. 


Twenty  days. 

had  obtained.  Melville,  J.,  while  rejecting  the  suit  as  one 
not  maintainable  under  section  241  of  Act  X  of  1877, 
observes  "that  the  provisions  of  section  258  is  in  effect 
rendered  nugatory  by  the  shortness  of  the  period  within 
which  this  Article  requires  that  such  application  should 
be  made,  and  that  the  class  of  debtors  making  such  pay- 
ment consist  of  persons  who  are  too  ignorant  of  law  to 
know  the  risk  which  they  run  in  so  doing,  and  that  they 
receive  the  first  intimation  of  fraud  only  when  the  creditor 
proceeds  to  execute  the  decree  without  giving  credit  to 
the  payments  then  received." 


Twenty  days, 


The  date  of  the  decree 
or  order. 


162. — For  a  review  of  judg- 
ment by  any  of  the 
High  Courts  of  Judi- 
cature at  Fort  William, 
Madras  and  Bombay 
(or  the  Chief  Court  of 
the  Punjab)*  in  the  ex- 
ercise of  its  original  ju- 
risdiction. 

See  section  723  of  the  Civil  Procedure  Code. 


Thirty  days. 


163. — By  a  plaintiff  for  an 
order  to  set  aside  a  dis- 
missal by  default. 

See  section  103  of  the  Civil  Procedure  Code. 


The  date 
missal. 


of  the  dis- 


164. — By  a  defendant  for  an 
order  to  set  aside  a 
judgment  ex  parte.t 


Thirty  days. 


8ection  688  al- 
lows appeal 
against  order 
rejecting  appli- 
cation to  set 
aside  ex  parts 
decree. 


The  date  of  executing 
any  process  for  en- 
forcing the  judg- 
ment. 

Section  119  of  Act  VIII  of  1859,  corresponds  to  sections 
108  and  109  of  Act  XIV  of  1882,  and  section  588  of  the 
latter  Act  provides  only  for  appeals  against  orders  reject- 
ing an  application  for  an  order  to  set  aside  a  decree  ex 
parte.  This  section  implies  that  the  order  granting  the 
application  is  final. 

*  The  words  in  brackets  were  inserted  by  Act  XVII  of  1877,  section  18. 

t  Bill  No.  23  of  1886,  by  sec.  28,  proposes  "  An  appeal  may  lie  under  this 
eec.  (640)  from  an  original  decree  passed  ex  parte.** 

Section  31  proposes  "An  appeal  may  lie  under  this  section  (684)  from  an 
appellate  decree  passed  ex  parte 


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ABT.  164]       THE  8BC0ND  SCHEDULE,  THIRD  DIV.— APPLICATIONS.  613 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Thirty  days, 

(a)  In  Sunraj  Kauri  v.  Ambika  Prasad/1)  the  Dis-   To  cancel  ex 
trict  Judge  first  granted  to  the  appellant  in  July,  1874,  a  Ser  section  22 
certificate  of  guardianship  under  Act  XL  of  1858  and  on  time  was  held  to 
the  15th  January,  1883,  after  giving  him  notice,  passed   service  of  notice 
an  ex  parte  order  under  section  21  of  the  above  Act,  that  be  cancelled. 
the  certificate  be  cancelled,  that  a  fresh  one  be  granted 

to  the  respondent  and  that  appellant  do  make  over  to  the 
respondent  the  minor's  property  and  render  him  an 
account  of  money  received  and  disbursed.  A  notice  of 
the  above  order  was  served  on  the  appellant  on  the  4th 
February,  1883,  and  on  the  9th  idem,  she,  by  a  petition, 
alleged  that  she  had  received  no  intimation  of  the  appli- 
cation for  the  cancelment  of  the  certificate.  On  the  24th 
of  February,  the  respondent  applied  for  the  enforcement 
of  the  order  under  section  22.  On  the  9th  April,  1883, 
the  District  Judge  fined  the  appellant  Rs.  10,  and  directed 
delivery  of  property  within  a  week.  On  the  11th  April, 
the  appellant  applied  under  section  108  of  the  Civil  Pro- 
cedure Code  for  an  order  to  set  aside  the  ex  parte  order 
of  the  15th  January,  1883.  It  was  held  that  the  limita- 
tion prescribed  by  this  Article  began  to  run  from  the  4th 
February,  1883. 

(b)  Notice  of  an  application  for  execution  of  a  decree  c.  h. 
being  made  is  not  sufficient  "  process  for  enforcing"  it  cution  petition 
within  the  meaning  of  clause  157,  schedule  2,  Act  IX  of  "process  for& 
1871.     Such  process  means  actual  process  by  attachment,  ^r?Jdecree<but 
in  execution,  of  the  person  or  property  of  the  debtor.   (Dec.  isw.)  * 
Poorno  Chunder  Coondoo  v.  Prosonno  Coomar  Sikdar.W 

The  date  on  which  property  is  attached  and  not  the 
date  of  the  sale  in  execution,  is  the  date  of  executing  the 
first  process  for  enforcing  an  ex  parte  decree.  In  Har  Pra- 
sad v.  Jafar  Ali,(8>  the  Allahabad  High  Court  held  that  an  a.  h. 
application  under  section  108  of  the  Civil  Procedure  Code 
of  1877  was  barred,  as  it  was  not  made  within  30  days  from 

(1)  I.  L.  R.,  6  All.,  144.       I      (2)  I.  L.  R.,  2  Calc,  128. 
(3)  I.  L.  R.,  7  All.,  846. 


(Jan.  1886.) 


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614  THK  SECOND  8CHBDDLB,  THIRD  DIV. — APPLICATIONS.       [ACT.  165 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  mn. 


C    H 
(June  1882.) 


Order  granting 
rehearing  of  a 
caee  decreed  ex 
parte,  though 
final,  plaintiff  in 
appeal  on  me- 
rit* might  ob- 
ct  to  rehear* 


ject 
Ing 


if  granted 
pplicat 


on  application 
made  after 
time. 


Thirty  days. 

the  date  of  executing  the  process,  that  is,  the  attachment 
in  execution  of  the  ex  parte  decree.  In  Bhaobunessury  va 
Judobendra  Narain  Mullick/1)  in  execution  of  an  ex  parte 
decree  dated  July,  1881,  attachment  of  defendant's  pro- 
perty was  made  on  the  9th,  13th  and 'the  18th  September, 
1881,  and  the  defendant  on  the  4th  January,  1882,  moved 
the  court  to  set  aside  the  ex  parte  decree.  The  application, 
though  it  was  made  within  30  days  of  the  service  of  the 
sale-proclamation,  was  held  barred  by  this  Article  as  it 
was  made  more  than  30  days  from  the  date  of  attach- 
ment. 

(C)  In  Runglall  Misser  v.  Tokhun  Misser,W  the 
plaintiff  obtained  an  ex  parte  decree  on  the  5th  July,  1873, 
of  which  he  took  out  execution  on  the  9th  August.  On 
the  11th  of  November,  the  defendant  applied  for  and 
obtained  a  rehearing  under  section  119,  Act  VIII  of  1859. 
On  the  rehearing,  his  suit  was  dismissed  by  both  the 
Lower  Courts  on  the  merits.  It  was  held,  on  a  special 
appeal  to  the  High  Court,  that,  although  section  119 
provides  that  an  order  for  rehearing  shall  be  final,  it  is 
final  only  in  the  sense  that  it  is  not  by  itself  open  to 
appeal,  and  that  the  plaintiff  was  not  precluded  by  that 
section  from  raising  the  objection  that  the  order  for 
rehearing  was  made  after  the  time  limited  therein,  and 
therefore  ought  to  be  set  aside  as  made  without  juris- 
diction. 


166. — Under  the  Code  of  Civil 
Procedure,  by  a  person 
dispossessed  of  im- 
moveable property,  and 
disputing  the  right  of 
the  decree-holder  or 
purchaser  at  a  sale  in 
execution  of  a  decree  to 
be  put  into  possession. 

(1)  I.  L.  E.,  9  Calc,  869. 


Thirty  days. 


The  date  of  the  dis- 
possession. 


(2)  I.  L.  R.,  2  Calc,  114. 


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AKT.  165]       THE  SECOND  8CHBDULI,  THIRD  D1V. — APPLICATIONS.  615 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Thirty  days. 

(a)  A  person  purchased  certain  property  at  a  sale  in  Court  has  no 
execution  of  a  decree  in  November,  1878 ;  his  purchase  asSrsaie  by 
was  confirmed,  and  he  obtained  a  certificate  o!  sale  on  the  derafte7it°had 
23rd  May,  1879,  from  which  date  he  remained  in  posses-  S^h°o^?Seb£ 
sion.     The  judgment-debtor  applied  to' have  the  sale  set  was  declared 
aside  for  irregularity,  but  the  application  was  dismissed  ^bJSed?011 
both  at  the  hearing  and  on  appeal.     He  had  applied  before 

the  sale  took  place  to  stay  the  sale  on  the  ground  that 
the  right  to  apply  for  execution  was  barred.     This  appli- 
cation was  dismissed,  but  was  allowed  on  appeal.     It  did 
not  appear  that  the  auction-purchaser  was  a  party  to  the 
proceeding  or  that  he  was  cognizant  of  the  application. 
Two  years  from  the  date  of  the  sale,  and  one-and-a-half 
year  from  its  confirmation,  the  judgment-debtor  on  a  sum- 
mary application,  obtained  an  order  setting  aside  the  sale 
and  putting  the  auction-purchaser  out  of  possession.     It 
was  held  that  the  order  was  erroneous,  the  Subordinate 
Judge  having  no  power  after  the  sale  had  been  confirmed, 
to  set  aside  the  sale  by  a  summary  order,  and  that  under   Debtor  must 
this  Article  the  application  for  such  an  order  was  barred,    sta^connrma^ 
It  was  for  the  execution- debtor  to  have  moved  the  court  SSijaf *his8" 
to  stay  confirmation  until  the  disposal  of  his  application,   application. 
Mahomed  Hossein  v.  Kokil  Singh.  (*) 

(b)  In  Shootenath  Mookerjee  v.  Obhoy  Nund  Roy/2)    Purchaser  if 
it  was  held  that  symbolical  possession   such  as  may  be    while  endea- 
given  by  the  Nazir  of  a  court  by  sticking  a  bamboo  into   poSswfionJ  eet ' 
the  ground,  or  the  like,  of  a  dwelling  house  or  of  a  share  •JjjSn  So'da™ 
in  a  dwelling  house,  of  which  actual  possession  might  f or  poweasion. 
have  been  granted,  is  not  such  a  bond  fide  possession  as 

will  save  limitation  ;  and  that  a  purchaser  of  immoveable 
property,  sold  in  execution  of  a  decree,  must,  under  this 
Article,  if  obstructed  or  resisted  in  endeavouring  to  obtain 
possession,  apply  within  30  days  to  the  court  under  the 
directions  of  which  the  execution  sale  was  held  to  be  put 
into  actual  possession ;  and  if  he  omits  to  do  so  within  30 
days  from  the  time  when  his  taking  possession  was  first 
obstructed  or  resisted,  his  only  remedy  was  by  a  civil  suit. 
(1)  I.  L,  R.,  7  Calo.,  91.    |    (2)  I.  L.  E.,  5  Gale,  331. 


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616 


THE  8CC0ND  8CHEDULB,  THIRD  DIV. — APPLICATION.       [ART.  166 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Thirty  days. 


The  date  of  the  sale. 


This  Article 
applies  only  to 
applications 
made  under 
sections  311  or 
2MofG.  P.O. 


166. — To  set  aside  a  sale  in 
execution  of  a  decree, 
on  the  ground  of  ir- 
regularity in  publish- 
ing or  conducting  the 
sale,  [or  on  the  ground 
that  the  decree-holder 
has  purchased  without 
the  permission  of  the 
Court.]* 

Sections  294  and  311  of  the  Civil  Procedure  Code. 
Xhis  Article  applies  only  to  applications  made  under 
sections  311  or  294  of  the  Civil  Procedure  Code.  "  Decree 
holder"  is  not  restricted  to  decree-holder  who  has  attached, 
but  includes  one  entitled  to  ratable  distribution  under 
section  295.  Where  one  decree-holder  had  attached 
certain  land,  and  another  decree-holder  against  the  same 
debtor  had  entitled  himself  to  ratable  distribution  of  the 
assets  under  section  295  of  the  Code  of  Civil  Procedure, 
it  was  held  the  latter  was  entitled  to  apply,  under  section 
311  of  the  Code,  to  set  aside  the  sale  on  the  ground  of 
material  irregularity.  Advertising  that  property  is  sub- 
ject to  mortgage  of  Bs.  430  instead  of  Re.  300,  is  an 
irregularity.     Lakshmi  v.  Kuttunni.*1) 

(a)     In  the  matter  of  the  petition  of  Bamessuri  Das- 
^vv.w«,«—  8ee,(2>  it  was  held  that  where  a  judgment-debtor  has 
▼audatinff  snb^  died  after  decree,  but  before  execution  is  applied  for,  the 
court  before  directing  attachment  and  sale  of  any  pro- 
perty to  proceed,  must  issue  a  notice  to  the  party  against 
whom  execution  is  applied   for  to  show  cause  why  the 
decree  should  not  be  executed  against  him,  and  that  its 
omission  to  do  so  will  invalidate  the  entire  subsequent 
proceedings  and  that  the  fact  of  there  being  no  section 
in  the  Code  expressly  authorising  a  court  to  set  aside  its 
proceedings  is  immaterial,  as  every  court  has  an  inherent 
(1)  I.  L.  E.,  10  Mad.,  57.        |      (2)  I.  L.  R.,  6  Gale,  108. 


Decree-holder 
includes  one 
entitled  to  ra- 
table distribu- 
tion under  sec- 
tion 906. 


Failure  to  give 
notice  under 
section  248  is  an 


sequent  pro- 
ceeding, 


Court  has  in- 
herent power 
to  set  aside  its 
irregular  pro- 
ceeding provi- 
ded that  inter- 
ests of  third 
parties  are  not 
affected. 


*  The  words  in  brackets  were  introduced  by  Act  XII  of  1879. 


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ART.  167]  THI  SECOND  8CHBDULB,  THIRD  DIVISION — APPLICATIONS.     617 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Thirty  days. 

right  to  see  that  its  process  is  not  abased  or  does  not 
irregularly  issue  and  may  set  aside  all  irregular  proceed- 
ings as  a  matter  of  course,  provided  that  the  interests  of 
third  parties  are  not  affected.     In  Paranjpe  v.  Kanade.M  Any  court  is 

r  "*  competent  to 

it  was  held,  that  it  is  always  competent  to  any  court  to  vacate  any 

.  judgment  or 

vacate  any  judgment  or  order  obtained  by  manifest  fraud,  order  obtained 
and  in  the  case  of  orders  made  in  execution,  section  244  fraud  in  cases 
of  Act  X  of  1877  excludes  all  other  remedy.     The  above  (ration;  sec.  344 
ruling  was  followed  in  Sakharam  Oovind  Kale  «.  Damo-  other  remedy, 
dar  Akharam  GugarW  in  which  the  decree-holder,  on  the 
debtor  giving  security  for  the  decree  amount,  had  agreed 
not  to  execute  it,  but  executed  it  in  breach  of  the  agree- 
ment and  sold  the  debtor's  real  property  in  1679.     A  third 
party  who  bought  it  obtained  possession  in  1883.     The 
debtor,  within  30  days  from  the  purchaser  taking  posses- 
sion applied  for  reversal  of  the  orders  on  the  ground  of 
fraud.     The  Lower  Court  held  the  application  barred  by 
this  Article  and  referred  the  debtor  to  a  suit.     It  was  held 
that  this  Article  did  not  apply  to  the  case ;  that  a  separate 
suit  would  not  lie,  and  that  the  relief  sought  by  the  debtor 
could  only  be  obtained,  at  all  events  as  against  the  decree- 
holder,  by  an  application  under  section  244  of  the  Civil 
Procedure  Code. 

167. — Complaining  of  resis-  Thirty  days, 
tance  or  obstruction  to 
delivery  of  possession 
of  immoveable  pro- 
perty decreed  or  sold 
in  execution  of  a  decree, 
or  of  dispossession  in 
the  delivery  of  posses- 
sion to  the  decree- 
holder  or  the  purchaser 
of  such  property.- 
(See  sections  328,  334  and  335  of  Civil  Procedure  Code 

and  Notes  to  Article  164.)     The  first  portion  of  Article 
(1)  I.  L.  R.,  6  Bom.,  148.       |        (2)  I.  L.  R.,  9  Bom.,  468. 
78 


The  date  of  the  resis- 
tance, obstruction 
or  dispossession. 


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618    THl  SECOND  8CHIDUL1,  THIRD  DIVI8ION — APPLICATIONS.   [ABT.  168 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Making  appli- 
cation under- 
thia  Article  is 
discretionary. 


Section  328  does 
not  prevent  a 
suit  by  plaintiff 
who  does  not 
avail  himself  of 
its  provisions. 


Decree  holder's 
failure  to  com- 
plain of  first 
obstruction 
does  not  bar  his 
complaint  of 
second  obstruc- 
tion in  time. 


Thirty  days. 

167  refers  to  applications  by  the  decree-holder  or  the 
execution  purchaser. 

(a)  Section  328  of  the  Civil  Procedure  Code,  which 
was  passed  after  Act  XV  of  1877  came  into  operation, 
enacts  that  the  decree-holder  may,  in  case  of  obstruction, 
complain  to  the  court  at  any  time  within  one  month. 
Section  334  extends  the  provisions  of  section  328  to  cases 
where  the  judgment-debtor  obstructs  the  execution  pur- 
chaser in  obtaining  possession  of  immoveable  property. 

(b)  In  Balvant  Santaram  v.  Babaji/1)  it  was  held  in 
July,  1884,  that  section  328  of  the  Civil  Procedure  Code 
(XIV  of  1882)  does  not  make  it  obligatory  on  a  decree 
holder,  who  is  obstructed  in  execution  of  the  decree,  to 
pursue  his  remedies  under  that  section.  Accordingly 
the  failure  on  the  part  of  the  plaintiff  to  avail  himself  of 
the  remedy  under  that  section  did  not  prevent  him  from 
proceeding  against  the  defendant  by  a  regular  suit.  In 
Shoteenath  Mookerjee  v.  Obhoynund  Roy,<2)  it  was  held 
that  if  the  purchaser  omits  to  apply  within  30  days  from 
the  time  when  his  taking  possession  was  first  obstructed 
or  resisted,  his  only  remedy  is  by  a  Civil  Suit. 

(C)  Where  a  warrant  for  possession  of  land  in  execu- 
tion of  a  decree  was  not  executed  owing  to  the  judgment 
debtor's  resistance  in  September,  1880,  and  no  complaint 
was  made  under  section  328,  but  a  fresh  warrant  taken 
and  resistance  was  again  made  in  January,  1881,  it  was 
held  that  the  decree-holder's  complaint  as  to  the  second 
obstruction  made  within  30  days  was  not  barred.  Rama 
Sekara  v.  Dharma  Raya.<3) 


Thirty  days. 


The  date  of  the  dis- 
missal. 


168.— For  re-admission  of  an 
appeal  dismissed  for 
want  of  prosecution. 

(See  section  558  of  the  Civil  Procedure  Code.)  Time 
runs  from  the  date  of  dismissal  irrespective  of  any  con- 
sideration other  than  one  of  those  which  come  within 
some  of  the  exceptions  applicable  to  the  case. 

(1)  I.  L.  E.,  8  Bom.,  602.       |        (2)  I.  L.  R.,  5  Calc,  831. 
(8)  I.  L.  R.,  6  Mad.,  113. 


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ART.  169 — 171]  THE  SECOND  SCHEDULE,  THIED  DIV. — APPLICATIONS.  619 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Thirty  days. 


Thirty  days. 


169. — For  a  re- hearing  of  an 
appeal  heard  exparte  in 
the  absence  of  the  res- 
pondent. 
See  section  560  of  the  Civil  Procedure  Code. 

170. — For  leave  to  appeal  as 
a  panper. 

(See  section  592  of  the  Civil  Procedure  Code.)  The 
time  for  applying  for  leave  to  appeal  as  a  panper  is  30 
days,  even  if  the  application  has  to  be  made  to  the  High 
Court.  Under  Article  162  of  Act  IX  of  1871,  the  period 
allowed  was  90  days,  whether  the  application  was  made 
to  the  District  Court  or  to  the  High  Court. 


The  date  of  the  decree 
in  appeal. 


The  date  of  the  decree 
appealed  against. 


The  date  of  the  plain- 
tiff's or  appellant's 
death. 


*1 71.— Under  Section  363t  or   Sixty  days. . . 

365  of  the  Code  of  Civil 

Procedure,  by  a  person 

claiming  to  be  the  legal 

representative    of      a 

deceased    plaintiff    or 

appellant.^ 

(a)     The  Civil  Procedure  Code,  sections  363,  365,  and  This  Article 
the  Limitation  Act,  schedule  2,  Article  171,  do  not  apply  and  366  do  not 
to  the  case  of  a  plaintiff  dying  after  decree.    If  a  plaintiff  plaintiff  dying 
dies  after  decree,  his  representatives  are  not  bound  to  ree* 


*  Bill  No.  23  of  1866,  by  section  37,  proposes  to  repeal  Articles  171, 171-A.  and  171-B.,  and 
substitute  for  the  words  "  of  the  same  Code"  in  Article  171 -C.  the  words  or  figures  "or  section 
662  of  the  Code  of  Civil  Procedure."  The  Bill  also  proposes  amendments  of  Chapter  XXI  of 
the  Code  and  substitution  of  new  sections  for  sections  363  and  366. 

f  363.  If  there  be  more  plaintiffs  than  one,  and  any  of  them  dies,  and  if  the 
right  to  sue  does  not  survive  to  the  surviving  plaintiff  or  plaintiffs  alone,  but 
survives  to  him  or  them  and  the  legal  representative  of  the  deceased  plaintiff 
jointly,  the  Court  may,  on  the  application  of  such  legal  representative,  enter  his 
name  on  the  record  in  the  place  of  such  deceased  plaintiff,  and  the  suit  shall 
proceed  at  the  instance  of  the  surviving  plaintiff  or  plaintiffs  and  such  legal 
representative. 

365.  In  case  of  the  death  of  a  sole  plaintiff  or  sole  surviving  plaintiff,  the 
Court  may,  where  the  right  to  sue  survives,  on  the  application  of  the  legal  represen- 
tative of  the  deceased,  enter  his  name  in  the  place  of  such  plaintiff  on  the  record, 
and  the  suit  shall  thereupon  proceed. 

t  Act  XII  of  1879. 


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620  THE  SECOND  SCHEDULE,  THIRD  DIVISION — APPLICATIONS.  [AET.  171-A 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Sixty  days. 

apply  within  60  days  to  be  made  parties  to  the  suit, 
but  have  the  same  time  to  file  an  appeal  as  the  plaintiff 
would  have  had.  Ram  an  ad  a  Sastri  v.  Mi  natch  i  Ammal.(l> 
They  do  not  ap-  (b)  In  Dulari  v.  Mohan  Singh/2)  it  has  been  observed, 
proceedings.  that  the  provisions  of  sections  365  and  866  cannot  be 
adapted  to  execution  proceedings,  and  that  an  application 
by  the  legal  representative  of  a  deceased  decree-holder 
to  continue  execution  proceedings  is  not  governed  by  this 
Article.  In  Gulabdas  v.  Lakshman  Narhar,W  it  has  been 
held  by  the  Bombay  High  Court,  that  the  Code  of  Civil 
Procedure  not  providing  that  applications  for  execution 
shall  like  suits  abate  by  the  death  of  the  judgment-creditor, 
such  a  representative  may  come  in  at  any  time,  as  his 
coming  in  is  contemplated  in  Artice  179,  explanation  li 
subject  always  to  the  same  conditions  as  would  apply  to 
his  principal. 

Sixty  days.. 


171-A.— Under  Section  366* 
of  the  same  Code,  by 
the  defendants 


The  sixtieth  day  from 
the  date  of  the 
plaintiff's  death. 


(1)  I.  L.  B.  3  Mad.,  286.  |  (2)  I.  L.  R.  8  All.,  759. 

(8)  I.  L.  R.  3  Bom.,  221. 

*  866.  If  within  the  time  limited  by  law  no  such  application  be  made  to  the 
Court  by  any  person  claiming  to  be  the  legal  representative  of  the  deceased 
plaintiff,  the  Court  may  pass  an  order  that  the  suit  shall  abate,  and  shall,  on 
the  application  of  the  defendant,  award  to  the  defendant  the  costs  which  he  may 
have  incurred  in  defending  the  suit,  to  be  recovered  from  the  estate  of  the  deceased 
plaintiff; 

or  the  Court  may,  if  it  think  proper,  on  the  application  of  the  defendant,  and 
upon  such  terms  as  to  costs  or  otherwise  as  it  thinks  fit,  pass  such  other  order  as 
it  thinks  fit  for  bringing  in  the  legal  representative  of  the  deceased  plaintiff,  or  for 
proceeding  with  the  suit  in  order  to  a  final  determination  of  the  matter  in  dispute, 
or  for  both  those  purposes. 

Explanation.— A.  certificate  of  heirship,  or  a  certificate  to  collect  debts,  does  not 
of  itself  constitute  the  person  holding  it  the  legal  representative  of  the  deceased. 
But  when  the  person  holding  any  such  certificate  obtains  thereby  property  belong- 
ing to  the  deceased,  he  may  be  treated  as  a  legal  representative  liable  in  respect  of 
such  property. 

f  Act  VIII  of  1880. 


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ART.171-B]  THI  SECOND  SCHEDULE,  THIRD  DIVI8ION — APPLICATIONS.   621 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


The   date  of  the  de- 
fendant's death. 


M.  H.  held  this 
Article  not  to 
apply  to  deceas- 
ed respondents. 


Observations  of 
Hutcbins,  J. 


171-B.— Under  Section  368*   Sixty  days., 
of  the  same  Code,  to 
have   the    representa- 
tive    of    a    deceased 
defendant  made  a  de- 
fendants 
(a)     The  Limitation  Act  of  1877  was  passed  in  close 
connection  with  the  Civil  Procedure  Code  of  that  year. 
In  the  Civil  Procedure  Code,  the  first  para,  of  section  582 
terminated  at  the  words  *'  Chapter  V."     In  the  Limita- 
tion Act,  Article  171  spoke  of  a  deceased  plaintiff  only, 
and   not   of  a  plaintiff  or  appellant.     The   words    "  or 
appellant"  were  introduced  into  Article  171  by  Act  XII 
of  1879,  which  added  the  supplementary  Articles  171-A, 
171-B  and  171-C.     The  same  Amendment  Act  also  modi- 
fied section  582  of  the  Code  by  adding,  after  the  words, 
Chapter   Y,  and   in   sections    363  and    365,    the    word 
"  plaintiff  shall  be  held  to  include  an  appellant."   Hutching; 
J.,  in  Lakshmi  v.  Sri  Devi,*1)  observes  :     "  This  seems  to 

(1)  I.  L.  K.,  9  Mad.,  1. 

*  368.  If  there  be  more  defendants  than  one,  and  any  of  them  die  before  decree 
and  the  right  to  sue  does  not  survive  against  the  surviving  defendant  or  defen- 
dants alone, 

and  also  in  case  of  the  death  of  a  sole  defendant,  or  sole  surviving  defendant, 
where  the  right  to  sue  survives, 

the  plaintiff  may  make  an  application  to  the  Court,  specifying  the  name, 
description  and  place  of  abode  of  any  person  whom  he  alleges  to  be  the  legal 
representative  of  the  deceased  defendant,  and  whom  he  desires  to  be  made  the 
defendant  in  his  stead. 

The  Court  shall  thereupon  enter  the  name  of  such  representative  on  the  record 
in  the  place  of  such  defendant, 

and  shall  issue  a  summons  to  such  representative  to  appear  on  a  day  to  be 
therein  mentioned  to  defend  the  suit ; 

and  the  case  shall  thereupon  proceed  in  the  same  manner  as  if  such  represen- 
tative had  originally  been  made  a  defendant  and  had  been  a  party  to  the  former 
proceedings  in  the  suit : 

Provided  that  the  person  so  made  defendant  may  object  that  he  is  not  the  legal 
representative  of  the  deceased  defendant,  or  may  make  any  defence  appropriate  to 
his  character  as  such  representative. 

When  the  plaintiff  fails  to  make  such  application  within  the  period  prescribed 
therefor,  the  suit  shall  abate,  unless  he  satisfies  the  Court  that  he  had  sufficient 
cause  for  not  making  the  application  within  such  period. 

f  Act  VIII  of  1880. 


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622    THE  8BC0ND  8CHMHJLB,  THIRD  DIVISION — APPLICATIONS    [ABT.  171-B 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


The  Legislature 
have  not  made 
a  change  in  the 
Law  of  Limita- 
tion as  they  in- 
tended, and 
plaintiff  is   en- 
titled  to  avail 
himself  of  the 
oversight. 


Appellant's 
application  to 
make  a  deceas- 
ed respondent's 
representative 

Sarty  to  appeal, 
oes  not  fall 
under  this 
Article. 
(Feb.  1886.) 


Sixty  days. 

negative  a  possible  suggestion  that  the  words  "  or  appel- 
lant" were  added  to  Article  171  out  of  excessive  caution. 
Very  slight  caution  would  have  shown  that,  if  it  was  still 
doubtful  after  the  amendment  of  section  582  whether  a 
plaintiff  included  an  appellant  in  regard  to  limitation  in 
Article  171,  a  defendant  could  not  possibly  include  a 
respondent  in  Articles  171- A,  B  and  C,  since  the  section 
582  had  not  been  amended  with  regard  to  defendants. 
Under  the  law,  as  it  stood  after  the  Amendment  Act, 
there  could,  I  think,  be  no  doubt  that  Article  171-B,  did 
not  apply  to  deceased  respondents.  Then,  in  1882,  there 
was  a  further  amendment  of  section  582,  and  it  now 
stands  as  set  out  in  the  beginning  of  this  judgment.  It  is 
possible  that  the  Legislature  intended  to  make  a  corres- 
ponding change  in  the  limitation,  but  they  have  not  done 
so,  and  an  appellant  is,  in  my  opinion,  entitled  to  take 
advantage  of  the  oversight." 

(C)  Article  171-B  relates  to  applications  made  under 
section  368  of  the  C.  P.  C,  which  provides  for  the  plaintiff 
bringing  in  the  representatives  of  a  deceased  defendant. 
Although  section  582  provided  that  "the  words  'plaintiff,' 
4  defendant,'  and  *  suit'  occurring  in  Chapter  XXI  of  the 
C.  P.  C,  shall  be  held  to  include  an  appellant,  a  respon- 
dent, and  an  appeal  respectively,"  inasmuch  as  this 
Article  made  no  reference  to  the  death  of  a  respondent,  the 
Allahabad  High  Court,  in  Narain  Das  v.  Lajja  Ram/1)  ob- 
served that  this  rule,  that  a  suit  or  appeal  should, in  certain 
circumstances  abate,  was  confined  to  cases  in  which  a 
plaintiff  or  an  appellant  or  a  defendant  had  died,  and  held 
in  February,  1885,  that  it  is  not  obligatory  on  the  appel- 
lant to  make  an  application  to  the  court,  praying  that  the 
legal  representatives  of  the  deceased  respondent  be  made 
parties  to  the  appeal,  and  that  where  there  has  been  no 
such  application  made  within  the  period  prescribed  by 
(1)  I.  L.  R.,  7  AIL,  p.  698. 


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ABT.171-B]  THE  SECOND  8CHEDULE,  THIRD  DIVISION — APPLICATIONS.   628 


Description  of  application. 


Period  of 
limitation. 


Time  from  which 
period  begins  to  run. 


Sixty  days. 

this  Article,  the  appeal  does  not  abate.  This  ruling 
implies  that  such  applications  are  governed  by  Article 
178.  Petheram,  C.  J.,  oberves  :  "  All  the  provisions  of 
Chapter  XXI  relate  to  the  addition  of  parties  by  the 
plaintiff  who  would  have  the  means  of  knowing  who  were 
the  proper  persons  to  add,  and  who  is  bound  in  the  inter- 
ests of  justice  to  make  the  additions.  But  none  of  these 
reasons  relate  to  the  case  of  a  defendant-appellant  (in 
this  case,  the  defendant  is  the  appellant)  who  did  not  set 
the  litigation  on  foot,  and  is  only  interested  in  getting  rid 
of  the  decree  against  him."  It  must  be  *borne  in  mind 
that  section  366,  para.  2,  provides  for  the  case  of  a  defen- 
dant also  being  anxious  to  obtain  an  adjudication  upon  the 
subject  matter  of  the  suit  by  bringing  in  the  heirs  of  the 
deceased  plaintiff ;  such  procedure  will  be  absolutely 
necessary  in  all  suits  for  partition.  In  Lakshmi  t>.  Sri 
Devi/1)  which  is  a  full  Bench  case,  it  was  held  that  an 
application  by  an  appellant  to  make  the  representative  of 
a  deceased  respondent  party  to  the  appeal  does  not  fall 
under  Article  171-B,  but  under  Article  178  of  schedule  2 
of  the  Indian  Limitation  Act  1871. 

(d)  In  Soshi  Bhusan  Chand  t>.  Grish  Chunder,(2> 
appeal  was  filed  on  the  19th  November,  1883,  and  on 
the  14th  March,  after  service  of  notice,  the  respondent 
died.  On  the  6th  January,  1885,  the  appellant  named  a 
person  to  be  substituted  as  a  respondent.  On  the  27th 
January,  1885,  the  court  directed  the  appellant  to  justify 
the  delay,  and  he  affirmed  that  he  had  first  heard  of 
the  respondent's  death  at  the  end  of  November  or  the 
beginning  of  December,  1884.  The  conrt,  allowing  the 
substitution  asked  for  to  be  made  subject  to  any  objection 
that  might  be  made  thereto  at  the  hearing  of  the  appeal 
observe — "  looking  at  the  express  provisions  of  section  3 
of  the  present  Code,  we  think  that  the  term  "  Code"  in 
(1)  I.  L.  E.,  9  Mad.,  1.  |     (2)  I.  L.  B.,  11  Calo.,  694. 

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Petheram,  0.  J. 


M.   H.  held  an 
application  by 
an  appellant  to 
make  deceased 
respondent's  re- 
presentative 
Sarty  to  appeal, 
Uls  under 
Article  178. 


C.  H.  held  the 
word  "defend- 
ant" includes  a 
respondent. 
(Jan.  1885.) 


The  court  ob- 
served that  the 
term  "  Code"  in 
Article  171-B 
must  apply  to 
Act  XIV  of 


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624  THE  SECOND  SCHEDULE,  THIRD  DIVISION — APPLICATIONS.  [ART.171-B 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


C.  ILsinoe  held 
that  the  word 
"  defendant" 
did  not  include 
a  respondent. 
(March  1686.) 


B.  H.  also  held 
(Jane  1886.) 


A.  H.  held  that 
this  Article 
applies  to  have 
the  representa- 
tive of  a  deceas- 
ed defendant  res- 
pondent made  a 
respondent. 
(Nov.  1886.) 


A.  H.  held  this 
Article  to  apply 
to  jucbrment- 
debtors  appeal 
against  order 
refusing  to  de- 
clare him  an 
insolvent. 
(March  1886.) 


I   Sixty  days. 

Article  171-B,  schedule  2  of  the  Limitation  Act,  must 
apply  to  the  present  Code  (Act  XIV  of  1882),  and  this 
being  so,  section  368  must  be  read  with  section  582,  and 
the  word  "  defendant"  in  section  368  must  be  held  to 
include  a  respondent." 

(6)  In  Udit  Narain  Singh  t?.  Harogouri  Prosad,*1)  it 
was  held  that  the  word  "  defendant"  in  Article  171-B  of 
the  Limitation  Act  does  not  include  a  respondent,  and 
that  section  582  of  Act  XIV  of  1882  affects  only  proceed- 
ings under  the  Code,  and  does  not  extend  the  operation 
of  any  portion  of  the  Limitation  Act.  The  above  decision 
was  followed  by  the  Bombay  High  Court  in  June,  1886, 
in  Balkrishna  Gopal  v.  Bal  Joshi  Sadashive  Joshi.<*)  The 
Allahabad  High  Court  in  Baldeo  v.  Bismillah  Begum, <8> 
held  in  November,  1886,  that  Article  171-B  applies  to 
applications  to  have  the  representative  of  a  deceased 
defendant-respondent  made  a  respondent.  Oldfield,  J., 
observes  that  Article  171-B  "refers  to  applications  under 
section  368  of  the  Civil  Procedure  Code,  to  have  the 
representative  of  a  deceased  defendant  made  a  defendant, 
and  the  time  runs  from  the  date  of  death.  In  the  case 
before  us,  the  respondent  who  died  is  the  defendant,  and 
I  think  the  Article  referred  to  applies  in  his  capacity  of 
defendant." 

(f)  In  Rameshar  Singh  v.  Bisheshar  Singh/4)  which 
was  an  appeal  by  the  judgment-debtor  against  an  order 
refusing  his  application  for  a  declaration  of  insolvency 
under  section  344  of  the  Civil  Procedure  Code,  the  decree- 
holder,  who  was  respondent,  died,  and  the  judgment- 
debtor  (appellant)  took  no  steps  to  have  the  legal  repre- 
sentative of  the  deceased  substituted  as  respondent  in 
his  place  within  the  prescribed  time.  It  was  held  that 
this  Article  applied  and  that  the  appeal  must  abate. 


(1)  I.  L.  B.,  12  Calc,  590. 

(2)  I.  L.  R.,  10  Bom.,  663. 


(3)  I.  L.  R.,  9  All.,  118. 

(4)  I.  L.  R.,  7  All.,  734. 


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ART.171-B]  THE  8EC0ND  SCHEDULE,  THIRD  DIVISION — APPLICATIONS.  625 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Sixty  days.  | 

(g)     In  Janardan    Vithal  t>.   Anant   Mahadev/1)  the         b.  h. 
plaintiff  applied  for  leare  on  the  13th  February,  1880,  to  not  apply  to  ap- 
sue  in  formd  pauperis.     In  March,  1880,  one  of  the  defen-   In  formd  pan- 
demia died  and  his  widow  was  brought  in  by  plaintiff  as   (August  1888.) 
heir  on  the  3rd  July,  1880.     This  application  was  grant- 
ed the  same  day,  but  the  application  to  sue  as  a  pauper 
was  not  granted  till  20th  November,  1880.     Defendants 
contended  that  as  the  widow  was  brought  on  the  record 
more  than  60  days  after  the  death  of  her  husband,  the 
suit  was  barred.     It  was  held  that  neither  this  Article 
of  the  Limitation  Act  nor  any  other  provision  of  law 
applied  to  an  enquiry  into  a  claim  to  sue  in  formd  pauperis, 
and  that  the  plaintiff,  before  his  application  was  granted 
under  section  410,  was  not  bound  to  apply  within  any 
particular  time  for  the  substitution  of  the  name  of  the 
heir  of  the  deceased  defendant. 

(h)     InK  edarnath  Dutt  v.  Harra  Chand  Dutt.W  under         0.  h. 

.  Held  that  the 

a  decree  for  partition,  dated  February,  1870,  the  usual  periods  of  limi- 

.  tation  in  clauses 

commission  for  partition  was  issued.    The  Commissioners,   in,  m-A.  and 

.  178  do  not  affect 

in  their  return  to  the  commission,  dated  December,  1871,   the  right  to 

having  differed  in  opinion,  the  court,  in  March,  1872,   pending  suit, 

i.e.,  a  suit  in 

quashed  the  return  and  ordered  a  fresh  commission.     No  which  no  final 

order  has  been 

further  steps  were  taken.     In  December,  1880.  defendant  made. 

.  Defendant  died 

died  intestate  leaving  five  sons.    The  plaintiff  applied  after  leaving  five 

60  days  from  the  death  of  the  defendant  for  an  order  to  cree  for  parti- 
tion and  corn- 
revive  the  suit  by  entering  the  names  of  the  sons  as  heirs,   mission  was 

.  issued  for  parti- 

The  heirs  opposed  the  application  as  barred  by  the  Act  tion. 
of  Limitations.     It  was  held  by  Wilson,  J.,  that  the  appli- 
cation being  one  in  a  pending  suit,  the  right  to  apply 
accrued  from  day  to  day  and  therefore  it  was  not  barred 
by  lapse  of  time. 

(l)     Gocool  Chunder  Gossamee  v.  Administrator-Gene-   Application  in 

ral  of  Bengal/8)  was  a  suit  instituted  by  the  trustee   both  the  plain- 
tiff and  defen- 
(I)  I.  L.  R.,  7  Bom.,  373.    |     (2)  I.  L.  R.,  8  Calc,  420.  dant  died  after 

(3)  I.  L.  R.,  5  Calc,  726.  a  decree  was 

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626  TH»  8XC0ND  8CHIDT7LB,  THIED  DIVISION — APPLICATIONS.  [ART.  171-B 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  nm. 


Sixty  days. 

made  tad  direo-  appointed  under  a  will,  against  the  executrix,  for  the 
given  for  purpose  of  having  the  trusts  of  the  will  carried  into  execu- 

■ettief  ^o*  two  tion.    A  decree  was  made  and  certain  directions  were 
win  carried  out.  given  for  the  purpose  of  having  a  scheme  settled,  by  which 
off  the*board     the  trusts  were  to  he  carried  ont ;  hut  before  the  scheme 
p*roMontion.       was  finally  settled  and  approved,  and  while  the  proceed- 
ings were  pending,  the  case  was  struck  out  of  the  board 
for  want  of  prosecution.     Subsequently  both  the  plaintiff 
and  defendant  died.     The  heirs  of  the  plaintiff  then  insti- 
tuted a  suit  against  the  Administrator-General  as  repre- 
senting the  estate  of  the  defendant  for  carrying  the  trusts 
into  execution  and  prayed  that  their  suit  might  be  con- 
sidered as  supplemental  to  the  original  one.     It  was  held, 
that  the  original  suit,  though  no  longer  upon  the  board, 
was  capable  of  revival,  and  that  if  no  person  were  living 
whose  consent  might  be  obtained,  or  to  whom  notice 
might  be  given,  the  court  might  give  leave  without  any 
such  consent  or  notice,  and  that  the  proper  course  to 
pursue  was  to  allow  the  plaintiff  to  amend  their  plaint  by 
putting  it  in  the  form  of  a  petition  under  section  372  of 
the  Civil  Procedure  Code,  the  defendant  being  at  liberty 
-rt-rt.  *°  Pu*  'n  ^y  answ©r  which  he  might  have  done  if  the 

"Pending  the     proceeding  had  been  by  petition  in  the  first  instance  ;  and 

of  the  o.  p.  o.  that  the  words  "  pending  the  suit"  in  section  372  of  the 

relate  to  a  suit       .  r  ° 

in  which  no        Civil  Procedure  Code  relate  to  a  suit  in  which  no  final 

final  order  has         ,       ,        ,  , 

order  has  been  made. 


Application  to         (j  )     In  Benode  Mohini  Chowdhrain  v.  Sharat  Chunder 

bring  in  the  re-         ^  ' 

pr«»ntati™  of  Dey  Chowdhry/1)  which  was  a  suit  to  recover  land  against 
defendant  was    a  sole  defendant,  the  latter  died  before  the  hearing ;  63 

held  to  be  go-  ° 

Terned  by  Xrti-  days  after  the  death  of  the  defendant,  the  plaintiff  ap- 
plied to  the  court  to  enter  on  the  record  the  legal  repre- 
sentative of  the  deceased  defendant.  On  the  22nd  of 
November,  1880,  the  court  rejected  the  application  as  bar- 
red under  this  Article  and  ordered  the  suit  to  abate.  On 
(1)  I.  L.  R.,  8  Calc.,  887. 


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ART.  171  -C]  THE  SECOND  SCHEDULE,  THIBD  DIVISION — APPLICATIONS.    627 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Sixty  days. 

the  same  day,  the  plaintiff  applied  to  the  court  to  set 
aside  the  order  directing  the  suit  to  abate,  bnt  this  appli- 
cation was  also  rejected  on  the  20th  of  September,  1881. 
The  High  Court  declaring  that  no  appeal  lay  against  the 
order  of  the  20th  September  1881,  and  rejecting  the  ap- 
peal against  the  order  of  the  22nd  November,  1880,  as 
put  in  out  of  time,  took  cognizance  of  the  case  under 
section  622  of  the  Civil  Procedure  Code,  and  held  that 
the  application  which  was  rejected  on  the  22nd  of  Novem- 
ber, 1880,  was  an  application  under  section  372,  and  not 
under  section  368  of  the  Code  of  Civil  Procedure,  and 
that  the  applicant  was  entitled  to  make  the  application 
within  three  years  as  allowed  by  Article  178. 

(k)  In  Gulabdas  v.  Lakshman  Narhar,^)  it  was  held  This  dame  doe* 
that  this  Article  does  not  apply  to  the  representative  of  a  execution  pro- 
deceased  judgment-creditor  claiming  admission  to  conti- 
nue execution  proceedings  commenced  by  him.  The 
Civil  Procedure  Code  does  not  provide  that  application 
for  execution  shall,  like  suits,  abate  by  the  death  of  the 
judgment-creditor.  Such  a  representative  may  therefore 
come  in  at  any  time,  as  his  coming  in  is  contemplated  in 
Article  179,  explanation  I,  subject  always  to  the  same 
conditions  as  would  apply  to  his  principal. 


171-0.— Under  Section  871*    Sixty  days., 
of  the  same  Code  for 
an  order  to  set  aside 
an   order    for    abate- 
ment or  dismissal.t 

(1)  I.  L.  B.,  3  Bom.,  221. 


The  date  of  the  order 
for  abatement  or 
dismissal. 


*  371.  When  a  suit  abates  or  is  dismissed  under  this  chapter,  no  fresh  suit 
shall  be  brought  on  the  same  cause  of  action. 

Bnt  the  person  claiming  to  be  the  legal  representative  of  the  deceased,  or 
bankrupt,  or  insolvent,  plaintiff  may  apply  for  an  order  to  set  aside  the  order  for 
abatement  or  dismissal;  and,  if  it  be  proved  that  he  was  prevented  by  any 
sufficient  cause  from  continuing  the  suit,  the  court  shall  set  aside  the  abatement 
or  dismissal  upon  such  terms  as  to  costs  or  otherwise  as  it  thinks  fit. 

f  Act  VIII  of  1880. 


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628     THI  8BCOND  8CHIDULB,  THIRD  DIVI8I0N — APPLICATIONS.   [ART.  172 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


The  date  of  the  sale. 


Application  for 
the  refund  of 


172. — By  a  purchaser  at  an  8ixty  days... 
execution-sale,  to  set 
aside  the  sale  on  the 
ground  that  the  per- 
son whose  interest  in 
the  property  purported 
to  be  sold  had  no  sale- 
able interest  therein. 

(a)     In  Sivarama  v.  Rama,*1)  the  decree-holder  who 

purcSeemoney  purchased  the  property  in  auction  on  the  28th  November, 

that  debtor* had   1882,  applied  in  April,  1884,  for  a  refund  of  the  purchase 

TOrty  ia  notPa£  money  on  the  ground  that  the  judgment-debtors  had  no 

Article.  saleable  property  therein  and  also  for  an  order  entitling 

ov#  him  to  recover  the  money  under  the  decree.     The  Lower 

Court  held  that  the  application  under  section  313  of  the 

Civil  Procedure  Code  to  set  aside  the  sale  was  barred  by 

this  Article  and  that  the  application  under  section  315 

of  the  Civil  Procedure  Code  was  inapplicable  inasmuch 

as  the  sale  has  not  been  set  aside  under  section  312  or 

313,  or  found  by  a  court  that  the  petitioner  has  been 

deprived  of  the  property.     The  High  Court  held,  that 

under  section  313  of  the  C.  P.  C,  a  purchaser  at  a  sale  in 

execution  of  a  decree  may  resist  the  confirmation  of  the 

sale  and  prevent  its  conclusion,  while  under  section  315 

he  may  apply,  after  the  confirmation  of  the  sale,   for 

refund  of  the  purchase  money  on  the  ground  that  nothing 

passed  by  the  sale ;  and  that  to  entitle  a  purchaser  under 

para.  2  of  section  315  of  the  Civil  Procedure  Code,  to  a 

To  entitle  a       refund  of  purchase  money,  it  is  not   necessary  that  a 

purchaser  to  . 

•uch  refund,  it  court  should  have  decided  in  other  proceedings  that  the 

that°a  ocrart  judgment-debtor  had  no  saleable  interest  in  the  property 

tided  in  other  which  purported  to  be  sold,  or  that  the  purchaser  should 

that  debtor  had  have  obtained  actual  possession  and  have  been  deprived 

no  saleable 

interest.  thereof. 

This  Article 


(b)     "  Section  312  requires  the  court  to  confirm  the  sale, 
,    '  if  no  such  application  as  is  mentioned  in  the  last  pre- 

been  confirmed.  *  *  * 


applies  even  if 
the  sale  had 


before  60  days. 


(1)  I.  L.  R.,  8  Mad.,  99. 


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ART.  173]   THE  8ECOND  SCHEDULE,  THIRD  DIVISION — APPLICATIONS.     629 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Sixty  days. 

ceding  section  be  made.'  Section  313  allows  a  purchaser 
to  apply  to  set  aside  the  sale  on  the  ground  that  the 
judgment-debtor  had  no  saleable  interest  therein,  and 
Article  172  of  the  Limitation  Act  allows  60  days  for 
such  applications,  but  there  was  no  provision  that  the 
court  shall  wait  for  60  days  to  see  if  any  such  appli- 
cation may  be  filed.  We  do  not  think  that  the  149th 
form,  as  it  stood  under  the  Act  1877,  can  be  construed  to 
render  inoperative,  or  postpone  the  effect  of  a  sale,  con- 
firmation of  which  was  made  after  30,  but  before  60  days 
has  elapsed."     Haji  v.  Atharaman.*1) 


Ninety  days.]  The  date  of  the  decree 
or  order. 


173. — For  a  review  of  judg- 
ment, except  in  the 
cases  provided  for  by 
No.  162. 

(a)  Section  21,  Act  XI  of  1865,  is  still  in  force  uotwith-   section  21  of 
standing  the  right  of  review  which  is  given  to  Small   in  force  not- 
Cause  Courts  in  the  Mof  ussil  by  section  623  of  the  Civil  section  62s  of 
Procedure  Code.     Batan  Kris  hen  Poddar  v.  Raghoonath 
Shaha.t2)     Where  the  circumstances  of  a  case  admit  of  a 

new  trial,  an  application  for  such  new  trial  is  governed 
by  section  21  of  Act  XI  of  1865 ;  but  where  the  circum- 
stances of  a  case  do  not  admit  of  a  new  trial,  but  do  admit 
of  a  review,  then  the  time  within  which  an  application  for 
review  should  be  made  is  to  be  governed  by  this  Article. 
If  a  new  trial  is  necessary,  then  the  plaintiff  against 
whom  a  judgment  may  have  been  passed  will  be  out  of 
time  if  he  fail  to  give  7  days'  notice.  Madon  Mohun  Pod- 
dar v.  Purno  Chundr  PurbotJ3) 

(b)  An  application  to  amend  a  decree,  which  is  found  Application  to 
to  be  at  variance  with  the  judgment  in  accordance  with  the  which  is  at 
provisions  of  section  206  of  the  Civil  Procedure  Code,  is  judgment 
an  application  of  the  kind  mentioned  in  No.  178  of  schedule  206  of  the 

O.  P.O.  of  1877, 

(1)  LL.B.,7  Had.,  512.        |         (2)  I.  L.  &.,  8  Calc,  287.  does  not  fall  on- 

(3)  I.  L.  R.,  10  Calc,  297.  **  this  Article. 


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630     THE  SECOND  SCHEDULE,  THIBD  D1V18ION — APPLICATIONS.   [ART.  1  74 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


174.- 


Ninety  days, 

2  of  Act  XY  of  1877,  and  as  such  subject  to  the  limita- 
tion of  three  years.  Gaya  Prasad  v.  Sikri  Prasad.  (*>  In 
Joy  Kishen  Mookerjee  v.  Ataoor  Rohoman,W  the  Subordi- 
nate Judge,  upon  au  application  for  a  review  of  judgment 
on  several  grounds,  of  which  claim  for  costs  was  one, 
rejected  all  the  other  grounds  and  allowed  proportionate 
costs  on  the  last  ground  in  the  petition.  White,  J.,  obser- 
ves, that  the  Subordinate  Judge  might  have  dismissed  the 
petition  aud  directed  the  petitioner  to  move  the  court 
under  section  206 ;  but  as  he  chose  to  make  the  amendment 
under  the  review  sections  of  the  Code,  the  petitioner  was 
entitled  to  treat  the  order  as  made  upon  review  of  judg- 
ment. 

Ninety  days 


-By  a  creditor  of  an 
insolvent  judgment- 
debtor,  under  Section 
353*  of  the  Code  of 
Civil  Procedure. 


The  date  of  the  publi- 
cation of  the  sche- 
dule. 


This  Article  ap- 
plies to  applica- 
tions made  un- 
der section  363 
of  the  C.  P.  0. 
after  schedule 
was  framed 


(a)  This  Article  governs  applications  made  under 
section  353  subsequent  to  the  framing  of  the  schedule. 
Application  made  under  section  352  or  before  the  framing 
of  the  schedule,  and  which  is  in  the  nature  of  a  tender  of 
proof  of  debt,  is  held  to  be  governed  by  Article  178. 
Pershadi  Lai  v.  Chunni  Lall.<3) 


(1)  I. 


L.  R.,  4  AIL,  23.         | 
(3)  I.  L.  R., 


(2)  I.  L.  R.,  6  Oslo.,  22. 
6  AIL,  143. 


*358  Any  creditor  of  the  insolvent  who  is  not  mentioned  in  snch  schedule  may 
apply  to  the  Court  for  permission  to  produce  evidence  of  the  amount  and  particulars 
of  his  pecuniary  claims  against  the  insolvent,  and,  in  case  the  applicant  proves 
himself  to  be  a  creditor  of  the  insolvent,  for  an  order  directing  his  name  to  be 
inserted  in  the  schedule  as  a  creditor  for  the  debt  so  proved. 

Any  creditor  mentioned  in  the  schedule  may  apply  to  the  Court  for  an  order 
altering  the  schedule  so  far  as  regards  the  amount,  nature  or  particulars  of  his 
own  debt,  or  to  strike  out  the  name  of  another  creditor,  or  to  alter  the  schedule  so 
far  as  regards  the  amount,  nature  or  particulars  of  the  debt  of  another  creditor. 

In  the  oase  of  any  application  under  this  section,  the  Court,  after  causing  such 
notices  as  it  thinks  fit  to  be  served,  at  the  applicant's  expense,  on  the  insolvent  and 
the  other  creditors,  and  hearing  their  objections,  if  any,  may  comply  with  or  reject 
the  application. 


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ART.  175 — 176]  THE  8BC0ND  SCHEDULE,  THIRD  D1V. — APPLICATIONS.  631 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


The  date  of  the  award. 


1 75. — For    payment    of    the    Six  months. .  The  date  of  the  decree, 
amount  of  a  decree  by 
instalments, 

(a)  Under  section  210  of  the  Code,  after  the  passing 
of  a  decree  for  the  payment  of  money,  the  conrt  may,  on 
the  application  of  the  jndgment-debtor,  and  with  the 
consent  of  the  decree-holder,  order  that  the  amonnt 
decreed  be  paid  by  instalments. 

1 76. — Under  the  Code  of  Civil    Six  months. 
Procedure,        Section 
516*  or  525,  that  an 
award  be  filed  in  Court. 

(a)  In  Sreenath  C hatter jee  v.  Kylash  Chnnder  Chat- 
terjee,*1*  Conch,  C.  J.,  was  of  opinion  that  "the  word 
"  date"  does  not  mean  the  day  written  in  the  award,  as 
when  it  was  made,  but  the  time  when  it  is  given  to  the 
parties,  when  it  becomes  an  award  and  is  handed  over  to 
them  so  that  they  may  be  able  to  give  effect  to  it."  The 
above  opinion  was  followed  in  Dntto  Singh  v.  Dosad 
Bahadur  Singh.<2) 

(b)  The  act  of  an  arbitrator  in  handing  in  an  award  Arbitrator 

to  the  proper  officer  of  the  court  for  the  purpose  of  the  awar^to^oSt 
award  being  filed,  cannot  be  considered  as  an  "appli-  j^^  appu" 
cation"  within  the  meaning  of  the  Limitation  Act.     Ro- 
barts  v.  Harrison. (3) 

(1)  21.  W.  R.,  248.  |        (2)  I.  L.  R.,  9  Calc,  675. 

(3)  I.  L.  R.,  7  Calc,  333. 


"Date"  does  not 
mean  the  date 
that  the  award 
was   written, 
bat  the  date 
that  it  is  given 
to  parties. 


*  616.  When  an  award  in  a  suit  has  been  made,  the  persons  who  made  it  shall 
sign  it  and  cause  it  to  be  filed  in  conrt,  together  with  any  depositions  and  docu- 
ments which  have  been  taken  and  proved  before  them ;  and  notice  of  the  filing 
shall  be  given  to  the  parties. 

626.  When  any  matter  has  been  referred  to  arbitration  without  the  inter- 
vention  of  a  Conrt  of  Justice,  and  an  award  has  been  made  thereon,  any  person 
interested  in  the  award  may  apply  to  the  Conrt  of  the  lowest  grade  having  juris- 
diction over  the  matter  to  which  the  award  relates,  that  the  award  be  filed  in  conrt. 

The  application  shall  be  in  writing  and  shall  be  numbered  and  registered  as  a 
suit  between  the  applicant  as  plaintiff  and  the  other  parties  as  defendants. 

The  Court  shall  direct  notice  to  be  given  to  the  parties  to  the  arbitration,  other 
than  the  applicant,  requiring  them  to  show  cause,  within  a  time  specified,  why  the 
award  should  not  be  filed. 


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632   THK  SECOND  8CHKDUL1,  THIRD  D1V. APPLICATIONS.   [AET.177 178 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


The  date  of  the  decree 
appealed  against. 


1 77. — For  the  admission  of  an   Six  months... 

appeal  to  Her  Majesty 

in  Council. 

Bill  No.  28  of  (a)  An  application  nnder  sections  598  and  599  of  the 
tore^Mctfon  C.  P.  C.  falls  within  this  Article.  The  limitation  for 
unintentionally  such  an  application  was  provided  by  the  section  599  of 
So  o.V  c.  of  Act  X  of  1877  until  that  section  was  repealed  by  the 

1882 

Limitation  Act  of  1877.  The  period  of  limitation,  how- 
ever,  remains  the  same.  But  section  599  has  been 
reproduced  in  the  C.  P.  C.  of  1882. 

(b)     Bill   No.  23  of  1886,  by  section  33,  proposes  to 

repeal  section  599  of  the  C.  P.  C.  of  1882.     It  has  been 

observed  that  section  599  and  the  portion  of  section  601 

now  proposed  to  repeal,  were  repealed  by  Act  XV  of 

1877,  but  were  unintentionally  reproduced  in  the  Code  of 

1882. 

178. — Applications  for  which    Three  years.  When   the    right  to 

no  period  of  limitation  aPply  accrues. 

is  provided  elsewhere 

in  this  schedule,  or  by 

the  Code  of  Civil  Pro- 

cedure,  Section  230* 

ThteArtietedoes       (a)     In  re  Khaja    Patthanji,*1*    auction  sale  of  im- 

pUcaSons tor*'  moveable   property   took   place  on  the  17th    February, 

»ia  certificate.  1876>  and  the  8ftle  Wftfl  oonfirmed  on  the  2(>th  March,  1876. 

The  purchaser,  Khaja,  applied  for  a  certificate  after  10th 
March,  1880.  The  question  was  whether  his  application 
was  barred  by  this  Article.  A  Division  Bench  (Westropp, 
C.  J.  and  Melville,  J.,)  held  in  September,  1880,  that  the 
application  was  barred  by  this  Article,  as  they  were  of 
opinion  that  the  purchaser's  right  to  a  certificate  accrued 
to  him,  under  Act  VIII  of  1859,  when  the  sale  was 
confirmed,  and  under  section  316  of  Act  X  of  1877,  the 
certificate  was  required  to  bear  the  date  of  the  confirma- 
tion. The  above  decision  was  followed  in  Tukaram  v. 
Satvaji  Khanduji/2)  in  which  application  for  certificate 
(1)  I.  L.  K.,  5  Bom.,  202.      |      (2)  I.  L.  R.,  6  Bom.,  206. 


*  See  section  230  under  Article  179. 


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ART.  178]    THB  8BC0ND  8CHBDDLB,  THIRD  D1VI8I0N — APPLICATIONS.     633 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Three  years. 

was  made  five  years  and-a-half  after  the  confirmation  of 
the  sale.  When  the  same  question  arose  in  Vithal 
Janardan  v.  Vithojirav  Putlajirav/1*  a  Division  Bench 
(Sargent,  G.  J.  and  Melville,  J.)  dissenting  from  the  above 
ruling,  held  in  July,  1882,  following  the  decision  of  the 
Madras  High  Court  in  Kylasa  Gkmndan  v.  Ramasawmi  Limitation  Act 
Ayyan,^)  that  the  provisions  of  the  Limitation  Act  do  to  applications 
not  apply  to  applications  to  a  court  to  do  what  it  has  no  conn  has  no 

.  V  »•      .  •  ,       ,,  -    discretion  to 

discretion  to  refuse,  nor  to  applications  for  the  exercise  of  refuse,  or  for 

..  -ii  iijAi'i  tne  «xorcise  of 

functions  of  a  ministerial  character,  and  that  this  clause   functions  of  a 

*  .*  .  r>  i>  ministerial 

is  not  applicable  to  applications  for  certificates  of  sale.        character. 

(b)     Iu  Ishwardas  Jagjivandas  t?.  Dosibai/3)  the  same  Application  for 
court  which  filed  an  award  on  the  20th  November,  1866,  award  filed  is 

.  ~  ,  i»        •  not  contemplat- 

passed  no  judgment  in  terms  of  it.  Several  applications  ed  by  the  Luni- 
for  the  execution  of  the  award  were  subsequently  made 
and  granted.  The  last  one,  made  in  1880,  was  rejected 
on  the  ground  that  there  was  no  decree,  and  the  High 
Court  confirmed  the  order.  The  applicant  then  applied 
to  the  same  court  for  adjudgment  on  the  award;  but 
the  application  was  rejected  as  barred  by  this  Article. 
It  was  held  that  the  court  was  bound  to  pass  the  judg- 
ment without  waiting  for  any  application  for  it,  and  that 
though  such  application  was,  as  a  matter  of  practice, 
usual,  such  an  application  was  one  which  was  not  within 
the  contemplation  of  the  Limitation  Act. 

(O)     In  Bai  Manekbai  v.  Manekji  Kavasji,W  the  appel-  This  Article 
lant  applied  in  April,  1879,  for  Letters  of  Administration   to^phcaSons 
to  the  estate  of  one  Eharsetji  who  died  in  May,  1867.     The   letters  of  Ad- 
District  Judge  rejected  it  as  barred  under  this  Article. 
It  was  held  that  applications  for  probate  or  letters  or 
certificates   of    administration   do   not   fall   within    this 
Article  inasmuch   as  the  Article  is   limited  to  applica- 
tions made    under   the   Code  of   Civil  Procedure.     It  is 


(1)  I.  L.  R.,  6  Bom.,  586.        j      (3)  I.  I..  R.,  7  Bom.,  316 
(2)1.- 


L.  R.t  4  Mad.,  172.  |      (4)  I.  L.  R.,  7  Bom.,  214. 

80 


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634     THS  8ECOt«D  8CHKD0LK,  THIRD  DIVISION— APPLICATIONS.    [ART.  178 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


|  Three  years. 

observed,  that  the  preamble  of  the  Act  purports  to  deal 
with  "  certain  applications"  only  and  not  with  all  appli- 
cations. The  Madras  High  Court  followed  the  above 
decision  and  in  the  matter  of  the  petition  of  Ishan 
Chunder  Roy,*1)  so  far  as  to  hold  that  this  Article  does 
not  apply  to  applications  for  certificates  to  collect  debts. 
Observation* of  Turner,  C.  J.,  observes :   "If  we  were  to  hold  that  this 

Turner,  C.  J. 

Article  applies  to  all  applications  for  which  no  period  of 

limitation  is  provided,  it  would  lead  to  most  inconvenient 

results.     Such  a  limitation  could  not  have  been  intended 

to  apply  to  an  application  for  probate,  an  application  under 

the   Religious  Endowments'  Act,  an  application  for  the 

appointment  of  new  trustees,  &c."     Janaki  v.  Kesavalu.W 

Collector's  &p-         (d)     In  the  Collector  of  Broach  v.  Desai  Raghunath,*3) 

cancel  oourt        the  Collector  applied  on  the  21st  January,   1881,  to  set 

under  Bhagdari  aside  oeurt  sale  made  in  September,  1874,  of  an  unrecog- 

not  governed      nized  portion  of  a  bhag,  as  illegal  under  section  1  of 

by      tation.      BomhStJ  Aot  y  Qf   lg62      The  loww  Appellate  Court 

rejected  the  application  on  the  ground  that  a  judicial 

sale  cannot  be  set,  aside  in  a  summary  way.     It  was  held 

that  the  Law  of  Limitation  did  not  apply  to  proceedings 

taken  by  a  Collector  under  Bombay  Act  Y  of  1862.     The 

court  observe,   that    inasmuch  as   section   1   distinctly 

provides  against  attachment  and  sale  of  a  portion  of  a 

bhag,  it  is  a  fraud  upon  the  Act,  and  the  Collector  cannot 

act  until  he  knows  that  the  Act  has  been  infringed,  and 

that  if  the  time  ran,  against  the  Collector,  who  might  be 

kept  in  ignorance  of  Bale  by  collusion  o£  parties,  the  Act 

would  practically  be  ineffectual. 

Application  by       (e)     Basapa  v.  Mary  a/4)  was  a  Full  Bench  case  in 

chaser  tor  pos-   which  a  decree-holder  who  had  obtained  a  money  decree 

be  made  with-     had  himself  become  the  auction-purchaser  of  the  defend- 

from  the  Jmnt  ant's  property  on  the  9th  September,  1874,  and  the  sale. 

of  certificate. 

(1)  I.  L.  R.,  6  Calc,  707.        I       (3)  I.  L.  R.,  7  Bom-,  546. 

(2)  I.  L.  R.,  8  Mad.,  207.        |       (4)  I.  L.  R.,  3  Bom.,  433. 


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ART.  178]    THK  8KC0ND  SCHKDOLB,  THIRD  DIVISION APPLICATIONS.      635 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Three  years. 

was  confirmed  on  the  9th  October,  1878 ;  but  the  certifi- 
cate of  sale  was  not  issued  till  the  23rd  January,  1878. 
On  the  2nd  April,  1879,  the  purchaser  applied  for  pos- 
session. It  was  held  that  the  right  to  apply  for  posses- 
sion contemplated  in  sections  818  <fc  319  of  Act  X  of  1877, 
accrued  on  the  date  that  the  certificate  was  issued  and 
not  on  that  on  which  the  sale  was  confirmed,  and  that 
therefore  the  applicant  had  three  years'  time  mentioned  in 
this  Article  from  the  date  of  the  certificate.     Following  b.  h. 

the  above  decision,  a  Division  Bench  (Sargent,  C.  J.,  and  *Jan* 1884,) 
Kemball,  J.)  held  in  January,  1884,  in  Hanmantrav 
Pandurang  Joglekar  v.  Subaji  Girmaji,*1)  in  which  auctiou- 
purchaser  applied  for  possession  on  the  7th  November, 
1883,  while  the  sale  certificate  was  dated  17th  March, 
1880,  that  the  applicant  was  barred,  the  application 
having  been  made  after  three  years  from  the  grant  of  the 
certificate, 

(f)     In  Parshadi  Lai  v.  Ohunni  Lal,<*)  the  respondent  This  Article 
applied  on  the  22nd  April,  1878,  to  be  declared  an  insolvent,   cations  made " 
None  of  the  creditors  appeared  at  the  hearing  of  the  ap-   352  of  c.  p.  o. 
plication.     On  the  19th  July,  1878,  the  respondent  was  framing  0f  the 
declared  an  insolvent,  but  the  court  did  not  appoint  a  re- 
ceiver of  his  property,  which  was  of  a  very  small  value. 
Only  one  creditor  came  to  prove  his  debt.  No  schedule  was 
framed  as  required  by  section  352  of  .the  Code.  The  re- 
presentative of  that  creditor,  three  years  later,  applied  for 
the  sale  of  the  property  inherited  by  the  insolvent,  and  upon 
notice  thereof,  an  assignee  of  one  of  the  creditors  named  in 
the  application  by  a  deed  of  assignment  dated  April,  1878, 
applied  to  prove  his  claim.     It  was  held  that  section  352  362  provides  for 
provides  for  proceedings  prior,  while  353  for  proceedings   prior,  whfle  sss 

i_  ./,,      ,         ?     r.'  ,      ,    ,         .,r  ,  .       for  proceedings 

subsequent  to  the  framing  of  the  schedule ;  that  separate  subsequent  to 
appeals  are  given,  in  clause  17  of  section  558,  in  respect  the  schedule. 
of  the  different  orders  that  may  be  passed  thereunder, 
(1)  I.  L.  E.,  8  Bom.,  257.        |        (2)  I.  L.  It.,  6  All.,  148. 


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636     THB  SECOND  SCHEDULE,  THIRD  DIVISION — APPLICATIONS.   [ART.  178 


Description  of  application. 


Period   of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Article  174  gov- 
erns applica- 
tions under 
section  353. 


Collector's  ap- 
plication to  re- 
cover court  fee 
due  to  Govern- 
ment falls 
under  .this  Arti- 
cle. 


Government 
are  not  entitled 
to  anv  exemp- 
tion  from    the 
provisions  of 
the  Limitation 
Act. 


Three  years. 

while  a  special  limitation  of  90  days  from  the  date  of 
the  publication  of  the  schedule  under  Aricle  174  governs 
applications  under  section  353,  and  that  the  present 
application  cannot  be  treated  as  one  made  under  section 
353,  for  at  the  date  of  its  presentation  no  schedule  had 
been  framed  and  consequently  it  was  in  the  nature  of  a 
tender  of  proof  of  debt  under  section  352.  The  court 
further  held  that  the  appellant's  right  to  apply  accrued 
at  the  date  of  the  declaration  of  insolvency  and  that  this 
Article  governed  it. 

(g)  In  Appayya  v.  the  Collector  of  Vizagapatam/1) 
plaintiff  and  two  defendants,  in  a  pauper  suit,  were  order- 
ed, in  a  decree  passed  upon  a  Razinamah  on  the  28th 
March,  1876,  to  pay  the  stamp  duty  to  Government  in 
equal  shaves,  and  the  plaintiff  paid  his  one- third  on  the 
17th  July,  1878.  In  March,  1881,  the  Collector,  under 
section  411  of  C.  P.  C,  applied  to  recover  the  remaining 
duty.  The  District  Judge  considering  that  the  payment 
by  plaintiff  saved  the  claim  from  limitation  allowed 
the  claim.  The  High  Court,  holding  that  payment 
by  plaintiff  of  his  share  of  the  costs  will  not  prevent 
limitation  from  running  against  the  orders  severally 
liable,  observe  :  "  We  are  of  opinion  that  the  Govern- 
ment is  not  entitled  to  any  exemption  from  the  pro- 
visions of  the  Limitation  Act  relating  to  applications. 
If  the  maxim  on  which  the  counsel  for  the  Crown 
relies  applies  to  this  country  and  the  Crown  is  not 
bound  by  the  provisions  of  any  Act,  unless  they  are 
expressly  declared  binding  on  the  Crown,  it  may  be 
inferred  from  the  circumstance  that  this  Act  contains 
provisions  prescribing  a  limitation  to  the  Government 
for  the  institution  of  suits  and  presentation  of  Criminal 
Appeals,  that  the  Legislature  contemplated  that  the 
Crown  should  be  subject  to  the  provisions  of  the  Act  and 
(1)  I.  L.  R.,  4  Mad.,  155. 


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ART.  178]    THK  8KCOND  8CHBDULB,  THIRD  DIV18I0N — APPLICATIONS.      637 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Three  years. 

Bhould  enjoy  a  privilege  to  the  extent  expressed  and  no 
further." 

(h.)  In  Raghubans  Gir  v.  Sheosaran  Gir,(1>  decree- 
holder  applied  for  execution  of  his  decree  of  the  6th 
February,  1877,  on  the  7th  idem.  The  debtor's  objec- 
tion was  rejected  on  the  16th  April,  1877,  and  the  order 
was  upheld  in  appeal  on  the  17th  February,  1878,  and  in 
the  second  appeal  on  the  31st  May,  1878,  the  debtor  sued 
to  contest  the  order  and  was  unsuccessful.  In  the  mean- 
time, the  creditor  applied  for  execution  on  the  27th  March, 
1878,  and  was  struck  off  with  a  direction  that  he  should 
file  fresh  application  when  the  record  was  returned  by 
the  High  Court.  The  creditor  applied  for  execution  on 
the  28th  May,  1881,  referring  to  the  court's  order  upon 
hi 8  former  application.  It  was  held  that  this  was  not  an 
application  within  the  meaning  of  Article  1 79,  but  was 
governed  by  this  Article  and  that  limitation  began  to 
run  when  the  record  was  returned  by  the  High  Court. 

(i)  In  Sham  Karan  v.  Piari,(2)  decree  was  dated  9th 
August,  1877.  On  the  4th  May,  1878,  execution  was 
taken  by  arrest  and  attachment.  On  the  27tb  August, 
1878,  the  debtor  from  the  Civil  Jail  applied  for  his  release 
stating  he  had  agreed  to  pay  the  debt  by  instalments  and 
to  the  execution  of  the  whole  decree  in  default.  On  the 
28th  August,  the  court  with  creditor's  consent  released  the 
debtor.  On  the  28th  November,  1 881,  the  decree-holder 
applied  for  execution.  It  was  held  that  the  application 
was  one  to  enforce  the  agreement  rather  than  one  for 
execution  of  the  decree  within  the  meaning  of  Article  179, 
and  that  the  application  was  governed  by  this  Article  and 
was  within  time  as  limitation  began  to  run  from  the  date 
of  the  default. 

(j)     In  Buti  Begam  v.  Nihal  Chand/3)  a  decree  was 

(1)  I.  L.  R.,  5  All.,  243.  |         (2)  I.  L.  E.,  6  All.,  596. 

(3)  I.  L.  R.,  5  All.,  459. 


Creditor's  ap- 
plication for 
execution  under 
court's  order 
that  he  should 
apply  for  exe- 
cution when  re- 
cord was  re- 
turned falls 
under  this 
Article. 


Application  for 
execution  as 
per  agreement 
of  creditor  and 
debtor  sanc- 
tioned by  court 
falls  under  this 
Article. 


Application  for 
execution  after 
dismissal  of  ap- 
peal during 


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638     THE  BWCOVD  SCHBDUWt,  THIRD  DIVISION — APPLICATIONS.    [ACT.  178 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


which  stay  of 
execution  was 
ordered  is  go- 
verned by  this 
Article. 


Judgment-deb- 
tor's right  to 
apply  For  re- 
fund of  excess 
paid  accrues 
when  account  is 
taken  and  stat- 
ed on  applica- 
tion. 


Three  years. 

made  against  By  K  and  Z.  On  the  13th  May,  1879, 
application  was  made  for  execution  of  the  decree  against 
B  and  K.  In  August  1879,  £,  who  had  preferred  an 
appeal  in  the  suit,  applied  on  that  ground  for  the  stay  of 
execution,  and  on  the  22nd  August,  1879,  the  court  on 
the  same  ground  ordered  execution  to  be  stayed.  On  the 
16th  December,  1879,  Z'$  appeal  was  dismissed.  Oh  the 
24th  June,  1882,  an  application  for  execution  of  the 
decree  against  B  was  made.  Following  Kalyanbhai  Dip- 
chand  v.  Ghanasham  Lai  Jadunathji,<U  it  was  held  that 
application  might  be  regarded  as  one  for  revival  of  the 
execution  proceedings  stayed  by  injunction  and  it  was  go- 
verned by  this  Article.  This  was  followed  in  Basant  Lai 
*.  Batul  Bibi,W  in  which  sale  was  staid  by  an  injunction 
until  the  disposal  of  the  suit  filed  by  a  claimant  to  the 
property. 

(k)  In  Mula  Baj  v.  Debi  Dihal,<*>  decree-holder  applied 
for  execution  of  decree  for  costs  on  the  16th  July,  1880. 
The  decree  had  been  previously  executed  from  time  to 
time  since  1872.  On  the  3rd  September,  1880,  the  judg- 
ment-debtor preferred  a  petition,  alleging  that  the  decree- 
holder  had  recovered  interest  which  the  decree  did  not 
award,  and  that  what  had  thus  been  recovered  in  excess 
of  what  was  due  should  be  refunded.  The  court  ordered 
an  account  to  be  taken.  On  the  20th  December,  1880,  the 
account  was  taken  and  the  court  found  that  the  decree- 
holder  had  recovered  Bs.  130  in  excess.  The  judgment- 
debtor's  regular  suit  for  its  reco very  having  been  rejected 
on  the  4th  January,  1883,  applied  to  the  executing 
court  for  the  refund  thereof.  The  Lower  Appellate 
Court  held  that  the  application  was  barred,  as  more  than 
three  years  had  elapsed  from  the  20th  November,  1872, 
when  the  money  now  claimed  was  paid.     It  was  held, 

(1)  I,  L.  E.,  5  Bom.,  29.         |  (2)  I.  L.  R.,  6  All.,  23. 

(3)  I.  L.  R.,  7  All.,  371. 


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ART.  178]    TH*  SECOND  SCHBIHJLB,  THIHDi  DIVI8IOM — APPLICATIONS.    639 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begin 8  to  ran. 


Three  years. 

that  the  right  to  apply  for  the  refund  of  the  excess 
amount  accrued  at  the  time  when  the  account  was  taken 
and  stated  on  the  judgment-debtor's  application,,  in  the 
course  of  the  proceedings  in  exeomtion. 

(1)  In  Oriental  Bank  Corporation  v.  Charmo-l/1*  the  court's  power 
question  was  whether  the  Limitation  Act  applied  to  the  is  not  affected 
exercise  by  court  of  powers  conferred  on  it  by  section  32 
as  to  bringing  in  new  persons  as  parties  and  altering 
positions  of  parties  already  named.  It  was  held  that  no 
question  of  limitation  can  arise  with  respect  to  the  court's 
power  to  make  an  order  adding  a  party  defendant  to  a 
suit. 

(m)     Iu  Bhoyrub  Dass  Johurry  v.  Domen  Thakoor/2)    Application  to 
the  suit  was  commenced  in  September,  1878,  in  the  name  ordered  to abate 
of  the  sole  plaintiff,  who  died  in  November,  1878.     Probate  under  thia 
of  his  will  was  not-  obtained  until  April,  1879.     Executors  in  a  subsequent 
applied  for  the  revival  of  the  suit  in  their  names  or  for  not  to  fail  under 
an  order  of  abatement   under  section   366,.  and  for   its 
cancellation  under  section  371,  ttnd  for  their  names  being 
entered  upon  the  record.     It  was  held  that  upon  the 
death  of  a  sole  plaintiff,  if  no  application  to  revive  is 
made  within    60  days  from   the  date  of   the  plaintiff's 
death,  the  suit  abates.     But  the  court  may,  under  section 
371  of  the  Code  of  Civil  Procedure,  revive  the  suit  on 
the  application  of  the  legal  representative  of  the  plaintiff, 
within  three  years  from  the  time  when  the  right  to  apply 
accrues,  if  he  can  show  that  he  was  prevented  by  suffi- 
cient cause  from  continuing  the  suit.     The  application 
was  held   to  be  governed  by  this  Article.     In  Govind 
Chunder  Goswami  v.  Rungun  Money/8)  both  the  parties 
died  in  1879.     After  decree  for  the  performance  of  trust 
and  for  certain  enquiries  for  the  purpose  of  settling  a, 
scheme  to  carry  out  the  trust,  the  case  was  8 track  off 

(1)  I.  L.  R.,  12  Calc,  642.      |        (2)  I.  L.  R.,  5  Calc,  189. 
(S>  L  L.  B.,  6  Calc,  60. 


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640      THB  8BCOND  8CHKDUL1,  THIRD  DIVISION — APPLICATIONS.    [ART.  178 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Application  to 
amend  decree 
falls  under  this 
Article. 


In  the  case  of 
decree  for  pos- 
session and 
mesne  profits, 
application  for 
ascertaining 
mesne  profits  is 
one  for  obtain* 
injr  a  final  de- 
cree and  not  for 
execution,  the 
previous  decree 
having  been  in 
that  respect 
interlocutory. 
(June  1886.) 


Three  years. 

for  default  in  1875.  In  1879,  plaintiff's  heir  Bued  the 
Administrator  of  defendant  to  have  the  original  decree 
carried  out.  The  court  allowing  the  plaint  to  be  amended 
in  the  form  of  a  petition  under  section  372  of  the  Code, 
held  that  the  application  was  not  barred  under  this 
Article,  and  that  even  if  this  Article  was  applicable,  the 
application  would  not  be  barred,  limitation  running  from 
the  time  the  suit  was  allowed  to  be  reconstituted. 

(n)  In  the  matter  of  the  petition  of  Gaya  Prasad  v. 
Sikri  Prasad/1)  it  was  held  that  an  application  to  amend 
a  decree,  which  is  found  to  be  at  variance  with  the 
judgment,  under  section  206  of  C.  P.  C.  is  governed  by 
this  Article. 

(O)  In  Anando  Ki shore  Dass  v.  Anando  Kishore 
Bose,<2)  in  execution  of  a  decree  for  possession  of  certain 
lands  and  for  mesne  profits,  dated  15th  August,  1878, 
possession  having  been  obtained  in  August,  1880,  two 
decree-holders,  one  of  whom  was  a  minor,  applied  on  the 
4th  April,  1882,  for  ascertainment  of  the  amount  of  such 
mesne  profits.  Upon  that  application,  the  Amin  was 
directed  to  ascertain  the  amount  due,  but  after  repeated 
reminders  had  been  sent  him,  and  no  reports  being  sub- 
mitted, the  execution  case  was  struck  off  the  file  on  the 
9th  October,  1882.  The  minor  judgment-creditor  having 
attained  his  majority  on  the  17th  April,  1885,  an  applica- 
tion was  made  by  both  decree-holders  for  execution  of 
the  decree  by  ascertainment  of  the  amount  of  mesne 
profits  and  for  the  recovery  of  the  amount  when  ascer- 
tained.' The  judgment-debtors  pleaded  limitation.  It 
was  held,  that  the  application  was  not  an  application  for 
execution  of  the  decree  and  that  the  decree  was  divisible 
into  two  parts,  and  the  present  application  must  be  treated 
as  for  the  purpose  of  obtaining  a  final  decree  regarding  the 

(1)  I.  L.  R.,  4  All.,  28. 

(2)  I.  L.  R.,  14  Calc.,  60. 


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ART.  178]   THB  8JCC0ND  80HBBULB,  THIRD  DIVISION*— APPLICATIONS.     641 


Description  of  Application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Three  years. 

mesne  profits,  the  previous  decree  having  been  in  that 
respect  merely  interlocutory.  The  High  Court  followed 
Baroda  Sundari  Dabia  v.  Fergusson/1)  and  Dildar  Hossein 
v.  Mujeedunnissa,(2)  and  dissenter!  from  Hem  Ch under 
Chowdhry  v.  Brojo  Soondary  Debee.W  It  was  further 
held,  that  the  provisions  of  Article  178  applied  to  an 
application  to  make  a  decree  complete.  Tn  the  last  of 
the  above  three  cases,  the  first  of  the  two  oases  were  not 
cited.  But  in  the  first  case  the  Judges,  were  of  opinion 
that  the  decree-holder  was  not  bound  to  apply  for  making 
the  decree  complete  within  three  years,  and  they  have  not 
considered  the  provisions  of  Article  178,  which  applies  to 
a  decree-holder's  application  for  making  the  decree  com- 
plete. 

(p)     It  was  also  held,  that  section  8  of  the  Limitation  in  caw  of  two 
Act  had  no  application  to  the  case,  and  that  therefore  so  Holders  for 
far  as  the  application  of  the  major  decree-holder  was  con-  though  adult 
ceraed,  his  remedy  was  barred,  as  his  application  should  barred,  minor 
have  been  made  within  at  least  three  years  from  the  date  oanexecuteeth« 
of  delivery  of  possession  of  the  lands  decreed.     The  remedy  Iduu  decree?  ** 
of  the  minor  decree-holder  was  not  barred  under  section  ^v^vaud^is- 
7,  as  the  other  decree-holder  could  not  give  a  valid   dis-  the  concuranoe 
charge  without  his  concurrence,  and  that  under  section  (juneiwsj' 
231  of  the  Code  of  Civil  Procedure,  he  was  entitled  to 
execute  the  whole  decree,  as  though  the  remedy  of  the 
major    decree-holder    was   barred,   his    right    was    not 
extinguished.     In  this  case,  the  judgment-debtors  were 
made  liable  as  wrong-doers   and  a  discharge  given  by 
one  of  the  decree-holders  could  not  have  been  a  valid 
discharge  binding  upon  the  other ;  this  case  was  distin 
gnished  from  Ahamudeen  v.  Grish  Chunder  Shatnunt/4) 
which  was  a  case  of  money  due  to  joint-creditors  under 
a  contract. 


(1)  11  C.  L.  R.,  17.  I     (2)  I.  L.  R..  4  Calc.,  629. 

(3)  I.  L.  R.,  8  Calc,  89.  |    (4)  I.  L.  R.,  4  Calc,  350. 

81 


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642       THE  8KCON1)  SCHEDULE,  THIRD  Dl  V18ION APPLICATIONS.     [ART.  1  79 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


1 79. — For  the  execution  of  a 
decree  or  order  of  any 
Civil  Court  not  provid- 
ed for  by  No.  180  or 
by  the  Code  of  Civil 
Procedure,  Section 
230* 


Three  years,  1  The  date  of  the 
or  where  a  decree  or  order,  or 
certified  2  (where  there  has 
copy  of  the  been  an  appeal)  the 
decree  or  or-  date  of  the  final  de- 
der  has  been  cree  or  order  of  the 
registered,  Appellate  Court,  or 
six  years.      8  (where    there    has 

been  a  review  of  judgment)  the  date  of  the  decision 

passed  on  the  review,  or 

4  (where  the  application  next   hereinafter  mentioned  has 

been  made)  the  date  of  applying  in  accordance  with  law 
to  the  proper  Court  for  execution,  or  to  take  some  step 
in  aid  of  execution,  of  the  decree  or  order,  or 

5  (where  the  notice  next  hereinafter  mentioned  has  been 


*  230.  When  the  holder  of  a  decree  desires  to  enforce  it,  he  shall  apply  to  the 
Court  which  passed  the  decree,  or  to  the  officer,  if  any,  appointed  in  this  behalf, 
or  if  the  decree  has  been  sent  under  the  provisions  hereinbefore  contained  to 
another  Court,  then  to  such  Court  or  to  the  proper  officer  thereof. 

The  Court  may  in  its  discretion  refuse  execution  at  the  same  time  against  the 
person  and  property  of  the  judgment-debtor. 

Where  an  application  to  execute  a  decree  for  the  payment  of  money  or  deli- 
very  of  other  property  has  been  made  under  this  section  and  granted,  no  subse- 
quent application  to  execute  the  same  decree  shall  be  granted  after  the  expiration 
of  twelve  years  from  any  of  the  following  dates,  (namely) : — 

(a)  the  date  of  the  decree  sought  to  be  enforced,  or  of  the  decree  (if  any) 
on  appeal  affirming  the  same,  or 

(b)  where  the  decree  or  any  subsequent  order  directs  any  payment  of 
money,  or  the  delivery  of  any  property,  to  be  made  at  a  certain  date — 
the  date  of  the  default  in  making  the'  payment  or  delivering  the  pro- 
perty in  respect  of  which  the  applicant  seeks  to  enforce  the  decree. 

Nothing  in  this  section  shall  prevent  the  Court  from  granting  an  application 
for  execution  of  a  decree  after  the  expiration  of  the  said  term  of  twelve  years, 
where  the  judgment-debtor  has,  by  fraud  or  force,  prevented  the  execution 'of  the 
decree  at  some  time  within  twelve  years  immediately  before  the  date  of  the 
application. 

Notwithstanding  anything  herein  oontained,  proceedings  may  be  taken  to 
enforce  any  decree  within  three  years  after  the  passing  of  this  Code,  unless  when 
the  period  prescribed  for  taking  such  proceedings  by  the  law  in  force  immediately 
before  the  passing  of  this  Code  shall  have  expired  before  the  completion  of  the 
said  three  years. 


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ART,  179]  THB  8KCOND  SCHEDULE,  THIRD  DIVISION APPLICATIONS.       643 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Three  years. 

issued)  the  date  of  issuing  a  notice  under  the  Code  of 
Civil  Procedure,  Section  248,  or 

6  (where  the  application  is  to  enforce  any  payment  which 
the  decree  or  order  directs  to  be  made  at  a  certain  date) 
such  date.* 

Explanation  L — Where  the  decree  or  order  has  been  passed 
severally  in  favour  of  more  persons  than  one,  distinguish- 
ing portions  of  the  subject-matter  as  payable  or  deliver- 
able to  each,  the  application  mentioned  in  Clause  4  of 
this  Number  shall  take  effect  in  favour  only  of  such  of 
the  said  persons  or  their  representatives  as  it  may  be 
made  by.  But  when  the  decree  or  order  has  been  passed 
jointly  in  favour  of  more  persons  than  one,  such  appli- 
cation, if  made  by  any  one  or  more  of  them,  or  by  his  or 
their  representatives,  shall  take  effect  in  favour  of  them  all. 

Where  the  decree  or  order  has  been  passed  severally  against 
more  persons  than  one,  distinguishing  portions  of  the  sub- 
ject-matter as  payable  or  deliverable  by  each,  the  applica- 
tion shall  take  effect  against  only  such  of  the  said  persons 
or  their  representatives  as  it  may  be  made  against.  But 
where  the  decree  or  order  has  been  passed  jointly 
against  more  persons  than  one,  the  application,  if  made 
against  any  one  or  more  of  them,  or  against  his  or  their 
representatives,  shall  take  effect  against  them  all. 

Explanation  II. — "  Proper  Court"  means  the  Court  whose 
duty  it  is  (whether  under  Section  226  or  227  of  the  Code 
of  Civil  Procedure  or  otherwise)  to  execute'  the  decree 
or  order. 
(a)     As  to  what  are  the  applications  which  can  be  con-    As  to  what 

•j        j  i.         •        •-!«*•  -u.-      *u  •  applications 

sidered  as  a  step  in  aid  of  execntion  within  the  meaning   are  steps  in  aid 
of  clause  4,  Article  179,  the  rulings  of  the  High  Court   decisions  are* 

T  .       1#       -_     .        •   •  / 1  v    i  conflictinflf . 

are  conflicting.    Innes,  J.,  in  Kuuhi  v.  Seshagiri/1'  observes    observations  of 
the.  right  to  execute  a  decree  has  been  much   curtailed    Izm06« J- 
(1)  I.  L.  R.,  6  Mad.,  141. 

•  Act  XII  of  1879. 


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644     THK  8KCOMD  8CHKDULC,  THIRD  Dl  VI8lOM-~"APPLtCAT10NS.     [AM\  179 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Three  years. 

by  the  provisions  of  sectiou  230  of  the  Civil  Procedure 
Code,  and  the  provisions  of  the  Limitation  Aet  should  he 
construed  as  far  as  possible  so  as  to  prevent  the  defeat  of 
bond  fide  endeavours  to  secure  the  fruits  of  a  decree  once 
obtained  ;  clause  4  refers  to  an  applicatiou  for  actual  execu- 
Aet  should  be  tion,  aud  then  to  a  step  in  aid  of  execution,  and  this  leads 
to  prevent  the  to  the  inference  that  it  may  be  some  preliminary  proceed - 

defeat   of   bond    .  '  .       \ 

juu  endeavours  ing  prior  to  actual  execution,  lhis  view  receives  support 
fruits  of  ft  d©-  from  clause  5,  which  provides  that  notice  under  section  248 
tained.  of  the  Civil  Procedure  Code,  to  show  cause  why  the  decree 

should  not  be  executed,  is  sufficient  to  save  the  Statute. 
c.  H.  The  C.  H.  in  Rajknmar  Banerji  v.  Raj  Ink  hi  Dabi,*1*  held 

that  a  mere  order  passed  in  execution  irrespective  of  any 
application  should  not  be  considered  as  au   application 
within  the  meaning  of  this  Article. 
••  Date  of  apply-       fl))     The  words  "  date  of  applying"  occur  in  this  Article 
of  presentation,  as  in  Article  167  of  Act  IX  of  1871.     In  Fakir  Muhammad 
(Jan.  1878.)         ^  (jhntom  Husaiu,<8>  the  Full  Bench  held,  that  the  date 
on  which  the  application  for  the  execution  of  a  decree  is 
presented,  and  not  any  date  on  which  such   application 
Tnmer,  c.  J.       may  be  pending,  is  the  "  date  of  applying."     Turner,  C.  J., 
any  application  remarks  :     "  The  court  may  net  feel  constrained  to  bold 
the  pendency  of  that  by  the  term  "  applying"  we  are  to  understand  only 
might  be  held  to  an  application  to   execute  the  decree.     Any    application 
Srhioh  to  caicu-  made  to  a  court  during  the  pendency  of  proceedings  in 
execution  to  enforce  or  keep  in  force  the  decree,  might  be 
held  to  give  a  date  from  which  limitation  might  be  calcu- 
lated, and  I  am  confirmed  in  this  view  by  the  more  explicit 
language  of  the  Act  recently  passed.11 
Ssidin^aJT       <c>     In  Ulinoda  Persad  Roy  v.  Sheikh  Koorpan  Ally,W 
coarZ  raiiht       ^  wa8  ne^  fcna*  on  tne  presentation  of  the  last  of  a  series 
ther'decree  was  °*  applicafc'°n8  made  for  the  execution  of  a  decree,  the 
date^of  °anytbe  conr*i  ^s  competent  to  consider  the  question  whether,  on 

SonrforP«eVau.  (*)  I-  *-•  R->  12  Calc,  441.      |  2)  I.  L.  R.,  1  AU.,  580. 

uon.  (3)  I.  L.  R.,  3  Calc,  518. 


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AttX.  J79]    THH  8KCOND  SOHKDULK,  THlBD  DIVISION APPLICATIONS,     645 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begin 8  to  run. 


Three  years. 

the  date  of  making  a  prior  application  for  execution,  the 

decree  sought  to  be  enforced  was  barred  by  limitation,  and 

that  notwithstanding  the  fact  that  notice  of  such  prior 

application  had  been    served  on  jndgment-debtor  under 

section  216  of  Act  VIII  of  1859.     This  was  followed  by  Bar  is  not  re- 

the    Madras    High  Court    in   Prabhacararow    v.  Potaiu  JSd^iemvdeb- 

nah,(U  in  which  it  was  held  that  if  any  one  of  the  series  of  wrviceof  notice 

applications  had  been  barred,  that  bar  was  not  removed  unchallenged!" 

by  the  circumstance  that  the  judgment-debtor  had  allowed 

the  service  of -notice  on  him  with  reference  to  the  barred. 

application  to  pass  unchallenged. 

(d)     In  Mangal  Prashad  Disohit  v.  Thanea  Ran  to  Lai  p.  o.  held  an 
hiry  Choudry,M  the  last  application  for  execution  dated  wrong  impiy- 
22nd    September,    1877,  was   rejected  as   barred  on  the  limitation  is 
ground   that  the  decree  was  dead  on  the  5tb  September,   ing  until  re* 
1874,  by  reason  of  the  application  of  that  date  not  having 
been  made  within   three  years  from  the  preceding  appli- 
cation of  the  30th  November,  1871,  which  was  the  fifth 
petition  for  exeoation.     The  sixth  petition  was  presented 
on  the  5th  September,  1874,  and  properties  were  attached 
and  sale  proclamations  were  issued,  and  the  sale  was  stop* 
ped   for  seven   days  on  the  creditor's  petition,  and  the 
debtor  admitting  the  debt  had  applied  for  suspension  of 
sale  for  three  months.     It  was  held  by  P.  C,  that  as  the  Court  ordering 
judge  having  had  jurisdiction  to  decide  whether  or  not  the  must  be  con* 
decree  was  barred,  his  order  that  attachment  should  issue*  determined  that 
whether  it  was  right  or  wrong*  must  be  considered  to  have,  not  barred. WM 
determined  that  the  decree  was  not  barred,  and  that  the 
order  was  valid  and  binding  iu  the  same  way  as  a  decree 
for  plaintiff   for  a   barred   debt  would  be  valid    unless 
reversed  on  appeal. 

(6)     la  Srihary  Mundul   v.  Murari  Chowdhry,^)  de-i  Court  to  which 

lit  i«    -i    .      ir       ii  no  j,        i  .       .    .,        a  decree  is  trans 

cree-holder  applied  in  March,  loo4,  to  the  court  or  the  ferred  for  exe- 
cution is  compe- 

(1)  I.  L.  R.,  2  Mad.,  1.         |  (2)  L.  B.,  8  I.  A.,  123.  tent  to  deter* 

(3)  I.  L.  R.,  13  Cale>,  267. 


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646     THB  8RCOND  8CHBDULE,  THIRD  DIVI8I0N — APPLICATIONS.    [ART,  179 


Description  of  application. 


mine  the  plea  of 
limitation. 
(July  1886.) 


B.  H.  held 
that  a  compe- 
tent court's 
decision  on  limi- 
tation has  the 
effect  of  r»« 
judicata, 
(Sep.  1881.) 


C.  H. 
(May  1882.) 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Three  years. 

Subordinate  Judge  of  Moorshedabad  (where  the  decree 
was  passed)  for  transfer  of  the  decree  to  the  District 
Court  of  Beerbhootn  for  execution.  The  transfer  was 
made,  and  on  application  by  the  decree-holder,  the  judg- 
ment-debtor's properties  in  Beerbhoom  were  attached. 
Thereupon  the  judgment-debtor  objected  to  the  attach- 
ment, and  obtained  an  order  under  section  239  of  the 
Code  of  Civil  Procedure  staying  the  execution  proceedings. 
The  judgment-debtor  then  applied  to  the  Court  of  the 
Subordinate  Judge  at  Moors hedalmd,  objecting  to  the 
execution  of  the  decree  on  the  ground  that  it  was  barred 
by  limitation.  The  objection  was  overruled  by  the  Subor- 
dinate Judge,  and  his  decision  was  upheld  on  appeal  by 
the  District  Judge.  On  second  appeal  to  the  High  Conrt, 
it  was  held  that  the  Moorshedabad  Court  was  competent 
to  hear  and  determine  the  plea  of  limitation.  It  was  fur- 
ther held,  that  the  fact  of  the  judgment-debtor's  not  rais- 
ing the  plea  of  limitation  in  the  Beerbhoom  Court  did 
not,  under  the  circumstances,  preclude  him  from  relying 
on  it  in  his  sul>sequent  application  to  the  Court  at  Moor- 
shedabad. 

(f)  Manjuuath  Badra  Bhatv.  Venkatesh  Ooviud 
Shanbhog/1)  held  that  a  decision  by  a  competent  court, 
that  an  application  for  the  execution  of  a  decree  is  barred 
by  limitation  has  the  effect  of  res  judicata,  and  that 
although  such  decision  may  be  erroneous,  the  question  of 
limitation  cannot  be  re-opened  as  long  as  the  decisiou  re- 
mains unreversed  in  appeal.  The  court  further  held, 
that  a  decisiou  that  an  application  is  not  time-barred  has 
a  similar  effect.  In  Bandey  Karim  v.  Romesh  Chunder 
Buudopadhya,W  it  was  held  that  a  decision  that  execu- 
tion is  barred  by  limitation  when  it  becomes  final  without 
an  appeal  will,  upon  a  subsequent  application  for  execu- 
tion, operate  as  a  bar  to  execution. 

(1)  I.  L.  R.,  6  Bom.,  64.       |       (2)  I.  L.  R.,  9  Calc,  66. 


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AKT.  165]   THK  SKGOND  BCHBDULK,  TH1BD  DIVISION APPLICATIONS.      647 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Three  years. 

(g)     C.  H.  held    in   Mahomed    Hossein   v.    Purundur  o.  H. 

Mahto,*1)  that  the  direction  in  section  4  of  the  Limitation   neou/dy  holds 

Act  that  an  application  made  after  the  period  shall  be  dis-   cation  is  not " 

missed,  does  not  takeaway  the  jurisdiction  of  the  court  orderisnota 
»  .i  *•  <%    .i         • /.    .,        nullity  and  sale 

in  respect  of  the  application  in  any  way,  and  that  if  the  made  under  it  is 
court  erroneously  holds  that  an  application  is  not  barred,   (January  1886.) 
Buch  order  is  not  a  nullity,  but  remains  in  full  force  until 
set  aside  and  that  sale  made  in  pursuauce.of  that  order  is 
a  valid  sale  until  it  was  set  aside. 

(h)     In  MinaJConwari  v.  Juggat  Setani,W  the  respon-  p.  c.  held  that 
dent  who    was  mother  of  the  original  debtor   who  had   mg  postpone- 
succeeded  to  the  estate  of  her  childless  grandson,  had  once  in  might  plead 
1878,  and  again  in  February,  1880,  obtained  postponement  court^an  hear 
of  sale  by  petitions.     In  May,  1880,  she  pleaded  that  exe-   (June  1888.) 
cution  was  barred  by  lapse  of  time.     It  was  held  that 
judgment-debtor  cau,   notwithstanding   her  having  filed 
such   petitions  for  postponement  of  sale,   maintain  that 
execution  was  barred  by  lapse  of  time.     The  petition  is 
not  an  intentional  causing  or  permitting  the  decree-holder 
to  believe  that  the  judgment-debtor  admits  that  the  decree 
can  be  legally  executed  and  occasions  no  estoppel  within 
the  Indian  Evidence  Act  of  1872,  sec.  115.  In  this  case  the 
petitions   appeared   to   have   been   of  a   very   suspicious 
character,  and  there  was  no  evidence  that  they  were  autho- 
rized by  the  respondent,  who  denied  knowledge  of  them. 

(i)     In    Dildar  Hossein  v.  Mujegdun-nissa/8)  plaintiff  Proceedings 
obtained  a   decree  for   possession  and    mesne   profits   in  decree  for  pos- 
March,  1863,  secured  possession  of  land   in   March,  1863,  certaining  me*. 
and    applied  for    mesne   profits   in    March,    1866.      The  proceedings!* 
amount  was  ascertained  and  confirmed  on  appeal  in  August,   the  original 
1871.      The  case  was  struck  off    in  August,  1872.      In   (Nov.  1878.) 
August,  1874,  the  decree- holder  applied  for  the  realiza- 
tion of  the  amount.     The  judgment- debtor  pleaded  that 


(1)  I.  L.  R.,  11  Calc,  287.     |      (2)  I.  L.  R.,  10  Calc,  196. 
(3;  I.  L.  R.,  4  Calc,  629. 


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648     THC  8I00HD  BCHJDOLI,  THIRD  DITOIOH — APPLICATION.    [AKT.  179 


Description  of  application. 


Period   of 
limitation. 


Time  from  which  period 
begins  to  run. 


A  decree  for 


profit*  i*  dnrtoi- 
bte  intotwe 
part*. 
(JoxieUBt.) 


Application  for 
ascertaining 
mesne  profits  is 
an  application 
for  final  decree. 


Snoh  are  the 
proceedings 
held  to  ascer- 
tain the  value 
Of  improve* 
ments  under 
decree  for  re- 
demption of 
kanom. 
(Nov.  1884.) 


Three  years. 

the  decree  was  barred.  It  was  held,  that  when  a  decree 
is  made  under  section  197,  proceedings  taken  after  the 
original  decree  for  possession  for  the  pnrpose  of  determin- 
ing the  amount  of  mesne  profits  payable  to  the  plain  tiff 
are  in  effect  proceedings  in  con  tin  nance  of  the  original 
suit,  and  that  until  those  proceedings  are  brought  to  a 
close,  and  a  declaration  has  been  made  as  to  the  amount 
actually  due,  it  cannot  be  said  that  any  decree  for  any 
specific  sum  of  money  exists.  Following  the  above  deci. 
sion,  the  Calcutta  High  Court,  in  Ana, mi o  Kishore  Dass 
Bakshi  t>.  Anando  Kishore  Bose/1)  held  that  a  decree  for 
possession  of  land  and  mesne  profits  is  divisible  into  two 
parts ;  one  for  possession  of  land,  and  the  other  for  mesne 
profits.  That  part  of  it  which  directs  possession  to  be 
awarded  to  the  decree-holder  is  final,  but  the  other  part  is 
merely  an  interlocutory  decree,  declaring  that  the  decree- 
holders  are  entitled  to  recover  mesne  profits,  and  it  would 
become  final  when  the  amount  of  the  mesne  profits  would 
be  fixed  by  the  Court.  An  application  for  ascertainment 
of  the  amount  of  such  mesne  profits  is  an  application  by 
the  decree- holder  moving  the  court  to  make  a  final  decree 
regarding  mesne  profits.  Although  in  form  it  is  an  appli- 
cation for  execution,  in  reality  it  is  not  so  Such  appli- 
cation is  governed  by  the  provisions  of  Article  178.  (See 
Note  0,  under  Article  178,  p.  640.) 

(j)  The  Madras  JJigb  Court  followed  the  above  deci- 
sion  in  Kri&hnan  v.  Nilakandan,W  which  decreed  surren* 
der  of  kanom  property  on  payment  of  the  kanam  and 
purangadam  amount,  and  the  value  of  improvement  to  be 
determined  in  execution  to  be  paid  to  such  of  the  defen- 
dants as  should  be  found  entitled.  On  the  12th  August, 
1880,  the  plaintiff  applied  for  execution,  and  on  the  23rd 
September,  1881,  an  order  was  passed  that  execution, 
should  issue  on  payment  into  court  by  the  plaintiff  of  the 
(1)  I.  L.  R.,  14  Calc,  50.       |       2)  I.  L.  R.,  8  Mad.,  137. 


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ART.  179]  THE  8ECOND  SCHEDULE,  THIRD  DIVI8I0N — APPLICATIONS.     649 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Three  years. 

mortgage  amount,  and  the  value  of  improvements  which 
had  then  been  ascertained.  The  plaintiff  having  failed  to 
deposit  the  said  amonnt,  the  application  for  execution 
was  struck  off  the  file  on  the  10th  November,  1881.  On 
the  8th  December,  1883,  the- plaintiff  applied  again  for 
execution,  and  objection  was  taken  that  the  application 
was  barred  by  limitation.  It  was  held  that  the  applica- 
tion was  not  barred. 

(k)     In  Sheikh  Khoorshed  Hossein  v.  Nubbee  Fatima/1)   Defendant  may 
the  plaintiff  obtaining  a  decree  in  June,  1871,  against  the  tion  decree 
defendant,  a  co-sharer  for  partition,  took  out  execution   shareholder  or 
under  which  a  greater  part  of  the  land  had  been  parti-  holders  distinct 
tioned.  The  plaintiff,  dissatisfied  with  the  partition  made,  (Feb.  1877.) 
applied  in  November,  1876,  to  have  the  execution  proceed- 
ings struck  off  the  file,  whereupon  the  defendant  expressed 
his  willingness  to  carry  on  the  execution  proceedings.  The 
Lower  Courts  rejected  the  plaintiff's  petition  and  direct- 
ed the  partition  to  continue  at  the  defendant's  expense. 
On  second  appeal  by  plaintiff,   it  was   held  that  as  the  A  decree  for 

,.  I   ,  ..t_       t  i.        v   u  partition  if  pro. 

execution  proceedings  taken  either  by  one  shareholder  or  periy  drawn  up 
the  other,  were  taken  on  behalf  of  both,  limitation  did  not  each  share- 
apply.     A   decree  for   partition  is  not  like  a  decree  for  shareholders, 

•  i       -i  t  •  .«  .  i«  i    .  i       and  execution 

money  or  the  delivery  of  specific  property,  which  is  only  taken  by  one  is 

in  favour  of  the  plaintiff  in  the  snit.     It  is  a  joint  decla-   of  ail. 

ration  of  the  rights  of  persons  interested  in  the  property 

of   which  partition   is  sought,  and  such  a  decree  when 

properly  drawn   up  is  in  favour  of  each  shareholder  or 

set  of  shareholders  having  a  distinct  share. 

(1)     In  Hurro   Pershad   Roy  Chowdry    v.  Bhupendro  Execution  of 

Narain  Dutt,<2>  it  was  held  that  the  period  of  limitation  order  for  costs 

within  which  application  must  be   made  for  execution  of  under  the  oor- 

an  order  for  costs  passed  by  the  High  Court  when  reject-  Article  167  of 

ing  a  petition  for  leave  to  appeal  to  the  Privy  Council  is  that  (June  isso.) 

specified  in  schedule  2,  Article  167  of  Act  IX  of  1871. 

(1)  I.  L.  R.,  3  Calc,  561.      |       (2)  I.  L.  E.,  6  Calc,  201. 

82 


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650     THI  SSCOND  8CHIDULI,  THIKD  DIVI8IO* — ArTUCATIOXS.   [AKT.  179 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Decree  holder's 
right  to  money 
or  jewel  deposit- 
edby  debtor  to 
etay  eele  pend- 
ing appeal  is 
not  effected, 
eren  after 
decree  becomee 
barred. 
(Feb.  1878.) 


A.  H. 

Application 
withdrawn 
could  here  no 
effect  es  one 
made  for  execu- 
tion under  this 
Article. 
{Jen.  1881.) 


B.  H. 

Application 
flled  and  with- 
drawn  hat  iU 
effect  for 


Three  years. 

(m)  In  Sbeo  Gholam  Saboo  *.  Bahut  Hossein,*1)  the 
decree- holder  obtained  an  order  for  sale  of  the  debtor's 
property,  whose  plea  of  bar  was  rejected  by  the  Lower 
Court.  On  the  debtor's  appeal,  his  muktiar,  in  March, 
1870,  deposited  money  and  jewellery  as  security  for 
staying  execution,  pending  the  disposal  of  the  appeal  in 
which  the  order  of  the  Lower  Court  was  cod  firmed.  In 
1876,  the  debtor's  mnktiar  claimed  the  refund  of  the 
deposit  on  the  ground  that  the  decree  had  become  barred 
and  that  the  creditor  had  not  drawn  it  for  more  than 
three  years.  The  Lower  Appellate  Court  ordered  the 
refund.  It  was  held  that  neither  the  depositor  nor  the 
judgment-debtor  can  claim  the  refund  of  the  deposit.  It  is 
observed  that  when  money  or  moveable  property  is  depo- 
sited in  court  in  sueh  a  ease  as  the  above,  the  court,  upon 
confirmation  of  the  order  for  sale,  holds  the  deposit  in 
trust  for  the  decree-holder  and  is  at  liberty  to  realise  it  and 
pay  the  proceeds  over  to  him  to  the  extent  of  his  decree. 

(n)  la  Kifayat  Ali  v.  Ram  Singh,(*>  the  decree-holder 
applied  on  the  20th  July,  1880,  for  execution  of  his  decree 
dated  7th  June,  1879;  the  decree  having  erroneously 
described  certain  parties,  the  court,  on  the  30th  August, 
1880,  on  the  representations  of  the  decree- holder's  vakil 
that  he  would  execute  it  after  it  had  been  corrected  and 
that  it  might  be  returned,  ordered  that  the  execution  case 
be  dismissed  and  the  decree  returned.    On  the  28th  April, 

1882,  the  decree  was  amended,  and  on  the  19th  February, 

1883,  the  next  application  for  execution  was  made.  It 
was  held  that  the  question  of  limitation  must  be  deter- 
mined as  if  the  application  of  the  20th  July,  1880,  had 
never  been  filed,  applying  sections  374  and  647  of  the 
C.  P.  Code  to  the  case, 

(O)     In  Pirjade  v.  Pirjade,W  decree-holder  had,  with 

(1)  I.  L.  R.,  4  CsJc,  6.  |        (2)  1.  R.  R.,  7  AH.,  350. 

(3)  I,  L  R.,  6  Bom.,  681. 


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AKT.  179 J   THB  SKCOND  8CHBDULR,  THIRD  DIVISION APPLICATIONS.      651 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Three  years. 

the  permission  of  the  court,  withdrawn  his  application  of  tlie  the  purpose  of 
17th  April,  1878,  for  execution,  and  subsequently  applied  (Sept.  1882.) 
for  execution  on  the  15th  April,  1881.  The  court  held  iu 
September,  1882,  that  in  counting  the  prescribed  period  of 
three  years,  application  withdrawn  must  be  discarded  as  if 
it  had  never  been  presented,  aud  that  section  14  of  the 
Limitation  Act  does  not  remove  the  bar  created  by  section 
374  of  the  Criminal  Procedure  Code.  The  same  question 
arose  in  July,  1885,  in  Tarachand  Megradj  v.  Kashinath 
TrinibakjM  in  which  the  decree- holder,  at  the  request  of 
the  debtor,  withdrew  his  application  of  July,  1880,  with 
the  permission  of  the  court,  to  make  another  application, 
and  subsequently  applied  for  execution  in  November,  1882. 
It  was  held  that  section  374  of  the  Criminal  Procedure 
Code  as  to  withdrawal  of  suits  does  not  apply  to  applica- 
tions for  execution,  and  that  an  application  has  its  effects 
for  the  purpose  of  limitation  as  soon  as  it  is  admitted,  and 
whether  it  is  subsequently  withdrawn  or  allowed  to  remain 
dormant  is  immaterial.  In  Eshan  Chunder  Beset?.  Pran-  c.  H. 
nath  Nag,*2)  a  Full  Bench  of  the  Calcutta  High  Court 
held,  that  a  decree. holder  is  entitled  to  execute  his  decree 
upon  his  merely  showing  that  he  had  applied  for  execu- 
tion not  more  than  three  years  before  although  he  had 
taken  no  proceedings  on  the  application. 

(p)     In  Macgregor  v.  Tarni  Churn  Sircar, <•>  a  decree-  Execution  ap- 
holder,  on  the  8th  July,  1885,  applied  for  execution  of  a  Jui^8M?omit 
decree  dated   the  10th  July,   1873,   omitting -to  set  out  ^in^St  de* 
specifically  in  such  application  a  description  of  the  im-  pSJperty0^^ 
moveable   property  sought  to  be  attached.     On  the  24th  Jp^oaUonof 
July,  he  applied  for  and  obtained  one  month's  time  to  file  piyujfcana 
a  Kst  of  these  properties,   and  on  the  7th  August,  after  ^X^IuiiSe* 
filing  the  liBt,  applied  for  the  attachment  and  sale  of  snob  p^ropeny  treat. 
properties.    The  judgment-debtor  contended  that  execution  c^S^SSt?^11' 

from  8th  July. 
(1)  I.  L.  R.,  10  Bern.  69  |         (2)  23  Cale.,  W.  R.  613.  (Au«u,rt  1886*) 

(3)  I.  L.  R.,  14  Cale,,  184. 


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652    THE  81COND  JBCHEDULl,  THIRD  DIVISION — APPLICATIONS.    [ART.  179 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Three  years. 

was  barred  by  limitation.  It  was  held,  that  the  omission 
to  file,  with  the  application  of  the  8th  July,  the  list 
describing  specifically  the  properties  sought  to  be  attached, 
was  a  mere  defect  of  description  which  could  be  remedied 
under  section  245  of  the  Code  of  Civil  Procedure  by  allow- 
ing an  amendment  to  be  made  :  and  further,  that  the  two 
applications  of  the  8th  and  24th  July  should  be  considered 
as  one  entire  application  dating  from  8th  July.  The  court 
followed  Syad  Mahomed  v.  Syad  Abedoollab.M 

2aSst°nne  of        ^)     *n  ^am  ^nu^  ®ewa*:  Singh  v.  Hingu  Lal,(*>  last 
several  legal  re-  application  for  execution  against  the  son  and  widow  of  a 

preeentati  vee  of      *r  ^ 

efl^amJnl?8  80*e  judgment-debtor  was  made  on  the  5th  of  April,  1880. 

Sv  ,M  *         On  the  17th  May,  decree-holder  moved  the  court  to  amend 
(Feb.  1861.)  •" 

the  application  by  adding  the  name  of  the  minor  grandson 

of  the  deceased  debtor  through  his  guardian.  It  was 
objected  that  execution  was  barred  as  against  bim.  It  was 
held  that  an  application  for  execution  of  a  decree  against 
one  of  the  several  legal  representatives  of  the  deceased 
judgment-debtor  takes  effect  for  the  purpose  of  limitation 
against  them  all. 
a.  h.  (r)     In  Sham  Lai  v.  Kanahia  Lai,  W  a  decree  payable  by 

court,  thongh°    instalments  provided  that  in  default  of  payment  of  two 
court,  might  be  instalments,  the  whole  decree  should  be  executed.     The 
limitation. mee    decree*  holder  applied  for  execution  of  the  whole  decree 
*'      on  the  ground  that  default  had  been  made  in  payment  of 
the    3rd    and    4th    instalments.     The    judgment-debtor 
objected  that  the  application  was  barred  by  limitation  as 
he  had  made  default  in  payment  of  the  1st  and  2nd  instal- 
ments, aud  three  years  had  elapsed  from  the  date  of  such 
default.     The  decree-holder  offered  to   prove  that  those 
instalments  had  been  paid  out  of  court     Following  the 
F.  B.  ruling  in  Fakir  Chand  Bhose  v.  Madan  Mohan 
Ghose,(4)  it  was  held  that  the  decree-holder  was  entitled  to 

(1)  12  C.  L.  R.,  279.  I        (8)  I.  L.  R ,  4,  All.,  316. 

(2)  1.  L.  R.,  3  All.,  617.  |        (4)  4  B.  L.  R.,  130. 

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ART.  179]    THE  SBCOND  SCHRDUtB,  THIRD  DIVJ810N — APPLICATIONS.     653 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Three  years. 

give  such  proof  in  order  to  defeat  the  judgment-debtor's 

plea  of  limitation,  notwithstanding  such  payment  had  not 

been  certified  to  the  court.     This  was  followed  in  Zahur         a.  h. 

Khan  ..  Bakbtawar.U)  (,'u","*  1885> 

(8)     An  order  under  section  210  of  the  C.  P.  C.  em-  An  order  under 

powering  the  courts  to  direct  payment  of  the    decree  directing  pay. 

amount  by  instalments  virtually  alters  the  decree,  and  it  amount  by  in. 

can  be  executed  only  subject  to  that  alteration.     A  judg-  tnaiiy  alters  the 

ment-debtor-  under  decree  of   March,    1878,   applied   in  (8ept.'i883.) 

June,  for  two  years'  time  to  pay  the  decree  amount,  and 

the  application  was  allowed  ex  parte  after  notice  to  the 

judgment-creditor    The    decree-holder's  application  for 

execution  in  July,  1882,  was  held  not  barred.     Tata  v. 

Ramachandra.  <2> 

In  Jhoti  Sahu  v.  Bhubun  Gir,<s>  decree  was  dated  3rd  c.  h.  held  re- 
gistering the 
December,  1877.     On  the  23rd  February,  1878,  an  appli-  debtor's  appii- 

_      .  .        .         .  .   _      ,  '         ,  Y*         cation  with  cre- 

cation  was  made  for  execution  in  which  the  decree-holder  ditor*»  consent 

for  payment  by 

stated  that  the  judgment-debtor  had  agreed  to  pay  the  instalment*  and 
balance  then  due  on  the  13th  August,  1878.     The  appli-  proceedings, 

amounted  to  a 

cation  was  then  struck  off  on  the  26th  June,  1878.  On  decree  passed 
the  30th  June,  1881,  the  decree-holder  again  applied  for  (Dec.  1884.) ' 
execution,  and  on  the  11th  July,  1881,  the  judgment-debtor, 
with  the  consent  of  the  decree-holder,  applied  for  time  to 
pay  the  balance  due,  till  the  8th  September,  1881,  and 
that  application  was  also  struck  off.  On  the  fat  March, 
1883,  the  decree-holder  again  applied  for  execution ;  the 
Lower  Appellate  Court  rejected  the  application  as  barred. 
It  was  held  that  the  application  was  not  barred  by  limi- 
tation upon  the  ground  that  the  application  made  by  the 
judgment-debtor,  on  the  11th  July,  1881,  alleging  that 
he  had  come  to  an  arrangement  with  the  decree-holder 
for  the  payment  of  the  amount  due  by  instalments,  having 
resulted  in  its  being  registered  and  the  proceedings  struck 

(1)  I.  L.  B.,  7  All.,  328.  |        (2)  I.  L.  B.,  7  Mad.,  162. 

(3)  I.  L.  B.,  11  Calc,  143. 

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654      THK  8KCOND  80  H  EDO  I,  B,  THIRD  DIVISION APPLICATIONS     [ART.  1  79 


Description  of  application. 


Right  of  a  party 
to  execution 
proceedings    it 
not  affected  by 
case  being 
struck  off. 
(Feb.  1884.) 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


The  proper 
mode  of  dealing 
with  a  suit  or 
proceeding  is  to 
dismiss  it  when 
parties  do  not 
appear. 

It  can  be  restor- 
ed under  sec,  108 
on  application, 
which  is,  under 
section  647  ap- 
plicable to  exe- 
cution* 


Party  not  to  suf- 
fer for  oourt's 
omission. 
(March  1884.) 


Three  years. 

off,  amounted  to  a  direction  that  the  decretal  amount  be 
paid  by  instalments  as  stipulated  in  the  petitions,  and  that 
this  being  so,  there  was  a  decree  passed  on  that  date 
under  the  provisions  of  the  second  paragraph  of  section 
210  of  the  Code  of  Civil  Procedure,  of  which  the  decree- 
hohler  was  entitled  to  have  execution. 

(t)  A  decree  was  obtained  on  the  10th  July,  1858, 
and  the  last  application  for  execution,  before  Civil  Pro- 
cedure Code  of  1877,  was  made  on  the  10th  January,  1876 ; 
this  was  struck  off.  The  decree-holder's  application  of 
the  13th  June,  1379,  was  struck  off  on  the  17th  January, 

1880,  by  the  court  to  which  the  decree  was  transferred, 
on  the  ground  that  it  was  barred  by  section  230  of  the  Civil 
Procedure  Code.  In  April,  188 1,  the  application  was 
revived  by  the  order  of  the  Appellate  Court.     In  June, 

1881,  it  was  again  transferred  to  another  court,  which 
struck  off  the  petition  for  default  in  August,  1881.  In 
March,  1882,  the  proceedings  were  revived  and  again 
struck  off  on  the  2nd  of  June.  On  the  11th  July,  1882, 
when  the  decree-holders  made  an  application  to  restore 
the  proceedings,  it  was  held  that  execution  of  t  ie  decree 
was  not  barred  by  section  230  of  the  Code  of  Civil  Pro- 
cedure, and  that  the  rights  of  the  parties  to  execution 
proceedings  are  not  affected  in  any  way  by  the  case  being 
"  struck  off"  by  the  court,  there  being  no  provision  in  the 
Civil  Procedure  Code  for  such  a  course.  The  only  proper 
mode  of  dealing  with  a  oase,  whether  a  regular  suit  or  a 
miscellaneous  proceeding,  when  the  parties  do  not  appear, 
is  to  dismiss  it.  *  A  case  so  dismissed  oan  be  restored  on 
application  under  section  108,  which  isv  by  section  647, 
applicable  as  well  to  execution  of  proceedings  as  to  snita 
and  appeals.  Biswa  Sonan  Chunder  Gossyamy  v.  Binanda 
Chunder  Dibingar  Adhikar  Gossyamy.W 

(U)     Where  an  informal  application  for  execution  of  a 
(1)  I.  L.  R.,  10  Calc,  416. 


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ART.  179]   THK  SKCOND  8CHKDU LB,  THIRD  DIVISION— APPLICATIONS.      655 


Description  of  application. 


Period  of 
limitation. 


Time  from  which 
period  begins  to  run. 


Three  years. 

decree  which  had  been  ordered  to  be  amended  was  left 
on  the  file  of  the  court  without  being  disposed  of  in  any 
way  till  more  than  three  years  after  the   date  of  the 
decree,  it  was  held  that  it  was  the  duty  of  the  court  to 
dismiss  the  application  when  it  found  that  it  was  informal, 
and  thus  allow  the  applicant  an  opportunity  of  putting 
in  a  proper  application,  and  that  the  decree-holders  should  Application 
not  he  made  to  suffer  for  such  omission  on  the  part  of  the  veare  after  first 
court,  and  that  the  informal  application  could  not  be  treat-  cation  which 
ed  as  a  nullity  and  that  the  application  presented  three  he  amended,  but 
years  after  the  date  of  the  decree  was  in  continuation  of  of  was  treated 
the  informal  one,  and  thus  consequently  the  decree  was  continuation  of 
not  barred.     Fuzloor  Ruhman  v.  Altaf  Hossein.M 

In  Appaya  v.  The  Collector  of  Vizagapatam,  <2)  which  Government  is 
was  an  application  made  by  the  Collector    af  ter  three  exemption  from 
years  from  the  date  of  the  decree  to  l-ecover  stamp  duty  (Sep.  mi.) 
due  to  Government  in  a  pauper  suit,  it  was  held  that 
the  Government  is  not  entitled  to  any  exemption  from  the 
provision  of  the  Limitation  Act  relating  to  applications. 

(V)     In  Behari  Lai  v.  Salik  Ram/3)  the  decree-holder  Limitation 
applied  in  March,  1875,  for  issue  of  a  notice  to  the  debtor  thedate of  issue 
under  section  216  of  Act  VIII  of  1859,  without  stating,  as  debtor  under 
required  by  section  212,  the  mode  in  which  the  assistance   Act  xi  of  i87i, 
of  the  court  was  required.     In  March,  1875,  notice  was  of  applying  un- 
issued, and  in  April,  1875,  the  case  was  struck  off  the  file  of  Act  vm  of 
for  default.     In  April,  1877,  decree-holder  again  applied  praying  for 
for  execution.    It  was  held  that  the  application  of  March,   (June  1878.) 
1875,  was  one  to  enforce  or  keep  in  force  the  decree  for 
the  purpose  of  Article  167  of  Act  IX  of  1871,  and  that 
limitation  should  be  computed  from  the  date  that  notice 
to  the  judgment-debtor  was  issued. 

(W)     In  Chunder  Coomar  Roy  v.  Bhogobutty  Prosonno         c.  h. 
Roy,<4>  it  was  held  that  "  applications  to  enforce  a  decree"   rant  or  attach- 

ment  or  other 

(1)  !  L.  E.,  10  Calc,  641.      f         (8)  1.  L.  R.,  1  All.,  675.  SCS&rt 

(2)  I.  L.  R.,  4  Mad.,  155.       |  (4)  I.  L.  R,  3  Cale.,  235.       »» lnclaental 


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656      THB  SKCOND  8CHBDULK,  THIRD  D1VI8ION — APPLICATIONS.  [ABT.  179 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Three  years. 

kind  did  not     in  para.  4  of  Article  167  of  Act  IX  of  1871,  mean  applica- 
fng  point  under  tion  under  section  212  or  otherwise  by  which  proceedings 
(Sep.  1877.)    *     in  execution  are  commenced,  and  not  applications  of  an 
incidental   kind  made    during  the    pendency  of    such 
proceedings,  and  that  the  issuing  of  an  attachment  was  an 
incidental  proceeding.     Although  an  application  for  war- 
rant of  attachment  is  an  application  to  enforce  a  decree 
in  the  course  of  proceedings  during  execution,  it  is  not 
the  initiatory  application  under  section  212.     Following 
the  above  decision,  the  Madras  High  Court  in  Prabha- 
m.  h.         cararow  v.  Potannah/1)  held  that  the  issuing  of  a  warrant 
u  y  during  execution  was  not  application  to  enforce  or  keep 

the  decree  in  force. 
B.  h.  held  Arti-       (x)     In  Jamnadas  and  others  v.  Lolitaram  and  others/3) 

clel67,  clause*         v~'  ...... 

of  Act  ix  of     an  order  for  attachment  of  a  pension  in  satisfaction  of  a 

1871  is  wide  * 

enough  to  in-      decree  obtained  on  the  10th  December,  1863,  was  made  on 

elude  any  appli- 
cation toenforoe  the  16th  April,  1869.     After  the  passing  of  the  Pensions 
or  keep  in  force 

decrees  or  Act  (XXIII  of  1871,)  the  Deputy  Collector  refused  to 
(August  1877.)  continue  paying  the  pension  to  the  decree-holder,  and 
returned  to  the  court  the  warrant  of  execution  issued 
under  the  order  of  16th  April,  1869,  and  an  order  finally 
disposing  of  the  application  for  attachment  was  made  on 
the  14th  June,  1872.  On  the  19th  June,  187%  the  decree- 
holder  presented  a  fresh  application,  praying  that  the 
attachment  of  the  pension  might  be  continued,  and  a 
letter  be  written  to  the  Collector  directing  him  to  con- 
tinue to  pay  the  pension  to  the  decree-holder,  as  directed 
by  the  order  of  16th  April,  1869.  It  was  held,  that  such 
last-mentioned  application  came  within  clause  4  of  Arti- 
cle 167  of  schedule  2  to  Act  IX  of  1871,  and  that,  conse- 
quently, an  application  on  24th  July,  1874,  for  execution 
of  the  decree  of  10th  December,  1863,  was  not  barred, 
and  that  the  decree  might  properly  be  enforced  against 
property  of  the  defendant  mentioned  in  the  application 
(1)  I.  L.  R.,  2  Mad.,  1.  |        (2)  I.  L.  R.,  2  Bom.,  294. 


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ART.  179]    THE  8ECOND  SCHEDULE,  THIRD  D1V18ION — APPLICATIONS.      657 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Three  years. 

of  1874,  other  than  the  property  mentioned  in  the  appli- 
cations of  1869  and  1872.  It  is  observed  that  the  "appli- 
cation" spoken  of  in  Article  167,  clause  4  of  schedule  2 
to  Act  IX  of  1871,  is  not  merely  such  an  application  as 
is  contemplated  by  section  212  of  Act  VIII  of  1859,  but 
includes  an  application  to  keep  in  force  a  decree  or  order, 
and  that  the  language  of  Article  167,  clause  4  of  schedule 
2  to  Act  IX  of  1871  is  wide  enough  to  include  any 
application  to  enforce  or  keep  in  force  a  decree  or  order, 
and  consequently  an  application  to  enforce  a  decree  by 
the  attachment  of  a  portion  of  the  property  of  the  defen- 
dant will  keep  the  decree  alive  against  the  residue  of  his 
property  or  his  person. 

(y)     In  Govind  Shanbhog  v.  Appatya,*1)  decree-holder   Creditor^ heirs' 
in  July,  1870,   applied  for  execution  of    his  decree   of  substitution  of 
November,  1867.     After  his  death,   his  son,  in  March,   for  recovery  of 
1871,  by  a  petition,  prayed  for  a  substitution  of  his  name  within  Article 
and   for  the  recovery  of   the   decree  amount.     He,   in  i87i. 
January,   1874,  and  several  times  subsequently,  applied 
for  execution  and  his  last  application  was  in  1878.     The 
Lower  Courts  rejected  the  case  on  the  ground  that  the 
application  of  March,  1871,  was  not  one  to  enforce,   or 
keep  in  force  the  decree.     It  was  held  that  that  applica- 
tion fell  within  Article  167  of  Act  IX  of  1871. 

(z)  Owing  to  an  error  in  Procedure,  a  decree  was  Execution  pro- 
passed  in  the  name  of  a  person  described  as  the  agent  of  application  by 
the  firm  of  A.     The  second  and  subsequent  applications  than  the  one  in 

,  _  ,  the  decree  not 

for  execution  were  made  by  an  agent  who  succeeded  the  invalid. 

agent  named  in  the  decree.  Certain  persons  alleging 
that  they  were  the  proprietors  of  the  firm,  applied  for 
the  execution  of  the  decree,  and  the  application  was  refus- 
ed on  the  ground  that  proceedings  in  execution  taken  by 
the  agents  not  named  in  the  decree  were  invalid  and 
that  the  execution  of  the  decree  was  therefore  barred  by 
(1)  I.  L.  R.,  5  Bom.,  246. 

83 

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658     THE  SECOND  SCHEDULE,  THIRD  DIVI810N — APPLICATIONS.   [AKT.   1  79 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Insufficiently 
•tamped  appli- 
cation   keeps 
decree  alive. 


Application 
returned    for 
amendment  but 
rejected  for 
absence  keeps 
decree  alive. 


Application  by 
one  of  two  joint 
decree-holders 
for  part  execu- 
tion will   not 
keep  decree  in 
force. 
(13th  July  1881.) 


A  decree  passed 
Jointly  in  favor 
of  several  per- 
sons can  only 
be  legally  exe- 
cuted as  a  whole 
for  the  benefit 
of  all  and  not 
partially  to  the 
extent  of  the 
interest  of  each 
decree-holder. 


Three  years. 

limitation.     It  was  held  that  such  proceedings,  however 
irregular,  were  not  invalid.  Lachman  Bibi  v.  PatniRam.W 

(2-a)  In  Ramasami  v.  Sesha(*>  the  holder  of  a  decree 
dated  December,  1877,  applied  in  December,  1880,  by 
an  insufficiently  stamped  application,  for  execution,  and 
then  made  his  second  application  in  March,  1882.  The 
Lower  Appellate  Court  rejected  the  application  as  barred 
on  the  ground  that  an  insufficiently  stamped  application 
could  not  be  taken  as  one  made  according  to  law.  It  was 
held  that  such  an  application  may  suffice  to  keep  the 
decree  alive  under  this  Article. 

(2-b)  In  Ramanadan  v.  Pariatambi,*8)  decree-holder's 
third  application  dated  31st  October,  1879,  was,  on 
the  7th  November,  1879,  ordered  to  be  returned  for 
amendment,  allowing  three  days  for  the  purpose.  As  the 
decree- holder  did  not  appear,  the  petition  was  rejected  in 
December,  1879.  In  July,  1882,  another  application  was 
put  in  for  execution.  It  was  held  that  the  application 
was  sufficient  to  keep  the  decree  alive  under  clause  4  of 
this  Article. 

(2-0)  On  the  14th  of  April,  1873,  A  and  B  obtained 
against  C  and  D  a  joint  decree  for  money.  Execu- 
tion was  taken  out  in  1877,  and  limitation  began  to  run 
from  the  3rd  May,  1877.  On  the  27th  of  April,  1880,  the 
Collector,  who  represented  A%  applied  for  execution  of  a 
moiety,  and  on  the  30th  of  April,  1880,  B  applied  for 
execution  of  the  other  moiety.  On  the  30th  of  July,  1880, 
the  Collector  prayed  for  amendment  of  his  application  of 
the  27th  of  April,  1880,  and  for  sale  of  the  attached 
property  in  execution  of  the  whole  decree.  It  was  held 
that  such  applications  not  being  made  in  accordance 
with  law  would  not  keep  the  decree  in  force,  and  that  the 
illegality  could  not  be  cured  by  a  subsequent  amended 

(1)  I.  L.  R.,  1  AIL,  510.  |        (2)  I.  L.  B  ,  6  Mad.,  181. 

(3)  I.  L.  R.,  6  Mad.,  251. 


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ART.  179]   THIS  8fcC0ND  8CHKD0LB,  THIRD  DIVISION — APPLICATIONS.      659 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Three  years. 

application  after  the  time  had  expired.     The  Collector 
of  Shah jahan pur  v.  Surjan  Singh.*1) 

(2-d)  In  Nan  da  Rai  v.  Raghunandan  Singh/8)  decree 
jointly  obtained  by  two  persona  was  sold  to  three  others, 
who,  in  November,  1873,  applied  for  execution.  In 
February,  1874,  the  rights  of  two  of  them  in  the  decree 
were  sold  in  execution  of  a  decree  against  them  and 
were  purchased  by  two  persons  who  made  applications 
for  execution  in  1875, 1877  and  1880.  They  again  on  the 
2nd  January,  1883,  applied  for  execution.  It  was  held, 
following  Mungul  Persbad  Dichit  v.  Grija  Kant  Lahiri,  <*) 
that  the  judgment-debtor  cannot  now  object  to  the 
execution  of  the  decree  as  their  previous  applications, 
which  were  not  objected  to  at  the  time,  must  be  held  to 
be  good  for  the  purpose  of  keeping  the  decree  alive. 

(2-6)  In  P.  P.  Kuthath  Haji,  v.  P.  P.  Bavotti  Haji,W 
defendant  applied  for  refund  of  the  money  recovered  by 
Bavotti  Haji  in  execution  of  a  joint-decree  obtained  by 
him  and  three  others.  Money  was  recovered  in  April 
and  July,  1878,  by  a  process.  On  the  4th  February,  1878, 
when  three  years  had  elapsed  since  the  last  application 
to  execute  the  whole  decree,  the  Sub-Judge  directed 
the  refund  applied  for,  on  the  ground  that  the  inter- 
mediate application  made  by  Bavotti  alone  for  partial 
execution  had  not  the  effect  of  keeping  the  decree  alive. 
The  District  Judge  reversed  the  Sub-Judge's  order.  The 
High  Court  observed  that  where  "  one  of  several  decree- 
holders  has  applied  for  the  execution  of  the  decree  in 
respect  of  so  much  of  the  relief  granted  to  all  as  he 
considers  appertains  to  him  individually,  we  are  not 
prepared  to  say  that  such  an  application  would  not  keep 
alive  the  right  to  execute  the  decree."  Such  an  appli- 
cation, even  if  it  was  refused  on  the  ground  that  it  is  not 


A.    H.    held 
application    by 
two   of   three 
decree-holders 
for  part  execu- 
tion  kept   the 
decree  alive. 
(18th  July  1881.) 


M.  H.  held  ap- 
plication by  one 
of  four  decree- 
holders  for  exe- 
cution of  80 
much  as  he  feels 
himself  entitled 
to,  kept  the  de- 
cree alive. 
(October  1880.) 


(1)  I.  L.  R.,  4  AIL,  72. 

(2)  I.  L.  R.,  7  AH.,  282 


(3)  I.  L.  R.,  8  Oalc,  61. 

(4)  I.  L.  R.,  3  Mad.,  79. 


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660      THE  SECOND  SCHKDULE,  THIRD  D1V1810N APPLICATIONS.     [ART.  179 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


C.  H. 
One  of  three 
parties  to  a  par- 
tition decree 
taking  oat  exe- 
cution fall*  un- 
der clause  3, 
exception  1. 
(34th  Jan.  1883.) 


Moving  court  to 
order  the  Collec- 
tor to  alter  re* 
gistry  as  per 
decree  could 
not  keep  decree 
in  force. 
(July  1881.) 


Application  for 
return  of  the 
decree  to  the 
court  that  sent 
it  for  execution 


Three  years. 

warranted  by  the  terms  of  the  decree,  would  nevertheless 
be  an  application  according  to  law  and  wonld  keep  in 
force  the  decree. 

(2-f)  A  oonsent  decree  for  partition  made  between 
three  parties  contaiued  a  provision  that  if  the  plaintiffs 
should  not  have  the  property  partitioned  within  two 
months  from  the  date  thereof,  any*  one  of  the  other  parties 
to  the  suit  might  obtain  partition  by  executing  the  decree. 
One  of  the  parties  sued  oat  execution  and  obtained  parti- 
tion and  possession  of  his  own  share.  More  than  three 
years  after  the  decree,  bat  less  than  three  years  from  the 
date  of  the  application  just  mentioned,  another  of  the 
parties  applied  for  partition  under  the  decree.  It  was 
held  that  the  application  was  not  barred  by  limitation 
under  clause  3,  exception  1  of  this  Article.  Mohun 
Chunder  Kurmokar  t;.  Mohesh  Chunder  Kurmokar.*1* 

(2-g)  In  Muhammad  Umar  t>.  Kami  la  Bibi,W  the 
holder  of  a  decree  which  directed  that  he  should  be 
maintained  in  possession  of  a  share  of  a  village  by  canoel- 
ment  of  the  order  of  the  settlement  officer  directing  the 
entry  of  the  judgment-debtor's*  name  in  the  Revenue 
Registers  in  respect  of  such  share,  applied  for  execution 
of  such  decree,  improperly  asking  the  court  executing 
the  decree  to  order  the  Collector  to  amend  such  entry 
by  the  substitution  of  their  names  for  that  of  the  judg- 
ment-debtor in  respect  of  such  share,  instead  of  asking 
it  to  send  to  such  officer  a  copy  of  such  decree  for  his  infor- 
mation with  a  view  to  such  amendment.  It  was  held 
that  the  application  not  being  one  in  accordance  with  law 
within  the  meaning  of  this  Article,  was  not  one  which 
would  keep  the  decree  in  force. 

(2-h.)  In  Kiishnayyar  v.  Venkay  Iyer,<3)  it  was  held 
that  where  a  decree  has  been  transferred  by  the  court 

(1)  I.  L.  R.,  9  Gala,  568.       |  (2)  I.  L.  R.,  4  All.,  34. 

(3)  I.  L.  R.,  6  Mad.,  81. 


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AKT.  179]    THE  SECOND  SCHEDULE,  THIRD  DIVISION — APPLICATIONS.       661 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Three  years.  | 

which  passed  it  to  another  court  for  execution,  an  appli-    is  within  this 
cation  to  the  latter  court  to  return  the  decree  to  the  court    (Nov.  1883.) 
which  passed  it  for  further  execution  is  within  the  mean- 
ing of  clause  4  of  this  Article. 

(2-i)     In   Hurry  Charn  Bose  v.  Suhaydar  Sheikh/1)   An  application 
decree  for  arrears  of   rent  was  dated  14th  June,  1881 ;  on  in  strict  accord- 
the  14th  June,  1884,  the  decree-holder  applied  for  execu-   Son*  2*7  of 
tion,  stating  at  the  foot  of  the  application  that  the  records  be  an  appiica- 
of  the  former  executiou  petition  be  placed  with  his  appli-   235. 
cation  and  that  the  immoveable  property  stated  in  that  y 

record  may  be  attached  and  sold.  On  the  12th  July, 
1884,  the  District  Munaif,  registering  the  application, 
ordered  the  applicant  to  file  a  list  of  property  before  26th 
July,  and  time  was  extended  to  the  12th  August.  On 
the  9th  the  list  was  filed,  and  on  the  16th  the  defendant 
pleaded  that  the  decree  was  barred ;  the  District  Munsif 
allowed  the  objection.  The  District  Judge  being  of 
opinion  that  the  Lower  Court  had  no  power  to  allow 
amendment  of  a  radically  imperfect  application  unless 
such  amendment  was  made  within  the  statutory  period. 
Following  the  decision  in  Syud  Mahomad  v.  Syud 
Dhedullah/2)  which  is  an  authority  for  the  proposition 
that  the  court  has  power  to  allow  an  amendment  under 
section  245,  C.  P.  0.,  although  it  may  be  that  at  the  time 
when  the  amendment  is  allowed  the  decree  is  barred  by 

limitation,  the  High  Court  held  that  though  the  appli-   In  the  case  of 

i.  •       4.   •  x  jj  -xi    xi.  •   •  *    application 

cation  was  not  in  strict  accordance  with  the  provisions  of  praying  for  at- 

section  237  of  the  C.  P.  C,  it  was  still  an  application  property  named 

under  section  235,  and  that  execution  of  the  decree  was  one  held  exe- 

not  barred,  but  that  it  must  be  limited  -to  the  property  limited  to  that 

specified  in  the  previous  application.  J# 

(2-j)     In   Thakur    Das   v.   Shadilal,<3)    decree   dated  Judgment  pro- 

hibiting  execu- 

8th  December,  1881,  based  on  a  simple  mortgage  deed,  tion  tm  the  ex. 

piry  of  four 

(1)  I.  L.  B.,  12  Calc,  161.      |  (2)  12,  0.  L.  R.,  279.  veraedV t£T 

(3)  I.  L.  E.,  8  All.,  56. 


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662      THK  8B0OND  8CHBDULB,  THIED  DIVISION — APPLICATIONS.   [ABT.  179 


Description  of  application. 


limitation  of 
Article  178. 
(Dec.  1886.) 


Plaintiff's  ap- 
plication of 
February,  1885, 
for  refund  of 
purchase 
money  paid  into 
Lower  Court 
owing  to  inabi- 
lity to  pay 
excess  decreed 
by  Appellate 
Court  In  July, 
1881,  was  held 
to  be  revival  of 
his  application 
of  May,  1888, 
and  governed 
by  this  Article. 
(July  1886.) 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Three  years. 

provided  that  "  if  the  judgment-debt  is  not  paid  within 
four  months,  the  decree-holder  shall  have  the  power  to 
recover  it  by  sale  of  the  mortgaged  property."  The  decree- 
bolder  applied  for  execution  on  the  17th  February,  1885. 
The  Lower  Appellate  Court  was  also  of  opinion  that  the 
decree  was  barred  as  the  decree-holder  who  could  have 
executed  the  decree  personally  against  the  debtor  within 
three  years  from  the  date  of  the  judgment  had  not 
done  so.  It  was  held  that  the  limitation  of  Article  178 
and  not  Article  179  should  be  applied  to  the  case,  and 
that  the  application  for  execution  having  been  made 
within  three  years  from  the  8th  April,  1882,  when  the 
right  to  ask  for  execution  accrued,  was  not  barred  by 
limitation. 

(2-k)  A  decree  for  pre-emption  was  passed  condi- 
tionally upon  payment  by  the  decree-holder  of  Rs.  1,139, 
and  in  July,  1880,  the  plaintiff  paid  this  amount  into 
court  and  it  was  drawn  by  the  defendant  in  August, 
1881.  Meanwhile,  in  July,  1881,  the  High  Court,  in 
Second  Appeal,  raised  the  amount  to  be  paid  by  the  plain- 
tiff to  Us.  2,400,  but  the  plaintiff  having  allowed  the 
time  limited  for  payment  of  the  excess  to  elapse  without 
paying  it,  the  decree  for  pre-emption  became  dead. 
In  May,  1883,  the  plaintiff  applied  in  the  Execution 
Department  for  the  refund  of  the  deposit  which  had  been 
drawn  and  retained  by  the  defendant.  This  application 
was  granted  and  the  defendant  ordered  to  refund,  and 
this  order  was  confirmed  on  appeal  in  January,  1 885,  and 
by  the  Hight  Court  in  Second  Appeal  in  May,  1885. 
Meanwhile  the  First  Court  had  suspended  execution  of  the 
order  pending  the  result  of  the  appeal,  and  in  December, 
1884,  removed  the  application  temporarily  from  the  pend- 
ing list.  In  February,  1885,  the  plaintiff  applied  for 
restitution  of  the  amount  deposited,  asking  for  attachment 
and  sale  of  property  belonging  to  the  defendant.     This 


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ART.179]    THE  81COND  8CHBDULE,  THIRD  DIVISION — APPLICATIONS.      663 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Three  years, 
application  was  dismissed  as  barred  by  limitation.  It 
was  held  that  this  application  was  only  a  revival  of  the 
application  of  May,  1883,  which  was  within  time.  It  was 
farther  held  that  the  plaintiff  was,  in  the  sense  of  section 
583  of  the  Civil  Procedure  Code,  a  party  entitled  to  a 
benefit  by  way  of  restitution  under  the  decree  of  the 
High  Court  of  July,  1881 ;  that  it  was  a  necessary 
incident  of  the  decree  that  he  was  entitled  to  restitution 
of  the  sum  which  he  had  paid  as  the  sufficient  price  under 
the  decree  of  the  Lower  Appellate  Court ;  that  he  was 
competent  under  section  583  to  move  the  Local  Court  to 
execute  the  appellate  decree  in  this  respect  in  his  favour 
according  to  the  rules  prescribed  for  the  execution  of 
decrees  in  suits ;  that  he  did  this  in  May,  1883,  by  an 
application  made  according  to, law  in  the  proper  court  in 
the  sense  of  Article  179  of  the  Limitation  Act,  and  that 
his  present  application  to  the  same  effect  being  within 
three  years  from  that  application  was  within  time.  Nund 
Ram  v.  Sita  Bam/1) 

(2-1)     In    Wazir  Mahton    v.   Lulit   Singh, <S)    Lower  "Appellate 


Court's  decree  was  passed  on  the  19th  December,  1877,  in  court  to  which 
accordance  with  an  award.     The  defendant's  1st  and  2nd  ferred  though  it 
appeal  was  rejected  on  the  ground   that  there  was  no  would  lie. 
appeal.    The  second  appeal  decree  was  dated  March,  1881. 
In  June,  1881,  plaintiff  applied  for  execution  ;  it  was  held 
that  the  Statute  ran  from  the  date  that  the  appeal  was 
disposed  of. 

(2-m)     In  Narsingh  Das  v.  Narain  Das/8)  Privy  Coun-  a.  H.beid"Ap^ 

peal"  and  "  Ap«- 

cil  by  an  order  dated  12th   August,  1876,  affirmed  the  peiiate  Oourt,r 
High  Court's  decree  dated   18th   August,  1871,  and  the  piano  HoH1^ 
decree-holder  applied  for  execution  on  the   15th   July, 
1879 ;  the  District  Judge  was  of  opinion  that  Her  Majesty 
in  Council  was  not  intended  to  fall  under  "Appellate 

(1)  I.  L.  R.,  8  AU.,  573.         |         (2)  I.  L.  IL,  9  Calo.,  100. 
(3)  I.  L.  B.,  2  AU.,  763. 


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664     THB  SECOND  8CHKDULK,  THIRD  DIVISION — APPLICATIONS.    [ART.   179 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


C.  H. 


"  Appeal"  in- 
cludes an  ap- 
peal from  a 
decree  passed 
on  a  review  of 

iudgraent  and 
b  not  limited 
to  an  appeal 
from  the  origi- 
nal decree. 


A.  H. 
Application  to 
amend  decree 
being  substan- 
tially one  for 
review,  period 


Three  years. 

Court  in  this  Article.  It  was  held  that  "  Appeal"  and 
"  Appellate  Court"  are  intended  to  include  appeals  to  Her 
Majesty  in  Council,  and  that  if  "  Appeals"  were  l-estricted 
to  the  appeals  presented  to  the  Appellate  Courts  in  India, 
a  party  appealing  to  Her  Majesty  in  Council  would  be 
in  a  worse  position  as  to  limitation  than  a  party  appealing 
to  a  Court  in  India.  In  Gopal  Sahu  Deo  v.  Joyram 
Tewary,W  it  was  held  that  even  though  the  provisions 
of  the  additional  Articles  177  and  180  in  the  Limitation 
Act  of  1877  were  not  in  the  Act  of  1871,  the  term 
"  Appeal"  in  the  column  of  the  Limitation  Act  of  1871 
includes  an  Appeal  to  the  Privy  Council,  and  the  term 
"Appellate  Court"  includes  the  Judicial  Committee  of 
the  Privy  Council. 

(2-n)  In  Narsingh  Sewak  Singh  v.  Madho  Das*2*  A 
sued  B  and  0,  as  mother  and  guardian  of  D,  for  money. 
On  23rd  August,  1873,  the  court  passed  a  deci-ee  against 
D  only.  On  the  3rd  November,  1875,  the  heirs  of  A 
applied  for  review  as  regards  the  claim  against  the  minor. 
The  application  was  granted  and  the  decree  was  given 
against  the  heirs  of  B,  who  had  died,  and  against  the  minor 
on  the  29th  November,  1876.  On  the  28th  March,  1877, 
A*8  heirs  appealed  to  the  High  Court,  which,  dismissing 
the  appeal,  set  aside  the  decree  passed  on  review  on  the 
29th  November,  1876.  On  the  17th  May,  1880,  the  decree- 
holder  applied  for  execution  of  the  decree  dated  23rd 
August,  1873.  It  was  held  that  the  words  "  where  there 
has  been  an  appeal,"  include  an  appeal  preferred  from  a 
decree  passed  on  a  review  of  judgment,  and  that  the  appeal 
contemplated  is  an  appeal  in  the  suit  and  not  necessarily 
an  appeal  from  the  original  decree  in  the  suit. 

(2-0)  In  Kishen  Sahai  v.  The  Collector  of  Allaha- 
bad/8) decree  dated  July,  1864,  against  all  defendants  was 

(1)  I.  L.  E.,  7  Calc,  620.       |  (2)  I.  L.  E.,  4  All.,  274. 

(3)  I.  L.  E.,  4  AIL,  137. 


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ART.  179]    THK  8JCC0ND  SCHKDULK,  THIBD  DIVISION — APPLICATIONS.     665 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Three  years. 

upset  in  March,  1865,  on  appeal  by  all  the  defendants  for  execution 
except  one  B.  The  Privy  Council  in  March,  1869,  restored  amendment, 
the  original  decree  on  appeal,  in  which  B  was  not  made  a 
respondent.  Plaintiff,  in  October,  1869,  applied  for  execu- 
tion, which  continued  up  to  July,  1872.  In  October,  1874, 
plaintiff  applied  for  amendment,  which  was  made  in 
August,  1876.  B  was  a  party  to  the  proceedings.  Plain- 
tiff subsequently  applied  for  execution  against  all  the 
defendants.  It  was  held  that  the  decree  was  enforcible 
against  B  also,  and  that  the  application  to  amend  the 
decree  being  substantially  one  for  review  of  judgment, 
gave,  under  Article  167  of  Act  IX  of  1871,  a  period  from 
which  limitation  would  run  in  respect  of  the  subsequent 
application  for  execution. 

(2-p)     In  Kristo  Coomar  Nag  v.  Mahabat  Khan,*1*  o.  h. 

.     -  _  •  Judgment-ore- 

judgment-debtor's  opposition  on  the  ground  of  limitation  dUor**  opposi- 
to  the  enforcement  of  the  decree  was  overruled  in  January,  debtor's  appeal 

_    .  against  court's 

1876.    Against  that  order  the  debtor  appealed,  and  on  the  order  in  execn- 

rr  tion.  is  not  an 

creditor  opposing  the  appeal  at  the  hearing,  the  appeal  application  to 

was  dismissed  in  October,  1877.     The  creditor  allowing  of  execution. 
,  .  Cob.  1880.) 

the  execution  proceeding  to  drop,  made  a  second  applica- 
tion for  execution  in  March,  1879.     It  was  held  that  the 
application  was  barred  inasmuch  as  the  creditor's  opposi- 
tion to  debtor's  appeal  does  not  constitute  an  application 
to  the  proper  court  for  execution  to  take  some  steps  in  aid 
of  execution.     The  appeal  of  the  debtor  does  not  operate  The  anneal  of 
as  a  stay  of  execution,  for  the  law  expressly  provides  not  operate  as  a 
against  stay  of  execution  by  reason  only  of  an  appeal  tion. 
having  been  preferred.     Section  545  of  Act  X  of  1877. 

(2-q)     In  Sheo  Prasad  v.  Anrudh  Singh,<2>  plaintiff  u     a.  h. 

obtained  a  decree  for  money  ex  parte  against  defendant  not  include  an 

anneal  ■  wm*  an 
on  the  2nd  December,  1874.     The  defendant  applied  for  order  rejecting 

its  cancellation  under  section  119  of  Act  VIII  of  1859.  set  aside  apart* 

The  application  was  rejected,  and  on  appeal  the  order  (April  1879.) 

(1)  I.  L.  R.,  5  Calc,  595.      |         (2)  I.  L.  B.,  2  AIL,  274 

84 


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666     THl  8IC0ND  flCHIDULl,  THIBD  DIVreiOK— APPLTCATIOirS.    [ART.  179 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Three  years. 

was  confirmed  on  the  17th  April,  1875.    On  the  12th 
April,  1878,  the  decree- holder  applied  for  execution.     It 
was  held  that  the  words  "  where  there  has  been  an  appeal" 
in  clause  2,  Article  169  of  Act  IX  of  1871,  do  not  include 
an  appeal  from  an  order  dismissing  an  application  to  set 
aside  an  em  part*  decree  under  section  119  of  Act  VIII 
of  1859. 
o.  h.  held  that        (2-r)     In  Latful  Huq  *.  Sunibhudin  Pattnck,^)  plain* 
thTdispoear<rf    tiff,  on  the  31st  May,  1876,  applied  for  execution  of  an 
£a?a^*ap*  em  parte  decree  dated  7th  February,  1876.    The  defen- 
to^aekfo!?    dant's  application  to  set  aside  the  decree  was  rejected  on 
fSec.  iwlT       the  15th  November,  1876,  and  his  appeal  was  rejected  on 
the  19th  Deoember,  1877.     The  decree-holder's  execution 
petition  was  struck  off  on  the  21st  February,  1877.   Next 
application  for  execution  was  made  on  the  10th  Decem- 
ber, 1880,  which  the  court  held  was  not  barred,  the  decree 
not  being  final  until  the  order  dismissing  the  appeal  on 
the  19th  December,  1877.     In  this  case,  at  the  instance 
of  the  defendant,  execution  was  suspended  on  the  15th 
November,  1876,  and  this  was  continued  until  the  disposal 
of  the  appeal  on  the  19th  Deoember,  1877.    It  was  held 
that  the  plaintiff  was  not  entitled  to  any  deduction  of 
the  time  during  which  execution  was  stayed  by  injunction, 
and  that  such  is  the  present  state  of  the  law. 
m.  h.  (2-8)     In  Venkatarayalu    v.  Narasimha/*)    plaintiff 

SJ^dtaSdmaTS  obtained  a  decree  against  defendant  on  the  24th  Novem- 
peaUhS^1**  *er,  1875,  and  on  the  Hth  October,  1876,  he  got  execution 
p!rtiai&h«e.     and  sold  some  lands  of  the  defendant.     On  9th  February, 
amEai!81"*       ^877,  he  appKed  to  the  court  for  payment  thereout  of 
(Nov.  2880.)        monies  lodged  by  the  purchaser  and  got  on  that  day  the 
money.     In  the  meantime  an  appeal  was  presented  by 
the  defendant  and  dismissed  on  the  28th  March,  1877. 
The   present  application  for  execution  was  made  on  the 
7th  February,  1880.     It  was  held  that  clause  2  of  this 
(1)  I.  L.  K.,  8  Calc,  248.     |      (8)  I.  L.  &„  %  Mad*  174. 


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abet.  179]  ma  second  sohidulh,  third  division— applications.    667 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Three  years. 

Article,  which  fixes  the  date  of  the  order  of  the  Appellate 
Court,  when  there  is  an  appeal,  as  the  point  from  which 
the  three  years  is  to  count,  applied,  and  that  the  plaintiff 
was  therefore  in  time,  and  that  when  there  is  no  appeal, 
the  date  of  the  decree  or  of  application  is  the  point  from 
which  limitation  counts,  but  not  when  there  is  an  appeal. 

(2-t)     la  Imam  Ali  v.  Dasaundhi  Ram/1)  the  District         a.  h. 
Judge,  on  the  23rd  February,  1873,  affirming  the  decree  for  second  appeal 
possession  of  land  remanded  the  case  to  the  Lower  Court  to  fo?1pos8esBionu 
determine  mesne  profits  due  on  the  23rd  May,  1873 ;  an  the  same  suit 
appeal  was  preferred  to  the  High  Court,  which,  in  March,  had  %een  re- 
1874,  modified  the  decree  for  possession.     In  the  mean-  held  as  ftnai 
time  the  Lower  Court  decreed  mesne  profits  on  the  25th  turn  of  the  de- 
April,  1873,  and  the  District  Judge  confirmed  it  on  the  7th   (Nov.  1877.) 
June,  1873,  before  the  second  appeal  was  disposed  of.     In 
the  application  for  execution  of  the  decree  dated  7th  June,         o.  h. 
1873,  for  mesne  profits,  it  was  held  that  limitation  began  heidThatfirst80 
to  run  not  from  the  date  of  the  District  Judge's  appeal  session  an?08" 
decree  for  profits,  but  from  the  date,  of  the  High  Court's  was'mereiy48 
decree,  as  there  cannot  be  several  final  decrees  of  an  Ap-  andappKcaSin 
pellate  Court  in  one  and  the  same  case  giving  separate  ment^^Mne 
periods  of  limitation  for  separate  portions  of  a  claim  in  Spp^caTioV^or 
one  and  the  same  suit.     (See  Note  O,  under  Article  178,  flnal  decree* 
p.  640-641.) 

(2-U)     In   Sangram   Singh  v.  Bujharat    6ingh,<*>   a         a.  h. 
decree  was  passed  on  the  11th  July,  1877,  against  two  u^a^ainrt^ne 
<Lefendants,  of  whom  one  only  appealed  :  such  appeal  not  Santo0 who  has 
proceeding  on  a  ground  common  to  him  and  the  other,  the  not  ^p6*1^ 
decree  was  affirmed  on  the  20th  November,  1877.     On  the  cree  date. 
23rd  September,  1880,  the  decree-holder  applied  for  execu- 
tion against  the  defendant  who  had  not  appealed.     It  was 
held  that  the  decree  as  against  him  was  barred  and  that 
the  time  ran  from  the  date  of  the  original  decree. 

(2-V)     In  Rahgunath  Pershad  v.   Abdul  Hye,<*>  the  o.  H. 

(1)  I.  L.  R.,  1   All.,  608.      |  (2)  I.  L.  E.,  4  All.,  36.  Ae^ee*  d££U- 

(3)  I.  It.  E.,  14  Calc,  26.  ™9  claim  as 


(July  1881.) 


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668     THE  SECOND  SCHEDULE,  THIRD  DIVI8ION — APPLICATIONS.   [ART.  179 


Description  of  application. 


Period   of 
limitation. 


Time  from  which  period 
begins  to  run. 


Three  years. 

against  sureties  court  of  first  instance  passed  a  decree  in  August,  1880,  for 
title  deow£n"     Rs.  15,000,  against  A ,  and  for  Bs.  20,000  against  A  and  B 
late  three  years  jointly,  dismissing  the  suit  as  against  two  other  defendants 
peal  decree  for  who  were  alleged  to  have  been  sureties.     The  plaintiff 
against  princi-  appealed  against  so  much  of  the  decree  as  dismissed  the 
not  jolnedln     suit  against  the  sureties,  not  making  either  A  or  B  party 
*?unei886.)        respondents.     The  appeal  was  dismissed  on  the  1st  May, 
1885.     On  the  27th  April,   1885,   plaintiff  applied  for 
execution  against  A  and  B.     It  was  held  that  the  appli- 
cation was  barred  under  this  Article, 
c.  h.  (2"W)     In  Mullick  Ahmed  Zumma  v.  Mahomed  Syed,<l> 

for  possession     a  decree  was  passed  on  the  14th  April,  1874,  for  possession 
defendant*         and  costs  in  favour  of  A  against  B.  C  and  D  jointly.     This 

Jointly,  reversed  *-©  >  *  j 

on  appeal  by     decree  was   afterwards  reversed  on  appeal   by   B,  who 

one  of  tnem 

and  restored  in  alone  claimed  the  property.     A  then  preferred  a  special 
can  be  executed  appeal  to  the  High  Court,  and  on  the  29th  June,  1877, 

Eof  the  the  decision  of  the  Judge  was  reversed  and  the  decree  of 
the  court  of  first  instance  restored  on  the  30th  December, 
1878.  A  applied  to  the  court  of  first  instance  for  execu- 
tion to  issue  against  0  and  D  for  the  costs  specified  in  the 
decree  passed  on  the  14th  April,  1874 ;  C  and  D  success- 
fully objected  in  the  court  of  first  instance  and  the  Lower 
Appellate  Court  that  more  than  three  years  having 
elapsed  since  the  date  of  the  decree,  the  decree  for  costs 
could  not  be  executed,  and  the  applications  for  execution 
were  barred  by  this  Article.  It  was  held  on  appeal  to  the 
High  Court,  that  inasmuch  as  B'$  appeal  had  related  to 
the  whole  case,  and  the  decree  obtained  by  him  dismiss- 
ing the  suit  would,  if  not  reversed,  have  deprived  A  of 
his  right  to  any  costs  at  all,  A,  upon  succeeding  in  get- 
ting the  original  decree  restored  upon  special  appeal  to  the 
High  Court,  was  entitled  to  execute  such  restored  decree  at 
any  time  within  three  years  of  the  order  of  the  High  Court. 
cianse i  of  this  (2-X)  In  Nur-ul-Hasan  v.  Muhammad  Hasan/2)  a  suit 
ArMe  applies  (1)  I.  L.  R.,  6  Calc,  194.       |        (2)  I.  L.  R.,  8  All.,  573. 


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ABT.  179]    THE  8RCOND  SCHEDULE,  THIRD  DIVISION — APPLICATIONS.     669 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Three  years, 
for  pre-emption   was  decreed  against  the  vendors,  tlie  to  <»»*>  without 

t_  j  i  *  ■  wny  exception 

purchaser*!   and  another  set  of    pre -emptors,    in    March,    to  decrees  from 

1882.  The  last  mentioned  defendants  alone  appealed,  t»wvi  ban  heeu 
and  their  appeal  was  dismissed  in  May,  1882.  In  May,  of  K?p»rtiJ* 
1885f  the  decree- ho  Id  era  applied  for  execution  of  the  (Jul?  lsfrtj 
decree.  The  application  was  objected  to  by  the  purchaser 
as  barred  by  limitation,  having  been  filed  more  than 
three  years  from  the  passing  of  the  decree,  and  it  was 
contended  that  Article  179,  clause  2,  did  not  apply  to  the 
case  inasmuch  as  the  purchaser  did  not  appeal  from  the 
original  decree.  Article  179  must  be  construed  as  in- 
tended to  apply  without  any  exceptions  to  decrees  from 
which  an  appeal  has  been  lodged  by  any  of  the  parties 
to  the  original  proceedings,  and  should  certainly  be 
applied  to  cases  where  the  whole  decree  was  imperilled  by 
the  appeal.  It  was  held  that  Article  179  was  appli- 
cable, and  that  the  application  being  made  within  three 
years  from  the  date  of  the  Appellate  Court* s  decree,  was 
not  barred  by  limitation,  Old  tit-Id,  J.,  observes ;  "  I  observation*  of 
think  the  terms  of  Article  179,  clause  2,  are  so  clear  01darfd,J' 
and  distinct  that  they  scarcely  admit  of  any  such 
distiction  being  drawn,  Under  that  law,  the  period  for 
the  execution  of  a  decree  will  begin  to  run,  where  there 
has  been  an  appeal,  frum  the  date  of  the  final  decree  or 
order  of  the  Appellate  Court-  It  contains  nothing  as  to 
whether  the  appeal  shall  have  been  made  by  all  the 
parties,  or  by  one,  or  how  far  the  Appellate  Court's  order 
may  or  may  not  affect  the  rights  of  parties  who  have  not 
appealed.  It  seems  to  me  to  give  a  plain  and  clear  rule 
that  in  all  cases  where  there  has  been  an  appeal,  the 
date  of  the  final  decision  of  the  Appellate  Court  shall  be 
the  date  from  which  the  time  for  execution  will  begin  to 
run.  In  support  of  the  view  I  am  taking,  that  in  the 
present  case  limitation  should  run  from  the  date  of  the 
Appellate  Court's  decree,  I  may  refer  to  Mullick  Ahmed 


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670    TBI  «KCOND  8CHIDULB,  THIRD  DIVISION— APPilCATlONS.   [a*T.  179 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  rim. 


Though  vendee 
of  a  portion 
alone  appealed 
from  a  decree 
against  him  and 
mortgagor,  time 
ran  from  the 
final  decree 
even  against 
mortgagee. 
(July  1883.) 


A.  H. 

Appellate 
Court's  order 
in  execution 
appeal  direct- 
ing division  by 
lots  treated  as 
an  order  enf  or- 
cible  in  refer- 
rence  to  decree 
for  division. 
(Dec.  1888.) 


Three  years. 

Zumma  v.  Mahomed  Syed,<1)  and  Bam  Lai  v.  Jagan- 
nath.W 

(2-y )  In  Basant  Lall  v.  Naj  munnissa  Bibi,<8>  the  mort- 
gagee of  a  certain  property  sued  the  mortgagor  and  the 
vendee  of  a  part  of  the  mortgaged  property  for  the  reali- 
sation of  a  debt  by  sale;  on  the  24th  September,  1878, 
the  mortgagee  obtained  a  decree  against  the  mortgagor 
and  for  sale  of  property ;  the  vendee  appealed  on  the 
ground  that  the  mortgage  deed  was  not  receivable  in 
evidence  and  the  appeal  was  allowed.  The  mortgagee 
in  the  second  appeal  obtained  a  decree  on  the  15th 
January,  1880,  directing  that  a  part  of  the  mortgage 
money  might  be  recovered  by  the  sale  of  property,  and 
applied  for  execution  on  the  14th  September,  1862.  It 
was  held  that  time  began  to  run  from  the  date  of  the  final 
decree. 

(2-Z)  In  Hulasi  «.  Maiku,(4)  decree  for  partition  was 
dated  19th  January,  1878,  and  plaintiffs  applied  for  execu- 
tion on  the-  2nd  February,  1878.  Partition  was  effected 
and  possession  given  on  the  15th  August,  1878,  and  peti- 
tion struck  off  on  the  13th  September,  1878.  The 
Appellate  Court,  on  the  decree-holder's  appeal,  reversed 
the  Lower  Court's  orders  and  directed  re-division  by  lots 
on  the  18th  September,  1878,  and  the  Lower  Court  struck 
off  the  case  on  the  15th  February,  1879,  as  the  decree* 
holder  failed  to  appear  personally.  On  the  13th  Septem- 
ber, 1881,  decree-holder's  heir  applied  for  re-division  as  per 
Appellate  Court's  order.  The  court  doubting  whether  the 
2nd  clause  of  this  Article  would  apply  since  the  appeal 
there  referred  to  is  probably  an  appeal  from  the  decree 
or  order  of  which  execution  is  being  taken  and  not  an 
appeal  against  an  order  in  the  course  of  execution  of  a 
decree  or  order,  held,  that  however,  the  Appellate  Court's 


(1)  I.  L.  B.,  6  Calc,  194. 

(2)  Weekly  Not**,  1884,  p.  188. 


(8)  I.  L.  R.,  6  All.,  14. 
(4)  LL.B.,6  All.,  286. 


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ART.  179]    THB  8BC0ND  SCHEDULE,  THIRD  DIVISION— APPLICATIONS.    671 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Three  years. 

order  of  the  18th  September,  1878,  being  in  the  nature  of 
a  decree  and  capable  of  execution,  the  application  in 
question  should  be  regarded  as  one  for  the  execution  of 
that  order  and  was  therefore  within  time. 

(3-a)    In  Dianat-ullah  Beg  v.  Wajid  Ali  Shah,^)  decree         a.  h. 
was  obtained  on  the  8th  September,  1880,  and  the  judg-   appeal  memo, 
merit-debtor* s  appeal  to  the  High  Court  was  rejected  on  sufficiently 
the  ground  that  appeal  memo,  had   been   insufficiently   final  decree  or 
stamped;    the  decree-holder  applied    for  execution  of  Appellate 
decree  on  the  8th  January,  1884 ;  it  was  held  that  under  clauses. 
such  circumstances  it  cannot  be  considered  that  there 
was  an  appeal  or  a  final  decree  or  order  on  an  (Appellate 
Court  within  the  meaning  of  this  Article,  clause  2)  appli- 
cation to  the  court  to  take  a  step  in  aid  of  execution  within 
the  meaning  of  this  Article. 

(3-b)     In  Rup  Singh  v.  Mukhraj  Singh,  W  an  appeal  A.  h.  held  that 
from  a  decree  dated  the  8th  July,  1879,  was  rejected  by  order  was  de- 
the  High  Court  on  the  11th  June,  1880,  in  consequence  of  clause  a. 
the  failure  of  the  appellants  to  pay  additional  Court  Fees 
declared  by  the  court  to  be  leviable.     On  the  23rd  Decem- 
ber, 1882,  an  application  was  filed  by  the  decree-holder 
for  execution  of  the  decree ;  it  was  held  that  the  order 
rejecting  the  appeal  was  equivalent  to  a  decree  and  that 
therefore  the  application  made  within  three  years  from 
the  date  of  that  order  was  not  barred  by  limitation.         a.  h. 

.  An  order  reject- 

In   Gulab   Rai   v.   Mangli  LaU3>    it  was  held  that  an  ingamemoran- 

dum  of  appeal 

order  rejecting  a  memorandum  of   appeal  as  barred  by  ae  barred by 

J  °  rr  *     limitation  is  a 

limitation  is  a  "  decree"  within  the  meaning  of  section  2  decree  within 

section  2  of 

of  the  Civil  Procedure  Code,  and  that  it  is  therefore  ap-   c.  p.  Code, 
pealable  and  not  open  to  revision  by  the  High   Court 
under  section  622  of  the  Code. 

(3-C)     In    Radha    Prosad   Singh  v.  Sundur  Lall,(*>    SSSSSJtSo 
plaintiff  applied  for  execution  on  the  28th    September,  £?52  prSSa 

(1)  I.  L.  B.,  6   AIL,  488.       |        (8)  I.  L.  R.,  7  AIL,  42.  of  exetutton?d 

(2)  I.  L.  B.,  7  AIL,  887.       I        (4)  I.  L.  ft.,  9  C«lc,  644.  (March  1889.) 


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672     THB  SKCOND  8CHEDULK,  THIRD  PI VI 8 ION — APPLICATIONS.    [iBT.  179 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Three  years. 

1877,  and  on  the  8th  July,  1878,  deposited  Rs.  2  as  costs 
of  bringing  certain  property  to  sale.  Next  application 
for  execution  was  made  on  the  28th  March,  1881.  It  was 
held  that  the  deposit  of  Rs.  2  was  a  step  in  aid  of  exe- 
cution. 
Vakil's  consent  (3-d)  The  decre -holder's  Vakil's  consent  to  the  jndg- 
saie  is  a  step       ment-debtor's  application  to  postpone  the  sale  of  some  of 

in  aid  of  execu-  r  r  *        * 

tion.  the  lands  attached  in  execution  of  the  decree  is  a  sufficient 

(Sept.  1884.) 

(Aug.  1878).  fresh  application,  and  it  was  not  barred.  Verasami  v. 
Athi.U)  In  Issurree  Dassee  t>.  Abdool  Khalak/2)  the 
nature  of  the  second  application  is  not  stated  in  the 
report ;  the  High  Court  have  held  that  such  an  applica- 
tion was  in  substance  one  to  continue  the  proceedings 
already  instituted  by  the  first  application  and  that  there- 
fore the  right  to  execute  was  not  barred. 
Application  for  (3-6)  Ambica  Pershad  Singh  v.  Surdhari  Lal,<*>  was 
Hon  IsTstep       a  Full  Bench  case,  in  which  it  was  held  that  the  language 

in  aid  of  execn-    q{  ^^  ^  rf  j^^   1?9  of  Acfc  XV>  claa8e  4  of  jj^fefc 

(June  1884.)        16?  rf  the  Aot  rf  lg7^  i8  mope  e^p^^^ive  fam  tnjU 

of  1877,  and  that  an  application  to  a  court  to  issue  the 
proclamation  of  sale  in  respect  of  property  already  at- 
tached in  execution  of  a  decree  is  an  application  to  take 
some  step  in  aid  of  execution. 
Application  for       (3-f)     Iu  HuBain  Bakhsh  v.  A.  D.  Madge, <*>  it  was  held 
decree  to  an-°    that  an  application  under  section  285  of  Act  VIII  of  1859, 
steprin°aid  of*  praying  for  transmission  of  a  copy  of  the  decree  together 
(Dec??877.)        with  a  certificate  of  non-satisfaction  to  another  court  for 
(Dec  1880.)        execution  was  a  necessary  step  towards  the  execution  of 
the  decree.     In   Latchman  Pundeh  v.  Mad  dan  Mohun 
Shye,<*)  such  application  was  held  to  be  a  step  in  aid  of 
execution. 
Giving  with  an       (3-g)     In  Dharanamma  v.  Snbba,<6)  when  a  decree- 
stamps  to  trans,  holder  applied  to  the  court  to  transmit  the  decree  to  another 

mit  decree  is  a 

step  in  aid  of  (1)  I.  L.  R.,  1  Mad.,  597.       I      (4)  I.  L.  K.,  1  All.,  526. 

(Nov.  1888.)  (8)  j   ^  R ^  1Q  CjUo    861        |       (6)  j   ^  ^  7  ^  3^ 

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AST.  179]  THtf  SECOND  SCHBDUL1,  THIRD  DIVISION— APPLICATIONS.     873 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Three  years. 

court  for  execution,  and  on  a  subsequent  date  paid  into 
court  postage  stamps  for  transmission  of  records  with  an 
application  to  take  some  step  in  aid  of  execution ;  such 
application  was  held  sufficient  to  give  a  new  period  of 
limitation.     Veil  ay  a  v.  Jaganatha.t1) 

(3-h)     In  Ghansham  v.  Mukha/2)  application  for  exe-  Judgment  debt- 
cution  was  made  on  the  18th  November.  1876.     On  the  promiBin*  pay- 

.         ment  of  debt  is 

14th  December,  1876,  one  of  the  debtors  put  in  a  petition  a  atep  in  aid  of 

execution, 
that  with  reference  to   an  adjustment  he  paid  decree-  (Nov.  1880.) 

holder  Bs.  10  and  would  pay  the  balance  hereafter.     The 

next  application  for  execution  was  made  on   the   15th 

December,  1879,  and  the  judgment-debtor  pleaded  that 

the  decree  was  barred ;    it  was  held  that  the  debtor's 

application  is  a  step  in  aid  of  execntion  of  the  decree  a* 

provided  by  this  Article. 

(3-i)     In  Sitla  Din  v.  Sheo   Prasad/8)  application  for  Joint  appiica- 
execution  was  made  on  the  22nd  November,  1875,  and  on  and  debtor  for 
the  27th  March,  1876,  on  which  date  the  attached  pro-  of  sale  held  to 
perty  was  to  be  sold,  both  parties  made  a  joint  ap plica-  of  execution." 
tion  stating  that  the  debtor  had  paid  certain  payment,        y 
and  that  the  sale  might  be  postponed    for  four  months. 
The  court  granted  the  application.     The  next  application 
for  execution  was  made  on  the  17th  January,  1879.     It 
was  held  that  the  application  was  within  time,  as  the 
proceedings  of  the  27th  March,  1876,  might  be  considered 
a  step  in  aid  of  execution. 

(3-j )     In  Tarini    Das    Bandyopadhya  v.  Bishtoo  Lai  Judgment-ere- 
Mukhopadaya/4)  application  was  made  on  the  11th  March,  tion  to  record 
1885,  for  execution  of  a  decree  dated  25th  March,  1880,  out  of  court  is 
and  execution  was  barred  unless  the  time  could  be  counted  execution. 
from  the  29th  April,  1882,  on  which  date  the  decree- holder 
in  a  tabular  form  applied  to  have  entered   payment  of 
Rs.   100   by   defendant,  and   prayed   that  the  execution 

(1)  I.  L.  E.,  7  Mad.,  807.        I      (8)  I.  L.  B.,  4  All.,  60. 

(2)  I.  L.  R.,  3  All.,  320.  |      (4)  I.  L.  R.,  12  Calc,  608. 

85 

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674     TH*  SECOND  8CHRDULB,  THIRD  DIVISION— APPLICATIONS.    [ ART.  179 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


A.  H.  followed 
the  above  deci- 
sion. 
(July  1886.) 


Decree-holder's 
oral  application 
to  summon  wit- 
nesses in  the 
matter  of  claim 
to  attached  pro- 
perty is  a  step 
in  aid  of  execu- 
tion. 
(Feb.  1888.) 


Decree-holder's; 
application  to 
set  aside  deb- 
tor's objection 
to  confirmation 
of  sale  is  a  step 
in  aid  of  execu- 
tion. 
(April  1888) 


Application  to 
execute  attach- 
ed decree  is  a 
step  in  aid  of 
execution. 
(Feb.  1885.) 


Three  years. 

ease  be  struck  off.  It  was  held  that  this  application  was 
a  step  in  aid  of  execution.  Following  the  above  decision 
the  Allahabad  High  Court  in  Muhammad  Husain  v. 
Ram  Sarup,*1)  held  that  an  application  made  by  a  decree- 
holder,  the  object  of  which  is  that  the  receipt  of  certain 
sums  of  money  paid  out  of  court  may  be  certified  is  a 
step  in  aid  of  execution  such  as  would  keep  the  decree 
alive  within  this  Article.  In  this  case  they  referred  to 
Gransham  t>.  Mukha.O 

(3-k)  In  Ali  Muhammad  Khan  v.  Gnr  Prasad/8) 
decree-holder  applied  for  execution  on  the  7th  May,  1878 ; 
a  third  party  claimed  the  property  attached  on  the  15th 
July,  1878,  and  the  decree-holder  on  the  26th  August, 

1878,  applied  orally  for  summons  to  his  witnesses,  and  the 
claim  was  disallowed  on  the  20th  December,  1878.  On 
the  20th  July,  1881,  the  decree-holder  again  applied  for 
execution.  It  was  held  that  the  oral  application  of  the 
26th  August,  1878,  was  one  to  take  a  step  in  aid  of  exe- 
cution. 

(3-1)  In  Kewal  Bam  v.  Khadim  Husain/4)  decree- 
holder  applied  for  execution  on  the  10th  August,  1878,  and 
the  debtor's  property  was  sold  on  the  28th  January,  1879  ; 
on  the  debtor  moving  for  the  cancellation  of  sale,  the 
creditor,  by  a  petition,  objected  to  it  on  the  15th  March, 

1879,  and  prayed  that  the  objection  may  be  disallowed. 
The  application  was  disallowed  and  the  creditor  applied 
for  execution  on  the  10th  February,  1882 ;  it  was  held 
that  the  time  should  be  computed  from  the  application 
of  the  15th  March,  1879. 

(3-m)  In  Lac h  man  v.  Thondi  Bam/6)  the  decree 
passed  on  the  20th  February,  1878,  was  sent  in  November, 
1878,  under  section  323  of  the  C.  P.  C,  to  another  Munsif, 
to  whom,  on  the  21st  January  1879,  the   decree-holder 

(1)  I.  L.  R.  9  All.,  9.  I      (3)  I.  L.  R.,  6  AIL,  344. 

(2)  I.  L.  E.,  3  All.,  3#>.      |      (4)  I.  L.  R.,  6  All.,  576. 

(5)  I.  L.  R.,  7  All.,  382. 


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ART.  179]  THB  SECOND  SCHEDULE,  THIRD  DIVISION — APPLICATIONS.     675 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Three  years. 

applied  for  execution,  and  attached  with  some  immoveable 
property  three  decrees  standing  in  that  Munsif's  Court 
in  favour  of  the  judgment-debtor  against  other  persons. 
On  the  18th  March,  1882,  the  decree-holder  applied  to 
that  Munsif  to  execute  one  of  the  three  decrees  and  asked 
for  payment  of  whatever  might  be  realized  on  account  of 
his  decree.  He  made  a  subsequent  application  for  exe- 
cution on  the  12th  April,  1883.  It  was  held  that  the 
application  to  execute  an  attached  decree  is  a  step  in  aid 
of  execution  of  the  original  decree  within  the  meaning  of 
this  Article. 

(3-n)     An  application  by  a  judgment-creditor  to  the  Decree-holder's 
court  which  passed  the  decree  for  a   certificate  that  a  adfoy  to  obtain 
copy  of  the  Revenue  register  of  the  land  is  necessary  to  ?s™8tep°inP&id 
enable  him  to  obtain  such  a  copy  from  the  Collector's  der  clause  4. 
Office  and  thereupon  to  execute  the  decree  by  attaching 
the  land,  is  a  step  in  aid  of  execution  within  the  meaning 
of  clause  4.     Kunhi  v.  Seshagiri.t1)    The  C.  H.  in  Gunga  c.  h.  declined 
Pershad  Bhoomick  v.  Debi  Sundari  Dabea,(*)  declined  to  aste^dMree-*" 

•  ,        •        •  j     *  ..  i  •      j  •        i  holder's  wid- 

recognize  as  a  step  in  aid  of  execution,  an  application  by  a  ow*s  appiica- 

decree-holder's  widow  for  the  return  of  a  copy  of  a  decree  torn  of  a  copy 

for  the  purpose  of  an   execution.     They   had  done  so  execution.  °* 

probably  because  the  widow  had  not  then  applied  for     an^" 

substitution  of  her  name  on  the  record. 

(3*0)    In  Bamhit  Rai  v.  Satgur  Rai,(8>  first  applica-         A.  h. 

tion  for  execution  was  made  on  the  28th  May,  1875,  and  J^SSSS? 

after  attachment  of  property,  the  judgment-debtor  on  the  « JJ  pStpon£°n 

13th  and  20th  August,  1875,  applied  for  postponement  of  ©oMtitu£dean 

sale  stating  that  he  had  asked  the  decree-holder  to  allow  n^^ltaf" 

him  time  to  make  some  arrangement  for  paying  off  the  Mutation?  °* 

debt.     This  petition  was  made  by  a  vakil  who  had  a  <8ePt-lfl80'> 

special  vakalut  for  the  purpose.     These  two  applications 

were    held  to  be  an    acknowledgment    of    liability  in 

(1)  I.  h.  R.,  6  Mad.,  142.       |      (2)  I.  L.  E.,  11  Calc,  227. 
(8)  I.  L.  E.,  8  All.,  247. 


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676     THI  SBCOND  8CHBDULE,  THIRD  DIVISION — APPLICATIONS.  [ART.  179 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Three  years. 

respect  of  "  right"  within  the  meaning  of  section  19  of 
XV  of  1877.  It  is  beyond  doubt  that  section  19,  Act  XV 
of  1877,  applies  to  an  application  for  execution  of  decree. 
This  application  therefore  seems  the  decree-holder's  second 
application  for  execution  dated  29th  July,  1878. 
c.  H.  followed       (3-D)     C.    H.   followed   the  above  decision  in  Ram 

the  above  ml-  x      *' 

in*.  Coomer  Kur  0.  Jakur  AH,*1)  in  which  debtor's  property 

CAutfon  1888.) 

was  attached  on  the  3rd  October,  1877,  in  execution  of  a 
decree  dated  24th  March,  1876.     On  the  7th  December, 

1877,  the  debtor's  application  for  three  months'  time  to 
raise  money  was  granted.  Decree-holder  next  applied 
for  execution  on  the  4th  December,  1880.  It  was  held  in 
March,  1882,  that  the  debtor's  petition  constituted  an 
acknowledgment  giving  the  decree-holder  a  new  period 
of   limitation.     Following  the  above  decision  C.  H.   in 

C.  h.         Toree  Mahomed  v.  Mahomed  Mabood  Bux(*>  held  that  a 

petition  made  by  a  judgment-debtor  and  signed  by  his 

vakil  praying  for  additional  time  for  payment  of   the 

decree  amount  is   an  acknowledgment  of  the  liability 

which  would  give  a  new  period  of  limitation  from  its 

date. 

P.  c.  (3-Q[)     In  Mina  Konwari  t>.  Juggat  Setani,W  a  decree 

postponement0'  obtained  in   1867,  under  section  53  of  Act  XX  of  1866, 

esu»pei*wtuiia  was  first  sought  to  be  executed  in  July,  1870,  and  the 

denoe  Act  see-*    order  thereon  dated  August,  1870,  had  reference  to  the 

(jSy^ees.)        applicant's  position  as  guardian,  and  the  petition  was 

struck  off  the  file  on  the  29th  August,  1870.     In  January, 

1878,  respondent's  property  was  attached  and  proclaimed 
for  sale  in  December,  1878,  on  which  date  the  respondent 
applied  by  a  petition  for  postponement  of  sale  for  two 
months :  this  was  granted,  and  a  further  stay  of  one 
month  was  ordered  by  consent  in  February,  1880.  Re** 
pondent,  who,  as  mother  of   the  original  debtor  had 

(1)  I.  L.  B.,  8  Oalc,  717.        |       (2)  I.  L.  R.,  9  0»lo.,  780. 
(8)  I.  L.  B.,  10  Oalc,  196. 


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ART.  179]    THE  8KCOKD  8CHKDULK,  THIRD  DIVI8I0N — APPLICATIONS.     677 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Three  years. 

succeeded  to  the  estate  of  her  childless  grandson,  filed  a 
petition  before  the  expiration  of  the  time  that  the  sale 
was  postponed  alleging  that  the  decree  had  been  paid  off. 
Sale  was  to  take  place  on  the  8th  May,  1880,  and  the 
respondent  on  the  3rd  of  that  month  pleaded  that  the 
execution  was  barred  by  lapse  of  time.  The  High  Court 
applying  Act  IX  of  1871,  rejected  the  application  as 
barred.  The  Privy  Council  following  their  own  ruling 
in  Mungul  Pershad  Dichit  v.  Grija  Kant  Lahiri/1)  that  c.  h. 

as  regards  suits  instituted  before  the  1st  of  April,  1873, 
all  applications  in  them  are  excluded  from  the  operation 
of  Act  IX  of  1871,  held  that  the  application  was  barred 
under  section  22,  Act  XIV  of  1859.  As  regards  petitions  observations  of 
for  postponement  of  sales,  their  lordships  observe  that 
although  the  respondent  denied  any  knowledge  of  the 
petitions  presented  in  her  name,  and  the  appellant  relied 
on  them,  no  evidence  was  given  that  they  were  authorised 
by  her.  The  petitions  are  of  a  spurious  character.  The 
proceeding  in  the  Nuddiah  Court  against  the  respondent 
was  altogether  irregular  if  it  was  not  without  jurisdie* 
tion,  and  the  petitions  to  postpone  the  sale  cannot  be 
treated  as  an  estoppel.  They  contain  no  admission  that 
the  decree  could  be  legally  executed  against  the  respon- 
dent, and  are  not  within  the  description  of  an  estoppel 
given  in  the  Indian  Evidence  Act  1872,  section  115  and 
the  following  sections. 

(3-r)     Paran  Singh  v.  Jawahir  Singh, W  decree  was   Application  for 
dated  5th  December,  1878,  and  first  application  for  execu-  proceeds  is  a 
tion  6th  March,   1880;  notice   was  issued  on  the   17th   execution  under 

clause  4 

December,  1880 ;  on  the  14th  December,  1880,  decree-holder  (May  1884.) 
applied  for  payment  of  sale  proceeds  of  certain  property 
that  had  been  sold.  The  next  application  for  execution 
was  on  the  8th  May,  1883.  It  was  held  that  the  application 
for  the  sale  proceeds  on  the  14th  December,  1880,  was  a 
(1)  I.  L.  B.,  8  Oalo.,  51.        |  (*)  I.  L.  B.,  6  All.,  866. 


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678     THl  88C0ND  80HIDULI,  THIRD  DIVISION — APPLICATIONS.    [ART.  179 


Description  of  application. 


Period   of 
limitation. 


Time  from  which  period 
begins  to  ran. 


M.  H.  also  held 
»o. 


O.  H.  held  inch 
application  is 
not  a  step  in  aid 
of  execution. 
(August  1881.) 


O.  H. 
(March  1884.) 


0.  H. 
(Jany.  1885.) 


Three  years. 

step  in  aid  of  execution  under  clause  4  of  this  Article. 

In  Venkatarayalu  v.  Narasimha/1)  plaintiff  obtained 
a  decree  against  defendant  on  the  24th  November,  1875, 
and  on  the  14th  October,  1876,  he  got  execution  and  sold 
some  lands  of  the  defendant.  On  the  9th  February,  1877, 
he  applied  for  and  got  payment  of  monies  lodged  by  the 
purchaser.  In  the  meantime  an  appeal  was  presented  by 
the  defendant  and  dismissed  on  the  28th  March,  1877. 
Next  application  for  execution  was  made  ou  the  7th 
February,  1880.  It  was  held  that  the  application  was 
within  time,  and  further,  that  the  plaintiff's  application 
of  the  9th  February,  1877,  for  payment  of  sale  proceeds 
is  a  step  in  aid  of  execution. 

(3-8)  •  In  Hem  Chunder  Chowdhry  v.  Brojo  Soondury 
Debee/*)  a  Division  Bench  (Morris  and  Tottenham)  held  in 
August,  1881,  that  an  application  made  by  a  judgment- 
creditor  to  take  out  of  court  certain  monies  deposited 
by  judgment-debtor  cannot  be  considered  to  be  an  applica- 
tion to  the  court  to  take  a  step  in  aid  of  execution.  They 
observe  :  "  It  seems  to  us,  in  spite  of  certain  rulings  of  the 
Madras  and  Allahabad  High  Courts  which  have  been 
quoted  to  the  contrary,  that  we  cannot  treat  such  an  appli- 
cation as  one  to  take  a  step  in  aid  of  execution."  Another 
Division  Bench  (Mitter  and  McLean)  followed  the  above 
ruling,  in  Fazal  Imam  v,  Metta  Singh/3)  in  March,  1884, 
and  as  to  the  ruling  of  the  Madras  High  Court  in  I  L.  R.,  2 
Madras,  174,  they  observe  that  it  was  given  as  an  addi- 
tional reason  over  and  above  the  one  on  which  the  decision, 
mainly  rested.  The  question  came  before  another  Divi- 
sion Bench  (Field  and  Beverley,  J.  J.)  in  January,  1885, 
in  Gunga  Pershad  Bhoomiok  v.  Debi  Sundari  Dabea/4>  in 
which  decree  was  dated  June,  1879,  and  the  decree-holder 
in  1879  attached  the  debtor's  money  in  court  and  obtained 


(1)  I.  L.  R.,  2  Mad.,  175. 

(2)  I.  L.  B.,  8  Galo.,  89. 


I      (8)  I.  L.  B.,  lOOalo.,540. 
I      (4)  I.  L.  B.,  11  Calo.,  227. 


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ART.  179]  THI  8KC0ND  8CHBDULB,  THIRD  DIVI8I0N— APPLICATIONS.      679 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Three  years. 

an  order  for  payment,  but  died  without  receiving  payment. 
Execution  case  was  struck  off  on  the  31st  January,  1880. 
On  the  14th  June,  1880  and  22nd  June,  1881,  the  creditor's 
widow  applied  for  payment  of  money,  and  on  the  1st  April, 
1882,  applied  to  get  back  the  copy  of  the  decree  for  execu- 
tion. At  the  time  of  these  three  applications  she  bad  not 
applied  for  substitution  of  her  name  on  the  record.  On 
the  5th  January,  1884,  the  widow  applied  to  have  her 
name  substituted  and  for  execution.  It  was  held  that 
the  previous  applications  were  not  steps  in  aid  of  execution. 

(3-t)     In   Denonath   Ghuckerbutty  v.  Lallit   Coomar  Benamidar'f 
Gangopadhya,*1)  decree  was  dated  7th  June,  1877.     Pur-   X&ution°iLnot 
chaser  of  the  decree  had  applied  for  execution  on  the  1st   execution. 
June,  1880.     On  the  opposition  of  the  judgment -creditor  K  ^^ 
who  had  attached  the  decree  for  debt  due  by  its  original 
holder  that  the  purchaser  was  a  Benamidar,  the  purcha- 
ser withdrew  his  application  on  the  4th  December,  1880, . 
and  on  the  9th  December,  1880,  the  creditor  who  had 
attached  the  decree  applied  for  execution.     It  was  held 
that  his  application  was  barred  as  the  Benamidar's  appli- 
cation is  not  one  "  in  accordance  with   law"   within  the 
meaning  of  clause  4  of  this  Article. 

(3-U  >     In  Toree  Mahomed  v.  Mahomed  Mabood  Bux.W  o.  H. 

..  0        r*  -n  .  «     Decree-bolder 

the  mere  payment  of  a  Court  Fee  in  connection  with  paying  a  court 

,.  .  ,  .  ,  fee  to  bid  for 

execution  proceedings  with  a  view  to  obtain  leave  to  bid  property  is  not 

-  *      xl  -  ,  .  -  ,  a  step  in  aid  of 

for  property  then  up  for  sale  in  execution  of  a  decree  execution. 

(Kftrob  1889.) 

does  not  constitute  "the  taking  of  some  step  in  aid  of 
execution"  within  the  meaning  of  Article  179,  schedule 
2  of  the  Limitation  Act  (Act  XV  of  1877),  so  as  to  prevent 
the  execution  of  the  decree  being  barred  within  three 
years  from  the  elate  of  such  payment. 

(3-V)     In  Fakir  Muhammad  v.  Ohulam  Husain,<3)  a         A.  H. 

Ttaffrwt.WnlflOT^a 

Division  Benoh  held  in  January,  1878,  that  an  application  application  for 

postponement 
(1)  I.  L.  B.,  9  Oalo.,  688.       |       (2)  I.  L.  R.,  9  Calc.,  780.  ^Tt^SS9 

(8)  I.  L.  E.1 1  AIL,  580.  bim  to  make 


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680      THE  SKCOND  SCHEDUM,  THIRD  DIVISION — APPLICATIONS.    [AH*.  179 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Three  years. 

some  arrange-     by  a  decree-holder  for  the  stay  of  execution  proceedings 

or  is  not  a  step   to  enable   him  to   make  some  arrangements  with  the 

tion.  judgment-debtor  was  not  an  application  to   enforce  or 

keep  in  force  the  decree  within  the  meaning  of  Article 

a.  h.  167  of  Act  IX  of  1871.     Following  the  above  decision,  it 

was  held  in  April,  1881,  in  Mainath  Kuariv.  Debi  Bakhsh 

Rai,<l>  that  the  application  of  August,  1876,  by  a  decree* 

holder  for  postponement  of  sale  on  the  ground  that  he 

had  given  time  to  the  judgment-debtor  was  not  a  step 

in  execution  of  decree,  and  that  the  limitation  cannot  be 

computed  from   the  date  of  such  application,  and  that 

it  was  an  application   made  with  the  object  of  staying 

execution. 

a.  H.     t         (3-W)     In  Khair-un-nissa*.  Gauri  Shankar<*>  plaintiff 

application         obtaining  two  decrees,  one  against  the  defendant  for  money 

of  property  as   due  on  a  bond  executed  by  her  deceased  husband,  and  the 

decrees  is  not  a  other  for  money  due  by  the  defendant  personally,  applied 

execution.  on  the  7th  September,  1875,  for  execution  thereof.     On 

(Jany.  1881.)  r 

his  application  of  the  16th  February,  1877,  that  the  land 
of  the  defendant's  husband,  but  recorded  in  her  name, 
should  be  sold  as  one  lot  for  both  the  decrees;  it  was  sold 
so  and  the  decree-holder  bought  it  on  the  20th  February, 
1877,  and  certified  satisfaction  on  the  10th  December, 
1877  ;  subsequently  the  heirs  of  the  defendant's  deceased 
husband  obtained  decrees  for  such  portion  of  the  sale 
proceeds  as  had  been  appropriated  to  the  discharge  of  the 
defendant's  personal  decree,  which  the  decree-holder  was 
obliged  to  pay.  The  decree-holder  thereupon  on  the  16th 
May,  1879,  applied  for  execution  of  his  decree  against  the 
widow.  It  was  held  that  such  application  was  not  one 
in  continuation  of  that  made  on  the  7th  September,  1875, 
but  was  a  fresh  application,  and  the  application  made  by 
the  decree-holder  on  the  16th  February,  1877,  was  not 
one  for  a  step  in  aid  of  execution,  within  the  meaning  of 
(1)  I.  L.  R.,  8  AIL,  757.         |         (2)  I.  L.  R.,  8  All.,  484. 


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ART.  179]  THE  SECOND  SCHEDULE,  THIRD  DIVISION — APPLICATIONS.    681 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Three  years. 

No.  179,  Act  XV  of  1877,  from  which  limitation  could  be 
computed,  and  the  application  of  the  16th  May,  1879, 
was  barred  by  limitation. 

(3*X)     In  Gurupadapa  Basapa  v.  Virbhadrapa  Irsan-  Asking  merely 
gapa,^)  the   plaintiff  in  execution  of  his  decree  dated  alive  is  no  step 
1872,  made  his  third  application  on  the  10th  March,  1879,  tion. 
merely  asking  that  the  decree  might  be  kept  alive,  and  on 
the  26th  November,  1881,  he  sought  execution  of  decree ; 
the  court  held  that  the  application  was  governed  by  the  Act 
of  1877  and  that  inasmuch  as  the  application  of  1879  did 
not  ask  for  any  step  to  be  taken  towards  execution,  it 
was  not  in  accordance  with  this  Article  and  it  did  not  save 
the  application  from  being  barred.     The  court  further 
observe  that  this  decision  is  not  inconsistent  with  the 
rulings  of  the  Privy  Council  in  Mangal  Prasad's  case. 

(3-y)     In    Kallu  v.  Muhammad  Abdul/2)  the  holder  Application  fey 
of  a  decree  dated  13th  February,  1880,  died  on  the  11th  Scatter70 
February,  1883.     Two  days  after  his  death,  on  the  13th  alath^ot6? 
February,  1883,  his  pleader  applied  for  execution ;  the  execution.  ° 
executing  court  admitted  the  application,  but  on  the  <Mftroh1885-) 
judgment-debtor's  appeal,  the  District  Judge  ordered  that 
the  heirs  might  be  allowed  to  carry  on  the  execution  on 
their  making  an  application  within  two  days  from  his 
order.     On  the  30th  August,  1883,  the  heirs  of  the  decree- 
holder  applied  for  execution.    It  was  held  that  the  appli- 
cation was  barred,  as  the  application  of  the  13th  Febru- 
ary, 1883,  was  not  such  an  application  or  a  step  in  aid  of 
execution  as  would  prevent  the  Statute  from  running. 
No  valid  application  can  be  made  by  a  pleader  after  his 
client's  death. 

(3-z)  In  Shib  Lai  v.  Radha  Kishen,<8)  plaintiff  ob-  Defendant  enti- 
tained  a  decree  on  the  24th  December,  1878,  which  posing  cptatn°P" 
exempted  one  of  the  defendants  with  his  costs  against  executing  de? 

cree  is  no  step 
(1)  I.  L.  R.,  7  Bom.,  469.       |         (2)  I.  L.  E.,  7  All.,  564. 
(3)  I.  L.  B.,  7  All.,  898. 

86 


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682    THE  8I00MD  SCH1DULI,  THIRD  D1VI8ION — APPLICATIONS.   [ABT.  179 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Three  years. 

in  aid  of  execn-  him.    In  execution  of  that  decree,  plaintiff,  on  the  16th 
avail  defendant  June,  1880,  sought  to  set  off  against  the  decree  amount 
(July  1886.)        due  to  himself,  the  costs  awarded  to  the  exempted  defen- 
dant.    On  the  19th  July,   1883,    the  exempted  defen- 
dant applied  for  execution  of  the  decree  for  costs.    It  was 
held  that  his  application  was  barred  as  the  objection 
which  he  offered  was  not  a  step  in  aid  of  execution. 
ooMa&torim.a       (*"*)     In  Manohar  v.  Gebiapa,*1)  plaintiff's  last  ap- 
iSo*!?  noTV*  plfc***011  for  execution  dated  7th  July,  1877,   was  not 
•JjiMa^id  of      allowed  as  it  had  not  been  accompained  by  a  conciliator's 
(October  1881.)    certificate  under  the  Dekkan  Agriculturists'  Belief  Act 
XVII  of  1879;  the  plaintiff  applied  for  it  on  the  5th  July, 
and  obtained  it  on  the  17th  July,  1880,  and  revived  his 
application  to  the  court  on  the  23rd  July,  1880,  after  the 
expiration  of  three  years.     It  was  held  that  a  conciliator 
not  being  a  court,  the  application  made  to  him  is  not  a 
step  in  aid  of  execution  under  this  Article,  and  that  the 
plaintiff  was  bound  by  law  to  have  obtained  a  certificate 
before  he  went  to  the  court,  which  could  not  entertain 
any  application  without  it,  and  that  the  application  of  the 
5th  July,  cannot  be  considered  as  one  legally  presented. 
In  a  later  case  the  time  occupied  in  obtaining  a  certificate 
was  excluded  in  computing  the  period  of  limitation  for  a 
suit.     Durgaram  Maniram  v.  Shripati.**) 
A    lSatSnfor       (*-b)     In  Hurronath  Bhunjo  v.  Chunni  Lall  Ghose/8) 
execution  of       decree  dated  18th  July,  1864,  was  kept  in  force  up  to 

decree  partially  •"  '  r  r 

lattefad  under    1873,  when  the  defendant,  who  was  arrested  in  execution, 

J*0*61^**         was  discharged  on  the  arrangement  that  he  should  pay 

monthly  Bs.  10  towards  the  liquidation  of  the   decree. 

Execution  Petition  was  struck  off  in  September,  1873,  and 

the  judgment-debtor  continued  payment  up  to  October, 

1876.     In  June,  1877,  decree-holder,  without  seeking  to 

enforce  by  means  of  execution  the  arrangement  made  in 

(1)  I.  L.  R.,  6  Bom.,  31.       |       (2)  I.  L.  R.,  8  Bom.,  411. 
(3)  I.  L.  R.,  4  Calo.,  877. 


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ART.  179]  THE  8JBC0ND  SCMDULJ),  TH1ED  DIVISION — APPLICATIONS,     683 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Three  years. 

1873,  applied  for  execution  of  the  decree'  of  July,  1864, 
by  arrest.     It  was  held  that  the  application  was  barred, 
more  than  three  years  having  elapsed  from  the  date  of  the 
last  application  for  execution.     In  Badha  Kissore  Bose         o.  h. 
v.  Aftab  Chundra  Mahatab,*1)  an  order  was  made  by  the  STS^rats 
court  in  February,  1868,  in  execution  of  a  decree  of  June,  SwEX1™7  **" 
1865,  directing  the  payment  of  the  rents  of  certain  pro-  SSdeMtSoybe. 
perty  which  had  been  attached,  as  they  became  due  from  beSUteS as  w» 
the  Mukuraridar  to  the  judgment-debtors,  to  be  made  to  appScatiion'to 
the  decree-holder  to  satisfy  his  decree ;    and  in  March,  ani^ofpay-" 
1868,  the  execution  case  was  struck  off  the  file.     Default  I^pUcatiSnfor1 
having  been  made  by  the  Mukuraridar  in  1879,  and  the  (SSch°i88i.) 
decree  not  having  been  fully  satisfied,  the  decree-holder 
applied  in  April,  1880,  for  an  order  directing  the  payment 
of  the  rents  which  were  in  arrear  to  be  made  by  the 
Mukuraridar  in  accordance  with  the  previous  order.     It 
was  held  that  as  the  application  was  not  strictly  one  for 
fresh  execution,  limitation  could  not  apply,  and  that  as  the 
effect  of  the  order  was  virtually  to  appoint  the  decree- 
holder  as  receiver,  his  proper  course  was  as  such  to  sue 
the  Mukuraridar.     It  has   been  observed    that   in   the 
former  case  it  was  by  private  arrangement  that  the 
judgment-debtor  agreed  to  satisfy  the  decree  by  monthly 
payments  without  any  intervention  of  the  court. 

(4-0)     In  Paras  Earn  v.  Gardner/2)  the  decree-holder     a.  h.  f.  b. 
had  attached  property  which  was  released  in  August,  eaMutoafter* 
1871,   on  the  claim  of  an   objector  against  whom   the  agS^ctoim!* 
decree-holder  then  instituted  a  suit  to  contest  the  order.  S^oMormer 
He  obtained  a  decree  in  August,  1872,  and  applied  to  the  iraa&rSff* 
court  in  March,  1875,  to  have  the  same  property  brought 
to  sale  in  execution  of  the  first  decree.     It  was  held  by  a 
Full  Bench  that    the  renewed  application    to  execute 
within  three  years  from  the  date  of  the  decree  passed  in 
the  suit  against  the  objector  was  not  a  fresh  application 
(1)  I.  L.  R.,  7  Calc,  61.         J         (3)  I.  L.  B.,  1  AH.,  366. 


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684  THI  SECOND  SCHEDULE,  THIRD  DIVISION — APPLICATIONS.    [ART.  179 


Description  of  application. 


Period  of 
limitation.. 


Time  from  which  period 
begins  to  run. 


Application  for 
execution  after 
removal  of  ob- 
jection in  a 
claimant's  suit 
is  revival  of 
former  proceed- 
ings. 


Article  178  rath- 
er than  179  ap- 
plied to  the 
case. 
(July  1888.) 

Application  for 
execution  after 
dismissal  of 
decree-holder's 
suit  to  hold  at- 
tached property 
liable  most  be 
revival  of  pre- 
vious proceed- 
ings if  made 
after  time. 
(Feb.  1888.) 


Three  years. 

for  execution  against  the«jndgment-debtor,  but  a  continu- 
ance or  revival  of  the  previous  application  interrupted 
by  the  objector,  and  three  years  allowed  by  this  Article 
should  be  reckoned  from  the  date  of  the  decree  in  the  . 
suit  against  the  objector  when  as  against  him  the  decree- 
holder's  right  was  restored  to  him. 

(4-d)  On  the  day  fixed  for  sale  of  certain  property 
with  referrence  to  the  decree-holder's  application  dated 
27th  May,  1878,  court  stayed  execution  by  an  injunction 
pending  the  disposal  of  a  suit  instituted  by  certain 
persons  claiming  a  portion  of  the  property  attached  ;  the 
suit  was  decided  on  the  24th  January,  1881 ;  on  the  4th 
September,  1882,  the  decree-holder  applied  for  execution 
and  asked  to  attach  and  sell  some  property  not  included 
in  his  previous  application.  The  court  held  that  there 
was  no  objection  to  his  doing  so  since  the  decree  must  be 
held  to  be  in  force,  and  that  the  application  must  be  consi- 
dered to  be  for  revival  of  the  former  proceedings  after 
the  removal  of  the  injunction,  and  that  Article  178 
rather  than  this  Article  applied  to  the  case.  Basant  Lai 
v.  Batul  BibUD 

(4*6)  In  Krishnaji  Baghunath  Kothavle  v.  Anandrav 
Ballal  Kolhalkar/2)  decree-holder,  in  1874,  attached 
certain  real  property  of  his  judgment-debtor  and  the 
attachment  was  released  on  the  16th  July,  1875  ;  at  the 
instance  of  a  claimant  the  decree-holder  within  time 
brought  a  suit  for  a  declaration  that  the  property  was 
liable  to  attachment,  and  it  was  rejected  on  the  8th  July, 
1880.  On  the  30th  November,  1880,  the  decree-holder 
applied  for  the  arrest  of  the  judgment-debtor.  It  was 
held  that  the  execution  process  last  applied  for  was 
distinct  in  its  nature  from,  and  in  no  way  a  continuance 
or  revival  of  the  previous  proceedings  in  execution,  and 
was  therefore  made  too  late,  more  than  three  years  having 
elapsed  since  the  passing  of  the  decree. 

(1)  I.  L.  B.  6  All.,  28.  |      (2)  I.  L.  R.,  7  Bom.,  299. 


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ART.  179]    THE  8B0OND  8CHKDULK,  THIRD  DIVISION — APPLICATIONS.     685 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Three  years. 

(4-f)     In    Ramsoonder    Sandyal    v.    Gopessur    Mos-  p.  H. 

tofee,*1*    plaintiff  in  January,  1869,  first  applied  for  exe-  ter  successful " 

cation  of  bis  decree  dated  Angnst,  1864.    In  November,  decree-holder's 

1870,  be  applied  for  tbe  sale  of  bis  debtor's  interest  in  a  claimant,  for  at- 
decree  on  certain  lands,  but  tbey  were  released  on  tbe  some  other  pro- 
claim of  third  parties.     The  decree-holder  sned  in  Decern-  to  revive  former 
ber,  1871,  and  obtained  a  decree  in  April,  1872,  declaring  tbereferebar- 
his  right  to  sell  the  properties.     The  High  Court  con-  (March  1878.) 
firmed  the  decree  in  1874.     Before  the  final  order,  the 
decree-holder  made  a  third   application  in   September, 

1873,  asking  for  a  certificate  to  a  District  Mnnsif  to 
execute  tbe  decree  against  some  other  property  of  the 
judgment-debtor.  If  the  application  of  November,  1870, 
is  not  one  to  keep  the  decree  in  force  within  the  meaning; 
of  Article  167  of  Act  IX  of  187^  the  decree  would  be 
barred,  as  the  last  application  of  September,  1873,  was 
not  to  revive  and  continue  the  proceedings  instituted  on 
the  application  of  January,  1869.  It  was  held  that  the 
application  of  November,  1870,  did  not  keep  the  decree 
in  force  within  the  meaning  of  Article  167  of  Act  IX  of 

1871,  and  that  the  last  application  was  not  one  to  revive 
the  proceedings  instituted  on  the  application  of  January, 
1869,  and  stayed  up  to  July,  1873,  by  reason  of  the 
creditor  having  been  forced  to  sue  to  remove  the  claims  of 
third  parties.  In  holding  so,  the  court  followed  the 
ruling  in  Chunder  Coomar  Roy  t;.  Bhogobutty  Prosonno  c.  H. 
Roy,W  in  which  it  was  ruled  that  the  words  "  applying  (Sept' 1877,) 
to  enforce  the  decree''  in  Article  167,  mean  the  application 

by  which  execution  proceedings,  are  commenced,  and  not 
applications  of  an  incidental  kind  made  during  the 
pendency  of  such  proceedings,  though  an  application 
simply  "  to  keep  the  decree  in  force"  would  give  another 
three  years  from  its  date  in  cases  governed  by  Act  IX  of 
1871. 

(1)  I.  L.  B.,  8  Calc,  716.       |        (2)  I.  L.  E.,  8  Cala,  286, 


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686      THE  SKCOND^SCHBDULB,  THIRD  D1V18 ION— APPLICATIONS     [ART.  179 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Three  years. 

Application  for  (4-g)  On  the  16th  September,  1879,  a  decree-holder 
cancellation  of  in  execution  of  his  decree  applied  for  attachment  and 
of  purchase""  sale  of  certain  lands,  and  on  the  8th  January,  1880,  the 
beofthe  same-  sale  was  confirmed.  The  purchaser  haying  learnt  that  the 
tobarthe sta-  defendant  had  no  title  to  the  land,  brought  a  suit  and 
(Sept.  1864.)        obtained  a  decree  cancelling  the  sale  on  the  2nd  April, 

1881,  and  on  the  2nd  November,  1881,  obtained  an  order 
for  the  refund  of  purchase-money,  which  was  thereupon 
paid  to  him  by  the  decree-holder.  On  the  2nd  March, 
1883,  the  decree-holder  applied  for  execution  by  arresting 
the  defendant.  A  Division  Bench  (Turner,  C.  J.  and 
Brandt,  J.,)  being  of  opinion  that  the  subsequent  appli- 
cation cannot  be  regarded  as  a  continuance  of  the^  former 
proceeding  inasmuch  as  it  was  for  arrest,  held  it  was  a 

A.  H.  fresh  application ;  anc^  following  the  decision  in  Kbair- 

(Jan.  1881.)      un-nissa  v.    Gauri    Shankar/1)    the   court   rejected    the 

application  as  barred.    Yirasami  v.  Athi.<2) 
Application  (4-h)     In  Basant  Lai  v.  Batul  Bibi,<3>  on  the  28th  May, 

objector's^t?  1876,  application  was  made  for  execution  of  a  decree  in 
tion^ass6^11"  pursuance  of  which  certain  property  was  attached  and 
jn^cwon^is^re-  proclaimed  for  sale.  On  the  day  fixed  for  sale,  the 
prodding*?"*  couv^  issued  an  injunction  to  stay  the  same  until  a  suit 
(July  1888.)        which  certain  persons  who   claimed  the   property    had 

instituted,  had  been  decided.     On  the  14th  September, 

1882,  the  suit  having  been  fully  decided  on  the  24th 
January,  1881,  the  decree-holder  applied  for  execution. 
It  was  held  that  the  application  might  properly  be  consi- 
dered to  be  for  revival  of  the  former  proceedings  after  re- 
moval of  the  injunction  to  which  Article  178  of  the  Limi- 
tation Act  1877,  rather  than  Article  179  was  applicable, 
and  was  within  time  from  the  date  of  accrual  of  the  right 
to  apply  on  the  final  decision  of  the  suit. 

Application  for       (4-i)     In  Chatur  Kushal  Chand  v.  Mahadu  Bhagaji,<*> 

execution  made 

&Um oTnot  0)  I- 1*  *•>  8  AH,  484.  I      (8)  I.  L.  E.,  6  All.,  28. 

held*,  me  not  ^  ^  ^^  ^  ^        (      ^  L  t  B.,  XO  Bom,  9L 


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ART.  179]  THI  8100ND  SCHEDUL1,{tHIRD  DIVISION — APPLICATIONS.      687 


Description  of  application. 


Period  of 
limitation. 


Time  from  which 
period  begins  to  run. 


Three  years. 

a  conciliation  agreement  dated  the  2nd  October,  1880,  be-  ••  in  accordance 
tween  the  decree-holder  and  the  judgment-debtor  stipnlat-  forbidden  by 
ing  that  the  former  snould  allow  a  remission  of  Us.  10  and  tumiiflta' belief 
the  latter  should  execute  a  document  for  the  remaining  ** 
sum  of  Bs.  90  to  be  paid  in  1882,  was  filed  in  court  on  20th 
November,  1880.  In  1883,  the  decree-holder  presented 
two  applications  for  satisfaction  of  the  agreed  debt  of 
Rs.  90  by  attachment  of  the  debtor'*  property,  which 
applications  were  granted,  but  were  not  proceeded  with 
through  some  default  of  the  decree-holder.  On  4th  June, 
1885,  the  decree-holder  made  the  present  application, 
praying  that,  under  sections  261  and  262  of  the  Civil  Pro- 
cedureQpode  (Act  XIV  of  1882)  an  order  directing  the 
judgment-debtor  to  execute  a  bond  in  terms  of  the  conci- 
liation agreement  might  be  made,  or  that  the  court  might 
execute  one  on  his  behalf.  On  reference  by  the  Subordi- 
nate Judge  under  section  617  of  the  Civil  Procedure 
Code,  (Act  XIV  of  1882)  to  the  High  Court,  it  was  held, 
that  the  applications  in  1883,  for  attachment  of  the 
debtor's  property,  were  not  "  in  accordance  with  law," 
being  forbidden  by  the  Deccan  Relief  Act  XVII  of  1879, 
section  22,  and  that  the  present  application  under  section 
261  of  the  Civil  Procedure  Code  (Act  XIV  of  1882)  was, 
therefore,  too  late  under  clause  4  of  this  Article. 

(4-j)     In  Raja  Ram  v.  Tolasi  Ammal  (not  reported)   Decree  for  an- 
the  holder  of  a  decree  entitling  her  to  receive   annual  ance  not  pro- 

.  .        .         viding  for  pay- 

maintenance  applied  for  execution,  and  her  application  mentoni»pecino 
was  rejected  as  barred,  more  than  three  years  having  red  after  three 
elapsed  from  the  date  of  the  prior  application.  The 
Division  Bench  (Turner,  J.  and  Kindersley,  J.)  while 
holding  that  the  decree  became  barred,  observed :  "  It  is 
obvious  in  the  Act  of  1871,  those  decrees  were  lost  sight 
of  in  which  the  right  to  execute  does  not  wholly  arise 
immediately,  but  in  part  from  time  to  time  and  in  the 
present  Act  the  same  difficulty  will  be  experienced  unless 


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688      THJC  8EC0ND  SCHRDULI,  THIRD  DIVISION — APPLICATIONS.  [ABT.  179 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Difficulty  will 
be  experienced 
unless  court* 
are  careful  in 
framing  decrees 
to  declare  speci- 
fic dates  for  pay. 
ment. 


M.  H. 
(July  1863.) 


Right  declared 
by  such  decree 
may  be  enforced 
by  a  suit. 
(July  1883.) 


Maintenance 
decree  decree- 
ing possession 
in  default  of 
three  instal- 
ments has  three 
years  from  the 


Three  years. 

the  courts  are  careful  in  framing  their  decrees  to  declare 
specified  dates  on  which  payments  are  to  be  made  and  not 
merely  to  declare  generally  that  payments  are  to  be  made 
annually.  It  would  be  inopportune  for  the  court  to 
express,  as  we  are  invited  to  do  by  the  respondent's  pleader, 
an  opinion  whether  the  respondent  is  entitled  to  treat  the 
decree  she  has  obtained  as  declaratory  and  to  commence  a 
fresh  suit  on  each  default  in  payment  of  maintenance. 
All  we  have  now  to  decide  is  that  she  cannot  execute 
the  decree  she  has  obtained  by  reason  that  it  has  become 
barred  by  limitation."  In  Yusuf  v.  Sirdar/1)  decree  ob- 
tained by  plaintiff  directed  annual  payments  to  be  made, 
and  the  decreeholder  applied  for  and  obtained  parent  of 
the  money  due  for  1877  and  1878,  in  March,  1879,  by 
execution,  and  then  applied  in  July,  1882,  for  the  sums 
due  for  1880  and  1881.  It  was  held  that  the  application 
was  barred  by  limitation,  and  that  the  decree  which  directs 
payment  to  be  made  annually  to  a  decree-holder  is  not 
a  decree  which  directs  payment  of  money  to  be  made  at  a 
certain  date  within  the  meaning  of  this  clause  or  section 
230  of  the  Code  of  Civil  Procedure. 

(4-k)  When  the  same  question  arose  in  Sabhanatha 
v.  Lakshmi/*)  in  which  decree  for  maintenance  was  dated 
1874,  and  no  application  for  execution  had  been  made  after 
March,  1875,  up  to  July,  1882,  a  Division  Bench  (Turner, 
C.  J.  and  Muthoosawmi  Iyer,  J.,)  held  in  July,  1883,  that 
the  decree  was  barred,  and  observed :  "  As  the  decree 
stands,  it  is  a  declaratory  decree."  But  the  lady  can,  if 
need  be,  sue  for  the  enforcement  of  the  right  which  has 
been  declared. 

(4*1)  In  TTgrah  Nath  v.  Laganmani/8)  decree  dated 
24th  September,  1867,  provided  for  payment  of  plaintiff's 
maintenance  throughout  her   life  in   three  instalments 

(1)  I.  L.  B.,   7  Mad.,  83.        |         (2)  I.  L.  R.,  7  Mad.,  80. 
(8)  I.  L.  B.,  4  All.,  88. 


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ART.  179]    THB  8ECOND  SCHEDULE,  THIRD  DIVISION — APPLICATIONS.       680 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Three  years. 

yearly  and  for  delivery  of  property  in  case  of  default  of  date  of  flwt 
three  such  instalments.  The  first  default  occurred  on  (July  isbi.) 
the  18th  January,  1874.     But  the  decree-holder  waived  < 

the  benefit  of  the  provision.  A  fresh  default  was  made, 
and  on  the  23rd  January,  1880,  the  decree-holder  applied 
for  possession.  It  was  held  that  the  decree  was  capable 
of  execution  on  the  18th  January,  1874,  and  that  the 
application  of  the  23rd  January,  1880,  was  barred. 

(4-m)    In  Anandrav  Chimuji  Avati  v.  Thakarchand/1)   b.  h.  held  lee 

tion  280  of  0.  P» 

several   decree-holders   applied  on   the  1st   June,  1880,   c.ofi877doea 
for  execution  of  their  decrees.      They   had   taken   out  tion  application 
execution  several  times  previously,  the  date  of  their  last  application  had 
preceding  application  being  1st  June,  1877.     The  Lower  under  it. 
Court  was  of  opinion  that  the  applications  were  barred 
under  the  last  clause  of  section  230  of  the  Civil  Procedure         • 
Code,  Act  X  of  1877.     It  was  held  that  the  applications 
were  not  barred  inasmuch  as   the  previous  applications 
for  execution  had  not  been  made  under  section  230  of  Act 
X  of  1877,  that  Act  not  being  then  in  force ;  Wesjbropp, 
C.  J.,  observes,  that  section  230  is  not  by  any  means  easy 
of  construction. 

(4-n)     In  Annaji  Apaji  v.  Ramji  Jivaji,<2>  the  plain-  section  290  of 
tiff  obtained  against  the  defendant  a  decree  on  the  15th  applies  only 
February,  1872,  for  possession  upon  his  mortgage,  and  in  ^plication  had 
attempting  to  take  possession  was  obstructed  by  another  under  it. 

/Utah    lRfM  \ 

mortgagee  of  the  defendant,  whereupon  the  plaintiff 
applied  for  removal  of  the  obstruction,  but  his  application 
was  rejected  on  the  ground  that  the*  second  mortgagee 
was  in  possession,  and  that  the  plaintiff  was  not  entitled 
to  possession  until  the  second  mortgage  was  redeemed. 
The  plaintiff  did  not  apply  for  execution  any  further. 
In  1884,  the  defendant  paid  off  the  second  mortgagee,  and 
on  27th  August,  1885,  the  plaintiff  presented  an  applica- 
tion for  execution  of  his  decree  of  1872.  It  was  held 
(1)  I.  L.  R.,  5  Bom.,  246.  |  (a)  I.  L.  E.,  10  Bom.,  848. 
87 


690     THE  SECOND  SCHEDULE,  THIRD  DJVJ810N — APPLICATIONS.   [ART,  179 


Description  of  application. 


M  H. 

Bar  under  sec- 
tion 290  cannot 
be  pleaded  after 
sale  and  par- 
ohaser  has  ac- 
quired rightfl 
under  the  sale, 
Aot  X  of  1877. 
(August  1883.) 


Application  to 
be  affected  by 
twelve  years' 
rule,  the  previ- 
ous one  should 
have  been 
granted  within 
the  meaning  of 
clause  3  of  sec. 
280  of  Act  X  of 
1977. 

Decree  dated 
1862. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Three  years 

that  the  execution  of  the  decree  was  barred,  no  applica- 
tion for  execution  having  been  made  since  1873,  and  that 
this  Article  (179)  governed  the  case,  the  previous  appli- 
cation not  having  been  made  under  section  230  of  the 
Civil  Procedure  Code. 

(4-0)  Iu  Gangathara  v.  Rathabai/1)  judgment-debtor 
after  sale  of  his  land,  but  before  its  confirmation  under 
section  312  of  the  C.  P.  C,  objected  to  the  execution  of 
the  decree  on  the  ground  that  the  decree  was  barred 
under  section  230.  The  court,  while  holding  that  the 
objection  was  taken  when  too  late,  observe :  "  We  are  of 
opinion  that  the  exception  of  limitation  should  have  been 
taken  before  the  sale.  The  rights  of  the  purchaser,  who 
is  not  a  party  to  these  proceedings,  are  involved  in  the 
sale,  and  would  be  affected  by  its  oancelment.  If  the 
court  had  omitted  to  serve  the  preliminary  notice  of  exe- 
cution after  one  year  from  the  date  of  the  decree,  that 
might  possibly  have  affected  the  jurisdiction,  and  might 
hate  vitiated  all  subsequent  proceedings.  But  in  this 
case  the  court  had  jurisdiction  unless  the  decree  was 
barred ;  the  exception  was  not  taken,  and  it  appears  to 
have  been  overlooked  by  the  court.  We  think  it  too  late 
to  take  the  plea  after  the  purchaser  has  acquired  rights 
under  the  sale." 

(4-p)  In  Chengaya  v.  Appasami/*)  an  application  to 
execute  a  decree  of  1862,  was  made  under  section  230 
of  C.  P.  C.  on  the  14th  December,  1877  and  a  notice  was 
issued  to  the  judgment-debtor  under  section  248,  and  as 
no  further  steps  were  taken  it  was  rejected.  A  subse- 
quent application  made  within  three  years  from  the 
14th  December,  1877,  was  rejected  by  the  Lower  Appel- 
late Court  on  the  ground  that  when  that  application  waa 
made,  more  than  twelve  years  had  elapsed  from  the  date 
of  the  decree,  and  more  than  three  years  from  the  date 
(1)  I.  L.  R.,  6  Mad.,  237.        |      (2)  I.  L.  R.,  6  Mad.,  172 


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ABT.  179]   TM  MCOND  8CHBDULK,  THIRD  DIVISION — APPLICATIONS.     691 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Three  years. 

that  t).  P.  C.  began  to  operate.  The  High  Court  held  in 
August,  1882  :  "  It  appears  to  us,  that  the  application  on 
the  14th  December,  1877,  though  an  application  under 
the  section  in  the  sense  of  the  3rd  clause  of  section  230, 
was  not  an  application  which  was  granted  within  the 
meaning  of  that  clause.  It  was  simply  an  application  on 
which  a  notice  was  issued  under  section  248 ;  the  appli- 
cation cannot  be  brought  therefore  within  the  twelve  years' 
rule  of  section  230,  and  as  his  last  application  was  presented 
on  the  10th  December,  1880,  (not  as  the  District  Judge 
says,  18th  December)  it  was  within  three  years  from  the 
last  preceding  application  and  is  in  time.'1 

(4-q)     In  Sohan  Lai  t>.  Karim  Bakhsh,^)  assignee  of   a.  H.rejected 
the  decree  dated  March,  1872,  applied  for  execution  of  Section  230  exe- 
the  decree  in  February,  1878.     The  previous  application   Scmof Fe£  °*" 
dated  December,  1877,  made  under  section  230,  had  been   p^iSSs^SpiS 
rejected  for  the  decree-holder's  failure  to  deposit  batta  rejected  under1 
for  the  service  of  notice  required  by  section  248  of  the   Decreewai'dat- 
C.  P.  0.     The  Lower  Court  rejected  the  application  as  "*  Ma^ch,  1872' 
barred.  .  It  was  held  that  the  concluding  clause  of  section 
230  referred  to  the  question  of  limitation  and  not  that  of 
diligence,  and  that  the  application  was  barred   as    the 
previous  application  had  been  made  under  section  230. 

(4-r)     In   Bhawani   Das  v.  Daulat  Ram,(2)  a  decree  section  sao  of 
dated  1863  was  allowed  to  be  executed  on  an  application  l&^doee  not  re- 
dated  4th  March,  1880,  under  section  230  of  Act  XIV  of  J*bffi«x 
1882,  which  was  passed  on  the  17th  March,  1882,  and  qu^vbh.) 
came  into  force  on  the  1st  June,  1882 ;  another  applica- 
tion for  execution  was  made  on  the  3rd  March,  1883.    The 
question  for  decision  was  whether  section  230  of  Act 
XIV  of  1882  revived  the  decree  which  had  been  barred 
before  it  began  to  operate.     It  was  held  that  the  decree 
was  once  allowed  the  benefit  of  three  years'  grace  under 
the  last  paragraph  of  section  230  of  the  Code  of  1877, 
(1)  I.  L,  E.,  2  AIL,  281.  |         (2)  I.  L.  R.,  6  All.,  889. 


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692      THE  SECOND  SCHEDULE,  THIRD  DIVISION — APPLICATIONS.    [ART.  179 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


F.B. 
Section  210  of 
XIV  of  1881 

Brolongs  the 
f  e  of  a  decree 
which  was 
alive  when  the 
Code  was  pas- 
sed. 


C.  H. 

Dissented  from 
the  shore  F.  B. 
ruling. 
(Jan.  1886.) 


Three  years. 

and  then  became  dead  or  nnexecutable,  and  that  if  Ihere 
is  nothing  in  section  230  of  the  Code  which  positively 
prohibits  the  execution  of  such  decrees,  there  is  nothing 
from  which  to  conclude  that  was  intended  to  revive 
decrees  which  had  become  dead  before  the  Code  of  1882 
became  law. 

(4-8)  The  above  case  was  distinguished  from  Mu- 
sharraf Begam  v.  Ghalib  Ali/1)  in  which  an  application 
for  execution  of  a  decree  dated  30th  November,  1870,  was 
made  under  section  230  of  Act  XIV  of  1882 ;  this  was 
a  Full  Bench  oase,  and  a  majority  of  three  Judges,  Stuart, 
C.  J.  and  Old  field,  J.,  dissenting,  held,  following  Sreenath 
Gooho  v.  Yasoof  Khan,(*>  that  the  application  might  be 
granted,  it  being  the  first  made  under  section  230  of  Act 
XIV  of  1882,  and  the  first  made  after  the  expiration  of 
twelve  years  from  the  date  of  the  decree,  and  not  being 
barred  by  the  last  paragraph  of  section  230  of  that  Act 
read  in  conjunction  with  the  third  paragraph  of  section 
230  of  Act  X  of  1877,  the  law  in  force  mentioned  in  the 
last  paragraph  of  section  230  of  Act  XIV  of  1882  refer- 
ring to  the  Law  of  Limitation  in  force  at  the  time  the  Act 
was  passed  and  not  to  the  third  paragraph  of  section  230 
of  Act  X  of  1877.  The  above  ruling  was  followed  in 
Jokhu  Bam  v.  Bam  Din/8)  in  which  thejholder  of  a  decree 
dated  June,  1872,  applied  for  its  execution  in  February, 
1885,  the  previous  application  having  been  made  in 
November,  1883.  It  was  held  that  the  application  was 
not  barred  under  section  230  of  the  Civil  Procedure 
Code. 

(4-t)  In  Goluck  Chandra  Mytee  v.  Harapriah  Debi,<4> 
decree-holder  applied  on  the  10th  November,  1884,  for  the 
execution  of  a  money  decree  dated  5th  July,  1872.  The 
Lower  Court,  on  the  authority  of  the  above  Full  Bench 


(1)  I.  L.  R.,  6  All.,  189. 

(2)  I.  L.  R.,  7  Calc,  666. 


(8)  I.  L.  B.,  8  All.,  419. 
(4)  I.  L.  R.,  12  Calc,  569. 


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ART.  179]     THE  SECOND  SCHEDULE,  THIRD  DIVISION — APPLICATIONS.      693 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Three  years. 

ruling  of  the  Allahabad  High  Court,  allowed  the  appli- 
cation. Dissenting  from  the  above  Full  Bench  ruling,  it 
was  held  that  the  words  "  the  law  in  force  immediately 
before  the  passing  of  this  Code"  refer  to  and  include  Act 
X  of  1877,  as  amended  by  Act  XII  of  1879,  and  that  as  the 
application  was  not  made  within  the  period  prescribed 
by  section  230,  it  was  barred. 

(4-Tl)     In  Sreenath  Gooho  v.  Yusoof  Khan/1)  execu-  Execution  of 
tion  of   a   decree  dated  February,  1865,  of  more  than  than  twelve 

5 rears  c&n  be  al" 
owed  but  once ; 

the  20th  September,  1880,  and  certain  properties  named   tion  naming 

,  iii  it  iirkiiT  i  new  prop©rtie» 

in  the  schedule   was  attached  on  the    12th  November,  and  releasing 
1880 :  the  decree-holder  put  in  another  application  pray-  ready  attached 

r  rtr  r     j      is  a  fresh  appli- 

ing  for  the  release  of  the  properties  attached  conformably   cation. 

to  the  first  and  requesting  that  certain  other  properties 

named  in  the  second  application  be  attached.     It  was 

contended  that  the  second  application  might  be  accepted 

as  an  application  amending  and  supplementary  to  the 

original  application  of  the  20th  September.     It  was  hold 

that  the  execution  of  the  decree  was  barred  by  limitation, 

and   that  if  the   supplementary   list   of    property   was 

allowed  to  be  put  in  after  the  expiration  of  twelve  years, 

the  essential  portion  of  the  law   would  be  practically 

defeated. 

(4-V)     A  judgment-debtor  who,  though  able  to  pay  his  Judgment-deb- 

judgment-debt,  dishonestly  evades  payment  for  more  than  causing  delay 

twelve  years  by  excluding  service  of  warrants  by  taking  vantage  of  sec- 

.  i  .        xf    x  x  •  /•  tion3bof 

refuge  on  each  occasion  that  a  warrant  was  issued  in  some   c.  p.  o 


other  district,  and  making  applications  to  the  court  which 
had  the  effect  of  staying  execution  for  the  time,  is  guilty 
of  fraud  within  the  meaning  of  section  230  of  Criminal 
Procedure  Code,  and  is  not  entitled  to  take  advantage  of 
the  delay  which  he  fraudulently  caused.  It  was  held  that 
to  give  full  effect  to  the  penultimate  paragraph  of  section 
(1)  I.  L.  B.,  1  Calo.,556. 

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694      THK  8ECOND  SCHKUULB,  tfflkD  DIVISION — APPLICATIONS.   [ART.  179 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Case  where 
section  290  of 
C.  P.  C,  held 
not  to  apply. 
(October  1881.) 


Section  230 
does  not  render 
invalid  an  order 
passed  after 
twelve  years 
granting  appli- 
cation made 
before  twelve 
years  expired. 
(April  1883.) 


Three  years. 

230,  it  is  necessary  to  interpret  the  word  fraud  in  a 
wider  sense  than  that  in  which  it  is  used  in  English  Law. 
Annamalai  v.  Rnngasamy,*1) 

(4-W)  In  Visalatchi  Ammall  v.  Sivasankara  TakerW 
plaintiff  obtained  a  decree  in  1867,  in  a  Small  Cause  suit, 
against  his  debtor  since  deceased ;  the  decree  was  kept 
alive  till  the  13th  December,  1876,  when  the  decree-holder 
brought  a  suit  to  set  aside  certain  alienations  made  by 
the  judgment-debtor  fictitiously  and  fraudulently.  Hav- 
ing succeeded  in  the  suit,  the  decree-holder  again  applied 
for  execution  in  1879,  but  not  against  the  property  ficti- 
tiously alienated.  He  lastly  applied  on  the  28th  Septem- 
ber, 1880,  more  than  twelve  years  after  decree,  for  execution 
against  certain  immoveable  property  of  the  debtor  other 
than  the  property  fictitiously  alienated  in  the  debtor's 
widow's  possession.  It  was  held  that  as  the  obstacle  to 
execution  lay  in  the  antecedent  fraud  which  had  operated 
to  create  a  fictitious  transfer  of  the  property  from  the 
judgment-debtor,  the  decree-holder  was  not  barred  in 
respect  of  the  last  application,  and  that  the  question  is  not 
affected  by  the  fact  of  the  application  being  made  in 
respect  of  property  other  than  that  comprised  in  the  suit 
brought  by  the  decree-holder  to  hold  it  available. 

(4-X)  In  Virarama  v.  Annasami/8)  decree-holder 
applies  for  the  sale  of  the  hypothecated  property  in  March, 
1881,  in  execution  of  a  decree  dated  March,  1870.  In  July, 
1881,  an  order  was  made  for  sale.  In  September,  1881, 
the  decree-holder  applied  for  postponement  of  sale  up  to 
August,  1882,  but  before  an  order  was  passed  he  with- 
drew the  petition  on  the  7th  September,  and  on  the  18th, 
fresh  proclamation  of  sate  was  issued.  On  the  19th  Sep- 
tember, at  the  instance  of  the  defendant,  and  with  the 
consent  of  the  decree-holder,  the  sale  was  postponed  to 

(1)  I.  L.  R.,  6  Mad.,  365.        |        (2)  I.  L.  R.,  4  Mad.,  166. 
(ft)  I.  L.  R.,  6  Mad.,  369. 


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ART.  179]    THB  SBCOND  8CHKDULE,  THIRD  DIVISION — APPLICATIONS.       695 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Three  years. 

the  20th  January,  1882.  The  parties  produced  before  the 
Judge  on  the  30th  September  an  agreement  entered  into 
by  them  for  the  satisfaction  of  the  decree  aud  other 
debts,  and  the  agreement  was  returned  in  February,  1882. 
When  the  decree-holder  applied  for  sale  in  pursuance  of 
the  agreement,  the  defendant  objected  to  its  enforcement, 
a»d  the  Judge,  on  the  31st  of  March,  1882,  admitted  the 
objection  and  ordered  execution  of  the  decree  indepen- 
dently of  the  agreement.  The  defendant  contended  that 
the  court  had  no  power  to  issue  order  for  sale  after 
the  expiry  of  twelve  years  from  the  date  of  the  decree.  It 
was  held  that  the  terms  of  sections  230  do  not  render 
invalid  an  order  passed  after  twelve  years  from  the  date 
of  the  decree,  granting  an  application  for  execution  made 
before  the  twelve  years'  term  had  expired.     Turner,  0.  J.,   Turner,  c.  J., 

.  observes  on  the 

observes  :     It  is  no  doubt  true  that  the  position  of  the   position  of  the 

words  "shall be 

words  "  shall  be  granted"  lends  support  to  the  arguments   granted"  in 

.  section  230. 

that  delay  on  the  part  of  the  court  which  may  or  may  not 
be  available,  may  deprive  a  decree-holder  of  the  benefit  of 
his  decree  without  any  fault  on  his  part.  It  appears 
to  us,  however,  that  the  terms  of  the  law  do  admit  of  an 
interpretation  which  obviates  the  necessity  of  our  re- 
garding them  as  imposing  a  novel  and  unreasonable 
prohibition.  It  is  probable  that  if  the  draftsman  had 
not  so  arranged  the  clause  that  two  paragraphs  (one 
of  them  somewhat  lengthy)  are  necessary  to  define  the 
periods  from  which  limitation  was  to  run,  the  word 
"  shall  be  granted"  would  have  been  found  in  another 
place.  There  can  be  little  doubt  the  limitation  was 
intended  to  apply  to  the  application  and  not  to  the  order 
passed  thereon,  and  that  the  words  prescribing  the  limi- 
tation are  to  be  referred  to  the  words  "  application  to 
execute  the  decree"  and  not  the  word  '  granted'.  " 

(4-V)     The  holder  of  a  decree  dated  January,  1869,   Condition  in  a 

,    .    .  .  .,,     .,        .     ,  ,   ,  .       compromise 

entered  into  a  compromise  with  the  judgment-debtor  in  that  in  default 


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696     THE  SECOND  8CHKDULE,  THIRD  DIVISION — APPLICATIONS.    [AET.  179 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


of  certain  num- 
ber of  instal- 
ment* the  de- 
cree should  be 
executed  in  fall 
cannot  prevent 
limitation. 
(Jan.  1877.) 


A.  H.  held  that 
application 
being  within 
three  years 
from  the  dates 
that  9th  k  10th 
instalments  of 
decree  became 
doe  was  within 
time  under  Arti- 
cle 167  of  Act  IX 
of  1871. 
(April  1879.) 


A.  H.  held 
decree  allowing 
payment  of  au 
Instalments  in 
default  of  one 
should  be  exe- 
cuted in  one 
lump. 
(Sept.  1879.) 


Three  years. 

August,  1869,  agreeing  to  accept  payment  by  instalments 
which  the  court  ratified,  and  struck  off  the  execution  case. 
In  February,  1873,  the  decree-holder  applied  for  and 
obtained  in  April,  1873,  a  certificate  under  section  285  of 
Act  VIII  of  1859.  No  proceedings  were  taken,  as  judg- 
ment-debtor resumed  payment  of  instalments  to  the 
decre-holder  direct.  The  compromise  having  acknow- 
ledged the  decree-holder's  right  to  execute  the  decree  if 
any  two  consecutive  instalments  were  not  paid,  the 
decree-holder  in  January,  1876,  applied  for  execution. 
It  was  held  that  such  subsequent  proceedings  when 
execution  of  the  original  decree  had  been  already  barred 
could  not  avail  to  keep  the  decree  alive.  Stowell  v. 
Billings.O) 

(4-Z)  In  Kanchan  Singh  v.  Sheo  Prasad,  W  a  decree 
for  the  payment  of  money  by  instalments  directed  that,  if 
the  judgment-debtor  failed  to  pay  two  instalments  in 
succession,  the  decree-holder  should  be  entitled  to  enforce 
payment  of  the  whole  amount  due  under  the  decree.  The 
decree-holder,  alleging  that  a  portion  of  the  ninth 
instalment  was  payable  and  that  the  whole  of  the  tenth 
(the  last)  instalment  was  due,  appljed  to  enforce  payment 
of  the  monies  due  under  the  decree.  It  was  held  per 
Pearson,  J.,  that  whether  former  instalments  had  been 
paid  or  not  was  immaterial,  and  the  application  being 
within  three  years  from  the  date  on  which  the  ninth  and  . 
tenth  instalments  became  due,  was,  with  reference  to 
Article  167,  schedule  2  of  Act  IX  of  1871,  within  time. 

(5-a)  In  Shib  Dat  v.  Kalka  Prasad,^)  the  decree 
provided  for  payment  of  money  by  instalments,  with  a 
proviso,  that  in  the  event  of  default  decree  should  be 
executed  for  the  whole  amount;  it  was  held  that  the 
decree-holder  was  bound  strictly  under  the  wording  of 

(1)  I.  L.  R.,  1  All.,  860.  |  (2)  I.  L.  E.,  2  All.,  291. 

(3>  I.  L.  B.,  2  AU.,  448. 


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ART.  179]    THE  8RC0ND  SCHEDULE,  THIRD  DIVISION— APPLICATIONS.     697 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Three  years. 

the  decree  to  execute  it  in  one  lamp  when  the  first 
default  occurred,  and  that  his  failure  to  have  applied  for 
execution  within  three  years  from  the  date  of  first  default 
barred  the  decree. 

(5-b)  In  Asmatullah  Dalai  v.  Kally  Churn  Mitter,0> 
decree  dated  12th  June,  1875,  provided  for  payment  of 
debt  by  monthly  instalments,  and  for  the  realization  of 
the  entire  debt  by  execution  on  failure  to  pay  any  three 
successive  instalments.  The  1st  instalment  was  due  in 
July,  1875,  and  the  last  in  October,  1877.  Default  was 
made  in  payment  of  the  first  three  instalments.  But  the 
decree-holder  without  applying  for  execution,  accepted 
subsequent  payment.  On  the  13th  of  December,  1879, 
he  applied  for  execution  for  the  amount  then  due.  It 
was  held  that  the  period  of  limitation  began  to  run  on  the 
3rd  default  taking  place  and  that  no  subsequent  pay- 
ment could  stop  limitation  once  begun,  and  that  the  decree 
holder  was  still  entitled  to  the  benefit  of  clause  6  of  this 
Article,  as  respects  any  instalments  ordered  in  the  decree, 
and  which  fell  due  on  dates  not  exceeding  three  years 
before  the  application  was  filed.  The  court  observed, 
under  the  decree  the  decree-holder  had  several  courses 
open  to  him,  subject,  of  course,  to  the  rules  of  limitation. 
He  could  have,  upon  the  occurrence  of  the  defaults,  forth- 
with taken  out  execution  of  the  whole  decree,  or  he  could 
have  executed  for  each  instalment  severally  within  three 
years  after  it  became  due,  or  he  might  have  contented 
himself  with  accepting  whatever  was  paid  from  time  to 
time,,  and  then  applied  for  execution  of  the  decree  for  the 
outstanding  balance,  taking  care  to  do  so  before  the  ex- 
piry of  three  years  from  the  date  of  the  decree  or  from 
the  date  of  the  3rd  default  if  he  thought  the  terms  of 
the  decree  altered  the  period  of  limitation.     The  above 


c.  H. 

Instalment  de- 
cree   providing 
for  recovery  of 
entire  amount 
in  default  of 
any  three  suc- 
cessive instal- 
ments, does  not 
bar  the  instal- 
ments due  for 
three  years 
preceding  the 
application  for 
execution. 
(March  1881.) 


0.  H. 
(March  1888.) 


(1)  I.  L.  B.,  7  Gale,  66. 


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698     THI  8IC0ND  8CHIDULI,  THIRD  DIVISION — APPLICATIONS.   [ART.  179 


Description  of  application. 


Period   of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Three  years. 

ruling  was  followed  in  Nilmadhub  Chuckerbutty  v.  Ram- 

sodoy  Ghose.W 

o.  h.  (5-0)     In  Judhistir  Patro  v.  Nobin  Chandra  Khela/*> 

held  as  barred  the  decree  passed  in  accordance  with  a  compromise  directed 

not  applied  for   payment  by  instalments,  and  provided  that  in  default  of 

▼ean  from  first  payment  of  any  one  instalment,  the  agreement  for  pay- 

cJt*  ment  by  instalments  should  come  to  an  end,  and  that  the 

whole  sum  should  become  payable.     The  decree-holder 

who  applied  for  execution  stated  that  the  judgment-debtor 

had  paid  the  first  instalment,  but  had  made  default  of  the 

remaining  instalments,  and  prayed  for  execution  for  the 

amount  due  with  interest  from  the  due  date  of  the  second 

instalment.     The  judgment-debtor  denying  payment  of 

the  first  instalment,  pleaded  limitation.     The  Lower  Court 

allowed  the  application  on  the  authority  of  Nilmadhub 

Chuckerbutty  v.  Ramsodoy  Ohose/9>  though  it  found  as  a 

fact  that  the  judgment-debtor  had  not  paid  any  of  the 

The  question       instalments.     It  was   held  that  the  question   whether  a 

decree-holder      decree-holder  may  waive  the  benefit  of  the  provision  in  an 

may  waive  the 

benefit  of  the      instalment  decree  for  the  whole  sum  becoming  due  on 

provision  in  an  . 

instalment  de-    failure  of  any  one  instalment  or  must  execute  his  decree 

eree  is  a  ques- 
tion purely  of    within  three  years  from  the  due  date  of  the  first  instalment 

construction  to*.  . 

be  decided  on      of  which  default  is  made  in  payment,  is  a  question  purely 
decree.  of  construction  to  be  decided  on  the  terms  of  the  whole 

decree  in  each  case,  and  that  in  this  case  the  application 
was  hatred  as  the  judgment-creditor  had  not  applied  for 
execution  within  three  years  from  the  date  of  the  first 
default.  The  court  observed  that  upon  the  terms  of  the 
decree,  the  decree-holder  had  no  option  to  waive  his 
right  to  execute  for  the  whole  amount,  and  having  neg- 
lected to  take  advantage  of  the  privilege  given  him  in  the 
decree,  he  was  too  late  to  realise  anything. 
Decree-holder  (5-d)     In  Radha  Prasad  Singh  v.  Bhagwan  RaL<*> 

entitled  to   lar-  o  ©  i 

ger  sum  in  case  .         _ 

of  defaultof  any  a)  T.  L.  R.,  9  Calc,  867.  I        (3)  I.  L.  R.,  9  Calc.  867. 

one  instalment  (2)  L  L.  R<>  18  Calo#|  78.  |         (4)  L  L  Rf  5  ^  ^ 


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ART.  179]    THB  SBCOND  SCHEDULE,  THIRD  DIVISION — APPLICATIONS.     699 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Three  years. 

decree  dated  30th  May,  1867,  provided  for  payment  of  a  waives  his  right 

larger  sum  in  default  of  any  one  of  the  instalments,  instalments 

Decree-holder  had  been  paid  though  not  regularly  in  full,  uuTis  estop] 


all  the  instalments  previous  to  September,  1876,  for  the  larger 
which  month  he  had  received  only  a  part.  His  appli-  (K^iW) 
cation  of  7th  May,  1877,  for  execution  for  the  larger 
amount  was  struck  off  the  file,  and  he  had  subsequently 
accepted  the  remaining  instalments  regularly.  On  the 
28th  August,  1878,  he  had  applied  for  payment  of  instal- 
ment paid  into  court.  On  the  8th  September,  1881,  he 
applied  for  execution  for  the  larger  amount  payable 
under  the  decree  with  reference  to  the  default  in  Sep- 
tember, 1876.  The  court  refusing  to  grant  the  application, 
held  that  the  acceptance  by  the  decree-holder  of  the 
instalments  falling  due  after  September,  1876,  amounted 
to  a  waivor  of  his  right  to  execute  the  decree  for  the 
larger  amount,  and  that  by  such  waivor  he  was  estopped 
from  recovering  such  larger  amount.  Straight,  J.,  observes 
that  the  application  of  the  28th  August,  1878,  was  not  a 
step  in  aid  of  execution  of  the  decree  in  the  shape  in 
which  he  had  previously  sought  execution,  and  that  the 
present  application  was  therefore  barred. 

(5-6)     In  Dulsook  Battanchand  r.  Ghugon  Narrun/1)    b.  h.  held  in. 
decree  of  14th  June,  1873,  for  Re.  123,  directed  payment  providing  for 
by  yearly  instalment  of  Rs.  28,  with  a  proviso  that  in  w^Se°ni  de- 
case  of  default  made  in  the  payment  of  any  one  metal-  staiment  is  not 
ment,  the  whole  amount  should  become  payable  at  once,     acoepta^oeof 

The  1st  instalment  which  fell  due  on  the  14th  June,  JajSent!1' 
1874,  was  not  paid.  2nd  instalment  was  paid  into  court 
on  the  2nd  April,  1875,  and  the  3rd  instalment  on  the  13th 
March^  1876  ;  the  plaintiff  applied  on  the  27th  June,  1877, 
for  execution  of  the  whole  decree  and  the  question  was 
whether  the  right  to  such  execution  was  barred.  Westropp, 
0.  J.,  holding  that  it  is  barred,  observes :  "  We  think  that 

(1)  I.  L.  tt.,  2  Bom.,  866. 


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700      THI  SECOND  8CH1DUL*,  THIRD  DIVI8ION— APPLICATION.    [ ART.  179 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Three"  years. 

"  the  whole  amount  decreed  became  due  on  the  first  default 

"  in  payment  of  the  instalments,  its.,  on  the  14th  June, 

"  1874,  so  that  three  years  and  nine  days  had  elapsed 

"when  the  plaintiff  made  his  present   application  for 

"  execution.    The  Full  Bench  case  of  Gnmna  Dambershet 

M  v.  Bhiku  Hariba/1)  was  decided  upon  the  Limitation 

"  Act  XIV  of  1859.     The  principles,  however,  on  which 

The  provision     "  that  case  was  decided  apply  in  this  case.     There  is  not 

to  instalment      "  in  the  last  clause  of  Article  167  of  schedule  2  of  Act 

be  found  in  179  "  IX  of  1871,  which  clause  relates  to  decrees  payable 

1877,  or  167  of  "  by  instalments,  any  provision  similar  to  that  in  Article 

the  Act  of  1871.  ;  i     j    i  .al  *.a 

"  75  of  the  same  schedule  with  respect  to  promissory 
"notes   or  bonds  payable   by  instalments,   where  such 
"  notes  or  bonds  provide  that  if  default  be  made  in  pay- 
"  ment  of  one  instalment,  the  whole  shall  be  due,  fixing 
"  that  the  period  of  limitation  shall  begin  to  run  from 
"  the  time  of  the  first  default,  unless  where  the  obligee 
"  waives  the  benefit  of  the  provision,  and  then  when  fresh 
"  default  is  made.     Nor  does  there  appear  to  be  in  the 
"  new  Limitation  Act  XV  of  1877,  schedule  2,  Article  179, 
"  clause  6,  relating  to  decrees  payable  by  instalments  any 
"  such  provision." 
M.  h.  held  ap-       (5-f)     In  Appayya  v.  Papayya/*)  a  decree  was  passed 
execution  to're-  by  consent  in  1872,  for  paymeut  to  plaintiff  through  the 
ment  not  barred  court  of  Rs.  300,  by  fifteen  annual  instalments,  on  Feb- 
wahred  to  re-    ruary  20th  in  each  year,  and  in  default  of  payment   of 
amount  under    any  instalment  tbe  whole  amount  became  recoverable, 
(Aug.  i88i.)        and  four  years'  instalments  were  paid  out  of  court  and 
default  made  on  February  20,  1877,  and  plaintiff  applied 
to  recover  the  instalment  of  1877  by  execution  in  Novem- 
ber, 1879,  and  March,  1880.    It  was  held  that  the  appli- 
cation of  November  1879,  was  not  barred  under  clause  B, 
Article  179,  inasmuch  as  when  the  Indian  Limitation  Act 
1877,  came  into  force,  (October  1, 1877),  the  application 
(1)  I.  L.  R.,  1  Bom.,  125.       |       (2)  I.  L.  R.,  3  Mad.,  256. 


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ART.  180]    THl  SECOND  SCHEDULE,  THIRD  DIVISION — APPLICATIONS.      701 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


I  Three  years. 

was  not  barred  under  clause  6,  Article  167,  schedule  2 
of  the  Indian  Limitation  Act,  1871,  and  that  the  provision 
as  to  the  whole  amount  becoming  recoverable  at  once  if 
default  was  made  did  not  affect  the  admissibility  of 
the  application  for  execution,  because  that  provision  had 
not  been  enforced  and  the  obligation  to  pay  by  instal- 
ments was  still  subsisting. 


180. — To  enforce  a  judgment, 
decree  or  order  of  any 
Court  established  by 
Royal  Charter  in  the 
exercise  of  its  ordinary 
original  civil  jurisdic- 
tion, or  an  order  of  Her 
Majesty  in  Council. 


Twelve  years. 


When  a  present  right 
to  enforce  the  judg- 
ment decree  or  or- 
der accrues  to  some 
person  capable  of 
releasing  the  right : 

Provided  that  when 
the  judgment,  de- 


cree or  order  has  been  revived,  or  some  part  of  the  prin- 
cipal money  secured  thereby,  or  some  interest  on  such 
money  has  been  paid,  or  some  acknowledgment  of  the* 
right  thereto  has  been  given  in  writing,  signed  by  the 
person  liable  to  pay  such  principal  or  interest,  or  his 
agent,  to  the  person  entitled  thereto  or  his  agent;  the 
twelve  years  shall  be  computed  from  the  date  of  such 
revivor,  payment  or  acknowledgment,  or  the  latest  of 
such  revivors,  payments  or  acknowledgments,  as  the 
case  may  be. 


(a) 


The  Code  of  Civil  Procedure  now  here  speaks  of  Giving  notice 

a  decree  being  revived.     White,  J.,  in  Ashootosh  Dutt  v.  has  theeffectof 

Doorga  Churn  Chatterjee,*1)  has  shown  that  the  notice  to  ment  on  the 

,  ,  .  ,    ,,       „    ,  ,,  ,  Original  Side  of 

show  cause,  which  the  Code  requires  after  one  year,  has  the  High  Court. 

•     i     ^  «.      ,     #         .    .  •     -i  x      1.  •  r  iv  Section  230  of 

precisely  the  same  effect  of  reviving  a  judgment  which  the  thec.p.  c,  does 

old  writ  of  Seire  facias  had.     Section  230  of  the  Code  of  limitation  pres- 

Civil  Procedure  does  not  affect  the  period  of  limitation  pre-  Article. 

(Dec   1880 ) 

scribed  by  this  Article.     Article  179  expressly  refers  both 

to  Article  180  and  to  section  230  of  the  Civil  Procedure 

(1)  I.  L.  R.,  6  Calc,   504. 


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702      THK  8BCOND  8CHIDULI,  THIRD  DIVI8ION — APPLICATIONB.  [ABT^  180 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  ran. 


Application  to 
enforce  an  order 
of  P.  C.  falls 
under  this  Arti- 
cle. 
(Jan.  1883.) 


Twelve  years. 

Code ;  bat  this  Article  is  absolute  and  contains  no  refer* 
euce  to  section  230.  Such  a  reference  might  have  been 
expected  if  this  Article  also  was  intended  to  be  in  any 
way  controlled  by  that  section.  Oanapathi  v.  Balasun- 
dara.M  The  above  decision  was  followed  by  the  Bombay 
High  Court  in  Mayabhai  Prembhai  v.  Tribhuvandas 
Jagjivandas.W 

(b)  In  Luchman  Persad  Singh  v.  Kishun  Pershad 
Singh/3)  it  was  held  that  although  an  order  of  the  Privy 
Council  is  the  paramount  decision  in  the  suit,  and  any 
application  to  enforce  it  is,  in  point  of  law,  an  applica- 
tion to  execute  the  order  and  not  the  decree  which  it 
confirmed,  such  applications  are  governed  by  this  Article. 

(1)  I.  L.  R, 


,7  Mad. 

(3) 


540.       |    (2)  I.  L.  R.,  6  Bom.,  258. 
I.  L.  R.,  8  Calo.,  218. 


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ACT  No.  IX  OF   187 1. 


j  ACT  No.  XV  OF  1877. 

THE  INDIAN  LIMITATION  ACT,  1877. 


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702 


THK  KE< 


De8crij)ti<i 


LX  OF  1871 


Application  to 
•Jforoe  an  order 
<*  P.  C  falls 
iwider  this  Arti- 
cle. 

(Jan.  1883.) 


(\ 

ex\u  1  t 
wa\ 
dar  • 
Hit 
Ja<r/' 

(b 

Sin- 
Com., 
appli. 
tion  to 
confin 

(1) 


-  >  rocsciL  of  India.    Received  th* 
•  oh  the  24th  Mabch,  1871. 


iimtrtion  of  Suits  and  for 
■r  purposes. 

■mm  sanohdate  and  amend  the  law  relating 
"**  *******  cerfcain  aPPUcations  to  Courts  ; 
-_  spetfeat  to  provide  rules  for  acquiruJ 
■■k    .t  a  hereby  enacted  as  follows  :— 


PART   I. 
FMLDONABT. 


"The  Indian  Limitation   Act, 


1  India ;  bnt  nothing  contained 
F*m  II  and  III,  applies— 

w  first  day  of  April,  1873, 
1  Divorce  Act, 

1  YI  of  1831. 


1  fi«t  day  of  July,  1871. 


neots  mentioned  in  the 
\  be  rtpealed  to  the  extent  speci. 

ttctadaEe. 


: 


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ACT  No.  XV  OF  1877. 
THE   INDIAN   LIMITATION   ACT,   1877. 


An  Act  for  the  Limitation  of  Suits  and  for 
other  purposes. 


(Received  the  Assent  op  His  Excellency  the  Governor 
General  on  the  19th  July,  1877.) 

Whereas  it  is  expedient  to  amend  the  law  relating  to  Preamble 
the  limitation  of  suits,  appeals  and  certain  applications  to 
Courts  ;  And  whereas  it  is  alsp  expedient  to  provide  rules 
for  acquiring  by  possession  the  ownership  of  easements 
and  other  property  ;  It  is  hereby  enacted  as  follows  : — 


PART   I. 

PRELIMINARY. 


§  1.     This  Act  may  be  called  "  The  Indian  Limitation  Short  Title. 
Act,  1877 :" 

It  extends  to  the  whole  of  British  India ;  but  nothing  Extent  of  Act. 
contained  in  Sections  two  and  three  or  in  Parts  II  and  III 
applies — 

(a)  to  suite  under  the  Indian  Divorce  Act,  or 

(b)  to  suits  under  Madras  Regulation  VI  of  1881 ; 

And  it  shall  come  into  force  on  the  1st  day  of  October.  Commence- 

xneht. 

£  S3.     On  and  from  that  day  the  Acts  mentioned  in  the  Repeal  of  Acts. 
t  schedule  hereto  annexed  shall  be  repealed  to  the  ex* 
nt  therein  specified. 

tt  all  references  to  the  Indian  Limitation  Act,  1871,  References  to 
I  be  read  as  if  made  to  this  Act ;  and  nothing  herein 
1  that  Act  contained  shall  be  deemed  to  affect  any 
acquired,  or  to  revive  any  right  to  sue  barred,  under  8a*jnf  <*  **%■■ 
Act  or  under  any  enactment  thereby  repealed  ;  and  ed. 

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ACT  No.  IX  OF  1 87 1 


Pas8id  bt  the  Legislative  Council  of  India.    Received  the 
Asssnt  of  the  Govebnob-General  on  the  24th  March,  1871. 


An  Act  for  the  Limitation  of  Suits  and  for 
other  purposes. 

Preamble.  Whsreas  it  if  expedient  to  consolidate  and  amend  the  law  relating 

to  the  limitation  of  suits,  appeals  and  certain  applications  to  Courts  ; 
And  whereas  it  is  also  expedient  to  provide  rules  for  acquiring 
ownership  by  possession ;  It  is  hereby  enacted  as  follows : — 


Short  Title. 


Commence- 
ment. 

Repeal  of  enact- 


PART    I. 
PRELIMINARY. 

§  1.  This  Act  may  be  called  "The  Indian  Limitation  Act, 
1871 :" 

It  extends  to  the  whole  of  British  India ;  but  nothing  contained 
in  Sections  two  and  three  or  in  Parts  II  and  III,  applies — 
(a)  to  suits  instituted  before  the  first  day  of  April,  1878, 
(5)  to  suits  under  the  Indian  Divorce  Act, 
(e)  to  suite  under  Madras  Regulation  VI  of  1831. 

This  Act  shall  oome  into  force  on  the  first  day  of  July,  1871. 

§  2.  On  and  from  that  day  the  enactments  mentioned  in  the 
first  schedule  hereto  annexed  Bhall  be  repealed  to  the  extent  speci- 
fied in  the  third  column  of  the  same  schedule. 


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ACT  No.  XV  OF  1877. 
THE   INDIAN   LIMITATION   ACT,   1877. 


An  Act  for  the  Limitation  of  Suits  and  for 
other  purposes. 


(Received  the  Assent  op  His  Excellency  the  Governor 
General  on  the  19th  July,  1877.) 

Whereas  it  is  expedient  to  amend  the  law  relating  to  Preamble 
the  limitation  of  suits,  appeals  and  certain  applications  to 
Courts  ;  And  whereas  it  is  also  expedient  to  provide  rules 
for  acquiring  by  possession  the  ownership  of  easements 
and  other  property ;  It  is  hereby  enacted  as  follows  :— 


PART   I. 

PRELIMINARY. 

§  1.     This  Act  may  be  called  "  The  Indian  Limitation  Short  Title. 
Act,  1877 :" 

It  extends  to  the  whole  of  British  India ;  but  nothing  Extent  of  Act. 
contained  in  Sections  two  and  three  or  in  Parts  II  and  III 
applies — 

(a)  to  suite  under  the  Indian  Divorce  Act,  or 

(6)  to  suits  under  Madras  Regulation  VI  of  1881 ; 

And  it  shall  come  into  force  on  the  1st  day  of  October,  Commence- 
1877. 

§  2.     On  and  from  that  day  the  Acts  mentioned  in  the  Repeal  of  Acts, 
first  schedule  hereto  annexed  shall  be  repealed  to  the  ex* 
tent  therein  specified. 

But  all  references  to  the  Indian  Limitation  Act,  1871,  References  to 
shall  be  read  as  if  made  to  this  Act ;  and  nothing  herein 
or  in  that  Act  contained  shall  be  deemed  to  affect  any 
title  acquired,  or  to  revive  any  right  to  sue  barred,  under  **£*§?  °*  ^H98 
that  Act  or  under  any  enactment  thereby  repealed  ;  and  ed. 

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iT  PART  I. — PRELIMINARY.  [ACT  IX  OF  1871. 


Interpretation-        §  8.    In  this  Act,  unless  there  be  something  repugnant  in  the 
subject  or  context — 

"minor"  means  a  person  who  has  not  completed  his  age  of 
eighteen  years  i 

"  plaintiff"  includes  also  any  person  through  whom  a  plaintiff 
claims  i 

"  nuisance"  means  anything  done  to  the  hurt  or  annoyance  of 
another's  immovable  property  and  not  amounting  to  a  trespass  j 

"  bill  of  exchange"  includes  also  a  hundf  j 

"  trustee"  does  not  inolnde  a  benamfdar,  a  mortgagee  remaining 
in  possession  after  the  mortgage  has  been  satisfied,  or  a  wrong-doer 
in  possession  without  title  j 

"  registered"  means  duly  registered  under  the  law  for  the  regis- 
tration of  documents  in  force  at  the  time  and  place  of  executing 
the  document  referred  to  in  the  context  j 

"  foreign  country"  means  any  country  other  than  British  India ; 

and  nothing  shall  be  deemed  to  be  done  in  "  good  faith"  which  is 
not  done  with  due  care  and  attention. 


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ACT  XV  OP  1877.]  PART  I.— PBELIMINABY.  V 

nothing  herein  contained  shall  be  deemed  to  affect  the  Saving  of  Act 

Indian  Contract  Act,  Section  25.  tion  25.    ' 

Notwithstanding  anything  herein  contained,  any  suit  SuJtei for  which 

mentioned  in  No.   146  of  the  second  schedule  hereto  edbyt&Actk 

shorter  than 

annexed  may  be  brought  within  five  years  next  after  the  *****  prescribed 

said  first  day  of  October  1877,  unless  where  the  period   iwi. 

prescribed  for  such  suit  by  the  said  Indian  Limitation 

Act,  1871,  shall  have  expired  before  the  completion  of 

the  said  five  years ;  and  any  other  suit  for  which  the 

period  of  limitation  prescribed  by  this  Act  is  shorter  than 

the  period  of  limitation  prescribed  by  the  said  Indian 

Limitation  Act,  1871,  may  be  brought  within  two  years 

next  after  the  said  first  day  of  October,  1877,  unless  where 

the  period  prescribed  for  such  suit  by  the  same  Act  shall 

have  expired  before  the  completion  of  the  said  two  yeai  s. 

§  3.    In  this  Act,  unless  there  be  something  repugnant  interpretation- 
in  the  subject  or  context — 

'plaintiff'  includes  also  any  person  from  or  through 
whom  a  plaintiff  derives  his  right  to  sue  ;  *  applicant'  in- 
cludes also  any  person  from  or  through  whom  an 
applicant  derives  his  right  to  apply;  and  ' defendant' 
includes  also  any  person  from  or  through  whom  a  defend- 
ant derives  his  liability  to  be  sued : 

'  easement'  includes  also  a  right,  not  arising  from  con- 
tract, by  which  one  person  is  entitled  to  remove  and 
appropriate  for  his  own  profit  any  part  of  the  soil  belong- 
ing to  another,  or  anything  growing  in,  or  attached  to,  or 
subsisting  upon  the  land  of  another :  (Repealed  by  the 
Indian  Easements  Act  V  of  1882.) 

1  bill  of  exchange*  includes  also  a  hundi  and  a  cheque  : 

1  bond'  includes  any  instrument  whereby  a  person  obliges 
himself  to  pay  money  to  another,  on  condition  that  the 
obligation  shall  be  void  if  a  specified  act  is  performed,  or 
is  not  performed,  as  the  case  may  be  : 

'  promissory  note'  means  any  instrument  whereby  the 
maker  engages  absolutely  to  pay  a  specified  sum  of  money 
to  another  at  a  time  therein  limited,  or  on  demand,  or  at 
sight : 


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Vi  PART  II. — LIMITATION  OP  8UIT8,  APPEALS,  &C.       [ACT  IX  OF  1871. 


PART   XI. 

LIMITATION  OF  BUIT8,  APPEALS,  AND  APPLICATIONS. 

Dismissal  of  §  4.     Subject  to  the  provisions  contained   in  sections  fire  to 

stituted/ic  *      twenty* six  (inclusive),  every  suit  instituted,  appeal  presented,  and 

h^tatioa,  application  made  after  the  period  of  limitation  prescribed  therefor 

by  the  second  schedule  hereto  annexed,  shall  be  dismissed,  although 

limitation  has  not  been  set  up  as  a  defence. 

Explanation. — A  suit  is  instituted  in  ordinary  cases  when  the  plaint 
is  presented  to  the  proper  officer :  in  the  case  of  a  pauper,  when 
his  application  for  leave  to  sue  as  a  pauper  is  filed ;  and  in  the  case 
of  a  claim  against  a  company  whioh  is  being  wound  up  by  the  Oourt, 
when  the  olaimant  .first  sends  in  his  claim  to  the  official  liquidator. 

Illustration*. 

(a,)— Asuit  is  instituted  after  the  prescribed  period  <rf  limitation.  Limita- 
tion is  not  set  np  as  a  defence  and  judgment  is  given  for  the  plaintiff.  The 
defendant  appeals.    The  Appellate  Court  must  dismiss  the  suit. 

(6.)— An  appeal  presented  after  the  prescribed  period  is  admitted  and  re- 
gistered.   The  appeal  shall,  nevertheless,  be  dismissed. 


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ACT  XV  OP  1877.]      PART  II. — LIMITATION  OP  SUITS,  APPEALS,  <fec.  vii 

*  trustee'  does  not  include  a  benamidar,  a  mortgagee 
remaining  in  possession  after  the  mortgage  has  been  satis- 
fied, or  a  wrong-doer  in  possession  without  title  : 

'  suit'  does  not  include  an  appeal  or  an  application  : 

'  registered'  means  duly  registered  in  British  India  un- 
der the  law  for  the  registration  of  documents  in  force  at 
the  time  and  place  of  executing  the  document,  or  signing 
the  decree  or  order,  referred  to  in  the  context : 

1  foreign  country'  means  any  country  other  than  British 
India; 

and  nothing  shall  be  deemed  to  be  done  in  '  good  faith' 
which  is  not  done  with  due  care  and  attention. 


1 


PART  II. 

LIMITATION  OF  SUITS,  APPEALS  AND 
APPLICATIONS. 

§  4.     Subject  to  the  provisions  contained  in  sections   Dismissal  of 

a  J  f  ...  suits,  Ac,  insti- 

five  to  twenty-five  (inclusive),  every  suit  instituted,  appeal  tuted,  &c„  after 
presented,  and  application  made  after  the  period  of  limi-   tation. 
tation  prescribed  therefor  by  the  second  schedule  hereto 
annexed  shall  be  dismissed,  although  limitation  has  not 
been  set  up  as  a  defence. 

Explanation. — A  suit  is  instituted  in  ordinary  cases 
when  the  plaint  is  presented  to  the  proper  officer ;  in  the 
case  of  a  pauper,  when  his  application  for  leave  to  sue  as 
a  pauper  is  filed ;  and  in  the  case  of  a  claim  against  a 
Company  which  is  being  wound  up  by  the  Court,  when 
the  claimant  first  sends  in  his  claim  to  the  official  liqui- 
dator. 

IUustrations. 

fa.) — A  suit  is  instituted  after  the  prescribed  period  of  limitation. 
Limitation  is  not  set  up  as  a  defence  and  judgment  is  given  for  the 
plaintiff.  The  defendant  appeals.  The  Appellate  Court  must  dis- 
miss the  suit. 

(h.J^-An  appeal  presented  after  the  prescribed  period  is  admitted 
and  registered.    The  appeal  shall,  nevertheless,  be  dismissed. 


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702      THK  SECOND  SCHEDULE,  THIKD  D1VI8ION — APPLICATIONS.  [aRIV  180 


Description  of  application. 


Period  of 
limitation. 


Time  from  which  period 
begins  to  run. 


Application  to 
enforce  an  order 
of  P.  C.  falls 
under  this  Arti- 
cle. 
(Jan.  1883.) 


Twelve  years. 

Code ;  but  this  Article  is  absolute  and  contains  no  refer* 
euce  to  section  230.  Such  a  reference  might  have  been 
expected  if  this  Article  also  was  intended  to  be  in  any 
way  controlled  by  that  section.  Ganapathi  v.  Balasun- 
dara.M  The  above  decision  was  followed  by  the  Bombay 
High  Court  in  Mayabhai  Prembhai  v.  Tribhuvandas 
Jagjivandas.W 

(b)  In  Luchman  Persad  Singh  v.  Kishun  Pershad 
Singh/9)  it  was  held  that  although  an  order  of  the  Privy 
Council  is  the  paramount  decision  in  the  suit,  and  any 
application  to  enforce  it  is,  in  point  of  law,  an  applica- 
tion to  execute  the  order  and  not  the  decree  which  it 
confirmed,  such  applications  are  governed  by  this  Article. 

(1)  I.  L.  R,  7  Mad.,  640.       |    (2)  I.  L.  R.,  6  Bom.,  S58. 
(3)  I.  L.  R.,  8  Calc,  218. 


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ACT  No.   IX  OF   1871. 


ACT  No.  XV  OF  1877. 
THE  INDIAN  LIMITATION  ACT,  1877. 


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ACT  No.  IX  OF  1 87 1 


Passed  bt  the  Legislative  Council  of  India.    Received  the 
Assent  of  the  Governor-General  on  the  24th  March,  1871. 


An  Aot  for  the  Limitation  of  Suits  and  for 
other  purposes. 

Preamble.  Whirbas  it  is  expedient  to  consolidate  and  amend  the  law  relating 

to  the  limitation  of  suits,  appeals  and  certain  applications  to  Courts  ; 
And  whereas  it  is  also  expedient  to  provide  rales  for  acquiring 
ownership  by  possession  j  It  is  hereby  enacted  as  follows : — 


Short  Title. 


PART    I. 
PBELI1*INA&Y. 


Commence- 
ment. 

Repeal  of  enaet- 


§  1.  This  Act  may  be  called  "The  Indian  Limitation  Aot, 
1871 :" 

It  extends  to  the  whole  of  British  India ;  bnt  nothing  contained 
in  Sections  two  and  three  or  in  Parts  II  and  III,  applies — 

(a)  to  suite  instituted  before  the  first  day  of  April,  1873, 

(b)  to  suite  under  the  Indian  Divorce  Act, 

(c)  to  suits  under  Madras  Regulation  VI  of  1831. 

This  Act  shall  come  into  force  on  the  first  day  of  July,  1871. 

§  2.  On  and  from  that  day  the  enactments  mentioned  in  the 
first  schedule  hereto  annexed  shall  be  repealed  to  the  extent  speci- 
fied in  the  third  column  of  the  same  schedule. 


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ACT  No.  XV  OF  1877. 
THE   INDIAN   LIMITATION  ACT,   1877. 


An  Act  for  the  Limitation  of  Suits  and  for 
other  purposes. 


(Received  the  Assent  op  His  Excellency  the  Governor 
General  on  the  19th  July,  1877.) 

Whereas  it  is  expedient  to  amend  the  law  relating  to  Preamble 
the  limitation  of  suits,  appeals  and  certain  applications  to 
Courts  ;  And  whereas  it  is  also,  expedient  to  provide  rules 
for  acquiring  by  possession  the  ownership  of  easements 
and  other  property ;  It  is  hereby  enacted  as  follows  :— 


PART   I. 

PRELIMINARY. 


§  1.     This  Act  may  be  called  "  The  Indian  Limitation  Short  Title. 
Aot,  1877 :" 

It  extends  to  the  whole  of  British  India ;  but  nothing  Extent  of  Act. 
contained  in  Sections  two  and  three  or  in  Parts  II  and  III 
applies — 

(a)  to  suite  under  the  Indian  Divorce  Act,  or 

(&)  to  suits  under  Madras  Regulation  VI  of  1881 ; 

And  it  shall  come  into  force  on  the  1st  day  of  October,  Commence- 

-  __._.  metat. 

1877. 

§  2.    On  and  from  that  day  the  Acts  mentioned  in  the  Repeal  of  Acta, 
first  schedule  hereto  annexed  shall  be  repealed  to  the  ex* 
tent  therein  specified. 

But  all  references  to  the  Indian  Limitation  Act,  1871,  Beterences  to 
shall  be  read  as  if  made  to  this  Aot ;  and  nothing  herein 
or  in  that  Act  contained  fthall  be  deemed  to  affect  any 
title  acquired,  or  to  revive  any  right  to  sue  barred,  under  **£*&  of  ttMj* 
that  Act  or  under  any  enactment  thereby  repealed  ;  and  ed. 

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IT  PART  I. — PRELIMINARY.        [ACT  IX  OF  1871. 


Interpretation-        §  8.    In  this  Act,  unless  there  be  something  repugnant  in  the 
subject  or  context — 

"minor"  meant  a  person  who  has  not  completed  his  age  of 
eighteen  years ; 

"plaintiff"  includes  also  any  person  through  whom  a  plaintiff 
claims  | 

"  nuisance"  means  anything  done  to  the  hurt  or  annoyance  of 
another's  immovable  property  and  not  amounting  to  a  trespass ; 

"  bill  of  exchange"  includes  also  a  hundf  j 

"  trustee"  does  not  inolnde  a  benamfdar,  a  mortgagee  remaining 
in  possession  after  the  mortgage  has  been  satisfied,  or  a  wrong-doer 
in  possession  without  title  j 

"  registered"  means  duly  registered  under  the  law  for  the  regis- 
tration of  documents  in  force  at  the  time  and  place  of  executing 
the  document  referred  to  in  the  context ; 

"  foreign  country"  means  any  country  other  than  British  India ; 

and  nothing  shall  be  deemed  to  be  done  in  "  good  faith"  which  is 
not  done  with  due  care  and  attention. 


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ACT  XV  OF  1877.]  PART  I.— PBBLIMINABY.  V 

0 

nothing  herein  contained  shall  be  deemed  to  affect  the  Saving  of  Act 

Indian  Contract  Act,  Section  25.  won  25. 

Notwithstanding  anything  herein  contained,  any  snit  Sidtei for  which 

mentioned  in  No.   146  of  the  second  schedule  hereto  edbytfiaActis 

shorter  than 

annexed  may  be  brought  within  five  years  next  after  the  that  prescribed 

said  first  day  of  October  1877,  unless  where  the  period  i$7i. 

prescribed  for  such  suit  by  the  said  Indian  Limitation 

Act,  1871,  shall  have  expired  before  the  completion  of 

the  said  five  years ;  and  any  other  suit  for  which  the 

period  of  limitation  prescribed  by  this  Act  is  shorter  than 

the  period  of  limitation  prescribed  by  the  said  Indian 

Limitation  Act,  1871,  may  be  brought  within  two  years 

next  after  the  said  first  day  of  October,  1877,  unless  where 

the  period  prescribed  for  such  suit  by  the  same  Act  shall 

have  expired  before  the  completion  of  the  said  two  yeai  s. 

§  3.    In  this  Act,  unless  there  be  something  repugnant  interpretation- 
in  the  subject  or  context — 

'plaintiff'  includes  also  any  person  from  or  through 
whom  a  plaintiff  derives  his  right  to  sue  ;  '  applicant*  in- 
cludes also  any  person  from  or  through  whom  an 
applicant  derives  his  right  to  apply;  and  'defendant* 
includes  also  any  person  from  or  through  whom  a  defend- 
ant derives  his  liability  to  be  sued : 

1  easement'  includes  also  a  right,  not  arising  from  con- 
tract, by  which  one  person  is  entitled  to  remove  and 
appropriate  for  his  own  profit  any  part  of  the  soil  belong- 
ing to  another,  or  anything  growing  in,  or  attached  to,  or 
subsisting  upon  the  land  of  another :  (Repealed  by  the 
Indian  Easements  Act  V  of  1882.) 

'  bill  of  exchange*  includes  also  a  hundi  and  a  cheque  : 

1  bond'  includes  any  instrument  whereby  a  person  obliges 
himself  to  pay  money  to  another,  on  condition  that  the 
obligation  shall  be  void  if  a  specified  act  is  performed,  or 
is  not  performed,  as  the  case  may  be  : 

4  promissory  note*  means  any  instrument  whereby  the 
maker  engages  absolutely  to  pay  a  specified  sum  of  money 
to  another  at  a  time  therein  limited,  or  on  demand,  or  at 
sight : 


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VI  PART  II. — LIMITATION  OF  8UIT8,  APPEALS,  &C.       [ACT  IX  OF  1871. 


PART   XI. 

LIMITATION  OF  SUITS,  APPEALS,  AND  APPLICATIONS. 

Dismissal  of  §  4.    Subject  to  the  provisions  contained   in  sections  fire  to 

stituted,  ic..        twenty- six  (inclusive),  every  suit  instituted,  appeal  presented,  and 

Station!,  application  made  after  the  period  of  limitation  prescribed  therefor 

by  the  second  schedule  hereto  annexed,  shall  be  dismissed,  although 

limitation  has  not  been  set  up  as  a  defence. 

Explanation. — A  suit  is  instituted  in  ordinary  cases  when  the  plaint 
is  presented  to  the  proper  officer :  in  the  case  of  a  pauper,  when 
his  application  for  leave  to  sue  as  a  pauper  is  filed  j  and  in  the  case 
of  a  claim  against  a  company  which  is  being  wound  up  by  the  Court, 
when  the  claimant  .first  sends  in  his  claim  to  the  official  liquidator. 

Illustrations. 

(a.)— A  suit  is  instituted  after  the  prescribed  period  of  limitation.  limita- 
tion is  not  set  up  as  a  defence  and  judgment  is  given  for  the  plaintiff.  The 
defendant  appeals.    The  Appellate  Court  must  dismiss  the  suit. 

(6.)— An  appeal  presented  after  the  prescribed  period  is  admitted  and  re- 
gistered.   The  appeal  shall,  nevertheless,  be  dismissed. 


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ACT  XV  OF  1877.]      PART  II. — LIMITATION  OP  SUITS,  APPEALS,  &K3. 

'  trustee'  does  not  include  a  benamidar,  a  mortgagee 
remaining  in  possession  after  the  mortgage  has  been  satis- 
fied, or  a  wrong-doer  in  possession  without  title  : 

'  suit'  does  not  include  an  appeal  or  an  application  : 

'  registered'  means  duly  registered  in  British  India  un- 
der the  law  for  the  registration  of  documents  in  force  at 
the  time  and  place  of  executing  the  document,  or  signing 
the  decree  or  order,  referred  to  in  the  context : 

1  foreign  country'  means  any  country  other  than  British 
India; 

and  nothing  shall  be  deemed  to  be  done  in  '  good  faith' 
which  is  not  done  with  due  care  and  attention. 


PART  II. 

LIMITATION  OF  SUITS,  APPEALS  AND 
APPLICATIONS. 

§  4.     Subject  to  the  provisions  contained  in  sections   Dismissal  of 
five  to  twenty-five  (inclusive),  every  suit  instituted,  appeal  tnted,  AoV,  aiter 
presented,  and  application  made  after  the  period  of  limi-   tation. 
tation  prescribed  therefor  by  the  second  schedule  hereto 
annexed  shall  be  dismissed,  although  limitation  has  not 
been  set  up  as  a  defence. 

Explanation* — A  suit  is  instituted  in  ordinary  cases 
when  the  plaint  is  presented  to  the  proper  officer ;  in  the 
case  of  a  pauper,  when  his  application  for  leave  to  sue  as 
a  pauper  is  filed ;  and  in  the  case  of  a  claim  against  a 
Company  which  is  being  wound  up  by  the  Court,  when 
the  claimant  first  sends  in  his  claim  to  the  official  liqui- 
dator. 

Illustrations. 

(a.)—&  suit  is  instituted  after  the  prescribed  period  of  limitation. 
Limitation  is  not  set  np  as  a  defence  and  judgment  is  given  for  the 
plaintiff.  The  defendant  appeals.  The  Appellate  Court  must  dis- 
miss the  suit 

Cb.)-<-AjL  appeal  presented  after  the  prescribed  period  is  admitted 
and  registered.    The  appeal  shall,  nevertheless,  be  dismissed. 


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VU1 


PART  II. — LIMITATION  OP  SUITS,  APPBALS,  &C.      [ACT  IX  OP  1871. 


Proviso  where  §  5.  a.     If  the  period  of  limitation  prescribed  for  any  suit,  appeal 

Court  is  closed  ..     . .  \  ,  ,.-„..,-?.      _T 

whenSperiodjex-  or  application  expires  on  a  day  when  the  Court  is  closed,  the  suit, 

P**68,  appeal  or  application  may  be  instituted,  presented  or  made  on  the 

day  that  the  Court  re-opens  j 

o.  Any  appeal  or  application  for  a  review  of  judgment  may  be 
admitted  after  the  period  of  limitation  prescribed  therefor,  when 
the  appellant  or  applicant  satisfies  the  Court  that  he  had  sufficient 
cause  for  not  presenting  the  appeal  or  making  the  application  within 
such  period. 


Proviso  as  to 
appeals  and  ap- 
plications for 
review. 


Different 
periods  of  limi- 
tation prescrib- 
ed by  local  laws. 


Appeals  from 
decrees  of  High 
Courts  on  origi- 
nal side. 


§  6.  When,  by  any  law  not  mentioned  in  the  schedule  hereto 
annexed,  and  now  are  hereafter  to  be  in  force  in  any  part  of  British 
India,  a  period  of  limitation  differing  from  that  prescribed  by  tins 
Actifl  specially  prescribed  for  any  suits,  appeals  or  applications, 
nothing  herein  contained  shall  affect  such  law. 

And  nothing  herein  contained  shall  affect  the  periods  of  limitation 
prescribed  for  appeals  from,  or  application  to  review,  any  decree, 
order  or  judgment  of  a  High  Court  in  the  exercise  of  its  original 
jurisdiction. 
Legal  disability.  §  7.  If  a  person  entitled  to  sue  be,  at  the  time  the  right  to  sue 
accrued,  a  minor,  or  insane,  or  an  idiot,  he  may  institute  the  suit 
within  the  same  period  after  the  disability  has  oeased,  or  (when  he 
is  at  the  time  of  the  accrual  affected  by  two  disabilities)  after  both 
disabilities  have  ceased,  as  would  otherwise  have  been  allowed  from 
the  time  prescribed  therefor  in  the  third  column  of  the  second  sche- 
dule hereto  annexed. 


When  his  disability  continues  up  to  his  death,  his  representative 
in  interest  may  institute  the  suit  within  the  same  period  after  the 
death  as  would  otherwise  have  been  allowed  from  the  time  prescrib- 
ed therefor  in  the  third  column  of  the  same  schedule. 

Nothing  in  this  section  shall  be  deemed  to  extend,  for  more  than 
three  years  from  the  cessation  of  the  disability  or  the  death  of  the 
person  affected  thereby,  the  period  within  which  the  suit  moat  be 
brought. 

Illustrations. 

(a.)  The  right  to  sue  for  the  hire  of  a  boat  accrues  to  A  during  his  minority. 
He  comes  of  age  four  years  after  the  aocrual  of  the  right.  He  may  institute  fate 
suit  at  any  time  within  three  years  from  the  date  of  his  coming  of  age. 

(&.)  A,  to  whom  a  right  to  sue  for  a  legacy  has  aocrued  during  his  minor- 
ity, attains  fall  age,  eleven  years,  after  such  right  accrued.  A  has,  under  the 
ordinary  law,  only  one  year  remaining  within  which  to  sue.  But  under  tide 
section  an  extension  of  two  years  will  be  allowed  him,  making  in  all  a  period 
of  three  years  from  the  date  of  his  majority,  within  which  he  may  bring  his 
suit. 


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Legal  disability 


ACT  XV  OF  1877.]      PABT  II. — LIMITATION  OF  SUITS,  APPEALS,  &C.  IX 

§  5.    If  the  period  of  limitation  prescribed  for  any  Proriao  where 

,  ,.      ,.  .  j  i_         xi.       Qovut  ie  closed 

suit,  appeal  or  application  expires  on  a  day  when  the  when  period  ex- 
Court  is  closed,  the  suit,  appeal  or  application  may  be 
instituted,  presented  or  made  on  the  day  that  the  Court 
re-opens : 

Any  appeal  or  application  for  a  review  of  judgment  ****}*>  u  to 
may  be  admitted  after  the  period  of  limitation  prescribed  plications  for 
therefor,  when  the  appellaut  or  applicant  satisfies  the 
Court  that  he  had  sufficient  cause  for  not  presenting  the 
appeal  or  making  the  application  within  such  period. 

§  6.     When,  by  any  special  or  local  law  now  or  here-  special  and 
after  in  force  in  British  India,  a  period  of  limitation  is  limitation. 
specially  prescribed  for  any  suit,  appeal  or  application, 
nothing  herein  contained  shall  affect  or  alter  the  period 
so  prescribed. 


§  7.  If  a  person  entitled  to  institute  a  suit  or  make  Legal  disabi- 
an  application  be,  at  the  time  from  which  the  period  of 
limitation  is  to  be  reckoned,  a  minor,  or  insane,  or  an 
idiot,  he  may  institute  the  suit  or  make  the  application 
within  the  same  period,  after  the  disability  has  ceased,  as 
would  otherwise  have  been  allowed  from  the  time  pre- 
scribed therefor  in  the  third  column  of  the  second  schedule 
hereto  annexed. 

When  he  is,  at  the  time  from  which  the  period  of  limi-  Double  and 

...  successive  dic- 

tation is  to  be  reckoned,  affected  by  two  such  disabilities,  abilities. 

or  when  before  his  disability  has  ceased,  he  is  affected  by 
another  disability,  he  may  institute  the  suit  or  make  the 
application  within  the  same  period  after  both  disabilities 
have  ceased  as  would  otherwise  have  been  allowed  from 
the  time  so  prescribed. 

When  his  disability  continues  up  to  his  death,  his  legal 
representative  may  institute  the  suit  or  make  the  applica- 
tion within  the  same  period  after  the  death  as  would 
otherwise  have  been  allowed  from  the  time  so  prescribed. 

When  such  representative  is  at  the  date  of  the  death  Disability  of  re- 

presentaiive. 
affected  by  any  such  disability,  the  rules  contained  in  the 

first  two  paragraphs  of  this  section  shall  apply. 

B 


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PAST  IL — UMITITIOK  OP  SUITS,  APPEALS,  &€.      f  ACT  IX  OP  1871. 


(«.)  Arlghttosas  tor  an  heredn^  office  accrues  to  A,  who  a*  the  tone  is 
Six  yearn  after  the  accrual  of  the  right  A  rccorers  his  reason.  A  baa 
six  yuan,  under  the  ordinary  lav,  from  the  date  when  Us  insanity  ceased  with- 
in which  to  inssfcate  a sett.    gomfaailBii  of  tame  wfll  be  given  him  l 


(4.)  A  right  to  sne  as  landlord  to  recover  possession  from  a  tenant  accrues 
to  A,  who  is  an  idiot.  A  dies  three  yearn  after  the  accrual  of  the  right,  hie 
khcey  one*  inning  up  to  the  date  of  his  death,  A's  isymsunlsHie  in  interest 
has,  under  the  ordinary  law,  nine  years  from  the  date  of  A's  death  within  which 
to  bring  a  suit.    This  section  does  not  extend  that  time. 


Disability  of  $  8.    When  one  of  several  joint  creditors  or  claimants  is  tinder 

one  Joinl-credi-   ^  Mob  disability,  and  wnen  »  discharge  can  be  given  without  the 

concurrence  of  such  person,  time  will  ran  against  them  all :  but 

where  no  such  discharge  can  be  given,  time  will  not  run  as  against 

any  of  them  until  they  all  are  free  from  disability. 


i 


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ACT  XV  OP  1877.]      PAET  II. — LIMITATION  OF  SUITS,  APPEALS,  Ac.  xi 

Nothing  in  this  section  applies  to  suits  to  enforce  rights 
of  pre-emption,  or  shall  be  deemed  to  extend,  for  more 
than  three  years  from  the  cessation  of  the  disability  or 
the  death  of  the  person  affected  thereby,  the  period  within 
which  any  suit  must  be  instituted  or  application  made. 

Illustrations. 

(o.)-^The  right  to  sue  for  the  hire  of  a  boat  accrues  to  A  during 
his  minority.  He  attains  majority  four  yean  after  such  accruer. 
He  may  institute  his  suit  at  any  time  within  three  years  from  the 
date  of  his  attaining  majority. 

(6.)  — A,  to  whom  a  right  to  sue  for  a  legacy  has  accrued  during 
his  minority,  attains  majority  eleven  years  after  such  accruer.  A 
has,  under  the  ordinary  law,  only  one  year  remaining  within  which 
to  sue.  But  under  this  section  an  extension  of  two  years  will  be 
allowed  him,  making  in  all  a  period  of  three  years  from  the  date  of 
his  attaining  majority,  within  which  he  may  bring  his  suit. 

(e.) — A  right  to  sue  accrues  to  Z  during  his  minority.  After 
the  accruer,  but  while  Z  is  still  a  minor,  he  becomes  insane.  Time 
runs  against  Z  from  the  date  when  his  insanity  and  minority  cease. 

(d.) — A  right  to  sue  accrues  to  X  during  his  minority.  X  dies 
before  attaining  majority  and  is  succeeded  by  T,  his  minor  son. 
Time  runs  against  T  from  the  date  of  his  attaining  majority. 

(s.) — A  right  to  sue  for  an  hereditary  office  accrues  to  A,  who 
at  the  time  is  insane.  Six  years  after  the  accruer,  *A  recovers  his 
reason.  A  has  six  years,  under  the  ordinary  law,  from  the  date  when 
his  insanity  ceased  within  which  to  institute  a  emit.  No  extension 
of  time  will  be  given  him  under  this  section. 

(/.) — A  right  to  sue  as  landlord  to  recover  possession  from 
a  tenant  accrues  to  A,  who  is  an  idiot.  A  dies  three  years  after 
the  accruer,  his  idiocy  continuing  up  to  the  date  of  his  death. 
A's  representative  in  interest  has,  under  the  ordinary  law,  nine 
years  from  the  date  of  A's  death  within  which  to  bring  a  suit.  This 
section  does  not  extend  that  time,  except  where  the  representative 
is  himself  under  disability  when  the  representation  devolves  upon 
him. 

§  8.  When  one  of  several  joint-creditors  or  claimants  Disability  of 
is  under  any  such  disability,  and  whan  a  discharge  can  be  tor!  °m 
given  without  the  concurrence  of  such  person,  time  will 
run  against  them  all :  but  where  no  such  discharge  can 
be  given,  time  will  not  run  as  against  any  of  them  until 
one  of  them  becomes  eapable  of  giving  such  discharge 
without  the  concurrence  of  the  others. 


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Xli         PART  m%— COMPUTATION  OF  PERIOD  OF  LIMITATION.      [ACT  IX  OF  1871. 


Continuous  run-       §  9.    When  onoe  time  has  begun  to  run,  no  subsequent  disability 
ning  of  time.  .     .....     .  .         ., 

or  inability  to  sue  stops  it : 

Provided  that  where  letters  of  administration  to  the  estate  of  a 

creditor  hare  been  granted  to  his  debtor,  the  running  of  the  time 

prescribed  for  a  suit  to  reoover  the  debt  shall  be  suspended  while 

the  administration  continues. 


Suits  against  §  10.  Notwithstanding  anything  hereinbefore  contained,  no  suit 
ana  their  repre-  against  a  person  in  whom  property  has  become  Tested  in  trust  for 
eentatives.  any  gp^fio  purpose,  or  against  his  representatives,  for  the  purpose 

of  following  in  his  or  their  hands  such  property,  shall  be  barred  by 

any  length  of  time. 
Explanation. — A  purchaser  in  good  faith  for  value  from  a  trustee 

is  not  his  representative  within  the  meaning  of  this  section* 

Suits  on  foreign  §  11.  Suits  in  British  India  on  contracts  entered  into  in  a  foreign 
contracts. 

country  are  subject  to  the  rules  prescribed  by  this  Act. 


Foreign  limits*  §  12.  No  foreign  rule  of  limitations  shall  be  a  defence  to  a  suit 
in  British  India  on  a  contract  entered  into  in  a  foreign  country,  un- 
less the  rule  has  extinguished  the  contract,  and  the  parties  were 
domiciled  in  such  oountry  during  the  period  prescribed  by  such  mle# 


PART    III. 
COMPUTATION  OF  PERIOD  OF  LIMITATION. 

Exclusion  of  §  13.    In  computing  the  period  of  limitation  prescribed  for  any 

r£rntto*sne  se-  *uit,  the  day  on  which  the  right  to  sue  accrued  shall  be  excluded. 


Exclusions  in  in  computing  the  period  of  limitation  prescribed  for  an  appeal, 

ease  of  appeals 

and  certain  ap-  an  application  for  leave  to  appeal  as  a  pauper,  an  application  to  the 

plications.  High  Court  for  the  admission  of  a  special  appeal,  and  an  application 

for  a  review  of  judgment,  the  day  on  which  the  judgment  complained 


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1 


ACT  XV  OP  1877.]    PART  HI.-— COMPUTATION  OF  PERIOD  OP  LIMITATION.         xiU 

Illustrations. 
(a.)— A  incurs  a  debt  to  a  firm  of  which  B,  C  and  D  are  partners. 
B  is  insane  and  C  is  a  minor.  D  can  give  a  discharge  of  the  debt 
without  the  concurrence  of  B  and  C.  Time  runs  against  B,  C  and  D. 
(h.) — A  incurs  a  debt  to  a  firm  of  which  E,  F  and  G  are  part- 
ners. E  and  F  are  insane,  and  6  is  a  minor.  Time  will  not  run 
against  any  of  them  until  either  E  or  F  becomes  sane,  or  G  attains 
majority. 

§  9,     When  once  time  has  begun  to  run.  no  subsequent  Continuous  run- 

0  .  ningoftime. 

disability  or  inability  to  sue  stops  it : 

Provided  that  where  letters  of  administration  to  the 
estate  of  a  creditor  have  been  granted  to  his  debtor,  the 
running  of  the  time  prescribed  for  a  suit  to  recover  the 
debt  shall  be  suspended  while  the  administration  con- 
tinues. 

§  10.     Notwithstanding    anything    hereinbefore    eon-  suits  against 
tained,  no  suit  against  a  person  in  whom  property  has  andtheir repre- 
become  vested  in  trust  for  any  specific  purpose,  or  against  "^     VB8, 
his  legal  representatives  or  assigns  (not  being  assigns  for 
valuable  consideration)  for  the  purpose  of  following  in  his 
or  their  hands  suoh  property,  shall  be  barred  by  any 
length  of  time. 

§  11.     Suits  instituted  in  British  India  on  contracts  Suits  on  foreign 
entered  into  in  a  foreign  country  are  subject  to  the  rules 
prescribed  by  this  Act. 

No  foreign  rule  of  limitation  shall  be  a  defence  to  a  Foreign  limita- 
suit  instituted  in  British  India  on  a  contract  entered  into 
in  a  foreign  country,  unless  the  rule  has  extinguished  the 
contract,  and  the  parties  were  domiciled  in  such  country 
during  the  period  prescribed  by  such  rule. 


PART  III. 

COMPUTATION  OP  PERIOD  OP  LIMITATION. 

§  12.     In  computing  the  period  of  limitation  prescribed  Exclusion  of 

-  i .  day  on  which 

for  any  suit,  appeal  or  application,  the  day  from  which  right  to  sue  ac- 

such  period  is  to  be  reckoned  shall  be  excluded. 

In  computing  the  period  of  limitation  prescribed  for  an  Exclusion  in 

.        .  case  of  appeals 

appeal,  an  application  for  leave  to  appeal  as  a  pauper,  and  certain  ap. 
and  an  application  for  a  review  of  judgment,  the  day  on 


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X1T  PART  III.— COMrTTATIOa  OF  PERIOD  OF  LIMITATION.    [ACT  IX  OF  1871. 


of  was  prooomeed,  mod  the  time  requisite  for  otrtainnura  copy  of 
the  decree,  sentence  or  order  appealed  against  or  sought  to  be 
reriewed,  shall  be  excluded. 

In  computing  the  period  of  limitation  prescribed  for  an  applica- 
tion to  set  aside  an  award,  the  time  requisite  for  obtaining  a  copy  of 
the  award  shall  be  excluded. 


Exclusion  of 
time  of  defen- 
dant's aboenoe 
from  British 


Exclusion  of 
time  of  suing 
bond  JUe  in 
Coon  without 
jurisdiction, 


§  14.  In  computing  the  period  of  limitation  proscribed  for  any 
suit,  the  time  during  which  the  defendant  has  been  absent  from 
British  India  shall  be  excluded,  nnless  sot  t  ice  of  a  summons  to  ap- 
pear and  answer  in  the  suit  can,  during  such  absence,  be  made  under 
the  Code  of  Ciril  Procedure,  section  sixty. 

§  15.  In  computing  the  period  of  limitation  prescribed  for  any 
suit,  the  time  during  which  the  plaintiff  has  been  prosecuting  with 
due  diligence  another  suit,  whether  in  a  Court  of  first  instance  or  in 
a  Court  of  Appeal,  against  the  same  defendant  or  some  person  whom 
he  represents,  shall  be  excluded,  where  the  last-mentioned  suit  is 
founded  upon  the  same  right  to  sue,  and  is  instituted  in  good  faith 
in  a  Court  which  from  defect  of  jurisdiction,  or  other  cause  of  a  Hk» 
nature,  is  unable  to  try  it. 

Explanation  1.— In  excluding  the  time  during  which  a  former 
suit  was  pending,  the  day  on  which  that  suit  was  instituted,  and  the 
day  on  which  the  proceedings  therein  ended,  shall  both  be  counted. 

Explanation  2. — A  plaintiff  resisting  an  appeal  presented  on  the 
ground  of  want  of  jurisdiction,  shall  be  deemed  to  be  prosecuting  a 
suit  within  the  meaning  of  this  section. 


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ACT  XV  OP  1877.]    PABT  III. — COMPUTATION  OF  PERIOD  OF  LIMITATION.  XV 

which  the  judgment  complained  of  was  pronounced,  and 
the  time  requisite  for  obtaining  a  copy  of  the  decree,  sen- 
tence or  order  appealed  against  or  sought  to  be  reviewed, 
shall  be  excluded. 

Where  a  decree  is  appealed  against  or  sought  to  be 
reviewed,  the  time  requisite  for  obtaining  a  copy  of  the 
judgment  on  which  it  is  founded  shall  also  be  excluded. 

In  computing  the  period  of  limitation  prescribed  for  an 
application  to  set  aside  an  award,  the  time  requisite  for 
obtaining  a  copy  of  the  award  shall  be  excluded. 

§  13.     In  computing  the  period  of  limitation  prescribed  Excision  of 
for  any  suit,  the  time  during  which  the  defendant  has  dant's  absence 
been  absent  from  British  India  shall  be  excluded.  India. 

§  14.     In  computing  the  period  of  limitation  prescribed  ^xcl^ionTJjL1 
for  any  suit,  the  time  during  which  the  plaintiff  has  been  ing  bond  Me  in 

.  .  ,  .    .,  , .  Ctrart  without 

prosecuting  with  due  diligence  another  civil  proceeding*  jurisdiction, 
whether  in  a  Court  of  first  instance  or  in  a  Court  of  Ap- 
peal, against  the  defendant  shall  be  excluded,  where  the 
proceeding  is  founded  upon  the  same  cause  of  action,  and 
is  prosecuted  in  good  faith  in  a  Court  which,  from. defect 
of  jurisdiction,  or  other  cause  of  a  like  nature,  is  unable 
to  entertain  it. 

In  computing  the  period  of  limitation  prescribed  for  a  Like  exclusion 

in  case  of  order 

suit,  proceedings  in  which  have  been  stayed  by  order  under  civil  Pro- 

_  __  .  .  cedureCode, 

under  the  Code  of  Civil  Procedure,  Section  20,  the  interval  sec.  ao. 
between  the  institution  of  the  suit  and  the  date  of  so 
staying  proceedings,  and  the  time  requisite  for  going  from 
the  Court  in  which  proceedings  are  stayed  to  the  Court 
in  which  the  suit  is  re-instituted,  shall  be  excluded. 
In  computing  the  period  of  limitation  prescribed  for  mm  exclusion 

_.        /°    .        ,  _      .  i.i,  ,.  ,  in  case  of  appli- 

any  application,  the  time  during  which  the  applicant  has  cation, 
been  making  another  application  for  the  same  relief,  shall 
be  excluded,  where  the  last-mentioned  application  is  made 
in  good  faith  to  a  Court  which  from  defect  of  jurisdiction, 
or  other  cause  of  a  like  nature,  is  unable  to  grant  it. 

Explanation  1. — In  excluding  the  time  during  which  a 
former  suit  or  application  was  pending  or  being  made, 
the  day  on  which  that  suit  or  application  was  instituted 


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XVi  PART  III. — COMPUTATION  OF  PERIOD  OF  LIMITATION.    [ACT  IX  OF  1871. 


§  16.    In  computing  the  period  of  limitation  prescribed  for  any 
suit,  the  commencement  of  which  has  been  stayed  by  injunction,  the 
SXtoSayidby   time  °*  the  oontinnance  of  the  injunction  shall  be  excluded. 

injunction. 


Exclusion  of 
time  daring 
which  com- 


Exclusion  of  J  17.    In  computing  the  period  of  limitation  prescribed  for  a  suit 

which   judj?  'or  possession  by  a  purchaser  at  a  sale  in  execution  of  a  decree,  the 

iu^tosetMide  time  during  which  the  judgment-debtor  has  been  prosecuting  «  suit 

execution  sale,  to  set  aside  the  sale  shall  be  excluded. 


Effect  of  death       $  18.    When  a  person  who  would,  if  he  were  living,  hare  a  right 
sue  secretes.         *°  ,tie»  dies  before  the  right  accrues,  the  period  of  limitation  shall 

be  computed  from  the  time  when  there  is  a  representative  in  interest 

of  the  deceased  capable  of  suing. 

When  a  person  against  whom,  if  he  were  living,  a  right  to  sue 
would  have  accrued,  dies  before  the  right  accrues,  the  period  of 
limitation  shall  be  computed  from  the  time  when  there  is  a  repre- 
sentative whom  the  plaintiff  may  sue. 

Nothing  in  the  former  part  of  this  section  applies  to  suits  for  the 
possession  of  land  or  of  an  hereditary  office. 


Effect  of  fraud.  §  19.  When  any  person  having  a  right  to  sue  has,  by  means  of 
fraud)  been  kept  from  the  knowledge  of  such  right  or  of  the  title  on 
which  it  is  founded,- and  where  any  document  necessary  to  establish 
such  right  has  been  fraudulently  concealed. 


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ACT  XV  OF  1877.]    PART  III. — COMPUTATION  OP  PERIOD  OP  LIMITATION.        xvii 

or  made,  and  the  day  on  which  the  proceedings  therein 
ended,  shall  both  be  counted. 

Explanation  2. — A  plaintiff  resisting  an  appeal  pre- 
sented on  the  ground  of  want  of  jurisdiction  shall  be 
deemed  to  be  prosecuting  a  suit  within  the  meaning  of 
this  section. 

§  15.     In  computing  the  period  of  limitation  prescribed  Exclusion  of 

time  durinjyr 

for  any  suit,  the  institution  of  which  has  been  stayed  which  com- 

i_      •    •         x-  -i         .i       *•  #,,  ,.  *  it       mencementof 

by  injunction  or  order,  the  time  of  the  continuance  of  the  suit  is  stayed  by 
injunction  or  order,  the  day  on  which  it  was  issued  or  order, 
made,  and  the  day  on  which  it  was  withdrawn,  shall  be 
excluded. 

§  16.     In  computing  the  period  of  limitation  prescribed  Exclusion  of 
for  a  suit  for  possession  by  a  purchaser  at  a  sale  in  exe-  which  judg£ 
cution  of  a  decree,  the  time  during  which  the  judgment-  attempting  to 
debtor  has  been  prosecuting  a  proceeding  to  set  aside  the  tion*aaie. execu" 
sale  shall  be  excluded. 

§  17.     When  a  person  who  would,  if  he  were  living,  Effect  of  death 
have  a  right  to  institute  a  suit  or  make  an  application,  gu^accroea?  *° 
dies  before  the  right  accrues,  the  period  of  limitation  shall 
be  computed  from  the  time  when  there  is  a  legal  repre- 
sentative of  the  deceased  capable  of  instituting  or  making 
such  suit  or  application. 

When  a  person  against  whom,  if  he  were  living,  a  right 
to  institute  a  suit  or  make  an  application  would  have 
accrued  dies  before  the  right  accrues,  the  period  of  limi- 
tation shall  be  computed  from  the  time  when  there  is  a 
legal  representative  of  the  deceased  against  whom  the 
plaintiff  may  institute  or  make  such  suit  or  application. 

Nothing  in  the  former  part  of  this  section  applies  to 
suits  to  enforce  rights  of  pre-emption  or  to  suits  for  the 
possession  of  immovable  property  or  of  an  hereditary 
office. 

§  18.  When  any  person  having  a  right  to  institute  a  Effect  of  fraud, 
suit  or  make  an  application  has,  by  means  of  fraud,  been 
kept  from  the  knowledge  of  such  right  or  of  the  title  on 
which  it  is  founded,  or  where  any  document  necessary  to 
establish  such  right  has  been  fraudulently  concealed  from 
him, 

C 


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xviii     PART  in. — COMPUTATION  of  period  of  limitation,  [act  IX  OF  1871. 

the  time  limited  for  commencing  a  suit, 

(a)  against  the  person  guilty  of  the  fraud  or  accessory  thereto, 
or, 

(b)  against  any  person  claiming  through  him  otherwise  than  in 
good  faith  and  for  a  valuable  consideration, 

shall  be  computed  from  the  time  when  the  fraud  first  became 
know  to  the  person  injuriously  affected  thereby,  or,  in  the  case  of 
the  concealed  document,  when  he  first  had  the  means  of  producing 
it  or  compelling  its  production. 


Effect  of  so-  §  20.    a.  No  promise  or  acknowledgment  in  respect  of  a  debt  or 

in  writing!"511  legacy  shall  take  the  case  out  of  the  operation  of  this  Act,  unless 
such  promise  or  acknowledgment  is  contained  in  some  writing  signed, 
before  the  expiration  of  the  prescribed  period,  by  the  party  to  be 
charged  therewith  or  by  his  agent  generally  or  specially  authorized 
in  this  behalf. 

o.  When  such  writing  exists,  a  new  period  of  limitation,  ac- 
cording to  the  nature  of  the  original  liability,  shall  be  computed 
from  the  time  when  the  promise  or  acknowledgment  was  signed. 

e.  When  the  writing  containing  the  promise  or  acknowledg- 
ment is  undated,  oral  evidence  may  be  given  of  the  time  when  it 
was  signed.  But  when  it  is  alleged  to  have  been  destroyed  or  lost, 
oral  evidence  of  its  contents  shaU  not  be  received. 

Explanation  1. — For  the  purposes  of  this  section,  promise  or  ac- 
knowledgment may  be  sufficient,  though  it  omits  to  specify  the  exact 
amount  of  the  debt  or  legacy,  or  avers  that  the  time  for  payment  or 
delivery  has  not  yet  come,  or  is  accompanied  by  a  refusal  to  pay  or 
deliver,  or  is  coupled  with  a  claim  to  a  set-off,  or  is  addressed  to  any 
person  other  than  the  creditor  or  legatee ; 

but  it  must  amount  to  an  express  undertaking  to  pay  or  deliver 
the  debt  or  legacy  or  to  an  unqualified  admission  of  the  liability  as 
subsisting. 

Explanation  2. — Nothing  in  this  section  renders  one  of  several 
partners  or  executors  chargeable  by  reason  only  of  a  written  promise 
or  acknowledgment  signed  by  another  of  them. 

Illustrations. 

Z,  a  bond-debtor,  himself  writes  a  letter  promising  to  pay  the  debt  to  his 
creditor  A.    Z  affixes  his  seal,  but  does  not  sign  the  letter : 

Z  pays  part  of  the  debt  and  promises  orally  to  pay  the  rest : 

Z  publishes  an  advertisement,  requesting  his  creditors  to  bring  in  their 
claims  for  examination : 

In  none  of  these  cases  is  the  debt  taken  out  of  the  operation  of  this  Act. 


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ACT  IV  OF  1877.]    PART  III. — COMPUTATION  OF  PERIOD  OF  LIMITATION.  xix 

the  time  limited  for  instituting  a  suit  or  making  an 
application, 

(a)  against  the  person  guilty  of  the  fraud  or  accessory 

thereto,  or, 

(6)  against  any  person  claiming  through  him  otherwise 
than  in  good  faith  and  for  a  valuable  consideration, 

shall  be  computed  from  the  time  when  the  fraud  first 
became  known  to  the  person  injuriously  affected  thereby, 
or,  in  the  case  of  the  concealed  document,  when  he  first 
had  the  means  of  producing  it  or  compelling  its  produc- 
tion. 

§  19.  If,  before  the  expiration  of  the  period  prescribed  Effect  of  ao- 
f  or  a  suit  or  application  in  respect  of  any  property  or  in  writing, 
right,  an  acknowledgment  of  liability  in  respect  of  such 
property  or  right  has  been  made  in  writing,  signed  by  the 
party  against  whom  such  property  or  right  is  claimed, 
or  by  some  person  through  whom  he  derives  title  or  lia- 
bility, a  new  period  of  limitation,  according  to  the  nature 
of  the  original  liability,  shall  be  computed  from  the  time 
when  the  acknowledgment  was  so  signed. 

When  the  writing  containing  the  acknowledgment  is 
undated,  oral  evidence  may  be  given  of  the  time  when 
it  was  signed ;  but  oral  evidence  of  its  contents  shall  not 
be  received. 

Explanation  1. — For  the  purposes  of  this  section  an 
acknowledgment  may  be  sufficient,  though  it  omits  to 
specify  the  exact  nature  of  the  property  or  right,  or  avers 
that  the  time  for  payment,  delivery,  performance  or  enjoy- 
ment has  not  yet  come,  or  is  accompanied  by  a  refusal  to 
pay,  deliver,  perform,  or  permit  to  enjoy,  or  is  coupled 
with  a  claim  to  a  set  off,  or  is  addressed  to  a  person  other 
than  the  person  entitled  to  the  property  or  right. 

Explanation  2. — In  this  section  "  signed"  means  signed 
either  personally  or  by  an  agent  duly  authorized  in  this 
behalf. 


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XX  PART  III.— COMPUTATION  OP  PERIOD  OF  LIMITATION.    [ACT  IX  OF  1871. 

Effect  of  pay-      §  21.    When  interest  on  a  debt  or  legacy  is,  before  the  expiration 
as  suoh.  °*  fcne  prescribed  period,  paid  as  such  by  the  person  liable  to  pay 

the  debt  or  legacy,  or  by  his  agent  generally  or  specially  authorised 

in  this  behalf, 
Effect  of  part-       or  when  part  of  the  principal  of  a  debt  is,  before  the  expiration  of 
principal.  the  prescribed  period,  paid  by  the  debtor  or  by  his  agent  generally 

or  specially  authorized  in  this  behalf, 

a  new  period  of  limitation,  according  to  the  nature  of  the  original 

liability,  shall  be  computed  from  the  time  when  the  payment  was 

made: 

Prorided  that,  in  the  case  of  part-payment  of  principal,  the  debt 

has  arisen  from  a  contract  in  writing  and  the  fact  of  the  payment 

appears  in  the  hand-writing  of  the  person  making  the  same,  on  the 

instrument,  or  in  his  own  books,  or  in  the  books  of  the  creditor. 


Effect  of  sabsti-       §  22.    When,  after  the  institution  of  a  suit,  a  new  plaintiff  or 

new^laLtiffor   defendant  is  substituted  or  added,  the  suit  shall,  as  regards  him,  be 

defendant.  deemed  to  hare  commenced  when  he  was  so  made  a  party  : 

Proviso  where        Prorided  that,  when  a  plaintiff  dies,  and  the  suit  is  continued  by 

Undies.        *     his  representatives  in  interest,  it  shall,  as  regards  them,  be  deemed 

to  have  commenced  when  it  was  instituted  by  the  deceased  plaintiff : 

Proviso  where         Provided  also,  that,  when  a  defendant  dies,  and  the  suit  is  con- 
original   defen- 
dant dies.  tinned  against  his  representatives  in  interest,  it  shall,  as  regard* 

them,  be  deemed  to  have  been  commenced  when  it  was  instituted 

against  the  deceased  defendant. 


Computation  §  28.    In  the  case  of  a  suit  for  the  breach*  of  a  contract,  where 

Tu^e'sAWe"0  ttare  are  successive  breaches,  a  fresh  right  to  sue  arises,  and  a 
breaches  of  con-  f^^  period  of  limitation  begins  to  run,  upon  every  fresh  breach  * 
Computation  and  where  the  breach  is  a  continuing  breach,  a  fresh  right  to  sue 
breaches  con-  a""68*  ***&  a  t***h  period  of  limitation  begins  to  run,  at  every 
tinning.  moment  of  the  time  during  which  the  breach  continues. 


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ACT  XV  OP  1877.]     PABT  in. — COMPUTATION  OP  PERIOD  OP  LIMITATION.         XXI 

§  20.    When  interest  on  a  debt  or  legacy  is,  before  the  Meet  of  pay- 
expiration  of  the  prescribed  period,  paid  as  such  by  the  Msnon. 
person  liable  to  pay  the  debt  or  legacy,  or  by  his  agent 
duly  authorized  in  this  behalf, 

or  when  part  of  the  principal  of  a  debt  is,  before  the  Effect  of  part- 
expiration  of  the  prescribed  period,  paid  by  the  debtor  or  principal.  °r 
by  his  agent  duly  authorized  in  this  behalf, 

a  new  period  of  limitation,  according  to  the  nature  of  the 
original  liability,  shall  be  computed  from  the  time  when 
the  payment  was  made  : 

Provided  that,  in  the  case  of  part-payment  of  the  prin- 
cipal of  a  debt,  the  fact  of  the  payment  appears  in  the 
hand- writing  of  the  person  making  the  same. 

Where  mortgaged  land  is  in  the  possession  of  the  mort-  Effect  of  receipt 
gagee,  the  receipt  of  the  produce  of  such  land  shall  be  ^ortmrediand. 
deemed  to  be  a  payment  for  the  purpose  of  this  section. 

§  21.  Nothing  in  sections  19  and  20  renders  one  of  One  of  several 
several    joint    contractors,  partners,  executors  or  mort-   ore,  Ac.,  not 

chargeable  by 

gagees  chargeable  by  reason  only  of  a  written  acknow-  reason  of  ac- 

VJ  x     •         j  *  \         j      v  v     xi.      knowledgment 

ledgment  signed,  or  of  a  payment  made  by,   or  by  the  or  payment 
agent  of,  any  other  or  others  of  them.  other  of  them. 

§  22.     When,  after  tbe  institution  of  a  suit,   a  new  Effect  of  substi- 

plaintiff  or  defendant  is  substituted  or  added,  the  suit  new^iaLtiff  or 

shall,  as  regards  him,  be  deemed  to  have  been  instituted  defendftnt* 
when  he  was  so  made  a  party  : 

Provided  that,  when  a  plaintiff  dies,  and  the  suit  is  Proviso  where 

continued  by  his  legal  representative,  it  shall,  as  regards  tiff  dies.  P 
him,  be  deemed  to  have  been  instituted  when  it  was  insti- 
tuted by  the  deceased  plaintiff : 

Provided  also,  that,  when  a  defendant  dies,  and  the  suit  Proviso  where 

.  .  .         .  original  defend- 

is  continued  against  his  legal  representative,  it  shall,  as  ant  dies. 
regards  him,  be  deemed  to  have  been  instituted  when  it 
was  instituted  against  the  deceased  defendant. 

§  23.     In  the  case  of  a  continuing  breach  of  contract  and  Continuing 
in  the  case  of  a  continuing  wrong  independent  of  contract,  wrongs. 
a  fresh  period  of  limitation  begins  to  run  at  every  moment 
of  the  time  during  which  the  breach  or  the  wrong,  as  the 
case  may  be,  continues. 


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Xxii       PABT  III. — COMPUTATION  OF  PERIOD  OF  LIMITATION.      [ACT  IX  OF  1871. 


Nothing  in  the  former  part  of  this  section  applies  to  traits  for  the 
breach  of  contracts  for  the  payment  of  money  by  instalments 
where,  on  default  made  in  payment  of  one  instalment,  the  whole 
becomes  dne. 

Illustrations. 

(a.)— A  contracts  to  pay  an  annuity  to  B,  for  his  life  by  quarterly  instal- 
ments. A  fails  to  pay  any  of  the  instalments.  Here,  upon  every  fresh  failure, 
a  fresh  right  to  sue  arises  and  a  fresh  period  of  limitation  begins  to  run ;  and 
this  Act  may  bar  the  remedy  on  the  earlier  breaches  without  affecting  the 
remedy  on  the  later  breaches. 

(b.)—A,  a  tenant,  convenante  with  B,  his  landlord,  to  keep  certain  buildings 
in  repair.  At  every  moment  of  the  time  during  which  the  buildings  continue 
out  of  repair  and  B  retains  his  right  of  entry,  a  fresh  right  to  sue  arises  and  a 
fresh  period  of  limitation  begins  to  run. 

§  24.    In  the  case  of  a  continuing  nuisance,  a  fresh  right  to  sue 

arises,  and  a  fresh  period  of  limitation  begins  to  run,  at  every 

moment  of  the  time  during  which  the  nuisance  continues. 

Illustration. 
A  diverts  B's  water-course.    At  every  moment  of  the  time  during  which 
the  diversion  continues  and  B  retains  his  right  of  entry,  a  fresh  right  to  sue 
arises  and  a  fresh  period  of  limitation  begins  to  run. 

§  25.  In  the  case  of  a  suit  for  compensation  for  an  act  lawful  in 
itself,  which  becomes  unlawful  in  case  it  causes  damage,  the  period 
of  limitation  shall  be  computed  from  the  time  when  the  damage 
accrues. 


Continuing  nui« 
sance. 


Suit  for  com- 
pensation for 
Act  becoming 
unlawful. 


Illustration. 

A  owns  the  surface  of  a  field.  B  owns  the  sub-soil.  B  digs  coal  thereout 
without  causing  any  immediate  apparent  injury  to  the  surface,  but  at  last  the 
surface  subsides.  The  ,  period  of  limitation  runs  from  the  time  of  the  sub- 
sidence. 


Computation  of       §  26*    AH  instruments  shall,   for  the  purposes  of  this  Act,  be 
{n^faSuSenUL  deemed  to  be  made  with  reference  to  the  Gregorian  calendar. 

Illustrations, 

(a. J— A  Hindu  makes  a  promissory  note  bearing  a  Native  date  only,  and 
payable  four  months  after  date.  The  period  of  limitation  applicable  to  a 
suit  on  the  note  runs  from  the  expiry  of  four  months  after  date  computed 
according  to  the  Gregorian  calendar. 

(b.)—A  Hindu  makes  a  bond,  bearing  a  Native  date  only,  for  the  re- 
payment of  money  within  one  year.  The  period  of  limitation  applicable  to 
a  suit  on  the  bond  runs  from  the  expiry  of  one  year  after  date  computed 
aeoording  to  the  Gregorian  calendar. 


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ACT  XV  OF  1877+]    PART  III. — COMPUTATION  OF  PERIOD  Or  LIMITATION,      XX1U 


§  24.     In  the  case  of  a  snit  for  compensation  for  an  act  Suit  for  eam- 

.  *       '   m  *  petisatioti  for 

■which  does  not  tnve  rise  to  a  cause  or  action  unless  some  set  not  action 

able     without 
specific  injury  actually   results   therefrom,  the  period  of  special  Omb»k*. 

limitation  shall   be  computed  from  the  time  when  the 

injury  results* 

Illustration*. 

(a.) — A  owns  the  surface  of  a  field.  B  owns  the  sub -soil.  B  dig* 
coal  thereout  without  causing  any  immediate  apparent  injury  to  the 
surface,  but  at  last  the  surface  subsides.  The  period  of  limitation 
in  the  case  of  &  suit  by  A  against  B  raiiH  from  the  time  of  the 
subsidence* 

(b.)— A  speaks  and  publishes  of  B  slanderous  words  not  action- 
able in  the m selves  without  special  damage  caused  thereby.  C  in 
consequence  refuses  to  employ  B  as  his  clerk*  The  period  of  limi- 
tation in  the  case  of  a  suit  by  B  against  A  for  compensation  for  the 
slander  does  not  commence  till  the  refusal. 

§25.     All  instruments  shall,  for  the  purposes  of  this  computation  of 

t  time  mentioned 

Act,  be  deemed  to  be  made  with  reference  to  the  Gregorian  in  instrumental 
calendar. 

1  llust  rations, 

(n.)^A  Hindu  makes  a  promissory  Bote  bearing  a  Native  date 
only,  and  payable  four  months  after  date.  The  period  of  limitation 
applicable  to  a  suit  on  the  note  rune  from  the  eipiry  of  four  months 
after  date  computed  according  to  the  Gregorian  calendar. 

{&.) — A  Hindu  makes  abend,  bearing  a  Native  date  only,  for  the 
repayment  of  money  within  oue  year*  The  period  of  limitatiou  ap- 
plicable to  a  suit  on  tbe  bond  runs  from  the  eipiry  of  one  year  after 
date  computed  according  to  tbe  Gregoriau  calendar. 


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XXIV     PART  IF. — ACQUISITION  OF  OWNERSHIP  BT  POSSESSION.  [ACT  IX  OF  1871* 


PART    IV. 

ACQUISITION  OF  OWNERSHIP  BY 
POSSESSION. 

Acquisition  of         §  27.    Where  the  access  and  use  of  light  or  air  to  and  for  any  build - 


rants,     """^     'n£  h**  ^een  peaceably  enjoyed  therewith,  as  an  easement,  and  as 
of  right,  without  interruption,  and  for  twenty  years, 

and  where  any  way  or  water-course,  or  the  use  of  any  water,  or  any 
other  eaesment  (whether  affirmative  or  negative)  has  been  peaceably 
and  openly  enjoyed  by  any  person  claiming  title  thereto  as  an  ease- 
ment and  as  of  right,  without  interruption,  and  for  twenty  years, 

the  right  to  suoh  access  and  use  of  light  or  air,  way,  water-course, 
use  of  water,  or  other  easement,  shall  be  absolute  and  indefeasible. 

Each  of  the  said  periods  of  twenty  years  shall  be  taken  to  be  a 
period  ending  within  two  years  next  before  the  institution  of  the 
suit  wherein  the  claim  to  which  such  period  relates  is  contested. 

Explanation.— Nothing  is  an  interruption  within  the  meaning  of 
this  section,  unless  where  there  is  an  actual  discontinuance  of  the 
possession  or  enjoyment  by  reason  of  an  obstruction  by  the  act  of 
some  person  other  than  the  claimant,  and  unless  such  obstruction  is 
submitted  to,  or  acquiesced  in,  for  one  year  after  the  claimant  has 
notice  thereof  and  of  the  person  making  or  authorizing  the  same  to 
be  made. 

Tlluttraiion*. 

TaJ—A  suit  is  brought  in  1871  for  obstructing  a  right  of  way.  The  de- 
fendant admits  the  obstruction  bnt  denies  the  right  of  way.  The  plaintiff 
proves  that  the  right  was  peaceably  and  openly  enjoyed  by  him  claiming 
title  thereto  as  an  easement  and  as  of  right,  without  interruption,  from  1st 
January  1860  to  1st  January  1870.    The  plaintiff  is  entitled  to  judgment. 

f*.>— In  a  like  suit  also  brought  in  1871  the  plaintiff  merely  proves  that 
he  enjoyed  the  right  in  manner  aforesaid  from  1848  to  ie08.  The  suit  shall 
be  dismissed,  as  no  exercise  of  the  right  by  actual  user  has  been  proved  to 
have  taken  place  within  two  years  next  before  the  institution  ot  the  suit. 

(e.) — In  a  like  suit  the  plaintiff  shows  that  the  right  was  peaceably  and 
openly  enjoyed  by  him  for  twenty  years.  The  defendant  proves  that  the 
plaintiff  on  one  occasion  during  the  twenty  years  had  asked  his  leave  to 
enjoy  the  right.    The  suit  shall  be  dismissed. 


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ACT  XV  OP  1877.]    PART  IV. — ACQUISITION  OP  OWNERSHIP  BY  POSSESSION.    XXV 

PART  IV. 

ACQUISITION  OP  OWNERSHIP  BY 
POSSESSION* 

§  26.    Where  the  access  and  use  of  light  or  air  to  and  Acquisition  of  - 

.  .  right  to  ease- 

for  any  building  have  been  peaceably  enjoyed  therewith,  ments. 
as  an  easement,  and  as  of  right,  without  interruption,  and 
for  twenty  years, 

and  where  any  way  or  water-course,  or  the  use  of  any 
water,  or  any  other  easement  (whether  affirmative  or 
negative)  has  been  peaceably  and  openly  enjoyed  by  any 
person  claiming  title  thereto  as  an  easement  and  as  of 
right,  without  interruption,  and  for  twenty  years, 

the  right  to  such  access  and  use  of  light  or  air,  way, 
water-course,  use  of  water,  or  other  easement,  shall  be 
absolute  and  indefeasible. 

Each  of  the  said  periods  of  twenty  years  shall  be  taken 
to  be  a  period  ending  within  two  years  next  before  the 
institution  of  the  suit  wherein  the  claim  to  which  such 
period  relates  is  contested. 

Explanation. — Nothing  is  an  interruption  within  the 
meaning  of  this  section,  unless  where  there  is  an  actual 
discontinuance  of  the  possession  or  enjoyment  by  reason 
of  an  obstruction  by  the  act  of  some  person  other  than 
the  claimant,  and  unless  such  obstruction  is  submitted  to 
or  acquiesced  in  for  one  year  after  the  claimant  has  notice 
thereof  and  of  the  person  making  or  authorizing  the  same 
to  be  made. 

Illustrations. 
(a.) — A  suit  is  brought  in  1881  for  obstructing  a  right  of  way. 
The  defendant  admits  the  obstruction  but  denies  the  right  of  way. 
The  plaintiff  proves  that  the  right  was  peaceably  and  openly  enjoyed 
by  him,  claiming  title  thereto  as  an  easement  and  as  of  right,  with- 
out interruption,  from  1st  January,  1860  to  1st  January,  1880.  The 
plaintiff  is  entitled^to  judgment. 


*  Sections  96  and  27  are,  as  to  Madras,  Ooorg  and  the  Central  Provinces, 
repealed  by  Act  V  of  1888,  as  also  is  the  definition  of  easement  in  the  inter- 
pretation section. 
D 


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XXVi    PABT  IV. — ACQUISITION  OP  OWNERSHIP  BT  POSSESSION.  [ACT  IX  OF  1871. 


Biotasion    in 
favor  of  rever- 
sioner of   ser- 
vient tenement. 


§  28.  Provided  that,  when  any  land  or  water  upon,  over  or  from 
which  any  easement  (other  than  the  access  and  use  of  light  and  air) 
has  been  enjoyed  or  derived  has  been  held  under  or  by  virtue  of  any 
interest  for  life  or  any  term  of  years  exceeding  three  years  from  the 
granting  thereof, 

the  time  of  the  enjoyment  of  such  easement  during  the  continuance 

of  such  interest  or  term,  shall  be  excluded  in  the  computation  of  the 

said  last-mentioned  period  of  twenty  years,  in  case  the  claim  is, 

within  three  years  next  after  the  determination  of  such  interest  or 

term,  resisted  by  the  person  entitled,  on  such  determination,  to  the 

said  land  or  water. 

Illustration. 

A  sues  for  a  declaration  that  he  is  entitled  to  a  right  of  way  over  B's 
land.  A  proves  that  he  has  enjoyed' the  right  for  twenty-five  years;  but  B 
shows  that  during  ten  of  these  years  C,  a  deceased  Hindu  widow,  had  a 
life-interest  in  the  land,  that  on  O's  death  B  became  entitled  to  the  land,  and 
that  within  two  years  after  C's  death  he  contested  A's  claim  to  the  right. 
The  suit  must  be  dismissed,  as  A,  with  reference  to  the  provisions  of  this 
section,  has  only  proved  enjoyment  for  fifteen  years. 


_  29.  At  the  determination  of  the  period  hereby  limited  to  any 
or  hereditary  person  for  instituting  a  suit  for  possession  of  any  land  or  hereditary 
office.  office,  his  right  to  such  land  or  office  shall  be  extinguished. 


Extinguishment 
of  right  U 


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ACT  XV  OF  1877.]  PART  IV. — ACQUISITION  OP  OWNERSHIP  BY  POSSESSION.    XXVii 

(b.) — In  a  like  suit  also  brought  in  1861,  the  plaintiff  merely  proves 
that  he  enjoyed  the  right  in  manner  aforesaid  from  1868  to  1878. 
The  suit  shall  be  dismissed,  as  no  exercise  of  the  right  by  actual 
user  has  been  proved  to  have  taken  place  within  two  years  next 
before  the  institution  of  the  suit. 

(c.) — In  a  like  suit  the  plaintiff  shows  that  the  right  was  peaceably 

and  openly  enjoyed  by  him  for  twenty  years.    The  defendant  proves 

that  the  plaintiff  on  one  occasion  during  the  twenty  years  had  asked 

his  leave  to  enjoy  the  right.    The  suit  shall  be  dismissed. 

§  27.     Provided  that,  when  any  land  or  water  npon,  Exclusion  in 
»  ■•.  ,  .    r        -i  j  favor  of  rever- 

over,  or  from  which  any  easement  has  been  enjoyed  or  woner  of  ser- 

derived  has  been  held  under  or  by  virtue  of  any  interest 
for  life  or  any  term  of  years  exceeding  three  years  from 
the  granting  thereof,  the  time  of  the  enjoyment  of  such 
easement  during  the  continuance  of  such  interest  or  term 
shall  be  excluded  in  the  computation  of  the  said  last- 
mentioned  period  of  twenty  years,  in  case  the  claim  is, 
within  three  years  next  after  the  determination  of  such 
interest  or  term,  resisted  by  the  person  entitled,  on  such 
determination,  to  the  said  land  or  water. 

Illustration*. 

A  sues  for  a  declaration  that  he  is  entitled  to  a  right  of  way  over 
B's  land.  A  proves  that  he  has  enjoyed  the  right  for  twenty-$ve 
years  ;  but  B  shows  that  during  ten  of  these  years  C,  a  Hindu  widow 
had  a  life-interest  in  the  land,  that  on  C's  death  B  became  entitled 
to  the  land,  and  that  within  two  years  after  C's  death  he  contested 
A's  claim  to  the  right.  The  suit  must  be  dismissed,  as  A,  with 
reference  to  the  provisions  of  this  section,  has  only  proved  enjoy- 
ment for  fifteen  years. 

§  28.     At  the  determination  of  the  period  hereby  limi-  Extinguishment 
ted  to  any  person  for  instituting  a  suit  for  possession   of  %&£    *°  pn>" 
any  property,  his  right  to  such  property  shall  be  extin- 
guished. • 


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ZXY1U 


FIRST  SCHEDULE. 

(See  Section  2.) 


[act  ix  op  1871. 


Number  and  year. 


Subject  or  title. 


Extent  of  Repeal. 


21  Jao.  I,  cap.  16. 
4  Ann.,  cap.  16. 


88  Geo.  Ill,  cap. 
62. 


68  Geo.  Ill,  cap. 
166. 


9  Geo.  IV,  cap. 

74. 
6  ft  7  Vic,  cap. 

94. 
Act.  No.  XIV  of 

1840. 


An  Act  for  limitation  of  actions 
and  for  avoiding  of  suits  in  law. 

An  Act  for  the  amendment  of  the 
law  and  the  better  advancement 
of  Justice. 

An  Act  for  continuing  in  the  East 
India  Company,  for  a  further 
term,  the  possession  of  the  Bri- 
tish territories  in  India,  together 
with  their  exclusive  trade,  under 
certain  limitations ;  for  estab- 
lishing further  regulations  for 
the  Government  of  the  said  ter- 
ritories, and  the  better  adminis- 
tration of  justice  within  the 
same  ;  for  appropriating  to  cer- 
tain uses  the  revenues  and  pro- 
fits of  the  said  Company ;  and 
for  making  provision  tor  the 
good  order  and  Government  of 
the  towns  of  Calcutta,  Madras 
and  Bombay. 

An  Act  for  continuing  in  the  East 
India  Company,  for  a  further 
term,  the  possession  of  the 
British  territories  in  India,  to- 
gether with  certain  exclusive 
privileges  ;  for  establishing  fur- 
ther Regulations  for  the  Govern- 
ment of  the  said  territories,  and 
the  better  administration  of  jus- 
tice within  the  same;  and  for 
regulating  the  trade  to  and  from 
the  places  within  the  limits  of 
the  said  Company. 

Administration  of  Criminal  Justice. 

Foreign  Jurisdiction  Act. 

An  Act  for  rendering  a  written 
memorandum  necessary  to  the 
validity  of  certain  promises  and 
engagements,  by  extending  to 
the  territories  of  the  East  India 
Company,  in  cases  governed  by 
English  Law,  tie  provisions  of 
the  Statute  9  Geo.  IV,  cap.  14. 


The  whole  Statute,  so  far 
as  it  applies  to  British 
India. 

Sections  17,  18  and  19,  so 
far  as  they  apply  to  Bri- 
tish India. 

So  muoh  of  Section  162  as 
relates  to  the  limitation 
of  civil  suits  in  British 
India. 


Section  124,  so  far  as  it  ap- 
plies to  British  India. 


So  muoh  of  Section  61  as 
relates  to  civil  suits. 

Section  7,  so  far  as  it  ap- 
plies to  British  India. 

From  and  including  the 
words  "Whereas  by  an 
Act"  down  to  and  includ- 
ing the  words  "  Defen- 
dants against  the  Plain- 
tiff." 


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act  xv  or  1877.] 


THE   FIRST  SCHEDULE. 


rax 


Number  and 
year  of  Acts. 

Title. 

Extent  of  Repeal. 

Xof  1865   ... 

IX  of  1871 ... 
Xof  1877   ... 

The    Indian    Succes- 
sion Act. 

The  Indian  Limi- 
tation Act,  1871. 

The  Code  of  Civil 
Procedure. 

In   Section  321  the  words 
"within  two  years  after 
the  death  of  the  testator, 
or  one  year  after  the  lega- 
cy has  been  paid." 

The  whole. 

Section  599,  and  in  section 
601   the   words    "within 
thirty  days  from  the  date 
of  the  order." 

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XXX 


FIRST   SCHEDULE. 


(ACT  IX  OF  1871. 


Number  and  year. 


Subject  or  title. 


Extent  of  Repeal. 


Act  No.    XI   of 
1841. 


Act    No.    XX  of 

1847. 


Aot  No.  XII  of 
1855. 


Military  Courts  of  Requests    ... 


Copyright  Aot 


An  Act  to  enable  Executors,  Ad- 
ministrators, or  Representatives 
to  Bue  and  be  sued  for  certain 
wrongs. 


Act  No.  XIII  of 
1855. 


Act  No.  XXV  of 
1857. 

Act  No.  VIII  of 
1859. 


Compensation  for  loss  occasioned 
by  death  caused  by  actionable 
wrong. 


Forfeiture  for  mutiny 

The  Code  of  Civil  Procedure 


The  proviso  in  section  nine. 


In  section  sixteen,  the 
words  '  actions!  suits, 
bills.' 


In  section  one,  the  words 
"and  provided  such  ac- 
tion shall  be  brought 
within  one  year  after  the 
death  of  such  persons," 
and  the  words  "and  so 
as  such  action  Bhall  be 
commenced  within  two 
years  after  the  commit- 
ting of  the  wrong." 


In  section  two,  the  words 
"  and  that  every  such 
action  shall  be  brought 
within  twelve  calendar 
months  after  the  death 
of  such  deceased  person.' * 


Section  jnine. 


In  section  one  hundred 
and  nineteen,  the  words 
"  within  a)  reasonable 
time  not  exceeding  thirty 
days  after  any  process  for 
enforcing  the  judgment 
has  been  executed,"  and 
the  words  "  within  thirty 
days  from  the  date  of  the 
judgment."  In  section 
two  hundred  and  thirty, 
the  words  *•  within  one 
month  from  the  date  of 
the  dispossession."  The 
last  twelve  words  of  sec- 
tion two  hundred  and 
forty-six.  In  section  two 
hundred  and  fifty-six,  the 
words     "  At    any    time 


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ACT  IX  OF  1871.] 


FUfcST   SCHEDULE. 


XXXI 


Number  and  year. 


Subject  or  title. 


Act  No.  XIV  of 
1859. 


Act    No. 
1860. 


IX    of 


Act  No.  XXXI  of 
1860. 


An  act  to  provide  for  the  limit- 
ation of  suits. 


Workmen  and  employers 


Arms  Act 


Extent  of  Repeat 


within  thirty  days  from 
the  date  of  the  sale."  In 
section  two  hundred  and 
sixty-nine,  the  words  "  if 
made  within  one  month 
from  the  date  of  such  exis- 
tence or  obstruction  or  of 
such  dispossession,  as  the 
case  may  be."  In  section 
three  hundred  and  twen- 
ty-four, the  second  sen- 
tence.    In  section  three 
hundred      and     twenty- 
seven,  the  words  "  within 
six  months  from  the  date 
of  the  award,"  In  section 
three  hundred  and  thirty- 
three,  from  and  including 
the  words   "  within   the 
period"  down  to  the  end 
of  the  section.  In  section 
three  hundred  and  forty* 
seven,  the  words  "  within 
thirty  days  from  the  date 
of    the    dismissal."      In 
section  three  hundred  and 
seventy-three,  the  words 
"within  the  period  pre- 
scribed for  the  present- 
ation  of    a  memoradum 
of  appeal."    8o  much  of 
section  three  hundred  and 
seventy-seven  as  has  not 
been  repealed. 


The  whole  act,  except  so 
much  of  section  fifteen  as 
does  not  relate  to  the 
limitation  of  suits. 


So  much  of  section  two  as 
relates  to  the  limitation 
of  suits. 


So  much  of  section  forty- 
nine  as  relates  to  the 
limitation  of  suits. 


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XXX11 


FIRST   SCHEDULE. 


[ACT  IX  OF  1871. 


Number  and  ye 


Act    No.    V    of    Mofussil  Police 
1861. 


Subject  or  title. 


Extent.of  BepeaL 


Aot  No.   xxin 
of  1861. 

Act  No.  XXV  of 
1861. 

Aot  No.  I  of  1868. 

Act   No.    VI   of 
1863. 


Civil  Procedure  Code  Amendment. 

Criminal  Procedure  Code 

Civil  Courts  in  British  Burma    ... 
Consolidated  Customs  Act 


Act  No.  XXIII  of   Claims  to  Waste-lands 
1868. 


Aot  No.  VII  of 
1865. 


Act  No.  XX  of 
1866. 

Aot 'No.  XIV  of 
1868. 


Act' No.  XX  of   Volunteers 
1869. 


Government  Forests  Act 


Registration  Act 


Contagious  Diseases  Aot 


Act    No.    X    of 
1870. 


Act    No.    IV   of 
1871. 


Land  Acquisition 


Coroners 


So  much  of  section  forty- 
two  as  relates  to  the 
limitation^of  suits. 


Section  12. 


Section  four  hundred  'and 
fifteen. 

Section  twenty-four. 

So  '  muoh  of  i  'section  two 
hundred  and  fourteen  as 
relates  to  the  limitation 
of  suits. 


So  muoh  of  section  ",five  as 
relates  to  the  limitation 
of  suits. 

So  much  of  Section  "sixteen 
as  relates  to  the  limitation 
of  suits. 


Section  fifty-one. 


So  much  of  section  twenty- 
five  as  relates  to  the 
limitation  of  suits. 


So  muoh  of  section  twenty- 
six  as  relates  to  the  limi- 
tation of  suits. 

So  much  of  section  fifty- 
eight  as  relates  to  the 
limitation  of  suits. 

In  section  forty-two,  the 
words  'after  the  expi- 
ration ofJthree  months 
from  suchfact  or  failure, 
nor.' 


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ACT  IX  OP  1871.] 


FIRST  SCHEDULE. 


XZZ1U 


Number  and  year. 

Subject  or  title. 

Extent  of  Repeal. 

Bombay  Regula- 
tion V  of  1827. 

A  Regulation  defining  the  Limi- 
tations,   as     to    Time,    within 
which  Civil    Actions    may    be 
prosecuted,  and  containing  Rules 
of   Judication  respecting  writ- 
ten Acknowledgments  of  Debts 
executed  without  receipt  of  a  full 
consideration ;     also    regarding 
Interest,  the  tendering  payment 
of  Debts,   and  the  disposal   of 
Property  mortgaged  or  pledged. 

Chapter  one. 

I 


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XXXIV 


SECOND  SCHEDULE. 

(See  Section  4.) 

Fir8t\THvision :  Suits. 


[ACT  ix  of  1871. 


Description  of  suit. 


Period  of 
limitation. 


Time  when  period 
begins  to  ran. 


1* — To  contest  an  award  of  the 
Board  of  Revenue  under 
Act  No.  XXIII  of  1863  (to 
provide  for  the  adjudication 
of  elaims  to  waste-lands.) 


-For  doing,  or  for  omitting  to 
do,  an  act  in  pursuance  of 
any  enactment  in  force  for 
the  time  being  in  British 
India. 


8.— Under  Act  No.  XXV  of  1859 
(to  provide  for  the  limitation 
of  suits),  section  fifteen,  to 
recover  possession  of  im- 
movable property. 


4^-Under  Act  No'IX  of  1860 
(to  provide  for  the  speedy 
determination  of  certain  dis- 
putes between  workmen  en- 
gaged in  Railway  and  other 
public  works  and  their  em- 
ployers,) section  one. 


6.— Under  Act  No.  V  of  1866  (to 
provide  a  summary  procedure 
on  bills  of  exchange,  and  to 
amend,  in  certain  respects, 
the  commercial  law  of  British  I 
India.)  J 


Paet  I. 
Thirty  days* 
Thirty-days 


When  notioe  of  the  award  is 
delivered  to  the  plaintiff. 


Part  II. 

Ninety  days. 

Ninety-days     . 


When  the  act  or  omission 
took  place. 


Part  III. 

Six  months. 
Six  months 


Do. 


When  the  dispossession  oc- 
curs. 


When  the  wages,  hire,  or 
price  of  work  claimed  ac- 
crued due. 


Do. 


When  the  bill  or  promissory 
note  becomes  due  and 
payable. 


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ACT  XV  OF  1877.] 


THE  SECOND  SCHEDULE. 

(Ssb  Section  4.) 
First  Division :   Suits. 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which 
period  begins  to  ran. 


1. — To  contest  an  award 
of  the  Board  of  Re- 
venue under  Act  No. 
XXIII  of  1863  (to 
provide  for  the  ad- 
judication of  claims  to 
waste-lands.) 


2. — For  compensation  for 
doing,  or  for  omitting 
to  do,  an  act  alleged 
to  be  in  pursuance  of 
any  enactment  in  force 
for  the  time  being  in 
British  India. 

3. — Under  the  Specific  Re- 
lief Act,  1877,  Section 
9,  to  recover  posses- 
sion of  immovable  pro- 
perty. 

4.— Under  Act  No.  IX  of 
1860  (to  provide  for 
the  speedy  determina- 
tion of  certain  disputes 
between  workmen  en- 
gaged in  'Railway  and 
other  public  works  and 
their  employers),  Sec- 
tion 1. 

& — Under  the  Code  of  Civil 
Procedure,  Chapter 
XXXIX  (of  summary 
procedure  on  negotiable 
instrument). 


Part  I. 

Thirty  days. 
Thirty  days. 


Part  LL 
Ninety  days. 
Ninety  days. 


Part  HI. 
Six  months. 
Six  months. 


Do. 


Do. 


When  notice  of  the 
award  is  delivered 
to  the  plaintiff. 


When  the  act  or  omis- 
sion takes  place. 


When    the     disposses- 
sion occurs. 


When  the  wages,  hire 
or  price  of  work 
claimed  accrue  or 
accrues  due. 


When  the  instrument 
sued  upon  becomes 
due  and  payable. 


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ZXZY1 


SECOND  SCHEDULE.  [ACT  IX  OP  1871. 

First  Division :  Suits — (Continued.) 


Description  of  suit. 

Period  of 
limitation. 

Time  when  period 
begins  to  run.  - 

Paet  rv. 

One  year.      t 

6.- 

-Upon  a  Statute,  Act,  Regu- 

One year 

When  the  penalty  or  for- 

lation,  or  Bye-law,  for   a 

feiture  is  incurred. 

penalty  or  forfeiture. 

7.- 

-For  the  wages  of  a  domestic 

Do. 

When  the  wages  sued  for 

servant,  artisan,  or  laborer 

accrue  due. 

not  provided  for   by  this 

schedule,  No.  4. 

8.- 

—For  the  price  of  food  or  drink 

Do. 

When  the  food  or  drink  is 

sold  by  the  keeper  of  an 

delivered. 

hotel,  tavern,  or    lodging 

house. 

9.- 

—For  the  price  of  lodging. 

Do. 

When  the  lodging  ends. 

10.- 

—To    enforce  a  right  of  pre- 

Do. 

When  the  purchaser  takes 

emption,  whether  the  right 

actual  possession   under 

is  founded  on  law,  or  general 

the  sale  sought  to  be  im- 

usage, or  on  special  contract. 

peached. 

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ACT  XV  OF  1877.]  THE  SECOND  SCHEDULE. 

First  Division :  Suits — (Continued.) 


xxx  Vll 


Description  of  suit 


Period  of 
limitation. 


Time  from  which 
period  begins  to  run. 


6. — Upon  a  Statute,  Act, 
Regulation  or  Bye- 
law,  for  a  penalty  or 
forfeiture. 

7. — For  the  wages  of  house- 
hold servant,  artisan 
or  laborer  not  pro- 
vided for  by  this 
schedule,  No.  4. 

8.— For  the  price  of  food 
or  drink  sold  by  the 
keeper  of  a  hotel,  tav- 
ern or  lodging  house. 

9. — For  the  price  of  lodg- 
ing. 

10.-— To  enforce  a  right  of 
pre-emption,  whether 
the  right  is  founded 
on  law,  or  general 
usage,  or  on  special 
contract. 


11. — By  a  person  against 
whom  an  order  is 
passed  under  Sections 
280,  281,  282  or  335 
of  the  Code  of  Civil 
Procedure,  to  estab- 
lish his  right  to,  or  to 
the  present  possession 
of,  the  property  com- 
prised in  the  order. 


Part  IV. 
One  year. 
One  year 


Do. 


Do. 

Do. 
Do. 


Do. 


When  the  penalty  or 
forfeiture  is  incur- 
red. 


When  the    wages    ac- 
crue due. 


When      the     food    or 
drink  is  delivered. 


When  the  price  be- 
comes payable. 

When  the  purchaser 
takes,  under  the  sale 
sought  to  be  impea- 
ched, physical  posses- 
sion of  the  whole  of 
the  property  sold,  or, 
where  the  subject  of 
the  sale  does  not  ad- 
mit of  physical]  pos- 
session, when  the  in- 
strument of  sale  is 
registered. 

The  date  of  the  order. 


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XXXVlii  SECOND  SCHEDULE.  [ACT  IX  OF  1871. 

First  Division  :  Suits — (Continued.) 


Description  of  suit. 


Period  of 
limitation. 


Time  when  period 
begins  to  run. 


11. — For  damages  for  infringing 
copyright  or  any  other  ex- 
clusive privilege. 

12. — By  executors,  administrators, 
or  representatives  under 
Act  No.  XII  of  1865  (to 
enable  executors,  adminis- 
trators, or  representatives  to 
sue  and  be  sued  for  certain 
wrongs.) 

.13. — By  execntors,  administrators, 
or  representatives  under  Act 
No.  XIII  of  1855  (to  pi-ovide 
compensation  to  families  for  loss 
occasioned  by  the  death  of  a  person 
caused  by  actionable  wrong,) 

14. — To  set  aside  any  of  the  fol- 
lowing sales : — 

(a)  sale  in  execution  of  a  decree 
of  a  Civil  Court ; 

(b)  sale  in  pursuance  of  a  decree 
or  order  of  a  Collector  or 
other  officer  of  revenue ; 

(c)  sale  for  arrears  of  Govern- 
ment revenue  or  for  any 
demand  recoverable  as  such 
arrears ; 

(d)  sale  of  a  patni  taluq  sold  for 
current  arrears  of  rent. 

Explanation — In  this  clause '  patni* 
includes  any  intermediate 
tenure  saleable  for  current 
arrears  of  rent. 


15. — To  alter  or  set  aside  a  deci- 
sion or  order  of  a  Civil 
Court  in  any  proceeding 
other  than  a  suit. 


Pabt  IV. 
One  year 


Do 


Do. 


Do. 


Do. 


The  date  of  the  infringe- 
ment. 


The  date  of  the  death  of 
the  person  wronged. 


The  date  of  the  death  of 
the  person  killed. 


When  the  sale  is  confirmed, 
or  would  otherwise  have 
become  final  and  conclu- 
sive had  no  such  suit 
been  brought. 


The  date  of  the  final  deci- 
sion or  order  in  the  case 
by  a  Court  competent  to 
determine  it  finally. 


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ACT  XV  OF  1877.]  THE  SECOND  8CHBDULB. 

First  Division :  Suits — (Continued.) 


xxxix 


Description  of  suit. 


See  Article  20, 


See  Article  21. 


12. — To  set  aside  any  of  the 
following  sales  : — 

(a)  sale  in  execution  of  a 
decreeof  a  Civil  Court ; 

(5)  sale  in  pursuance  of 
a  decree  or  order  of 
a  Collector  or  other 
officer  of  revenue ; 

(c)  sale  for  arrears  of 
Govt,  revenue,  or  for 
any  demand  recover- 
able as  such  arrears ; 

(d)  sale  of  a  patni  taluq 
sold  for  current  ar- 
rears of  rent. 

Expln. — In  this  clause 
'patni*  includes  any 
intermediate  tenure 
saleable  for  current 
arrears  of  rent. 

13. — To  alter  or  set  aside  a 
decision  or  order  of  a 
Civil  Court  in  any 
proceeding  other  than 
a  suit. 


Period  of 
limitation.  * 


pabt  IV. 


Time  from  which 
period  begins  to  run. 


One  year. 


When  the  sale  is  con- 
firmed, or  would 
otherwise  have  be- 
come final  and  con- 
clusive had  no  such 
suit  been  brought. 


Do. 


The  date  of  the  final 
decision  or  order  in 
the  case  by  a  Court 
competent  to  deter- 
mine it  finally. 


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xl 


SECOND  SCHEDULE.  [ACT  IX  OF  1871. 

First  Division  :  Suits — (Continued.) 


Description  of  suit. 

Period  of 
limitation. 

Time  when  period 
begins  to  run. 

16.- 

— To  set  aside  any  act  of   an 
Officer    of  Government  in 
his    official    capacity,    not 
herein  otherwise  expressly 
provided  for. 

One  year 

The  date  of  the  act. 

17.- 

—Against  Government  to  set 
aside  any  attachment,  lease, 
•or  transfer  of  immoveable 
property    by   the    revenue 
authorities   for  arrears  of 
Government  revenue. 

Do. 

Whon  the  attachment,  lease, 
or  transfer  is  made. 

18.- 

—Against   Government  to  re- 
cover   money    paid    under 
protest  in  satisfaction  of  a 
claim  made  by  the  revenue 
authorities   on   account   of 
arrears   of  revonue   or   on 
account  of    demands     re- 
coverable as  such  arrears. 

Do. 

When  the  payment  is  made. 

19.- 

—Against  Government  for  com- 
pensation  for  land  acquired 
for  public  purposes. 

Do. 

The  date  fof  determining 
the  amount  of  the  com- 
pensation. 

20.- 

— Like  suit  for  compensation 
when  the  acquisition  is  not 
completed. 

Do. 

The  date  of  the  refusal  to 
complete. 

21.- 

—For  false  imprisonment. 

Do. 

When  the  imprisonment 
onds. 

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ACT  XV  OF  1877.]  THE  SECOND  SCHEDULE. 

First  Division  :  Suits — {Continued.) 


xli 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which 
period  begins  to  run. 


14 — To  set  aside  any  act  or 
order  of  an  officer  of 
Government  in  his 
official  capacity,  not 
herein  otherwise  ex- 
pressly provided  for. 

15. — Against  Government  to 
set  aside  any  attach- 
ment, lease  or  transfer 
of  immoveable  pro- 
perty by  the  revenue 
authorities  for  arrears 
of  Government  reve- 
nue. 

16. — Against  Government  to 
recover  money  paid 
under  protest  in  satis- 
faction of  a  claim 
made  by  the  revenue 
authorities  on  account 
of  arrears  of  revenue 
or  on  account  of  de- 
mands recoverable  as 
such  arrears. 

17. — Against  Government 
for  compensation  for 
land  acquired  for  pub- 
lic purposes. 

18. — Like  suit  for  compen- 
sation when  the  ac- 
quisition is  not  com- 
pleted. 

19. — For  compensation  for 
false  imprisonment. 

20. — By  executors,  adminis- 
r     trators    or    represen- 
tatives, under  Act  No. 
XII  of  1855  (to  enable 
F 


Part  IV. 
One  year. 


Do. 


Do. 


Do. 


Do. 


Do. 


Do. 


The  date  of  the  Act  or 
order. 


When  the  attachment, 
lease  or  transfer  is 
made. 


When  the  payment  is 
made. 


The  date  of  determin- 
ing the  amount  of 
the  compensation. 

The  date  of  the  refus- 
al to  complete. 


When  the  imprison- 
ment ends. 

The  date  of  the  death 
of  the  person  wrong- 
ed. 


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xlK 


tBcovD  ncHii»riJL  [act  ix  or  1871. 

First  Division  :  Suit*— (Continued.) 


Pisjciiption  at  wait. 


Period  jrf 

fiwntstionu 


U>1 


Fast  IV. 


22, — For  sny  other  injury  to  the    One  je 
person* 


23. — For  n  malicious  prosecution. 

24.— For  libel 
26. — For  slander 


26. — For  taking  or  aamagingmoYe- 
ftble  property. 

27. — For  loss  of  service  occasioned 
by  the  Redaction  of  the 
plaintiff**  servant  or  daugh- 
ter. 


28.— For  inducing,  ft  person  to 
break  a  contract  with  the 
plaintiff. 


-For  an  illegal,  irregular,  or 
excessive  distress. 


Da 

Do. 
Do. 

Do. 
Do. 

Do. 
Do. 


When   the  injury  is  com- 
nutted. 


When  the    plaintiff  is  ac- 
|      quitted. 


'  When  the  Kbel  is  published. 


When  the  words  are  spoken. 


When  the  taking  or  damage 
occurs. 

When  the  loss  occurs. 


The  date  of  the  breach. 


The  date  of  the  distress. 


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act  xv  op  1877.] 


THE  SECOND  SCHEDULE. 


xliii 


First  Division :  Suits — (Continued.) 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which 
period  begins  to  ran. 


the  executors  or  repre- 
sentatives to  sue  and  be 
sued  for  certain  wrongs.) 

21. — By  executors,  adminis- 
trators or  represen- 
tatives, under  Act  No. 
XIII  of  1855  (to  pro- 
vide compensation  to 
families  for  loss  occa- 
sioned by  the  death  of  a 
person  caused  by  action- 
able wrong  J 

22. — For  compensation  for 
any  other  injury  to 
the  person. 

23. — For  compensation  for  a 
malicious  prosecution. 


24. — For    compensation    for 

libel. 
25. — For    compensation    for 

slander. 


26. — For  compensation  for 
loss  of  service  occa- 
sioned by  the  seduc- 
tion of  the  plaintiff's 
servant  or  daughter. 

27. — For  compensation  for 
inducing  a  person  to 
break  a  contract  with 
the  plaintiff. 

28. — For  compensation  for 
an  illegal,  irregular  or 
excessive  distress. 


PabtIV. 


One  year 


Do. 
Do. 

Do. 
Do. 


Do. 


Do. 


Do. 


The  date  of  the  death 
of  the  person  killed. 


When    the    injury     is 
committed. 


When  the  plaintiff  is 
acquitted,  or  the  pro- 
secution is  otherwise 
terminated. 

When  the  libel  is  pub- 
lished. 

When  the  words  are 
spoken,  or,  if  the 
words  are  not  action- 
able in  themselves, 
when  the  special 
damage  complained 
of  results. 

When  the  loss  occurs. 


The  date  of  the  breach. 


The  date  of 
tress. 


the  dis- 


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xlir 


*i::*i>  tcnvzix-  [act n  or  1871- 

Ftrrf  DirUiom  :  8niU—{G**mmtd  ) 


D»crif  tkm  erf  naze 


Period  of 
fcarifarioa. 


PlirlT. 
30, — ForwrcmefalBctrarcof  EEOre-    Omjbv 
ab!e  property  ander  iegal 


PahT. 
TV*  yMfi 
3L — For  obstructing  a  way  or  a    Two  years 


The  date  of  the 


•2. — For  diverting  a  water-course.        Do. 
33. — For  wrongfully  detaining  title        Do. 


Do. 


34.— For  wrongfully  detaining  aaj 
other  moveable  propert y.      | 
i 

36.  — For  specific  recovery  of  more- 
able  property  in  caaea  not  ( 
prorided  for  by  this  ache-  | 
dole,  nombera  48  and  49. 

36.—  Again*  a  carrier  for  losing 
or  injuring  goods. 


37. — Against  a  carrier  for  delay  in 
delivering  gooda. 


38.— Against  one  who,  having  a 
right  to  use  property  for 
specific  purposes,  perverts 
it  to  other  purposes. 


39.— Under  Act  No.  XII  of  1855 
(to  enahU  executors,  adminis- 
trators or  representatives  to 
sue  and  be  sued  for  certain 
wrongs)  against  an  executor, 
administrator,  or  other  re- 
presentative. 


Da 


Da 


Do. 


Do. 


Do. 


of  tike  allusion 


the  tide  to  the  pro- 
perty comprised  is  the 
deeds  is  ad  judged  to  the 
plaintiff,  or  the  detainer's 


naJawfaL 
When  the  detainer's] 

ssdawfaL 


When  the  property  m  oe> 


When  the   loss  or  injury 


the  goods  ought  to  be 
delivered. 


The  time  of  the  perversion. 


When  the  wrong  complain* 
ed  of  is  done. 


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ACT  XV  OF  1877.]  THE  SECOND  SCHEDULE. 

First  Division :  Suits — {Continued.) 


xlv 


Description  of  suit 


Period  of 
limitation. 


Time  from  which 
period  begins  to  run. 


29. — For  compensation  for 
wrongful  seizure  of 
moveable  property  un- 
der legal  process. 


30. — Against  a  carrier  for 
compensation  for  log* 
ing  or  injuring  goods. 

31. — Against  a  carrier  for 
compensation  for  delay 
in  delivering  goods. 

32. — Against  one  who,  hav- 
ing a  right  to  use  pro- 
perty for  specific  pur- 
poses, perverts  it  to 
other  purposes. 

33.— Under  Act  No.  XII  of 
1855  (to  enable  execu- 
tors, administrators  or 
representatives  to  sue 
and  be  sued  for  certain 
wrongs)  against  an  exe- 
cutor, administrator  or 
other  representative. 


Part  IV. 
One  year 


Part  V. 
Two  years. 


Two  years 


Do. 


Do. 


Do. 


The  date  of  the  seizure. 


When  the  loss  or  in- 
jury occurs. 


When  the  goods  ought 
to  be  delivered. 


When  the  perversion 
first  becomes  known 
to  the  person  injured. 


When  the  wrong  com- 
plained of  is  done. 


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xlvi 


SECOND  SCHEDULE.  [ACT  IX  OF  1871. 

First  Division :  Suits — (Continued.) 


Description  of  suit. 


Period  of 
limitation. 


Time  when  period 
begins  to  run. 


40. — For  compensation  for  any 
wrong,  malfeasance,  non- 
feasance or  misfeasance,  in- 
dependent of  contract  and 
not  herein  specially  provid- 
ed  for. 

41.— For  the  recovery  of  a  wife. 


42. — For  the  restitution  of  con- 
jugal rights. 


43. — For  trespass  npon  immove- 
able property. 


Part  V. 
Two  years 


Do. 


Da 


Part  VI. 
Three  years. 


Three  years 


When  the  wrong  is  done  or 
the  defanlt  happens. 


When  possession  is  deman- 
ded and  refused. 

When     restitution    is    de- 
manded and  refused. 


When    the  trespass    takes 
place. 


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ACT  XV  OP  1877.]  THB  SECOND  SCHEDULE. 

First  Division :  Suits — (Continued.) 


xlvii 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which 
period  begins  to  run. 


34.— For  the  recovery  of  a 
wife. 

35. — For  the  restitution  of 
conjugal  rights. 


36. — For  compensation  for 
any  malfeasance,  mis- 
feasance or  nonfea- 
sance independent  of 
contract  and  not  here- 
in specially  provided 
for. 


37. — For  compensation  for 
obstructing  a  way  or  a 
water-course. 

38.— For  compensation  for 
diverting  a  water- 
course. 

39. — For  compensation  for 
trespass  upon  immov- 
able property. 

40. — For  compensation  for 
infringing  copyright 
or  any  other  exclusive 
privilege. 

41. — To  restrain  waste 


Part  V. 


Two  years 


Do. 


Do. 


Part  VI. 
Three  years. 
Three  years. 


Do. 


Do. 


Do. 


Do. 


When  possession  is  de- 
manded and  refused. 

When  restitution  is  de- 
manded and  is  re- 
fused by  the  husband 
or  wife,  being  of  full 
age  and  sound  mind. 

When  the  malfeasance, 
misfeasance  or  non- 
feasance takes  place. 


The   date   of    the   ob- 
struction. 


The  date  of  the  diver- 
sion. 

The  date  of  the  tres- 


The  date   of    the    in- 
fringement. 


When  the  waste  begins. 


\ 


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xlviii 


SECOND  8CHEDUL*.  [ACT  IX  OF  1871. 

First  Division :  Suits — (Continued.) 


Description  of  suit. 


Period  of 
limitation. 


Time  when  period 
begina  to  ran. 


Part  VI. 


-To  contest  an  award  under 
any  of  the  following  Regula- 
tions of  the  Bengal  Code  : — 

VII  of  1822. 
IX  of  1825,  and 
IX  of  1883. 


45. — By  a  party  bound  by  snch 
award  to  recover  any  pro- 
perty comprised  therein. 


46. — By  any  person  bound  by  an 
order  respecting  the  pos- 
session of  property  made 
under  Act  No.  XVI  of  1838, 
section  one,  clause  two,  or 
Act  No.  XXV  of  1861, 
chapter  twenty-two,  or 
Bombay  Act  No.  V  of 
1864,  or  by  any  one  claim- 
ing under  such  person,  to 


Three  years. 


The  date  of  the  final  award 
or  order  in  the  case. 


Do. 


Do. 


Do. 


The  date  of  the  final  order 
in  the  case. 


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ACT  XV  OP  1877.]  THE  8ECOND  SCHEDULE. 

First  Division:  Suits— (Continued.) 


zliz 


Description  of  suit. 


42. — For    compensation 
injury  caused  by 
injunction  wrongfully 
obtained. 


for 
an 


43. — Under  the  Indian  Suc- 
cession Act,  1865,  Sec- 
tion 320  or  321,  or  un- 
der the  Probate  and 
Administration  Act, 
Section  139  or  140,  to 
compel  a  refund  by  a 
person  to  whom  an  ex- 
ecutor or  administra- 
tor has  paid  a  legacy 
or  distributed  assets. 

44.— By  a  ward  who  has  at- 
tained majority,  to  set 
aside  a  sale  by  his 
guardian. 

45. — To  contest  an  award  un- 
der any  of  the  follow- 
ing Regulations  of  the 
Bengal  Code : — 
VII  of  1822. 
IX  of  1825,  and 
IX  of  1833. 
46.— By  a  party  bound  by 
such    award    to    re- 
cover   any    property 
comprised  therein. 

47. — By  any  person  bound  by 
an  order  respecting 
the  possession  of  pro- 
perty made  under  the 
Code  of  Criminal  Pro- 
cedure, Chapter  XL, 
or  the  Bombay  Mam- 
latdars'  Courts'    Act, 


Period  of 
limitation. 


Time  from  which 
period  begins  to  run. 


Part  VI. 
Three  years. 


Do. 


When    the    injunction 


The  date  of  the  pay- 
ment or  distribu- 
tion. 


Do. 


Do. 


When    the     ward 
tains  majority. 


at- 


Do. 


Do. 


The  date  of  the  final 
award   or  order 
the  case. 


in 


The  date  of  the  final 
award  or  order  in 
the  case. 

The  date  of  the  final 
order  in  the  case. 


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SECOND  SCHEDULE.  [ACT  IX  OT  1871. 

First  Division  :  Suits— {Continued.) 


Description  of  suit. 


Period  of 
limitation. 


Time  when  period 
•  begins  to  run. 


recover  the  property  com- 
prised in  such  order. 

47.— For  lost  moveable  property 
not  dishonestly  misappro- 
priated or  converted. 

48. — For  moveable  property  ac- 
quired by  theft,  extortion, 
cheating,  or  dishonest  mis- 
appropriation or  conversion. 


49. — For  the  hire  of  animals, 
vehicles,  boats,  or  house- 
hold furniture. 

50. — For  the  balance  of  money 
advanced  in  payment  of 
goods  to  be  delivered. 


61. — For  the  price  of  goods  sold 
and  delivered,  where  no 
fixed  period  of  credit  is 
agreed  upon. 


52. — For  the  price  of  goods  sold 
and  delivered  to  be  paid  for 
after  the  expiry  of  a  fixed 
period  of  credit. 


53. — For  the  price  of  goods  sold 
and  delivered  to  be  paid  for 
by  a  bill  of  exchange,  no 
such  bill  being  given. 


Part  VI. 
Three  years. 

Do. 


Do. 


Do. 


Do. 


Do. 


Do. 


Do. 


When  the  property  is  de- 
manded and  refused* 

Do. 


When  the  hire  becomes  pay 
able. 


When  the  goods  ought  to 
be  delivered. 


The  date  of  the  delivery  of 
the  goods. 


The  expiry  of  the  period  of 
credit. 


When  the  period    of    the 
proposed  bill  elapees. 


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ACT  XV  OF  1877.]  TH8  SECOND  SCHEDULE. 

First  Division :  Suits — (Continued.) 


li 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which 
period  begins  to  run. 


or  by  any  one  claiming 
under  such  person,  to 
recover  the  property 
comprised  in  such  or- 
der. 

48.— For  specific  moveable 
property  lost,  or  ac- 
quired by  theft,  or  dis- 
honest misappropria- 
tion or  conversion,  or 
9  for  compensation  for 
wrongfully  taking  or 
detaining  the  same. 

49. — For  other  specific  mo- 
veable property,  or 
for  compensation  for 
wrongfully  taking  or 
in j  uring  or  wrongfully 
detaining  the  same. 

50. — For  the  hire  of  ani- 
mals, vehicles,  boats  or 
household  furniture. 

51. — For  the  balance  of  mo- 
ney advanced  in  pay- 
ment of  goods  to  be 
delivered. 

52. — For  the  price  of  goods 
sold  and  delivered, 
where  no  fixed  period 
of  credit  is  agreed 
upon. 

53. — For  the  price  of  goods 
sold  and  delivered  to 
be  paid  for  after  the 
expiry  of  a  fixed  period 
of  credit. 

54. — For  the  price  of  goods 
sold  and  delivered  to 
be  paid  for  by  a  bill 
of  exchange,  no  such 
bill  being  given. 


Part  VI. 
Three  years. 


Da 


Do, 


DO. 


Do. 


Do. 


Do. 


Do. 


When  the  person  hav- 
ing the  right  to  the 
possession  of  the  pro- 
perty first  learns  in 
whose  possession  it 
is. 


When  the  property  is 
wrongfully  taken  or 
injured,  or  when  the 
detainer's  possession 
becomes  unlawful. 

When  the  hire  becomes 
payable. 

When  the  goods  ought 
to  be  delivered. 


The  date  of  the  deli- 
very of  the  goods. 


When  the  period  of  cre- 
dit expires. 


When  the  period  of  the 
proposed  bill  elapses. 


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lii 


SIC05D  SCH1DUL1.  [aCT  IX  OF  1871. 

Firtt  Division :  Suits — (Continued.) 


Description  of  suit. 


Period  of 
limitation. 


64. — For  the  prioe  of  trees  or 
growing  crops  sold  by  the 
plaintiff  to  the  defendant 
where  no  fixed  period  of 
credit  is  agreed  upon. 


55. — For  the  price  of  work  done 
by  the  plaintiff  for  the  de- 
fendant at  his  request  where 
no  time  has  been  fixed  for 
payment. 


56. — For  money  payable  for  money 
lent. 

57. — like  suit  when  the  lender  has 
given  a  cheque  for  the 
money. 

58. — For  money  lent  under  an 
agreement  that  it  shall  be 
payable  on  demand. 


59. — For  money  payable  to  the 
plaintiff  for  money  paid  for 
the  defendant. 


60. — For  money  payable  by  the 
defendant  to  the  plaintiff 
for  money  received  by  the 
defendant  for  the  plaintiff's 
use. 


61.— For  money  payable  for  inter- 
est npon  money  dne  from 
the  defendant  to  the  plain- 
tiff. 


Pabt  VI. 
Three  years 


Do. 


Do. 


Da 


Do* 


Do. 


Do. 


Time  when  period 
begins  to  ran. 


The  date  of  the 


When  the  work  is  done. 


When  the  loan  is  made. 
When  the  cheque  is  paid. 

When  the  demand  is  made. 


When  the  money  is  paid. 


When  the  money  is  received 


Da 


When  the  interest  becomes 
dua 


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ACT  XV  OF  1877.]  THE  SECOND  SCHEDULE. 

First  Division  :  Suits— (Continued.) 


liii 


Description  of  suit. 


55. — For  the  price  of  trees 
or  growing  crops  sold 
by  the  plaintiff  to  the 
defendant  where  no 
fixed  period  of  credit 
is  agreed  upon. 

56. — For  the  price  of  work 
done  by  the  plaintiff 
for  the  defendant  at 
his  request,  where  no 
time  has  been  fixed 
for  payment. 

57. — For  money  payable  for 
money  lent. 

58. — Like  suit  when  the 
lender  has  given  a 
cheque  for  the  money. 

59. — For  money  lent  under 
an  agreement  that  it 
shall  be  payable  on 
demand. 

60. — For  money  deposited 
under  an  agreement 
that  it  shall  be  pay- 
able on  demand. 

61. — For  money  payable  to 
the  plaintiff  for  money 
paid  for  the  defen- 
dant. 

62. — For  money  payable  by 
the  defendant  to  the 
plaintiff  for  money 
received  by  the  de- 
fendant for  the  plain- 
tiff's use. 

63. — For  money  payable  for 
interest  upon  money 
due  from  the  defen- 
dant to  the  plaintiff. 


Period  of 
limitation. 


Time  from  which 
period  begins  to  run. 


Part  VI. 
Three  years... 


Do. 


Do. 
Do. 

Do. 
Do. 
Do. 
Do. 


Do. 


The  date  of  the  sale. 


When  the  work  is  done. 


When  the  loan  is  made. 

When    the   cheque    is 
paid. 

When  the  loan  is  made. 


When  the   demand  is 
made. 


When    the    money    is 
paid. 


When    the    money    is 
received. 


When  the  interest  be- 
comes due. 


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lir 


SKCOXD  SCHEDULE.  [ACT  IX  OF  1871. 

First  Division :  Suits — (Continued.) 


Description  of  suit. 


Period  of 
limitation. 


Time  when  period 
begins  to  run. 


-For  money  payable  to  the 
plaintiff  for  money  found  to 
be  doe  from  the  defendant 
to  the  plaintiff  on  accounts 
stated  between  them. 


Part  VI. 
Three  years 


68. — Upon  a  promise  to  do  any- 
thing at  a  specified  time,  or 
upon  the  happening  of  a 
specified  contingency. 

64.— Against  a  factor  for  an  ac- 
count 


-On  a  single  bond  where  a  day 
is  specified  for  payment. 


\. — On  a  single  bond  where  no 
such  day  is  specified. 


67. — On  a  bond  subject  to  a  con- 
dition. 

68.— On  a  bill  of  exchange  or  pro- 
missory note  payable  at  a 
fixed  time  after  date. 


K — On  a  bill  of  exchange  payable 
at  or  after  sight. 


Do. 


Do. 


Do. 


Do. 


Do. 


Do. 


Do. 


When  the  accounts  are 
stated,  nnless  where  the 
debt  is  made  payable  at 
a  future  time  and  then 
when  that  time  arrives. 


At  the  time  specified  or 
upon  the  contingency 
happening. 


When  the  account  is  de- 
manded, or,  where  no 
such  demand  is  made, 
when  the  agency  termi- 
nates. 

The  day  so  specified. 


The  date  of  executing  the 
bond. 


When     the     condition     is 
broken. 

When  the  bill  or  note  falls 
due. 


When  the  bill  is  presented 


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ACT  XV  OF  1877.]  THE  SECOND  SCHEDULE. 

First  Division :  Suits — (Continued,) 


Description  of  suit. 

Period  of 
limitation. 

Time  from  which 
period  begins  to  run. 

Part  VI. 

64.- 

—For  money  payable  to 

Three  years... 

When  the  accounts  are 

the  plaintiff  for  money 

stated  in  writing  sig- 

found to  be  due  from 

ned  by  the  defendant 

the  defendant  to  the 

or  his  agent  duly  au- 

plaintiff on    accounts 

thorised  in  this  be- 

stated between  them. 

half,  unless  where 
the  debt  is,  by  a  si- 
multaneous agree- 
ment in  writing  sign- 
ed as  aforesaid,  made 
payable  at  a  future 
time,  and  then  when 
that  time  arrives. 

65.- 

—For    compensation    for 

Do. 

When  the  time  speci- 

breach of   a  promise 

fied  arrives    or    the 

to   do  anything  at  a 

contingency  happens. 

specified  time,  or  upon 

the   happening    of    a 

specified  contingency. 

66.- 

—On  a  single  bond  where 
a  day  is   specified  for 
payment. 

Do. 

The  day  so  specified. 

67.- 

—On  a  single  bond  where 

Do. 

The  date  of  executing 

no  such  day  is  speci- 

the bond. 

fied. 

68.- 

—On  a  bond  subject  to  a 

Do. 

When  the  condition  is 

condition. 

broken. 

69.- 

—On  a  bill  of  exchange 

Do. 

When  the  bill  or  note 

or     promissory     note 

falls  due. 

payable  at  a  fixed  time 

after  date. 

70.- 

— On  a  bill  of  exchange 

Do. 

When  the  bill  is  pre- 

payable  at   sight,   or 

sented. 

after   sight,   but    not 

at  a  fixed  time. 

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lvi 


8100*1)  8CHBDULB.  [ACT  IX  OF  1871. 

First  Division :  Suits — (Continued.) 


Description  of  suit. 


Period  of 
limitation. 


Time  when  period 
begins  to  run. 


70. — On  a  bill  of  exchange  accept* 
ed  payable  at  a  particular 
place. 

71. — On  a  biD  of  exchange  or  pro- 
missory note  payable  at  a 
fixed  time  after  sight  or 
after  demand. 


72. — On  a  bill  of  exchange  or  pro- 
missory note  payable  on 
demand  and  not  accompani- 
ed by  any  writing  restrain- 
ing or  postponing  the  right 
to  sue. 

78. — By  the  endorsee  of  a  bill  or 
promissory  note  against  the 
endorser. 

74.— On  a  promissory  note  or  bond 
payable  by  instalments. 


76. — On  a  promissory  note  or  bond 
payable  by  instalments, 
which  provides  that  if  de- 
fault be  made  in  payment 
of  one  instalment  the  whole 
shall  be  due. 


76. — On  a  promissory  note  riven 
by  the  maker  to  a  third 
person  to  be  delivered  to  the 
payee  after  a  certain  event 
should  happen. 


Part  VI. 
Three  years 


Do. 


Do. 


Do. 


Do. 


Do. 


Do. 


When  the  bill  is  presented 
at  that  place. 


When  the   fixed  time  ex- 
pires. 


When  the  demand  is  made. 


The  date  of  the  endorse- 
ment. 


The  expiration  of  the  first 
term  of  payment,  as  to 
the  part  then  payable; 
and,  for  the  other  parts, 
the  expiration  of  the  re- 
spective terms  of  pay- 
ment. 


The  time  of  the  first  de- 
fault, unless  where  the 
payee  or  obligee  waives 
the  benefit  of  the  provi- 
sion, and  then  when  fresh 
default  is  made. 


The  time  of  the  delivery  to 
the  payee. 


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1CT  XV  OF  1877.]  THE  8ECOND  SCHEDULE. 

First  Division :  Suits — (Continued.) 


lvii 


Description  of  suit 


Period  of 
limitation. 


Time  from  which 
period  begins  to  run. 


71. — On  a  bill  of  exchange 
accepted  payable  at  a 
particular  place. 

72. — On  a  bill  of  exchange  or 
promissory  note  pay- 
able at  a  fixed  time 
after  sight  or  after  de- 
mand. 

73. — On  a  bill  of  exchange  or 
promissory  note  pay- 
able on  demand  and 
not  accompanied  by 
any  writing  restrain- 
ing or  postponing  the 
right  to  sue. 


74. — On  a  promissory  note 
op  bond  payable  by 
instalments. 


75. — On  a  promissory  note  or 
bond  payable  by  instal- 
ments, which  provides 
that,  if  default  be  made 
in  payment  of  one  in- 
stalment, the  whole 
shall  be  due. 


76. — On  a  promissory  note 
given  by  the  maker  to 
a  third  person  to  be 
delivered  to  the  payee 
after  a  certain  event 
should  happen. 


Part  VI. 
Three  years. 


Do. 


Do. 


Do. 


Do. 


Do. 


When  the  bill  is  pre- 
sented at  that  place. 

When  the  fixed   time 
expires. 


The  date  of  the  bill  or 
note. 


The  expiration  of  the 
first  term  of  pay- 
ment, as  to  the  part 
then  payable;  and, 
for  the  other  parts, 
the  expiration  of  the 
respective    terms  of 


payment. 
The 


When  the  first  default 
is  made,  unless  where 
the  payee  or  obligee 
waives  the  benefit  of 
the  provision,  and 
then  when  fresh  de- 
fault is  made  in  res- 
pect of  which  there 
is  no  such  waiver. 

The  date  of  the  de- 
livery to  the  payee. 


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hi 


SECOND  SCHEDULE.  [ACT  IX  OF  1871. 

First  Division  :  Suits — (Continued.) 


Description  of  suit. 


Period  of 
limitation. 


Time  when  period 
begins  to  run. 


70, — On  a  bill  of  exchange  accept- 
ed payable  at  a  particular 
place. 

71.— On  a  bill  of  exchange  or  pro- 
missory note  payable  at  a 
fixed  time  after  sight  or 
after  demand. 


73. — On  a  bill  of  exchange 
inidHOry    note    pnya 
demand  and  not  aci 
ed  by  any  writing 
ing  or  postponing 
to  sue, 

73. — By  the  endorsee  of  a 
promissory  note 
endorser. 


Part  VL 
Three  years 


Do. 


When  the  bill  is  presented 
at  that  place. 


When  the    fixed    time  ex- 
pires. 


When  the  demand  is  made. 


k 


Ip&doTBe- 


Digitized  by  VjVJOvIA 


ACT  XV  OF  1877.]  THE  8ECOND  SCHEDULE. 

First  Division :  Suits — (Continued.) 


lvii 


Description  of  suit 


71, — On  a  bill  of  exchange 

accepted  payable  at  a 
particular  place, 

72, — Ona  bill  of  exchange  or 
promissory  note  pay- 
able at  a  fixed  time 
after  sight  or  after  de- 
mand. 


Period  of 
limitation. 


Part  VI. 

Three  years. 


Time  from  which 
period  begins  to  run. 


When  the  bill  is  pre- 
sented at  that  place. 


When   the 
expires. 


time 


The  date  uf  the  bill  or 
note. 


The  expiration  of  the 
first  term  of  pay- 
ment, as  to  the  part 
then  payable ;  and, 
for  the  other  parts, 
the  expiration  of  the 
respective  terms  of 
payment* 

When  the  first  default 
ig  made,  unless  where 
the  payee  or  obligee 
waives  the  beuefit  of 
the  provision,  and 
then  when  fresh  de- 
fault is  made  in  res- 
pect of  which  there 
:g  no  such  waiver. 
date  of  the  de- 
ary to  the  pay  oo. 


xlvi 


SECOND  SCHEDULE.  [ACT  IX  OF  1871. 

First  Division :  Suits — (Continued.) 


Description  of  suit. 


Period  of 
limitation. 


Time  when  period 
begins  to  ran. 


40. — For  compensation  for  any 
wrong,  malfeasance,  non- 
feasance or  misfeasance,  in- 
dependent of  contract  and 
not  herein  specially  provid- 
ed for. 

41.— For  the  recovery  of  a  wife. 


42. — For  the  restitution  of  con- 
jugal rights. 


48. — For  trespass  upon  immove- 
able property. 


Part  V. 
Two  years 


Do. 


Do. 


Part  VI. 
Three  years. 


Three  years 


When  the  wrong  is  done  or 
the  default  happens- 


When  possession  is  deman- 
ded  and  refused. 

When    restitution    is    de- 
manded and  refused. 


When    the  trespass    takes 
place* 


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ACT  XV  OP  1877.]  THE  SECOND  SCHEDULE. 

First  Division:  Suits — (Continued.) 


xlvii 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which 
period  begins  to  run. 


34.— For  the  recovery  of  a 
wife. 

35. — For  the  restitution  of 
conjugal  rights. 


36. — For  compensation  for 
any  malfeasance,  mis- 
feasance or  nonfea- 
sance independent  of 
contract  and  not  here- 
in  specially  provided 
for. 


37. — For  compensation  for 
obstructing  a  way  or  a 
water-course. 

38.— For  compensation  for 
diverting  a  water- 
course. 

39. — For  compensation  for 
trespass  upon  immov- 
able property. 

40. — For  compensation  for 
infringing  copyright 
or  any  other  exclusive 
privilege. 

41. — To  restrain  waste 


Part  V. 


Two  years 
Do. 

Do. 


Part  VI. 
Three  years. 
Three  years. 


Do. 


Do. 


Do. 


Do. 


When  possession  is  de- 
manded and  refused. 

When  restitution  is  de- 
manded and  is  re- 
fused by  the  husband 
or  wife,  being  of  full 
age  and  sound  mind. 

When  the  malfeasance, 
misfeasance  or  non- 
feasance takes  place. 


The   date   of    the   ob- 
struction. 


The  date  of  the  diver- 
sion. 

The  date  of  the  tres- 
pass. 

The  date   Of   the    in- 
fringement. 


. .    When  the  waste  begins. 


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lxii 


SECOND   SCHEDULE.  [ACT  IX  OF  1871. 

First  Division  :  Suits — {Continued.) 


Description  of  suit. 


Period  of 
limitation. 


Time  when  period 
begins  to  run. 


94. — For  property  which  the  plain- 
tiff has  conveyed  while  in- 
sane* 


95. — For  relief  on  the  ground  of 
fraud. 

96. — To  set  aside  a  decree  obtain- 
ed by  fraud. 

97. — For  relief  on  the  ground  of 
mistake  in  fact. 


98. — For  money  paid  upon  an  ex- 
isting consideration,  which 
afterwards  fails. 


99. — To  make  good  out  of  the 
general  estate  of  a  deceas- 
ed trustee  the  loss  occasion- 
ed by  a  breach  of  trust. 


100. — For  contribution  by  a  party 
who  has  paid  the  whole 
amount  due  under  a  joint 
decree,  or  by  a  sharer  in  a 
joint  estate  who  has  paid 
the  whole  amount  of  re< 
venue  doe  from  himself  and 
his  co-sharers. 


101. — By  a  co-trustee  to  enforce 
against  the  estate  of  a  de- 
ceased trustee  a  claim  for 
contribution. 


PiEt»VT. 
Three  years. 


Do. 

Do. 
Do. 
Do. 

Do. 
Do. 

Do. 


Do. 


When  the  plaintiff  is  restor- 
ed to  sanity  and  has 
knowledge  of  the  convey- 
ance. 

When  the  fraud  becomes 
known  to  the  party 
wronged. 

Do. 


When  the  mistake  becomes 
known  to  the  plaintiff. 

The  date  of  the  failure. 


The  date  of  the  trustee's 
death,  or  if  the  loss  has 
not  then  been  occasioned, 
the  date  of  the  loss. 


The  date  of  the  plaintiff's 
advance  in  excess  of  his 
own  share. 


When  the  right  to  contri- 
bution accrues. 


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ict  xv  op  1877.]  thi  second  schedule. 

First  Division:  Suits — (Continued.) 


Ixiii 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which 
period  begins  to  run. 


93. — To  declare  the  forgery 
of  an  instrument  at- 
tempted to  be  enforced 
against  the  plaintiff. 

94. — For  property  which  the 
plaintiff  has  conveyed 
while  insane. 

95.— To  set  aside  a  decree 
obtained  by  fraud,  or 
for  other  relief  on  the 
ground  of  fraud. 

96. — For  relief  on  the  ground 
of  mistake. 

97. — For  money  paid  upon 
an  existing  consider- 
ation which  after- 
wards fails. 

98. — To  make  good  out  of 
the  general  estate  of 
a  deceased  trustee  the 
loss  occasioned  by  a 
breach  of  trust. 

99. — For  contribution  by  a 
party  who  has  paid 
the  whole  amount  due 
under  a  joint  decree, 
or  by  a  sharer  in  a 
joint  estate  who  has 
paid  the  whole  amount 
of  revenue  due  from 
himself  and  his  co- 
sharers. 

100. — By  a  co-trustee  to  en- 
force, against  the  es- 
tate of  a  deceased 
trustee  a  claim  for 
contribution. 


Part  VI. 
Three  years. 


Do. 


Do. 


Do. 


Do. 


Do. 


Do 


Do. 


The    date  of   the    at- 
tempt. 


When  the  plaintiff  is 
restored  to  sanity, and 
has  knowledge  of  the 
conveyance. 

When  the  fraud  be- 
comes known  to  the 
party  wronged. 


When  the  mistake 
becomes  known  to 
the  plaintiff. 

The  date  of  the  failure. 


The  date  of  the  trus- 
tee's death,  or,  if  the 
loss  has  not  then  re- 
sulted, the  date  of 
the  loss. 

The  date  of  the  plain- 
tiff's advance  in  ex- 
cess of  his  own  share. 


When  the  right  to  con- 
tribution accrues. 


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1X1T 


tZCQTD   8CHI&CL*.  [iCT  IX  Of  187L 

Flr$l  Ihriiion  :  Suit* — (Continued.) 


Description  of  suit. 


Period  of 
limitation 


Tine  whea  period 
begin*  to  ram. 


102. — for  a  seaman*!  wages. 


Parr  VI. 
,  Three  years 


Tbe  end  ©»  the  voyage  dur- 
rag  which  the  wages  are 
earned. 


103. — By    ft     Mahatnmadan     for 
exigible  dower  (mtfajjaX). 


Do. 


104. — By  ft  Hahftmmftdan  for  de- 
ferred dower  (mu'wujjalj. 


105. — By  ft  mortgagor  after  the 
mortgage  baa  been  satisfied, 
to  recorer  surplus  collec- 
tions reoeiTed  by  the  mort- 
gage- 


XO0. — For  an  account  and  a  share 
of  the  profits  of  a  dissolved 
partnership. 


107. — By  a  Hindu  manager  of  a 
joint  estate  for  contribution 
in  respect  of  a  payment 
made  by  him  on  account  of 
the  estate. 


108. — By  a  lessor  for  the  value  of 
trees  out  down  by  his  lessee 
contrary  to  the  terms  of 
the  lease.    • 


Do. 


Do. 


Do. 


Do. 


Do. 


When  the  dower  is  demand- 
ed and  refased,  or  (where 
dnrin<r  the  continuance  of 
the  marriage  no  each  de- 
mand has  been  made) 
wben  the  marriage  is  dis- 
solved by  death  or  di- 
vorce. 


When  the  marriage  is  dis- 
solved by  death  or  divorce 


The  date  of  the  receipt. 


The  date  of  the  dissolution. 


The  date  of  the  payment. 


When  the 
down. 


trees    are  cut 


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ACT  XV  OF  1877.]  THH   8ECOND  SCHEDULE. 

First  Division:  Suits — (Continued.) 


Ixv 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which 
period  begins  to  run. 


101. — For  a  seaman's  wages. 


102. — For  wages  not  other- 
wise expressly  provid- 
ed {or  by  this  sche- 
dule. 

103. — By  a  Muhammadan  for 
exigible  dower  (muf 
ajjal.) 


104. — By  a  Muhammadan  for 
deferred  dower  (mu9- 
wajjal.) 

105. — By  a  mortgagor  after 
the  mortgage  has  been 
satisfied,  to  recover 
surplus  collections  re- 
ceived by  the  mort- 
gagee. 

106. — For  an  account  and  a 
share  of  the  profits 
of  a  dissolved  partner- 
ship. 

107. — By  the  manager  of  a 
joint  estate  of  an  un- 
divided family  for  con- 
tribution in  respect  of 
a  payment  made  by 
him  on  account  of  the 
estate. 

108. — By  a  lessor  for  the  value 
of  trees  cut  down  by 
his  lessee  contrary  to 
the  terms  of  the  lease. 

I 


Part  VI. 
Three  years. 

Do. 


Do. 


Do. 


Do. 


Do. 


Do. 


Do. 


The  end  of  the  voyage 
during  which  the 
wages  are  earned. 

When  the  wages  accrue 
due. 


When  the  dower  is  de- 
manded and  refused, 
or  (where  during  the 
continuance  of  the 
marriage  no  such  de- 
mand has  been  made) 
when  the  marriage  is 
dissolved  by  death  or 
divorce. 

When  the  marriage  is 
dissolved  by  death  or 
divorce. 

When  the  mortgagor  re- 
enters on  the  mort- 
gaged property. 


The  date  of  the  dissolu- 
tion. 


The  date  of  the  pay- 
ment. 


When  the  trees  are  cut 
down. 


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lxvi 


SECOND  8CHEDULE.  [ACT  IX  OF  1871. 

First  Division :  Suite— (Continued.) 


Description  of  suit. 

Period  of 
limitation. 

Time  when  period 
begins  to  run. 

Paet  VI. 

100.- 

— For  the  profits  of  immove- 

Three years     ... 

When  the  profits  are  re- 

able property  belonging  to 

ceived,     or,    where    the 

the  plaintiff  wrongfully  re- 

plaintiff has  been  dispos- 

ceived by  the  defendant. 

sessed  by  a  decree  after- 
wards set  aside  on  appeal, 
the  date  of  the  decree  of 
the  appellate  Court. 

110.- 

—For  arrears  of  rent. 

Do. 

When  the  arrears  become 
due. 

111.- 

—By  a  Tender  of  immoveable 

Do.               ^. 

The  time  fixed  for  complet- 

property to  enforce  hit  lien 

ing  the  sale,  or  (where 

for  unpaid  purchase-money. 

the  title  is  accepted  after 
the  time  fixed  for  com- 
pletion) the  date  of  the 
aooeptanoe. 

112.- 

—For  a  call  by  a  company  re- 
gistered under  any  Statute 
or  Act. 

Do. 

When  the  call  was  made. 

113.- 

—For  specific  performance  of 

Do. 

When    the     plaintiff     has 

a  contract. 

notioe  that  his  right  is 
denied. 

114.- 

—For  the  rescission  of  a  con- 

Do. 

When  the  contract  is  exe- 

tract. 

cuted  by  the  plaintiff. 

115.- 

-For  the  breach  of  any  con- 

Do. 

When  the  contract  is  broken 

tract,  express  or  implied,  not 

or  (where  there  are  suc- 

in writing  registered,  and 

cessive  breaches)    when 

not  herein  specially  provided 

the  breach  sued  for  oc- 

for. 

curs,  or  (where  the  breach 
is   continuing)  when    it 

• 

• 

oeases. 

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ACT  XV  OF  1877.]  THE  SECOND  SCHEDULE. 

First  Division :  Suits — (Continued.) 


hcvii 


Description  of  suit. 


Period,  of 
limitation. 


Time  from  which 
period  begins  to  ran. 


109.— For  the  profits  of  im- 
moveable property  be- 
longing to  the  plain- 
tiff which  have  been 
wrongfully  received 
by  the  defendant. 

110. — For  arrears  of  rent. 

111. — By  a  vendor  of  im- 
moveable property 
to  enforce  his  lien 
for  unpaid  purchase- 
money. 


112. — For  a  call  by  a  com- 
pany   registered    un- 
*  der  any  Statute  or  Act. 

113. — For  specific   perform- 
ance of  a  contract. 


114. — For  the  rescission  of  a 
contract. 


115. — For  compensation  for 
the  breach  of  any  con- 
tract, express  or  im- 
plied, not  in  writing 
registered,  and  not 
herein  specially  pro- 
vided for. 


Part  VI. 
Three  years. 


Do. 
Do. 


Do. 


Do. 


Do. 


Do. 


When  the  profits  are  re- 
ceived, or,  where  the 
plaintiff  has  been  dis- 
possessed by  a  decree 
afterwards  set  aside 
on  appeal,  when  he 
recovers  possession. 

When  the  arrears  be- 
come due. 

The  time  fixed  for  com- 
pleting the  sale,  or 
(where  the  title  is 
accepted  after  the 
time  fixed  for  com- 
pletion) the  date  of 
the  acceptance. 

When  the  call  is  pay- 
able. 

The  date  fixed  for  the 
performance,  or  if  no 
such  date  is  fixed, 
when  the  plaintiff  has 
notice  that  perform- 
ance is  refused. 

When  the  facts  enti- 
tling the  plaintiff  to 
have  the  contract  re- 
scinded first  become 
known  to.  him. 

When  the  contract  is 
broken,  or  (where 
there  are  successive 
breaches)  when  the 
breach  in  respect  of 
which  the  suit  is  in- 
stituted occurs,  or 
(where  the  breach  is 
continuing)  when  it 
ceases. 


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xlviii 


SECOND    SCHEDULE.  [ACT  IX  OF  1871. 

First  Division  :  Suits — {Continued.) 


Description  of  suit. 


Period  of 
limitation. 


Time  when  period 
begins  to  run. 


116. — Upon  a  judgment  obtained 
in  a  foreign  conn  try. 

117. — On  a  promise  or  contract  in 
writing  registered. 


118. — Suit  for  which  no  period  of 
limitation  is  provided  else- 
where in  this  schedule. 


119. — By  an  auction-purchaser  or 
any  one  claiming  under  him 
to  avoid  incumbrances  of 
under-tenures  in  an  entire 
estate  sold  for  arrears  of 
Government  revenue,  the 
estate  being,  by  virtue  of 
such  sale,  freed  from  incum- 
brances and  under-tenures. 

120. — To  avoid  incumbrances  or 
under-tenures  in  a  patni 
taluq  or  other  saleable 
tenure  sold  for  arrears  of 
rent,  the  taluq  or  tenure 
being,  by  virtue  of  such  sale 
freed  from  incumbrance 
and  under-tenures. 

121. — Upon  a  judgment  obtained 
in  British  India,  or  a  recog- 
nizance. 


Paet  VII. 
Six  years 


Do. 
Do. 


Do. 


Pabt  VIII. 
Twelve  years 


Do. 


The  date  of  the  judgment 

When  the  period  of  limita- 
tion would  begin  to  ran 
against  a  suit  brought  on 
a  similar  promise  or  con- 
tract not  registered. 


When    the    right    to    sue 
accrues. 


When  the  sale  becomes  final 
and  conclusive. 


Do. 


When  the  sale  becomes  final 
and  conclusive. 


The  date  of  the  judgment 
or  recognizance. 


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j 


ACT  XV  OF  1877.]  THE  8BCOND  SCHEDULE. 

First  Division :  Suits — (Continued.) 


lxix 


Description  of  suit. 

Period  of 

Time  from  which 

limitation. 

period  begins  to  run. 

Part  VII. 

116, 

— For  compensation  for 

Six  years 

When    the    period    of 

the  breach  of  a  con- 

limitation     would 

tract  in    writing  re- 

begin  to  run  against 

-  gistered. 

a  suit  brought  on  a 
similar  contract  not 
registered. 
The  date  of  the  judg- 

117, 

—Upon  a  foreign  judg- 

Do. 

ment    as    denned    in 

ment. 

the  Code  of  Civil  Pro- 

cedure. 

118, 

— To  obtain   a  declara- 

Do. 

When  the  alleged  adop- 

tion  that  an   alleged 

tion  becomes  known 

adoption     is    invalid, 

to  the  plaintiff. 

or  never  in  fact  took 

place. 
— To  obtain  a  declaration 

119. 

Do. 

When  the  rights  of  the 

that  an  adoption  is  va- 

adopted son  as  such 

lid. 

are  interfered  with. 

120. 

— Suit  for  which  no  pe- 

Do. 

When  the  right  to  sue 

riod  of    limitation  is 

accrues. 

provided  elsewhere  in 

this  schedule. 

Part  VIII. 

121, 

— To  avoid  incumbrances 

Twelve  years. 

When  the  sale  becomes 

or  under-tenures  in  an 

final  and  conclusive. 

entire  estate   sold  for 

arrears  of  Government 

revenue  or  in  a  patni 

talulc  or  other  saleable 

tenure  sold  for  arrears 

of  rent. 

122. 

— Upon  a  judgment  ob- 

Do. 

The  date  of  the  judg- 

tained  in  British  India, 

mentorrecognizance. 

or  a  recognizance. 

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La 


noon  acrarcLE.  [act  a  or  1871. 

J"tr»f  Divuum:  SwiU     (Ccmimmei) 


Description  of  i 


Period  of 


Pact  Yin. 


122. — For  a  legacy  or  for  a 
botrre  share  of  the 
•Me  property  of  a 


US.— For  possession  of 
ditsry  office. 


en  bore-1      Do. 


124.— Suit  during  the  life  of  e 
Hindu  widow  by  ft  Hindu 
entitled  to  the  possession  of 
land  mod  her  death  to  hare 
nn  alienation  made  by  the 
widow  declared  to  be  roid 
except  for  her  life. 


126. — By  a  Hindu  governed  by  the 
law  of  the  Kitftkabarft  to  eet 
aside  his  father*  t  alienation 
of  anoestral  property. 

126. — Like  suit  by  a  Hindn  gorern- 
ed by  the  law  of  the  Daya- 
bhaga. 


Do. 


Do. 


Do. 


When  the  defendant*  or 
•one  person  through 
whom  he  daiaa,  took 
pnaienrion  of  the  often 
adTemaly  to  the  plaintiC. 


ry  office  hi 
when  the  profits  thereof 
are  nsaaDy  received,  or 
(if  there  are  no  profits) 
when  the  duties  thereof 
are  usually  petfuranwL 


The  date  of  the  alienation. 


The  date  of  the  alienation. 


When  the  father  dies. 


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ACT  XV  OF  1877.]  THE  SECOND  SCHEDULE. 

First  Division :  Suits — (Continued.) 


Ixxi 


Description  of  suit. 


123. — For  a  legacy  or  for  a 
share  of  a  residue  be- 
queathed by  testator, 
or  for  a  distributive 
share  of  the  property 
of  an  intestate. 

124. — For  possession  of  an 
hereditary  office. 


125. — Suit  during  the  life  of 
a  Hindu  or  Muham- 
madan  female  by  a 
Hindu  or  Muhamma- 
dan  who,  if  the  female 
died  at  the  date  of  insti- 
tuting the  suit,  would 
be  entitled  to  the  pos- 
session of  land,  to  have 
an  alienation  of  such 
land  made  by  the  fe- 
male declared  to  be 
void  except  for  her  life 
or  until  ner  re-marri- 
age. 

126. — By  a  Hindu  governed 
by  the  law  of  the  Mita- 
kshara  to  set  aside  his 
father's  alienation  of 
ancestral  property. 


Period  of 
limitation. 


i 


Part  VIII. 
Twelve  years. 


Do. 


Do. 


Do. 


Time  from  which 
period  begins  to  run. 


When  the  legacy  or 
share  becomes  pay- 
able or  deliverable. 


When  the  defendant 
takes  possession  of 
the  office  adversely 
to  the  plaintiff. 

E  xplanatio  n. — An 
hereditary  office  is 
possessed  when  the 
profits  thereof  are 
usually  received,  or 
(if  there  are  no  pro- 
fits) when  the  duties 
thereof  are  usually 
performed. 

The  date  of  the  alien- 
ation. 


When  the  alienee  takes 
possession  of  the  pro- 
perty. 


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lxxii 


8IC0TO  8CH1DUL1.  [ACT  IX  OP  1871. 

Fir$t  Division  :  Suits — (Continued.) 


Description  ol  suit. 


Period  of 
limitation. 


Time  when  period 
begin*  to  ran. 


127. — By  a  Hindu  excluded  from 
joint  family  property  to 
enforce  a  right  to  ■hare 
therein. 

128. — By  a  Hindu  for  maintenance. 


129. — To  establish  or  set  aside  i 
adoption. 


180.— For  the  resumption  or 

ment  of  rent-free  land. 


Piar  vm. 
Twelve  years 


Da 


Do. 


Do. 


181. — To  establish  a  periodically 
recurring  right. 

182. — For  money  charged  upon 
immoveable  property. 

Baplanation, — The  allowance  and 
fees  called  malikana  and 
haqqs  shall,  for  the  purposes 
of  this  clause,  be  deemed  to 
be  money  charged  upon  im- 
moveable property. 


188. — To  reoover  moveable  pro- 
perty conveyed  in  trust,  de- 
posited or  pawned  and  after- 
wards bought  from  the 
trustee,  depositary  or  paw- 
nee in  good  faith  and  for 
value. 


Da 


Do. 


Do. 


When  the  plaintiff  claims 
and  is  refused  his  share. 


When  the  maintenance  sued 
for  is  claimed  and  refused. 


The  date  of  the  adoption,  or 
(at  the  option  of  the 
plaintiff)  the  date  of  the 
death  of  the  adoptive 
father. 

When  the  right  to  resume 
or  assess  the  land  first 
accrued. 

Provided  that  no  such  suit 
shall  be  maintained  where 
the  land  forms  part  of  a 
permanently-settled  es- 
tate, and  has  been  held 
rent-free  from  the  time 
of  the  Permanent  Settle- 
ment. 

When  the  plaintiff  is  first 
refused  the  enjoyment  of 
the  right. 

When  the  money  sued  for 
becomes  due. 


The  date  of  the  purchase. 


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ACT  XV  OF  1877.]  THE  SECOND  SCHEDULE. 

First  Division:  Suits — (Continued.) 


lliiii 


Description  of  suit 


Period  of 
limitation. 


Time  from  which 
period  begins  to  ran. 


127. — By  a  person  excluded 
from  joint-family  pro- 
perty to  enforce  a 
right  to  share  therein. 

128.— By  a  Hindn  for  ar- 
rears of  maintenance. 

129.— By  a  Hindu  for  a  de- 
claration of  his  right 
to  maintenance. 


'  130. — For  the  resumption  or 
assessment  of  rent-free 
land. 


131. — To  establish  a  periodi- 
cally recurring  right. 

132. — To  enforce  payment  of 
money  charged  npon 
immoveable  property. 

Explanation. — The  allowance 
and  fees  respectively 
called  mdlikana  and 
haqqg  shaft,  for  the 
purpose  of  this  clause, 
be  deemed  to  be  money 
charged  upon  im- 
moveable property. 

133. — To  recover  moveable 
property  conveyed  or 
bequeathed  in  trust, 
deposited  or  pawned, 
andafterwards  bought 
from  the  trustee,  de- 
J 


Pakt  VIII. 
Twelve  years. 


Do. 
Do. 


Do. 


Do. 


Do. 


When  the  exclusion  be- 
comes known  to  the 
plaintiff. 

When  the  arrears  are 
^payable. 

When  the  right  is  de- 
nied. 


When  the  right  to  re- 
sume or  assess  the 
land  first  accrues 


Do. 


When  the  plaintiff  is 
first  refused  the  en- 
joyment of  the  right. 

When  the  money  sued 
for  becomes  due. 


The  date  of  the  pur- 
chase. 


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lxxii 


SECOND  SCHEDULE.  [aCT  U  OF  1871. 

First  Division  :  Suits — {Continued.) 


Description  of  suit. 


127. — By  a  Hindu  excluded  from 
joint  family  property  to 
enforce  a  right  to  share 
therein. 

128.  — By  a  Hindn  for  maintenance. 


129. — To  establish  or  set  aside  an 
adoption. 


180.— For  the  resumption  or 
ment  of  rent-free  land. 


Period  of 
limitation. 


181. — To  establish  a  periodically 
recurring  right. 

182. — For  money  charged  upon 
immoreable  property. 

Explanation. — The  allowanoe  and 
fees  called  malikana  and 
haqqs  shall,  for  the  purposes 
of  this  clause,  be  deemed  to 
be  money  oharged  upon  im- 
moveable property. 


188. — To  recover  moveable  pro- 
perty conveyed  in  trust,  de- 
posited or  pawned  and  after- 
wards bought  from  the 
trustee,  depositary  or  paw- 
nee in  good  faith  and  for 
value. 


Part  VIII. 
Twelve  years 


Do. 


Do. 


Do. 


Do. 


Do. 


Do. 


Time  when  period 
begins  to  run. 


When  the  plaintiff  claims 
and  is  refused  his  share. 


When  the  maintenance  sued 
for  is  claimed  and  refused. 


The  date  of  the  adoption,  or 
(at  the  option  of  the 
plaintiff)  the  date  of  the 
death  of  the  adoptive 
father. 

When  the  right  to  resume 
or  assess  the  land  first 
accrued. 

Provided  that  no  such  suit 
shall  be  maintained  where 
the  land  forms  part  of  a 
permanently-settled  es- 
tate, and  has  been  held 
rent-free  from  the  tee 
of  the  Permanent  Settle- 
ment. 

When  the  plaintiff  is  first 
refused  the  enjoyment  of 
the  right. 

When  the  money  sued  for 
becomes  due. 


The  date  of  the  purchase. 


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ACT  XV  OF  1877.]  THE  ilOOND  8CHBDUL1. 

Fir $t  Division:  Snits — {Continued.) 


lxxiii 


Description  of  suit 


Period  of 
limitation. 


Time  from  which 
period  begins  to  run. 


127. — By  a  person  excluded 
from  joint-family  pro- 
perty to  enforce  a 
right  to  share  therein. 

128. — By  a  Hindu  for  ar- 
rears of  maintenance. 

129.— Bv  a  Hindu  for  a  de- 
claration of  his  right 
to  maintenance. 


'  130. — J*or  the  resumption  or 
assessment  of  rent-free 
land. 


181. — To  establish  a  periodi- 
cally recurring  right. 

132. — To  enforce  payment  of 
money  charged  upon 
immoveable  property. 

Explanation. — The  allowance 
and  fees  respectively 
called  mdlikana  and 
haqqs  shall,  fdr  the 
purpose  of  this  clause, 
be  deemed  to  be  money 
charged  upon  im- 
moveable property. 

133. — To  recover  moveable 
property  conveyed  or 
bequeathed  in  trust, 
deposited  or  pawned, 
andafterwards  bought 
from  the  trustee,  de- 
J 


Part  VIII. 
Twelve  years. 


Do. 


Do. 


Do. 


Da 


Da 


When  the  exclusion  be- 
comes known  to  the 
plaintiff. 

When  the  arrears  are 
payable. 

When  the  right  is  de- 
nied. 


When  the  right  to  re- 
sume or  assess  the 
land  first  accrues 


Do. 


When  the  plaintiff  is 
first  refused  the  en- 
joyment of  the  right. 

Wnen  the  money  sued 
for  becomes  due. 


The  date  of  the  pur- 
chase. 


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lxxiv 


SECOND  9CHEDTJL1.  [ACT  II  OF  1871. 

First  Division :  Suits — (Continued.) 


Description  of  suit. 


Period  of 
limitation. 


Time  when  period 
begins  to  ran. 


184. — To  reoover  possession  of  the 
moveable  property  oonveyed 
in  trust  or  mortgaged  and 
afterwards  purchased  from 
the  trustee  or  mortgagee  in 
good  faith  and  for  value. 


186.— Suit  instituted  in  a  Court 
not  established  by  Royal 
Charter  by  a  mortgagee  for 
possession  of  immoveable 
property  mortgaged. 


186.— By  a  purchaser  at  a  private 
sale  for  possession  of  the 
immoveable  property  sold, 
when  the  vendor  was  out  of 
possession  at  the  date  of  the 
sale. 


187.— Like  suit  by  a  purchaser  at  a 
sale  in  execution  of  a  decree, 
when  the  execution-debtor 
was  out  of  possession  at  the 
date  of  the  sale. 


188. — By  a  purchaser  of  land  at  a 
sale  in  execution  of  a  decree, 
for  possession  of  the  pur- 
chased land,  when  he  never 
has  had  possession. 


189. — Like  suit  when  the  pur- 
chaser had  possession,  but 
was  afterwards  dispossessed. 


Paw  Vm. 
Twelve  years. 

Do. 


Do. 


Do. 


The  date  of  the  purchase. 


When  the  mortgagee  is  first 
entitled  to  i 


Do. 


Do. 


When  the  vendor  is    first 
entitled  to  possession. 


When  the  execution-debtor 
is  first  entitled  to  i 


The  date  of  the  sale. 


Do. 


The  date  of  the  disposses- 
sion. 


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ACT  XV  OF  1877.]  THE  SECOND  SCHEDULE. 

First  Division :  Suits — {Continued.) 


lxxv 


Description  of  suit. 

Period  of 

Time  from  which 

limitation. 

period  begins  to  run. 

positary  or  pawnee  for 

Part  VIII. 

a  valuable    consider- 

Twelve years. 

ation. 

134. 

— To  recover  possession 

Do. 

The  date  of  the  pur- 

of immoveable  proper- 

chase. 

ty    conveyed    or   be- 

queathed in  trust  or 

mortgaged  and  after- 

wards purchased  from 

the  trustee  or  mort- 

gagee for  a  valuable 

consideration. 

135.- 

—Suit  instituted    in  a 

Do. 

When  the  mortgagor's 

Court  not  established 

right   to    possession 

by  Royal  Charter  by 

determines. 

a  mortgagee  for  pos- 

session of  immoveable 

property  mortgaged. 
— 6y  a  purchaser  at  a 

136. 

Do. 

When  the  vendor  is  first 

private  sale  for  pos- 

entitled   to    posses- 

session of  immoveable 

sion. 

property  sold,    when 

the  vendor  was  out  of 

possession  at  the  date 

of  the  sale. 

137. 

— Like  suit  by  a  purchas- 
er at  a  sale  in  execu- 

Do. 

When    the    judgment- 

debtor  is  first  entitled 

tion  of  a  decree,  when 

to  possession. 

the  judgment-debtor 

was  out  of  possession 

at  the  date  of  the  sale. 

138. 

— By  a  purchaser  of  land 
at  a    sale    in    execu- 
tion of  a  decree,  for 
possession  of  the  pur- 
chased land  when  the 
judgment-debtor  was 
in  possession  at  the 
date  of  the  sale. 

Do. 

The  date  of  the  sale. 

139.- 

—By  a  landlord  to  re- 

Do. 

When  the  tenancy  is 

cover  possession  from 

determined. 

a  tenant. 

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Ixxvi 


8*6090  8CHBDULI.  [MJT  I*  OF  1$71. 


Description  of  suit. 

Period  of 
limitation. 

Time  when  period 
begins  to  ran. 

paw  vmf 

140.- 

— By  a  landlord    to  recover 

Twelve  years  ... 

W|ien  the  tenancy  is  deter- 

possession from  a  tenant. 

mined. 

J41.- 

— Ify  a  remainderman,  a  rever- 

Do, 

When  his  estate  falls  ufo 

sioner,  (other  than  a  land- 

possession. 

lord)  or  a  devisee,  for  pos- 

session of  immoveable  pro- 

perty. 

142.- 

—Like  snit  by  a  Hindn  entitled 
to  the  possession  of  immove- 
able property  on  the  death 
of  a  Hindn  widow. 

Do. 

When  the  widow  dies. 

148.- 

—For  possession  of  immove- 

Do.               .., 

The  da^e  of  the  disposses- 

able   property,   when    the 

sion  or  discontinuance. 

plaintiff,   while  in    posses- 

sion of  the  property,   has 

been  dispossessed  or  has  dis- 

continued the  possession. 

144.- 

—Like  snit,  when  the  plaintiff 

Do. 

When    the    forfeiture  was 

has    become    entitled     by 

incurred  or  the  condition 

reason  of  any  forfeiture  or 

broken. 

breach  of  condition. 

146.- 

— Forpossession  of  immoveable 

Do.                ... 

When  the  possession  of  the 

property    or    any    interest 

defendant,    or    of    some 

therein  not  hereby  other- 

person through  whom  he 

wise  specially  provided  for. 

claims,  beoame    adverse 
to  the  plaintiff. 
When  tfce  easement  ceased 

146.- 

—For  a  declaration  of  right 

Do. 

to  an  easement. 

Part  IX. 

to    be    enjoye4    by    the 
plaintiff,  or  the  persons 
on  whose  behalf  he  sues. 

147.- 

—Against    a    depositary    or 

Thirty  years     ... 

The  date  of  $he  deposit  or 

pawnee  to  recover  movable 

pawn,  unless  where  an 

property  deposited  or  pawn- 

acknowledgment of   the 

ed. 

title  of  the  depositor  or 

pawner,  or  of  his  right  of 

'     redemption,   has   before 

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ACT  JV  OP  1877.]  TH*   SECOND  SCHEDULE. 

First  Division:  SuiU-*"(OonHnued.) 


lxxvii 


Description  of  suit. 

Period  of 
limitation. 

Time  from  which 
period  begins  to  run. 

Part  VIII. 
Twelve  years. 

140.- 

—By   a    remainderman, 

Do. 

When  his  estate  falls 

a    reversioner    (other 

into  possession. 

than  a  landlord),  or  a 

devisee,  for  possession 

of    immoveable    pro- 
perty. 
—Like  suit  by  a  Hindu 

141.- 

Do. 

When  the  female  dies. 

or  Muhammadan   en- 

titled to  the  posses- 

sion   of    immoveable 

property  on  the  death 

of  a  Hindu  or  Muham- 

madan female. 

142,- 

—For  possession  of  im- 

Do. 

The  date  of  the  dispos- 

moveable      property, 

session    or     discon- 

when    the     plaintiff, 

tinuance. 

while  in  possession  of 

the  property  has  been 
dispossessed  or  has  dis- 

continued the  posses- 

sion. 

148.- 

—Like  suit,   when-  the 

Do. 

When  the  forfeiture  is 

plaintiff   has    become 

incurred  or  the  con- 

entitled bv  reason  of 
any      forfeiture       or 

dition  is  broken. 

breach  of  condition. 

144. 

— For  possession  of  im- 

Do. 

When    the    possession 

moveable  property  or- 

of  the  defendant  be- 

any  interest    therein 

comes  adverse  to  the 

not  hereby  otherwise 

plaintiff. 

specially  provided  for. 

Part  IX. 

145. 

— Against  a  depositary 

Thirty  years. 

The  date  of  the  deposit 

or  pawnee  to  recover 

or  pawn. 

moveable  property  de- 

posited or  pawned. 

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lxxviii 


gECOTO  SCHTOCLI.  [ACT  IX  OF  1871. 

First  Division:  8uiU— {Continued.) 


Description  of  suit. 


jnonoa  ot 


begins  to  1 


Past  UL 
Thirty  years. 


148. — Against  a  mortgagee  to  re- 
oorer  possongion  of  immov- 
able  property  mortgaged. 


149. — Before  a  Court  established 
by  Royal  Charter  in  the  ex- 
ercise of  its  ordinary  origi- 
nal civil  jurisdiction  by  a 
mortgagee  to  recover  from 
the  mortgagor  the  posses- 
sion of  immoveable  pro- 
perty mortgaged. 


PabtTX. 
Sixty  years. 


8ixty  years 


Do. 


I      the  expiration  of  the 

I  scribed  period  been  ■■ 
in  writing  signed  by 
depositary,  or  pawnee, 


case,  the  date  of  the  i 
knowledgment. 


The  date  of  the  mortgage 
aniens  where  an  acknow- 
ledgment of  the  title  of 
the  mortgagor  or  of  his 
right  of  redemption  has, 
before  the  expiration  of 
the  proscribed  period, 
been  made  in  writing 
signed  by  the  mortgagee 
or  some  person  claiming 
under  him*  and,  in  such 
case,  the  date  of  the  ac- 
knowledgment. 

Provided  that  all  claims  to 
redeem,  arising  under  in- 
struments of  mortgage  of 
immoveable  property  situ- 
ate in  British  Burmah, 
which  have  been  executed 
before  the  first  day  of 
May,  1868,  shall  be  gov- 
erned by  the  rules  of 
limitation  in  force  in  that 
Province  immediately  be- 
fore the  same  day. 

When  any  part  of  the  prin- 
cipal or  interest  was  last 
paid  on  account  of  the 
mortgage  debt. 


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ACT  XV  OP  1877.]  THE  SECOND  SCHEDULE. 

First  Division :  Suits — (Continued.) 


lxxix 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which 
period  begins  to  run. 


146. — Before  a  Court  estab- 
lished by  Royal  Char- 
ter in  tne  exercise  of 
its  ordinary  original 
civil  jurisdiction  by  a 
mortgagee  to  recover 
from  the  mortgagor 
the|  possession  of  im- 
moveable property 
mortgaged. 


Part  IX. 
Thirty  years. 


147. — By  a   mortgagee 
forclosure  or  sale. 


for 


148. — Against  a  mortgagee 
to  redeem  or  to  re- 
cover possession  of 
immoveable  property 
mortgaged. 


PaetX. 
Sixty  years 

Do. 


When  any  part  or  the 
principal  of  interest 
was  last  paid  on  ac- 
count of  the  mort- 
gage debt. 


When  the  money  secur- 
ed by  the  mortgage 
becomes  due. 

When  the  right  to 
redeem  or  to  recover 
possession  accrues. 

Provided  that  all  claims 
to  redeem,  arising 
under  instruments  of 
mortgage  of  immo- 
veable property  situ- 
ate in  British  Bur- 
mah,  which  have 
been  executed  before 
the  first  day  of  May 
1863,  shall  be  go- 
verned by  the  rules 
of  limitation  in  force 
in  that  province  im- 
mediately before  the 
same  day. 


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Lot 


IICOTO  flCHXOTLB.  [iCt  ft  OT  1871. 

Fir  $t  Division :  Suits— {Condudsd.) 


Description  of  suit. 

Period  of 

Time  when  period 
begins  to  ran. 

160.— Any  rait  ia  the  name  of  the 
Secretory  of  8toto  for  In- 
dia in  Council. 

PaitI. 
Sixty  years 

Wnea  the  right  to  ne  no* 
crued. 

Second  Division:  Appeals. 


Description  of  appeal 


Period  of 
limitation. 


lime  when  period 
begins  to  run. 


161.— Under  the  Code  of  Civil 
Procedure  to  the  Court  of  a 
District  Judge. 


162. — Under  the  Code  of  Criminal 
Procedure  to  any  Court 
other  than  the  High  Court. 


168. — Under  the   same   Code  to 
the.High  Court. 


Thirty  days 


The  date  of  the  decree  ap- 
pealed against. 


Do. 


Sixty  days 


The  date  of  the  sentence  or 
order  appealed  against. 


Do. 


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ACT  XV  OF  1877.]  THB  8BCOND  SCHEDULE. 

First  Division :  Suits^-(Ooncluded.) 


hcxxi 


Description  of  suit. 


Period  of 
limitation. 


Time  from  which 
period  begins  to  ran. 


149. — Any  suit  by  or  on  be- 
half of  the  Secretary 
of  State  for  India  in 
Council. 


Part  X. 
Sixty  years 


When  the  period  of 
limitation  would  be- 
gin to  run  under  this 
Act  against  a  like 
suit  by  a  private 
person. 


Second  Division:  Appeals. 


Description  of  appeal. 


Period  of 
limitation. 


Time  from  which 
period  begins  to  run. 


160.— Under  the  Code  of 
Criminal  Procedure 
from  a  sentence  of 
death  passed  by  a 
Sessions  Judge. 

151. — From  a  decree  or  or- 
der of  any  of  the 
High  Courts  of  Judi- 
cature at  Port  Wil- 
liam, Madras,  and 
Bombay,  in  the  exer- 
cise of  its  original 
jurisdiction. 

152. — Under  the  Code  of 
Civil  Procedure  to 
the  Court  of  a  District 
Judge. 

153. — Under  the  same  Code, 
Section  601,  to  a  High 
Court. 

154. — Under  the  Code  of 
Criminal  Proceduro 
to  any  Court  other 
than  a  High  Court. 

155. — Under  the  same  Code 
to  a  High  Court  ex- 
cept in  the  cases  pro- 
vided for  by  No.  150 
and  No.  157. 


Seven  days 


Twenty  days. 


Thirty  days. 


Do. 


Do. 


Sixty  days 


The  date  of  the  sen- 
tence. 


The  date  of  the  decree 
or  order. 


The  date  of  the  decree 
or  order  appealed 
against. 

The  date  of  the  order 
refusing  the  certifi- 
cate. 

The  date  of  the  sen- 
tence or  order  ap- 
pealed against. 

Do. 


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lxixii  SECOND  SCHEDULE.  [ACT  IX  OF  1871. 

Second  Division :  Appeals— -{Concluded.) 


Description  of  appeal. 

Period  of 
limitation. 

Time  when  period 
begins  to  run. 

154.— Under    the  Code    of  Civil 
Procedure     to    the    High 
Court. 

Ninety  days     ... 

The  date  of  the  decree  ap- 
pealed against. 

Third  Division :  Applications. 


Description  of  application. 


Period  of 
limitation. 


Time  when  period 
begins  to  run. 


155 — Under  the  Code  of  Civil 
Procedure  to  set  aside  an 
award. 


Ten  days 


When  the  award  is  submit- 
ted to  the  Court  and 
notice  of  the  submission 
has  been  given  to  the 
persons  and  in  manner 
prescribed  by  the  High 
Court. 


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ACT  XV  OF  1877.]  THE  SECOND  SCHBDULB. 

Second  Division  :  Appeals — (Concluded,) 


lxxxiii 


Description  of  appeal. 

Period  of 
limitation. 

Time  from  which 
period  begins  to  run. 

166.— Under     the    Code    of 

Ninety  days... 

The  date  of  the  decree 

Civil  Procedure  to  a 

or     order   appealed 

High    Court     except 

against. 

in  the  cases  provided 

for   by  No.   151   and 

No.  153. 

157. — Under    the    Code    of 

Six  months  ... 

The  date  of  the  judg- 

Criminal     Procedure 

ment     appealed 

from  a  judgment  of 

against. 

acquittal. 

Third  Division :  Applications. 


Description  of  application. 

Period  of 
limitation. 

Time  from  which 
period  begins  to  run. 

158.— -Under     the    Code    of 
Civil  Procedure  to  set 
aside  an  award. 

Ten  days 

When  the  award  is 
submitted  to  the 
Court. 

159. — For    leave  to    appear 
and  defend  a  suit  un- 
der Chapter  XXXIX 
of  the  Code  of  Civil 
Procedure. 

Do. 

When  the  summons  is 
served. 

160. — For    an    order    under 
Section    629    of    the 
same  Code   restoring 
to  the  file  a  rejected 
application     for     re- 
view. 

Fifteen  days. 

When  the  application 
for  review  is  reject- 
ed. 

161. — For    the    issue    of    a 
notice  under  Section 
258  of  the  same  Code, 
to   show    cause    why 
the  payment  or    ad- 
justment therein  men- 
tioned should  not  be 
recorded  as  certified.* 

Twenty  days. 

i 

When  the  payment  or 
adjustment  is  made. 

•  Act  XII  of  1879. 


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tauir  uooro  ioudcls.  [act  a  or  1871. 

Third  Dimtum:  Appiicmtiom§     (<\wt  mmi>d.) 


Dcstttiption  of  sppKcatson. 


Period  Ok 


1*6. — By  »  plaintiff  Cor  mi  order 

to  set  aside  a  judgment  by 
default. 

167, — By  ft  defendant  for  mn  order 
to  eet  aside  ft  judgment  «z- 

JMTfe 

l*B-~ Under  the  Code  of  Ctrfl 
Procedure,  by  ft  person 
dispossessed  of  immoveable 
property  end  disputing  the 
right  of  the  decree-holder 
to  be  pot  into 


159.— To  eet  aside  ft  eale  in  exe- 
cution of  a  decree,  on  the 
ground  of  irregularity  in 
publishing  or  conducting 
the  sale* 


Thirty  days 


Do. 


160.— Complaining  of  resistance 
or  obstruction  to  delivery 
of  possession  of  immoveable 
property  sold  in  execution 
of  a  decree,  or  of  dispos- 
session in  the  delivery  of 
possession  to  the  purchaser 
of  such  property. 


Do. 


Do. 


Hie  date  of  the 


The  date  of  executing  any 
process  for  enforcing  the 


The  date  of  the 


The  date  of  the  sale. 


Do. 


The  date  of  the  resistance, 
obstruction,  or  dispossess 


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act  xt  or  1877.]  the  second  schedule. 

Third  Division :  Applications — (Continued.) 


Ixxxv 


Description  of  application. 


Period  of 
limitation. 


Time  from  which 
period  begins  to  run. 


162.— For  a  review  of  judg- 
ment by  any  of  the 
High  Courts  of  Judi- 
cature at  Fort  Wil- 
liam, Madras  and 
Bombay,  in  the  exer- 
cise of  its  original 
jurisdiction. 

163. — By  a  plaintiff  for  an 
order  to  set  aside  a 
dismissal  by  default?. 

164. — By  a  defendant  for  an 
order  to  Bet  aside  a 
judgment  ex-farte. 


Twenty  days. 


Thirty  days. 
Do. 

Do. 


165.— Under  the  Code  of 
Civil  Procedure,  by  a 
person  dispossessed  of 
immoveable  property, 
and  disputing  the 
right  of  the  decree- 
holder  or  purchaser 
at  a  sale  in  execution 
of  a  decree  to  be  put 
into  possession. 

166. — To  set  aside  a  sale  in  Do. 
execution  of  a  decree, 
on  the  ground  of  ir- 
regularity in  publish- 
ing or  conducting  the 
sale,  or  on  the  ground 
that  the  decree-holder 
has  purchased  without 
the  permission  of  the 
Court* 

167. — Complaining  of  resis-  Do. 
tance  or  obstruction 
to  delivery  of  posses- 
sion of  immoveable  pro- 
perty decreed  or  sold 
in  execution  of  a  decree, 
or  of  dispossession  in 

»  Act  XII  of  1879. 


The  date  of  the  decree 
or  order. 


The  date  of  the  dis- 
missal. 

The  date  of  executing 
any  process  for  en- 
forcing the  judg- 
ment. 

The  date  of  the  dis- 
possession. 


The  date  of  the  sale. 


The  date  of  the  resis- 
tance, obstruction  or 
dispossession. 


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lxxxvi  8BC0HD  SCHBDULB.  [ACT  IX  OF  1871. 

Third  Division :  Applications — (Continued.) 


Description  of  application. 


Period  of 
limitation. 


Time  when  period 
begins  to  ran. 


161. — For  re-admission  of  an  ap- 
peal dismissed  for  want  of 
prosecution. 


162. — For  leave  to  appeal   as  a 
pauper. 

168.— To  a  High   Court    for  the 
admission  of  special  appeal. 


Thirty  days 


The  date  of  the  dismissal. 


Ninety  days 
Do. 


The  date  of  the  decree  ap- 
pealed against. 

Do. 


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ACT  XV  OF  1877.]        THE  SECOND  SCHEDULE. 

Third  Division:  Applications — (Continued.) 


lxxxvii 


Descripffon  of  application. 


Period  of 
limitation. 


Time  from  which 
period  begins  to  run. 


the  delivery  of  pos- 
session to  the  decree- 
holder  or  the  pur- 
chaser of  such  pro- 
perty. 

168. — For  re-admission  of  an 
,  appeal  dismissed  for 
want  of  prosecution. 

169. — For  a  re-hearing  of  an 
appeal  heard  ex  parte 
in  the  absence  of  the 
respondent. 

170. — For  leave  to  appeal  as 
a  pauper. 


171.— Under  Sections  363  or 
365  of  the  Code  of 
Civil  Procedure  by  a 
person  claiming  to  be 
the  legal  representa- 
tive of  a  deceased 
plaintiff  or  appellant.* 

171-A.— Under  Section  366 
of  the  same  Code,  by 
the  defendant,  t 

171-B.— Under  Section  368 
of  the  same  Code,  to 
have  the  representa- 
tive of  a  deceased  de- 
fendant made  defen- 
dants 

171-C— Under  Section  371 
of  the  same  Code  for 
an  order  to  set  aside 
an  order  for  abate- 
ment or  dismissal.t 

172. — By  a' purchaser  at  an 
execution-sale  to  set 
aside  the  sale  on 
ground  that  the  per- 
son whose  interest  in 
•Act  XII  of  1879. 


Thirty  days. 
Do. 

Do. 

Sixty  days  ., 


Do. 


Sixty  days 


Do. 


Do. 


The   date  of  the  dis- 
missal. 

The  date  of  the  decree 
in  appeal. 


The  date  of  the  decree 
appealed  against. 


The  date  of  the  plain- 
tiff's or  appellant's 
death. 


The  sixtieth  day  from 
the  date  of  the  plain- 
tiff's death. 

The  date  of  the  defen- 
dant's death. 


The  date  of  the  order 
for  abatement  or  dis- 
missal. 


The  date  of  the  sale. 


t  Aot  VIII  of  1880. 


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Ixxxviii  SECOND    SCHEDULE.  [ACT  IX  OF  1871. 

Third  Division  :  Applications — (Continued.) 


Description  of  application. 


Period  of 
limitation. 


Time  wheqsjjeriod 
begins  to  ran. 


164. — For  a  review  of  judgment. 


Ninety  days      ... 


The  date  of  the  decree. 


165.— Under  the  Code  of  Civil  Pro- 
cedure, section  three  han- 
dled and  twenty-seven, 
that  an  award  be  filed  in 
Court. 


166. — For  the  execution  of  a  de- 
cision (other  than  a  decree 
or  order  passed  in  a  regular 
suit  or  an  appeal)  of  a  Civil 
Court  or  of  a  Revenue 
Court. 


167.— For  the  execution  of  a  de- 
cree or  order  of  any  Civil 
Court  not  provided  for  by 
No.  169. 


Six  months 


One  year 


Three  years 


The  date  of  the  award. 


The  date  of  the  decision,  or 
of  taking  some  proceed- 
ing to  enforce  or  keep 
in  force  the  decision. 


The  date  of  the  decree  or 
order, 

or  (where  there  has  been  an 
appeal)  the  date  of  the 
final  decree  or  order  of 
the  Appellate  Court, 

or  (where  there  has  been  a 
review  of  judgment)  the 
date  of  the  decision  pass- 
ed on  the  review, 


J 


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ACT  XV  OF  1877.]  THE  SECOND  SCHEDULE. 

Third  Division:  Applications — (Continued.) 


lxxxix 


Period  of 

Time  from  which 

Description  ot  application. 

limitation. 

period  begins  to  run. 

the  property  purpor- 

ted  to   be    sold    had 

no    saleable    interest 

therein. 

173.- 

—For  a  review  of  judg- 

Ninety days... 

The  date  of  the  decree 

ment,   except   in   the 

or  order. 

cases  provided  for  by 

No.  162. 

174.- 

—By   a  creditor  of    an 

Do. 

The  date  of  the  publi- 

insolvent    judgment- 

cation  of  the   sche- 

debtor under   Section 

dule. 

353   of    the   Code  of 

Civil  Procedure. 

175.- 

—For  payment    of    the 
amount   of    a  decree 
by  instalments. 

Six  months  ... 

The  date  of  the  decree. 

176.- 

—Under    the    Code    of 
Civil  Procedure,  Sec- 
tion 516  or  525,  that 
an  award  be  filed  in 
Court. 

Do. 

The  date  of  the  award. 

177.- 

—For  the   admission  of, 

Do. 

The  date  of  the  decree 

an  appeal  to  Her  Ma- 

appealed against. 

jesty  in  Council. 

178.- 

—Applications  for  which 

Three  years... 

When  the  right  to  ap- 

no period  of  limitation 

ply  accrues. 

is  provided  elsewhere 

in  this  schedule,  or  by 

the  Code  of  Civil  Pro- 

cedure, Section  230. 

179.- 

—For  the  execution  of 

Do ;            or 

1    The    date    of    the 

a  decree  or  order  of 

where  a  cer- 

decree or  order,   or 

any   Civil  Court   not 

tified     copy 

2  (where     there     has 

provided  for  by  No. 

of  the     de- 

been an  appeal)  the 

180  or  by  the  Code 

cree   or   or- 

date of  the  final  de- 

of   Civil    Procedure, 

der  has  been 

cree  or  order  of  the 

Section  230. 

registered, 

Appellate  Court,   or, 

six  years. 

3  (where      there     has 

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8BC0ND  8CHKDULE.  [ACT  IX  OV  1871. 

Third  Division :  Applications. —  Continued) 


Description  of  application. 


Period   of 
limitation. 


168. — For  the  execution  of  any 
each  decree  or  order  of 
which  a  certified  copy  has 
been  registered  under  the 
Indian  Registration  Act. 


Six  years 


Time  when  period 
begins  to  ran. 


or  (where  the  application 
next  hereinafter  mention- 
ed has  been  made)  the 
date  of  applying  to  the 
court  to  enforce,  or  keep 
in  force,  the  decree  or 
order, 

or  (where  the  notice  next 
hereinafter  made  has 
been  issued)  the  date  of 
issuing  a  notice  under  the 
Code  of  Civil  Procedure, 
section  two  hundred  and 
sixteen, 

or  (where  the  application  is 
to  enforce  payment  of  an 
instalment  which  the 
decree  directs  to  be  paid 
at  a  specified  date)  the 
date  so  specified. 


The  date  of  the  decree  or 
order, 

or  (where  there  has  been  an 
appeal)  the  date  of  the 
final  decree  or  order  of 
the  Appellate  Court, 

or  (where  there  has  been  a 
review  of  judgment)  the 
date  of  the  decision  pass- 
ed on  the  review. 


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ACT  XV  OF  1877.]  THE   SBCOND   SCHEDULE. 

Third  Division:  Applications — (Continued.) 


XC1 


Description  of  application. 


Period  of 
limitation. 


Time  from  which 
period  begins  to  ran. 


Act  XII  of  1879. 


been  a  review  of 
judgment)  the  date 
of  tbe  decision  pass- 
ed on  the  review,  or 

4  (where  the  appli- 
cation next  here- 
inafter mentioned 
has  been  made)  the 
date  of  applying  in 
accordance  with  law 
to  the  proper  conrt 
for  execution,  or  to 
take  some  step  in  aid 
of  execution,  of  the 
decree  or  order,   or 

5  (where  the  notice 
next  hereinafter  men- 
tioned has  been  is- 
sued) the  date  of  is- 
suing a  notice  under 
the  Code  of  Civil 
Procedure,  section 
248,  or 

6  (where  the  applica- 
tion is  to  enforce  any 
payment  which  the 
decree  or  order  di- 
rects to  be  made  at 
a  certain  date)  such 
date.* 

Explanation  I. — Where 
the  decree  or  order 
has  been  passed  seve- 
rally in  favour  of 
more  persons  than 
one,  distinguishing 
portions  of  the  sub- 
ject-matter as  pay- 
able or  deliverable  to 
each,  the  application 
mentioned  in  clause 
4    of    this    Number 


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neon  rioruL  [act  a  or  1871. 

Third  DicUiom  :  Application* — (Cjmtimmfd) 


Dttiiptkw  of  spptkatioB. 


Ptariodof 


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ACT  XV  0*  1877.]  THE  SECOND  SCHEDULE. 

Third  Division :  Applications —  (  Continued. ) 


xciu 


Description  of  application. 


Period  of 
limitation. 


Time  from  which 
period  begins  to  run. 


shall  take  effect  in 
favour  only  of  snch 
of  the  said  persons 
or  their  representa- 
tives as  it  may  be 
made  by.  Bnt  when 
the  decree  or  order 
has  been  passed  joint- 
ly in  favour  of  more 
persons  than  one, 
such  application,  if 
made  by  any  owe  or 
more  of  them,  or  by 
his  or  their  represen- 
tatives, shall  take 
effect  in  favour  of 
them  all. 
Where  the  decree  or 
order  has  been  pas- 
sed severally  against 
more  persons  than 
one,  distinguishing 
portions  of  the  sub- 
ject-matter as  pay- 
able or  deliverable 
by  each,  the  applica- 
tion shall  take  effect 
against  only  such  of 
the  said  persons  or 
their  representatives 
as  it  may  be  made 
against.  But  where 
the  decree  or  order 
has  been  passed  joint- 
ly against  more  per- 
sons than  one,  the  ap- 
plication, if  made 
against  any  one  or 
more  of  them,  or 
against  his  or  their 
representatives  shall 
take  effect  against 
them  all. 


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xciv  SECOND    SCHBDULK.  [ACT  IX  OF  1871. 

Third  Division  :  Applications — (Concluded.) 


Description  of  application. 


Period  of 
limitation. 


Time  when  period 
begins  to  ran. 


160. — To  enforce  a  judgment, 
decree  or  order  of  any  court 
established  by  Royal  Char- 
ter in  the  exercise  of  its  or- 
dinary original  civil  juris- 
diction. 


Twelve  years 


When  a  present  right  to 
enforce  the  judgment, 
decree  or  order  accrued 
to  some  person  capable 
of  releasing  the  right : 

Provided  that,  when  the 
judgment,  decree  or  or- 
der has  been  revived,  or 
some  part  of  the  principal 
money  secured  thereby, 
or  some  interest  on  such 
money  has  been  paid,  or 
some  acknowledgment  of 
the  right  thereto  has 
been  given  in  writing 
signed  by  the  person 
liable.to  pay  such  princi- 
pal or  interest  or  his 
agent,  to  the  person  en- 
titled thereto  or  his  agent, 
the  twelve  years  shall  be 
computed  from  the  date 
of  such  revivor,  payment 
or  acknowledgment,  or 
the  latest  of  such  reviv- 
ors, payments  or  ac- 
knowledgments, as  the 
case  may  be. 


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ACT  XV  OF  1877.]  THK  SECOND  SCHEDULE. 

Third  Division  :  Abdications. — (Concluded) 


xcv 


Description  of  application. 


Period   of 
limitation. 


Time  from  which 
period  begins  to  run. 


180. — To  enfoi-ce  a  judgment, 
decree  or  order  of  any 
court  established  by 
Royal  Charter  in  the 
exercise  of  its  ordi- 
nary original  civil  ju- 
risdiction, or  an  order 
of  Her  Majesty  in 
Council. 


Twelve  years. 


Explanation  II. — "Pro- 
per Court"  means  the 
court  whose  duty  it 
is  (whether  under 
section  226  or  227  of 
the  Code  of  Civil  Pro- 
cedure or  otherwise) 
to  execute  the  decree 
or  order. 

When  a  present  right 
to  enforce  the  judg- 
ment, decree  or  order 
accrues  to  some  per- 
son capable  of  releas- 
ing the  right : 

Provided  that  when  the 
judgment,  decree  or 
order  has  been  reviv- 
ed, or  some  part  of 
the  principal  money 
secured  thereby,  or 
some  interest  on  such 
money  has  been  paid, 
or  some  acknowledg- 
ment of  the  right 
thereto  has  been 
given  in  writing, 
signed  by  the  person 
liable  to  pay  such 
principal  or  interest, 
or  his  agent,  to  the 
person  entitled  there- 
to or  his  agent,  the 
twelve  years  shall  be 
computed  from  the 
date  of  such  revivor, 
payment  or  acknow- 
ledgment, or  the 
latest  of  such  reviv- 
ors, payments  or  ac- 
knowledgments, as 
the  case  may  be. 


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LIMITATION  OF  SUITS. 


■XxX- 


ACT  No.  XIV  OF  1859. 

(Received  the  Assent  of  the  Governor-General  on  the  4th  lay,  1859.) 

An  Act  to  Provide  for  the  Limitation  op  Suits. 

Whereas  it  is  expedient  to  amend  and  consolidate  the  laws  relating  to  the 
Preamble.  limitation  of  suits ;  it  is  enacted  as  follows  : 

I.    No  suit  shall  be  maintained  in  any  Court  of  Judicature  within  any  part  of 

, .    .^    ,       mr.  ,  the  British  territories  in  India  in  which  this  Act  shall 

Limitation  of  Suite.  .     .       .         ,      ..,.., 

be  in  force,  unless  the  same  is  instituted  within  the 

period  of  limitation  hereinafter  made  applicable  to  a  suit  of  that  nature,  any  Law  or 

Regulation  to  the  contrary  notwithstanding ;  and  the  periods  of  limitation,  and  the 

suits  to  which  the  same  respectively  shall  be  applicable,  shall  be  the  following  that 

is  to  say  : — 

1.  To  suits  to  enforce  the  right  of  pre-emption,  whether  the  same  is  founded 

on  law  or  general  usage  or  on  special  contract,  the 
nt     tonqf  gear.  period  of  one  year,  to  be  computed  from  the  time  at 

Pre-emption  suits.  r  ,.    ,  , 

which  the  purchaser  shall    hare  taken    possession 

under  the  sale  impeached. 

2.  To  suits  for  pecuniary  penalties  or  forfeitures  for  the  breach  of  any  Law  or 
Limitation  of  1  vtar.  Regulation ;  to  suits  for  damages  for  injury  to  the 

Suita  for  damages,  summary      person  and  personal  property,  or  to  the  reputation ; 
suite,  Ac.  ^  8u£te  £or  damaggg  for  the  infringement  of  copy- 

right, or  of  any  exclusive  privilege ;  to  suits  to  recover  the  wages  of  servants,  arti- 
zans,  or  laborers,  the  amount  of  tavern  bills  or  bills  for  board  and  lodging  or  lodging 
only ;  and  to  summary  suits  before  the  Revenue  Authorities  under  Regulation  V, 
1822,  of  the  Madras  Code — the  period  of  one  year  from  the  time  the  cause  of  action 
.  arose. 

8.    To  suits  to  set  aside  the  sale  of  any  property,  moveable  or  immoveable,  sold 

under  an  execution  of  a  decree  of  any  Civil  Court  not 

a  ..    .       .     . ,      ,      "  established  by  Royal  Charter  when  suoh  suit  is  main- 

Suits  to  set  aside  sales  under  J        J 

decrees  or  for  arrears  of  Govern-       tainabie;  to  suits  to  set  aside  the  sale  of  any  pro- 

'  perty,  moveable  or  immoveable,  for  arrears  of  Govern- 

ment Revenue  or  other  demand  recoverable  in  like  manner  j  to  suits  by  a  Putneedar 
M 


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xcviii  *  act  xiv  op  1859. 

or  the  proprietor  of  any  other  intermediate  tenure  saleable  for  current  arrears  d 
rent,  or  other  person  claiming  under  him,  to  set  aside  the  sale  of  any  Putnee  Talook 
or  such  other  tenure  sold  for  current  arrears  of  rent ;  to  suits  to  set  aside  the  sale  of 
any  property,  moveable  or  immoveable,  sold  in  pursuance  of  any  decree  or  order  of 
a  Collector  or  other  Officer  of  Revenue — the  period  of  one  year  from  the  date  at 
which  such  sale  was  confirmed  or  would  otherwise  have  become  final  and  conclusive 
if  no  such  suit  had  been  brought. 

4.  To  suits  to  set  aside  any  attachment,  lease,  or  transfer  of  any  land  or  inter- 

_.   ..  ..       m  est  in  land  by  the  Revenue  Authorities  for  arrears  of 

Lxmxtotxon  of  1  gear.  * 

Suits  to  set  wide  attachments,       Government  Revenue,  or  to  recover  any  money  paid 

Ac,  by  Revenue  Authorities  for       under  protest  in  satisfaction   of  any  claim  made  by 

arrears  of  Government  Revenue.       ,,       „  »,,.,.  .  \ 

the   Revenue  Authorities   on  account    of   arrears  of 

revenue  or  demands  recoverable  as  arrears  of  revenue — one  year  from  the  date  of 
such  attachment,  lease,  or  transfer,  or  of  such  payment,  as  the  case  may  be. 

5.  To  suits  to  alter  or  set  aside  summary  decisions  and  orders  of  any  of  tit* 

Civil  Courts  not  established  by  Royal  Charter,  wbea 

Limitation  of  1  year.  , ,         ,  .    ,     *  - 

such  suit  is  maintainable — the  period  of  one  year  from 
Suits  to  set  aside  summary       the  ^^  of  ^  fin|J  decigioil)  awardj  ^  ^^  m  ^ 

decisions,  Ac. 

case. 

6.  To  suits  brought  by  any  person  to  contest  the  justice  of  an  award  which 

shall  have  been  made  under   Regulation   VII,   1828, 
Limitation  of  8  year..  Regulation  IX,  1825,  and  Regulation  IX,  1883,  of  the 

Suits  to  contest  oertain  awards.       _  _    _    _  ,  . , 

Bengal  Code,  or  to  recover  any  property  comprised 

in  such  award — the  period  of  three  years  from  the  date  of  the  final  award  or  order 

in  the  case. 

7.  To  suits  by  any  party  bound  by  any  order  respecting  the  possession  of  pro- 

perty made  under  Clause  2,  Section  1,  Act  XVI  of 
Limitation  of  8  year:  „  _  _  _  .    M  __     .  _  _  .  _,      .  ,    .     .  ■« 

Suite  to  recover  property  com-       1838,  or  Act  IV  of  1840,  of  any  person  claiming  under      ■ 

8&£ 2X5£ei,7£xvi3    8no11  p8^' for  the reooTery * the p^p6^ «-**•* 

1838,  or  Act  IV  of  1840.  m  Buch  order — the  period  of  three  years  from  the  date 

of  the  final  order  in  the  case. 

8.  To  suits  to  recover  the  hire  of  animals,  vehicles,  boats,  or  household  furni- 

ture ;  or  the  amount  of  bills  for  any  articles  sold  by 
limitation  of  8  yeart. 
Suits  for  goods  sold  by  retail,       refcai1  J  and  to  all  suits  for  the  rents  of  any  buildings 
*°»  or  lands  (other  than  summary  suits  before  the  Reve- 

nue Authorities  under  Regulation  V,  1822,  of  the  Madras  Code) — the  period  of  three 
years  from  the  time  the  cause  of  action  arose.  I 

9.  To  suits  brought  to  recover  money  lent  or  interest,  or  for  the  breach  of  any     i 

Limitation  of  8  yean.  contract — the  period  of  three  years  from  the  time  when      ■ 

Suits  for  money  lent  or  in-      the  debt  became  due  or  when  the  breach  of  contract 
terest  or  for  breach  of  contract       .  .     ,.  ,     ,  .,  .   ,  ,     _ 

where  no  written  contract  ex-      in  respect  of  which  the  suit  is  brought  first  took  place, 

*****  unless  there  is  a  written  engagement  to  p^the  money 


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act  xiv  op  1859.  xcix 

lent  or  interest,  or  a  contract  in  writing  signed  by  the  party  to  be  bound  thereby  or 
by  his  duly  authorized  agent. 

10.  To  snits  brought  to  recover  money  lent  or  interest,  or  for  the  breach  of  any 
Limitation  of  3  year:  contract  in  oases  in  which  there  is  a  written  engage- 
Suite  for  the  same  where  there      ment  or  contract  and  in  which  such  engagement   or 

no?  *2£%3222?  Zu&l  *  «»**■«*  «**  *•»•  »»«  registered  by  virtue  of  any 
month*.  law  or  Regulation  in  force  at  the  time  and  place  of  the 

execution  thereof — the  period  of  three  years  from  the  time  when  the  debt  became 
due  or  when  the  breach  of  contract  in  respect  of  which  the  action  is  brought  first 
took  place,  unless  such  engagement  or  contract  shall  have  been  registered  within 
six  months  from  the  date  thereof. 

11.  To  suits  in  cases  governed  by  English  law  upon  all  debts  and  obligations 

.......       - ,«  of  record  and  specialities  ;  and  to  suits  for  the  recovery 

Limitation  of  19  yeart.  r  .  '  J 

Suite  for  speciality  debts  and  of  "V  legacy— the  period   of  twelve  years  from  the 

legacies.  time  the  cause  of  action  arose. 

12.  To  suits  for  the  recovery  of  immoveable  property  or  of  any  interest  in  im- 
Limitation  ofi2vear$  moveable  property  to  which  no  other  provision  of  this 

Suits   for   immoveable   pro-      Act  applies— the  period  of  twelve  years  from  the  time 
Perfcy'  the  cause  of  action  arose. 

13.  To  suits  to  enforce  the  right  to  share  in  any  property  moveable  or  immove- 

able on  the  ground  that  it  is  joint-family  property ; 

Limitation  of  IS  yean.  SL         .,.,,  *.A  ,         A. 

Suits  for    shares    '       lit       a  Bxnta  for  the  recovery  of  maintenance,  where  the 

family  propety  and  for  main-       right  to  receive  such  maintenance,  is  a  charge  on  the 

inheritance  of  any  estate — the  period  of  twelve  years 

from  the  death  of  the  persons  from  whom  the  property  alleged  to  be  joint  is  said  to 

have  descended,  or  on  whose  estate  the  maintenance   is  alleged  to  be  a  charge  ;  or 

from  the  date  of  the  last  payment  to  the  plaintiff  or  any  person  through  whom  he 

claims,  by  the  person  in  the  possession  or  management  of  such  property  or  estate  on 

account  of  such  alleged  share,  or  on  account  of  such  maintenance,  as  the  case 

may  be. 

14.  To  suits  by  the  proprietor  of  any  land  or  by  any  person  claiming  under  him 

, .   .     .  for  the  resumption  or  assessment  of  any  Lakheraj  or 

Limitation  of  12  year:  .         ,       ,       ,  .    ,      •  ,  *  , 

Suite  to  resumeorassessLak-      rent-free  land— the  period  of  twelve  years  from  the 

heraj  or  rent-free  land.  time  when  the  title  of  the  person  claiming  the  right  to 

resume  and  assess  such  lands,  or  of  some  person  under  whom  he  claims  first  accrued. 

Provided  that  in  estates  permanently  settled  no  such 
Proviso  if  the  land  has  been  " 

neld  rent-free  from  the  time  of  suit,  although  brought  within  twelve  years  from  the 
the  permanent  settlement.  t|me  wh(m  ^  m}e  ^  gncn  pWBOn  ^  aearaedf  ghaU 

be  maintained,  if  it  is  shown  that  the  land  has  been  held  Lakheraj  or  rent-free  from 
the  period  of  the  permanent  settlement. 


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c  act  xiv  op  1859. 

15.  To  suit  against  a  depositary,  pawnee,  o»  mortgagee  of  any  property  move- 

^.   ..  ..     *    ~      ,~  able  or  immoveable  for  the  recovery  of  the  same — a 

L\r*\tat\onfor30  and60  year*  .  ' 

retpectively.  period  of  thirty  years  if  the  property  be  moveable  and 

Suits   against    depositaries,      sixty  years  if  it  be  immoveable,  from  the  time  of  the 
pawnees,  or  mortgagees  to  re-        ,         . ,  .  ...      .,  _. 

cover  immoveable  property.  deposit,  pawn,  or  mortgage ;  or  if  in  tne  meantime  an 

acknowledgment  of  the  title  of  the  depositor,  pawnor,  or  mortgagor,  or  of  his  right 
of  redemption,  shall  have  been  given  in  writing  signed  by  the  depositary,  pawnee,  or 
mortgagee  or  some  person  claiming  nnder  him,  from  the  date  of  snoh  acknowledg- 
ment in  writing. 

16.  To  all  suits  for  which  no  other  limitation  is  hereby  expressly  provided 

Limitation  of  6  years  applies-       — the  period  of  six  years  from  the  time  the  cause  of 
ble  to  all  suits  not  especially 
provided  for.  action  arose. 

II.  No  suit  against  a  trustee  in  his  life-time  and  no  suits  against  his  rcpreeen- 

„  ,  ,       tatives  for  the  purpose  of  following  in  their  hands  the 

Suits   against  trustees    and  .  ,    .  ,  . 

their  representatives  for  breach       specific  property  which  is  the   subject  of  the   trust, 

****  '     '  shall  be  barred  by  any  length  of  time ;  but  no  suit  to 

make  good  the  loss  occasioned  by  a  breach  of  trust  out  of  the  general  estate  of  a 

deceased  trustee  shall  be  maintained  in  any  of  the  said  Courts  unless  the  same  is 

instituted  within  the  proper  period   of  limitation  according  to  the  last  preceding 

section,  to  be   computed  from  the  decease  of   such 

trustee  j  provided  that  nothing  herein  contained  shall 

prevent  a  co-trustee  from  enforcing  against  the  estate  of  a  deceased  trustee,  any 

claim  for  contribution,  if  he  shall  institute  a  suit  for  that  purpose  within  six  years 

after  such  right  of  contribution  shall  have  arisen. 

III.  When,  by  any  law  now  or  hereafter  to  be  in  force,  a  shorter  period  of  limi- 

tation than  that  prescribed  by  this  Act  is  specially 
Shorter  periods  of  limitation,  .     ...  . 

if  prescribed  by  particular  Acts      prescribed  for  the  institution  of  a  particular  suit,  such 

to  prevail.  shorter  limitation  shall  be  applied   notwithstanding 

this  Act. 

IV.  If  in  respect  of  any  legacy  or  debt,  the  person  who,  but  for  the  law  of 

limitation,  would  be  liable  to  pay  the  same,  Shall  have 
mteion^n°writing.  **  *  '  admitted  that  such  debt  or  legacy  or  any  part  thereof 
is  due,  by  an  acknowledgment  in  writing  signed  by  him,  a  new  period  of  limitation, 

according  to  the  nature  of  the  original  liability,  shall 
T  8°*  be  computed  from  the  date  of  such  admission ;  pro- 

vided that  if  more  than  one  person  be  liable,  none  of  them  shall  become  chargeable 
by  reason  only  of  a  written  acknowledgment  signed  by  another  of  them. 

Y.     In  suits  for  the  recovery  from  the  purchaser  or  any  person  claiming  under 

"him  of  any  property  purchased   bond  fide    and   for 

mitaSon  in  suits  to  recover  pro-       valuable   consideration    from    a    trustee,    depositary, 

^pll^To^mo^^t      P*™*  or  mortgagee,  the  cause  of  action  shall  be 

Proviso.  deemed  to  have  arisen,  at  the  date  of  tire  purchase. 


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act  xnr  o?  1859.  ci 

Provided  that  in  the  case  of  purchase  from  a  depositary,  pawnee,  or  mortgagee,  no 
such  suit  shall  be  maintained  unless  brought  within  the  time  limited  by  Clause  15, 
Section  1. 

VI.  In  suits  in  the  Courts  established  by  Royal  Charter  by  a  mortgagee  to 

Computation  of  period  of  11-  """^  from  the  Bfl,*8w  the  V°**>**on  of  the  im- 

imitation  in  suits  in  Supreme  moveable  property   mortgaged,   the  cause  of  action 

Courts  by  mortgagee  to  recover  .    „  ,      ,           ,  .     ,              .         ,          , ,      .   .     ,    ,   .       . 

immoveable  property  mortga-  BDa"  De  deemed  to  have  arisen  from  the  latest  date  at 

*ed*  which  any  portion  of  principle  money  or  interest  was 

paid  on  account  of  such  mortgage  debt. 

VII.  In  suits  to  avoid  incumbrances  or  under- tenures  in  an  estate  sold  for 

«         ,  .>       j,     _,  ^    .  .,  arrears  of  Government  Revenue  due  from  such  estate, 
Computation  of  period  ofli-  .„  m  ,     ,  ,  ,,  ,,. 

mitation  in  suits  to  avoid  in-  or  in  a  Putnee  Talook  or  other  saleable  tenure  sold  for 

cumbrances  or  under- tenures  in »         .      ,.  ,    •         ..  »         i        •,, 

estates  sold  for  arrears  of  Go-  arrears  of  rent  which  by  virtue  of  such  sale  becomes 

vernment  Revenue.  freed  from  incumbrances  and  under- tenures,  the  cause 

of  action  shall  be  deemed  to  have  arisen  at  the  time  when  the  sale  of  the  estate, 
talook,  or  tenure  became  final  and  conclusive. 

VIII.  In  suits  for  balances  of  accounts  current  between  merchants  and  traders 

Computation  of  period  of  li-  who  ^^  had  m*tnal  dealings,  the  cause   of  action 

mitation  in  suits  between  mer-  shall  be  deemed  to  have  arisen  at.  and  the  period  of 

chants  for  balances  of  accounts  ,...,„,  ,    . 

current.  limitation  shall  be  computed  from  the  close   of   the 

year  in  the  accounts  of  which  there  is  the  last  item  admitted  or  proved  indicating 

the  continuance  of  mutual  dealings,  such  year  to  be  reckoned  as  the  same  is  reckoned 

in  the  accounts. 

IX.  If  any  person  entitled  to  a  right  of  action  shall  by  means  of  fraud  have 

been  kept  from  the  knowledge   of  this  having  such 
Computation  of  period  of  li-  .   ' ,    .    . 

mitation  in  case  of  concealed      right  or  of  the  title  upon  which  it  is  founded,  or  if  any 

ma  *  document  necessary  for  establishing  such  right   shall 

have   been  fraudulently  concealed,  the  time   limited   for   commencing    the   action 

against  the  person  guilty  of  the  fraud  or  accessory  thereto,  or  against  any  person 

claiming  through  him  otherwise  than  in  good  faith  and  for  a  valuable  consideration, 

shall  be  reckoned  from  the  time  when  the  fraud  first  became  known  to  the  person 

injuriously  affected  by  it  or  when  he  first  had  the  means  of  producing  or  compelling 

the  production  of  the  concealed  document. 

X.  In  suits  in  which  the  cause  of  action  is  founded  on  fraud,  the  cause  of  action 

shall   be   deemed   to    have    first   arisen   at  the   time 

tation  in  suits  where  the  cause       which  such  fraud  shall  have  been  first  known  by  the 
of  action  is  founded  on  fraud.  party  wronged. 

XI.  If  at  the  time  when  the  right  to  bring  an  action  first  accrues  the  person  to 

whom  the  right  accrues  is  under  a  legal  disability,  the 
Computation  of  period  of  li-  ,.  ,     ,  ,  ,  ,  i_  i  • 

mitation  in  case  of  legal  disabi-      action  may  be  brought  by  such  person  or  his  represen- 

uty«  tative  within  the  same  time  after  the  disability  shall 


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cii  ACT  XIV  OF  1859. 

have  ceased  as  would  otherwise  have  been  allowed  from  the  time  when  the  cause  of 
action  accrued,  unles  such  time  shall  exceed  the  period  of  three  years,  in  which 
case  the  suit  shall  be  commenced  within  three  years  from  the  time  when  the 
disability  ceased ;  bnt  if,  at  the  time  when  the  cause  of  action  accrues  to  any  person, 
he  is  not  under  a  legal  disability,  no  time  shall  be  allowed  on  account  of  any  subse- 
quent disability  of  such  person  or  of  the  legal  disability  of  any  person  claiming 
through  him. 

XII.  The  following  persons  shall  be  deemed  to  be  under  legal  disability  within 

__   t  .„„*,..  tne  meaning  of*  the  last  preceding  section — married 

What  person  to  be  deemed  to  °  * 

be  under  legal  disability  under  women  in  cases  to  be  decided  by  English  law,  minors, 

preceding  section.  .^^  and  ^^ 

XIII.  In  computing  any  period  of  limitation  prescribed  by  this  Act,  the  time 

~         ...        ,       .  ,    a  ,.        during  which  the  defendant  shall  have  been  absent  out 
Computation  of  period  of  li- 
mitation  in  case  of  absence  of       of  the  British  territories  in  India  shall   be  excluded 

from  such  computation  unless  service  of  a  summons  to 

appear  and  answer  in  the  suit  can  during  the  absence  of  such  defendant  be  made  in 

any  mode  prescribed  by  law. 

XIV.  In  computing  any  period  of  limitation  prescribed  by  this  Act,  the  time 

Computation  of  period  of  li-  durin&  which  fcbe  olairaant>  or  any  person  under  whom 

mitation  in  case  of  suit  prose-  he  claims,  shall  have  been  engaged  in  prosecuting  a 
cuted  bond  fide,  but  in  wrong  .,  _ 

Court.  suit  upon  the  same  cause  of  action  against  the  same 

defendant,  or  some  person  whom  he  represents,  bond  fide  and  with  due  diligence,  in 
any  Court  of  Judicature  which,  from  defect  of  jurisdiction  or  other  cause,  shall  have 
been  unable  to  decide  upon  it,  or  shall  have  passed  a  decision  which,  on  appeal,  shall 
have  been  annulled  for  any  such  cause  included  the  time  during  which  such  appeal, 
if  any,  has  been  pending,  shall  be  excluded  from  such  computation. 

XY.     If  any  person  shall  without  his  consent  have  been  dispossessed  of  any 

immoveable  property  otherwise  than  by  due  course  of 
Person  unlawfully  dispoeses-       ,  ,  ,...,,,. 

sed   of  immoveable    property       law,  such  person  or  any  person  claiming  through  him 

Z8LESSZ  P»T"S  thrt  *all  in  a  nit  brought  to  recover  possession  of  -uch 
may  be  set  up.  property  be  entitled  to  recover  possession  thereof,  not- 

Suit  for  dispossession  to  be       withstanding  any  other  title  that  may  be  set  up   in 
brought  within  six  months.  .  . ,    ,    ,         ,  .     .  , 

Suit  to  establish  title  not  to       such  suit  provided  that  the  suit  be  commenced  within 

six  months  from  the  time  of  such  dispossession.     Bnt 

nothing  in  this  section  shall  bar  the  person  from  whom  such  possession  shall  hare 

been  so  recovered  or  any  other  person  instituting  a  suit  to  establish  his  title  to  such 

property,  and  to  recover  possession  thereof  within  the  period  limited  by  this  Act. 

[Modified  by  Act  XXIII,  1861,  Section  26.] 

XVI.    Nothing  in  this  Act  contained  shall  be  deemed  to  interfere  with  any  rale 

or  jurisdiction   of  any   Court  established  by   Royal 
Act  not  to  interfere  with  equi-  .  ...  "         / 

table  jurisdiction  of  Supreme       Charter  in  refusing  equitable  relief  on  the  ground  of 

Court8#  acquiescence  or  otherwise,  to  any  person  whose  right 

to  bring  a  suit  may  not  be  barred  by  virtue  of  this  Act. 


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act  xiv  of  1859.  ciii 

XVII.  This  Act  shall  not  extend  to  any  public  property  or  right,  nor  to  any 

suits  for  the  recovery  of  the  public  revenue  or  for  any 
Act  not  to  extend  to  public  ,  ,.       ,   .  ,     ,  ,     .  ,         ..       ,    „ 

property  nor  to  suits  for  the  public  claim  whatever,  out  such  suits  shall  continue 
recovery  of  public  claims.  to  ^  g0verned  by  the  laWB  or  rules  of  limitation  now 

in  force. 

XVIII.  All  suits  that  may  be  now  pending  or  that  shall  be  instituted  within 

the  period  of  two  years  from  the  date  of  the  passing 
Act  not  to  apply  to  suits  now  ...      .    ,     ,    „  ,  .    ,         ,    ,   .         .      ,         ,#  ,,  . 

pending  or  to  suits  instituted      of  this  Act  shall  be  tried  and  determined  as  if  this 

W8uite  afterwards  instituted  to  Act  had  not  been  P****&  I  but  *H  suits  to  which  the 
be  governed  by  this  Act.  provisions  of  this  Act  are  applicable  that   shall  be 

instituted  after  the  expiration  of  the  said  period  shall  be  governed  by  this  Act  and 
no  other  law  of  limitation,  any  Statute,  Act,  or  Regulation  now  in  force  notwith- 
standing. 

XIX.  No  proceeding  shall  be  taken  to  enforce  any  judgment,  decree,  or  order 

Proceedings    for     enforcing  of  ^  Court  e*tabKshed  by  Royal  Charter  but  within 

judgments,    Ac.,  of    Supreme  twelve  years  next  after  a  present  right  to  enforce  the 

Courts    to    be    taken    within  ,    „  _                       ,  ,                                                   . 

twelve  years.  same  shall  nave  accrued  to  some  persons  capable  of 

releasing  the  same  unless  in  the  meantime  such  judg- 
ment, decree,  or  order  shall  have  been  duly  revived  or  some  part  of  the  principal 
money  secured  by  such  judgment,  decree,  or  order  or  some  interest  thereon  shall  have 
been  paid,  or  some  acknowledgment  of  the  right  thereto  shall  have  been  given  in 
writing,  signed  by  the  person  by  whom  the  same  shall  be  payable  or  his  agent,  to  the 
person  entitled  thereto  or  his  agent ;  and  in  any  such  case  no  proceeding  shall  be 
brought  to  enforce  the  said  judgment,  decree,  or  order,  but  within  twelve  years  after 
Buch  revivor,  payment  or  acknowledgment  or  the  latest  of  such  revivors,  payments 
or  acknowledgments,  as  the  case  may  be,  provided  that  for  three  years  next  after 

the  passing  of  this  Act,  every  judgment,  decree,  and 
inforce!0  **  *°  judgment  now      order  which  may  be  in  force  at  the  date  of  the  passing 

of  this  Act,  shall  be  governed  by  the  law  now  in  force, 
anything  therein  contained  notwithstanding. 

XX.  No  process  of  execution  shall  issue  from  any  Court  not  established  by 

Royal  Charter  to  enforce  any  judgment,  decree,   or 

«?%£££?<£!?«? C*S  °rd8r  °f  8noh  Conrt>  nn,e8S  eome  proceeding  Bhall  haTe 
Court  not  established  by  Royal  been  taken  to  enforce  such  judgment,  decree  or  order, 
Charter.  ,  . 

or  to  keep  the  same  m  force,  within  three  years  next 

preceding  the  application  for  such  execution. 

XXI.  Nothing  in  the  preceding  section  shall  apply  to  any  judgment,  decree,  or 

„_      _.         ^         t  4  order  in  force  at  the  time  of  the  passing  of  this  Act, 

Preceding  section  not  to  ap-  r          °                       ' 

ply  to  judgments,  &c,  in  force  but  process  of  execution  may  be  issued  either  within 

at       passing  o               .  ^  ^me  now  ijmited  by  law  for  issuing  process   of 

execution  thereon,  or  within  three  years  next  after  the  passing  of  this  Act,  whichever 
shall  first  expire. 


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civ  ACT  XIV  OF  1859. 

XXII.  No  process  of  execution  shall  issue  to  enforce  any  summary  deriskm  or 

award  of  any  of  the  Oiril  Courts  not  established  by 
Time  fbr  execution  of  a  sum-       •..-.,.  *  *»  *    ,..  * 

tnary  award  of  Civil  Court  or  Royal  Charter,  or  of  any  Revenue  Authority,  union 
Revenue  Authority.  8ome  ^^f^^iag  fan  have  been  taken  to  enforce  each 

decision  or  award,  or  to  keep  the  same  in  force,  within  one  year  next  preceding  the 
application  for  such  execution. 

XXIII.  Nothing  in  the  preceding  section  shall  apply  to  any  summary  decision 

_  or  award  in  force  at  the  time  of  the  passing  of  this 
Preceding  section  not  to  ap-  .  ,      . 

ply    to   summary    awards  in  Act,  but  process  of  execution  may  be  issued  either 

force  at  the  passing  of  this  Act.  within  the  time  nQW  ^^4  ^  Uw  for  fegoing  process 

of  execution  thereon  or  within  two  years  next  after  the  passing  of  this  Act,  whichever 
shall  first  expire. 

XXIV.  This  Act  shall  take   effect  throughout  the  Presidencies   of   Bengal, 

^_       t       M  K  Madras,  and  Bombay,  including  the  Presidency  Towns 

Operation  of  Act. 

and  the  Straits'  Settlement ;  but  shall  not  take  effect 

in  any  Non-regulation  Province  or  place  until  the  same  shall  be  extended  thereto  by 

public  notification  by  the  Governor-General  in  Council  or  by  the  Local  Government 

to  which  such  Province  or  place  is  subordinate.     When- 

ta%M22L£p&fi:    eTer  thU  Act  8haU  ta  Mtonded  to  ■■*  Non-«*»i»a» 

or  place  to  which  the  Act  is  Province  or  place  by  the  Governor- General  in  Council 
extended. 

or  by  the  Local  Government  to  which  such  Province 

or  place  is  subordinate,  all  suits  which  within  such  Province  or  place  shall  be  pend- 
ing at  the  date  of  such  notification  or  shall  be  instituted  within  the  period  of  two 
years  from  the  date  thereof,  shall  be  tried  and  determined  as  if  this  Act  had  not 
been  passed  ;  but  all  suits  to  which  the  provisions  of  this  Act  are  applicable  that 
shall  be  instituted  within  such  Province  or  place  after  the  expiration  of  the  said 
period,  shall  be  governed  by  this  Act  and  by  no  other  law  of  limitation,  any  Statute, 
Act,  or  Regulation  now  in  force  notwithstanding. 


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INDEX. 


XxX 

sAkor    Note'       ***** 
Abatement- 
Application  to  set  aside  order  for  ...  ...     171-c      ...  627 

Abduction — (See  under  Service.) 
Absence— 

Absence,  defendant's,  in  foreign  country  excluded       ...         xiii       ...  89 

Provision  in  IX  of  1871,  limiting  application  of  section 

14    to  cases  where   summons  cannot    be    served 

during  defendant's,  omitted  in  the  Act  of  1877       ...         xiii       ...  89 
of  plaintiff  abroad  voluntary  or  involuntary 

does  not  prevent  limitation  ...  ...         xiii       ft  -89 

Defendant's,  does  not  terminate  by  return  for  temporary 

purpose  ...  ...  ...  ...         xiii       b  89 

Provision  as  to,  in  section  13  inapplicable  to  execution 

applications 
Section  13  affects  only  defendant  who  may  be  absent... 
Subsequent,  of  defendant  can  be  excluded  ... 
of  one  of  two  joint-contractors  is  not  provided 

for    ... 
C.  H. — of  defendant  having  constituted  agent  in  B.  India 

does  not  come  within  section  13 
In  this  case,  existence   of  agent  was  within  plaintiff's 

knowledge 
B.  H. — of  defendant  after  cause  of  action  will  not  stop 

time... 

A.  H.,  anch,  of  defendant  stops  limitation  ... 

B.  H.,  followed  the  above  decision  of  A.  H. 
Section  13  inapplicable  to  a  soldier  defendant  on  service 

at  Cabul  ...  ...  ...  ...         xiii       k  93 

Accommodation  Bill- 
Suit  by  acceptor  of,  against  drawer  ...  ...  79      ...  414 

Account. 

Account  written  in  debtor's  name  but  signed  by  his 

writer  is  within  section  19  ...  ...  *         *      ...         xix        j  167 

Adjustment  of,  or  ruzu  operates  as  evidence  of  new 

contract  or  acknowledgment  ...  ...         xix        n  162 

Bare  statement  of,  is  not  contract  ...  ...         xix        U  162 

Account — (Mutual,  open  and  Current.) 

Suit  for  balance  due  on  ...  ...  ...  85       ...  419 

between  any  two  persons  falls  under  85         ...  85        a  419 

What  constitutes,  as  per  Peacock,  C.  J.       ...  ...  85        b  420 

Continuous  between  principal  and  agent  with 

debits  and  credits  on  each  side  fell  under  section 

8  of  Act  XIV  of  1859  ...  ...  ...  85        C  420 

G.  H.  means  Calcutta  High  Court.  I  B.  H.  means  Bombay  High  Court. 

M.  H.  means  Madras  High  Court.  |  A  H.  means  Allahabad  High  Court. 

In  column  1,  Roman  figures  represent  Sections  and  Arabic  figures  represent  Article*. 
N 


xiii 
xiii 
xiii 

d 

e 
e 

89 
90 
90 

xiii 

f,l 

90,93 

xiii 

g 

90 

xiii 

g 

91 

xiii 
xiii 
xiii 

h 
i 
j 

91 
92 
92 

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CTU1 


IK  DIX. 


Ait. 


rxi 


Acknowledgment — Continued. 

By  one  of  several  mortgagee*  under  English  Law  ef- 
fectual 
Such,  under  section  21  of  the  Indian  Act  ineffectual....         xxi 

Bach,  will  avail  mortgagor  if  he  had  mortgaged  different 

properties  to  different  persons  by  one  deed  ...  xzi 
of  debt  by  mother,  as  such  and  natural  guar- 
dian ineffectual..                  ...                 ...                 ...     xxriii 

Such,  cannot  be  treated  as  fresh  promise    ...  ...     xxriii 

Socb,  does  not  make  mother  responsible  for  the  debt  ...     xxriii 
Secondary  evidence  of  such  may  be  given  ...  ...     xxviii 

Acquiescence- 
Acquiescence  m  obstructing  a  path-way     ... 
to  be  effectual  must  be  attributable  to  inten- 
tion to  abandon  benefit 

Acqnittftl- 
Appeal  from  judgment  of 


Kola. 


1 

i 


e 
P 
4 


Act  XX  of  1847 

YIII  of  1859,  sections  246,  269 

XIV  of  1869,  operated  from  1st  January,  1862 

B.  H. — XIV  of  1859,  inapplicable  to  suits  for  damage 

under  section  42  of  the  Bombay  Act  VII  of  1867... 

N.-W.  P.  H.  C.—  inapplicable  to  suit  under  XIV  of  1863 

XV  of  1859 

I  of  1868  is  general  clauses 

VI  of  1869,  relates  to  marriage  under  III  of  1872... 

Act  IX  of  1871,  was  in  force  from  July,  1871 

A.  H. — IX  of  1871,  section  15,  inapplicable  to  suits,  Ac., 
under  XVIII  of  1873 

XV  of  1877,  operates  from  1st  October,  1877, 

A.  H.— XV  of  1877,  to  a  suit  on  registered  bond  of  1870 
payable  on  demand 

V  ff  1881,  section  4,  reproduces  section  179  of  Suc- 
cession Act 

XIV  of  1882,  sections  363,  365  ... 

XIV  of  1882,  section  366 

XIV  of  1882,  section  371 

XIV  of  1882,  section  230 

Addition- 
Addition  or  substitution  of  new  plaintiff  or  defendant... 
As  to,  of  parties  provisions  of  C.  P.  C. 

C.  H.  and  A.  H. — Appellate  Court's  power  of  making 

party  to  decree  as  respondent  is  not  limited  by  sec- 
tion 22 

Suit  against  defendant  added  after  plaint  was  filed 
rejected  as  barred 

of  assignees  of  plaintiff's  interest  after  suit  ... 

■  of  2  defendants  after  suit 

■  of  one  of  2  vendees  after  time 

Adjournment— 

M.  H.,  during,  if  office  was  open  for  receiving  appeals 

Ac.,  court  is  not  closed 
Party  can  deduct  time  the  court  was  closed  though  it 

re-opened  on  a  later  day     ... 


190 
191 

191 

268 
268 
268 
268 

227 
227 


167 


40 

a 

355 

• 

284 A  286 

xiv 

t 

106 

xiv 

n 

106 
355 

i 

ii 

6 

i 

... 

5 

xiv 

s 

105,106 

i 

b 

6*5 

ii 

... 

19 

xix 
xxii 

2-b 

165 
619 
620 
627 
642 

192 

xxii 

a 

192 

192 


xxu 

f 

194 

xxu 

i 

194 

xxii 

195 

xxii 

m 

197 

v 
v 


g 
h 


32 
32 


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INDEX.  CV11 


Acknowledgment— Continued. 

Ineffectual  under  section  19  would  be  so  in  any  case  ... 

Entry  in  debtor's  book  does  not  amount  to... 

Debtor  writing  account  stated  with  his  name  at  the  top 

is 
Agent  authorized,  writing  letter  in  principal's  name  to 

•    creditor  is,  though  not  signed 
Uncontradicted,  not  openly  admitted  by  creditor,   is 

within  section  19  ...  ...  ... 

Statement  that  debt  will  become  payable  on  a  future 

event  happening  is  not 
Admission  of  debt  in  an  unregistered  instrument  com- 

pulsorily  registerable  admitted  as 
Unregistered  mortgage  deed  held  not  to  avail  as,  as  it 

was  the  basis  of  the  suit     ... 
Unregistered  rent  receipt  containing,  of  title  inadmissible 
Insufficiently  stamped  pro-note  accepted  as 
of  debt  in  unregistered  conveyance  will  bar 

time... 
Buzu  or  adjustment  of  account  can  operate  as 
of  an  executor  under  Hindu  Wills  Act  can  bind 

testator's  estate  .. 
— — —  of  mortgage  by  mortgagee's  agent  insufficient 

under  IX  of  1871 
Distinct,  of  existing  liability  or  jural  relation  is  required 

by  section  19     ... 
Receipt  incorporating  decree  by  reference  held  not  an... 
— — —  signed  by  vakil  insufficient  under  IX  of  1871  is 

insufficient  to  sustain  suit  ... 
under  Article  148  of  IX  of  1871  must  be  of  a 


present  existing  title  in  mortgagor 

■  of  mortgagor's  title  in  settlement  record  gives 


fresh  starting  point 

A.  H. — of  mortgagor's  title,  held,  need  not  be  within 

60  years  of  mortgage  under  XIV  of  1859 

M.  H.,  such,  must  have  been  made  within  60  years    ... 

Auction  purchasers  of  mortgagee's  interest  accepting 
sale  certificate  is  not 

— —  of  right  different  from  that  claimed  will  not 
avail 

0.  H. — of  judgment-debt  by  debtor  by  application  for 
postponement  of  sale  did  not  fall  under  section 
20  of  IX  of  1871 

C.  H.,  judgment-debtor's  application  fortune  for  pay- 
ment is,  under  19  of  XV  of  1877 

B.  H.  and  A.  H.,  debtor's  application  for  postponement )      179     3-p  676 

of  Bale  is,  of  plaintiff's  right  to  execute  ...  )      xix  2-0,2-q      171, 

A.  H.,  debtor's,  of  decree  debt  and  payment  would  fall  172  &  173 

within  sections  19  and  20  of  Act  XV  of  1877         ...         xix      2-r  173 

A.  H.,  debtor's,  of  decree  debt  by  ikrar  saves  limitation         xix     2-8  174 

M.  H.,  section  19  inapplicable  to  applications  in  exe- 
cution of  decrees  ...  ...  ...         xix      2-t    174,175 

by  one  of  several  joint-contractors  ...         xxi       ...  186 

of  debt  by  one  partner  when  firm  is  a  going 

concern  ...  ...  ...  ...         xxi        f  188 

: by  one  of  several  executors  or  administrators.  xxi       h  190 

by  one  of  several  mortgagees       ...  ...         xxi        i  190 


See.  or 
Art. 

Note. 

Page. 

xix 
xix 

i 

k 

157 
157 

xix 

1 

158 

xix 

m 

158 

xix 

n 

159 

xix 

0 

159 

xix 

P 

160 

xix 
xix 
xix 

r 
s 

160 
161 
161 

xix 
xix 

161 
162 

xix 

s  • 

164 

xix 

2-c 

165 

xix 

xix 

2-d 
2-d 

165 
166 

xix 

2-d 

166 

xix 

2-e 

166 

xix 

• 
2-f 

167 

xix 
xix 

u- 

167 
168 

xix 

2-i 

168 

xix 

2-j 

169 

xix 

2-nt 

170 

xix 

2-n 

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CI  IHDBL 


<*  Note.  Fs*e. 


144 

f 

558 

144 

g 

659 

144 
144 

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560 
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144 

46 

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365 

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46 

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364 

Art. 
AdY6XM  poaia— JOB — Continued. 

P.  C,  pose e— ion  of  an  auction  purchaser  in  execution  of 

a  decree  against  mortgagor  is  ...  ...         144        e  556 

Insolvent's  possession  of  after  aoqnired  property  for  12 

years  is,  to  Official  Assignee  ...  ...         144        d  557 

Collector's  possession  of  land  for  revenue  is  not,  by 
reason  of  his  paying  snrplas  ooUection  to  another 
claimant  ...  ...  ...  ...         144        •  558 

Possession  by  one  of  3  donees  without  intimation  to 
the  other  2  that  such  was  opposed  to  their  right 
held  not 

Trespasser's  possession  during  the  currency  of  an  ixara 
begins  to  be,  after  expiry  of  the  term  ... 

Possession  by  purchaser  from  mortgagor  and  by  pro- 
em ptor  under  decree  for  pre-emption  held  not 
adverse  to  prior  mortgagee  whose  right  to  posses- 
sion was  not  barred 

On,  for  12  years,  declaration  of  title  may  be  based 

Possession  for  12  years  by  grantee  of  a  married  woman 
during  her  husband's  long  absence  held,  to  her 
husband  when  he  returned  and  claimed 

Possession  becomes,  from  date  of  permanent  settlement. 

Proprietor  failing  to  claim  for  12  years  malikana  in 
deposit,  loses  right 

Settlement  of  estate  will  not  give  the  person  obtaining 
the  settlement  the  right  lost  by  limitation 

Collector's  possession  for  party  whose  claim  he  recog- 
nized is,  to  one  whose  claim  he  disallowed 

Adult  co-sharer's  possession  after  temporary  settlement 
in  his  name  during  minority  of  other  co-sharers  is 
not  adverse  to  the  latter     ...  ...  ...  46        i  364 

Agent- 
Agent's  actual  knowledge  through  whom  estate  is  ac- 
quired is  equivalent  to  the  personal  knowledge  of 
the  principal      ...  ...  ...  ...       xviii       z  149 

Effect  of  requiring  actual  personal  knowledge  of  the 

principal  ...   .  ...  ...  ...       xviii    yf  Z    150,  151 

May  *ign  either  his  name  or  principal's  name  ...         xix        g  156 

Clerk  writing  purchaser's  name  binds  the  latter  ...  xix        g  156 

Third  party  engaged  by  debtor  to  write  acknowledgment 

including  his  name  is  ...  ...  ...         xix        j  157 

■         cannot  sue  the  owner  returning  on  his  land  ...  3        6  274 

Suit  by  principal  against,  for  moveable  property  ...  89       ...  425 

Bon's  suit  against  widowed  mother  for  property  manag- 
ed by  her  during  minority  falls  under  89  ...  89        a  425 
If,  promises  to  render  account  at  a  future  date  and  fails, 

time  runs  from  that  date    ...  ...  ...  89       h  426 

C.  H.,  suit  against,  employed  in  management  of  land  or 
collection  of  rents,  Ac,  except  in  cases  of  fraud  is 
governed  by  one  year's  rule  under  Act  VIII  of  1869 
B.C.  ...  ...  ...  ...  89        C  426 

Suit  against,  is  not  specially  provided  for  by  Bengal 

Tenancy  Act      ...  ...  ...  ...  89        e  426 

By  principal  against,  for  neglect  or  misconduct  ...  90      ...  426 

Air- 
Air,  prescriptive  title  to  access  and  use  of  ...  ...  26      ...  213 


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INDEX.  CXI 

82rt?P  N<*«*         ***•• 

Alienation— 

Alienation  of  charity  property  l>y  itself  is  not  breach  of 

trust  ...  ...  ...  ...  x       g  64 

of  trust  property  for  benefit  of  charity  is  legal  x       g  65 

»  by  widow  as  executrix,  judge  said  he  would 

hold,  was  not  breach  of  trust  ...  ...  x       g  65 

Amendment- 
Amendment  returned  for,  and  re-presentation  will  not 

constitute  fresh  institution  ...  ...  iv        d  26 

Memorandum  of  appeal  returned  for,  without  fixing  time 

for  re-presentation  ...  ...  ...  v        r  84 

Animals- 
Suit  for  hire  of        ...  ...  ...  ...  60    ...  372 

Aperture — (Se*  under  Light) 

Appeal- 
When  time  for,  expires  on  a  non-court  day  it  should  be 

presented  when  court  re-opens  ...  ...  ▼       ...  29 

May  be  admitted  after  time  on  sufficient  cause 

shewn  •       ...  ...  ...        •        ...  y       ...  29 

M.  H. — For  reception  of,  if  office  was  open  during  ad- 
journment, court  is  not  closed 

B.  H. — may  be  admitted  on  the  re-opening  day  if  time 
expired  during  vacation 

A.  H. — For  not  presenting,  in  time  circumstance  con- 
templated in  section  14  is  sufficient  cause 

To  admit,  after  time  poverty  is  not  sufficient  excuse    ... 

For  admitting,  after  time  court  should  record  reason  ... 

after  time  error  in  calculation  is  not  suffi- 
cient cause 

For  dismissing,  as  barred  court  should  record  reasons... 

Order  rejecting,  as  barred  set  aside  for  not  recording 

reason  ...  ...  ...  ...  v       m  83 

Grounds  for  admitting,  may  be  examined  by  High  Court 

in  2nd  appeal    ...  ...  ...  ...  v        n  83 

Admission  of,  after  time  by  a  District  Judge  cannot  be 

overridden  by  Sub-judge    ...  ...  TO  34 

In  District  Judge's  refusal  to  admit,  after  time  B.  H. 

declined  interference  ...  ...  ...  v        p  84 

held  as  preferred  when  memo,  was  first  pre- 
sented and  not  when  represented  on  return  for 
insufficiency  of  stamps  without  fixing  time  ...  v        q  84 

So  an,  memo,  represented  on  return   for  amendment 

without  fixing  time  ...  ...  ...  v        r  84,35 

Negligence  of    appellant's  attorney   is  not    sufficient 

cause  ...  ...  ...  ...  v        U  86 

—  by  one  memo,  against  1st  decree  after  time, 

and  against  2nd  decree  on  review  admitted  by  the 
Lower  Court*  was  rejected  by  the  High  Court  as 
irregular  ...  ...  ...  ...  v       T  86 

Words,  "  or  application"  were  not  included  in  section  13 

of  IX  of  1871    ...  ...  ...  ...  xii       a  84 

In  case  of,  to  P.  C.  time  runs  from  judgment  date  and 

not  from  dismissal  of  review  ...  ...  xii       h  86 

rejected  as  presented  out  of  time  on  plaintiff 

failing  to  account  for  delay  ...  ...  xii       6  87 


y 

* 

32 

v 

i 

82 

v 
v 
y 

I 

32 
83 
83 

y 

v 

I 

m 

83 
33 

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cii  ACT  XIV  OF  1859. 

have  ceased  as  would  otherwise  have  been  allowed  from  the  time  when  the  cause  of 
action  accrued,  unles  such  time  shall  exceed  the  period  of  three  years,  in  which 
case  the  suit  shall  be  commenced  within  three  years  from  the  time  when  the 
disability  ceased ;  but  if,  at  the  time  when  the  cause  of  action  accrues  to  any  person, 
he  is  not  under  a  legal  disability,  no  time  shall  be  allowed  on  account  of  any  subse- 
quent disability  of  such  person  or  of  the  legal  disability  of  any  person  claiming 
through  him. 

XII.  The  following  persons  shall  be  deemed  to  be  under  legal  disability  within 

*  the  meaning  of   the  last  preceding  section — married 

What  person  to  be  deemed  to  °  ,.,,,«,.,•/ 

be  under  legal  disability  under  women  in  cases  to  be  decided  by  English  law,  minors, 

preelection.  idiot., and  lunatics. 

XIII.  In  computing  any  period  of  limitation  prescribed  by  this  Act,  the  time 

„         ,  ^        ,       .  „    _  „        during  which  the  defendant  shall  have  been  absent  out 
Computation  of  period  of  li- 
mitation  in  case  of  absence  of       of  the  British  territories  in  India  shall   be  excluded 

from  snch  computation  unless  service  of  a  summons  to 

appear  and  answer  in  the  suit  can  during  the  absence  of  such  defendant  be  made  in 

any  mode  prescribed  by  law. 

XIV.  In  computing  any  period  of  limitation  prescribed  by  this  Act,  the  time 

Computation  of  period  of  li-  dnril1*  whioh  the  olairaant>  or  any  P**80*  ™dei  wnom 

mitation  in  case  of  suit  prose-  he  claims,  shall  have  been  engaged  in  prosecuting  a 
cuted  bond  Jide,  but  in  wrong  mi_  ..  .  A  x, 

Court.  suit  upon  the  same  cause  of  action  against  the  same 

defendant,  or  some  person  whom  he  represents,  bond  fide  and  with  due  diligence,  in 
any  Court  of  Judicature  whioh,  from  defect  of  jurisdiction  or  other  cause,  shall  have 
been  unable  to  decide  upon  it,  or  shall  have  passed  a  decision  which,  on  appeal,  shall 
have  been  annulled  for  any  snch  cause  included  the  time  during  which  such  appeal, 
if  any,  has  been  pending,  shall  be  excluded  from  such  computation. 

XY.     If  any  person  shall  without  his  consent  have  been  dispossessed  of  any 

immoveable  property  otherwise  than  by  due  course  of 
Person  unlawfully  disposses-  .     .  . 

sed   of  immoveable    property       law,  such  person  or  any  person  claiming  through  him 

™UEdtag  PanT8tiSe  &  •"»»  i»  *  ««*  bright  to  recover  possession  of  snch 
may  be  set  up.  property  be  entitled  to  recover  possession  thereof,  not- 

Suit  for  dispossession  to  be       withstanding  any  other  title  that  may  be  set  up  in 
brought  within  six  months.  °        " 

Suit  to  establish  title  not  to       such  suit  provided  that  the  suit  be  commenced  within 

'  six  months  from  the  time  of  such  dispossession.     But 

nothing  in  this  section  shall  bar  the  person  from  whom  such  possession  shall  have 

been  so  recovered  or  any  other  person  instituting  a  suit  to  establish  his  title  to  such 

property,  and  to  recover  possession  thereof  within  the  period  limited  by  this  Act. 

[Modified  by  Act  XXIII,  1861,  Section  26.] 

XVI.     Nothing  in  this  Act  contained  shall  be  deemed  to  interfere  with  any  rule 

or  jurisdiction   of  any   Court  established  by   Royal 
Act  not  to  interfere  with  equi-  .  - 

table  jurisdiction  of  Supreme       Charter  in  refusing  equitable  relief  on  the  ground  of 

0ourt8,  acquiescence  or  otherwise,  to  any  person  whose  right 

to  bring  a  suit  may  not  be  barred  by  virtue  of  this  Act. 


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act  xiv  of  1859.  ciii 

XVII.  This  Act  shall  not  extend  to  any  pnblio  property  or  right,  nor  to  any 

suits  for  the  recovery  of  the  pnblio  revenue  or  for  any 
Act  not  to  extend  to  public  ,  ,.       .   .  ,     .  ,     ,  i_-xt.ii 

property  nor  to  suits  for  the  public  claim  whatever,  but  such  suits  shall  continue 
recovery  of  public  claims.  to  be  g0yerned  by  the  law8  or  rme8  of  limitation  now 

in  force. 

XVIII.  All  suits  that  may  be  now  pending  or  that  shall  be  instituted  within 

the  period  of  two  years  from  the  date  of  the  passing 
Act  not  to  apply  to  suits  now  .     ,.      .  ,    ,.  ,  .    -.         ,    -.   ,  <■         .»     .  . 

pending  or  to  suits  instituted      of  this  Act  shall  be  tried  and  determined  as  if  this 

^Sulte^rwards  instituted  to  Acfc  had  not  been  pa**8*** ;  but  all  suits  to  which  the 
be  governed  by  this  Act.  provisions  of  this  Act  are  applicable  that   shall   be 

instituted  after  the  expiration  of  the  said  period  shall  be  governed  by  this  Act  and 
no  other  law  of  limitation,  any  Statute,  Act,  or  Regulation  now  in  force  notwith- 
standing. 

XIX.  No  proceeding  shall  be  taken  to  enforce  any  judgment,  decree,  or  order 

Proceedings    for     enforcing  of  *n?  Court  e8tebH8hed  b7  ^al  Charter  but  within 

judgments,    Ac.,  of    Supreme  twelve  years  next  after  a  present  right  to  enforce  the 

Courts    to    be    taken    within  ,    „  .                       _   , 

twelve  years.  same  shall  have  accrued  to  some  persons  capable  of 

releasing  the  same  unless  in  the  meantime  such  judg- 
ment, decree,  or  order  shall  have  been  duly  revived  or  some  part  of  the  principal 
money  secured  by  such  judgment,  decree,  or  order  or  some  interest  thereon  shall  have 
been  paid,  or  some  acknowledgment  of  the  right  thereto  shall  have  been  given  in 
writing,  signed  by  the  person  by  whom  the  same  shall  be  payable  or  his  agent,  to  the 
person  entitled  thereto  or  his  agent ;  and  in  any  such  case  no  proceeding  shall  be 
brought  to  enforce  the  said  judgment,  decree,  or  order,  but  within  twelve  years  after 
such  revivor,  payment  or  acknowledgment  or  the  latest  of  such  revivors,  payments 
or  acknowledgments,  as  the  case  may  be,  provided  that  for  three  years  next  after 

the  passing  of  this  Act,  every  judgment,  decree,  and 
in  torS!0  "  *°  judgment  now      order  which  may  be  in  force  at  the  date  of  the  passing 

of  this  Act,  shall  be  governed  by  the  law  now  in  force, 
anything  therein  contained  notwithstanding. 

XX.  No  process  of  execution  shall  issue  from  any  Court  not  established  by 

Royal  Charter  to  enforce  any  judgment,  decree,   or 

^SS^WJlTalSa  order  of  snoh  Conrt>  nnle88  8ome  Proceeding  -hall  hare 
Court  not  established  by  Royal  been  taken  to  enforce  such  judgment,  decree  or  order, 
Charter.  " 

or  to  keep  the  same  in  force,  within  three  years  next 

preceding  the  application  for  such  execution. 

XXI.  Nothing  in  the  preceding  section  shall  apply  to  any  judgment,  decree,  or 

__      _.           A1         ^  .  order  in  force  at  the  time  of  the  passing  of  this  Act, 

Preceding  section  not  to  ap-  r          »                       i 

ply  to  judgments,  &c,  in  force  but  process  of  execution  may  be  issued  either  within 

ate  passing  o  ^e  ^me  nQW  j^i^d  by  law  for  issuing  process   of 

execution  thereon,  or  within  three  years  next  after  the  passing  of  this  Act,  whichever 
shall  first  expire. 


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3 


C3I1T  IKDII 


tog™-  Note.  Five. 


Assessment— 

Assessment  of  rent-free  land,  rait  for  ...  ...        180       ...  501 

Twelve  years'  possession  by   one  not  claiming  under 

grantee  bars  right  to  assess  land  granted  to  an  office        190        *b  601 

Suit  to  assess  brought  12  years  after  decree  declaring 

plaintiffs  right  to  assess  held  not  barred  ...        130        C  601 

Assets- 
Suit  for  refund  of,  distributed  by  e&eeuior  or  adminis- 
trator   ,  ,..  ...  ...  ...  43       ...  $56 

mean  not  merely,  in  the  hands  of  the  executor,  but 

which  could  be  got  in  and  applied  to  payment  of 

legacies  ...  ...  ...  ...         128        e       486,487 

by  annuitant's,  heir  claiming  share  under  a  will 

and  also  for  a  share  of  property  undisposed  of      ...        138        f  487 

Assignee- 
Assignee  of  minors  by  private  or  court  sale  is  not 

entitled  to  the  exemptions  allowed  to  minors        ...  vii        h,  45 

Attachment- 
interest  of  an  expectant  heir  is  not  liable  to  ...        141        e  545 
Attorney- 
Attorney's  suit  for  costs,  Ac,  in  the  absence  of  an  express 

agreement  as  to  time  »..  ...  84       ...  417 
improperly  discontinuing  business  or  suit  has 

no  right  to  sue  for  costs  ...  84       a  418 

Suit  brought  in  1875  by  solicitor  engaged  in  1871  to 

enforce  decree  which  was  settled  out  of  court  in 

1872,  held  not  barred  by  84  .        •••  -  84       fc  418 

Attorney's  application   calling  on   his  client  to  show 

cause  why  he  should  not  pay  bill  of  costs  is  not 

affected  by  limitation         ...  ...  ...  84        C  418 

Attorney's  suit  does'not  terminate  until  decree  is  issued 

with  costs  taxed  ...  ...  ...  84        C  419 

Auction  purchaser- 
Suit  for  money  realized  by,  of  a  decree,  the  sale  of  which 

was  set  aside,  falls  under  62  ...  ...  62        s/  887 

'a  suit    for  compensation    awarded  to  mortgagor 

under  the  Land  Acquisition  Act,  time  runs  from 

date  of  knowledge  ...  ...  ...  95       g  437 

Auction  Sale- 
Can  not  be  set  aside  though  on  debtor's  appeal  exe- 
cution was  held  barred      ...  ...  ...         165       a  *    61ft 

Debtor  must  move  court  to  stay  confirmation  until  dis- 
posal of  application  to  set  aside  ...  ...         165        a  615 

Application  to  set  aside,  for  irregularity     ...  ...         166       .~  616 

Article  166  applies  only  to  applications  under  section 

811  or  294         ...  ...  ...  ...         166       _  616 

Decree-holder  includes  one  entitled  to  rateable  distri- 
bution ...  ...  ...  ...        166      «.  616 

Failure  to  give  notice  under  section  248,  is  irregu- 
larity invalidating  subsequent  proceeding  . . .         166        a  616 

Court  can   set  aside  its  irregular   proceeding  if  third 

parties  are  not  affected       ...  ...  ...         166       a  636 


I 


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46 

g 

360 

46 

361 

46 

a 

361 

IVPIX.  «T 

B**^  Note.  Page. 

Award- 
Under  Act  XXIII  of  1863,  suits  to  contest,  of  Revenue 

Board  ...  ...  ...  ...  1       ...  271 

Suit  under  Article  1,  to  be  brought  in  court  special]/ 

constituted  under  XXIII  of  1863         ...  ...  1        a  271 

Court  could  not  extend  the  period  of  80  days  before  XT 

of  1877  ...  ...  ...  ...  lb  271 

■     Under  certain  Bengal  Regulations,  suit  to  contest       ...  45       ...  358 

Regulations  referred  to  in  Article  45  relate  to  settlement 

of  lands  ...  ...  ...  ...  45        a  358 

A  person  whether  bound  or  not  by,  cannot  sue  to  rectify 

or  set  it  aside  3  years  after  its  date      ...  ...  45        C  358 

Collector's  adjudication  under  section  20  of  Regulation 

VII  of  1822,  upon  a  claim  to  proprietary  rights  of 

lands,  is  an         ...  ...  ...  ...  45       d  359 

But  a  Collector's  declaration  propria  motu  that  a  farmer 

is  proprietor,  and  he  be  so  registered,  is  not  an  45       d  359 

An,  supposes  contention  between  parties  and  decision 

after  investigation  ...  ...  ...  45        6  359 

Settlement  Officer's  disposal  on  the  evidence  recorded 

by  his  assistant,  is  not  an   ...  ...  ...  45        f  860 

Decision  of  title  by  settlement  officer  under  Act  XIX 

of  1873,  does  not  fall  under  45 
Suit  to  recover  property  comprised  in 

does  not  bind  purchaser  at  Revenue  sale 

by  person  in  possession  under  an,  for  confirmation 

of  title  is  not  suit  for  property  ...  ...  46       h  361 

Plaintiff  dispossessed  after,  suing  for  possession  has  12 

years  ...  ...  ...  ...  46       C  862 

A  suit  for  possession,  three  years  after,  without  alleging 

dispossession  since,  held  barred  ...  ...  46       d  362 

Limitation  runs  from  the  date  of  final  order  in  appeal 

though  it  was  dismissed  without  investigation  into 

the  merits  ...  ...  ...  ...  46       j  366 

Where  one  of  2  parties  whose  interest  are  distinct 

appeals,  limitation  runs  agianst  the  other  from  date 

of  the  ...  ...  ...  ...  46       k  866 

is  placed  under  the  same  footing  as  contracts  for 

the  purposes  cf  chapter  ii  of  the  Specific  Relief  Act        113        h  455 

Suit  on  a  registered,  for  money  is  one  for  specific  per- 
formance ...  ...  ...  118       k  455 

Application  to  set  aside  ...  ...  ...         158       ...  609 

under  section  522  to  set  aside  an,  on  any 

ground  named  in  section  521  ...  ...         158        a  609 

Defendant  not  contesting,  on  any  of  these  grounds,  is 

not  precluded  from  appealing  ...  ...        158       a  610 

Application  to  file  an,. in  court  ,..  ...  ...         176       ...  631 

11  Date"  does  not  mean  date  that  award  was  written,  but 

date  that  it  was  given  to  the  parties    ...  ...         176        a  681 

Arbitrator  handing  in  an  award  to  court  is  not  an  ap- 
plication ..*  .>,  ...  ...         176        b  631 

balance- 
Balance  of  advance  in  payment  of  goods  to  be  delivered, 

suit  for  ..s  ...  ...  51       ...  372 

What  is...  ...v  ,„  ...  ...  51        a  372 

Time  for  delivery  if  there  was- no  fixed  time  or  usage 

would  be  a  reasonable  time-after  th*  advance  61       d  373 


Digitized  by 


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CXT1 


TKDBI. 


Bankruptcy — 

Can  time  occupied  by  proceedings  in,  be  excluded  under 
sec.  15 

G.  P.  C.  of  1882  does  not  provide  for  stay  of  legal  pro- 
ceedings during  pendancy  of  application  for  insol- 
vency 

Indian,  Bill  provides  for  stay  of  proceedings 

Benamidar— 

Is  not  a  trustee 
Bengal  Regulations— 

Suit  to  contest  awards  under  certain 
Bill  of  Exchange- 
Bill  of  Exchange  or  promissory  note  payable  at  a  fixed 
time  after  date  ... 

denned  by  Wharton  ... 

defined  by  sec.  6  Act  XXVI  of  1881 

Suit  on,  payable  at  sight  or  after  sight,  but  not  at  a 

fixed  time 
Suit  on,  accepted  payable  at  a  particular  date 

or  promissory  note  payable  at  a  fixed  time 

after  sight  or  demand 

English  oases  on 

or  pro-note  payable  on  demand  and  not  accom- 
panied by  writing  restraining  or  postponing  right 
to  sue 
By  payee  against  drawer  of,  dishonoured  by  non-aocep- 

tanoe 
Under  English  Law,  time  runs  from  notice  of  non-accep- 
tance 
Suit  on,  or  pro-note  or  bond  not  specially  provided  for.. 

Board  of  Revenue— 

Suit  to  contest  award  of, 

Boats- 
Suits  for  hire  of 

Bona-fide— 

Proceeding  taken,  is  a  question  of  degree  ... 

may  be  creditor's  belief  that  a  court  has  juris- 
diction 

Preferring  appeal  prohibited  by  law  is  not  prosecuting, 
or  in  good  faith... 

purchaser  for  value  without  notice  is  not  the 

creditor  when  he  buys  himself  ... 


Bond  defined 

single,  suit  on 

subject  to  a  condition     .... 

Breach— 

Every  successive,  gives  a  fresh  cause  of  action 

of  contract  (see  contract) 

of  promise   (see  promise) 

of  deceased  trustee  (see  trustee) 


Sec.  or 
Ait. 


Note. 


IIS  I 


XT 
XV 

{ 

190 

fit 

... 

a 

46 

... 

SB 

69 
69 
69 

a 
a 

401 
40* 

70 
71 

... 

408 

72 
72 

b 

408 
4W 

73 

... 

«H 

78 

... 

414 

78 
80 

a 

414 
41* 

1 

... 

271 

60 

372 

xiv 

f 

96 

xiv 

f 

99 

xiv 

k 

101 

12 

1 

906 

iii 
67 
68 

... 

10 
408 
408 

116 


Digitized  by 


Google 


indix.  cxvii 

Sec  or 


Art. 


_____      Note.         Page. 

British  Burmah— 

Suit  to  redeem  mortgages  of  land  in  ...  ...        148      ...  696 

British  India— 

Absence  from,  of  one  of  2  joint-contractors  ...         xiii        t  93 

means  territories  vested  in.H.  M.  by  Statute  XXI 

and  XXII,  vie.  c.  106  ...  ...  ...         xiii        p  95 

Bye-law— 

Municipal,  may  fall  under  6       ...  ...  ...  6        b  276 

Clause  in  Government  lease  entitling  plaintiff  to  grazing 

fee  held  ...  ...  ...  ...  6        o  276 

Call— (See  Company,) 
Cancellation— 

Of  Instrument,  suit  for  ...  ...  ...  91       ...  .427 

Carrier- 
Suit  against  a,  for  losing  or  injuring  goods 

for  delay  in  delivering  goods 

for  value  of  goods  lost  by  Railway  Company,  time 

runs  from  date  of  announcement  of  loss 
-  for  compensation  for  non-delivery  against  Rail- 


way Company,  falls  under  115 
■  against  Steam  Navigation  Company  falls  under 


115 

for  compensation  for  goods  damaged  by  com- 
pany's negligence  and   destroyed  by  Magistrate's 
order 
-  for  value  of  goods  when  the  company  failed  to 


80 
81 

... 

844 
844 

81 

a 

844 

81 

b 

846 

81 

0 

845 

81 

0 

846 

81 

e 

866 

deliver 
Three  years'  limitation  would  apply  where  plaintiff  sues 

for  breach  of  contract  though  defendants  proved 

breach  occurred  in  consequence  of  wrongful  act  of 

theirs  ...  ...  ...  ...  81        O  847 

Carrying  Company — (See  under  Partners.) 
Cause  of  action- 
Cause  of  action  cannot  exist  unless  there  is  one  capable 

of  suing 
No  one  has  complete,  until  there  is  one  that  can  be 

sued 
If  injury  accrue  at  any  time  within  20   years  from 

recurring  use  of  an  easement  a  new,  accrues 
Fresh  damage  and  continuance  of  wrongful  act  causing 

it,  give  a  new    ... 
Excavating  land  for  cellar  and  working  ooal  mines  do 

not  give,  till  damage  ensues 
Mere  excavation  does  not  give  ... 
If  mere  excavation  was  actionable,  jury  would  have  to 

decide  on  prospective  damage 
in  case  of  oertain  acts  arises  only  when  damage 

results 
Completion  of  duty  is 
For  the  price  of  work  done,  accrues  on  completion  of 

duty 
in  case  of  loan  made  by  oheque  does  not  arise 

till  cheque  is  cashed 


xvii 

a 

128 

xvii 

b 

124 

xxiii 

d 

201 

xxiii 

k 

204 

xxiv 
xxiv 

b 
b 

207 
207 

xxiv 

0 

208 

2 

66 

b 

272 
876 

66 

a 

876 

68 

a 

877 

Digitized  by  VJ 

OOQl 

See.  or 
Art. 

Note. 

Page. 

75 

J 

409 

7* 

J 

409 

91 

h 

431 

91 

i 

431,432 

103 

b 

445 

xiv 

T 

106 

MT 

W 

107 

13 

e 

321 

13 

e 

322 

CI  v in  I  V  D  I  X. 


Cause  of  action— continued. 

WhCTft  whole  debt  on  default  of  one  instalment  is  paya- 
ble on  ft  ir.und,  arises  from  demand     ... 

Snob  cue  ib  digtinguished  from  cases  where  payment  is 
h"t  ..liit lonal  on  demand    . 

To  «oe  for  tbo  ancellation  of  a  Mahomedan  deed  of  gift 
whuti  ipft  becomes  valid  by  possession... 

—  to  9t*t  n*ide  sale  deed  and  sell  property  for  decree 
ac-TTius  *  lien  plaintiff  knew  that  debtor  had  no 
«tlt**r  projieity  than  that  covered  by  the  sale  deed.. 

Hn*h»nd**  denial  of  liability  in  opposing  pauperism  will 

not  nonatittite,  for  dower    ... 
In  raw  uf  »ii*^ific  performance,  if  demand  from  plaintiff 

i*  a  i <otidition9  accrnes  only  on  demand  ...         113       ...  456 

Cause  of  a  like  nature — 

A,  11.,  M in  joinder  was  not 

<  .  I i. f  dissented  holding  mis-joinder  was     ... 

Certificate— 

Order  granting,  to  one  of  2  rival  claimants  need  not  be 

eel  iL*i'1u 
Party  failing  to  get,  seeking  to  set  aside  the  order  most 

bug  within  one  year 

Cestique  trust — 

Costique  trnat  is  also  barred  when  trnstee  is  barred    ...  x    2-p  77 

Charge  —  ( 9*a  u  H  fl#r  Money.) 

Suit  for  Gorernment  revenue  paid  and  to  declare  that 
it  id  &♦  on  estate  falls  under  132 

Suit  to  enforce  tien  on  confiscated  property  is  not  affect- 
ed by  limitation  contained  in  Act  IX  of  1859 

Charter  Court  —  (See  under  Execution  of  Decree  or  Order) 

Cheque— 

Includes  a  Bill  of  Exchange 
Suit  for  money  lent  on 

Civil  Procedure  Code— 

SecB<  2H0,  2*!H  282  and  335 

Appeals  under,  to  District  Judge 

District  Judge  can  cancel  his  order  admitting  appeal 
after  time 

8uh*jndge  cannot  cancel  District  Judge's  order 

Decree  or  order  modified  on  review  can  be  treated  as 
final  decree  to  appeal  from,  even  if  modified  as  to 

152        b  606 

Court  might  admit  appeal  after  time  if  delay  was  appel- 
lant s*  bot\  Jjide  mistake      ...  ...  ...         152        C  607 

Appeal  to  a  High  Court  except  under  151  and  153       ...         156       ...  608 

Claim— 

—  H^iti  in  Hi  company  being  wound  up  by  court       ...  4        ...  24 
To  Ret  off ;  Acknowledgment  coupled  with  ...               ...          19      ...               151 

Claimant — (Set  under  Order.) 


132 

q 

516 

132 

s 

517 

iii 
58 

... 

20 
371 

152 

284  to  286 
605 

152 
152 

a 
a 

605 
605 

Digitized  by 


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INDEX. 

Clause- 
Clause  8,  sec.  2  of  the  Act  of  1877  extends  for  2  years 

the  benefit  of  the  old  law  ... 
Benefit,  of,  2  allowed  to  suits  on  notes  payable  on  de- 
mand executed  before  the  Act  of  1877 

Closing— 

Of  court,  effect  of      ... 

Collector- 
Suit  to  set  aside  sale  by 

Commencement— 

Of  the  Act 

Of  suit  stayed  by  injunction 

—  where  new  parties  added 

Company- 
Registered,  suit  for  a  call  by 

Suit  by  official  liquidator  on  behalf  of,  after  it  was 

wound  up,  for  the  amount  of  calls,  falls  under  112.. 

Suit  by  consignee  agttinst  Railway,  for  non-delivery,  falls 

under  115 
Property  in  goods  not  sent  on  sample  passes  to  consig- 
nee on  delivery  to  the,  and  consignor  acts  as  consig- 
nee's agent 
Suit  against  steam  navigation,  for  value  of  goods  short 

delivered  falls  under  115 
Though  steam  navigation,  are  not  common  carriers  for 
the  purpose  of  the  Indian  Carriers'  Act,  they  are 
common  carriers  so  long  as  goods  remain  in  their 
hands  undelivered  ...  ...  ...         115        d  458 

Compensation- 
Compensation,  for  act  not  actionable  without  sepecial 
damage 

— for  act  in  pursuance  of  any  enactment  ... 

Certain  local  and  special  laws  prescribe  different  periods 

For  land  acquired  for  public  purposes,  suit  for 

Suit  after  one  year,  though  due  to  delay  by  Government, 
rejected  as  barred 

Suit  for,  when  acquisition  is  not  completed 

When  acquisition  is  not  completed,  Collector  should  as- 
certain damage  if  any 

for  false  imprisonment  ... 

What  constitutes  false  imprisonment 

When  wrong  person  is  arrested  under  decree,  decree- 
holder  is  not  liable  if  he  did  not  obtain  process 
fraudulently      .;. 

for  certain  wrong  to  a  deceased  person 

to  families  for  loss  by  death  caused  by  actionable 

wrong 

for  any  other  injury  to  person 

for  injuries  affecting  a  man's  limbs.. 


CXIX 

Sec.  or 
Art. 

Note. 

Page. 

ii 

d 

17 

ii 

h 

19 

V 

29 

12 

... 

302 

i 

XV 

xxii 

... 

6 
114 
192 

112 

... 

452 

112 

a 

452 

115 

e 

'  458 

115 

e 

458 

115 

d 

458 

Intention  on  wrong-doer's  part  is  unnecessary 

for  malicious  prosecution 

for  libel,  suit  for 

for  slander    .a 


xxiv 

... 

206 

2 

271 

2 

a 

271 

17 

... 

331 

17 

a 

331 

18 

... 

832 

18 

a 

332 

19 

... 

332 

19 

a 

332 

19 

b 

333 

20 

.« 

86a 

21 

.335 

22 

... 

336 

22 

a 

336 

22 

a- 

336 

23 

... 

338 

24 

33* 

25 

339 

Digitized  by  CjOO<?IC 


OXX  INDEX. 


'Bj£l!"r  Note.  Pa**. 


Compensation— continued 

Intention  for  loss  of  service  by  seduction  of  plaintiff's 

servant  or  daughter             ...                ...                ...  26  ...  840 

for  indacing  a  person  to  break  a  contract         ...  27  ...  342 

for  an  illegal,  irregular  or  exoessive  distress     ...  28  ...  843 

for    wrongful  leisure  of  moveables  under  legal 

prooess               ...                 ...                 ...                 ...  29  ...  844 

for  losing  or  injuring  goods              ...                 ...  80  ...  344 

for  delay  in  delivering  goods           ...                 ...  81  ...  344 

— —  for  malfeasance,  misfeasance,  nonfeasance  inde- 
pendent of  contract,  suit  for                 ...                 ...  86  ...  849 

for  obstructing  a  way  or  water-course               ...  87  ...  862 

for  diverting  a  water-course             ...                 ...  38  ...  352 

for  trespass  upon  immoveable  property,  suit  for  39  ...  858 

for   infringing    copy-right    or    other    exclusive 

privilege             ...                 ...                 ...                 ...  40  ...  354 

for  injury  caused  by  wrongful  injunction          ...  42  ...  856 

for  wrongfully  taking  or  detaining  specific  move- 
able property     ...                 ...                 ...                ...    48,49  ...      869,370 

*  for  land  drawn  by  usufructuary  mortgagee,  falls 

under  62             ...                ...                ...                ...  62  1  389 

for  breach  of  promise  to  do  anything  at  speci- 
fied time            ...                ...                ...                ...  65  ...  396 

for  breach  of  any  unregistered  Contract           ...  115  ...  457 

•  is  a  general  term  used  in  Indian  Contract  Act 


sec.  73  ...  ...  ...  115       a  457 

Suit  for  money  is  none  the  less  a  suit  for  ...  ...        115       a  457 

for  breach  of  registered  contract        ...  ...         116       ...  459 

Compensation  money- 
Compensation  money  drawn  out  of  the  Collectorate  by 
widow's  lessee  when  her  heir's  suit  against  him  for 
possession  was  pending  falls  under  118  ...  62       q  890 

Computation— 

In,  of  limitation  the  day  from  which  period  is  to  be 

reckoned  shall  be  excluded...  ...  ...  xii       ...  84 

— -  of  time  mentioned  in  instruments       ...  ...         xxv      ...  211 

—  as  to  bond  bearing  native  date  time  should   be 

calculated  according  to  Gregorian  Calendar  ...         xxv       a  211 

No  saving  of  cases  where  parties  intend  Lunar  months 

and  years  ...  ...  ...  ...        xxv       a  211 

of  limitation,  under  other  Acts  should  be  reckoned 

according  to  English  Calendar  in  the  absence  of 

contrary  provision  ...  ...  ...        xxv       b  211 

Condition- 
Bond  subject  to        ...  ...  ...  ...  68      ...  402 

Breach  of,  suit  for  possession  arising  out  of  ...        143       ...  568 

Conjugal  rights— 

Suit  for  restitution  of                 ...                 ...                ...  85  ...  848 

may  be  brought  within  2  years  of  any  demand  and 

refusal  and  not  necessarily  from  1st  refusal  ...  35  a  849 
sec.  240  of  C.  P.  C.  provides  for  execution  of  decree  ...  35  b  849 
under  the  Indian  Divorce  Act  does  not  fall  under  35.  35  C  840 

Consideration- 
Suit  for  money  paid  on  failing ...  ...  ...  97      ...  441 


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IKDBX. 


CXX1 


xxi 

xxvi 
13 


Bee.  or 
Art. 

Construction— 

C.  H.  "any  right  to  sue"  extends  to  all  applications 

invoking  aid  of  Court         ...  ...  ii 

"  the  period  of  limitation  prescribed"  includes  cases 

where  time  is  shortened  by  altering  starting  point.. 
"  Title  acquired"  in  sec.  3  does  not  include  right  to  sue. 
P.  C's.,  of  "  for  the  purpose  of  following  in  his  or  their 

hands  such  property" 
"  Specific  purpose"  means  purpose  specified  by  creator 

of  trust 

B.  H.  "  Prescribed  period"  in  seo.  20  of  IX  of  1871, 

means  period  prescribed  by  that  Act    ... 

C.  H.  "  Prescribed  period"  in  sec.  20  of  XV  of  1877 

prescribed  period  of  limitation  ... 

"  Only"  in  sec..  20  means  that  partner  signing  acknow- 
ledgment must  also  be  shown  to  have  had  authority 
to  do  so 

Illustrations  ought  not  to  control  the  plain  meaning  of 
the  section 

C.  H.,  M.  H.,  and  A.H.— of  Art.  13 

"  Suit"  used  in  the  1st  column  of  2nd  schedule  refers 

only  to  suits  under  the  0.  P.  0.  ...  

Contingency- 
Suit  on  promise   to  do   anything  on   happening   of 

specified  ...  ...  ...  ...  65 

Continuing  breach- 
Continuing  breach  and  wrongs  ...                ...  xxiii,  116 

Non-payment  of  yearly  fee  under  sale  deed  is  not  ...  xxiii 
Obstructing  flow  of  rain  water  through  gutter  is  con- 
tinuing nuisance                   ...                ...  ...  xxiii 

Case  where  breach  of  an  agreement  was  held  as  ...  xxiii 

Breach  of  covenant  of  quiet  possession  is  ...  ...  xxiii 

Wife  withholding  herself  from  husband  is  ...  ...  xxiii 

Continuing  damage- 
In  the  case  of,  fresh  damage  does  not  give  new  cause  of 

action  ...  ...  ...  ...       xxiii 

Continuing  injury- 
Diversion  of  water  is,  up  to  suit...  ...  ...      xxiii 

Interference  with  plaintiffs  right  to  flow  of  water,  and 
with  his  right  to  have  drainage  water  to  flow  in  the 
usual  course  is  ...  ...  ...  ...      xxiii 

Obstruction  to  flow  of  water  along  artificial  course  on 

defendants'  land  is 
Every  new  dropping  is  a  new  nuisance 

Contract- 


Note. 


Page. 


16 


ii 
ii 

e 
J 

18 
20 

X 

0 

51 

X 

e 

52 

xix 

f 

165 

XX 

0 

176 

t 

a 


186 

231 
319 

270 


398 


199,  457 
199 


200 
202 


O 

f 

i  203 


Suit  for  inducing  a  person  to  break 

Inveighling  or  hiring  another's   servant   is  injury  to 

master 
Defendant  persuading  3rd  person  to  break  is  actionable, 

if  injury  ensues  from  it 
Inducing  ryots  to  break, —  with  plaintiff  to  cultivate 

indigo 
When  a  party  to,  repudiates  it,  the  injured  party  may 

either  sue  at  once  or  wait  till  expiry  of  time 

P 


xxiii 

27 
27 
27 
27 
65 


f 
k 


a 
b 
c 
d 


204 
201 

201 

202 

205 

342 
342 
342 
843 

399 


Digitized  by 


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Me.  or 
Aft. 

Bote. 

ftw* 

IIS 

... 

4SS 

US 
114 
114 

f 
b 

454 

466 
456 

CXMU  IIDIX. 


Cotttract    conthraod. 

Bait  for  specific  perforiMuiee  of 

Bait  for  specific  performance  of,  of  sale  and  for  j 

■Km  falls  under  113 
Suit  for  rescission  of 
At  to  rescission,  sees.  86  to  SB*  Act  I  of  1877 

Contractor— 

Acknowledgment  by  one  joint  ...  ■»•  ••» 

Contribution— 

When  n  co-partner's  manager  borrowing  money  appKes 

it  to  family  debt,  right  to  sue  for,  dates  from  date 

of  application  of  money  to  joint-debt 
Suit  7  years  after  separation  for  a  moiety  of  debt  raised 

by    defentanf s   brother    when  joint,  held  barred 

though    debtor  had  admitted  it   within    8  years 

before  suit 
by  party  who  has  paid  the  whole  of  a  joint-decree, 

suit  f  or 
Suit  for,  when  money  was  realised  by  sale  of  plaintiff's 

property  was  doubted  to  fall  tinder  99  ... 
C.  H,  without  deciding  whether  100  or  ISO  applied,  held 

suit  was  not  barred 
Suit  for  GoTernment  Revenue  paid  by  leasee  dees  not 

fall  under  99     ... 
To  suit  for,  time  runs  from  date  of  excess  payment  to 

decree-holder     ... 
— —  by  co-trustee  against  a  deceased  trustee's  estate  ... 

Convorsuto— 

Conversion  of  specific  moveables  ...  ...  48      ...  869 

Copy— 

Of  decree,  sentence,  order,  judgment  or  award,  ex- 
clusion of  time  requisite  for  obtaining  ..»        xii        ...  84 

Copyright- 
Suit  for  infringing    ...  ~.  «..  ...  40      ...  854 

CostS- 
Suit  for,  by  attorney  or  vakil  ...  .„.        86        ...  ... 

Co-sharer— 

One,  cannot  alter  the  condition  of  joint  property  without 

hifl,  — 'soonsent...  ...  ...  ...       xzvi     2-e  239 

Sec  27  of  Act  IX  of  1871,  held  inapplicable  to  a  suit 

to  restrain  one,  from  appropriating  joint  property 

to  his  own  use  without  other 's  consent  ...       xxvi     2-d  239 

Co-surety— 

Suit  against  ...  ...  ...  ...        12        ...  416 

Co-trustee— 

Co-trustee's  suit  to  enforce  against  deceased  trustee's 

estate  claim  for  contribution  ...  ...        100      ...  444 

Court— 

Closing  of,  owing  to  rebellion  does  not  stop  limitation 

(English  Law)    ...  ...  ...  ...  ix        G  48 

returning  plaint  for  want  of  jurisdiction  cannot 

limit  a  time  for  its  presentation  to  proper  court    ...         xiv    '  r  106 


61 

b 

882 

99 

... 

442 

90 

a 

442 

99 

a 

442,443 

99 

b 

443 

99 

LOO 

e 

44 
444 

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INDEX.  CXXUl 

*%£r     Note.         Page. 

Credit- 
Fixed  period;of  credit  ...  ...  ...  58,  68,  66  ...       874,  875 

Creditor- 
Creditor  can  deduct  time  that  ooUeotioa  of  debt  was 

prohibited  by  injunction     ...  ...  ...  xv       C  115 

is  entitled  to  deduct  though  court  had  ordered  to 

sue  for  debt  that  might  become  barred  .  ...  xv       c  115 

can  deduct  time  that  bond  was  under  attachment  xv       d  116 

of    a    deceased,  governed    by    Succession  Act, 

cannot  be  defeated  by  concealment  of  debtor's  will.        zvii      m  128 
can  take  out  administration  under  sec  28  of 

Probate  Act  if  not  applied  for  by  person  entitled  to 

intestate's  estate  ...  ...  ..,        xvji      p  131 

of  an  insolvent  judgment-debtor  application  by..      174        ...  680 

174  applies  to  application  under  section  853  of  C.  P.  C. 

after  schedule  is  framed  „.  174        a  680 

Criminal  Appeal- 
Time  in  obtaining  copy  of  judgment  excluded  in  allowing         xii       h  88 
Time  taken  in  forwarding  prisoner's  application  for 

copy  and  transmitting  copy  to  jail  excluded        ...  xii        i  88 
presenting  to  officer  in  charge  of  jail  is  presenting 

inoourt  ...  ...  ...  ...  xii        i  88 

Criminal  Procedure  Code— 

Ch.  XI,  suit  for  proprty  comprised  in  order  under        ...  47       ...  865 

Magistrate's  finding  as  to  possession  under  sec  530 
of  Act  X  of  1872,  is  conclusive  ...  ...  47       b  366 

Article   47    can    only   apply   between    parties  whose 

possession  has  been    confirmed  by  Magistrate  j  it  » 

does  not  apply  in  favour  of  one  of  the  parties  who 
subsequently  ousts  by  suit  the  person  whose  pos- 
session was  so  confirmed     ...  ...  .,.  47        O  367 

Verbal  order  is  not  one  falling  within  47     ...  ...  47        d  868 

Magistrate's  order  attaching  and  placing  in  charge  of 
Sub-Magistrate,  property  until  Civil  Court  deter- 
mines right  does  not  fall  under.  ...  ...  47        f  868 

Warning  a  party  not  to  go  near  a  bathing  place,  is  not 

attachment  under  ...  ...  ...  47        f      368,369 

•  Limitation  runs  from  the  date  of  Magistrate's  order  and 
not  from  Sessions  Court's  refusing  to  refer  the 
matter  to  the  High  Court   ... 

Article  47  refers  to  moveable  and  immoveable  property.. 

Appeals  under,  from  sentence  of  death 

Appeal  to  any  Court  other  than  a  High  Court 

Time  taken  to  obtain  copy  excluded 

Presenting  appeal  to  officer  in  charge  of  jail  sufficient... 

Appeal  to  a  High  Court  except  in  oases  falling  under 
150  A  157 

Appeal  from  judgment  of  acquittal  ...  M. 

Crops- 
Standing,  are  immoveable  property 
Suit  for  compensation  for,  wrongfully  removed,  falls 

under  36 
Suit  for  standing,  carried  away  under  an  ejectment 

decree  since  reversed  does  not  fall  under  36,  but 

under  100  ...  ...  ...  ...86,109     ©,  *    350,450 


47 

g 

369 

47 

g 

869 

150 

604 

154 

... 

607 

154 

b 

608 

154 

b 

608 

155 

608 

167 

•• 

609 

36 

b 

350 

36 

b 

850 

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CXX1T  INDEX. 


8JStJr     Note-         **•«•• 


Crop* — continued. 

Carrying  away,  preceded  by  trespass  on  land,  may  fall 

under  89  ...  ...  ...  ...  86       d  360 

Custom— 

Suit  by  proprietor  of  a  mohella  for  £  of  the  value  of  the 

house  sold  according  to  ancient,  falls  under  120     ...  62       p  890 

Suit  for  costs  of  a  widow's  re-marriage  as  per,  of  jats  of 

Ajmeer  falls  under  115        ...  ...  ...         115       O  459 

Damage— 

Prospective,  held  recoverable    ...  ...  ...       xxiv       d  208 

resulting  from  one  cause  of  action  must  be  re- 
covered once  for  all  ...  ...  ...       xxiv       d     208,  209 

Though  the  rule  that  plaintiff  should  recover  by  one 
suit  past  and  future,  may  not  insure  perfect  justice, 
it  is  a  wholesome  principle...  ...  ...       xxiv       d  209 

Effect  of  awarding  prospective ...  ...  ...       xxiv       g  210 

To  suit  for,  for  wrongful  detention  of  grain  by  Magis- 
trate on  defendant's  complaint,  time  runs  from  date 
of  complaint  or  attachment  ...  ...  86        a  851 

Suit  for,  for  injury  to  moveable  property  while  under 

attachment  falls  under  42  ...  ...  ...  42       b  856 

Death- 

Bffect  of,  before  right  to  sue  aocrues          ...  ...       xvii      ...              122 

of  person  who,  if  living,  would  have  a  right  to 

sue  or  make  application      ...                ...  ...        xvii      ...              122 

of  person  against  whom,  if  living,  right  to  sue  or 

make  application  would  have  accrued  ...  ...        xvii      ...              122 

•  of  original  plaintiff  or  defendant     ...  ...        xxii      ...              192 


Suit  against  person  whose  wrongful  act  causes  the,  of 

another  person  ...  ...  ...  ...  21        a  885 

Debt- 

in  sections  20, 21  of  IX  of  1871 ,  does  not  include 

judgment  ...  ...        xix      2-1  170 

Debtor— 

might  renounce  the  benefit  of  limitation  and  • 

promise  to  pay  barred  debts  ...  ...  xix       b  153 

This  principle  prevailed  even  before  the  Contract  Act...  xix       b  153 

Decision— 

Erroneous,  that  an  application  is  not  barred,  is  not  a 

nullity  until  set  aside  ...  ...  ...  iv       g  28 

in  any  proceeding  other  than  a  suit,  to  set  aside  18      ...  819 

To  decide  a  suit  falls  within  18,  the  test  is  whether 

summary  decision  could  be  set  up  as  bar  to  suit  ...  13  b  890 
under  sec.  9  of  Specific  Relief  Act  does  not  bar 

suit  on  title       ...  ...  ...  ...  18        o  321 

Declaration- 
Suit  for,  is  substantially  a  suit  for  possession  ...      144        o  663 
Decree— 

is  virtually  altered  by  order  under  section  210 

directing  payment  by  instalment         ...  ...        179        m  663 

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INDEX. 

Decree— continued. 

C.  H.  Court  registering  parties'  agreement  for  payment 
by  instalments  and  striking  oot  proceedings  amount 
to  a  decree  passed  on  that  date 

Order  rejecting  appeal  memo,  is  a,  appealable 

Decree-holder— 


—  withdrawing  application  is  not  entitled  to  the 
benefit  of  section  14 
•  is  not  affected  by  injunction  staying  execution 


pending  appeal . 
-  includes  one 


entitled    to    ratable    distribution 


under  sec.  295 
Default- 
Application  to  set  aside  dismissed  by 
Defect  of  jurisdiction— 

would  not  include  plaintiffs  neglect 

Inability  of  Court  must  be  something  over  which  no 
one  has  control... 

Defendant— 


—  may  execute  a  partition  decree  avoiding  distinct 
share  to  each  share  holder  ... 
•  urging  in  former  suit  a  set  off  comes  under  clai- 


mant, Ac.,  engaged  in  prosecuting  suit  in  sec.  14  of 
Act  XIV  of  1869 

Such  claim  should  have  been  rejected  for  want  of  juris- 
diction 

Application  by  plaintiff  to  bring  in  representative  of  the 
deceased 


Delay- 


•  in  delivering  goods,  suit  against  carrier  for 


Delivery— 

—  of  goods,  time  for 
Demand- 
Suit  for  money  payable  on 
English  Law  on  debt  payable  on 
must  be  made  before  promise  can  be  enforced 

when  promise  is  made  in  consideration  of  some  col* 

lateral  thing  being  done  on  demand    ... 
Case  where,  was  held  a  condition  precedent  to  enforce 

an  agreement    ... 
is  necessary  where  money  is  repayable  8  months 

after  demand     ... 
Admission  by  payee  of  payment  of  interest  is  evidence 

of     ... 

Depositary- 
Suit  against 

Collector  receiving  money  to  meet  uncertain  demands 
on  account  of  revenue,  is  not 

Deposits- 
Suit  for,  payable  on  demand 
Provision  for,  payable  on  demand  is  new    ... 


Sec.  or 
Art. 


179 
xiv 


Note. 


s 

f 


xiv  2-C 

xv  i 

166  ... 

168  ... 

xiv  g 

xiv  g 

179  k 


cxxv 

Page. 


668 
27 


109 
119 
616 

612 

99 
99 

649 


xiv 

a 

97 

xiv 

b 

97 

171-B 

... 

621 

81 

... 

804 

51 

... 

872 

59 
59 

b 

877 

878 

69 

d 

878 

59 

e 

879 

69 

f 

879 

59 

f 

879 

145 

... 

686 

145 

b 

686 

60 
60 

a 

880 
880 

Digitized  by  VjC 

►ogle 

oxzn  INDEX. 


8JJ£r    Note.        Ps*a 


Deposit* — continued. 

When  money  deposited  is  withdrawable  at  depositor's 

pleasure,  suit  has  8  years  from  date  of  ...  00       b  880 

" "  refers  to  cases  where  money  is  lodged  with 

another  under  trust  ...  ...  ...  60        O  881 

Suit  for  money  deposited  and  interest  held  to  be  in  time 

as  account  was  a  running  one  and  interest  was  ore* 

dited  yearly      ...  ...  ...  ...  60        ft  881 

Money  deposited  in  a  sealed  bag  is  different  ...  60        t  882 

Suit  for  return  of,  made  as  returnable  on  a  certain 

event  falls  under  62  ...  ...  62       b  886 

Recoverable  in  specie  falls  under  145  ...  ...        146       a  686 

of  money  or  jewel  by  defendant  to  stay  sale 

pending  appeal,  decree-holder's  right  thereto  is  not 

affected  even  after  decree  becomes  barred  ...        179       m.  660 

Devises— 

Suit  by,  for  possession  of  immoveable  property  ...        140      ...  686 

Diligence — {See  wider  Fraud.) 
Dilution— 

Suit  for,  has  12  years  from  adverse  possession  first 
taken  of  land  reforming  on  the  original  site  whether 
or  not  it  is  capable  of  occupation  on  the  date  of 
suit  ...  ...  ...  ...  ...        144       x  669 

Diluviated  lands  reforming  on  their  original  side  remain 
the  property  of  the  original  owner;  doctrine  in 
Lopeztf  case 

English  Law  on  the  subject 

The  principle  is  founded  on  universal  law  and  justice... 

Doctrine  in  Lopezs'  case  inapplicable  when  title   has 

been  acquired  by  adverse  possession   ...  ...        144     2-b  672 

Submergence  after,  are  to  be  presumed  until  contrary 

is  shown  ...  ...  ...  ...  ... 

By  "  diluviated,"  plaintiff  says  the  Ganges  which  swal- 
lowed property  has  again  yielded  it  up 

Accretion  by  alluvion  belongs  to  the  owner  of  the  ad- 
joining land 

Converse  of  that  rule  was  applied  by  English  Courts, 
but  to  what  extent  that  rule  would  be  carried  in 
this  country  is  not  determined  ...  

Disability- 
Legal,  is "  minority"  or  "insanity"  or  idiocy              ...  vii  ...  41 

double  and  successive    .»                ...                ...  vii  ...  41 

Death  of  person  under               ...                ...                ...  vii  ...  41 

— of  representatives           ...                ...                ...  vii  ...  42 

Clauses  of,  do  not  extend  to  pre-emption  suits              ...  vii  ...  42 

Personal,  in  sec.  7,  has  reference  to  inability  in  sec.  9...  vii  a  428 
Benefits  of,   applies  also  to  the  period  during  which 

disability  continues             ...                ...                ...  xil  b  48 

of  one  joint-creditor  does  not  suspend  limitation 

when  another  can  give  discharge        ...                ...  vii  ...  46 

A  Hindu  suing   for   money  lent  during   minority  by 

manager  is  not  entitled  to  the  benefit  of  sec.  8     ...  viii  A  46 
Minor  plaintiffs  brother  incompetent  to  give  discharge 

when  loan-bond  stood  in  plaintiff's  name               ...  viii  h  46 


144 

y 

569 

144 

s* 

570 

144 

2-a 

570 

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INDEX. 


OttVll 


Disability — continued. 

or  inability  in  see.  9  must  be  held  to  be  personal 

inability  affecting  plaintiff  himself       »*k 
do  not  affect  or  qualify  sec.  18 


Discontinuance— 

of  easement 

*-  of  possession 

Dishonesty- 
Dishonesty  in  obtaining  possession  will  not  prevent  the 
possessor  from  availing  himself  of  the  Law  of  Limi- 
tations 

Dismissal— 

By  default,  application  to  set  aside 
Dispossession- 
Carrying  away  crops  is  not,  when  Kaboolut  is  for  pay- 
ment of  rent      ... 
Partial,  of  a  house  is  ...  ...  ... 

and  discontinuance  apply  only  where  owner  is 

deprived  of  dominion  overland  or  receipt  of  produce. 
Owner  permitting  another  is  not  discontinuance  ..* 

Improperly  receiving  rent  due  to  plaintiff  amounts  to... 

Distress- 
Suit  for  illegal,  irregular,  or  excessive 
Suit  for  money  paid  in  excess  of  what  was  shtee  fixed 
in  appeal  is  governed  by  62 

District  Judge—  (See  wider  0.  P.  C.) 

Should  take  possession  of  estate  of  a  deceased  who  is 
not  a  Hindu,  Budhist,  Mahomedan  or  person  exemp- 
ted from  Succession  Act    ... 

is  in  no  sense  representative,  but  should  hand  it 

over 

had  no  power  to  grant  probate,  ic,  to  the  estate 

of  a  deceased  native  until  before  Aot  Y  of  1881, 
which  can  be  extended  to  the  Mofuesil 

Divorce  Act— 

This  Act  not  applicable  to  suit  under 
Document- 
Effect  of  fraudulently  concealing 

Case  where,  was  held  not  necessary  and  not  fraudu- 
lently concealed  within  sec.  9  of  the  Act  of  1859 
Gases  in  which,  would  be  necessary  ... 

Dower- 
Suit  by  Mahomedan  for  exigible 
Exigible,  implies  that  it  may,  not  that  ft  must,  be 

exacted 
As  to  prompt,  time  does  not   begin  to  run    before 

demand  or  dissolution  of  marriage 
Unambiguous  demand  by  wife  and  refusal  by  husband 

gives  cause  of  action 
Leave  to  sue  as  pauper  does  not  amount  to  demand  by 

action  until  court's  permission  is  obtained 


Sec.  or 

Art. 

Note. 

Page. 

ix 

ix 

a 
a 

47 
47 

xxvi 
142 

... 

215 

648 

xviii 

0 

144 

168 

... 

612 

8 
8 

b 

0 

273 

274 

142 
142 
142 

a 
b 
d 

549 
549 
549 

28 

... 

343 

*28 

a 

843 

xvii 

1 

127 

xvii 

1 

127 

xvii 

q 

131 

i 

... 

5 

xviii 

... 

186 

xviii 
xviii 

q 

145 
146 

108 

... 

444 

108 

a 

444 

108 

a 

445 

108 

b 

445 

108 

b 

152 

Digitized  by  VJ1 

30Qk 

exxvm  1  h  d  ■  i. 


"SSiT    No*e.        F*e. 


DOWtf      OOttttrtUed. 

8nit  for  deferred      ...  ...  ...  ...         104       ...  446 

Limitation  runs  for  deferred,  from  dissolution  of  marri- 
age in  the  absence  of  a  oontract  to  the  contrary   ...         104       a  446 

Terms  to  which  payment  to  be  deferred,  may  be  fixed 

by  contract        ...  ...  ...  ...        104       a  446 

Wife's  heirs'  claim  for  deferred,  is  money  claim  founded 

on  husband's  contract         ...  ...  ...        104       b  446 

Wife  has    no  lien    on  her  husband's    properties  for 

deferred  ...  ...  ...  ...        104       b  446 

Drawer—  (8et  Bill  of  Emchange,  Accommodation  Bill.) 


Interpretation  of,  in  Act  XV  of  1877,  is  repealed  by  Act 

V  of  1882  ...  ...  ...  ...  iii        a  21 

— —  is  defined  for  Madras,  Coorg  and  Central  Pro- 
vinces by  section  4  of  Act  V  of  1882  ...  ...  iii,  xxvi       a        21, 213 

in  XV  of  1877  has  a  much  more  extensive  meaning 

than  it  bears  in  English  Law  ...  ...  iii       b  22 

■  includes  prescriptive  right  of  fishery  ...  iii        e  23 


Acquisition  of  right  to  ...  ...  ...       xxvi      ...  213 

Twenty  years'  enjoyment  of  way  or  water-course  or 

any  water,  use  of  light  or  air  gives  absolute  right...       xxvi      ...  214 

M.  H.  and  C.  H.  Before  IX  of  1871,  12  years'  enjoy- 
ment oonf  erred  a  right  to  ...  ...  ...       xxvi       a      215,216 

Bombay  Regulation  V  of  1847  required  80  years'  enjoy- 
ment in  the  Mofussil  ...  ...  ...       xxvi       a  216 

Twenty  years'  enjoyment  was  required  in  the  Presi- 
dency Towns     ...  ...  ...  ...       xxvi       a  216 

Act  IX  of  1871  fixed  20  years    ...  ...  ...       xxvi       a  216 

Twenty  years'  appropriation  of  light  and  air  required  to 

prevent  neighbour  from  blocking  up  the  aperture...       xxvi       b  216 

C.   H.  Under  the  Indian  Act  it  is  not  necessary  that 

user  should  be  known  to  servient-owner  ...       xxvi        i      220,221 

Difference  between  acquisition  of  right  under  the  Indian 

Act  and  English  Prescription  Act...  ...       xxvi        i  222 

C.  H.  Actual  user  within  2  years  next  before  suit  was 

necessary  ...  ...  ...  ...       xxvi        j      222,223 

N.-W.  P.  H.  C.  non-user  even  for  more  than  2  years 

will  not  destroy  right  ...  ...  ...       xxvi        j  223 

The  conflict  arose  from  difficulty  of  reconciling  illustra- 
tion (b),  with  last  clause  of  the  section  ...       xxvi       j  223 

Garth  0.  J.  User  within  2  years  before  suit  not  neces- 
sary... ...  ...  ...  ...       xxvi        j  223 

Bight  to  pathway  over  plaintiff's  land  created  when 

both  belonged  to  one  person  is  an,  of  necessity     ...       xxvi       k  228 

apparent  and  continuous  would  raise  a  presump- 
tion that  it  passed  with  defendant's  tenement       ...       xxvi       k      223,224 

Case  where  discontinuance  of  user  of  land  held  to  have 
the  effect  of  preventing  acquisition  of  statutory 
right  ...  ...  ...  ...       xxvi        1  224 

Mere  permission  to  erect  a  dam  held  not  to  amount  to 

a  grant  ...  ...  ...  ...       xxvi       p  227 

A  man  licensing  an  act  may  seek  for  relief  if  unexpected 

injurious  consequences  result  ...  ...       xxvi        p  228 

may  be  created  by  a  oontract  ...  ...       xxvi       q  228 


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I  N  D  I  X. 


clxi* 


Easement — oontinoed. 

Oase  where  agreement  wia  held  not  revocable  at 
pleasure 

Superior  Riparian  proprietor's  right  to  drain  Water  was 
not,  withiu  Act  IX  of  1871 

Lower  Riparian  proprietor  blocking  np  stream  could 
justify  it  only  if  be  had  acquired,  to  do  it 

Right  to,  goes  with  property  whether  sold  by  owner  or 
court 

Snch  right  to  go  with  property  must  have  existed  at 
the  time  of  sale... 

B.  H.  Right  to,  could  only  be  acquired  either  by  con- 
tract or  prescription 

Every  trifling  excess  in  the  exercise  of  a  servitude 
would  not  justify  pulling  down  building 

Mere  permissive  possession  cannot  create  a  right  of    ... 

Right  to  drain  surplus  tank  water  over  another's  land... 

Right  to  burial  ground 

Upon  severance  tenements,  of  necessity  or  continuous, 
will  pass  by  implication  but,  u&ed  from  time  to 
time  will  pass  only  by  owner's  express  language  ... 

Plaintiff  by  opening  channel  through  Government  waste 
land  and  then  taking  Government  lease  acquires 
right  to  the  use  of  flowing  water  and  the  area  occu- 
pied by  the  channel  and  its  bed 

under  section  26  embraces  a  profit  a  prendre  ... 

Can,  be  acquired  against  Government  or  Sovereign  by 
statutory  prescription 

Scotland,  G.  J.  Arbitrary  power  claimed  for  Government 
was  not  maintainable 

English  case  holding  that  grant  from  the  Grown  may  be 
presumed 

Enactments- 
Suit  for  doing  or  omitting  to  do  acts  m  pursuance  of 

Endowment-* 

No  distinction  between  religious,  to  a  household  idol 
and  to  one  for  benefit  of  general  public 

Enforcement— 

of  forged  instrument  ... 

Enjoyment— 

Long,  was  held  to  refer  to  legal  origin 

Equitable  right- 
Suit  for  sale  proceeds  which  plaintiff  has  an,  to  follow 

in  defendant's  hands  falls  under  62 
So  is  a  suit  against  trustee  for  possession  of  share  and 

for  account  and  profits 

Estoppel— 

P.  G.  Application  for  postponement  of  sale  occasions  no 
Evidence— 

Para.  2  of  section  19  refers  to  oral,  but  not  to  secondary. 
To  exclude  secondary,  of  lost  acknowledgment  would 
preduoe  serious  consequence 

Q 


See.  or 
Art. 

Note. 

Page. 

xxvi 

* 

228 

xx  vi 

s 

286 

xxvi 

B 

286 

xx  vi 

2-f 

289 

xxvi 

2-0 

289 

xxvi 

2-h 

240 

xxvi 
xxvi 
xxvi 
xxvi 

H 

2-k 
2-k 
2-k 

241 
241 
242 
242 

xxvi   2-m 


244 


xxvi    2-m  248 

xxvi     2-0  244  245  A 

247 

xxvi     2-W  258 


xxvi    2-W 
xxvi     2-T 

2       ... 


258 
254 

271 


134 

0 

520 

98 

488 

xxvi 

X 

284 

62 

n 

890 

62 

0 

890 

179  3-q 


676 


Xix        d 

154 

Xix        d 

154 

Digitized  by  VjO 

ode 

CXXZ  INDEX. 


Evidence — continued. 

Oral,  Ac.  in  para.  2,  section  19,  do  not  override  general 

rnle  as  to  secondary  ...  ...  ...  xix 

English  case  on  parole,  to  prove  date  of  written  acknow- 
ledgment and  contents  of  lost  acknowledgment     ...  xix 

Secondary,  may   be  given  of  an   acknowledgment  lost 

while  in  court  ...  ...  ...     xzviii 

Admission  by  payee  of  payment  of  interest  is,  of  de- 
mand ...  ...  ...  ...  59 

Excess  payment - 

Suit  for,  over  what  was  reduced  in  appeal  falls  under  62  62 

Suit  for,  made  by  mistake  ...  ...  ...  62 

Suit  to  recover,   made  on  account  of  road  cess  falls 

under  96  ...  ...  ...  ...  96 

Exclusion- 
Exclusion  of  day  that  right  to  sue  accrues  ...  ...  xii 

of  day  that  judgment  complained  of  was  pro- 
nounced 

of  time  requisite  for  obtaining  copy  of  jndg- 


^rt?1"   Nole*  ***** 


ment  decree  or  award  appealed  against  or  sought 
to  be  reviewed    ... 

of  the  day  that  former  application  was  made 

was  allowed  even  under  IX  of  1887 

of  time  that  review   was  pending  cannot  be 

claimed  as  a  matter  of  right 

of  such  time  allowed  by  D.  J.  was  not  inter- 
fered with  by  H.  C. 

H., of  time  between  judgment  and  signing  decree 

allowed 

of  time  occupied  in  ascertaining  number  of  folios 

for  copy  not  allowable  except  when  delay  is  unavoid- 
able ...  ...  ...  ...  xii       d  86 

■  of  such  time  allowable  if  papers  were  not  pro- 


d 

155 

e 

155 

g 

268 

£ 

379 

i 

tn 

387 
389 

c 

440 

84 

84 

84 

a 

84 

b 

85 

b 

85 

c 

86 

xiii 

n 

94 

XUl 

0 

94 

xiii 

0 

95 

xiv 

95 

XIV 

... 

96 

XIV 

96 

curable  or  mistake  occurred  in  calculating  number 

of  sheets  ...  ...  ...  ...  xii       d  86 

Creditor  cannot  exclude  time   between   debtor's  death 

beyond  seas  and  administration  under  Indian  Act... 
Under*  English  Act,  he  can 
He  can  also  deduct  time  that  legal  representative  is 

absent  beyond  sea 
of  proceeding  bond-fide  in   court   without  juris- 
diction 

in  case  of  order  under  0.  P.  C.  section  20 

in  case  of  application 

of  time  that  defendant  urged  plea  of  set  off  in 

former  Buit         ...  ...  ...  ...         xiv        a  97 

will  be  allowed  only  when  former  proceedings  were 

prosecuted  by  plaintiff  or  person  under  whom  he 

claims 
will  not  be  allowed  if  former   suit  was  against 

wrong  party 
will  not  be  allowed  if  1st  suit  was  against  one  of 

the  def endan  ts  in  the  second 

of  time  of  suit  which  was  non-suited  disallowed... 

of  time  under  Act  XIV  of  1859  was  allowed  in  case 

of  inability  to  serve  summons 


xiv 

C 

98 

xiv 

d 

98 

xiv 

e 

98 

XIV 

g 

99 

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XIV 

xiv  • 

j 

100 
100 

xiv 

J 

101 

xiv 

1 

101 

INDEX.  CXM1 

8Art.°P  Note*  P**e' 

Exoliudon— continued. 

oan  be  allowed  in  case  of  accidental  circumstances 

beyond  control  preventing  success     ...  ...         xiv        h  100 

of  time  of  rait  which  1st  court  rejected  and  of  ap- 
peal against  it  under  Act  XIV  ...  ...         xiv         i  100 

of  time  allowed  whether  dismissal  for  want  of 

jurisdiction  is  right  or  wrong 

of  time  that  special  appeal  was  pending  allowed  . . . 

of  time  not  disallowed   by  fact  that  1st  suit  was 

pending  when  2nd  suit  was  brought     ... 

—  of  time  between  original  decree  and  institution  of 
appeal  allowed  under  Act  XIV 

A.  H.  Declined,  of  a  suit  rejected  in  appeal  for  defect  of 

parties  ...  ...  ...  ...         xiv      m  102 

of  time  of  suit  wrongly  prosecuted  in   Revenue 

Court  allowed    ...  ...  ...  ...         xiv      in  102 

— —  of  time  of  a  partition  suit  rejected|for  want  of  juris- 
diction as  to  real  property,  and  non-accrual  of  cause 
of  action  as  to  moveable  property,  allowed  by  P.  C.         xiv       p  108 

of  time  can  be  allowed  only  when  cause  of  action 

is  the  same        ...  ...  ...  ...         xiv       q      104,106 

of  time  not  allowed  in  case  of  consolidated  suit 

after  dismissal  of  former  separate  suits  ...         xiv       q      104,  106 

of  time  limited  by  a  court  for  presentation  to  pro- 
per court  disallowed  ...  ...  ...         xiv       r  106 

of  time  that  plaintiff  waited  to  get  back  his  plaint 

.    disallowed  ...  ...  ...  ...         xiv       r  106 

of  time  under  section  15  of  A.ct  IX  of  1871  held  in- 
applicable to  a  suit  under  Act  XVIII  of  1873        ...         xiv        n  106 

of  time  under  section  14  of  Act  XIV  of  1859  held 

inapplicable  to  suits  under  section  42   of  Bombay 

Act  VII  of  1867  and  Act  XIV  of  1863...  ...        xiv    t,  U  106 

A.  H.,  of  time  of  a  suit  rejeoted  for  misjoinder  disallow- 

ed    ...  ...  ...  ...  ...         xiv       v      106,107 

C.  H.  dissenting  allowed  ...  ...  ...         xiv      w  107 

C.  H.  allowed,  of  time  of  a  suit  brought  against  one 

who  had  died  before  suit  under  the  Act  of  1859    . . .         xiv      W  107 

of  time  of  suit  against  wrong  person  as  represen- 
tative disallowed  ...  ...  ...         xiv      W  107 

*—  of  time  of  a  suit  rejected  for  non-production  of 

Collector's  certificate  under  Pensions'  Act  allowed...  xiv        x  108 

C.  H.  declined  to  deduct  such  time  in  April  1863  ...  xiv        y  108 

of  time  that  a  plaint  was  in  a  wrong  court  allowed.         xiv        z      108,  109 

of  time  that  plaint  was  on  the  file  of  a  court  until 

returned  allowed  ...  ...  ...         xiv      2-a  109 

of  time  of  suit  rejected  as  brought  by  manager  not 

allowed  ...  ...  ...  ...         xiv      2-b  109 

of  time  of  suit  rejected  for  limitation  disallowed  ...         xiv      2-d  110 

of  time  of  suit  rejected  for  not  setting  out  bounda- 
ries disallowed  under  the  Act  of  1859  ...  ...  xiv     2-d  110 

—  of  time  that  plaint  was  on  file  until  High  Court 

refused  sanction  to  entertain  it  allowed                  . . .  xiv  2-6  110 
C.  H.  allowed,  of  time  under  section  14  to  a  suit  under 

the  Indian  Registration  Act                  ...                 ...  xiv  2-f  HI 

B.  H.  allowed,  of  time  to  suits  under  the  Municipal  Act  xiv  2-g  HI 

of  time  that  application  for  a  certificate  to  execute 

decree  made  to  a  conciliator  disallowed  ...         xiv     2-h  112 


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XSxohution— continued. 


See.  or 
Art. 

Note. 

*■#■■ 

X*t 
xiv 

2-i 

us 

113 

xiT 

2-k 

111 

XT 

... 

114 

XV 

% 

114 

XT 

b 

US 

XT 

c 

115 

XT 
XT 

f 

f 

116 
117 

XT 
XT 

* 

117 

118 

of  time  occupied  ia  obtaining  conciliator's   certifi- 
cate to  sue,  was  allowed      ...  ... 

of  time  of  a  suit  instituted  in  a  Foreign  Court 

A.  H.  refused,  of  time  that  redemption   suit  was  pend- 

ing in  which  plaintiffs  claimed  to  deduct  money  due 

by  defendant  on  account     ... 
—of  time  during  which  commencement  of  suit  was 

stayed  by  injunction  or  order  allowed 

of  time  that  execution  was  stayed  by  injunotion  not 

allowed 
G.  P.  0.  of  1882,  allows,  of  time  that  a  Civil  Court  is 

prohibited    from   executing  a  decree  referred   to 

Collector  for  execution 
of  time  that  injunction    prohibited  collection  of 

debts  allowed    ... 

B.  H.,  of  time  that  a  decree  was  under  attachment 

cannot  be  deducted 

C.  H.  held  otherwise 

M.  H.  disallowed,  of  time  that  judgment-debtor  prose- 
cuted another  suit  to  remove  obstruction  j  under  Act 
IX  of  1871 

|f.  H.  observed  that  XIV  of  1859,  allowed  such  deduction 
of  time  that  judgment-debtor  attempts  to  set  aside 
execution  sale   ...  ...  ...  ...         xvi      ...  121 

ExelUfJUre  Privilege—  (See  Privilege.) 

Execution  of  Decree  or  Order— 

Comes  under  adjective  law  ...  ...  i        a  5 

What  limitation  governs  applications  for,  made  after  1st 

April,  1873,  and  after  IX  of  1871  was  repealed,  m 

suits  filed  before  that  date  ...  ...  ...  i        h.  9 

C.  H.  and  B.  H.  Act  IX  of  1871  governed  applications 

made  during  its  operation  ...  ...  ...  i        i  10 

P.  C.  Aot  XIV  of  1859  governed  such,  made  in  suite 

commenced  before  April,  1878,  ...  i        J  11 

C.  H.  followed  P.  C.  in  July,  1882,  in  case  of  application 

of  1881  to  execute  a  decree  of  January,  1877    ...  i       k  11 

C.  H.  doubted  the  correctness  of  its  own  decision         ...  i        1  12 

C.  H.  held  that  the  Aot  of  1877  applied  to  all  appli- 
cations made  after  its  operation  ...  i      at  12 
M.  H.  The  law  prevailing  at  the  time  of  the  applica- 
tion governs  it   ...                ...                 ...                ...             in  13 

B.  H.  applied  XIV  of  1859  to  application  of  September, 

1878,  for  execution  of  decree  of  July,  1872  ...  i       o  13 

Provision  of  sec.  18  as  to  defendant's    absence  from 

British  India  does  not  apply  to  ...  ...         xin       *  89 

Application  for,  stayed  by  injunotion  pending  disposal 

of  suit  or  appeal  is  treated  aa  revival  of  former 

proceedings       ...  ...  ...  ...  xv        %  114 

Application  for  sale  of  attached  property  after  disposal 

of  claims  and  suits  treated  as  renewal  of  former 

application  (XIV  of  1859)  ...  ...  ...  XT       fc  118 

B.  H.  after  dissolution   of  injunotion  issued  pending 

disposal,  of  suit  treated  as  revival 
Snch  case  was  held  to  fall  under  178 
A.  H.  followed  the  above  decision  in  July,  1883 


*▼ 

| 

118 

XV 

1 

119 

XT 

i 

119 

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I  K  I>  I  X.  CZZZ111 

B5rt.or     Note.         Page. 

Execution  of  Decree  or  Order— continued. 

of  any  Civil  Court  unprovided  for  by  number  180  or 

C.  P.  C.  section  230  ...  ...  ...         179       ...  642 

As  to  what  are  steps  in  aid  of  execution,   decisions 

conflict  ...  ....  ...         179        a  648 

Date  of  applying  means  date  of  presentation  ...         179       b  644 

M.  H.  Application  made  during  pendency  of  proceeding 

gives  a  date  from  which  to  calculate  time  . . .         179        b  644 

C.  H.  and  M.  H.  Court  might  consider  whether  decree 

was  barred  on  the  date  of  any  prior  application    ...         179        C  644 

P.  C.  Order  right  or  wrong  implying  decision  on  limi- 
tation is  binding  until  reversed  ...  ...         179        d  646 

B.  H.  Court's  decision  on  limitation  has  the  effect  of  res 

judicata  ...  ...  ...  ...         179        f  646 

C.  H.  erroneous  order  is  not  a  nullity         ...  ...         179       g  647 

of  High  Court's  order  for  costs  held  to  fall  under 

167  of  IX  of  1871  ...  ...  ...        179        1  649 

First  application  for  execution  without  specification  of 

property  to  be  attached,  and  subsequent  application 

for  time  to  put  in  a  list  were  treated  as  one  dating 

from  1st  ...  ...  ...  ...        179       p  651 

against  one  of  several  legal  representatives  of  a 

debtor  takes  effect  against  all  ...  ...         179        q  652 

Bight  to  execution  is  not  affected  by  case  being  struck 

off    ...  ...  ...  ...  ...         179        t  654 

Under  Aot  IX  of  1871,  limitation  was  computed  from 

date  of  issuing  notice  to  debtor  ...  ...         179       v  655 

Under  IX  of  1871,  application  of  an  incidental  kind, 

issuing  a  warrant  or  attachment  did  not  give  fresh 

starting  point     ...  ...  ...  ...         179       w  656 

B.  H.  167  of  Aot  IX  of  1871  is  wide  enough  to  include 

any  application  to  enforce  or  keep  in  force  decree 

or  order  ...  ...  ...  ...         179       X  666 

Creditor's  heir's  application  for  substitution  of  his  name 

and  for  recovery  of  debt  is  one  within  167  of  Aot 

IX  of  1871         ...  ...  ...  ...        179       y  657 

Proceedings  on  application  by  agent  other  than  the 

one  in  the  decree  not  invalid  ...  ...         179        s  657 

Insufficiently  stamped  application  keeps  decree  alive  ...        179     2-€fc  658 

Bo  does  one  returned  for  amendment  but  rejected  for 

absence  ...  ...  ...        179     2-b  658 

C.  H.  one  of  three   parties  to  partition  decree  taking 

out  execution  falls  under  clause  8         ...  ...        179      2-f  660" 

A.  H.  Application  by  one  of  two  joint  decree-holders  for    . 

part  execution,  will  not  keep  decree  alive  ...        179     %-C  658 

A.  H.  By  two  of  three  decree-holders  for  part  execution 

kept  decree  alive  ...  ...  ...        179     2-d  659 

M.  H.  By  one  of  four  decree-holders  for  execution  of  so 

much  as  he  feels  himself  entitled  to,  keeps  decree 

alive  ...  ...  ...  ...        179     2-e  669 

Moving  court  to  order  Collector  to  alter  registry  cannot, 

keep  decree  alive  ...  ...  ...         179     2-g  660 

Application  for  return  of  decree  to  the  court  that  sent 

it  is  within  179...  ,..  ...  ...         179     2-fc  660 

Application  not  in  strict  accordance  with  sec.  237  held 

to  be  one  under  sec.  285  ...  ...         179      2-i  661 

Judgment  prohibiting  execution  till  expiry  of  4  months 

foils  under  178  ...  ...  ...  ...        179      2-J  661 


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UJCKXIV  1NDSX. 


Sec.  or 
Art. 


Note.  Page. 


Execution  of  Decree  or  Order— continued. 

C+  H*  Time  rune  from  disposal  of  defendant's  appeal 
against  order  refusing  to  set  aside  em  parte 
decrne  ...  ...  ...  ...         179      2-r  666 

M.  It  Time  riinH  from  dismissal  of  defendants'  appeal 
though  | it nin tiff  had  partially  executed  before  ap- 
peal ...  ...  ...         179      2-fl  666 

A     H.    Time  for  execution  against  one  of  two  defen- 
dants who    has  not    appealed   runs    from  decree 
date...  ...  ...  ...  ...         179     2-U  667 

Step  not  lit  aid  of  Execution — 

Creditor's   opposition   to  the  debtor's    appeal    against 

court* e  order  in  execution    ...  ...  ...         179      2-p  665 

(J.  li.  Appeal  from  decree  against  sureties  would  not 
entitle  decree-holder  to  calculate  time  from  date  of 
appenl  decree  for  execution  against  principals      ...         179      2-V  667 

Decree  re versed  on  appeal  by  one  of  three  defendants 
but  restored  in  2nd  appeal  can  be  executed  with- 
in 3  pmn  of  High  Court's  order  ...  ...         179     2-W  668 

Though  veil  dee  of  a  portion  alone  appealed,  time  ran 

from  flnnl  decree  even  against  mortgagee  ...         179      1-y  670 

Application  to  execute  decree  partially  satisfied  by  pri- 
vate nr  rim  gement  ...  ...  ...         179      4»b  682 

Step  in  tin  of   Execution — 

1.  Decree- hoi I er  depositing  2  Rupees  as  costs  for  sale 

process  ...  ...  ...  ...         179      3-C  671 

2.  Vakil's  consent  to  postpone  sale  ...  ...         179      3-d  672 

3.  Application  for  proclamation  ...  179      3-6  672 

4.     for   transmission  of    decree  to  another 

court  ...  ...  ...  ...  179       3-f  672 

6.     Giving     with     application     stamps     to     transmit 

decree  ...  ...  ...  ...         179     3-g  672 

6.  Juil-rnici] i  ^debtor's  application  promising  payment 

of  debt  ...  ...  ...  ...        179     3-h  673 

7.  Joint  ti] ■plication  of  debtor  and  creditor  for  post- 
ponement of  sale  ...  ...  ...         179      3-i  673 

8.  Creditor's  application  to  record  payment   made  out 

of  court  ...  ...  ...  ...         179      3-j  673 

£L     Creditor's  application  to  summon  witnesses  in  the 

matter  of  claim...  ...  ...  ...         179      3-k  674 

10.  To  set  aside  debtor's  objection  to  confirmation  of 

sale  ...  ...  ...  ...         179      3-1  674 

11.  For  a  diary  to  obtain  copy  of  puttah     ...  ...         179     3-n  675 

12.  Application  to  execute  attached  decree  ...         179    3-m  674 

13.  A.    !l    »ad  M.  H.   For  payment  of  sale-proceeds  is  a 

179     3-r  677 

14.  C.  H,  such  application  is  not  a  step      ...  ...         179      3-8  678 

Applications  which  abb  not  steps  in  aid  op  execution — 

1.  B en a mid n rHs  application  for  execution  ...  ...         179      3-t  679 

2,  Decree -bolder  paying  court  fee  to  bid  for  property...         179      3-U  679 
3*     Decree- holder's  application  for  postponement  of  sale 

to  makrr  Arrangement  with  debtor         ...  ...         179      3-V  679 

4.  Praying  for  sale  as  one  lot  for  2  decrees  ...         179     3-W  680 

5.  C.  FT.  Decree -holder's  widow's  application  for  return 

of  copy  of  decree  ...  ...  ...         179     3-U  675 

6.  Asking  merely  to  keep  the  decree  alive  ...         179     3-X  681 


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INDEX. 


Execution  of  Decree  or  Order— continued. 

7.  Pleader's  application  2  days  after  decree-holder's 
death 

8.  Defendant  entitled  to  cost  opposing  the  plaintiffs 
mode  of  execution 

9.  Application  to  a  conciliator  under  Act  XVII  of  1859 
Instalment  decree  should  be  executed  in  one  lump 
in  default  of  one  instalment 

Condition  in  a  compromise  that  in  default  of  certain 
number  of  instalments  decree  should  be  executed 
in  full,  cannot  prevent  limitation 

Application  within  8  years  from  9th  and  10th  instal- 
ments held  to  be  within  time  under  IX  of  1871     ... 

C.  H.  Decree  providing  for  recovery  of  entire  amount  in 
default  of  any  three  successive  instalments  does  not 
bar  instalments  due  for  3  years  preceding  the  ap- 
plication 

G.  H.  held  such  decree  barred  when  execution  was  not 
applied  for  within  3  years  from  first  default 

Decree-holder  waives  his  right  to  larger  sum  in  default 
of  one  instalment  by  accepting  instalment  after 
default 

Such  acceptance  of  payment  does  not  keep  decree 
alive 

M.  H.  Application  to  recover  5th  instalment  not  barred 
though  creditor  waived  to  recover  the  whole  amount 
under  decree 

To  enforce  judgment  decree  or  order  of  'any  charter 
court  on  its  original  jurisdiction  or  an  order  of  Her 
Majesty  in  Council 

Giving  notice  after  1  year  has   the   effect   of  re- 
viving the  judgment  of  charter  court  ... 

Application  to  enforce  an  order  of  P.  C,  falls  un- 
der 180 

Execution  Sale — 

C.  H.  set  aside,  on  equitable  ground 
Executor- 
Debtor  becoming  creditor's,  and  creditor  becoming  deb- 
tor's, does  not  fall  within  proviso  to  sec.  9 

's  right  of  retainer  extends  to  barred  debts 

-may  sue  before  proving  the  will 

appointed  by  will  is  one  capable  of  suing 

acting  before  proving,  makes  time  to  run  from 

acting 
or    Administrator  taking  probate  is  represen- 
tative under  Succession  Act 

is  representative  under  Hindu  Wills'  Act 

of  a  Hindu    not  falling  within  Wills  Act  can 


Sec.  or 
Art. 


Note. 


sue  without  Probate 

B.  H.   an,  under  any  Hindu  or   Mahomedan  will,  may 

establish  right   without   probate  except  in   cases 

falling  within  Wills'  Act     ... 
Person  intermeddling    with    a  deceased's  property  is, 

of  his  own  wrong 
Such,  is  liable  to  the  extent  of  assets 

C.  H.  of  a  Hindu  Will  cannot  revive  barred  debt 


179  3-y 

179  3-1 

179  4-a 

179  5-& 


cxxxv 

Page. 

681 

681 
682 

696 


179 

4-y 

695 

179 

4-« 

696 

179 

5-b 

697 

179 

5-c 

698 

179 

5-d 

698 

179 

5-e 

699 

180 

5-f 

700 

179 

701 

180 

a 

701 

180 

b 

682 

12     m 


IX 

ix 
xvii 
xvii 


xvii 
xvii 


xvu 


g 
g 

a 
a 


c 
e 


xvii  t 
xvii  t 
zix       X 


808 


49 

49 

123 

124 

124 

124 
125 

180 


132 

133 
133 
163 


Digitized  by 


Google 


cnxvi 


INDEX. 


13xti  C  tttor — continued. 

English  decisions  as  to  — 's  liberty  inapplicable  to 
India 

-  under   Hindu  Wills'  Act  or  any  other,  cannot 
ho  fluent  of  the  beneficiary  under  the  will 

B.  II.  An,   of  a  Hindu  Will    coming  within    XXI  of 

1*70  had  the  same  interest  as  an,  under   English 

Law... 
8 nit  by,  for  certain  wrongs 
is  enabled  by  Act   XIII  of  1855  to  sue  and  be 

Mi**!  in  certain  cases 
XII   of    L855    inapplicable   to  wrongs    which    do  not 

survive  to  the  representative  •••  m    ... 

It  rtfij.lies  to  soite  for    wrongs  which  did  not  survive 

to  or  against 
Right  of  action  surviving  to,  and  against 
By  ,  Administrator,  or  representative,  for  death, 

caused  by  actionable  wrong 
Bait  against ,  for  wrong  done  by  testator 

Bxpart*— 

—  Judgment  application  to  set  aside 

To  cancel,  order  under  sec.  40  of  V  of  1882  held 
to  run  from  service  of  notice  of  order  to  be  can- 
celled ...  ...  ...  ••• 

C  H.  u  for  enforcing**  decree,  notice  of  execution 
petition  is  not,  but  attachment  is  sufficient  pro- 
cess .. 

Plaimiff  on  appeal  on  merits  might  object  to  re- 
hearing, i f  granted  after  time 

ISxpiry— 

Of  the  period  of  limitation  when  the  court  it  closed    ... 

Extinction — 

—  of  right  to  property 

Law    of  extinctive  prescription   was    first  introduced 

in  the  Act  of  1871 
It  first  applied  to  land  or  hereditary  office  ... 
Act  of  1879  extended  to  any  property 
No  rxfirega  provision   for  transfer  of  right  to  adverse 

holder 
Even  under  English  Statute,   Law  is  the  same  as  un« 

dfti  the  Indian  Act 
Effect  of  sec.   21  is  to  execute  a  conveyance  to  the 

party  whose  possession  is  a  bar 
P.  C   even  before   Act  XIV  of  1859  titles   extinct  in 

favour  of  the  possessor  after  remedy  is  barred     ... 
No  remitter  to    a    right  for  which  the  party  had  no 

remedy  by  action  at  all 

Government  not  permitted  to  take  possession  by  exe- 
cutive power  when  it  has  lost  its  right  to  sue 

12  years'  continuous  adverse  possession  bars  remedy 
and  extinguishes  right 

Suit  to  recover  dharmakartaship  held  barred  and  right 
extinct  under  sec.  29  Act  IX  of  1871 


Sac.  or 
Art. 


Note, 


Page. 


xix 

X 

163 

xix 

s 

164 

xix 
20 

tt-a 

165 
333 

20 

a 

333 

20 

b 

384 

20 
20 

b 

e 

334 
334 

21 
88 

... 

335 

348 

164 

612 

164 

a 

613 

164 

b 

613 

164 

0 

614 

XXV111 

xxviii 
xxviii 

xxviii 

xxviii 

xxviii 
xxviii 
xxviii 


a 
b 
b 

b 

o 

o 
d 
d 


XXVUl 

xxviii 


xxviii       k 


259 

259 
259 
260 

260 


260 
261 
261 

262 
263 

264 


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Google 


IttDEX. 


czzzvu 


Extinction— continued. 

Exolusive  receipt  of  rent  by  one  of  the  mortgagor's 
heirs  for  more  than  12  years  will  not  extinguish 
other's  right  to  redeem,  bnt  exclusive  possession 
of  property  would...  ...  ...  ... 

Law  of  Limitation  does  not  extinguish  debts 

Observations  of  Garth,  G.  J.,     ... 

Non-participation  of  profits  by  plaintiff  for  more  than 
12  years  from  previous  decree  does  not  extinguish 
his  title  ...  ...  ...  ... 

Factor- 
Suit  against,  for  account 

is  agent  employed  to  sell  goods,  Ac,  for  commis- 
sion ... 
During  continuance  of  agency  right  to  sue  accrues,  on 

demand  and  refusal 
If  agent  dies,  time  runs  from  date  of  death,  if  no  demand 
had  been  made  during  life  time  ...  ••• 

False  imprisonment— 

is  a  continuing  cause  of  action 

To  a  suit  for  compensation  time  runs  from  termination 
of  imprisonment  ...  ...  ... 

Family-debt — {See  under  Contribution.) 
Firm  of  Attorneys— (&e  under  Partners.) 
Fishery- 
Prescriptive  right  of ,  is  an  easement  ...  ... 

Bight  of,  is  one  of  the  most  common  classes  of  pro- 
perty in  Bengal... 
—  may  be  claimed  though  plaintiff  does  not  allege 

enjoyment  of  any  dominant  tenement ... 
To  constitute  prescriptive  right  of,  under  section  26,  user,* 

by  ascertained  persons  should  be  proved 
rights  in  tidal  navigable  rivers  must  be  derived 

from  the  Crown.     Presumption  is  against   such 

right 
Mere  recital  in  a  quinquennial  paper  that  a  person  is 

owner  of  jalkar  is  not  sufficient  ...  ... 

Bight  to  fish  in  sea  is  common  and  not  subject  of  pro- 
perty 
Local  custom  may  regulate  right  in  certain  portions  of 

the  sea 
Exercising  right  so  as  to  prevent  another  from  exercis* 

ing  an  equal  right  is  actionable 
Observations  of  Westropp,  0.  J.,  on  the  principle  of  the 

recognition  of  custom  as  regulating  sea-fishing     ... 
Stake-fishing  along  Malabar  Coast  is  very  ancient 
Indian  cases  and  the  right  of 'fishing  in  navigable  tidal 

rivers  and  seas  ... 
Observations  of  West,  J.,  on  prerogatives  of  the  Crown 

in  India  in  this  respect 
Bight 'of  fishing  in  fresh  rivers  of  what  kind  soever  does 

belong  to  the  owners  of  the  adjacent  soil 
There  can  be  no  public  right  of  fishing  in  non-tidal 

waters  even  where  they  are  to  some  extent  navigable. 

Foot-path— (See  Way) 
B 


See.  or 
Art. 


xxvin 
xxviii 
xxviii 


Note*       Page. 


i     204,265 
j  265 

]  266 


62  e 

88  ... 

88  a 

88  a 

88  b 

xxiii  j 

xxiii  j 


880 

424 
425 
425 
425 

208 
203 


iii 

c 

28 

iii 

e 

28 

xxvi 

2-0 

246 

xx  vi 

2-p 

248 

xxvi 

2-q 

248 

xxvi 

a-* 

248 

xxvi 

a-q 

249 

xxvi 

a-* 

240 

xxvi 

a-* 

240 

xxvi 
xxvi 

a-q 

240,250 
250 

xxvi 

2-r 

251 

xxvi 

2-r 

251 

xxvi 

2-8 

252 

xxvi 

2-t 

252 

Digitized  by  VJv 

30£le 

Tci  a  suit  for  —  next  male  heir  is  not  a  necea 
Observations  of  B.  H.,  as  to  whether  Artiole  14$  or  l5 
of  Act  IX  of  1871}  applied  to  a  suit  for 

Suit  fq|  —    •  .     ... 

Article  147  if  new  and  has  created  difficulty  and  doubt. 

Foreign— 

Suits  on  —  contracts  are  subject  to  rales  of  this  Act  ... 
fc Limitation  Law  is  no  defence  unless  it  has  extin* 

eju  Shed  contract*  •  • 
See.  11  is  silent  as  to  suits  for  property  or  rights  of  other 

kinds 
Law  of  Limitation  not  extinguishing  right  was  held 

bad>plea  ....  .,. 
Law  of  Limitation  extinguishing  right  bars  action 

us  it  it  wnq  the  law  of  the  court  resorted  to 
Aotliority  of  Story  on,  this  point 
Obligor  of  a  bond  executed  in  a  —  country  can  plead 

shorter  limitation  of  the  court  resorted  to 
-"  yn'ars  allowed  to  suit  brought  in  England  on  a  bond 

executed  in  India  * 
English  bankruptcy  certificate  held  good  answer  to  debt 

arising  in  and  sued  for  in  Calcutta  Supreme  Court.. 

Foreign  Bill— 

Suit  on  a  dishonored,  where  protest  is  made  and  notice 

ffiran 

defined 

Under  English  Law, 'Statute  runs  immediately  after 

notice  is  given  ...  ...  ...  ...  77       b  414 

Foreign  Court— 

!HfHfl  that  a  Bait  was  pending  in, -which  had  no  jurisdic- 
tion according  to  British  Law 
Whether  section  14  applies  to  suits  prosecuted  in 

Foreign  judgment— 

Suit  on — "...  '  ,,,,  .,,  ..*  ... 

means  judgment  of  a  court)  beyond  British  India... 

Nn  Bait  is  maintainable . in  British. India  on  judgment  of 

u  court  in  Native.  States    ...  *•• 

B.  H,  held>ui(i  on :auy. judgment  o£  any  court  in  British 

India  will  not  lie  ... 

M.  H,  held' suit  wHI  lie  on  judgement  of  courts.in  Native  . 
'  •  mtes,  Government  of  India  asmqtioned enforcement 

by  British  *Courts,  decrees  of  Travancore  and  Cochin 

States  ...  ...  ...  ...        117       0  463 

Forfeiture— 

Snii  lor,  upon  Statute  ...  ...      •  ...  6       ...  276 

Widow's  alienation  against  Solenoma  is  not  ...    141, 148    d,  a  544,  553 

Suit  for  possession  of  immoveable  property  where  plain- 
tiff became  entitled  by  reason  of,         ...  ...         143        ..  553 

Suit  to  cancel  a  mortgage  deed  and  to  eject  on  the 
round  of  breach  of  condition  to  pay  life  annuity 
held  to  fall  under  144  of  IX  of  1871     ...  ...         143        b  S54 

Section  23  of  IX  of  1871,  enabled  plaintiff  to  treat  each 

failure  to  pay  as  new  breach  ...  ...         143       b  555. 


Sec.  or 
Art. 

Note. 

Page. 

HI 

• 

545 

14& 
147 
147 

c 

a 

588 
589 
589 

xi 

... 

78 

xi 

... 

78 

Xi 

a 

78 

xi 

d 

79 

xi 
xi 

• 
f 

80 

80,81 

xi 

ff 

8a 

xi 

H 

82 

xi 

i 

88 

77 
77 

a 

414 
414 

xiv 

xiv 

a 

113 
113 

117 
117 

a 

462 
462 

117 

b 

462 

117 

b 

463 

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Forgery— 

——of  instrument,  suit  to  declare  »..  '  ..Y 

-  .:  C.  H.,  plaintiff's  suit.for  declaration  of  a  right  to  litis* 
band's  property  alleging  husband's  will  to  be,  does 
not  fall  under  92. 

So  is  a. suit  for  possession  and  to  set  aside  a  sale  deed* 

of  an  instrument  attempted  to  be  enforced  against 

plaintiff 

Knowledge  of  attempt  is  not  necessary 

Setting  up  deed  in  suit  and  applying  to  be  made  respon- 
dent constitute- attempt  to  enforce 

It  is  not  necessary  that  the  party  should  seek  to  obtain 
entire  fruit  of  the  forged  instrument...  ..* 

Fraud-* 

Effect  of,  ...  '.'.'.  ...»  U 

—  and  misrepresentation  defined  by  Act  XI  of  1872... 

—  must  have  been  practised  on  plaintiff  or  some  one 
throngh  whom  ne  claims    .....  ...,  *„ 

English  La^r  requires  reasonable  diligence.. «  %.* 

Section  18  was  held,  to  require  diligence    ...  .,« 

.   P.  O.'s  ruling  impliesdilfgencejs  necessary  ... 

To  constitute,  abuse  of  confidential  position,  some  in  ten- 

tional  imposition  or  concealment  of  faci  Is  necessary  ' 
Fraudulent  transactions  against  which   court   would 

grant  relief       ..,.  ......  As.         ;      ... 

■  must  be  committed  by  party  against  whom 

right  is  sought  to  be  enforced 
Plaintiff's  ignorance  .of  his  right  unless  brought  about 

by. defendants'  .will  not  prevent  limitation  ...      xviii        i      140, 141 

Case  where  plaintiff,  was  fraudulently  made   believe  •   * 

he  .had  no  right. to  sue        ~~  ...  ..»  .    xviii       j    .    ..:  141 

•  From  existence  of  means  of  knowledge  of,  court  may  

v    -  find  actual  knowledge  on  plaintiff's  part  ,».  .    xviii.  •   k    - —  141 

Case  where,  alleged  was  held  not  to  exhibit  concealment 

of  cause  of  action  within  sectin  9,  Act  XIV  1859.      xviii        1  146 

Suit  to  recover  money  fraudulently  received  dates  froih 

discovery  of,     ...  ...  ...  ...      xviii      Hi  :  142 

—  and  damage  only  bring  into  existence  a  cause  of  . 
action                ...                ::.                ...                ...      xviii       h  143 

Plaintiff  had  not  reasonable  means  of  discovering  within  ; 

time  was  held  a  good  plea  ...  ...  ..«       xviii       H  •     -;  143 

Statute  should  not  operate  during  the  time  that,  is  un- 
discovered ...  ...  ...  ...       xviii       H      U&t  144 

Vendor's  intentional  failure  to  inform  pre-emptor  of 

proposed  sale  is  not,  but  intentional  concealment  — 

of  sale  by  vendor  and  vendee  is  ...  ...       xviii       p  146 

Plaintiff  unable  to  obtain  copy  of  defendant's  report  as  * 

Consul  to  Government  whioh  contained  defamatory  ' 

matter  was  refused  benefit  of  section  9  of  the  Act  

of  1869  *.>  ...  v-  w.      xviii        r^  146 

Malins,  V.  C,  refused  benefit  Of  the  section  of  the  English — 

Aot  holding  that,  plaintiff    with  proper  diligence  '    f 

could  have  discovered  earlier  the  alleged  fraudulent  

mutilation  of  marriage  register  book   ...  ...       xviii.      if  147 

Where  plaintiff  was  defrauded  of  his  inheritance  by  -      — 

representing  an. illegitimate  son  as  the  eldest  legiti- 
x    -         mate  soof  time  was  held  to  ran  from  discovery  ejf «.» .  v  .xviii .. .  w  v...."./  148 


oeu.  or 
Art.   . 

Note.  _    Page. 

92 

..."  '  *** 

—  432 

92 
92 

b     . 

b 

%    433 

:  433 

.i 

93 
98 

"*   -' 

_    433 
-   433 

93 

b 

-   433 

96 

b     : 

.-  434 

xviii 
xvni 

a  . 

.3   136 
136 

xviii 
xviii 
xviii 
xfiii.  . 

b  . 

d   .: 
•  ~. 
f  j 

4  137 
^  138 

.-:  138 

139 

xvin 

tf 

'   13? 

xviii ... 

:*..: 

i  139 

xviii 

h- 

140 

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cxl 


INDEX, 


Fraud— continued. 

would  entitle  a  person  affected  by  fraudulent 

court  sale  to  the  benefit  of  section  18  ...  ... 

Suit  to  set  aside  fraudulent  deed  under  which  a  sale  was 

made,  held  not  affected  by  one  years  rule  ... 

Suit  to  set  aside  decree  obtained  by 
When  right  to  sue  is  based  on  a  document  fraudulently 

concealed,  section  18  applies 
Suit  to  be  relieved  from  a  transaction  into  which  plain- 
tiff was  fraudulently  induoed  to  enter,  falls  under  96 
Suit  for  land  when,  is  merely  a  part  of  the  machinery 

by  which  plaintiff  is  kept  out  of  possession 
Suit  to  reoover  oattle  which  defendant  fraudulently 

received  representing  he  was  plaintiff's  creditor's 

agent  falls  under  95 
Suit  for  money  fraudulently  realized  by  decree-holder 

after  he  had  transferred  it ... 
Suit  to  indemnify  against  the,  of  a  third  party  does  not 

fall  under  95     ... 
Suit  to  cancel  court  sale  on  the  ground  of,  falls  under  95 
Knowledge  of,  predicated  by  95  is  not  a  mere  suspicion 

but  definite  knowledge       ...  ...  ... 

Fresh  riyere— (See  under  Fishery.) 
Furniture- 
Suit  for  hire  of  household        ...  ... 

Good*— 

Suit  against  carrier  for  losing  or  injuring  ...  ... 

for  delay  in  delivering       ...  ... 

To  be  delivered,  suit  for  advance  in  payment  of  ... 

Sold  and  delivered,  suit  for  price  of  ...  ... 

—  to  be  paid  for  after  fixed  period 

—  to  be  paid  for  by  Bill  of  Exchange     ... 
Good  faith- 
Defined  ...  ...  ... 

Effect  of  proceeding  in  wrong  court  in 

Effect  of  making  application  in  wrong  court  in 

Claimant  through  fraudulent  person  in 

Government— 

G.  H.  and  M.  H.    The  right  of,  to  reoover  stamp  fee  in 
pauper  suit  was  not  affected  by  Act  XIV  of  1859... 

M.  H.,  were  not  entitled  to  exemption  from  the  Act  of 
1877 

*  as  proprietor  of  a  channel  have  right  to  distri- 
bute water  subject  to  limited  use  by  other  villages. 

Suit  against,  to  set  aside  attachment,  lease,  or  transfer 
of  land  for  arrears 

— — — — —  transfer  of  tenure  under  Regulation  XXIX 
of  1814. 

— — —  for  money  paid  on  account  of  arrears  of 
revenue  under  protest         ...  ...  ... 

•  for  money  paid  on  account  of  admitted 


Sec.  or 
Art. 


liability  does  not  fall  under  16 

•  to  deolare  a  rent-free  land  which  Collector 


assessed  not  barred  by  one  year's  rule.. 
What  will  amount  to  payment  "  under  protest" 


12 


95 


50 


80 
81 
51 
52 
58 
54 

iiii 

xiv 

xiv 

xviii 


iv 

iv 

xxvi 

15 

15 

16 

16 

16 
.16 


Note.       F*f* 


809 


12 
95 

!? 

314 

434 

95 

a 

434,445 

95 

b 

485 

95 

b 

43$ 

95 

c 

436 

95 

a 

496 

95 
95 

e 
f 

436 
437 

g 
g 

2-a 


b 

0 


437 


873 


844 
844 

872 
874 
874 
875 

81 

95 

96 

136 


88 

28 

237 


829 

830 

880 
830 


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INDEX.  CXU 

Koto.        Page. 


See.  or 
Art. 


Government— continued. 

Suit  against,    to  recover  land   wrongly   included   by 
demarcation  officer  as    Poramboke  does  not  fall 
under  Article  16  ...  ...  ...  16       d  *  331 

— — —  for  compensation  for  land  acquired  for 

public  purposes  ...  ...  ...  17      ...  331 

Delay  by,  in  disposing  of  applications  for  compensation 

will  not  save  limitation       ...  ...  ...  17       a  331 

Suit  against,  for  compensation  when  the  acquisition  is 

not  completed   ...  ...  ...  ...  18      ...  382 

—  are  not  entitled  to  exemption  from  Limitation  Act.        179       u  655 

Gregorian  Calendar- 
Time  calculated  according  to  ...  ...  ...        xxv      ...  211 

Growing  Crops- 
Suit  for  price  of       ...  ...  ...  ...         55      ...  375 

Guardian—  (See  under  Ward.) 

Suit  by  Ward  to  set  aside  sale  by  ...  ...         44      ...  357 

Haqqs— 

Haqqs  are  money  charged  upon  immoveable  property...        132      ...  507 

Suit  by  hakdar  against  original  grantee  falls  under  132        132        0  515 

Hereditary  office— 

Suit  for,  not  affected  by  death  .before  accrual  of  right...       zvii      ...  123 

Suit  for  possession  of  ...  ...  ...        124      ...  489 

Suit  brought  in  September,  1877,  to  recover  Karnamship 

lost  in  September,  1865,  held  to  have  had  6  years 

under  the  Act  of  1859         ...  ...  ...        124       a  489 

Alienation  of  office  can  be  questioned  by   successor 

within  12  years  from  the  death  that  succession 

devolves  on  him  ...  ...  ...        124       b  489 

Suit  to  declare  plaintiff's  liability  to  officiate  as  patil  of 

a  village  not  prohibited      ...  ...  ...        124       O  490 

Suit  to  enforce  one's  own  personal  right  to  manage  an 

endowment  held  to  fall  under  123  or  145  of  IX  of 

1871...  ...  ...  ...  ...        124  •    d  490 

For  possession  of  the  office  of  dharmakarta  of  a  pagoda 

may  be  barred  by  12  years' adverse  possession      ...        124       e  490 

If  right  to,  be  declared  12  years'  income  next  preceding 

the  suit  can  be  recovered   ...  ...  ...        129       c  499 

Suit  for  arrears  of  12  years'  income  of  vatan  right  to 

which  had  been  already  declared,  not  barred  though 

not  paid  for,  for  13  years  before  suit  ...  ...        132       p  515 

If  the  holder  of,  alienated  greater  estate  than  for  life, 

court  would  cut  it  down  for  life  ...  ...        140        j  540 

Adverse  possession  for  12  years  during  life-time  of  one 

holder  of  — 's  lands  is  barred  to  succeeding  holder...        140       k  541 

High.  Court— (See  under  C.  P.  C.) 

In  2nd  appeal,  can  examine  grounds  for  admitting  1st 

appeal  after  time  ...  ...  ...  v       n  33 

Appeal  from — 's  decree  or  order  on  original  side         ...        151      ...  605 

Delay  in  a  case  considered  not  as  time  requisite  for 

obtaining  copy  ...  ...  ...  ...        151       ...  605 

Appeal  under  C.  P.  0.  section  601  ...  ...        153      ...  607 

Division  Bench  can  set  aside  single  Judge's  e#  parte 

order  admitting  appeal  after  time        ...  ...        156       a  608 


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zt5 

P 

121 

ztH 

P 

131 

129 

-    490 

125 

* 

491 

126 

... 

491 

128 

... 

496 

12» 

... 

496 

141 

... 

~    542 

exjii  .11911. 

Himdas- 

Section  2  of  Wills  Act  dees  not  make  sections  200  and 

206  of  Socce«ioo  Act  applicable  U    ... 
•flection  22  of  Probata  Act  applies  to  all      ... 
Suit  to  set  aside  alienation  of    ... 
Person,  suing  under  125  must  be  presumptive  heir  who 

would  be  entitled  if  the  widow  died  at  that  moose*  t.. 
Suit  by,  to  set  aside  alienation  of  ancestral  ptupcrty    ... 
Soit  by,  for  maintenance 
Suit  by,  for  declaration  of  right  to  maintenance  ... 

entitled  on  female's  death,  emit  for  possession  by... 

Bight  to  possession  on  widow's  death  mast  be  one  ia 

esse  at  widow's  death  ...  ...  ...        141        O  544 

Hindu  Widow— 

B.  H.,  entitled  to  perform  her  husband's  contract  30 
years  after  his  death 

Hire- 
Under  Act  CC  of  I860,  suit  for"' 

Hotel  bill- 
Suit  for  ...  ... 

Hundi— 

Include^  in  u  Bfll  of  Exchange 

Idiocy- 

Of  person  having  right  to  sue  „. 

Ignorance— 

Ignorance,  of  defendant's  return  will  not  stop  limitation 

of  defendant's  residence  does  not  stop  limi- 

a  tation 

Plaintiff's,  of  the  accrual  of  his  right  unless  brought 
about  by  defendant's  fraud  will  not  prevent  limi- 
tation 

From  existence  of  means  of  knowledge  of  fraud,  court 
may  find  actual  knowledge  on  plaintiff's  part       '  11. 

ZUustratioii— 

Illustration,  ought  never  to  "be  allowed  to  control  the 

plain  meaning  Of  the  section  ...      xxiii        t  t  281 

Immoveable  property- 
Suit  for,  not  affected  by  death  before  accrual  of  right...       zvii       ...  123 
Suit  for  profits  of,  belonging  to  plaintiff     ...                  ...         109       ...           "   449 

Suit  by  vendor  of,  to  enforce  his  lien  for  unpaid  purchase 

money  ...  ...  ...  ...         Ill       ...  *   451 

comprehends  all  that  would  be  such  according  to 

•  English  Law  and  possibly  more  ...  ...         132      m  514 

bought  from  trustee  or  mortgagee,  suit  to  recover        134      ...  .  519 

Suit  for,  by  one  who  has  been  dispossessed  or  has  dis- 
continued possession  ...  ...  ....        142      «••  '    548 

To  recover  land  dispossessed  before  time  of  lease,  time 

runs  from  its  e^pjry  ,„  ,,,  ...         142        O  549 

Meaning  of  142  is  that  where  there  has  been  possession 
followed  by  discontinuance  thereof,  time  runs  from 
discontinuance  ,„  ,„  ...  ...        148     ..C  j  550 


xvfii 

■ 

267 

4 

••• 

275 

8 

«•• 

278 

iii 

••• 

20 

vii 

M« 

41 

xiii 

b 

*     89 

xiii 

c 

:     *° 

zviii 

i 

:    140 

rviii 

k 

141 

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Sec.  or 
Art. 

Note,    Page. 

142 

f,g  550,.  551 

121 
121 
121 

481 
a  481 
b      482 

121 
121 

0  482 
C      482 

Immoveable  property— continued. 

One  suing  for  possession,  on  the  ground  of  dispossession 
-. « -         should  prove  his  possession  within  12  years  before 
sail 

Incumbrance*— (<"*  wider  TtwureJ 

On  an  estate  sold  for  revenue  arrears,  suit  to  avoid    ... 
-      Meaning  of    -        -  ...  ...  .    ... 

Neighbour's  encroachment  held  an 

Auction  purchaser  is  not  bound  to  give  notice  before 

suit  of  his  intention  to  cancel 
Meaning  of  the  word  "avoid'*  in  121 
Auction  purchaser's   assignee  can  exercise  the  same 

right  as  purchaser  ...  ...  ...         121        d  482 

Purchaser's  suit  is  not  affected  by  trespasser's  long 

possession  before  purchase       ...  ...  ...        121        e  483 

Indemnify— 

Suit  on  contract  to     *  ...  ...  ...  83      ...  415 

Bight  to*  indeminity  against  defendant  who  as    kBt 

assignee  was  liable  for  rent  and  repair  ...  83        b  416 

.  B.  H.,  suit  for  breach  of  contract  to,  against  misbeha- 
viour of  a  third  person  is  a  suit  to  indemnify  against 
fraud  and  falls  under  84     ...  ...  ...  84        O  417 

Indian  Suocewion  Aet— 

Sections  320, 321,  suits  under    .i.  ...  ...  43       ...  856 

Indivisible  claim—  ... 

A.  H.  Suit  against  one  of  two  joint  vendees  for  pre- 

emption not  maintainable  ...  ...  ...       zxii      m  197 

G.  H.,  allowed  suit  by  two  of  four  brothers  for  rent    ...        zxii       n  197 

<C.  H.,  since  dismissed- a  similar  suit  as  one  not  maintain*  . 

able...  .„  ...  ...  ...       xxH       o  197 

B.  H.  followed  it  in  1881  and  rejected  a  suit  by  one  of 

fouc  brothers  for  money  due  to  their  father  ...        zxii       p  198 

A.  H.,  in  appeal  rejected  f  ox  non-  joinder  a  suit  by  one  of 

five  partners      ...  ...  ....  ...       xxii       q  199 

Injunction— 

Time  that,  stays  suit  deducted. ... 

staying  execution-  dpes  not  fall  under  section  15.. 

staying  execution  pending  disposal  of  a  suit  or 

appeal  does  not  come. under  section  15... 
Time  that,  prohibits  collection  of  debts  can  be  deducted. 
staying  execution  pending  appeal  does  not  affect 

decree-Holder     ...  ....  ....  . 

Compensation  for  injury  caused  by  wrongful 

Injury—    ... 

To  person,  suit  for  compensation  for 
To  goods,  suit  against  -carrier  for 

Insanity—... 

Suit  for  property  conveyed  during  ...  ...  94      ...  434 

Insolvency— 
-    C.  F.  G.  of  1882  does  not  provide  for  stay  of  legal  pro- 
ceedings during  pendency  of  amplication  for  ...  xv        j  120 
Notice  served  on  creditors  will  not  bind  other  courts  to 

stay  .proceedings  ...  ...  ...         xv      k  120 


XV 
XV 

ft 

114 
114 

XV 

XV 

»i6 
C 

114,116 
115 

XV 

42 

i 

119 
856 

22 
30 

.... 

386 
344 

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Cxliv  INDfil 

Insolvent- 
's possession  of  after-acquired  property  for  12 


Sec.  or 
Art. 


Note.       Ft* 


years  is  adverse  to  Official  Assignee    ...  ...        144 

-  who  has  not  obtained  final  discharge  has  power 


as  to  after  acquired  property  to  buy  and  sell        •••        144       d  §S8 

Instalment— 

Promissory  note  or  bond,  payable  by  ...  ...     74,75      ...  40$ 

C.  H.,  suit  on,  bond  entitling  creditor  to  sue  for  entire 

debt  on  first  default  to  fall  under  65  of  IX  of  1871..  75        C  406 

—  bond  providing  for  payment  of  entire  debt  on 

default  is  not  penal  ...  ...  ...  75        i  409 

Court  has  no  power  to  relieve  a  party  from  such  stipula- 
tion ...  ...  ...  ...  ...  75        i  400 

Some  decisions  hold  75  not  to  apply  to,  decrees  ...  75      m  415 

Some  decisions  hold  that  Article  to  apply  ...  75       n  413 

In  case  of,  decree  each,  is  to  be  construed  as  a  decree 

for  the  purpose  of  limitation  ...  ...         122        C  484 

Application  for  payment  of  the  decree  by  ...  ...        175      ...  691 

Institution — 

Representing  plaint  after  amendment  is  not  fresh      ...  iv       d  86 

Instrument- 
Suit  to  cancel  or  set  aside  ...  ...  ...  91      •••  437 

Decisions  are  conflicting  as  to  whether  91   applies   to  * 

suit  to  cancel  only,  or  also  to  suit  for  possession  by 

cancelling  ...  ...  ...  ...  91       a  417 

Suit  to  cancel  only,  within  section  39  of  the  Specific  Be- 
lief Act  falls  under  91  as  per  Straight,  J.  ...  91       b  427 

C.  H.,  suit  for  property  sold  by  guardian  is  not  a  suit  to 

cancel  ...  ...  ...  ...  91       b  428 

A.  H.,  suit  for  possession  by  setting  aside  a  mortgage 

deed  does  not  fall  under  91...  ...  ...  91        o  428 

A.  H.,  would  also  appear  to  be  of  the  same  opinion       ...  91       d  429 

Observations  of  Peacock,  J.,  on  a  party's  right  to  seek 

for  cancellation  of  an  ...  ...  ...  91        e  429 

A.  H.,  purchaser's  suit  for  possession  by  avoidance  of 

mortgage  does  not  fall  under  91  ...  ...  91         f  490 

Third  party's  suit  to  cancel,  does  not  fall  under  91      ...  91       g  430 

Suit  to  cancel  a  deed  of  gift  by  a  Mahomedan ;.  time 

runs  when  gift  becomes  valid  by  possession  ...  91        h  431 

A.  H.,  third  party's  suit  to  cancel,  does  not  fall  under  114        114       a  466 

Insurance- 
Suit  on  policy  of      ...  ...  ...  ...  86      •««  424 

Suit  to  recover  premia  paid  under,  voidableat  insurer's 

election  ...  ...  ..".  ...  87      ...  424 

Interest- 
As  to  payment  of,  to  save  limitation  (see  under  payment) 
For  money  payable  for,  ...  ...  ...  63      „,  891 

For,  upon  money  deposited  with  a  firm  of  bankers  falls 

under  63  ...  ...  ...  ...  63       a  891 

Limitation  applicable  to  principal,  applies  to,  when  both 

are  charged  upon  real  property  ...  ...63,132      d,t  391&517 

Agreement  to  pay  stipulated,  after  due  date  is  enforcible  63        d  892 

In  case  of  silence  as  to  rate  of,  after  due  date  court  to 

determine  reasonable  rate  ,.,  ...  ..«        132      w  518 


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1 K  d  fe  x.  czly 


Interpretation— 

■  of  "  plaintiff"  "  easement/'  "  bill  of  exchange," 


Sec.  or 
Art. 


Note.        Page. 


"bond,"    "  promissory  note,"    "trustee,"    "suit," 

"regiatered/1  "foreign  coTrntiy*' 8^d  "good faith".  iii      ...        20,  21 

Interpretation  clause— [See  pages  20,  21.) 

Interruption — 

Of  easement  ...  ...  ...  ...       xxvi      ...      213,255 

Intestate- 
Suit  for  a  share  in  property  of  ...  ...  ...        123      ...  484 

Jalkar- 

— —  or  right  of  fishing  was  not  easement  under  Act 

IX  of  1871,  but  is  an  easement  within  sec.  26,  Act 

XV  of  1877 
In  respect  of,  no  occupancy   right  as  in  the  case  of 

land... 
Prescriptive  right  of  fishery  is  an  easement  claimable 

though  plaintiff  does  not  allege  enjoyment  of  do- 
minant tenement 
• '  Land"  means  also  land  covered  by  water ... 
Mere  recital  in  a  quinquennial  paper  that  a  person  is 

owner  of,  is  not  sufficient  ... 
— -  is  an  interest  in  immoveable  property  under  145 

of  Act  IX  of  1871 

Joint- 


Family  property,  suit  to  enforce  the  right  to 


xxvi 

2-n 

246 

xxvi 

2-n 

246 

xxvi 
xxvi 

2-o 
2-o 

246 
247 

xxvi 

2-q 

248 

144 

2-1 

578 

127 
127 
127 

a 
b 

492 
402 
498 

share  in 

Under  1?7,  Act  IX  of  1871,  time  was  indefinite 

Act  of  1877  has  shortened  it  by  altering  starting  point . . . 

To  bring  his  case  within  127  plaintiff  must  show  that 

property  was      ...  ...  ...  ...       127        O  493 

It  is  essential  that  property  should  be  the  family  pro- 
perty of  an  existing  family,  when  cause  of  action 
aocrued  ...  ...  ...  ...       127        O  495 

Attachment  of  rent  payable  to  head  of  a  family  was 

held  exclusion  from  share  ...  ...  ...       127       d  495 

Joint  Contractors— 

One  of  two,  absent  from  British.  India      ...  ...       xiii         1  98 

Judgment  against  one  of  several,  bars  second  against 

ethers 
Hardship  of  the  above  rule 
It  has  been  remedied  in  England  by  Statute 
In  case  of,  section  63  of  Contract  Act  does  not  create 

joint  and  several  liability    ... 
One  of,  partners  Ac.,  may  be  shewn  to  act  as  authorized 

agent  ... 

Judgment- 
Suit  on,  obtained  in  British  India 
On,  of  Small  Cause  Court,  no  suit  will  lie  ... 
On,  of  a  court  in  British  India  no  suit  will  lie 
Suit  brought  in  1877  on  a  decree  of  1848  by  the  court 
of  the  agents  for  Sirdars  directing  payment  by  in- 
stalments held  not  barred  as  money  was  realized 
up  to  1867        ...  ...  ...  ...       122        p  484 

S 


xiii 
xiii 
xiii 

1 
1 
1 

93 
94 
94 

xiii 

m 

94 

xxi 

0 

187 

122 
122 
122 

a 
b 

483 

483 
484 

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alti  noil. 


Jadgm*at~Or  editor— 

Acfcn^nHndgsseea  to, ie a  High  Court         ...  .-        ISO      _      TBI,  7W 

JadffmenVdebtor— 

■■          i«  entitle-i  to  exclude  time    dung  which  he 

kU^n^u  ttf  let  aside  sale  ...                 ...  ...        xvi        _               121 

it  ***  sa  ject  to  cooditionj  me  in  sections  9,  13, 

iiudU           ...                 ...                 ...  ...       xri        a                121 

ww  allowed  to  do  eo  ere*  before  Act  IX  of 


IH71  ...  ...  ...  ...       xvi       b  121 

Judicial  DiacrettOtt— (See  Discretion.) 
Jurisdiction— ( 3e*  Jj>peaJ.) 

sTisffjrtelgf 

predicated  by  95  is  not  mere  suspicion,  but  de- 

...        95        f  437 

of  a  v&H  of  compensation  to  mortgagor  under 


the  f^tad  Acquisition  Act  gives  cause  of  action  to 

96        g  437 

A  per*o»  wU  staking  to  do  necetearj  work  for  cultiva- 
tion m  consideration  of  use  of  land,  Ac.,  ia  not     ...  7       d  277 

landlord— 

-'h  Mit  for  possession  from  tenant 


139 
139 

... 

530 
530 

139 
139 

a 
a 

630 
530 

139 
139 

b 

c 

531 
531 

139 
139 

d 

0 

532 
533 

139 
139 

f 
f 

534 
534 

13JJ  spoilt**  only  when  defendant  ia  tenant ... 

in  fry  Hue  treepaaaera  daring  continuance  of  ten- 
ancy 

Observations  of  Hitter,  J.,  on  the  running  of  time 

Publication   in  newspaper,  of  notice  to  quit,  ia  not  in 
itself  huUioicnt  to  determine  tenancy   ... 

Defendant  may  plead  tenancy  and  rely  on  limitation  ... 

T cnAiit  not  paying  rent  for  more  than  12  years  does  not 
const  it  M\n  adverse  possession 

189  inapplicable  to  permanent  tenure 

If  a  tenant  for  years  holds  over  in  India,  time  does  not 
I  it  ({in  to  run  until  tenancy  on  sufferance  is  deter- 

inillftd 

Such  tenant's  possession  is  not  adverse 

Lette— 

For  {im&rs  of  revenue,  suit  to  set  aside     ...  ...        15        ...  829 

Legacy— 

Bait  for   ,„  ...  ...  ...  ...        123       ...  484 

VIZ  of  tho  Act  of  1871  has  been  enlarged  in  its  scope  in 

m  „■  ...  ...  ...  ..        123       a  484 

When,  or  ah ure  becomes  payable  ...  ...         123        a  485 

Bait  mil nt  bo  to  recover  from  person  bound  by  law  to 

pay  it  ...  ...  ...  ...         123        b  486 

To  complete  legatee's  time,  executor's  assent  is  neceg- 

123        C  486 

A*  to,  pnynMr.*  and  the  happening  of  contingency  time 

does  not  tun  till  contingency  happened  ...         123        d  486 

Kngliuh  Law  on  the  subject       ...  ...  ...        123       e  486 


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ifl.DBX. 

Legal  disability— (See  Disability.) 

Legal  process- 
Salt  for  wrongfal  seizure  of  moveables  under 

Legal  ^representative—  (See  Representative.) 

Lessor- 
Suit  by,  for  value  of  trees  out  down  by  lessees 

label- 
Suit  for  compensation  for 

defined  ,,, 

Time  runs  from  date  of  publication 
Sale  of  one  copy  of  the,  within  a  year  of  suit  will  nega- 
tive, the  plea  of  limitation  ...  ... 

License- 
License  can  be  revoked  if  injurious  consequences  result 
Case  where,  held  not  revocable ... 
Distinction  between,  and  one  coupled  with  creation  of 
interest 

Lien— (8ee  Vendor.) 
Light- 
Twenty  years'  appropriation  of,  and  air  required  to 

entitle  plaintiff  to  prevent  his  neighbour's  blocking 

up  the  aperture... 
Defendant  can  obstruct  new  window  if  he  can  do  so 

without  obstructing  the  old  one 
Use  of  aperture  admitting,  when  open  and  not  furtive  is 

enjoyment  as  of  right 
It  is  enough  if  the  building  has  assumed  the  appearance 

of  a  dwelling-house  though  not  completed  or  used 

as  such  for  20  years 
Obstruction  of,  and  air  must  be  material  and  such  that 

compensation  would  not  give  adequate  relief 
Court  should  look  to  all  reasonable  uses  for  occupation... 
Opening  a  window  cannot  be  prevented    because  it 

affects  neighbour's  privacy ... 
English  Law  on  the  subject 

According  to  the  usage  of  Guzarat,  opening  new  aper- 
ture affecting  privacy  is  actionable  wrong 
Opening  window  commanding  a  view  of  plaintiff's  open 

court  yard  is  not  invasion  of  a  privacy 

Limitation- 
Obligation  resting  on  1st  court  to  reject  for,  is  not  laid 
on  each  successive  court    ... 

will  not  be  affected  by  a  testator  generally 

charging  debts  on  his  property 

cannot  be  pleaded  against  member  of  a  fund 
advancing  a  claim  on  the  fund 

does  not  apply  to  money  advanced  for  a  married 

woman's  support,  being  debt  payable  out  of  funds 
held  in  trust  for  her  separate  use 

is  not  stopped  by  want  of  personal  representative 

if  time  ran  in  the  life-time  of  the  debtor 
-  for  suit  for  account  against  manager's  heir  does 


not  run  until  administration  is  obtained 


Sec.  or 
Art. 


29 


108 


Note. 


24  ... 
24  a 
24       b 


cxlvH 

Page. 


844 


449 


838 
338 
339 


24 


XXVI 

xxvi 


4 


xxvi 

b 

216,217 

xzvi 

e 

217 

xxvi 

d 

217 

xxvi 

e 

218 

xxvi 
xxvi 

f 
f 

218 
218,219 

xxvi 
xxvi 

g 
g 

219 
219 

xxvi 

h 

220 

xxvi 

h 

220 

iv 

a 

24 

X 

r 

62 

X 

2-j 

74 

X 

2-k 

75 

xvii 

b 

124 

xvii 

i 

126 

Digitized  by  VJ 

OOQk 

cxlriii  i  n  d  E*k. 


Sec  or 
Art. 

Not*. 

ftff. 

xvii 

J 

116 

xviii 

a.* 

146,147 

xxiv 

a 

206 

Limitation— continued. 

To  suit  for  money  due  from  deceased  agent  time  ran 
from  his  death  nnder  XIV  of  1869 

■  Act  does  not  apply  to  Collector's  application  to 
cancel  sale  nnder  Bombay  Act  Y  of  1862 

■  commences  when  injury  is  complete  at  the  time 
of  the  Act  ,.,  ... 

runs  from  damage  when  act  is  not  injurious  till 

damage  occurs  ...  ...  ...  ...       xxiv        a  906 

does  not  begin  to  run  as  long  as  plaintiff's  claim 

is  recognized  by  temporary  settlement...  ...  46        e  362 

Limitation — (Not  specially  provided  for.) 

under  120     ...  ...  ...  ...        120       .*  470 

Before  applying  the  Article,  court  should  see  no  other 

Articles  apply    ...  ...  ...  ...        120       a  470 

120  does  not  apply  to  suit  for  money  wrongly  taken  in 

execution  ...  ...  ...  ...        120       b  470 

One  heir's  suit  for  a  moiety  of  money  drawn  from  banker 

by  another  heir  of  a  deceased  ...  ...        120        C  471 

For  a  declaration  of  proprietory  right  to  land  ...        120       d  471 

120  applies  to  suit  against  Municipal  Committee  for 

declaration  of  right  ...  ...  ...        120        6  471 

For  declaration  of  partnership  right  for  dissolution  and 

appointment  of  a  liquidator  and  for  payment  of  the 

share  of  each  out  of  surplus  ...  ...        120        f  472 

For  one-fourth  of  purchase  money  of  a  house  as  per 

custom  ...  ...  ...  ...        120       g  473 

On  pro-note  payable  on  demand  at  any  time  within  six 

years  ...  ...  ...  ...        120       h  474 

To  recover  deposit  made  for  discharge  of  duly  ...        120        i  474 

To  enforce  equitable  claim  to  follow  proceeds  of  plain- 
tiff's property  in  any  one's  hands  ...  ...        120        J  474 

Equitable  claim  against  a  trustee  to  have  an  account  of 

profits  and  to  recover  profits  ...  ...        120       k  475 

By  one  pre-emptor  against  another  to  determine  who 

had  better  right  ...  ...  ...        120        1  476 

For  title  after  dismissal  of  claim  under  section  246  of 

the  C.  P.  C.  of  1859  ...  ...  ...        120      m  476 

For  an  alternative  claim  ...  ...  ...        120       n  476 

For  tax  under  Towns'  Improvement  Act  though  debt  lies 

on  the  Statute  ...  ...  ...  ...        120       o  476 

To  compel  defendant  to  fill  a  tank  or  for  compensation ...        120       p  477 

For  apportionment  of  rent         ...  ...  ...        120       q  477 

By  reversioner  for  compensation  drawn  by  widow's 

lessee  during  pendency  of  suit  for  land  ...        120       r  478 

By  a  creditor  for  himself  and  others  to  follow  property 

in  mortgagee's  hands  under  mortgage  given  by  the 

executor  ...  ...  ...  ...        120       8  478 

To  establish  right  to  turn  of  worship  of  idol,  but  not 

right  to  exclusive  worship  ... 
Cases  held  to  fall  either  under  120  or  144  ... 
By  a  cestuique  trust  against  a  trustee  for  an  account ... 
By  pre-emptor  to  enforce  right  against  vendor  and 

vendee  under  a  registered  conditional  sale  deed    ...        120      w  480 

By  official  liquidator  to  recover  monies  for  which  calls 

were  made  on  share-holders  ...  ...        120       z  480 


120 

t 

478 

120 

Xi 

479 

120 

r 

479 

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INDEX.  Cxlil 

Note.        Page. 


Bee.  or 
Art. 


limitation— (tfot  epecidlly  provided  for)—  continued. 

No — to  court  exercising  functions  of  ministerial  charac- 
ter  ...  ...  ...  ...  ...        178       a  633 

—  does  not  affect  application  for  decree  as  per  award. 

—  does  not  affect  application  for  probate  or  admini-        178       b  633 
stratioa             ...                ...                ...                ...        178        C  638 

—  might  be  pleaded  by  a  debtor  after  obtaining 

postponement  of  sale  ...  ...  ...        179       h  647 

Uquidator— 

*s  suit  for  monies  for  which  calls  were  made  on 

share-holders     ...  ...  ...  ...        120       x  480 

Though is  substituted  for,  and  enforces  the 

right   of  the  creditors  in  right  of  the   company 

equities  which  might  have  been  set  up  against  the 

company  cannot  be  set  up  against  the  liquidator 

as  representing  creditors  ...  ...        120       x  480 

Maintenance— 

Suit  for  arrears  of    ...  ... 

Suit  for  declaration  of  right  to  ... 

Act  XIV  of  1859,  gives  12  years  from  death  of  person  on 

whose  estate,  was  a  charge 
Article  128  of  IX  of  1871  made  time  to  run  from  date 

of  refusal 
P.  0.  held,  withholding,  to  amount  to  refusal 
Widow  can  recover  arrears  of,  not  excluded  by  Law  of 

Limitation  applicable  ...  ...       •         ...        129        d  600 

— —  of  younger  brother  being  charge  on  inheritance 

falls  under  132  ...  ...  ...  ...        132       n  614 

Decree  for  annual,  not  providing  for  payment  on  speoifio 

dates  held  bound  after  3  years 
Eight  declared  by  such  decree  enforcible  by  suit 
Decree  directing  possession  in  default  of  3  instalments 

has  3  years  from  date  of  1st  default    ... 

Malfeasance— 

Independent  of  contract  suit  for 

,  misfeasance  and  nonfeasance  explained  ... 


128 
129 

... 

498 
498 

129 

a 

409 

129 
129 

b 
b 

499 
499 

179 
179 

a 

687 
688 

179 

4-1 

688 

36 
36 

... 

a 

349 
349 

23 

■  M 

336 

23 
23 

a 
a 

337 
337 

23 
23 

a 
b 

337 
337 

Malicious  prosecution— 

Suit  for  compensation  for 

When  complaint  is  the  only  act  done,  date  of  complaint 

is  date  of  wrong 
In  the  case  of  a,  time  runs  from  close  of  the  case 
Act  does  not  allow  deduotion  on  account  of  irregular 

proceedings 
No  cause  of  action  until,  ends  in  plaintiffs  favour 
Time  runs  from  final  discharge  of  plaintiff  and  not  from 

date  that  charge  was  preferred  ...  ...  23       b     337, 338 

Malik- 
Mode  of  recognizing  the  right  of  ...  ...  46       e     362,363 

Malikana— (gee  under  recurring  Right.) 

is  money  charged  upon  immoveable  property  ...         132       ...  506 

being  an  annually  recurring  charge  may  be  sued 

for  within  12  years  ...  ...        132       r  617 

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T 


Cl  INDEX. 


Sec.  or 
Art. 


xiz 

▼ 

19 

zix 

W 

1Q 

six 

z 

16S 

__       Note.       P* 

Mamlatdar's  Courts'  Aot— 

Snit  for  property  comprised  in  order  under  ...  47       ...  36$ 

Mamlatdar's  order  does  not  affect  a  partition  snit        ...  47        6  38 

His  order  is  not  conclusive  evidence  of  possession  and 

dispossession      ...  ...  ...  ...  47        e  KB 

Manager—  • 

of  joint  estate,  snit  for  contribution  by  ...        107       ...  4tf 

Manager,  Hindu  Family— 

M.  H.f  held  in  1878  that,  is  not  agent  within  section  20 

of  IX,  of  1871    ... 
M.  H.,  since  declined  to  accept  the  above  rule 
C.  H.,  held  in  1874  that,  cannot  revive  barred  debt 
Observations  of  Conch,  C.  J.,  on  the  subject  under  XIY 

of  1869  ...  ...  ...  ...        xix        x  168 

M.  H.,  held  in  1881  and  1882,  that,  can  acknowledge 

debts,  but  cannot  revive  barred  debt  ...  ...         xix        y  164 

Mark- 
is  sufficient  signature  ...  ...  ...         xx        e  178 

Mesne  profits— 

Suit  for  ...  ...  ...  ...  ...        109      ...  449 

Claim  for,  for  period  preceding  the  three  years  before 

suit  held  barred  ...  ...  ...        109       C  450 

To  allow  or  not  interest  on,  is  discretionary  with  court...        109        C  450 

When  the  amount  of,  cannot  be  ascertained  till  after 
the  end  of  the  year  cause  of  action  does  not  arise 
tiUthen  ...        /      ...  ...  ...        109        d  451 

In  case  of  decree  for  possession  and  mesne  profits,  ap- 
plication for  ascertaining  mesne  profits  is  one  for 
obtaining  a  final  decree      ...  ...  ...        178        o  640 

Proceedings  for  ascertaining,  are  proceedings  in  conti- 
nuance of  the  original  suit...  ...  ...         179        i  6*7 

Such  are  the  proceedings  to  ascertain  value  of  improve- 
ment under  decree  for  redemption  of  kanam        ...        179       j  648 

yfoing  Company—  {See  under  Partners.) 

Minor- 

■ ■  can  sue  by  guardian  after  one  year  from  dis- 
missal of  claim-petition  by  guardian    ...  ...  vii       b  43 

'ssuit  by  guardian  is  governed  by  limitation 

applicable  to      ...  ...  ...  ...         vii        O  43 

's  rights  as  regards  appeals  not  specially  excepted  . 

as  in  the  case  of  suits         ...  ...  ...  vii        0  43 

M.  H.,  C.  H.  and  B.  H.  execution  of *s  decrees  were 

governed  by  provisions  of  section  7      ...  ...  vii    d, 6, f     4344 

— *s  application  of  September,  1882,  to  enforce 
decree  of  1862  when  he  was,  held  not  barred  as  he 
became  major  in  September,  1879        ...  ...  n'i       g  44 

's  assignee  is  not  entitled  to  the  exemptions  al- 
lowed to ...  ...  ...  ...  vii       h  45 

Provisions  relieving  — » — 8  are  personal  and  do  not  at- 
tach to  property  or  title      ...  ...  ...  vii       h  45 

suing  on  cause  of  action  accrued  to  his  father 

can  claim  no  deduction        ...  ...  ...  ix        b  48 

■  can  sue  within  3  years  of  his  majority  to  recover 

property  sold  by  father      ...  ...  ...        126        a  401 


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I  K  D  E  t.  cli 

Sector     Kofce#         page# 
Minor— continued. 

Minority  is  extended  to  21  years  by  order  appointing  a 

guardian  thongh  no  certificate  is  taken  out  ...        126       b  492 

In  case  of  two  joint  decre-holders  for  damages  though 

adult  drcree-holder  is  barred,  minor  decree-holder 

can  execute  the  whole  decree  as  the  adult  cannot 

give  valid  discharge  without  the  concurrence  of  the 

other  ...  ...  ...  ...        178       p  641 

Minority— (See  Minor.) 
Misappropriation— 

of  specific  moveables    ...  ...  ...  48      ...  369 

Misconduct— 

Suits  by  principal  against  agent  for  ..  ...  90      ...  426 

Misfeasance— 

Suit  for,  independent  of  contract  ...  ...  36      ...  349 

Mis-joinder— 

A.  H.  held,  was  not  a  cause  of  "  like  nature"  occurring 
in  section  14 

and  defect  of    jurisdiction,   C.   H.   held    were 

causes  of  a  similar  nature  ... 

Mistake- 
Suit  for  relief  on  ground  of 

of  fact  and  law  falls  under  96 

Difference  between,  of  law  and  fact  is  not  so  sharply 

drawn  in  equity... 
'  mutual  as  to  rights  of  parties  to  a  contract 
Suit  to  be  relieved  against  renunciation  of  claim  made 

under  a  mistake  as  to  validity  of  marriage 

resulting  from  a  construction  of  a  will  ... 

Suit  to  recover  excess  payment  on  account  of  road  cess 

falls  under  96     ...  ...  ...  ...  96       C  440 

Suit  for  money  paid  to  defendant  either   through  his 

fraud  or  by  mistake  on  Collector's  part,  falls  under 

95  or  96  ...  ...  ...  ...  96       d  440 

Mitakshara- 

Suit  by  Hindu,  under  the  law  of  ...  ...        126      ...  491 

Money- 
Suit  for,  wrongly  taken  under  decree  falls  under  29     ... 

■  includes  any  currency,    usually    employed  in 
selling  and  buying  as  the  equivalent  of 

■  includes  any  paper,  obligation,  or  security,  cer- 
tainly convertible  into  cash 

Suit  for,  lent 

Suit  for  loan  repayable  at  once  or  on  demand  falls  under 

57  or  59 
For,  lent  on  debtor's  verbal  agreement  to  repay  at  the 

end  of  a  year  falls  under  115 
Observations  of  Garth,  C.  J. ,  as  to  verbal  agreement  of 

loan  ... 
Suit  for,  when  lender  has  given  a  cheque  ^ .« 
In  such  case  cause  of  action  does  not  arise  till  cheque 

is  cashed  ...  ...  ...  ...         68       &  377 


xiv 

▼ 

106,107 

xiv 

W 

107 

69 
96 

a 

438 
438 

96 
96 

b 
b 

438,439 
439 

96 
96 

b 
b 

440 
440 

29 

b 

844 

51 

b 

372 

51 
57 

c 

373 

376 

57 

a 

376 

67 

a 

376 

57 
58 

a 

376 
377 

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elii  II»IL 


fee*  far,  aa4eri 

5»       -  387 

&*/-**  Law  <m  4At  f*T»*fe  «■  ■fosniaa'    —  S»       ¥  *» 

- —  pud  for  <ffesvd*At,  sail  Ur  —  CI       —  JH 

Sait  for,  «lx*  y*a.\*  vm  oc-j^ed  to  pay  ia  esasse- 

qacsKje  of  def  esxUat's  act  Lend  to  fa^  aader  d    —  €1        C  SB 

— — -  reoemhd  for  ptsistHTs  «se  .-  ...  63      —  JB4 

ft«jt  for  fMftiJro,  »t>ri  defend***  aiussyfi2ynirfniarl 

from  3rd  party  vaster  faiee  preteaee  fal*  nader  62-  G2       a  JM 

ffeit  to  rewrer,  paid  to  defendant  aadcr  coart's  order 

Wl  w.d*r  CO  of  the  Art  of  1*71  ...  ...Ok  3a7 

This  m  djsuoroitned  from  suit  for  re  f  seal  of  oale  |*o- 

ceed*  «T*^tr  court's  order    ...  ...  fi2       M  287 

—  peysb>  for  int*r**t,  salt  for  -..  63       —  2W 

foaod  doe  oa  aceoont  stated,  suit  for  ...  64       «.  3B 

Hoii  for,  i**d  on  existing  coft*jricra*ioaa  which  after* 

ward*  fails         ...  ...  ...  ...  97       —  **1 

■  paid  by  pre-emptor  under  decree  for  pre-empt  if 
which  hao  become  rood  by  failure  to  pay  the  suss 
enhanced  by  Appellate  Court  by  fixed  time  fall* 
under  120 

Three  years'  tine  applies  to  suite  for,  not  oosuag  within 

the  scope  of  registered  agreement 
— —  charged  upon  immoveable  property,  snit  to 

enforce  payment  of 

includes  Ifslikana  and  Haqqs 

Baits  on  mortgage  deeds  had  9,  6,  and  12  years  under 

XIV  of  69 

Courts  doubted  whether  122  applied  to  suits  for  per* 
tonal  remedy    ... 

Decisions  under  XIV  of  1859    ... 

B.  H.,  132  inapplicable  to  a  money  suit  against  mortga- 
gor's person 

B.  H,f  the  article  applied  to  such  suit 
M.  H,,  agreed  with  B.  If.  holding  interest  may  be  re- 
covered for  12  years  when  charged  on  land 

A.  H.,  dissented  from  B.  H.  in  1883,  but  followed  it  in 

1884 
P.  C,  132  of  IX  of  1871  inapplicable  to  personal  remedy. 

C.  H.,  132  inapplicable  to  mortgagee's  suit  to  enforce 

oersonal  liability  ...  ...  ...        132        i  511 

B.  H.,  132  applies  to  realize  a  charge  not  amounting  to 

mortgage  while  147  applied  to  suit  for  foreclosure 

or  sale  ...  ...  ...  ...        132      j,k   512,613 

■  charged  upon  rents  and  profits  is  charged  upon 

immoreable  property  ...  ...  ...        132      m  614 

Mortgagee— 

1st,  selling  property  with  2nd's  consent  is  accountable 

for  the  surplus  as  trustee    ...  ...  ...  x    2-m  76 

1st,  selling  under  statutory  power  is  not  express  trustee 

for  surplus        ...  ...  ...  ...  x      2-n  77 

receiving  produce  in  lieu  of  interest  under  un- 
registered mortgage  is  not  considered  to  receive  as 

mortgagee         ...  ...  ...         ....  xx       k  180 


97 

a 

441 

116 

e 

441 

132 
132 

Itm 

506 
506 

132 

a 

608 

132 
132 

a 
e 

506 
608 

132 
132 

d 

0 

509 
609 

132 

f 

510 

132 
132 

f 

610 
611 

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I  &  D  S  *»  Clilt 

SiSrt°r  Note.  Pago. 

Mortgagee— continued. 

receiving  rent  under  a  lease  independent  of 

mortgage  held  not  to  amount  to  payment  of  interest 

under  IX  of  1871  ...  ...  ...  xx        1  180 

receiving  rent  from  mortgagor  under  subsequent 

lease  regarded  not  as  payment  of  interest  under  IX 

of  1871  ...  ...  ...  ...  xx      m  180 

's  suit  for  property  purchased  by  himself  under 

power  of  sale     ...  ...  ...  ...        134       d  620 

■  by  purchase  acquires  unimpeachable  title  which 


is  distinct  from  title  as  incumbrancer ...  ...         134       d  520 

By,  for  possession  of  immoveable  property  in  other  than 

Charter  Courts  ...  ...  ...  ...        185       ...  521 

who  has  taken  foreclosure  proceedings  may  sue 

within  12  years  from  expiry  of  year  of  grace  ...  135  a  521 
's  right  to  possession  under  deed   allowing  him 

possession  on  default  dates  from  default  ...        135       b  622 

Second,  in  possession  under  decree  for  it  dispossessed 

by  first  under  decree  can  recover  possession  within 

12  years  from  redemption  ...  ...  ...         135        0  522 

By,  — 's  assignee  against  mortgagor's  vendees  held  bar- 
red under  135  ...  ...  ...  ...        185        d  523 

Suit  by,  for  possession  in  Charter  Court     ...  ...        146      ...  586 

Reason  for  express  exception  limited  to  one  special  case 

of  mortgage      ...  ...  ...  ...         146       b  587 

Observations  of  Markby,  J.,  and  Garth,  C.  J.,  on  146  ...        146       b  587 

S nit  by,  for  foreclosure  or  Sale  ...  ...  ...        147       ...  580 

147  creates  donbt  Whether  suit  to  realise  money  by  sale 

of  hypothecated  property  has  12  years  or  60  years..  147,132  a,  b  589, 507 
C.  H.  and  A.  H.,  147  to  apply  to  suits  to  enforce  lien 

while  B.  H.  held  it  to  apply  only  when  the  instru- 
ment contained  power  express  or  implied  to  sell 

property  out  of  court  ...  ...  ...        147       b  590 

C.  H.  Snitby  auction  purchaser  of  mortgagee's  right  and 

title  to  enforce  lien  falls  under  147      ...  ...         147        C  590 

A.  H.'Suit  by  simple  mortgagee  to  enforce  lien  by  sale 

falls  under  149  ...  ...  ...  ...        147        d  691 

M.  H.,  simple  mortgagee's  suit  to  enforce  lien  does  not 

fall  under  147    ...  ...  ...  ...        147       e  592 

M.  H.,  held  extended  technical  definition  of  simple  mort- 
gage in  1877  will  not  also  extend  the  period  of  limi- 
tation ...  ...  ...  ...        147       e  592 

B.  H.,  suit  to  realize  debt  by  sale  of  mortgaged  property 

by  a  deed  giving  power  to  sell  falls  under  147      ...         147        f  592 

P.  C.  when  by  Act  of  Law  there  has  been  alienation 

from  mortgagor  to  a  third  person,  limitation  between 

mortgagor  and  mortgagee  ceases  to  apply  ...        147       g  595 

Suit  against,  for  redemption      ...  ...  ...        148       ...  696 

Mortgagor— 

. — *s  suit  for  compensation  for  land  drawn  by 

mortgagee  falls  under  62     ...  ...  ...  62        1  389 

Such  right  is  independent  of  the  right  of  redemption  ...  62        1  389 

S  uit  by,  for  surplus  collections  received  by  the  mortgagee.        105      . . .  447 

Plaintiff  was  held  entitled  to  such  collections  for  6 

years  before  suits  under  XIV  of  1859  ...  ...        105       a        *    447 

Balance  from  the  commencement  of  mortgage  can  be 

recovered  under  this  Article  ...  ...        105      b  447 


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IND^BXj 


Mortgagor— continued. 

Suit  by,  to  redeem  or  recover  possession  of  real  pro- 
perty 

No  limitation  for  redemption  suits  before  Act  XIV  of 
1859 

C.  H.  right  to  redeem  share  of  right  to  officiate  as  priest 
at  a  funeral  falls  under  148. 

Such  right  was  held  immoveable  property  ... 

Mortgagee  merely  asserting  adverse  title  cannot  abbre- 
viate 60  years'  time 

Agreement  after  stipulated  term  for  redemption  allow- 
ing mortgagee  to  enjoy  for  a  term  and  then  restore 
property  was  considered  not  a  mortgage 

M.  H.,  's  redemption  suit  against  one  who  had  12  years' 
adverse  possession  and  who  did  not  claim  under 
mortgagee  held  barred 

Second  suit  to  redeem  allowed  when  redemption  decree 
was  barred 

Suit  brought  in  1885  to  redeem  mortgage  of  1885  by 
registered  sale  deed  accompanied  by  registered 
agreement  to  redeem  within  10  years  ... 

Suit  against  one  purchasing  what  was  in  fact  a  mort- 
gage believing  it.  was  absolute  title  falls  under  134. 

One  of  two  joint-mortgagors  redeeming  stands  in  the 
shoes  of  the  mortgagee 

Mother- 


Sec,  or 
Art. 


Note. 


Page. 


as  such  and  natural  guardian  has  no  authority  * 

to  acknowledge  debt  on  behalf  of  the  minor 

Such  acknowledgment  cannot  be  treated  as  fresh  promise. 

It  does  not  make  the,  responsible  for  debt  as  such  was 
not  the  intention  of  parties 

Moveable  property- 
Suit  for  wrongful  seizure  of,  under  legal  process         ... 

Limitation  commences  from  date  of  seizure  and  not 
from  date  of  release 

Standing  crops  are  not 

Suit  for  specific,  lost,  or  acquired  by  theft... 

Standing  crops  when  cut,  are     ... 

Suit  for  money  entrusted  to  defendant  and  misappro-* 
priated  falls  under  48  ... 

Suit  for  proceeds  in  the  defendant's  hands  as  agent  of 
his  deceased  principal  against  whom  a  decree  has 
been  made  for  conversion  of  goods  falls  under  118.. 

Suit  for  specific  moveable 

Suit  for  specific  moveables  bequeathed  to  plaintiffs 
vendor  to  whom'  District  Judge  had  ordered  its 
surrender  by  defendant  who  had  obtained  a  certifi- 
cate falls  under  49 

Suit  for  moveables  included  in  a  decree  for  specific  per- 
formance of  an  agreement  to  sell  them  and  some 
real  property  should  be  brought  within  3  years 
from  decree 

— *-  bought  from  trustee  &c,  suit  to  recover 

Bfteeajjal—  (See  Dower.) 


148 

... 

596 

148 

a 

596 

148 
148 

b 
b 

596 
596 

148 

0 

597 

148 

d 

598 

148 

e 

598 

148 

f 

599 

148 

... 

600 

148 

g 

601 

148 

h 

601,  602 

zzviii 
xxviii 

0 

•268 
268 

29 


344 


29 
36 
48 
48 

a 
b 

a 

344 
350 
369 
369 

48 

b 

370 

48 
49 

e 

370 
370 

49 


49 
133 


371 


371 
519 


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INDEX. 


Soe.  or 
Art. 

103 
125 
141 


Note. 


xxvi      w 


90 


Suit  by,  for  dower    .».  ..*  ...v 

female  suit  to  set  aside  alienation  by... 

Entitled  on  female's  -death,  suit  for  possession  by 

Municipal  Act- 
Special  provision  of,  applies  only  where  compensation 
is  songht  for  wrongful  acts  of  Commissioners  in 
exercise  of  powers  ...  ...  ...         120 

Suit  for  tax  under  Towns'  Improvement  Act  falls  under 

120  .,.  ...  ...  ...  ...         120 

Municipal  Committee- 
Special  Law  of  Limitation  in  suits  against ...  ...  vi 

Mutual,  open  and  ojorrent  accounts— (See  Accounts.) 
Natural  Channel- 
Bight  to  water  of  a,  and  right  to  water  of  an  artificial 

channel  do  not  rest  on  the  same  grounds 
Each  successive  proprietor  is  entitled  to  uninterrupted 
flow  of  natural  stream 

Neglect- 
Suit  by  principal  against  agent  for 

Negotiable  instrument- 
Summary  procedure  on,  ...  ...  ...  5 

6  relates  to  Summary  suits  while  69  to  80  apply  to 

regular  suits  ...  5 

ttonfeasance-~ 

Suit  for,  independent  of  contract  ...  ...  36 

Non-tidal  waters— (8ee  under  Fishery.) 
Obligation— (See  wider  Servient  Owner) 
Observations— 

of  Westropp,  C.  J.,  on  the  effect  of  saving  clauses 

in  repealing  Act 

of  Turner,  C.  J.,  on  the  application  of  limitation  to 

the  claims  of  Government  ... 

of  Bittle'ston,  J.,  on  "  representative"  in  section  2 

of  Act  XIV  of  1869 

Markby,  J.,  on  "  specific  purpose,"  in  IX  of  1871. 

of  Green,  J.,  on  the  position  of  one  claiming  to 

act  as  trustee  under  a  will  seeking  to   undo  his 
predecessor's  act 

of  ManisQr,  J.,  as  to  the  recovery  of  damages  re- 
sulting from  one  cause  of  action  ... 

of  Cockburn,  C.  J.,  on  the  effect  of  awarding  pros- 
pective damage 

of  Garth,  C.  J.,  and  Pontifex,  J.,  on  extinction  of 

debts  ... 

Difference  between  the  Indian  and  the  English  Acts    ... 

Other  decisions  showing  that  law  does  not  extinguish 

debts  ...  ...  ...  ...      xxviii 

of  Stuart,  C.  J.,  and  Oldfield,  J.,  6n  Hindu  father's 

right  to  sue  for  compensation  for  loss  of  his  ab- 
ducted daughter's  service  ...  ...  ...  26 

; of  .Gartfc,. C.  J.,  as  to  verbal  agreement  ,of  loan    ...  67 


e 
o 


cli 

Pag©. 

444 

*  490 
542 

472 
476 

38 


232 
233 

426 

275 
275 

349 


i 

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6 

iv 

g 

28,29 

X 

X 

b 

e 

60 
61 

X 

f 

53,54 

xxiv 

d 

208 

xxiv 

g 

210 

xxviii 
xxviii 

k 

1 

266 
266 

a 


267 


341 
376 


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clyi  indix. 


Bee.  or 

'  Art. 


^^     Note.         Ps*e. 
Observation*— continued. 

of  SpanKe,  J.,  on  66          ...                ...                ...  66  6  401 

of  Westrop,  C.  J.,  Spankie,  Duthoit,  J.  J.,  on  the 

applicability  of  75  to  decrees                ...                ...  75  m  412 

of  Garth,  G.  J.,  and  Oldfield,  J.,  on  85                  ...  85  d  421 

of  Pontifex,  J.,  on  85         ...                ...                ...  85  e  423 

Obstruction — (See  under  Water-course  and  alto  Resistance.) 

Officer— 

of  rerenue,  suit  to  set  aside  sale  by    ....  ...  12    2-0      302,319 

of  Government,  suit  to  set  aside  act  or  order  of  ...  14  to  17      ...      329, 331 

Official  liquidator— 

Claim  sent  into         ...  ...  ...  ...  iv      ...  24 

Omission— 

.  —  to  do  an  act  in  pursuance  of  an  enactment,  suit  for  2      ...  271 

Party  not  to  suffer  for  court's   ...  ...  ...        179       n  654 

Oral  evidence— (See  Evidence.) 
Order- 
Suit  for  property  comprised  in,  under  C.  P.  C.,  sections 

280, 281, 282  or  335  ...  ...  ...  11       ...  284 

under  sections  246  and  269  of  VIII  of  1859,  were 

final  and  cancellable  only  by  suit  to  be  brought 

within  one  year  ft om  ...  ...       *         ...  11        a  284 

Aot  of  1871,  repealed  limitation  clauses  in  sections  246 

and  269  of  Act  VIII  of  1859  and  enacted  15         ...  11       b  286 

B.  H.  Construed  15  to  be  a  substitute  for  the  repealed 

clauses  while  C.  H.  held  it  was  not      ...  ...  11  b,d      286,289 

M.  H.  and  A.  H.  held  an,  under  section  246  operated  as 

final  adjudication  until  set  aside  by  suit  though 

section  itself  was  repealed.     ...  ...  ...  11       h     286,287 

Act  of  1877,  reproduced  XV  of  1871,  as  13  and  enacted 

11  to  meet  cases  of  orders  which  fell  under  sections 

246  and  269  of  Act  VIII  of  1859  ...  ...  11        C  287 

M.  H.,  under  269  of  Act  VIII  of  1859,  cancelling  deli- 

very  of  possession  to  auction  purchaser  did  not  fall 

within,  13  ...  ...  ...  ...  11        c  287 

Such  final,  is  bar  to  suit  after  time  though  as  was  held 

by  C.  ff.  11.  would  not  apply  to  an,  passed  under  the 

Code  of  1859     ...  ...  ...  ...  11        C  287 

A.  H.  such  —  to  be  absolutely  reqjudicata  until  set  aside 

by  suit  ...  ...  ...  ...  11        C  288 

C.  H.,  unsuccessful  claimant  who  had  one  year  under  the 

Act  of  1859,  had  ordinary  period  of  limitation  under 

IX  of  1871        ...  ...  ...  ...  11       d  288 

C.  H.,  allowed  to  plaintiff  barred  by  the  Act  of  1877, 

benefit  of  section  2  of  the  Act  ...  ...  11        d  288 

C.  H.,  in  another  case  allowed  ordinary  period  as  11  did 

not  refer  to  the  C.  P.  C.  of  1859  ...  ...  11        d  288 

C.  H.,  adhered  to  their  own  decisions  even  after  they 

were  referred  to  those  of  B.  H.  ...  ...  11     d9e    288,  289 

B.  H.,  15  to  be  substituted  for  repealed  words  of  sec.  246.  11        d  289 
M.  H.  and  A.  H.  such  final,  to  bar  suits  after  one  year 

and  estop  successful  claimant  from  asserting  his 

right  as  defendant  ...  ...  ...  11        f  290 


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index.  ;  clvii 

®  Art?'   *<>*•         ^ 
Order— continued. 

M.  H.  and  B.  H.  defendant  losing  claim  under  section 

246  of  VIII  of  1859  is  estopped   from  asserting 

it  in  a  suit  by  auot  ion -purchaser  for  possession 

though  brought  within  one  year  of  the  ...  11       g      290, 291 

C.  H.  11  bars  plaintiffs  suit  after  release  of  property 

only  to  have  his  right  -to  attachment  declared,  bat 

not    to   bar   other   relief    as    against    successful 

claimant 
C.   H.  unsuccessful  claimant  need  not  sue  if  debtor 

satisfied  the  decree  and  is*  not  estopped  from  as- 
serting his  claim 
C  H. — that  claimant's  purchase  was  invalid,  only  meant 

it  was  so  against  creditor  and  purchaser 

A.  H.,  unsuccessful  claimant  was  precluded  from  assert- 

ing his  right  after  one  year  even  if  decree  had 

been  satisfied  within  one  year  ...  ... 

C.  H.,  unsuccessful  claimant  is  not  estopped  from  assert- 
ing his  right  as  against  purchaser  from  debtor  with 

court's  permission  after  attachment  and  before  sale.. 
C.  H.,  there  was  nothing  in  the,   itself  which  would 

create  estoppel  and  that  construction   put   upon 

section  246  by  all  the  courts  has  been  productive 

of  injustice 
C.  H.,  unsuccessful  claimant  in  execution  case  can  sue 

within  one  year  for  goods  siezed  or  their  value 
M.  H.  Second  mortgagee's  suit  after  one  year  from 

dismissal  of  claim  for  a  portion  of  sale  proceeds  of 

mortgaged  property  not  affected  by  11 

B.  H.,  auction  purchaser's  suit  after  one  year  from  order 

passed  in  favour  of  a  claimant  barred  ... 

0.  H.—  contemplated  by  sections  281  and  335  of  0.  P.  C. 
is  not  one  made  without  investigation  ... 

11  applies  to  a  party  whose  claim  was  rejected  after  in- 
vestigation 

M.  H.,  11  does  not  apply  to  dismissal  of  claim  under 
section  332 

—  to  be  affected  by  one  year's  rule  should  be  one 
made  between  2  parties 

M.  H.,  even  judgment-debtor  not  made  a  party  to  the 

proceedings  under  section  246  is  not  affected  by 

one  year's  rule  ...  ...  ...    ■ 

Parties  are  not  bound  to  resort  to  sections  280,  281, 

282  or  335 
Claimant  may  sue  for  compensation,  for  damage,  for 

loss  of  use  of  ox  or  boat  attached 
Unsuccessful  claimant  cannot  wait  till  sale  and  then 

sue  within  a  year  of  sale    ... 
mentioned  in  clause  b  Art.  12  is  one  made  in  judicial 

capacity 

—  in  any  proceeding  other  than  a  suit,  suit  to  set 
aside 

Suit  for  property  sold  by  guardian  under  Act  XL  of 

1858  is  not  a  suit  to  set  aside  an 
under  Act  XXVII  of  1860,  granting  certificate  to 

one  of  2  rival  claimants  need  not  be  set  aside  in  a 

suit  or  title  on  property     ...  ...  ...  13       e  821 


11 

h 

291 

11 

i 

292 

11 

i 

292 

11 

J 

293 

11 

k 

293,  294 

11 

k 

294 

11 

1 

295 

11 

m 

295,  296 

11 

n 

296 

11 

0 

296,  297 

11 

P 

298 

11 

q 

*  298 

11 

r 

299 

11 

8 

299 

11 

t 

300 

11 

XL 

300 

11 

r 

801 

12 

2-o 

318 

13 

... 

319 

13 

d 

321 

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elriti  ijtdbi. 


Sec.  or 

*  Art. 


Koto.        Page. 


Order-  con  tinned 

Party  failing  to  get  certificate,  seeking  to  set  aside, 

mnst  sue  within  one  year   ...  ...  ...  13       6  832 

Suit  for  refund  of  sale  proceed b  distributed  under  sec- 
tion 295  of  C.  P.  0.  should  be  treated  as  a  suit  for 
money  by  setting  aside  ...  ...  13        t  823 

Suit  to  set  aside  rateable  distribution  and  for  redistri- 
bution held  barred  under  13  ...  ...  13        f  324 

—  of  Judge  or  Collector  refusing  to  pass,  for  want  of 

jurisdiction  does  not  fall  under  13  or  14  ...  13  g  324 
refusing  to  entertain  an  application  *under  Act 

XIX  of  1841     ...  ...  13       g  825 

Suit  to  set  aside,  passed  without  jurisdiction  does  not 

fall  under  13      ...  ...  ...  ...  18      k  326 

To  set  aside  final,  time  runs  from  its  date  and  not  from 

the  date  of,  on  appeal         ...  ...  ...  13        i  327 

Suit  by  unsuccessful  claimant  under  section  332  of 

C.  P.  0.  is  not  governed  by  13  ...  ...  13       j  327 

in  an  execution  proceeding  is  an,  in  a  suit  and  not 

an,  in  a  proceeding  other  than  a  suit  ...  ...  13        j  327 

—  does  not  affect  plaintiff  who  was  not  a  party  to 

execution  proceedings         ...                ...                ...  13  k  328 

of  Government  officer  in  official  capacity,  suit  to 

set  aside            ...                ...                ...                ,.,  14  ..♦  328 

Suit  under  14,  had  6  years  under  the  Act  of  1859  ...  14  a  328 
Suit  for  title  on  Collector's  refusal  to  register  plaintiff's 

name  as  owner  is  not  affected  by  14    ...                ...  14  b  329 

Partition- 
Time  for,  would  not  begin  to  run  until  plaintiff  knows 

his  exclusion      ...  ...  ...  ...        127        f  496 

Reason  for  exemption  from  the  general  rule  of  limita- 
tion in  favour  of  Hindus  and  others     ...  ...        127*        t  497 

Plaintiff  in  127  does  not  include  purchasers  from  joint 

family  ...  ...  ...  ...        127        f  497 

Case  where  defendant's  possession  of  joint  family  pro-' 
perty  for  35  years  held  not  to  bar  plaintiffs  suit 
for  division        ...  ...  ...  ...        127       g  ,  498 

Partner— 

Acknowledgment  or  payment  by  one  ...  ...         xxi      ...  186 

's  power  to  bind  co-partners  under  section  251 

Act  IX  of  1872...  ...  ...         ui       d  187 

of  a  firm  of  mercantile  character  has  implied 

authority  to  bind  the  firm  but  not,  of  a  carrying  or 

mining  company,  or  firm  of  attorneys ...  ...  xxi        6  187 

English  law  as  to  payment  by  one,  for  partnership  debt.         xxi       g  189 

Partnership— 

Suit  for  account  and  share  of,  dissolved     ...  ...         106      ...  447 

Until  dissolution  of,  106  does  not  apply      ...  ...        106       a  -447 

Though  suit  to  take  account  and  obtain  share  be  barred* 
plaintiff  may  sue  to  recover  share  in  a  sum  subse- 
quently realized  by  a  surviving  partner  ...         106       h  448 

Suit  for  account  and  f&r  appointment  of  liquidator  and 

division  of  surplus  does  not  fall  under  106  ...         106        O  448 

.    .  Ordinary  Civil  Courts,  can  try  dissolution  of .  .„        106       0   .448,449 


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.1HDKI.  cllSfi 

*£«    Note.        Page. 
■Part-payment— (See  aUo  under  Payment.) 

Mark  or  signature  to  an  endorsement  of,  is  sufficient  ...  xx  e  178 

Money  realized  in  execution  is  not,  under  section  20   ...  xx  O  181 
C.  H.,  of  debt  due  under  decree  held  not  to  come  within 

section  21  of  IX  of  1871     ...                 ...                 ...  xx  ▼  185 

C.  H.,  payment  towards  decree  could  not  stop  limitation  xx  W  185 

A.  H.  dissented  and  held —  to  fall  within  section  20     ...  xx  X  186 

Party — 

As  to,  added  after  suit  is  filed  suit  should  be  treated  as 

new...  ...  ...  ...  ...  iv       d  27 

Passage— 

for  boats  is  analogous  to  right  of  way  ...       xxvi        S  230 

over  another's  tank  must  be  claimed  in  a  parti- 
cular direction  ...  ...  ...  ...       xxvi        S  230 

Patent—  (See  Privilege.) 

Patni- 

Defined  ...  ...  ...  ...  ...  12      ...  302 

Panper— 

Taluq,  suit  to  set  aside  sale  of  .«.  ..<•  ... 
suit  is  instituted  when  application  for  leave  to 

sue  as  such  is  filed 
C.  IJ.,  applicant  putting  in  petition  with  stamp   duty 

not  entitled  to  treat  the  date  of  first  petition  as 

date  of  institution  of  it 
F.  C,  date  of  presentation  of  application  and  not  date 

of  payment  of  court  fee  is  date  of  institution 
• applicant  for  leave  to  appeal  not  entitled  to  the 

indulgence  of  applying   after  time   pn  sufficient 

cause 

applicant  may  apply  for  review  after  time 

Strange  that  the  indulgence  should  nob  be  shewn  to  a, 

applying  for  leave  to  appeal 

Pawnee- 
Suit  against  purchaser  of  moveables  from  ... 

Payee- 
Suit  against 
Of  bill,  his  suit  against  drawer  „,  ... 

Payment- 
Effect  of,  of  interest  as  such  part,  of  principal  receipt  of 
produce  of  mortgaged  land... 

Principle  of  the  doctrine  of  part' 

Part,  did  not  operate  to  keep  alive  a  debt  under  XIV  of 
1859. 

of  interest  insufficient  under  XIV  of  1859,  held 

sufficient 

Endorsement  of,  on  bond,  need  not  show  that,  was 
made  towards  principal 

Endorsement  of  cheque  by  debtor  not  showing  the  pur- 
pose of ,  held  insufficient     ... 

by  debtor  without  intimation  to  appropriate  it 

to  interest,  does  not  fall  under  clause.  1 

by  agent  after  principal's  death  ineffectual 

by  receiver,  English  case  on  the  effect  of  such... 


12 

... 

302 

iv 

••• 

24 

ir 

b 

25 

vi 

c 

26 

v 

V 

a,t 

a   * 

29,35 
29 

V 

t 

35 

133 

... 

519 

145 

78 

•«• 

685 
414 

XX 
XX 

a 

175 
176 

XX 

b 

176 

XX 

d 

177 

XX 

f 

178 

XX 

g 

178 

XX 
XX 
XX 

h 
i 

i 

179 
179 
179 

Digitized  by  VJv 

30Qk 

elx 


I9D8L 


Payment — continued. 

Effect  of  such,  if  court  has  authorized  it    ... 

Case  where,  of  produce  held  equivalent  to,  of  interest... 

to  the  Nazir  ia  not,  to  creditor  of  interest  as  such 

Effect  of,  comes  under  section  20  while  effect  of  acknow- 
ledgment comes  under  section  19 

out  of  court    (Peacock  C.   J..)    decree-holder 

.    could  prove  to  bar  limitation 

C.  H.  part,  of  debt  under  decree,  not  to  come  within 
section  21  of  IX  of  1871     ... 

A.  H.  dissented  and  held  part,  to  fall  within  section  20. 

by  one  of  several  j  oint-contractors  ... 

may  be  appropriated  to  time-barred  debt 

Out  of  Court  though  not  certified  to  court  might  be 
proved  to  meet  limitation  ... 

Penalty— 

Suit  for,  under  Statute  ...  ...  ... 

Suit  for  Tax  under  Municipal  Act  is  not  suit  for 

Periodical  right— 

Suit  to  establish       ...  ...  ...  ... 

Person— 

Suit  for  injury  to     ...  ...  ...  ... 

Perversion— 


See.  or 
Ark 


Note. 


r**. 


-of  a  property  to  other  than  specific  purposes 


Suit  to  compel  defendant  to  fill  a  tanfe,  or  for  compensa- 
tion, falls  under  120 

Suit  to  restrain  tenant  from  converting  arable  land  into 
a  grove  ...  ...  ...  ... 

Physical  possession- 
See  article  10  and  the  notes  under  it  ...  ... 

Plaint— 

Presenting,  to  Karkun  in  charge  of  court  during  vaca- 
tion will  not  prevent  the  Statute 

Presenting,  to  Miinsif  in  his  private  residence  held  in- 
sufficient 

Presenting,  to  Dis£riot  Court  instead  of  to  Munsifs 
court  closed,  held  insufficient 

Plaintiff- 
Application    by  defendant  to  bring  in  legal  represen- 
tative of  the  deceased  ...  ...  ... 

Plea- 

Of  limitation  though  not  raised  by  party,  the  court  shall 

Policy— 

of  insurance,  suit  on 

Act  of  1859  held  to  apply  in  the  absence  of  custom 
allowing  a  certain  time  of  grace 

Possession— 


permissive  cannot  create  a  right  of  easement  ... 

Casual  trespasser's,  is  not 

Suit  for,  cannot  be  maintained  if  suit  for  specific  per- 
formance of  contract  is  barred  .., 


XX 
XX 
XX 

J 

n 

o 

190 
181 
18S 

XX 

P 

IS 

XX 

t 

183,154 

XX 
XX 

xxi 
xxriii 

▼ 

X 

185 
186 
185 
267 

179 

r 

633 

6 
6 

a 

276 

276 

131 

... 

606 

22 

..» 

336 

32 

... 

347 

32 

a 

347 

32 

b 

347 

10 


275 


ix        d  48 

ix        e  48 

ix         f  49 


171 

iv 

8G 
86 


XXVI 

3 
113 


2-k 
d 


620 

24 

424 
424 

241 
274 

465 


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Possession— continued. 


I  IT  D  E  X.  clli 

8£u°P    Note.       Page. 


Vendee's  suit  for,  falls  under  144  ...  ...        113       g  456 

Vendee's  suit  for,  when  vendor  has  not  expressly  pro- 
mised to  pat  vendee  in,  falls  nnder  144  ...        144       j  561 
Plaintiff  seeking  for,  on  the  ground  of  dispossession 

must  show,  within  12  years  before  suit  ...        142    f,  g     550,551 

Jurisdiction  of  Civil  Court  over  suit  for  title  and,  is  not 

affected  by  X  of  1859         ...  ...  ...        142        i      552, 558 

Trustee's  suit  held  barred  by  12  year's,  by  defendant 

as  trustee  ...  ...  ...  ...        144       fc  533 

Judgment-debtor  suing  in  a  different  capacity  for  pro- 
perty sold  in  auction  ...  ...  ...        144        1  662 

Suit  for  land  by  avoidance  of  deed  of  gift  falls  under  144.        144     m  562 

Suit  for  possession  cancelling  court-sale  made  as  an- 

other's  property  ...  ...  ...        144       n  663 

Suit  for   declaration  of  proprietary  right  to  land  in 
plaintiff's  possession  held  to  fall  under  145  of  IX 
of  1871  ...  ...  ...  ...        144       o  663 

P.    C.    Donee  of   daughter-in-law's  right  might   sue 
auction-purchaser  of  mother-in-law's  right  sold  for 

her  debts  within  12  years  of  mother-in-law's  death.        144       p  668 

Person  failing  to  impugne  within  time,  instrument  affec- 
ting his  title  might  sue  for,  within  longer  period 
provided  the  instrument  is  void  so  far  as  his  inter- 
ests are  concerned  ....  ...  ...        144       q  564 

Suit  for,  against  vendor  himself  when  he  recovers  pos- 
session falls  under  144       ...  ...  ...        144       g  665 

Vendee's  suit  for  property  outstanding  an  ijara  for  a 
term  on  the  date  of  purchase  has  12  years  from  the 
expiry  of  the  term  ...  ...  ...        144       t  666 

Suit  against  son  to  enforce  a  decree  against  father- 
charging  the  money  on  real  property  by  consent 
has  12  years  from  father's  death  ...  ...        144       u  667 

Suit  to  eject  without  redemption  alleging  invalidity  of 

Kanom  held  barred  after  12  years       ...  ...        144       v  667 

Observations  of  Hutohins,  J.,    ...  ...  ...        144       v  667 

Priest's  suit  for  land  mortgaged  by  his  deceased  pre- 
decessor who  had  a  life-estate  held  to  have  12  years 
from   predecessor's   death    from  which,  becomes 
adverse  ...  ..,  ,..  ...        144      w  668 

Suit  for  property  from  a  person  who  had  originally  been 

in  permissive  occupation  falls  under  144  ...        144     2-C  672 

Mortgagee's  suit  for,  after  foreclosure,  has  12  years 

from  expiry  of  the  year  of  graoe  ...  ...         144    2-d  673 

of  purchaser  in  Sheriff's  sale  held  to  commence 

from  date  of  conveyance,  though  purchaser  already 

held  it  as  lessee  ...  ...  ...        144    2-6  673 

Suit  for  declaration  of  Malikana  right  and  for  reversal 
of  Collector's  order  refusing  to  register  plaintiff's 
name  falls  under  120  or  181  or  144     ...  ...        144     2-f  573 

Sqit  for  land  after  formal,  under  decree  has  12  years 

from  such  ...  ...  ...  ...         144    2-h  676 

Son's  suit  against  mother  for  father's  property  she 
managed  supplying  son's  wants  out  of  income  falls 
under  144  ...  ...  ...  ...        144     2-i  676 

Plaintiff's,  though  an  act  of  trespass  in  its  inception 

having  continued  for  12  years,  perfected  his  title..,        144     2-j  677 

U 


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fiJ££r    Note.       Pise, 


POMMftion— continued. 

Sui*  for,  with  mesne  profits  by  establishing  plaintiff's 

right  is  not  affected  by  one  year's  rule  under  section 

27,  Act  VIII  of  1869  ...  ...  ...        144     2-n  579 

A  married  woman  can  sue  for  her  absent  husband's 

property  ...  ...  ...  ...        144     2-0  679 

Minor's  suit  one  year  after  majority,  for  property  sold 

for  decree  obtained  against  him  daring  minority  is 

not  affected  by  12  ...  ...  ...    144  2-p,  2-q  680,  681 

Suit  by  an  intestate's  heir  for  property  sold  under  col* 

lasive  decree  against  a  widow  and  to  set  aside  sale, 

falls  under  96    ...  ...  ...  ...        144     2-r  681 

Bight  to  immediate,  depends  on  whether  the  widow's 

life  estate  was  defeasible  on  her  remarriage         ...        144     2-r  688 

Suit  for,  setting  aside  fraudulent   mortgage  deed  falls 

under  144  ...  ...  ...  ...        144     2-0  683 

West,  J.,  observes  that  notwithstanding    the  possible 

analogy  of  a  recent  P.  0.  case,  he  would  follow  the 

decision  of  0.  H.  ...  ...  ...        144     2-fl  684 

Where  the  husband  of  a  female  member  of  a  joint- 
family  had  been  on  the  purchase  of  an  estate  admit- 
ted by  male  members  as  co-proprietor  in  respect  of 

one-fourth  share  manager's,  of  the  whole  estate  is 

adverse  to  such  co-proprietor  unless  shewn  to  hare 

been  authorised...  ...  ...  ...        144      2-t  684 

Postponement— 

of  sec.  2  and  8  of  IX  of  1871  to  1st  April 

1878  led  to  conflicting  decisions  ...  ...  i  e  7 

B.  H.  dissented  from  M.  H.       ...  ...  ...if  8 

Subsequent  decisions  of  M.  H.  bearing  on  the  point    ...  i  g  8 

Pre-emption— 

A.  H.  sec.  7  to  apply  to  a  suit  to  enforce  pre-emption 

title  ...  ...  ...  ...         vii  i  46 

To  suit  to  enforce  rights  of,  former  part  of  sec.  17  in- 
applicable ...  ...  ...  ...       xvii         ...  123 

Suit  to  enforce  a  right  of  ...  ...  ...  10        ...  278 

Under  XIV  of  1859  time  ran  from  date  of  vendee's  pos- 
session under  sale  impeached  ...  ...  10         a  278 

Possession  was  construed  not  to  mean  tangible  or 
visible  possession,  Act  of  1871  required  actual  pos- 
session ...  ...  ...  ...  10         a  279 

Usufructuary  mortgagee  becoming  vendee  obtains  phy- 
sical possession  only  when  sale  becomes  complete 
on  payment  of  purchase-money  ...  ...  10         b  279 

suit  should  be  brought  within  a  year  from  the 

date  of  the  mortgage  deed  entitling  mortgagee  to 
possession,  in  default  of  payment  of  interest  and 
not  from  date  that  registry  was  altered  ...  10         c  280 

A.  H.,  suit  should  be  brought  within  a  year  from  the 

date  of  physical  possession  of  entire  property        ...  10         d  280 

Taking  tangible  possession    or  enjoyment   is  taking 

physical  possession  ...  ...  ...  10  a   280,281 

In  case  of  sale  of  an  undivided  share  of  a  village  not 
susceptible  of  physical  possession,  time  runs  from 
registration  of  sale-deed     ...  ...  ...  10  £  281 


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yre-emption— continued. 

— —  suit  in  respect  of  conditional  sale  of  such  pro- 
perty is  not  governed  by  10 
Observations  of  the  court  on  the  inapplicability  of  the 

alternative  date  in  the  3rd  oolnmn  to  conditional 

sale  having  the  characteristic  of  a  mortgage 
can  be  enforced  only  when  mortgagee  obtains 

decree  for  possession 
"Case  where  Wajib-ol-arz  provided  for  right  of,  in  respect 

of  conditional  sales,  mortgages,  and  oases  ,... 

Though  conditional  vendee  held  possession  as  such,  time 

runs  from  date  of  possession  under  decree  declaring 

sale  absolute 
Decree  becomes  final,  only  on  the  expiry  of  time  for 

2nd  appeal  or  when  2nd  appeal  is  disposed  of 
If  on  the  last  day  the  court  is  closed,  decree  does  not 

beoome  final  until  the  court  re-opens  ... 
Pre-emptor's  suit  for  money  paid  under  a  decree  which 

has  become  void  by  failure  to  pay  the  sum  enhanced 

by  the  Appellate  Court 

Premia— 


•  paid  under  voidable  policy,  suif  for 


Prescriptive  right- 
No — to  injure  another  even  though  such  injury  has  war- 
rant of  ancient  user 

English  case  recognizing  right  to  pour  polluted  water  in 
a  stream 

Case  where  plaintiff  claimed,  to  throw  back  water  on 
defendant's  land  till  it  drained  into  a  tank 

A  Mirasdar's  tenant  holding  for  50  years  on  payment  of 
one  uniform  rent  does  not  acquire 

Plaintiff  receiving  water  for  along  time  does  not  acquire 
a  right  as  against  Government  to  restrain  them 
from  diminishing  water 

■  of  fishery  is  an  easement  claimable  though  domi- 

nant tenement  is  not  enjoyed  ... 

B.  H.  A  private  individual  drawing  yearly  payment 
from  the  Government  for  more  than  30  years  did 
not  acquire,  under  Regulation  527 

B.  H.,  case  where,  was  allowed  against  Government    ... 

A  charitable  grant  enjoyed  for  more  than  30  years  was 
held  to  confer  a  right  of  property  under  Bombay 
Regulation  V  of  1827 

Uninterrupted  possession  for  more  than  30  years  before 
IX  of  1871,  to  create  prescriptive  title  under  Regu- 
lation V  of  1827  ...  ...  ...  3 

Presumption — 

of  authority  arises  in  case  of  acknowledgment  by 

one  partner  when  the  firm  is  a  going  concern 

Price— 

of  food  or  drink  sold  by  keeper  of  hotel,  tavern  or 

lodging  house    ... 
Suit  for  the,  of  lodging 
—  of  goods  sold  and  delivered  where  no  fixed  period 

of  credit  is  agreed  upon     ...  ...  ...  - 


See.  or 

Art. 


10 


Note. 


10 
10 
10 


olxiii 
Psga, 

281 

282 

282 


10 

h 

283 

10 

i 

283 

10 

i 

283 

97 

a 

441 

87 

••• 

424 

xxvi 

m 

226 

xxvi 

m 

226 

xxvi 

2-b 

238 

xxvi 

2-k 

243 

xxvi 

2-1 

243 

xxvi 

2-o 

246 

xxvi 
xxvi 

2-w 
2-x 

254 
255 

xxvi 

2y 

255 

Kviii 

f 

262 

8 
9 

52 


188 


278 
278 

374 


Digitized  by  VjOOQlC     — 


dXlY  IN  DBS. 


sS5t^r    Note.       Pag* 


Frio*— continued. 

—  of  goods  supplied  from  time  to  time  on  credit,  time 

rung  from  the  date  of  each  item  ...  ...         62        a  874 

—  of  goods  to  be  paid  for  after  fixed  period  ...  63      ...  874 

—  of  wood  claimable  tinder  contract  after  its  comple- 
tion falls  under  68  ...  ...  ...  68        a  874 

—  to  be  paid  for,  by  a  Bill  of  Exohange,  no  tnoh  bill 

being  given        ...  ...  ...  ...  64      ...  #876 

For,  payable  at  2  or  3  months  at  purchaser's  option 
when  contract  was  for  6  months'  credit,  time  runs 
from  8th  or  9th  month        ...  ...  ...  64       a  876 

—  of  trees  or  growing  crops  sold  ...  ...  66      ...  876 

of  work  done  by  plain  tin*  at  defendant's  request ...  66      ...  376 

Completion  of  dnty  is  cause  of  action         ...  ...  66      ...  876 

Principal- 
Suit  by,  against  agent  ...  ...  ...         90      ...  426 

Suit  by,  against  agent  for  loss  from  misoonduot  in  neg- 
lecting to  sue  for  debts,  Ac.  ...  ...         90       a  426 

Privilege- 
Exclusive,  suit  for  infringing     ...  ...  ...  40  964 

Suit  for  damage  or  for  account  of  profits  obtained  by 
infringement  of  exclusive,  held  to  fall  under  11, 
Act  IX  of  1871...  ...  ...  ...  40       a  864 

Probate— 

— -  is  necessary  in  the  case  of  Hindu.  Wills  falling 

within  Act  XXI  of  1870     ... 
— —  is  not  necessary  in  the  case  of  Hindu  or  Maho- 

medan  will  not  falling  within  the  Hindu  Wills  Act. 
Without,  person  taking  possession  constitutes  himself 

representative  ...  ...  ...  ... 

—  of  a  Hindu  Will  had  not  the  Same  effect  as,  of  a 
will  in  England...  ...  ...  ... 

Probate  and  Administration  Act  of  1881—  . 

Sections  139  and  14,  suit  under...  ...  ...  43      M.  366 

Procedure— 

In  matters  of,  aliens  and  liege,  subjects  bound  by  law  of 

the  forum  ...  ...  ...  ...  xi         b  78 

Limitation  is  a  law  relating  to,  having  ref eronoe  to  the 

lex  fori  ...  ...  ...  ...  xi  c  78 

Produce— 

Of  mortgagad  land  effect  of  reciept  of ,  see  payment    ...  xx      ...  175 

Profits— 

Of  dissolved  partnership  suit  for  ...  ...        106       ...  447 

Of  immoveable  property  wrongfully  received  by  de- 
fendant, suit  for  ...  ...  ...        109      ...  449 

Promise— (See  under  Demand) 

Promissory  note— 

payable  at  any  time  within  6  years  upon  de- 
mand does  not  fall  under  59  or  73        ...  ...  59       c  878 

defined  ...  ...  ...  „.  69       b  402 

"at  sight"  on  presentment  "  after  sight"        ...         70       a  *  408 


xvii 

• 

138 

xvii 

8 

183 

xvii 

t 

183 

xix 

X 

164 

Digitized  by 


Google 


IfNPEX,  plxv, 


Sec.  or 
Art. 


Note.       Page. 


Promissory  Woto— continued. 

■  ■  payable  on  demand  at  any  time  within  6  years 

does  not  fall  under  73         ...  ...  ...  73       a  404 

Holder  of,  payable  on  demand  accepting  interest  np  to 

a  day  agreeing  not  to  demand  till  then,  makes  the 

transaction  new 

: — or  bond  payable  by  instalments 

or  bond  providing  for  payment  of  the  whole  in 

default  of  one  instalment 

given  by  maker  to  3rd  person  to  be  delivered 

to  payee  after  certain  event 
Suit  on,  or  bond,  not  specially  provided  for 
Suit  on  Government,  against  Government ... 

Property-*— 

purchased  in  name  of  idol  when  not  dedicated 

to  the  idol,  is  not  trust       ...  ...  ...  x       z  68 

'■  purchased  in  the  name  of  one's  own  idol  which 
no  others  have  a  right  to  worship  is  his  own        ...  z        z  68,  60 

-  can  be  held  and  enjoyed. by  idol  itself  ...  z     2-a  69 


73 

74 

b 

405 
405 

75 

... 

405 

76 
80 
80 

... 

413 
415 
415 

Sebait  holding,  is  not  trustee  to  the  ...  ...  z     2-a 

"  vesting  in  one  partly  for  charity  and  partly  for 

other's  benefit  made  him  trustee  under  XIV  of 
1859  ...  ...  ...  ...  x     2-b 

JPzOtOSt— ' 

Suit  against  Government  for  money  paid  "  under," 
What  will  amount  to-  payment  "  under,"     ... 
Payment  "  under,"  is  payment  after  unsuccessful  ap- 
peal 

Purchaser— 

Bond-fide  — 's  possession  in  oases  of  concealed  fraud  ... 

"  Bond-fide?'  means  real,  and  not  one  taking  a  gift  un- 
der the  form  of  purchase  ... 

Beversal  of  decree  subsequent  to  sale  does  not  invali- 
date sale  as  against 

When  creditor  himself  is,  sale  cannot  be  Baid  to  have 
been  made  to  a  bond-fide,  for  value  without  notice. 

IX  of  1871  required,  to  prove  not  only  he  gave  money 
but  that  purchase  was  bond-fide 

184  is  intended  to  protect  a,  who  believes  that  his 
vendor  was  absolute  owner  and  not  mortgagee 

— —  .at  private  sale,  suit  for  possession  by 

G.  H.  suit  for  possession  by,  against  vendor  himself 
when  he  recovers  possession  falls  under  144 

A.  H.  such  suits  fall  either  under  136  or  under  144 

At  execution  sale,  suit  for  possession  by,  when  debtor 
was  out  of  possession  at  the  time  of  sale 

■'  of  joint-family  property,  is  in  the  same  position 

as,  of  anv  other  property  as  to  limitation 

Suit  by  auction,  when  vendor  is  out  of  possession  falls 
under  137  .;. 

does  not  come  under  "  plaintiff"  in  137 

Suit  by  auction,  for  possession  when  judgment-debtor 

wa£  in  possession  ...  ...  ...        138       ...  525 

In  auction  — 's  suit  for  possession  defendant's  vendor's 
possession  after  private  sale  out  and  out  held  ad- 
verse to  the  vendee  ...  ...  ...        138       a  626 


16 
16 

C 

329 
830 

16 

e 

831 

cviii 

w 

147 

viii 

X 

149 

12 

i 

805 

12 

i 

806 

134 

a 

519 

134 
136 

b 

519 
624 

136 
186 

a 
a 

524 
524 

137 

... 

525 

137 

a 

626 

137 
137 

a 
a 

525 
625 

Digitized  by 


Google 


clxvi 


IND1L 


Purchaser — oontinued. 

A.  H.,  in  execution  might  sue  for  possession  on  failing 

in  summary  procedure 

B.  H.  yendee  of  auction,  might  likewise  sue  for  pos- 

session 
Auotion  — 'b  suit  14  years  after  purchase  held  not  saved 

by  symbolical  possession     ... 
Auction  — 's  minor  son's  suit  for  lands  after  formal  pos- 
session was  had 
might  sue  within  12  years  from  purchase  on 

symbolical  possession  proving  infructuous 
's  suit  for  possession  by  avoidance  of  mortgage 

falls  under  138  ... 
Railway  Company — (See  under  Carrier.) 
Receiver— 

Beoeiver  under  Court  is  a  trustee 

is  trustee  of  the  money  passed  into  his  hands  so 

long  as  he  lives  ...  °"  .„ 
can  deduct  the  time  from  the  order  prohibiting 

collection  of  debts  to  the  date  of  his  appointment... 

Recognisance— 

Suit  on  ...  •••  •••  •••  ••• 

Recurring  right— 

Suit  to  establish       ...  ...  ... 

or  right  to  Malikana,  failing  to  pay  rent,  right  to 

burial  fees 
Refusal  must  be  in  answer  to  a  demand  by  plaintiff  who 

can  sue  within  12  years  from  demand  and  refusal..* 
Right  to  worship  an  idol  in  turn  ...  ... 

Redemption — (See  under  Mortgagor.) 

Redemption  suit  many  years  after  fraudulent  revenue 
sale  held  not  affected  by  one  year's  rule 

Reference- 
All,  to  the  Act  of  1871  to  be  read  as  if  made  to  the  Aot 
of  1877 

Refund— 

Of  legacy  suit  for    ... 

Application  for,  of  purchase  money  on  the  ground  that 

debtor  had  no  saleable  interest,  not  affected  by  172. 
To  entitle  to  a,  it  is  not  necessary  that  court  should 

have  so  decided  in  other  proceedings  ... 
172  applies  even  if  sale  had  been  confirmed  before  sixty 

days..*  ...  ...  ...  ... 

Refusal- 


See,  or 
Art, 


•  to  pay,  acknowledgment  accompanied  by 


Registered— 

defined 


•  appeal 

•  instrument,  suit  to  declare  forgery  of 
■  company,  suit  for  call  by 

•  contract,  suit  for  breach  of         ..♦ 


Note. 


F*ft«. 


138 

b 

626 

188 

e 

626 

138 

d 

628 

138 

e 

628 

138 

f 

629 

138 

* 

629 

z 

2-o 

77 

X 

2-o 

77 

XV 

e 

115 

122 

••* 

489 

131 

... 

605 

131 

a 

605 

131 
131 

b 

0 

605 

606 

12    2-a 


817 


14 


43 

•■• 

866 

172 

a 

628 

172 

a 

628 

172 

b 

'628 

161 


m 

•• 

21 

IV 

#4 

24 

92 

,# 

432 

112 

•• 

462 

116 

••• 

469 

Digitized  by  VJ1 

DO 

?Ie 

INDEX, 


Clxvii 


Registered— continued. 

Suit  on  a,  money  bond  falls  nnder  116 

Suit  for  refund  of  proportionate  value  for  deficiency  of 

land  sold  falls  under  116... 
Suit  for  arrears  of  rent  due  on  a,  contract  falls  under 

116  ... 
Suit  for  money  secured  by  a  deceased  agent  as  such  if 

agreement  is     ...  ...  ...    . 

Endorsee's  suit  against  endorsor  of  a,  promissory  note 

does  not  fall  under  116  if  endorsement  is  not 

[Regulation— 

Regulation  VI  of  1831,  prevents  misappropriation  of 
emoluments  of  hereditary  offices 

Relief— (See  fraud  mistake,) 

Remainder-man— 

Suit  by   ... 

—  is  created  by  act  of  parties 
Rent— 

Suit  to  set  aside  sale  of  Fatni  Taluq  sold  for  arrears  of.. 
Patni  includes  any  intermediate  tenure  saleable  for  cur- 
rent arrears  of  ... 
Suit  for  arrears  of   ... 

—  becomes  due  at  the  last  moment  of  the  time  allow- 
ed  to  tenant  for  payment   ... 

"Arrears"  in  section  29  of  the  Rent  Act  means  "  rent 
in  arrears" 

Repeal— 


of  Acts  in  1st  schedule  ... 

of  interpretation  of   "  easement"  is  made  by 

•  section  3  Act  V  of  1882  in  Madras,   Ooorg  and 

Central  Provinces 

Representative- 
Legal,  under   Indian  Succession  Act  is  executor  or 

administrator,  taking  out  probate  or  an  administra- 
tion ... 
Legal,  of  a  Hindu  coming  within  Hindu  Wills'  Act  is, 

his  executor  or  administrator  taking  out  probate  ... 
Legal,  of  an  intestate  Hindu  coming  under  Wills'  Act  is 

grantee  of  probate  under  Act  V  of  1881 
To  ascertain  legal,  of  a  Hindu  not  coming  within  Wills' 

Act  and  whose  estate  is  not  represented  under  V 

of  1881  is  difficult 
Legal,  in  any  case  is  person  taking  deceased's  estate  ... 
Such  person  is,  for  all  purposes 
Legal,  of  an  intestate  who  obtained  administration  was 

allowed  money  realized  for  decree  obtained  against 

his  brother 
Legal,  of  all  intestate  Hindu  governed  by  Wills'  Act  is 

his  heir 
Person  taking  a  deceased  Hindu's  estate  must  be  treated 

as  his 
Judgment  obtained  against  such,  is  not  a  nullity  though 

after  decree  another  obtained  probate  as  executor... 
The  decree  is  sufficient  to  sue  executor  for  debt  .., 


Sec.  or 
Art. 

Note. 

Page. 

116 

b 

460 

116 

e 

461 

116 

d 

461 

116 

e 

461 

116 

f 

462 

140 
140 

a 

685 
635 

12 

... 

302 

12 
110 

... 

302 
461 

110 

a 

451 

110 

a 

461 

14 


21 


xvil 

e 

124 

xvii 

d,  o 

124,129 

xvii 

e 

125 

xvii 
xvii 
xvii 

125 
125 
126 

xvii 

n 

129 

xvii 

P 

130 

xvii 

u 

134 

xvii 
xvii 

n 

XL 

134 
135 

Digitized  by  VJ 

OOQk 

clxviii 


XNDJSXl 


Sec  or 
Art. 

Representative—  continued. 

of  deceased  plaintiff  or  appellant,  application  by...        171 

171  and  section  363  and  365  inapplicable  to  plaintiff 

"  dying  after  decree  ...  ...  ...        171 

They  do  not  apply  to  execution  proceedings  ...        171 

B.  H.  171-B  does  not  apply  to  application  to  sue  as 

pauper  ...  ...  ...    171-B 

G.  H.  171- A  and  178  do  not  affect  right  to  apply  in  a 
pending  suit,  that  is,  suit  in  which  no  final  order  is 
passed  ...  ...  ...  ...    171-B 

Application  in  case  where  both  parties  died  after  decree 
made  and  directions  given  for  having  a  scheme  of 
trusts  settled     ...  ...  ...  ..    171-B 

Bringing  in  representative  of  sole  defendant  falls  under 

178  ...  ...  ...  ...  ...    171-B 

171-B  does  not  apply  to  execution  proceedings  ...    171-B 

Rescission— 

Of  contract  suit  for ...  *«  ...  ...        114 

Residue- 
Suit  for  a  share  of,  bequeathed  by  a  testator  ...        128 

Resistance— 

Resistance  or  obstruction  to  delivery  of  possession  of 

land  sold  under  decree  in  execution      ...  ...        167 

To  apply,  under  168,'is  discretionary  ...  ...        168 

Section  328  of  C.  P.  0.  does  not  prevent  suit  by  plaintiff 

who  does  not  avail  himself  of  168  ....  ...        168 

Failure  to  complain  of  1st,  does  not  bar  complaint  of 

2nd  obstruction  in  time       ...  ...  ...        168 

Respondent— 

To  — '■  notice  of  objection  under  section  561  of  C.  P.  0. 

clause  2  section  5  does  not  extend        ...  ...  v 

Bill  No.  23  of  1886  proposes  its  extension  ...  ...  v 

M.  H.  171-B  inapplicable  to  deceased  ...  ...     171-B 

Observations  of  Hutchins,    J.,  that  party  can  avail 

himself  of  the  oversight  of  the  Legislature  ...     171-B 

A.  H.  Appellant's  application  to  make  deceased's  — *s 

representative,  party  to  appeal  does  not  fall  under 

171-B  ...  ...  ...  ...    171-B 

Observations  of  Pethram,  C.  J.,  on  171-B  ...  ...     171-B 

C.  H.  defendant  includes  a        ...  ...  ...     171-B 

C.  H.  and  B.  H.  since  held  defendant  does  not  include...     17142 
A.  H.  171-B  applies  to  representative  of  a  deceased 

defendant  respondent,  made  a  ...  ...     171-B 

A.  H.  171-B  applies  to  judgment-debtor's  appeal  against 

order  refusing  to  declare  him  insolvent  ...    171-B 

Resumption- 
Resumption  of  rent-free  land,  suit  for        ...  ...        ISO- 

Bevenue  purchaser's  right  dates  from  time  that  right 

accrued  to  Government      ...  ...  ...         130 

In  case  of  lease  in  lien  of  maintenance  grantor  or  suc- 
cessor will  be  barred  for  the  time  of  his  enjoyment 
if  he  does  not  contest  for  12  years'  grantee's  claim 
to  hold  inperpetuity  ...  ...  ...         130 

A.  H.  Rent-free  tenure,  the  revenue  of  which,  grantor 

undertook  to  pay  is  liable  to  ...  ...        130 


Note. 


a 
b 


h 


i 


b 
e 


s 
s 
a 


e 
c 
d 

e 


d 

e 


Page. 

619 

619 
620 


625 

625 

636 
627 

456 
484 

617 
618 

618 

618 


«5 

85 
621 

621 


62S 
623 
624 

624 

624 

601 
501 

502 
502 


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INDEX. 


Resumption — continued. 

Possession  as  Lakheraj  since  1st  December,  1790,  bars, 

suit  by  Government  and  others 
' Law  concerned  with  the  subject  of  Lakheraj  grants    ... 
More  than  12  years'  possession  after  accrual  of  right  to 
,  bars  suit  for 


Sec.  or 
Art. 


130 
130 

130 


Revenue- 
Suit  to  set  aside  sale  by  Collector  or  officer  of 
Suit  to  set  aside  sale  to  be  brought  within  one  year  from 
the  time  it  becomes  conclusive 

" sale  completed  at  the  end  of  one  month  after  sale.. 

Tenant's  suit  to  recover  a  village  sold  for  rent  alleging 

non-service  of  notice  held  barred 
Suit  to  set  aside  fraudulent  sale  does  not  come  under  ... 
Suit  to  cancel,  sale  when  no  arrears  were  due 
Such  sale  beiug  void,  decree  for  possession  without  an- 
nulling it  is  sufficient 
One  year's  rule  does  not  affect  a  mortgagor's  suit  for 

redemption 
A  co-sharer  aggrieved  by    fraudulent,    sale    brought 
about  by  another  co-sharer,  might  sue  for  reconvey- 
ance of  property  though  one  year  had  elapsed 
Order  mentioned  in  clause  (6)  is  an  order  made  in 

judicial  capacity 
Suit  for,  paid  by  a  lessee  falls  under  132     ... 
Suit  by  purchaser  in,  sale  time  runs  from  purchase,  no 
special  provision  for  such  suits  in  the  Limitation 
Act  ... 

Reversioner— 

of  servient  tenement,  exclusion  in  favor  of 

English  Statute  excludes  the  time  during  which  an  in- 
fant, insane  person,  or  married  woman,  is  owner  of 

the  servient  tenement 
Difference  between  the  English  and  the  Indian  Acts    . . . 
Indian  Act  enables  a  person  to  acquire  a  right  of  way 

without  reference  to  any  grant  expressed  or  implied 
Conditional  exclusion  in  favour  of,  of  servient  heritage... 
Effect  of  the  exclusion 
To s  suit    for    possession  and  declaration  that 

adoption  was  illegal,  time  runs  from  widow's  death 

if  adoption  was  not  as  heir  to  her  husband 
might  sue  during  widow's  life,  time  to  set  aside 

invalid  adoption ... 
To s  suit  for  possession  from  defendant  who  set 

up  adoption  by  widow  with  permission,  time  held  to 

run  from  widow's  death 
To  suit  to  declare  adoption  invalid,  limitation  held  to 

ran  from  adoption  under  the  Acts  of  1859  and  1871 
-8  born  after  the  expiry  of  12  years  from  date  of 

alienation,  cause  of  action  for  declaration  is  not 

revived  in  favour  of 
Suit  for  shares,  by, s  who  and  their  predecessors 

never  held  possession  does  not  fall  under  127 

Snitby 

Reversion 


Note. 


f 

g 


12 


clxix 


Page. 


502 
502 

504 


302 


12 
16 

X      314 
X  314,  315 

12 
12 
12 

y 
y 

z 

315 
316 
316 

12 

z 

317 

12 

2-a 

317 

12     2-b 


12 
99 


2-c 

b 


144  2-m 


xxvii 


xxvii 
xxvii 


a 
b 


318 

318 
443 


578 


256 


257 
257 


xxvii        C  258 

xxvii        d  258 

xxvii  ,     e     258,  259 


119 

C 

467 

119 

c 

467 

119 

d 

468 

119 

e 

468,  469 

126 

a 

491 

127 

e 

495 

140      ...  535 

140       b  536 


Digitized  by 


Google 


cl«  IN.DB*, 


*$£*    Not*.         Pi«e, 


140 
140 

d 

587 

140 

* 

587 

140 

« 

687 

140 

h 

688 

141 
141 

a. 

544 
545 

141: 

8 

547 

141 

h 

548 

Reversioner— continued. 

Whether,  has  fresh  cause  of  action  as  to  estate  when. 

widow  dies,  or  whether  he  is  barred,  if  she  would 

have  been  barred  ...  ..,  .„        ^40       ^  586 

As  per  Peacock,  C.  J.,  possession,  barring  widow  bars  the 

heir  which  would  not  be  the  case  if  she  was  tenant 

for  life 
P.  C. — is  bound  by  decision  against  widow 
Comparing  a  widow  to  a  tenant  for  life  was  calculated 

to  mislead 
To  hold,  is  not   barred  by  limitation  against  widow! 

would  be  anamolous 
Observation  of  Garth,  0:  J.,  on  the  Acts  of  1871  and  1877- 

which  allows  to,  from  the  time  estate,  falls  in       .„ 

B.  H.  widow  represents  estate  under  certain  circum- 

stances and  limitation  might  run  against  the  heir, 

to  the  estate      ...  ...  ...  ...        140       j  539 

In  — - — 's  suit  for  property  transferred  by  widow  by  an 

ikarar,  possession  held  not  adverse       ...  ...        141       a      54$,  $48 

C.  H.  adverse  possession  accrues  even  during  widow's  f 

life-time  ...  .,. 

is  not  a  necessary  party  to  a  suit  to  foreclose   ... 

as  heir  of  deceased  female  on  the  very  same 

cause  of  action  which  accrued  to  her  does  not  fall 
under  141 

#  was  held  not  entitled  to  avail,  himself  of  limita- 
tion whioh  widow  had  waived 

Review— 

Applications  for,  may  be  admitted  after  time  on  suffi- 
cient cause  being  shewn    ...  ...  ...  v        ...  2JJ 

For  delay  in  applying  for,  pendency  of  second  appeal 

and  ignorance  of  effect  ofi  judgment  is  no  exouse  ...  v       fc  29,80 

Counsel's  failure  to  read  a  deed,  is  not  sufficient  cause. ...  v       o  80 

For  an  order  under  section  629  restoring  rejected  ap* 

plication  for      ...  ...  ...  ...        16Q        ...  610 

of  judgment  of  any  High  Court  or  Chief  Court  of 

Punjab  on  original  sidB.      ...  ...  ...        162        ,„  612 

Review  of  judgment—  (See  Application.) 

Application  for,  except  in  cases  provided  for  by  No.  16fc       178       ...  629 

Section  21,  Act  XI  of  1865  is  in  force,  notwithstanding 

section  623  of  C.  P.  C.        ...  ...  ...        178        ft  629 

Application  to  amend  decree  which  is  at  variance  with, 

the  judgment  falls  under  178  ...  ...         17$       b  629 

Revival- 
Provisions  against,  of  right  to  sue  barred  under  the)  ikct 

of  1871  or  any  other  Act  thereby  repealed  ii      ...  14 

A.   H.  application  to  execute  after  disposal  of  suit 
against  claimant  is  continuance  of  former  proceed,-, 
ings...  ...  ...  ...        1,79,     -fee  688 

After  removal  of  objection  in  claimant's  suit  is,  of  for- 
mer proceedings  ...  ...  17,9     44  684 

C.  H.  after  dismissal  of  decree  holder's  suit  to  hold 
attached  property  liable  must  be  revival  of  previous 
proceedings       ...  ...  ...  ...        179     4s%  684 

Applying  for  attachment  of  some  other  property  is  not..        179      ^f  684 


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index.  chrxi 

Koto,        Paejt. 


Bee.  or 
Art.. 


xviii 
12 

m 

146 
302 

12 

a 

302 

12 
12 

0 

302 
303 

Revival— continued 

After  disposal  of  objector's  suit  in  which  execution  was 

suspended  by  injunction  is,  of  farmer  proceeding...        179    4-h  686 

tttevivor— 

Of  Judgment  of  High  Court      ...  ...  ...        180      ...  701 

Bight- 
Enjoyment  as  of      ...  ...  ...  ...       xxvi      ...  213 

Salary — (See  Recurring  Right,) 

Suit  by  clerk  for,  drawn  from  treasury  by  the  head  of 

the  office  is  one  'for  money  had  and  received         ...  62       j  388 

HM6- 

Time  for  Collector's  application  to  cancel  illegal,  under 
Bombay  Act  V  of  1862  runs  from  date  of  knowledge 

Suit  to  set  aside,  under  court  decree 

When,  is  one  of  the  kinds  named  in  11,  suit  to  set  it 
aside  falls  under  it 

Suit  to  recover  what  was  taken  in  excess  of  what  was 
sold  is  not  suit  to  set  aside... 

Suit  to  set  aside,  for  irregularity  falls  under  12 

M.  H.,  rll  dees  not  indicate  that  it  applies  only  to  parties 

to  suits  ...  ...  ...  ...  12       d  303 

When  property  itself  is  sold,  can  only  be  set  aside 

within  one  year.  ...  ...  ...  12       &  303 

M.  H.  third  parties'  soit  to  recover  land  sold  in  execu- 
tion held  not  barred  by  12 ...  ...  ...  12       d      303,304 

Suit  to  cancel  court,  made  as  property  of  another  per- 
son does  not  fall  under  12  ...  ...  ...  12       e  304 

Suit  to  recover  plaintiff's  share  from  purchaser  who 
took  possesion  under,  of  plaintiffs  co-sharer's  inter- 
est is  not  affected  by  one  year's  rule    ...  ...  12        f  604 

Suit  for  property  setting  aside,  certificate,  which  wrong- 
ly included  it  is  not  affected  by  12       ...  ...  12      .g  304 

Suit  to*  cancel -sale  made  by  court  having  no  jurisdiction 

is  not  affected  by  12  ...  ...  12       h  805 

Defendants  suit  to  cancel  court,  and  recover  property 
and  reversal  of  decree  held  barred  though  brought 
within  a  year  of  reversal     ...  ...  ...  12        i  805 

—  is  not  rendered  invalid  as  against  purchaser  by 

subsequent  reversal  of  decree  ...  ...  12        j  305 

C.  H.  -suit  to  set  aside,  after  decree  was  held  in  appeal 

as  barred  fails  under  12      ...  ...  ...  12       k  306 

—  held  under  an  erroneous  order  is  not  a  nullity  until 

set  aside  by  suit  ...  ...  ...  12       k  307 

"  Disallowed"  in  section  312  of  C.  P.  C.  has  no  reference 

to- an  order  on  appeal         ...  ...  ...  12       k  307 

When  execution  is  set  aside  as  barred,  defendant  can 

sue  to  set  aside...  ...  ...  ...  12        1  807 

When  purchaser  is  creditor  himself,  it  cannot  be  said, 

is  made  to  bond-fide  purchaser  for  value  without 

notice  ...  ...  ...  ...  12        1  808 

C.  H.  Execution,  set  aside  on  eqnitable  grounds  ...  12      m  308 

Decree-holder  was  directed  to  re-convey  on  payment  of 

debt  by  judgment-debtor    ...  ...  ...  12      m  308 

C.  H.  suit  to  set  aside,  that  decree  and,  were  fraudulent 

does  not  fall  under  19        .,.  ...  ...         12      n      308,309 


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clxxii  INDEX. 


^A01*    Note.        Page- 


Sale — (continued.) 

Fraudulent,  entitles  plaintiff  to  benefit  of  aection  18   ...  12       o  309 

If  setting  aside,  is  only  collateral  to  the  main  object  of 

suit  it  is  not  necessary  to  file  a  suit  within  one  year.  12       p  310 

M.~H.  suit  to  set  aside  improper,  brought  one  year  after 

confirmation  held  barred    ...  ...  ...  12       q  311 

Son's  suit  to  succeed  to  temple  management  brought  ~ 

one  year  after  court,  of  father's  right  was  allowed 

as,  did  not  affect  son's  right  ...  ...  12        r  311 

M.  H.  clause  (a)  inapplicable  to  a  junior's  suit  to  cancel 

court,  for  decree  against  karnavan  personally       ...  12        8  311 

Suit  by  vendee  of  an  auction-purchaser's  right  for  land 

held  by  defendant  as  auction-purchaser  does  not 

fall  under  12     ...  ...  ...  ...  12        t  312 

Auction -purchaser's  suit  for  property  as  per  certificate 

or  for  refund  of  purchase  money  if  possession  of  en- 
tire property  cannot  be  given  ...  ...  12       n  312 

Such  suit  as  one  to  set  aside,  fell  under  12  and  as  one 

for  compensation  has  3  years  ...  ...  12       U  313 

Plaintiff's  suit  for  property  purchased  by  2  joint-debtors 

through  another  in  execution  at  the  instance  of  the 

assignee  of  the  decree  benami  for  them,  falls  under 

12     ...  ~  ...  ...  ...  ...  12       v  313 

is  binding  though  decree  under  which   it  was 

made  is  voidable  ...  ...  ...  12       v  314 

Application  to  set  aside  execution,  for  irregularity      ...        172      ...  628 

Saving— 

Of,  titles  already  acquired  ...  ...  ...  ii      ...  14 

Of,  Act  IX  of  1872  section  25    ...  ...  ...  ii      ....  14 

Sea— -(See  under  Fishery.) 

Sea-man— 

's  suit  for  wages  ...  ...  ...        101       ...  444 

—  is  person  engaged  in  navigating  ships  on  high  seas 

as  opposed  to  waterman      ...  ...  ...        101        a  444 

Secretary  of  State  for  India  in  Council- 
Suit  by,  or  in  behalf  of  ...  ...        149      ...  603 

B.  H.  under  IX  of  1871  no  difference  between  Govern- 
ment and  subjects  ...  ...  ...        149       a  603 

M.  H.  Execution  applications  by  Government  are  go- 
verned by  ordinary  limitation  ...  ...         149        a  603 

Saving  clauses  in   XIV   of  1859   inapplicable  to  suit 

against  Government  under  IX  of  1859...  ...        149       b         ~    603 

Time  for  suit  for  confiscated  property  runs  from  actual 

attachment        ...  ...  ...  ...         149        c  604 

List  of  confiscated  houses  is  not  proof  of  attachment  . . .        149        C  604 

Section- 
Section  20  of  C.  P.  C.  of  1882   ...  ...  ...         xiv      ...  96 

Seduction — (See  under  Service.) 

Servant—  (See  Wages.) 

Teacher  of  fencing  is  not  a        ...  ...  ...  7       a  276 

Person  entitled  to  sweep  and  supply  flowers  in  temple 

is  not,  under  7  „•  ...  .,.  ...  7       b.  276 


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index.  clxxiii 


See.  or 
Art. 


Note.        Page. 
Service- 
Loss  of,  caused  by  seduction  of  servant  or  daughter    ...  26      ...  340 
Action  is  brought  to  repair  the  outrage  done  to  parental 

feeling  ...  ...  ...  ...  26        a  340 

A  master  may  sue  for  debauching  his  servant  ...  26       a  340 

A  Hindu  father  might  sue  for  loss  of  his  abducted 

daughter's  service  ...  ...  ...  26       b  341 

Observations  of  Stuart.  C.  J.,  and  Oldfield  J.,  ...  26       b  341 

Servient  owner— 


-'s  obligation  is,  that  he  shall  not  unreasonably 


62 

0 

385 

62 

d 

385 

62 

e 

386 

62 

f 

386 

62 

k 

388 

123 

f 

487,488 

123 

AT 

488 

narrow  the  road  ...  ...  ...    zxvi  8  .230 

Setting  aside  of  instruments— {See  Article  91,  91), 
Set-Off- 
Defendant's  claim  of  damages   as,  against  plaintiff's 

claim  held  to  fall  under  83...  ...  ...        83         e  415 

Share— 

A  divided  member's  suit  to  recover  his,  in  money  realiz- 
ed under  a  bond  held  not  in  common  comes  under 

62     ... 
Suit  for  plaintiff's,  of  his  ancestor's  money  drawn  by 

his  brother  falls  under  62    . . . 
Suit  of  one  co-sharer  for  his,  against  another  bound  to 

recover  arrears  falls  under  62 
Divided  son's  suit  for  his,  of  debt  realized  by  father 

falls  under  62    ... 
Suit  by  one  of  two  decree-holders  for  his,  against  the 

assignee  of  the  other  falls  under  62 
Gift  of  the,  of  rent  in  profit  held  to  amount  to  the  gift 

of  a,  in  the  corpus  of  the  estate 
Two s  ordered  to  be  withheld  till  sharers  paid  barred 

debts  their  ancestors  owe  to  the  estate  ... 

Suit  for,  in  land  settled  with  original  owner's  heirs 

after  confiscation  by  Government  has  12  years  from 

order  for  settlement  ...  ...  ...       144        2-k  577 

■  in  houses  directed  to  be  restored  to  original 

owners  after  confiscation  should  be  dealt  with  as  if 

there  was  no  confiscation  if  defendant  held  pos-  • 

session  at  the  time  of  confiscation         ...  ...       144        2-k       •    578 

Sheriff- 
Reversal  of  execution  does  not  restore  the,  to  the  term 
but  to  the  money  by  which  he  came  by  act  of 
law  ...  ...  ...  ...  ...         12  j  305 

Signature—  (See  Acknowledgment) 
Singlebond— 

Suit  on,  where  a  day  is  specified  for  payment 
expresses  a  single  obligation  without  alterna- 
tive condition     ... 

is  a  bill  or  written  engagement  for  payment 

of  money  without  penalty   ...  ..; 

Suit  on,  where  no  day  is  specified 

Slander- 
Suit  for  compensation  for  ...  ...  ... 

*    Words  of i  which  are  in  themselves  actionable  „• 


66 

400 

66        a 

400 

.    66        b 
67        ... 

400 
402 

25 

25        a 

339 
339 

Digitized  by  VjO( 

DQle 

tftzxi*  nr.D.Kx. 


B5*or    Note.     ^  Page. 


Slander— continued. 

Words  which  are  not  aotioiiablc in. themselves  till epe- 

rial  damage  results              ...                ...                ...  86  b  889 

of  title       ...                ...                ...                ...  25  lb  840 

In  nob cases  limitation  runs  from  damage                  ...  26  <«  840 

fJOB  (&#?  oho  under  $har§) 

■  'a  cause  of  action  accrues  when  father's- alienee 
takes  possession  of  property  ...  ...        126       C  408 

Subsequent  birth  of  a  younger  brother  does  not  giro  a 

new  canie  of  action  ...  ...  ...       (186       c  .  402 

"Special  l*w»— 

Of  limitation  saving  of  ...  ...  ...  vi        ...  87 

Special  Umitation- 

C.  H.  tection  5,  applies  to,  provided  by  other  acts  v       &  80 

M.  H.  section  5,  applies  only  to  cases  dealt  with  under 

the  general  Act  of  Limitation 
C.  H.,  section  5,  applies  to  suit  under  Registration  Act. 
■  prescribed  by  special  and  Local  Laws  are  not 

affected  by  Act  XV  of  1877 
C.  H.  General  Provisions  of  the  Act  of  1877  applies  to 

oases  for  which,  is  provided  for  Local  and  Special 

Laws 

B.  H.,  also  held  so    ... 
M.  H.,  Village  Munsffs  suits  are  not  excluded  from  XV 

of  1877 

0.  H.  Act  IX  of  1871  inapplicable  to  suits  under  XXV 
of  1857  and  VIII  of  1869  B.  C.  for  relaxing  the 
time  allowed  by  them 

A.  H.,  section  16  Act  IX  of  1871  unapplioable  to  suit 
under  Act  XVm  of  1878    ... 
.    M.  H.  section  5  of  Act  IX  of  1871  inapplicable  to  ap- 
peals under  XXVIII  of  1860  and  Vin  of  1865      . . . 

P.  C.  saving  clauses  as  to  minors  Ac,  under  Act  XIV  of 
1&59  inapplicable  to  a  suit  under  Act  IX  of  1850  ... 

C.  H.  sectioni  II  and  XII  of  Act  XIV  of  1859  to  apply 

to  limitation  under  section  246  of  Aet  VIII  of  1859. 

Spaoifie— 

Moveables  suit  for    ...  ...  ...  ...    48,49      ...      869,870 

Specific  Performance— 

of  a  contract  ...  ...        118      ...  452 

Decree  in,  is  discretionary  and  discretion  is  not  arbi- 
trary      ...  ...  ...        118       b      452,458 

What  delay  may  be  fatal  to  a  suit  for         ...  ...        118       -£  458 

The  principle  is  an  important  one  to  be  considered  by 

court  in  the  exercise  of  judicial  discretion  ...        118       c  458 

C.  H.  Suit  brought  in  1875  to  enforce  agreement  of 

1858  refused  in  1874  held  not  barred   ...  ...        118       d  453 

Suit  brought  in  1874  to  enforce  agreement  of  1860  the 

condition  precedent  of  which  was  performed  in 

1862  held  not  barred  as  defendant  refused  only 

shortly  before  suit  ...  ...  ...        113        6      453,454 

Plaintiffs  were  not  disentitled  to  relief  by  delay  ...        113       *cj  4eH 

Suit  for,  of  contract  of  sale  and  possession  is  governed 

by  118  ~,  ...  ...  ...        118      *  454 


v 

V 

a 
f 

81 
81 

vi 

... 

87 

vi 
vi 

a 
b 

37 
38 

vi 

<o 

38 

vi 

4. 

89 

vi 

« 

89 

vi 

£ 

40 

vi 

* 

40 

vi 

Jl 

41 

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Iftfrifc*  ehwfc 

B3Srt?r  Note#     Page* 

Specific  Performance— continued. 

Belief  by  giving  posssjssjq^  being*  conftwed  in^ueliet  by, 

of  oontre^tr  if  latter  relief  la  barred,  suit  fett  pot- 

aesaion  cannot  be  maintained  ...  ...        H&       f"  455 

Vendee's  suit  for  possession  doe*  not  fall  under  113:   ...        lid:      g  455 

Suit  on  a  registered  award  for  money  is  one  for  ...        118:      &  455 

Specific  relief  Act  places  t*wat)d& on  tbe.same  footing,  as 

contract  for  t^  pnrpoees  of  chapter  II  of  that  Act    ...        lilflt      h,  455 

If  demand  from  plaintiff,  is  a  condition,  oause  ot  action 

accrues  on)y- on  demand      ...  ...  ...        118        i  456 

Specific  Belief  Act- 
Suit  under  seotion  9  of,  for  possession  of  real  property*  8      ...  273 
Section  9  of,  is  intended  to  restore  possession  without 

reference  to  title  ...  ...  3       a  273 

Its  object  is  to  prohibit  breaches  of  the  peace  ...  3       a  3$%. 

Carrying  away  crops  is,  not  dispossession  wjien  lease 

was  for  payment  of  rent    ..."  ...  ....  8       1),  278 

Stake-fishing— (See  ola*  under  Fishery.) 

The  facts  of  the  case  relating  to  ...  ...  xxvi  2-a  249 

System. of ,  alopg  Malabar  coast  is  ancient ...  ...  xxvi  Jfc-qj  26° 

English  Law  deems,  a  private  mode  of  fishing  incon- 
sistent with  common  fishery  xxvi  $-q  250 

Starting  Feint-* 

Decision  under  3  or  dispossession  under  such  decision 

does  not  give  a  fresh  ...  ...  ...  8 

Sale  after  dismissal  of  claim  does  not  give  unsuccessful 

claimant  a  fresh  ...  ...  ...  11 

Reversal  of  decree  under  which  property  was  spld  does 

not  give  a  fresh,  to  defendant  ...  ...  12 

Sfcatute- 

Repeal  of,  cannot  take  away  vested  rights ...                ...  r 

is  remedial  and  neither  prohibitive  nor  exhaustive  xxvi 

Suit  for  penalty  under             '  ...                ...                ...  6 

Statute  of  frauds— 

requires  a  contract  which  is  not  to  be  performed; 

within  3  years  to.be  in  writing  ...  57 

In  India  people  are  at  liberty  to  majce  any  verbal  con- 
tract which  the  Legislature  could  not  nave  intended 
to  prohibit         ...  ....  ...  ...  57. 

Steam  Navigation  Company— (See  also  under  Carrier} 

Though,  are  not  common  carriers  tpv  the  purposes  of 
The  Indian  Carrier's  Act  they  are  common,  carriers,  sp 

long  as  goods  remain  in  their  hands  undelivered  .....       1^5.      d  459 

Smb-Jndge— 

cannot  over-ride  District  Judge's  order  admitting 

appeal  after  time  ...  ...  v        q,  34 

Substantive  Law— 

In  matters  of,  Statute  in,  fp^ce  at  tbq,  arising.  o£  rigjjt 

governs  ...  ...  i       %  5 


< 

274 

▼*w 

801 

i 

805 

4 
y 

7 
285 
276 

% 

376 

a 

377 

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clxxvi  IJlDII. 


*£*    Koto.         P«e. 


Substitution— 

— —  of  President's  name  for  that  of  Secretary  after  time 

is  not  affected  by  section  22  ...  ...         xxii         i  159 

Plaintiff  who  sued  as  assignee  subsequently  calling  him- 
self Attorney  for  mortgagee  is  not  affected  by 
section  22  ...  ...  ...  ...         xxu        j  196 

of  true  representative  of  deceased  debtor  after 

time  bars  suit    ...  ...  ...  ...         xxii        k  196 

of  son  after  time  for  mother  who  brought  suit  held 

barred  ...  ...  ...  ...        xxii         1  196 

Successive  Breaches— 

Of  contract  suit  for  ...  ...  ...  ...        115      ...  456 

Bufftoient  Causa — (See  section  5  and  notes  under  it) 

Snit- 

haying,  under  the  Act  of  1877,  shorter  period  than 

under  that  of  1871  ...  ...  ...  ii        ...  15 

on  a  pronote  barred  under  XIV  of  1859,  held  not 

revived  by  IX  of  1871  ...  ii        b  16 

Time  for,  to  share  in  joint  property  is  shortened  by 

altering  starting  point        ...  ...  ...  ii  f  18 

against  vendee  not  in  good  faith  from  mortgagee  is 

shortened  by  XV  of  1877    ...  ...  ...  ii         g  18 

Ac.  instituted  after  period  of  limitation  shall  be 

dismissed  ...  ...  ...  ...  iv        ...  24 

is  instituted  when  plaint  is  presented  to  proper 

officer  ...  ...  ...  ...  iv         ..  24 

against  a  company  wound  up  by  court    when 

claimant  sends  in  his  claim  to  official  liquidator     ...  iv        ...  24 

against  minors  is  instituted  when  plaint  was  pre- 

sented  and  not  when  ad  litem  guardian  was  ap- 
pointed ...  ...  ...  ...  iv        6  27 

If  time  for,  expires  on  a  non-court  day  it  may  be  pre- 
sented when  the  court  re-opens  ...  ...  v         ...  29 

by  a  ceetuique  trust  against   trustee  for  account 

does  not  come  within  section  10  ...  ...  x         0  59 

Such,  would  be  barred  after  six  years  from  plaintiff's 

majority  ...  ...  ...  ...  x         0  60 

to  come  within  section  10  must  be  for  trust  property 

in  trustees'  hands  ...  ...  ...  x         0  60 

against  executor  or  his  representative  for  account 

does  not  come  within  section  10  ...  ...  x         p  60 

to  ascertain  if  any  trust  remained  to  be  admin- 
istered held  barred  by  120  ...  ...  ...  x         p  61 

to  charge  property  with  trust  as  per  will  and  for 

account  held  to  come  within  sec.  10    ...  ...  x       q  61 

—  to  make  defendant  liable  for  money  lost  to  caste 
and  temple  through  his  misconduct  comes  within 

sec.  9  ...  ...  ...  ...  x        t  63 

—  by  a  deceased  partner's  heir  for  a  share  of  a  speci- 
fic asset  recovered  by  surviving  partner  does  not 

come  within  sec.  10  ...  ...  ...  x       v  65 

Such,  will  lie  though  right  to  sue  for  partnership  ac- 
count was  barred  ...  ...  ...  xt  65 

—  to  participate  in  unclaimed  dividends  set  apart 

does  not  come  within  sec.  10  ...  ...  x      w         65,  66 


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Note.        Page. 


Suit— continued. 

to  make  good  loss  caused  by  a  deceased  trustee 

does  not  come  within  sec.  10  ...  ...  z     2-C  70 

'■*   Such,  comes  under  98  ...  ...  ...  x      2-C  70 

on  a  bond  for  barred  debt  is  not  affected  by  sec.  19.        xiz      2-k  169 

for  compensation  for  act  not  actionable  without 

special  damage ...  ...  ...  ...       xxiv      ...  206 

for  money  illegally  levied  may  fall  under  2  ...  2       b  272 

for  refund  of  income-tax  paid  twice  over  %       C  272 

for-  money  on  simple  mortgage  deed  does  not  fall 

under  66  ...  ...  ...  ...  66       b  401 

on  registered  bond  does  not  fall  under  116  ...  66        C  401 

on  bond  entitling  creditor  to  sue  within  time  on 

default  or  on  doubt  of  debtor's  ability  falls  under  66  66       d  401 
on  bond  specifying  a  day  for  repayment  and  enti- 
tling creditor  to  sue  before  or  after  term  on  failure 

to  pay  interest  or  premium  falls  under  66  ...  66       6  401 
does  not  terminate  until  decree  is  issued  with  costs 

taxed  ...  ...  ...  ...  86       d  419 

B.  H. terminates  when  decision  is  given  in  court 

in  which  suit  is  commenced  ...  ...  85       6  .419 

Summary  procedure — (See  Negotiable  Instrument) 

Leave  to  appeal  and  defend  a  suit  under    ...  ...        159      ...  610 

Surety— 

was  held  liable  under  sec.  72  of  the  Deccan  Agri- 
culturalists Belief  Act  though  action  against  prin- 
cipal was  barred  ...  ...  ...  69       g  880 

Where  a,  promises  "  if  the  principal  does  not  pay  eventu- 
5    •  ally  I  will"  time  does  not  run  in  favour  of,  until 

creditor  demands  compensation  ...  ...  65       g  399 

Suit  by,  against  principal  debtor  ...  ...  81       ...  415 

wjw  has  paid  creditor  and. not  one  compelled  to 

pay  contribution  to  co-surety  falls  under  81  ...  82  .     a  415 

Suit  by,  against  co-surety  ...  ...  ...  82       b  415 

Surplus  COllactions- 
Sait  for  by  mortgagor  ...  ...  ...        105      ...  447 

Survivorship— 

If  right,  to  present  enjoyment  vesting  in  senior  of  tho         , 

family  is  barred,  right  of,  dependent  on  it  is  also 

barred  ...  ...  ...  ...        141        £  546 

— —  vesting  in  other  co-parceners  cannot  arise  as 

between  themselves  until  each  branch  entitled  to 

preferential  enjoyment  becomes  extinct  ...        141        f   .         546 

Symbolical  possession— 

amounts  to  actual  transfer  as  between  parties        138        £  629 

But  does  not  operate  as  against  third  party  ..<        144    2-g  675 

Tavern  bill— (See  hotel  bill.) 

Tenant — (See  also  under  Landlord.) 

forcibly  dispossessed  might  sue    landlord    for 

possession  ...  ...  ...  ...  3        e  274 

,  suit  by  land-lord  against  ...  ...        189       ...  630 

'  Defendant  alleging  ho  was  tenant  of  the  person  from 
whom  plaintiff  claims  will  not  shift  the  onus  of 
proof  w.  ...  ...  ...        142       g  552 

W 


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■ft*  Note.         Page. 


Tenant — (8ee  also  under  Landlord)— continued. 

When  the  person  from  whom  defendant  claims  is  proved 

to    be  his    tenant,   defendant  should  prove  when 

nature  of  possession  changed 
Occupancy,  ejected  otherwise  than  nnder  section  22  of 

VIII  of  1869  most  sue  for  possession  within  a  year 

for  ejectment.    ...  ...  ...  •%• 

Theft- 
Suit  for  specific  moveables  acquired  by       ...  ... 

Tidal  navigation  River—  (See  under  Fishery.) 
Indian  cases  on  the  right  of  fishing  in,  and  seas 
Observations  of  West,  J. 
Navigable  in  legal  sense  as  applied  to  a  river  in  which 

soil  belongs  to  Crown  imports  that  the  tide  ebbs 

and  flows  ...  ...  ...       xxvi    2*t  252 

Time— 


142 

h 

552 

142 

i 

552 

48 

••• 

369 

xxvi 
xxvi 

2-r 
2-r 

251 
251 

when  once  begins  to  run  no  subsequent  inabi- 
lity stops  it        ...  ...  ...  ...  ix      ...  47 

—  shall  be  suspended  while  administration  granted 

to  debtor  continues  ...  ...  ...  ix      ...  47 

Title- 

may  be  acquired  under  the  act  by  a  person 

having  no  other  right  ...  ...  ...      xxiii       X  284 

Other, s  and  modes  of  acquiring  easement  are  not 

excluded  by  the  Act  ...  ...  ...       xxiii       z  234 

Declaration  of,  may  be  made  on  12  years'  adverse  pos- 
session ...  ...  ...  ...        144        i  661 

Transfer- 
ror arrears  of  revenue,  suit  to  set  aside     ...  ...  15      ...  829 

Tree- 
Suit  for, s  is  suit  for  land  ... 

Cut  down  by  lessee  suit  by  lessor  for  value  of 

Trespass- 
Seizure  of  a  well  is  continuing,  on  real  property  till 
trespasser's  possession  comes  to  an  end  ... 

Opening  drain  on  plaintiff's  land  is 

Continuing,  cannot  operate  to  prevent  trespasser's  pos- 
session extinguishing  owner's  right  under  section  28. 

Suit  for,  and  to  restrain  the  opening  of  doors  into  a 
lane  over  which  plaintiff  had  a  right  of  way 

Casual  trespasser's  possession  is  not  possession 

What  is,  upon  immoveable  property 

Seizure  of  a  well  is}  and  continues  as  such  till  tres- 
passer's possession  comes  to  an  end     ...  ...  89       b  854 

Trust- 
Express,  in  English  Act  includes  implied  and  resulting, 

but  not  constructive  ...  ...  ...  x       6  52 

not  specified  by  testator  did  not  come  in  section 

10,  Act  IX  of  1871  ...  ...  ...  x       e  52 

A.  H.  constructive,  held  to  exist  and  limitation  not  to 

apply  ...  ...  ...  .,.  x        j  56 


xxviii 
108 

g 

268 
449 

xxiii 
xxiii 

d 
d 

200 
201 

xxiii 

1 

205 

xxvi 

8 

89 

r 

d 

a 

•  229 
274 
353 

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INDEX, 


Tnurt — continued. 

Constructive,  held  to  require  court's  equitable  interfer- 
ence... 

may  be  declared  directly  or  indirectly 

Constructive  — — s  are  those  which  court  elicits  from 
acts  of  parties    ... 

Suit  for,  property  for  benefit  of,  falls  under  section  10... 

property  is  recoverable  from  those  in  whom  it  is 

vested  in 

Suit  to  ascertain  if  any,  remained  to  be  administered 
does  not  come  within  section  10 

To  charge  property  with,  as  per  will  and  for  account 
falls  under  section  10 

is  created  by  testator  giving  particular  property 

to  pay  a  particular  debt      ... 

— — —  is  not  created  by  charge  of  debts  generally  by 
testator  ...  ...  ...  ... 

■  of  a  general  nature  such  as  the  law  imposes  on 
executors  and  others  of  fiduciary  possession  does 
not  eome  within  section  10  ... 

Besulting,  not  expressly  declared  does  not  come  within 
section  10 

is  not  created  by  words  "you  should  give  my 
brothers  their  wives  and  children  according  to  your 
wishes" 

—  is  not  created  unless  words  are  imperative  and 
subject  and  object  are  certain  ...  .., 

■  will  not  arise  if  words  oommunicate  a  mere  dis- 

cretion 

Village  administration  paper  providing  for  surrender  of 
lands  to  absent  share-holders  on  return  does  not 
constitute,  against  actual  occupiers 

Before  such  co-sharer  can  be  taken  to  have  held  as 
trustee  there  must  be  evidence  that  he  accepted 
such  ...  ...  ...  ... 

Even  if,  was  established  purchaser  is  provided  by  limi- 
tation 

Statement  in  village  record-of -right  that  purchaser  was 
willing  to  surrender  2  shares  on  plaintiffs  father 
paying  half  the  revenue  would  not  show  that  the 
shares  vested  in  him  in,  to  bo  surrendered  to  plain- 
tiff s  father        :.: 

The  terms  "  Wa-jib-ul-ar*t"  were  held  to  suggest  the 
creation  of  such',  that  absentees  from  village  claim. 

A  person  having  accepted  allotment  of  shares  to  him 
agreeing  to  transfer  them  to  plaintiff  on  payment 
and  paying  him  dividend  after  payment  would  not 
amount  to  a  "  for  any  specific  purpose" 

Plaintiff  might  claim  Bpecifio  performance  of  agreement. 

Entrusting  servant  with  money  for  a  particular  purpose 
creates  a 

Express  may  exist  without  expression  of  words  when 
property  or  money  is  deposited  for  depositor's  bene- 
fit    ... 


olxxix 

Sec.  or 
Art. 

Note. 

Page. 

x 

X 

i 

67 
57 

X 
X 

i 

67 
68 

X 

m 

69 

X 

V 

61 

X 

4 

61,62 

X 

r 

62 

X 

r 

62 

X 

8 

63 

X 

w 

65 

X 

X 

66 

X 

X 

66,  67 

X 

X 

66 

2-d 


70 


X 

2-e 

71 

X 

2-e 

71 

X 

2-f 

71 

X 

*-* 

72 

X 
X 

2-h 
2-h 

73 
73 

X 

2-i 

74 

X 

2-1 

75 

— ~  does  not  include  Benamidar,  mortgagee  after 
debt  is  satisfied  and  wrong-doer  without  title       ~. 


.    49 


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OIXIX;  INDEX. 


*%£*  Note.        hga. 


Tnstaa — continued. 

Suit  against  express,  for  following  trust  property  in  his 

hand  not  barred   -  ...  ...  ...  x      ...  49 

"  Express"  was  not  nsed  in  the  Act  of  1869  ...  x       a  60 

Express,  by  Will  for  a  purpose  was  held,  as  to  undis- 
posed of  residue  under  the  Act  of  1869  ...  x       ft  60 

P.  C.  meaning  on  "for  the  purpose  of  following" in  his 

or  their  hands  such  property"  ...  ...  x        C  61 

Words  "good  faith"  used  in  IX  of  1871  omitted  in  XV 

of  1877  ...  ...  ...  ...  x       d  61 

IX  of  1871  required  purchaser  from,  to  shew  that  pur- 
chase was  bond, fide  ...  ...  ...  x       d  *     61 

— — 's  suit  to  disaffirm  his  predecessor's  completed 

act  against  one  claiming  under  such  act  would  be  x        f  62 

query  ;.| 

Such  suit  is  not  maintainable  per  Green,  J.  ...  x        f  *    63 

One,  suing  co-trustee  for  property  or  value  has  pre- 
cedent ...         ^       ...  ...  ...  x        f  64 

— —  and  his  vendee  being  sued  for  property  by 

cettuique  trust ...  ...  x        f  64 

seeking  to  disaffirm  predecessor's  act  against 

8rd  person  has  no  precedent  ...  ...  x        f  64 

—  alienating  charity  property  by  itself  is   not 

breach  of  trust  ...  ...  ...  ...  x       g  64 

C.  H.  testator's  heirs  might  compel,  to  administer  trust 

though  claim  for  undisposed  of  property  be  barred.  x        h.  *    55 

A.  H.  to  constitute,  owner  should  appear  from  words  or 
facta  to  have  entrusted  property  for  particular  obli- 
gation ...  ...  ...  ...  x        i  66 

M.  H. 's  claim  to  vindicate  personal  right  to  posses- 
sion against  one  claiming  that  right  as  trustee  does 
not  fall  under  sec.  10  ...  ...  ...  x       k  68 

M.  H.  suit  against  dismissed,  not  barred  by  length  of 

time...  ...  ...  ...  ...  x        1  68 

M.  H.  divided  father  receiving  family  debt  does  not  act  as  x       n  .59 

Suit  against,,  by  cestuique  trust  for  account  does  not 

fall  under  sec.  10  ...  ...  x       0  59 

Such  suit  will  be  barred  after  6  years  from  plaintiff's 

majority  ...  ...  ...  ...  x       o         69,  60 

Suit  against,  must  be  for  following  trust  property  to 

come  within  sec.  10  ...  ...  ...  x        0  60 

has  new  duty  on  him  by  testator  charging  parti- 
cular property  to  particular  debt  ...  ...  x        r         62,  63 

•  are  liable  by  losses  caused  by  their  misconduct..  x        t  63 


Surviving  partner  recovering  assets  is  not  within  sec.  10  x       T  '65 

Government  are  not,  within  sec.  10  by  taking  posses- 
sion of  a  zamindari  under  a  claim  of  forfeiture      ...  x       y  67 

Purchaser  of  property  in  idol's  name  is  not  a  ...  x        z  68 

Sebait  of  a  temple  is  not,  of  the  property  he  held  as 

such...  ...  ...  ...  x     2-a  69 

Person  in  whom  property  vests  for  charity  and  other's 

benefit  was,  under  XIV  of  1859  ...  ...  x      2-b  69 

Deceased 's  representative's  liability, to  make  gop4 

loss  caused  by  deceased  does  not  come  within  sec.  10  x      2-0  70 

Servant  or  agent  is,  if  he  receives  fund  from  master  for 

a  particular  purpose  ...  ...  ...  x      2-i  -    74 

Factor  or  agent  is,  while  Banker  is  not,  its  reasons     ...  .  x     2-1  .>  75 


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See  or 
Art. 

Note. 

Page* 

.      X 

2-m 

-   76 

x 

2-n 

77 

X 

2-o 

7Z 

X 

2-o 

77 

X 

2-p 

77 

INDEX-.  tjlxXXl' 


Trustee — continued 

.   1st  Mortgagee  is,  for.  surplus  if  he  sells  property  with 

seoond  mortgagee's  consent  ...  ... 

,    ..  He  is  not,  if  he  sold  under  statutory  power 
A  receiver  under  the  court  is  a  ... 
So  long  as  he  lives  he  is,  of  money  passed  to  him  ... 
Where,,  is  barred  the  cestuique  trust  is  also  .barred 
's  suit  to  set  aside  for  fraud  decree  obtained  by 

other  trustees  falls  under  95  ...  ...  95       h  -438 

's  suit  to  make  good  loss  caused  by  breach  of 

trust  of  the  deceased  ...  ...  ...         98      ...  442 

B.  H.  son's  suit  as,  for  trust  property  sold  by  court  for 

father's  debt  in  execution  of  decree  against  him  as 

representative  allowed        ...  ...  ■    ...        184        c  -520 

.  Possession  of  plaintiff's  land  by  Peshwa's  Government 
from  1806-1866  and  British  Government  to  1870 
..-  held  as  possession  by  ...  ...  ...  x        n  64 

Under-Tennres— 

In  an  estate  sold  for  revenue  arrears,  suit  to  avoid      ...        121       ...  481 

In  a  patni  taluk  or  <other  saleable  tenure- sold  for  ar- 
rears of  rent      ...  ...  ...  ...        121      ....  481 

Unsuccessful  Claimant— (See  under  Order.) 

User-     -      

C.  H.  actual,  within  2  years  previous  to  suit,  not  neces- 

sary under  section  26  ...  ...  ...       xxvi       t  -  280 

—  for  20  years  can  establish  right  of  private  ferry 

and  levying  tolls  ...  ...  ...       xxvi      w  280 

Long,  supports  presumption  of  grant  independently  of 

the  act   *  ...  ...  ...  ...       xxvi       X  .284 

For  non,  within  2  years  before  suit,  District  Judge 

rejected  to  recover  right  to  flow  of  water  ...       xxvi       y  286 

'  M.  H.  remanded  it  on  the  ground  that  statutory  right 

was  not  claimed...  ...  ...  ...       xxvi       y  235 

Eight  of,  of  drain  or  passage  incidental  to  a  house  is 

not  affected  by  letting  it  to  a  tenant   ...  ...       xxvi     2-6  -  239 

—  for*  BO  years  held  to  vest  in  defendant  proprietary 

right  to  space  occupied  by  his  projecting  roof       ...       xxvi    2-h  240 

B.  H.,  immemorial  to  drain  water  through  defendant's 

drain,  did  not  require  the  aid  of  section  26  ...       xxvi     2-i  240 

— —  long  uninterrupted,  raises  a  presumption  that,  was  •  — 

of  right  ...  ...  ...  ...       xxvi     2-k  242 

Vacation- 
Party  can  deduct  time  the  court  was  closed  thongh 
it  re-opened  on  a  later  day... 

Vakil- 
Suit  by  for  costs      ...  ...  ... 

Valuable  Consideration— 

. , .  Claimant  through  valuable  consideration  for 

*  Vehicles— 

,  .  j  Suit  for  hire  o{  .       ....  ...  ..,  ,«• 


V         8 

82 

84       ... 

.  417 

xviii       ... 

135, 186 

~*0      *.. 

172 

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clxxxii  iifDix. 


YradM— 

with  notioe  of  oharit y  might  rely  on  limitation    .. . 

— 'g  suit  for  possession  doet  not  fall  under  113  but 
under  144  ^  ...  ... 

Vtndor— 

Bait  by,  to  enforce  his  lien         ...  — 

English  case  on — 'alien 

—  has  lien  on  the  property  for  unpaid  purchase 
money  ...  ...  ...  ~. 

Creditor  of  an  unpaid,  cannot  claim  a  lien  ...  .« 

Verbal  Contract— 

—  of  loans  to  repay  at  the  end  of  a  year  falls  under 

115  ...  ...  ...  ...  ...         67       a  S76 

Suit  for  money  lent  on  debtor's  verbal  agreement  to 

repay  at  the  end  of  a  year  fails  under  115  ...  57,115    a,  b    876,457 

Observations  of  Garth,  C.  J.,  on  verbal  agreement  of 

loan...  ...  ...  ...  ...  67       a  178 

Any,  Legislature  could  not  have  intended  to  prohibit  ...  57       a  277 

—  nol  governed  by  75  ...  ...  •«  76       b  406 

Village  Xnaaiff— 

M.  H. — 's  suits  not  excluded  for  the  Limitation  Aot  of 

1877  ...  ...  ...  ...  vi       C      .         38 


8«c.  or 
Art. 

Note. 

FN*. 

X 

* 

55 

113 

f 

455 

111 
HI 

a 

451 
451 

111 
111 

b 

0 

451 
463 

—  of  workmen  engaged  in  Public  Works,  auit  for    ...  4      ...  276 

—  of  house-hold  servant,  artisan,  or  labourer  ...  7      ...  '  276 
One  year's  rule  held  to  affect  Mooktiar'a  auit  for  salary 

but  not  a  factory,  gomastah's  suit  for  ...  ...  7       •  277 

7  applies  only  to  suits  against  the  employer  but  not  to 

a  suit  against  a  Government  servant  who  recieved 

money  for  disbursement  of ...  ...  ...  7        f  277 

Date  of  dismissal  of  servant  is  not  the  starting  point 

but  the  end  of  the  month  if  appointed  on  monthly 

pay  ...  ...  ...  ...  ...  7       f  278 

not  otherwise  provided  for...  ...  ...        102      ...  444 

Waiver— 

—  by  creditor  of  the  benefit  of  the  provision  entitling 

him  to  recover  whole  debt  ...  ...  ...  75       d  406 

—  is  not  to   be  inferred  from  mere  abstinence  bat 
from  acceptance  of  payment  after  default 
,  acceptance  of  instalments  after  default  is 

must  be  an  intentional  act  with  knowledge 

B.  H.  subsequent  payment  will  not  defeat  plaintiffs 

right  to  immediate  payment  of  the  whole  debt 
As  to,  before  Act  IX  of  1871  began  to  operate 
There  can  be  no,  after  last  instalment  becomes  due 
Bond  entitling  creditor  to  sue  for  whole  debt  on  failure 

to  pay  any  instalment  of  interest  or  premium  on 

policy  was  held  not 
— —  decrees,  some  decisions  held  not  to  fall  nnder  75  ... 
Decree-holder  entitled  to  larger  sum  in  default  of  any 

instalment  waives  his  right  by  accepting  instalment 

after  default     Mt.  .„, 179     B-t 


75 
75 
75 

• 
£ 
* 

407 
407 

408 

75 
75 
75 

f 

k 

408 
408 
411 

75 
76 

1 

m 

411 

412 

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t  N  &  fc  X. 


Ward- 
Suit  by,. to  set  aside-sale  by  guardian         «4.  ... 
44i8new... 

Suit  filed  in  1873  by  a  son  adopted  in  1858  after  natural 

son's  death  while  a  minor  to  cancel  alienation  made 

by  widowed  mother  in  1847  held  not  barred  ... 

Suit  for  property  sold  by  plaintiff's  guardian  falls  under 

142  and  not  under  44  or  91... 

Waste- 
Suit  to  restrain 

Section  54,  Act  I  of  1877  illustrations  M  and  N  give 
instances  of  suits  to  restrain,  by  Hindu  Widows  and 
undivided  co-partners  .,. 

Waste-lands— 

Suit  to  contest  award  relating  to  ...  ... 

Water— 

Suit  to  recover  right  to  flow  of,  will  be  within  12  years 
from  cause  of  action  ... 

Water-course— 

Peaceable  enjoyment  of,  for  20."  years  gives  absolute 

right... 
Where  obstruction  is  continuous,  cause  of  action  accrues 

dediindxem 
Fresh  damage  from  continuing  obstruction  gives  fresh 

cause  of  action  ... 
Suit  for  removal  of  obstruction  to,  does  not  fall  under 

87  and  88 
Obstruction  to  migration  of  fish  is  not  obstruction  to   ... 

Way- 
Peaceable  enjoyment  of,  for  20  years  gives  absolute 

right 
C.  H.  to  acquire  a  right  of,  or  other  easement  under  the 

Indian  Act,  it  is  not  necessary  that  user  should  be 

servient  owner   ... 
20  years'  enjoyment  of  a,  by  a  person  makes  his  right 

absolute 
To  such  right,  principles  which  apply  to  their  acquisition 

in  England  would  apply       ...  ...  *  ... 

Bight  of,  or  other  easement,  must  not  be  so  large  as  to 

destroy  all  ordinary  uses  of  servient  property 
Right  to  drive  cattle  promiscuously  over  another's  land. 
Plaintiff  should  prove  not  merely  right  but  the  parti- 
cular route 
Discontinuance  of  user  of  a,  affects  plaintiffs  right 
Acquiescence  in  obstruction 
Right  of  passage  for  boats  is  analogous  to  right  of 
Right  to  foot-path  may  be  established  over  waste-lands. 
Observations  of  Kemp,  J., 

Widow— 

is  bound  not  only  to  represent  the  estate  but  also 

to  protect  it       ...  ...  ...  ... 


clxrriii 


Bee  or 
Art. 


Note. 


Page. 


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44 

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857 
357 

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a 

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44 

b 

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856 

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zxvi 

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88 

h 

352 

88 

0 

353 

88 
88 

d 

e 

853 
353 

213 


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xxvi 

i 

221 

xxvi 

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xxvi 
xxvi 

m 
m 

225 
225 

xxvi 
xxvi 
xxvi 
xxvi 
xxvi 

0 

P 

8 

2-k 
2-k 

226 
227 
213 
242 
242 

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