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1907 DIGILAW 21 (CAL)

Ramkinkar Biswas v. Akhil Chandra Chowdhuri

1907-01-30

body1907
JUDGMENT Maclean, C.J. - I think it is sufficient if we say upon the second question submitted to us that in our opinion the cases of Girish Chunder Sasmal v. Dwarka Nath Dinda I. L. R. 24 Cal, 640 (1897) and Fakira Pasban v. Bibi Azimunnissa 4 C. W. N. 459 : s. c. I. L. R. 27 Cal, 540 (1899) have not been correctly decided. Those cases were dissented from by a Division Bench of this Court in the case of Imam Ali v. Baij Nath Ram Sahu 10 C. W. N. 551: s. c. 3 C. L. J. 576 (1906), a decision to which I was a party; and I see no reason to differ from the conclusion at which we then arrived after a careful review of all the authorities upon the point. I only desire to add that we dealt in that case with the observations of Mr. Justice Wilson in the case of Oriental Bank Corporation v. Chariol I. L. R 12 Cal. 642 (1886) and it is not strictly necessary to add anything to what we then said. I should, however, like, for my own part, to make it clear that if it la thought that the language of Mr. Justice Wilson intended to convey that although the Court might exercise its powers, under sec. 32 of the Code of Civil Procedure, of adding parties, the party so added could not avail himself of the benefit of the statute of limitation-say for instance, of sec. 22-I am unable to agree in that view. But I do not think that that is what Mr. Justice Wilson intended to decide. 2. All that we can do upon this reference and upon the appeal before us is to hold that the suit is barred as against Defendant No. 8. As regards the question now suggested as to the distribution of the mortgage-debt over the several properties, that question has not been raised on this appeal, and we express no opinion upon it. The decree of the lower Appellate Court will stand except as regards Defendant No. 8 as against whom the suit must stand dismissed on the ground of limitation. The appeal of Defendants Nos. 4 to 6 must be dismissed with costs. Defendant No. 8 must have his costs in all the Courts, including the costs of this reference. Harington, J. I agree. The appeal of Defendants Nos. 4 to 6 must be dismissed with costs. Defendant No. 8 must have his costs in all the Courts, including the costs of this reference. Harington, J. I agree. Brett, J. I agree. Mitra, J. I agree. Gfidt, J. I agree.