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1911 DIGILAW 217 (CAL)

Fazl Karim, minor v. Annada Mohan Ray

1911-06-12

body1911
JUDGMENT 1. The question which arises in this second appeal is one of first impression and appears at first sight to be not altogether free from difficulty. Having given the matter our most careful attention we are clearly of opinion that there can be no bar of limitation against the minor in these proceedings. If appears that a decree was obtained against the minor and his elder brothers for a share of rent. It is alleged that attachment and proclamation issued simultaneously and that the decree-holder purchased at the sale without permission. The result is said to have been that property worth Rs. 2,000 was sold for Rs. 40 on the 7th July 1903. 2. The Appellant minor and his brothers filed a petition on the 31st March 1909 to have the sale set aside on the above grounds. The Munsif dismissed the application of the three major brothers and admitted the petition of the minor. On appeal the learned Subordinate Judge has held that the minor is also barred by limitation and dismissed his petition. 3. We need not go into the Subordinate Judge's findings that there was no fraud, nor his finding that the simultaneous issue of attachment and proclamation is no irregularity at all. Other irregularities were pleaded and the question whether on coming of age the Petitioner would be entitled to three years or only to one month's limitation does not arise inasmuch as limitation has not yet begun to run against him he being still a minor. The whole difficulty has arisen from the alteration of the law effected by Act IX of 1908 which came into operation on the 1st January 1909. 4. By this act minors as such have no privilege of disability except as regards suits and applications for execution. But by Act XV of 1877 they had the privilege of non-liability to the law of limitation in respect of all applications in judicial proceedings. That this is a privilege in Law and not a mere incident of procedure is clear. As long as the disability lasts the minor's right to sue is unaffected by the Law of Limitation and this is a status of non-liability conferred on him by law. 5. Now in sec. That this is a privilege in Law and not a mere incident of procedure is clear. As long as the disability lasts the minor's right to sue is unaffected by the Law of Limitation and this is a status of non-liability conferred on him by law. 5. Now in sec. 6 (c) of the General Clauses Act privilege is opposed to liability, just as right is opposed to obligation and the privilege of non-liability under the statute conferred by the statute itself clearly inures under the General Clauses Act as long as the disability continues and is not affected by the abolition of the privilege by a subsequent statute. 6. No doubt when limitation once begins to run that limitation must be under the current Act and nothing can stop the operation of that Act, but as long as the minor whose right accrued under Act XV of 1877 remains a minor, his right to make an application in any judicial proceeding is saved. 7. As regards the finding that it is a privilege we may refer to the case of Mahadev v. Babi I. L. R. 26 Bom. 730 at p. 733 (1902). And as regards the question of the saving of rights which parties had acquired under any previous enactments the remarks in Ram Chandra v. Soma I. L. R. 1 Bom. 305n at p 308n (1876) would seem to carry the saving of such rights even further, inasmuch as the Court held that time having begun to run under the old statute the parties were bound by the limitation imposed by the new statute but in the case before them the construction which they proposed to give to the postponement of the operation of the new Act did not take away any right which parties had acquired under previous enactments. 8. It would appear therefore that the Judges were of opinion that any such right acquired before the new Act came into force would be saved even although limitation had begun to run. 9. We do not desire to carry the effect of such rights to any such length. It is enough for our purpose to hold that as long as limitation has no begun to run, such rights are unaffected. As long therefore as the minor remains a minor he has the right to make this application and there is no limitation. 10. We do not desire to carry the effect of such rights to any such length. It is enough for our purpose to hold that as long as limitation has no begun to run, such rights are unaffected. As long therefore as the minor remains a minor he has the right to make this application and there is no limitation. 10. As regards the merits the lower Appellate Court has mixed this question up with the question of limitation and has only dealt with the issue of fraud which it has not adequately discussed and one irregularity out of many alleged. The judgment of the Subordinate Judge being set aside on the question of limitation, the case must be remanded to him for an independent finding on the merits as to the effect of the allegation of fraud and of all the irregularities complained of with special reference to the alleged inadequate price obtained at the sale in consequence of the decree-holder's purchasing without leave, costs in the lower Courts to abide the result. The Appellant is entitled to the costs of this hearing which we fix at two gold mohurs.