Research › Browse › Judgment

Calcutta High Court · body

1944 DIGILAW 134 (CAL)

Samirendra Nath Sinha v. Benwarilal De

1944-06-26

body1944
ORDER Henderson, J. - This rule has been obtained by the defendants and involves a point of limitation. The following facts required to be noted. The suit was instituted in order to recover the price of building materials supplied to the predecessor of the petitioners. He acknowledged the claim on 7th December 1935 and it is common ground that limitation starts to run from that date. His estate was taken over by the Court of Wards and the plaintiff's claim was admitted by the Manager. The estate was released on 22nd March 1942. The suit was instituted on 12th November 1943, the predecessor of the petitioners having died in the meantime. 2. It is admitted on behalf of the plaintiffs that the personal decree passed against the petitioners cannot be supported. It should have been against the assets of the deceased in their hands. 3. The plaintiffs will fail unless they can get an extension of time both under S. 10CC and S. 10D, Court of Wards Act. It is not disputed that they are entitled to the latter. With regard to the former it is argued that the section ceased to operate either on the release of the estate or on the death of the ex-ward. 4. I am bound to say that if I were to give effect to the former, the result would be most extraordinary. The creditors of the ex-ward would be deprived of their rights for no reason whatever. The wording of the section seems reasonably plain. The term of four years is automatically added to the period of limitation. No question of its ceasing to run can therefore arise. The effect of withdrawal is laid down in S. 9A. If it had been the intention of the Legislature to confer such an entirely unmerited boon on an ex-ward such an intention should have been clearly expressed. 5. It is conceded that the section would not apply to any claim against the petitioners personally. But the present claim is against the assets of the deceased and the suit may, therefore, be described as one against the ward. 6. The decree of the Court below must be modified. The opposite parties will be entitled to the amount decreed against the assets of the deceased in the hands of the defendants. But the present claim is against the assets of the deceased and the suit may, therefore, be described as one against the ward. 6. The decree of the Court below must be modified. The opposite parties will be entitled to the amount decreed against the assets of the deceased in the hands of the defendants. The petitioners will pay the costs of the opposite parties in this rule; hearing fee two gold mohurs.