Research › Browse › Judgment

Allahabad High Court · body

1946 DIGILAW 89 (ALL)

Ram Manorath v. Ram Bhulawan

1946-03-29

WALFORD

body1946
JUDGMENT Walfard, J. - This is a revision against the judgment and decree of the leagued Civil Judge, sitting as Judge of Small Cause Court, Bahraich. 2. The only question involved in this application is whether a payment made after the expiry of limitation but during the period the suit could not be filed on account of the fact that Courts were closed for summer vacation was time barred? 3. The facts briefly are on 15th March 1933 a bond was executed in favor of the Plaintiff applicant for sum of Rs. 200 on the 13th June 1933, certain payments were made by the Defendant Respondents. By virtue of this payment the limitation expired on the 13th of June 1936. On the 21st June 1936 it is claimed that the Defendants made a further payment of Rs. 20 as interest and an endorsement to that effect was duly made on the bond. The suit was however, not filed till 1941 inasmuch as under Act X of 1937 suits against agriculturists were barred. 4. It is contended that by virtue of the provisions of. Section 4 of the Limitation Act, the period during which the suit could not be filed must be added to the period of limitation prescribed by the second schedule of the Limitation Act and any payment made during this period must be deemed to have been made within limitation. 5. The Learned Counsel for the, applicant has relied on the case of Abdul Ghani v. Chiranji Lal (1922) 49 All 726 wherein a single Judge of that Court has held that: An acknowledgment of a debt made after the expiration of the three years' period prescribed by schedule 1 to the Indian Limitation Act 1908 for a suit on a promissory note but made before a suit on the note is actually barred by limitation, is a good acknowledgment. 6. He has further relied in support of this contention on another single Judge case of the Lahore High Court AIR 1937 162 (Lahore) wherein Tek Chand, J. held that: An acknowledgment of liability, to he valid and effective u/s 19 Limitation Act need not be made within the period prescribed in the Schedule but can be made within the period prescribed by law, i.e., within the period prescribed by Schedule read with Section 4, Limitation Act. 7. 7. With all due respect I find myself unable to agree with the view expressed in the above two cases. As I read Section 4 of the Limitation Act I am of the opinion that it does not prescribe a period of limitation but merely enables a suit to be filed the limitation of which has expired during the time when courts are closed on reopening of the Courts. I am fortified in this opinion by Maqbul Ahmad v. Pratap Narain Stngh (1935) 57 All 242 decided by their Lordships of the Privy Council, At page 248 their Lordships observed as follows: The language employed in Section 4 in dieates that it has nothing to do with computing the prescribed period. What the section provides is that where the period prescribe expires on a day when the court is closed, notwithstanding that tact the application may be made on the day that the Court re-opens; so that there is nothing in the section which alters the length of the prescribed period. 8. In AIR 1937 642 (Lahore) Skemp J. dissenting from the previous case of that Court cited above held that: When the last day of limitation on which the period of limitation expires is a holiday, an acknowledgment made on the next day is not valid although a suit on that day would not have been barred because Section 4 does not apply to acknowledgment, 9. The learned Judge arrived at above conclusion after reviewing the law exhaustively on the subject. The leading case on the subject is Bai Hemkore v. Masumalli (1902) 26 Bom 782 wherein Sir L.H. Jenkins Chief Justice observed as follows: Section 19 of the Limitation Act requires that an acknowledgment should be given before the expiration of the period prescribed for the suit. That period is determined by Schedule 11 of the Act and though in this case the right of suit may have been subsisting on the 28th. October 1897 in the sense that the suit could under the circumstances have been instituted on the 29th October 1897 that was not because the period of limitation prescribed for the Suit had not expired but because notwithstanding the expiration of that period there is a special right under the provisions of Section 6 to institute the suit on the day on which the Court re-opened. 10. 10. It is therefore clear that Section 4 of the Limitation Act does not extend the period of limitation prescribed in the Schedule but merely enables a suit to be filed if the limitation has expired during holidays on the re-opening of the Court. 11. I accordingly reject the application. As no one has appeared for the opposite party 1 make no order as to costs.