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1958 DIGILAW 140 (KER)

Kunhappu v. Chintan

1958-07-07

VARADARAJA IYENGAR

body1958
Judgment :- 1. This civil revision petition is by the defendant against the judgment and decree in a small cause suit and the only question raised is one of limitation which the court below found against him. 2. The suit was based upon a promissory note dated 7-7-1952 and was filed on 30-5-1956 after the expiry of the three years' period of limitation prescribed for it. The plaintiff however claimed exclusion of the period between 5-12-1953 and 1-7-1955 tinder various legislative enactments in the interval, prohibiting institution of suits against agriculturist debtors to which class the defendant admittedly belonged. These enactments commenced with Ordinance V of 1953 and ended with Act I of 1955. It was not denied for the defendant that if the whole period claimed could be excluded, the suit would be within time. But it was contended that all the legislation except the last one, viz. Act I of 1955 were passed for the temporary relief of agriculturists debtors, so as to remain in force only for the periods specified therein and with the expiry of the respective periods they became totally unavailable to the plaintiff. The court below found no warrant for this contention. On the other hand, according to it, the limitation which ceased to run with the passing of the Ordinance V of 1953 in the beginning started running again on 1-7-1955 when under Act 1 of 1955 the recovery of debts was allowed by law, even though to the extent of a fraction of the claim. 3. The short question is whether the view taken by the lower court is correct. Now S.3 of Ordinance V of 1953 which came into force on 5-12-1953 provided for bar of suit and applications as follows: "3. No suit for the recovery of a debt shall be instituted, and no application for the execution of a decree for payment of money passed in any such suit shall be made, against any agriculturist in any civil court before the expiry of a year from the commencement of this Ordinance." The explanation is unnecessary and therefore omitted. S.5 providing for exclusion of time then said: "5. S.5 providing for exclusion of time then said: "5. In computing the period of limitation prescribed for a suit for the recovery of a debt or an application for the execution of a decree passed in a suit for the recovery of a debt, the time during which the institution of the suit or the making of the application was barred by S.3, or during which the creditor refrained from instituting the suit or making the application in the honest belief that S.3 applied to such suit or such application, shall be excluded." The Madras Act V of 1954 which came into force on 5-2-1954 repealed the Ordinance V of 1953 and provided for the bar of suits and applications before the expiry of a year from the date of commencement of the Act. S.5 of the Act dealing with the exclusion of time for limitation said: "5. In computing the period of limitation or limit of time prescribed for a suit for the recovery of a debt or an application for the execution of a decree passed in such suit, the time during which the institution of the suit or the making of the application was barred by S.3 of the Ordinance or S.3 of this Act, or during which the plaintiff or his predecessor-in-title, believing in good faith that S.3 of the Ordinance or S.3 of this Act applied to such suit or such applications, refrained from instituting the suit or making the application, shall be excluded." The Act 1 of 1955 came into force on 27-2-1955 and provided by S.3 (1) for bar of suit before the expiry of four months from the commencement of the Act and S.8 referring to exclusion said: "8. In computing the period of limitation for a suit for recovery of a debt or an application for the execution of a decree in respect of a debt, the time during which the institution of the suit or the making of the application was barred under S.3 shall be excluded." 4. In computing the period of limitation for a suit for recovery of a debt or an application for the execution of a decree in respect of a debt, the time during which the institution of the suit or the making of the application was barred under S.3 shall be excluded." 4. The argument of learned counsel for the defendant is that Ordinance V of 1953 and Act V of 1954 are temporary Acts in the sense that-in the absence of special provisions in them to the contrary after they expired no proceedings could be taken upon them and they ceased to have any further effect and he contrasted the wording of S.5 of Act V of 1954 and of S.8 of Act 1 of 1955 and pointed out that while the former consolidated the earlier excluded period (under Ordinance V) the latter did not consolidate the earlier periods (under Ordinance V and Act V). 5. The distinction between Acts temporary and perpetual is pointed out in Craies on Statute Law, 5th Edn, p. 61. "Acts are also classified, by reference to their duration, as temporary or perpetual. (a) Temporary. Temporary statutes are those on duration of which some limit is put by Parliament. The Standing Orders of Parliament require a time clause to be inserted in such Acts The Expiry Laws Continuance Acts usually contain a specific date for the expiry of the continued Acts (b) Perpetual. Perpetual Acts are those upon whose continuance no limitation of time is expressly named or necessarily to be understood. They are not perpetual in the sense of being irrevocable." The difference between the effects of the expiration of a temporary Act and the repeal of a perpetual Act is laid down by Parke, B., in Steavenson v. Oliver (1841) 8 M & W. 234. 240, 241. "There is a difference between temporary statutes and statutes which are repealed; the latter (except so far as they relate to transactions already completed under them) become as if they had never existed; but with respect to the former, the extent of the restrictions imposed, and the duration of the provisions are matters of construction." 6. 240, 241. "There is a difference between temporary statutes and statutes which are repealed; the latter (except so far as they relate to transactions already completed under them) become as if they had never existed; but with respect to the former, the extent of the restrictions imposed, and the duration of the provisions are matters of construction." 6. The question therefore is whether in the light of the distinction and difference above set forth, a provision in a Temporary Statute, as the enactments here are claimed to be, for exclusion of time in the computation of limitation for a suit, ceases to exist altogether and so becomes unavailable to a plaintiff, even though he had been in fact debarred from instituting suit during the currency of the Statute. In my opinion, the right to exclude the period concerned is one acquired under the Act and as observed in the case cited: "It is by no means a consequence of an Act of Parliament expiring, that rights acquired under it should likewise expire." In R. v. Wicks, (1946) 62 T.L. R.674, affirmed sub nom Wicks v. Director of Public Prosecutions (1947) A.C. 362. "There was a charge under the Defence (General) Regulations, 1939, Regulation.2A, and the Emergency Powers (Defence) Act, 1939, S.3, of assisting the enemy. The Emergency Powers Act expired on February 24,1946. The trial took place on May 27 and 28,1946. The Acts which formed the subject of the charge took place from April, 1943 to January, 1944. The Emergency Powers Act provided (S. 11 (3) that its expiry should not affect its operation as to things previously done or omitted to be done This language was held to be wide enough to make the provisions of the statute operate in respect of any Act done before its expiration: therefore its expiration did not affect the liability to punishment under the statute or the prosecution of legal proceedings for the purpose of inflicting that punishment". 7. It is unnecessary however to go so far for the purposes of this case. For though the Ordinance V of 1953 was in its nature temporary in character, Act V of 1954 was in terms perpetual. And it was possibly because of this distinction and to avoid all arguments that the period of exclusion covered by the Ordinance was consolidated in the Act V of 1954 following. For though the Ordinance V of 1953 was in its nature temporary in character, Act V of 1954 was in terms perpetual. And it was possibly because of this distinction and to avoid all arguments that the period of exclusion covered by the Ordinance was consolidated in the Act V of 1954 following. The error of learned counsel in styling Act V of 1954 to be temporary, it seems to me, consisted in ascribing the character of the purpose of the statute, viz., to provide for the temporary relief of indebted agriculturists to its duration. Indeed the argument of learned counsel would apply equally to Act 1 of 1955, but then he concedes that the four months bar thereunder is excluded once and for all. The effect of an exclusion in a case under S.14 of the Limitation Act is explained by Their Lordships of the Privy Council in Maqbul Ahmad v. Onkar Pratap (1935) 57 All. 242 = A.I.R. 1935 (P.C. 85). "Where there is ground for excluding certain periods under S.14, in order to ascertain what is the date of the expiration of the prescribed period, the days excluded from operating by way of limitation have to be added to what is primarily the prescribed period; that is to say, if the prescribed period is three years, and 20 days ought to be excluded in order to determine when the prescribed period expires, 20 days have to be added to the three years, and the date of the expiration of the prescribed period is thus ascertained." 8. Learned counsel referred to Soni Ram v. Kanhaiya Lal I. L. R.35 All 227 P. C. It was held there that an acknowledgment of liability valid when it was made under Act 14 of 1859, but not sufficient at date of suit under Act 15 of 1877, could not be relied on by the plaintiff to save the suit from bar of limitation and Their Lordships held: "An acknowledgment of liability only extends the period of limitation within which the suit must be brought, and does not confer title, and, with reference to S.9 of Act XV of 1877, was not a "thing done" within the meaning of S.6 of the General Clauses Consolidation Act (I of 1868) " But we are not concerned here with the effect of the repeal of the Law of Limitation which prevailed at the date of a transaction and its replacement by a new one at date of suit. The next case of Belgaum Dist. School Board v. Md. Mulla, A.I.R. 1945 Bom. 376 dealt also with a similar case, the question being how far retrospective effect could be given to the new provision which curtailed considerably the period of limitation in respect of particular cause of action. With this aspect also we are not concerned. The same remark applies to the case in Natal Real Estate Co. v. Hassan (1939) 1 K. B. 61 = (1939) 1 All. E.R.154, cited on behalf of the respondent. The question there was one of retrospectivity and Their Lordships negatived it because the matter concerned was not one of procedure. 9. Finally learned counsel for the defendant drew my attention to a judgment of Kumara Pillai, J., in C.R.P. 258 of 1957, accepting the contention as to limitation, similar to that urged on behalf of the defendant here. There is no reference to and much less discussion of the relevant provisions of the enactments other than Act I of 1955. I am therefore with the deepest regret, unable to follow that decision. 10. It follows, therefore, that the judgment and decree of the court below are right and do not call for any interference. The revision petition is accordingly dismissed with costs. Dismissed.