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1962 DIGILAW 366 (KER)

Athrumankutty v. Chovvara

1962-11-29

M.MADHAVAN NAIR, P.G.MENON

body1962
ORDER M. Madhavan Nair, J. 1. The petitioner is the plaintiff, whose suit instituted on December 29, 1959, to enforce a registered promissory note dated June 3, 1952, has been dismissed by the court below as barred by limitation. He had described the defendant as an agriculturist and claimed exclusion of the time during which institution of suits for recovery of debts against agriculturists had been barred under the Madras Ordinance V of 1953, Madras Act V of 1954, Madras Act I of 1955 and Kerala Act XXXI of 1958. Though the defendant did not particularly deny to be an agriculturist, he challenged the plaintiff's claim for extension of the time to sue. The Munsiff found "no evidence that the defendant is in possession of agricultural property" and therefore held the Act XXXI of 1958 inapplicable and the suit barred by limitation. Hence this motion for a revision of the decision under S.22 of the Kerala Small Cause Courts Act, 1957. 2. It is contended that the defendant is a lessee of some arable land and therefore an agriculturist and that since the express averment to that effect in the plaint has not been specifically denied by him he must be presumed to be an agriculturist. 3. Counsel relied on Kutty Sankaran Nair v. Sankaran ( 1959 KLT 7 ) to contend that the plaintiff is entitled to exclude two years under the Madras Indebted Agriculturists (Temporary Relief) Ordinance V of 1953 and the Madras Indebted Agriculturists (Temporary Relief) Act V of 1954 in computing the period of limitation. It was observed therein : "The effect of S.5 of the Act V of 1954 would be that in computing the period of limitation the time during which plaintiff was prevented from filing the suit by S.3 of the Madras Ordinance V of 1953 as well as by S.3 of the Madras Act V of 1954 had to be excluded, that is to say, over and above the normal period of limitation the time would be extended by the periods during which the institution of the suit was prohibited by these two enactments. Plaintiff thus gets a further period of two years". 4. Plaintiff thus gets a further period of two years". 4. S.3 of the Ordinance V of 1953 provided : "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." This Ordinance came into force on December 5, 1953. It was repealed by Act V of 1954 which came into force on February 6, 1954. S.3 and 5 of the Act V of 1954 provided : "3. No suit for the recovery of a debt shall be instituted, no application for the execution of a decree for payment of money passed in a suit for the recovery of a debt shall be made, and no suit or application for the eviction of a tenant on the ground of non payment of a debt shall be instituted or made, against any agriculturist in any civil or revenue court before the expiry of a year from the date of commencement of this Act." "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 .......... shall be excluded." 5. Thus the Ordinance of 1953 prohibited institution of suits on debts due by agriculturists for one year from 5th December, 1953. Barely two months of that period had elapsed when that Ordinance was repealed by the Act V of 1954. The Ordinance V of 1953, and therefore all the provisions in it, remained in force only till the enactment of Act V of 1954. With the repeal of the Ordinance the provision therein for bar of suits must cease. Under Act V of 1954 such suits were barred for one year from the, date of commencement of the Act. It then follows that under the aforesaid Ordinance and the Act, there was a bar of suits for recovery of debts against agriculturists for the period that commenced with December 5, 1953, and ended with February 5, 1955. Under Act V of 1954 such suits were barred for one year from the, date of commencement of the Act. It then follows that under the aforesaid Ordinance and the Act, there was a bar of suits for recovery of debts against agriculturists for the period that commenced with December 5, 1953, and ended with February 5, 1955. The plaintiff cannot therefore claim exclusion of any period above 1 year and 2 months under the Ordinance V of 1953 and the Act V of 1954. We feel constrained to observe, with respect, that the principle has been correctly enunciated by the learned Judge in 1959 KLT 7 but computation of the period of bar therein was patently incorrect. Obviously the fact of commencement of the Act V of 1954 before the expiry of the period of bar provided in the Ordinance escaped the notice of the learned Judge. 6. Then came the Madras Act I of 1955 that prohibited the institution of suits for recovery of debts against agriculturists for a period of 4 months from the commencement of the Act which was on March 1, 1955. Assuming, without deciding, that the defendant was an agriculturist within the definitions of the aforesaid Ordinance and the Acts, the plaintiff can exclude only a period of 1 year and 6 months in reckoning limitation in this suit. This suit being on a registered promissory note dated June 3, 1952, should have been instituted on December 3, 1959. It was actually instituted only on December 29, 1959. 7. Counsel contended that the plaintiff can claim exclusion of a further period of 6 months under Kerala Act XXXI of 1958 which came into force on July 14, 1958. The provision relied on is S.3 of the Act which runs thus: "3. (1) No application for execution of a decree in respect of a debt shall be made against any agriculturist in any court before the expiry of six months from the commencement of this Act. The provision relied on is S.3 of the Act which runs thus: "3. (1) No application for execution of a decree in respect of a debt shall be made against any agriculturist in any court before the expiry of six months from the commencement of this Act. (Explanations omitted here) (2) Where a creditor files a suit for recovery of a debt before the expiry of six months from the commencement of this Act or after the agriculturist has paid or deposited into Court the sums and instalments specified in S.4 and, during the period when he is so entitled to pay, the Court shall in decreeing the suit direct the plaintiff to bear his own costs and to , pay the costs of the defendant who is an agriculturist, except in cases where the claim would have been barred by limitation had no such suit been filed or when a debt is jointly due from an agriculturist and a non agriculturist."This section does not bar institution of suits. On the contrary it expressly contemplates the institution of suits by creditors in time to save limitation, even though a period of six months from the date of its commencement has been allowed to agriculturist debtors to pay the first instalment in discharge of the debt. The plaintiff cannot therefore claim any extension of the period of limitation for the institution of his suit under the Kerala Act XXXI of 1958. It then follows that the dismissal of the suit as barred by limitation by the Court below was correct. 8. This Civil Revision Petition is dismissed with costs.