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1974 DIGILAW 49 (BOM)

SHIVPRASAD v. RAGHUNATH

1974-03-11

B.A.MASODKAR

body1974
JUDGMENT-The facts between the parties are not in dispute, in that the present appellants' predecessor had filed a suit on September 1, 1961, on the basis of a pronote of July 2, 1958 for a consideration of Rs. 200. It is further not in dispute that the total liability of the defendant under that pronote is to the tune of Rs. 286. 2. The only question on which the plaintiff has been non-suited is the bar of limitation. The first Court as well as the appellate Court found against the plaintiff. The plaintiff claimed to exclude the period of four months and 20 days by invoking the provisions of section 6 of the Bombay Execution of Decrees (Temporary Postponement) Act, 1959, hereinafter called the Act. It is not in dispute that parties were agriculturists governed by the provisions of the Act and further that under the said Act there was an effective notification from August 2, 1960 to December 22, 1960, declaring the village in which the parties reside, as the scarcity area. By the notification dated 22-12-1960 published in the Gazette of January 12, 1961, the earlier notification making a declaration of scarcity was withdrawn. Both these notifications are referable to the power conferred upon the State Government under section 1 of the said Act. 3. Section 6 (1) of the said Act reads as follows:- . "6. By the notification dated 22-12-1960 published in the Gazette of January 12, 1961, the earlier notification making a declaration of scarcity was withdrawn. Both these notifications are referable to the power conferred upon the State Government under section 1 of the said Act. 3. Section 6 (1) of the said Act reads as follows:- . "6. (1) In computing the period of limitation prescribed by the Indian Limitation Act, 1908 or any other law for the time being in force, for- (a) a suit in a civil Court in any area against any agriculturist for money or for foreclosure or sale in enforcement of a mortgage, referred to in clause (b) of sub-section (2) of section 3, or (b) an application in a civil Court in any area for execution of any decree referred to in sub-section (1) of section 3 or an application in a civil Court in any area for making final any preliminary decree for fore-closure or sale referred to in that sub-section, the period during which this Part remains in force in that area shall be excluded, and a further period not exceeding thirty days shall be added so as to make up the deficit, if any, prior to the expiry of one month from the date of withdrawal of this Part under sub-section (4) of section 1 from that area." Now the plain meaning of this section is providing for the calculation of the periods for the purpose of suits and applications mentioned in clauses (a) and (b) of sub-section (1) of section 6. Firstly, it is provided that the period during which Part II of the Act remains in force has to be excluded while computing the period of limitation prescribed either by the Limitation Act, 1908 or by any other law that was in force. After such exclusion, it is further provided that it will be permissible to add thirty days being the maximum to make up the deficit of limitation for the purpose of either institution of a suit under clause (a) or for taking proceedings by filing an application under clause (b). On the plain construction of section 6, the period of 4 months and 20 days during which Part II was inforce will have to be excluded while calculating the limitation for the present suit. On the plain construction of section 6, the period of 4 months and 20 days during which Part II was inforce will have to be excluded while calculating the limitation for the present suit. If so calculated, the plaintiff's suit filed OR September 1, 1961, would be very much within time. 4. The learned counsel appearing for the defendant, however, submits that there is no principle nor any policy to construe section 6 as enabling such an exclusion. He refers to the scheme of the Act and submits that this was to protect the weaker sections of the society which were affected by scarcity of famine disasters. The power was given to the State Government to notify and de-notify particular areas. Therefore, the provisions of section 6 should be strictly construed against the creditors. The learned counsel further submits that the latter part i.e. the ex gratia period of thirty days, is the only part of limitation which should govern each and every case. In other words, according to him, if the notification is taken away before the expiry of the period of limitation prescribed either by the Indian Limitation Act or by any other law that was applicable, then the suitor has to work out his right within the period available to him under the Limitation Act and he will be given maximum period at the most, as is indicated by the latter part, only to the extent of thirty days. That period will also be not available if before the notification is withdrawn there is availability of the period more than thirty days. 5. Now this approach and these submissions cannot accord well with the principles of limitation itself. The rule of interpretation in such matters is well-known, in that the Court must go by the literal interpretation. There is no scope for invoking any principle or policy that may not come to the surface by reading plain language of the Legislature. I have indicated purposely that the plain reading of section 6 permits a plaintiff to exclude a particular period and further makes it possible to add, if there is a deficit, the maximum period of thirty days. That construction is supported if the scheme is closely perused. I have indicated purposely that the plain reading of section 6 permits a plaintiff to exclude a particular period and further makes it possible to add, if there is a deficit, the maximum period of thirty days. That construction is supported if the scheme is closely perused. By the preamble of this Act it is indicated that this was a measure to provide a temporary relief to agriculturists by postponement of institution of suits and also execution of decrees by civil Courts because of the failure of crops, famine, fire, drought, flood and such other natural calamities. This relief had to be given by the State Government by issue of certain notifications which are indicated in Part I. Part II wherein section 6 is one of the provisions, deals with stay of execution of decrees and postponement of suits in certain cases under scarcity or famine. Sub-section (1) of section 3 deals with stay of pending suits or pending actions. Sub-section (2) bars the institution of execution proceedings as well as institution of certain types of suits which include the suit for recovery of money. Sub-section (3) releases from attachment in execution proceedings the growing crops, agricultural produce, live stocks and other moveable property of a perishable nature. Section 4 applies to instalment decrees and section 5 declares that an agriculturist would be exempt from arrest when the provisions of the part are in force. Thus sections 3 to 5 furnish an integrated scheme which protect the judgment-debtors who are agriculturists against whom proper decrees have been passed and also the defendants against whom there could be institution of suits or proceedings known to civil law. After providing for such a scheme which bats the institution of the suit itself, the provisions of section 6 permitted the exclusion of the period of limitation to such a plaintiff who was disabled because of law from instituting his suit or an application. - Section 6, therefore, is remedial and in no manner can be said to be derogatory of the right of the defendant or of the judgment-debtor as was canvassed at the Bar. A further look at the provisions of section 7 would show that the Legislature has counterbalanced all the interests in its entirety to maintain a status quo. There is a restriction on transfers by the persons who are the judgment-debtors of immovable property or interests therein. A further look at the provisions of section 7 would show that the Legislature has counterbalanced all the interests in its entirety to maintain a status quo. There is a restriction on transfers by the persons who are the judgment-debtors of immovable property or interests therein. Similarly, there is a permissive course available to the parties with respect to certain payments under the decrees. 6. This review of the provisions of Part II is indicative that no action could have been brought by the plaintiff once the provisions of Part II were in force. That was the reason why section 6 permitted exclusion of time to the extent provisions of Part II were applicable in a particular area. Excluding that period therefore, the present suit was well within time. 7. Another submission made by the learned counsel that the clause relating to thirty days must also govern the first calculation cannot also be accepted for the simple reason that both are differentially provided by the Legislature. Firstly, there has to be exclusion of the entire period during which the provisions of Part II remain in force which prohibited institution of suits and the same is different from the provision which provides maximum period of thirty days to make up the deficit in a given case to a suitor to institute the suit which he could not have instituted because of the provisions of Part II. In other words under first part the remedy itself being held in abeyance all the period can be excluded while counting limitation and by the second maximum of 30 days grace to make up is allowed to be added. Numerous contingencies can be conceived as operating effectively on both these matters one being exclusion and another of eminent concession. Upon Part II coming into force the institution itself was deferred till the area is denotified. Consequently even though a suit or action could have been filed say on the date of notifying the application of Part II the same being the last day or limitation was yet to expire say by few days, the remedy was not available. Therefore, after denotifying such suitors have been permitted to act within thirty days adding it by way of maximum deficit permissible. Therefore, after denotifying such suitors have been permitted to act within thirty days adding it by way of maximum deficit permissible. Those who had reached the last day of usual limitation on the date of the application of Part II therefore could avail of all 30 days permitted by the second {lart of the provisions of section 6 itself. 8. In the result, therefore, the present appeal will have to be allowed and the dismissal of the suit set aside. The appeal thus succeds and is allowed. It is adjuged that the plaintiff's suit was within limitation and there was no bar that could be successfully set up by the defendant to the action. As already stated, there being no dispute as to the amount due on the pronote dated 2-7-1958, a decree in the sum of Rs. 286 with costs throughout shall be passed against the defendant. The decree shall carry future interest from the date of suit at 4 percent per annum till realisation. Appeal allowed.