H. G. Ghata v. Banaras Hindu University — 1980 DIGILAW 27 (ALL)

JUDGMENT Gopinath, J. - This is a plaintiffs appeal arising out of a suit for declaration and recovery of pay according to the scales fixed by the University Grants Commission for Fine Mechanics employed in the Banaras Hendu University. Plaintiff claimed that he was entitled to receive his pay in the pay scale of Rs. 100-5-155-71-200 from March 25, 1957 to June 1959, and Rs. 130-5-160-8-190-EB-8-256 from July 1959 to March 1968, and thereafter in the scale of Rs. 200-10-290-15-380 from April 1968 to January 1969. These pay scales were fixed under the rules framed by the University Grants Commission. Plaintiffs grievance was that he was not paid his salary 'according to the scales fixed. He accordingly claimed a sum of Rs. 4,368.46 being the difference of the amount he had been paid and 'the amount he was entitled to under the revised pay scales. The petitioner further prayed that his gratuity and pension be fixed at Rs. 200 per month. 2. Plaintiffs case was that he was appointed as a Fine Mechanic in the Central Hindu College, Kamacbha Section, of the Banaras Hindu University in the year 1955 in the pay scale of Rs. 60-5-150. His initial appointment was made at Rs. 75 per month. He served in the college till June 1965. In July 1965 the plaintiff' was transferred to the Department of Physics in the University. In the year 1956-57, the pay scale of Fine Mechanics of the Banaras Hindu University was revised and fixed at Rs. 100-5-155-7-200. The plaintiff claimed that he was entitled to the higher scale fixed. He was, however, not paid according to that scale. He made a representation to the Registrar on 27-8-1957 for being fixed in the revised scale. It was followed by reminders. They were kept under consideration. In the year 1959 the pay scale was again revised by the University Grants Commission. The plaintiff again claimed to be entitled to the higher grades as sanctioned. He again applied to the Registrar to be fixed in the time scales revised by the University Grants Commission from time to time and sent copy of his representation to the Secretary, University Grants Commission. The Registrar assured the plaintiff of necessary action but no action followed. The plaintiff waited till 26-6-1967 and then made an appeal to the Vice-Chancellor. He again applied to the Registrar to be fixed in the time scales revised by the University Grants Commission from time to time and sent copy of his representation to the Secretary, University Grants Commission. The Registrar assured the plaintiff of necessary action but no action followed. The plaintiff waited till 26-6-1967 and then made an appeal to the Vice-Chancellor. He prayed to be fixed in the scales revised from time to time by the University Grants Commission, and asked for payment of his salary according to those scales. On 3-8-1968, he received a reply from the Registrar that it was not possible to consider his upgrading and pay him according to the revised pay scales as he was retiring on 31st January, 1969. The gratuity and pension claimed by the plaintiff was also not considered on that ground. Plaintiffs case was that pay scales fixed by the University Grants Commission had been accepted by the Executive Council of the University by its resolution Nor 310 dated 3-2-1957, and the plaintiff could accordingly claim to be fixed in 'those scales and paid accordingly. According to him, he had been making representations to the authorities concerned and they had been assuring him of necessary action. However, ultimately his request was turned down by an ceremonial communication that since he was about to retire, his claim could not be considered. This gave him a cause of action for the suit which, arose under the order of the University dated 3-6-1968 refusing to fix him in the revised grades and pay him accordingly. The plaintiff filed the suit for a declaration that he was entitled to be fixed in the grades revised from time to time and claimed a sum of Rs. 4,358.46 being the difference of the pay received and the pay he was entitled to under the pay scales revised by the University Grants Commission from time to time. The cause of action for the suit was alleged to arise on 3-6-1968 when the plaintiff's claim was refused. The suit was filed on 22-9-1969. 3. The defendant contested the suit on the pleas inter alia that though the pay scale of Fine Mechanics was revised from time to time but plaintiff could not claim to be fixed in the same as he did not posses the necessary qualifications. The suit was filed on 22-9-1969. 3. The defendant contested the suit on the pleas inter alia that though the pay scale of Fine Mechanics was revised from time to time but plaintiff could not claim to be fixed in the same as he did not posses the necessary qualifications. It was alleged that there was no general upgrading of all Fine Mechanics, and the revised pay scales were admissible only to these Fine Mechanics who fulfilled certain necessary qualifications. The plaintiff did not fulfil those qualifications, hence he was not fixed in the revised grades. The claim was further alleged to be misconceived as the plaintiff had no legal right to claim the grades revised from time to time. It was further pleaded that the suit was barred by time. 4. The trial court decreed the suit holding that the plaintiff was entitled to be fixed in the revised pay scales, and was accordingly, entitled to the amount claimed by hint as the difference in the pay received and the pay he was entitled to it was found that the plaintiff fulfilled the necessary qualification tor his upgrading and the defendant had erred in not fixing him in the revised pay scales. It was further found that the plaintiff had all along been assured of action on his representations, and the last order dated 3-6-1968 was wholly arbitrary in refusing his claim, it was further found that the suit was not barred by time as no cause of action has accrued to the plaintiff prior to 3-6-1968. The suit filed on 22-9-1968 was held well within time. It was observed that the suit was not merely for arrears of pay but one for declaration with, a consequential relief. Arrears claimed were, accordingly, decreed but the gratuity and pension at the rate of Rs. 200 per month was refused. 5. The defendant went up in appeal, and the lower appellate court modified the decree as regards the arrears of salary. It found the plaintiff fully entitled to be fixed in the revised pay scales and this entitled to the declaration prayed for. The arrears of salary were, however, decreed only for a period of three years next before the institution of the suit. The rest of the claim was dismissed as barred by time. It found the plaintiff fully entitled to be fixed in the revised pay scales and this entitled to the declaration prayed for. The arrears of salary were, however, decreed only for a period of three years next before the institution of the suit. The rest of the claim was dismissed as barred by time. The court below found that the plaintiff fulfilled the necessary qualifications for being fixed in the revised pay scales, and the authorities concerned had also recommended him for his upgrading. His work and conduct was found satisfactory, and he was given an extension after the completion of his age of superannuation only on the ground of his commendable performance in the discharge of his duties. Nothing was found against him to disentitle him to be fixed in the revised pay scales. The court below held that the refusal of the University to pay the plaintiff according to the revised grades was wholly arbitrary and without any valid reason. It observed : "..........I was also taken through the documents which show that the plaintiff was regularly claiming the new grades which were revised from time to time This shows that the plaintiff was all along making representations for the next higher grades as revised by the University Grants Commission on the ground that he was possessed of the qualification necessary for the same. Ex. 3 is a letter dated 9-11-64 from the office of the Registrar (Administration) to the plaintiff informing him that the revision of grade of his post is being considered by the committee concerned. Ex. 26 is copy of the letter dated 21-1-65 by the Principal; Central Hindu College, Kaniachha, Varanasi to the Deputy Registrar (administration), B. H. U. recommending the plaintiff and one other person for the .next high grade as revised by the University Grants Commission. Ex. 4 is a letter by the Deputy Registrar (Administration) to the plaintiff Informing him that his case is still under consideration and that he will be informed as soon as it is decided. Ex. 43 is a copy of letter of the Principal, Central Hindu College, Varanasi to the Deputy Registrar (Administration), B. H. U. recommending the plaintiff for the next higher grade of Rs. 130-5-160-8-256 on the ground that the plaintiff's work was found by him to be satisfactory................ Ex. 43 is a copy of letter of the Principal, Central Hindu College, Varanasi to the Deputy Registrar (Administration), B. H. U. recommending the plaintiff for the next higher grade of Rs. 130-5-160-8-256 on the ground that the plaintiff's work was found by him to be satisfactory................ From the evidence on record is is clear that the work of the plaintiff was appreciated from time to time by the authorities concerned and he was also recommended for the next higher grade. There is nothing to show that there was any complaint against the plaintiff regarding his work, conduct and behaviour and he was being assured by the authorities concerned that his case was under consideration. When the plaintiff was working as a Fine Mechanic since the year 1955 to the satisfaction of the authorities concerned and without any complaint against him of any kind and had attained sufficient experience in that line, then there appears to be no reason as to why he was not entitled to get the revised scales of pay of the Fine-Mechanic fixed from time to time by the University Grants Commission.....................It is no doubt true that it is for the authorities to decide whether a particular person is entitled to the revised scales of pay, but that discretion has not to be arbitrarily exercised..............I find that there was nothing against the plaintiff by which he was not entitled to get his salary fixed in the revised scales of pay, which was revised from time to time. There is also nothing on record to show that the plaintiff was not entitled for the next higher grade nor any plausible reason has been given specially when other Fine Mechanics including those who were junior to the plaintiff were given the next higher grade. It the University authorities were of the view that the plaintiff was not qualified for any reason to be put in the revised scales of pay, then they should have decided the representation of the plaintiff at the very first moment and should not have lingered it in the way it has been done in this case and by continuing assurances for the consideration of the same. This itself shows that there was actually no good reason for the University authorities to disentitle the plaintiff from the revised scales of pay and so they went on lingering the matter and ultimately rejected the request of the plaintiff on an evasive ground that his case cannot be considered as he was on the verge of Iris retirement. I agree with the finding of the lower court that the plaintiff was entitled to fixation of his pay in the revised scales as detailed by the lower court." The court below thus affirmed the declaration granted in favour of the plaintiff. The decree for arrears of salary was, however, confined to a period of three years only on the ground that the claim beyond that period was barred under Article 7 of the Limitation Act, 1963. Aggrieved by this part of the decree, the plaintiff has come and in second appeal. 6. Learned counsel for the plaintiff-appellant contended that the lower appellate court erred In holding that part of the claim for arrears of salary was barred by time. It was urged that a claim regarding arrears of salary can arise in two ways - (i) where the arrears claimed do not depend upon the grant of any declaration to the plaintiffs entitlement to the salary claimed, or, In other words, where there is no dispute as to the plaintiffs entitlement to the salary claimed, and (ii) where the salary claimed is dependant on the grant of a declaration as to the plaintiffs entitlement to It. In the instant case, the plaintiff s claim was disputed by the defendant, and it was urged that to such a claim, Article 7 of the Limitation Act, 1963 did not apply. Learned counsel for the respondent on the other hand, contended that the addition of a relief of declaration to a suit for wages did not enlarge the period of limitation fixed by Article 7 of the Act nor could the relief of declaration make any difference in the starting point of limitation to a claim for wages. 7. The main question for consideration in the appeal, thus is one of limitation. 7. The main question for consideration in the appeal, thus is one of limitation. The facts found by the courts below arc that the plaintiff was entitled to be fixed in the pay scales revised by the University Grants Commission from time to time ; that he had made representation to the authorities regularly; that the authorities concerned had all along assured the plaintiff that his case was under consideration, and necessary action would follow ; that the claim was finally refused on the ground that he was about to retire; that this reply was given on 3-6 1968 and the suit was filed on 22-9-1969. The question is whether any part of the claim for arrears of salary in the circumstances was barred by time. 8. Learned counsel for the appellate urged that no cause of action had accrued to the plaintiff prior to the final reply dated 3-6-1968 received from the University, hence no limitation could commence for the institution of the suit prior to that date. If was submitted that cause of action for a suit arises when a right to sue accrues to a party, and the accrual cat take place only when a right Is asserted by a party and denied by the other. In the instant case, since the defendant had not fixed the plaintiff in the revised pay scales and he was making repeated representations and receiving only assurances the revised wages could not accrue due to him until an order was passed by the defendant fixing him in the revised time scale or a declaration was obtained to that effect from a competent court. Learned counsel for the respondent, on the other hand, submitted that representations did not extend time, and once the plaintiff claimed himself entitled to the revised wages, he could file a suit for the same within the period prescribed by Article 7. 9. As a subject, limitation hovers between the rules of substantive law and the rules of procedure and although a statute of limitation standardises the limitation rules, each type of action has its own peculiarities. The general principle is that the statute bars a remedy without affecting the right and the overriding purpose is interest reipnblicse ut sit finis litium, i. e. that litigation shall be automatically stifled after a fixed length of time, irrespective of the merits of the particular case. The general principle is that the statute bars a remedy without affecting the right and the overriding purpose is interest reipnblicse ut sit finis litium, i. e. that litigation shall be automatically stifled after a fixed length of time, irrespective of the merits of the particular case. In addition to this purpose reference is often made to the desirability of preventing plaintiffs from prosecuting stale demands on the hand, and on the other, protecting defendants from disturbance after long lapse of time when they have grown accustomed to their position and may have lost the evidence necessary to defend it. A problem of limitation normally involves the consideration of the following matters . (1) The nature of the relief sought; (2) The correct limitation provision ; (3) When did the cause of action accrue ; (4) The effect of effluxion of the limitation period. The relief sought on the cause of action furnished normally laps to the determination of the correct limitation provision. Cause of action means that which makes action possible see Board of Trade v. Gayzer Irvine, (1927 AC 610 at p. 617). The general rule is that the period of limitation is to be computed from the time of the accrual of the cause of action. Sometimes a distinction is made between a cause of action and a right of action. But the distinction has no practical effect unless the statute provides that limitation shall start to run not from the accrual of the cause of action but from the moment a right accrues. Normally a cause of action does not accrue until a claim had been made and refused. In C. Mohammad Yunus v. Syedunnissa and others, ( AIR 1961 SC 808 ) it was held that a suit could be filed only after there was an express denial of the right claimed and the period of limitation prescribed under the Act had to be computed from the date of the express denial. It was observed that no right to sue could accrue to the plaintiff to institute the suit unless there was a clear denial of the right. That was a suit for declaration and injunction. It was found governed by Article 120 of the Limitation Act, 1908 which now corresponds to Article 113 of the new Act of 1963. It was observed that no right to sue could accrue to the plaintiff to institute the suit unless there was a clear denial of the right. That was a suit for declaration and injunction. It was found governed by Article 120 of the Limitation Act, 1908 which now corresponds to Article 113 of the new Act of 1963. That Article reads as follows : Description of suit Period of limitation Time from which period begins to run Any suit for which no period of limitation is provided elsewhere in this Schedule. Three years When the right to sue accrues The instant was a suit for declaration with a further relief for recovery of pay according to the revised scales of pay. It was found governed by Article 7 of the new Act by the court below. That article provides limitation for a suit for recovery of wages, and reads as follows Description of suit Period of limitation Time from which period begins to run For wages in the case of any other person. Three years When the wages accrued due In State of Assam v. Gopal Krishna Mehra, (AIR 1974 Gauhati 10) a question arose whether a Government servant was entitled to draw his salary at the revised scale without being fixed in the same, and what Article of the new Act was applicable to the claim. It was held that the Government servant was not entitled to draw his salary at the revised, scale until the Government had fixed his salary according to the same. Where the Government refused to fix the salary according to the revised scale, the salary could not be said to accrue due within Art 7. Article 113 was applied to the claim and it was observed that the right to sue for arrears under the revised scale would accrue under that Article on the date of refusal. The decision in State of Punjab v. S. Bhagwan Singh Grewal, (AIR 1968 Punjab and Haryana 58), was relied upon. In that case it was held that a Government servant could go to a court of law only after a decision had been taken for or against him by the Government in regard to fixing him in the new time scale. It was observed that he could not go to the Civil court earlier because in that case the suit would be dismissed as premature. It was observed that he could not go to the Civil court earlier because in that case the suit would be dismissed as premature. It was held that the date of fixation of pay in the new time-scale was the date-when the wages accrued due. It was observed that it is only to challenge an adverse decision that one goes to civil court to get it rectified and unless a decision is taken, no question arises for going to a court of law. These decisions support the appellants contention that Article 7 was inapplicable to the instant case. 10. Limitation implies on existing cause of action or a right to sue. There can be no right to sue until there is an accrual of that right by Its assertion on the one hand and its infringement, or a clear and unequivocal threat to infringe the same on the other see Mst. Rukhmani v. Laxmi-narayan and others, ( AIR 1960 SC 335 ). No cause of action had accrued to the appellant till 3-6-1968 when the claim was finally refused by the defendant. Time accordingly did not start to run against him see Midnapore Zamindary Co. Ltd. v. State of West Bengal and others, ( AIR 1961 Cal 353 ) and Raja Chattar Singh and another v. Diwan Roshan Singh, (AIR 1956 Nag. 227). It was observed in those case that limitation always implies an existing cause of action, and unless the same accrues for a suit, limitation cannot begin to run. 11. The discretion to fix the appellant in the revised pay scales was with the defendant, and untill the appellant was so fixed he could not claim the same from the defendant. The appellant may have had a feeling that he was entitled to the new time scales but that was dependant upon the will and judgment of his master. Law does not compel a party to go to a court even when a claim is under investigation. There is a distinction between a representation in 'respect of a recognised claim and one for fixation to a time-scale. The court below found that a discretion lay with the defendant to fix the appellant in the revised time-scale, and that discretion was arbitrarily exercised against him. To an unsettled claim of the nature involved in the instant case Article 7 of the new Act, to my mind, cannot be applied. The court below found that a discretion lay with the defendant to fix the appellant in the revised time-scale, and that discretion was arbitrarily exercised against him. To an unsettled claim of the nature involved in the instant case Article 7 of the new Act, to my mind, cannot be applied. In The State of Madhya Pradesh v. The State of Maharashtra and others ( AIR 1977 SC 1966) a suit for wages for ten years was decreed. The plaintiff in that case was suspended on 16th September, 1943 and thereafter removed from service by an order dated 7th November, 1945. This order was set aside by a decree of the civil court, and the plaintiff was reinstated in service on 12th December, 1953. He was again suspended by an order dated 9th January, 1954 and removed from service by an order dated 2nd February, 1956. The plaintiff filed the suit on October, 6, 1956 for a declaration that his suspension and removal were bad in law; and he continued in service. He claimed a sum of Rs. 64,588-3-0 as arrears of salary for a period much over three years. The suit was decreed, and it was held that the suit could be filed only when the cause of action for the same accrued to the plaintiff which first accrued on December 12, 1953 when he became entitled to his salary on his reinstatement pursuant to the decree passed in his favour, which was suspended during the suspension period, and subsequently on the order of suspension dated 9th January, 1964 and the order of dismissal dated February 23, 1956 being passed against him which he challenged in the suit in. question It was observed that there was no question of salary accruing due so long as he was not found entitle to the same, and the plaintiffs salary accrued due only on the order of dismissal dated February 23, 1956 being set aside. The cases of Sakal Deep Sahai Sri Vastava v. Union of India ( AIR 1974 SC 338 ) and Jai Chand Sawhney v. Union of India, ( 1970 SCJ 288 ) were distinguished on the ground the question as to when the cause of action for salary accrues, as in the case in hand, was neither involved nor considered in these cases. The claim was decreed with reference to the cause of action accruing to the plaintiff. The claim was decreed with reference to the cause of action accruing to the plaintiff. It, therefore, follows that a claim for salary has to be considered with reference to the cause of action. No salary can accrue due to a party until he is found entitled to it. In Lakshminarayana Reddiar v. Singaravelu Naicker and another, ( AIR 1963 Mad 24 ) it was held that no suit can be filed till a cause of action is complete ; and a cause of action does not become complete until the person who is the owner of the right is enable to assert his right by a proper proceeding to protect it. In Jateendra Chandra Bandoh Padhyaya and others v. Rebateemohan Das and others, AIR 1935 Cal. 333, the principle of cause of action continuing to exist and being effective was stressed for determining the starting point of limitation for a proceeding. In Mitlla Vittil Seeti Kutti and others v. K. M. K. Kutti Pathumma and others (AIR 1919 Mad 972 at p. 984) per Srinivasa Aiyangar, J. it Was observed that no period of limitation can begin to run till there is a cause of action, and the Articles of the Limitation Act ought not to be construed in a way so as to bar an action before the cause of action arose or even to cut short' the period so as to give varying periods of time for the suit. Learned Judge further observed that in construing these Article we should not lay undue stress on Col. 1 of the Article which describes the nature of the suit and hold that all suits of that class must be governed by that Article though he starting point fixed in Col. 3 cannot be applied at all or cannot be applied without working injustice. 12. It, therefore, follows that although a suit may fall within the class of suits described in Col. 1 of an Article, if the cause of action on which the suit is-based has not arisen at the time specified as the starting point of limitation in the Article it would not apply to the suit. For each Article must be held to contemplate only cases where the cause of action has accrued at the time specified therein as the starting point of limitation. For each Article must be held to contemplate only cases where the cause of action has accrued at the time specified therein as the starting point of limitation. Limitation would otherwise begin to run in some cases even before the plaintiff has a right to sue. As observed in Midnapore Zamindary Co., Ltd. v. State of West Bengal and others, ( AIR 1961 Cal. 353 ) it is a fundamental principle that limitation always implies an existing cause of action and, as observed in Lakskminarayan and Reddiar v. Singaravelu Naicker and others, ( AIR 1963 Mad. 24 ) unless the-cause of action is complete and effective for a suit to be held on its basis, limitation for such a suit cannot begin to ran. The time from which limitation is directed to run under the various Articles either coincides with the accrual Of the cause of' action or refers to a date subsequent to the same. An Article must be he'd to apply only to cases where both its first and third columns are applicable. Where the words in the third column relating to the starting point of limitation refer to a time which is before the accrual of the cause of action for a suit, the Article would not apply to it, In Jai Chand Sawhney v. Union of India, ( 1970 (2) SCJ 288 ) it was held 'that wages accrued due to a servant when he-becomes entitled to the same. The question in the instant case is whether the plaintiff could claim to be entitled to the salary claimed even when the defendant had not fixed him in the revised time scale and he had not obtained any declaration in his favour from a competent court. It seems to me that a case of admitted salary or wages, payment of which is agreed to under a contract, is to be distinguished from a case of disputed wages. The case of Sakal Deep Sahai Srivastava v. Union of India ( AIR 1974 SC 338 ) on which strong reliance was placed by the learned counsel for the respondent is to be distinguished op the ground that there was no dispute about the salary or wages in that case. In para 35 of the written statement it was clearly alleged that the plaintiff was not entitled to the salary claimed, and this has been the-stand throughout the proceedings. In para 35 of the written statement it was clearly alleged that the plaintiff was not entitled to the salary claimed, and this has been the-stand throughout the proceedings. I am in respectful agreement with the view expressed in State of Assam v. Gopal Krishna Mehra, (AIR 1974 Gauhati 10) that where the Government refuses to fix the salary according to a revised scale, the salary cannot be said to have accrued due within Article 7 of the new Act. Learned counsel for the respondent relied on Gajadhar Prasad v. Dharma Nand ( AIR 1935 All 716 ) and The Union of India v. Ramgopal Tamvar, ( AIR 1972 Raj 196 ) to contend that wages accrued due on the final day of each month. These were cases in which no salary had to be fixed. Madhav Laxman Vaikunthe v. State of Mysore, ( AIR 1962 SC 8 ) Sakal Deep Sahai Srivastava v. Union of India ( AIR 1974 SC 338 ) and The Punjab Province v. Tara Chand (AIR 1947 FC 23) were relied for the submission that a suit for arrears of salary is one for recovery of wages to which Article 101 of the old Act corresponding to Article 7 of the new Act applies. A suit for salary may the a suit for wages but whether Article 102 or Article 7 applies to it in the circumstances of a particular case is another question which has to be considered with reference to the nature of the relief sought and the cause of action accruing for the same. The question involved in the instant case was when would wages accrue to the plaintiff. None of the cases relied upon were cases of fixation of pay in the revised pay scale. In none of them was there a dispute as to when would wages accrue due. It seems wholly unjust that the plaintiffs claim be held to be time-barred when the defendant had all along been assuring him of necessary action on his representation for being fixed in ' the revised pay scale. Ultimately it was refused on a ground which was no ground in the eyes of law. Just claims cannot be allowed to be thwarted in the manner it was done in instant case. 13. Ultimately it was refused on a ground which was no ground in the eyes of law. Just claims cannot be allowed to be thwarted in the manner it was done in instant case. 13. Reliance was placed by the learned counsel on Union of India and another v. Shanti Swarup, (1959 (2) Lab IC 1265) for the contention that Article 7 applies to a suit for recovery of arrears of pay in a revised scale and claim cannot be decreed for a period in excess of three years. Facts of that case were different. Cause of action for the suit in that case was found to have arisen much prior to a period of three years from the date of the institution of the suit, on the averments made by the petitioner himself. Further, the question as to when does a cause of action for a suit for arrears of salary arise to a servant in the circumstances involved in the instant case was neither canvassed nor considered in that case. 14. Learned counsel for the respondent then submitted (hat representations did not enlarge limitation and the plaintiff could not get benefit of the representations made by him. It is not a case of enlarging limitation but of commencing the same. As observed earlier, where the cause of action for a suit has not arisen, limitation for the same cannot begin to run against the plaintiff. And if the cause of action for a suit arises after the time specified in the Article sought to be applied, that Article would not apply to the suit. 15. For the reasons stated lam of the opinion that no part of the claim for arrears of salary in the revised scale was barred by time. 16. The appeal, accordingly, succeeds and-is allowed. The decree of the court below is set aside and that of the trial court is restored. The plaintiff-appellant shall be entitled to his courts.