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1985 DIGILAW 305 (KER)

KRISHNANKUTTY v. MANI

1985-10-07

PAREED PILLAY

body1985
Judgment :- 1. Revision petition is filed by the defendant in S.C.11/79 of the Munsiff Court, Koothuparamba. Respondent herein filed the suit based on a promissory note. The learned Munsiff decreed the suit overruling the contentions of the defendant. 2. The principal contention of the revision petitioner (defendant) is that the promissory note Ext. Al was executed on 21-5-1975 and the suit filed long after the period of limitation is patently barred. Plaintiff had filed an earlier suit (SC. 31/77) and that was withdrawn with permission of the court. That suit happened to be withdrawn as the defendant pleaded benefit under Act 17/1977. Ext. A7 is the order allowing withdrawal of the earlier suit. Plaintiff filed petition in the earlier suit (SC. 31/77) to allow him to withdraw the suit with permission to file another suit later. That petition has been marked as Ext. A6. The court allowed the petition (I.A. 2107/78 in SC. 31/77). Counsel for the respondent (plaintiff) contended that as that petition was allowed the plaintiff had time till 21-8-79 to file the suit and the present suit was filed within that time and therefore there is no bar of limitation. It is true that I.A. 2107/78 in SC. 31/77 was allowed by the Munsiff Court. Merely because the court allowed I. A. 2107/ 78 it cannot be said that the plaintiff thereby would be in a position to get further time to file the suit beyond the statutory period of limitation. Statutory period of limitation cannot be extended by any court order. Period of limitation may be extended by the intervention of any supervening statute which prevents a plaintiff from instituting suits. For example, in view of the commencement of Debt Relief Act a person may be prevented from instituting suit for a particular period and such statute may provide that when the period expires plaintiff would get further time to file the suit. Provisions to that effect are often found in statutes like Debt Relief Act and Acts or Ordinances regarding temporary stay of eviction. Such is not the case when the court allows the plaintiff to withdraw his suit with liberty to file fresh suit on the same cause of action. Even though such permission is there, it will not enable the plaintiff to get over the period of limitation. Such is not the case when the court allows the plaintiff to withdraw his suit with liberty to file fresh suit on the same cause of action. Even though such permission is there, it will not enable the plaintiff to get over the period of limitation. What the court has allowed in this case was only to permit the plaintiff to file fresh suit A court cannot enlarge the period of limitation statutorily fixed when it allows the plaintiff to file fresh suit. What the court can allow is definitely circumscribed by the period of limitation. 3. Another aspect to be noticed is that due to the commencement of Act 30/1975 (Kerala Debtors (Temporary Relief) Act, 1975) plaintiff is entitled to get over the statutory period of limitation to file the suit in view of S.3 and 6 of the Act S.3 of the Act reads: "3. Bar of suits and applications and other proceedings: No suit for recovery of a debt shall be instituted, no application for execution of a decree in respect of a debt shall be made and no appeal, revision petition or application for review against any decree or order in any such suit or application shall be presented or made in any civil or revenue court before the expiry of one year from the commencement of this Act or such longer period as may be specified by the Government by notification in the Gazette; and all such suits, applications, appeals and petitions instituted, made or presented before such commencement and pending at such commencement shall stand stayed for the said period." S.3 prohibits institution of suit for recovery of debts for a period of one year from the commencement of the Act. S.6 reads: "6. Limitation: In computing the period of limitation for a suit for recovery of a debtor an application for the execution of a decree in respect of a debt or an appeal, revision petition or application for review against any decree or debt in any such suit or application, the time during which the institution of the suit or the making of the application or the presentation of the appeal or petition was barred under S.3 shall be excluded." Act 30/1975 received the assent of the President on 6-10-1975. The promissory note was executed on 21-8-1975. The promissory note was executed on 21-8-1975. Due to the intervention of Act 30/1.975 plaintiff could not institute the suit and therefore he could get over the period in which he was precluded from instituting the suit. The learned Munsiff has rightly held that in view of Act 30/1975 the suit filed by the plaintiff is within time. The contention of the respondent that his suit is within time in view of Ext. A7 order is not tenable. 4. Counsel for the respondent next contended that the suit cannot be dismissed on the ground of limitation as the suit was filed within 3 years from the date of written statement in SC. 31/77 wherein the defendant acknowledged his liability. Learned counsel contended that in the written statement filed by the defendant in SC. 31/77 (Ext. A4) he had admitted the debt and therefore from that date onwards plaintiff would be entitled to further period of limitation. In Ext. A4 written statement defendant has not repudiated the claim of the plaintiff. Admitting the claim in that suit defendant contended that he is entitled to benefit under Act 17/77. Ext. A4 can be treated as acknowledgment of liability by the defendant and therefore plaintiff is entitled to further period of limitation from that date. The resultant position is that the suit is not barred by limitation. The court below has rightly decreed the suit. There is no merit in the C.R.P. and hence the same is dismissed. No order as to costs.