THACKER CHATRABHUJ GOKULDAS Vs. THACKER KHATAU MOTIRAM

JUDGEMENT

(1.) The learned District Judge of Kutch held in Regular Civil Appeal No. 72 of 1956 that the original suit was cot out of time and therefore set aside the decree of the trial Court which dismissed the suit as having been barred by limitation. In revision it is contended by the petitioner, who is the original defendant, that the appellate Judge committed a gross irregularity in the exercise of his jurisdiction by holding that the suit was in time.

(2.) Therefore, the question is one of limitation and the following facts have to be borne in mind. The cause of action arose in Kutch State. The Khata in question has been executed in Kutch State on 14-4-48. The Kutch State was integrated in the Union of India and came to be classified as a C Class State. By Notification No. I27 (C)-J, dated 31st July, 1949, the Government of India applied the Indian Limitation Act to Kutch and the Notification was styled as 'the Kutch Application of Laws Order, 1949'. By the said order, the Indian Limitation Act came into force in Kutch on 31-7-49 subject to the Sudhara or the modification. The only modification specified in the schedule I of the order which was as under :-

(3.) It is clear form the Merged States Laws Act, 1949, which came into operation in January, 1950, that on the date of the suit, in 1955, the saw of limitation which applied was the Indian Limitation Act without any modification. Under this law, the suit which was based on a Khata dated 14-4-1948 would have been barred by limitation in 1951, but it is contended by the learned counsel for the opponent that what was applied (sic - repealed ?) was the Indian Law of Limitation, which had been applied by the Kutch Application of Laws Order and not the Sudhara or amendment thereof contained in the second column of Schedule I to the Kutch Application of Laws Order, 1949. Section 3 of the Notification of the Government of India, dated 31st July, 1949. referred to above, applied the Indian Limitation Act, subject to the "Sudhara" shown in the schedule and that "Sudhara' 'has been translated above. Section 5 of the Merged States (Laws) Act, 1949. which came in force in January 1950 reads as follows :-