S KRISHNASWAMI AND E DEVARAJAN Vs. E RAMIAH

JUDGEMENT

(1.) In these references the question which we are called upon to answer is to the following effect :

(2.) It will be worthwhile to advert to the Legislative history concerning the prescriptions for limitation for applications. It cannot be said that the earliest statutes governing limitations did provide for limitations for applications. M. Srinivasan, J. in Sakunthala v. Minor Vijaylakshmi (T.O.S. No. 23 of 1985 and Applns. Nos.181 of 1988 and 2693 of 1989, Judgment dated 26-9-1989 - concisely reported in 1989 TNLJ 333) had occasion to touch the Legislative history on this aspect and it would be worthwhile to extract, as follows, paragraph 9 of the judgment of the learned Judge, wherein this aspect is the subject matter of recapitulation : "The earliest of the statutes of Limitation was Act XIV of 1859 passed by the Legislative Council of India and received the Assent of the Governor-General on 5th May, 1859. That came into operation in 1862. Before that, there was one Code of Laws for the Courts established by Royal Charter in the Presidency-towns, and a separate Code for the Company's Courts in each of the three Presidencies of Bengal, Madras and Bombay. The anomaly of having different Codes was done away with by the Act of 1859. According to the preamble, the express object of the Act was to amend and consolidate the laws relating to the limitation of suits. All the Provisions in the Act related only to suits. That Act was replaced by Act IX of 1871, which was to consolidate and amend the law relating to the limitation of suits, appeals and certain applications to Courts and also to provide rules for acquiring ownership by possession. The second schedule to the said Act contained three Divisions, the first of which related to suits, while the second and third related to appeals and applications respectively. That Act was replaced by the Act XV of 1877, the object being to amend the law relating to the limitation of suits, appeals, and certain applications to Courts besides to provide rules for acquiring by possession the ownership and easements and other property. There again, the second schedule contained three Divisions as in the predecessor Act. Art.178 therein read as follows : Table 1 Description of Application Period of limitation Time from which period begins to run. 178. Applications for which no period of limitation is provided elsewhere in this schedule, or by the Code of Civil Procedure Section 230. Three years when the right to apply accrues The Limitation Act,1908 contained Art.181 corresponding to Art. 178 of Act XV of 1877. The language of Art.181 of the Limitation Act, 1908 run as follows : Table 2 181. Applications for which no period of limitation is provided elsewhere in this schedule or by Section 48 of the Code of Civil Procedure, 1908 Three years when the right to apply accrues.

(3.) There are decisions of Courts expressing views that the applications referred to in the residuary Article in the Limitation Statutes must be held to be only applications under the Code of Civil Procedure, applying the principle of ejusdem generis. In the matter of Ishan Chunder Roy, (1881) ILR 6 Cal 707, the Division Bench of the High Court of Calcutta opined that Art.178 found in Schedule II of the Limitation Act XV of 1877 is not applicable to an application for probate. The reasoning therefor has been expressed by Tottenham, J. who went to constitute the Bench with Morris, J. in the following terms :